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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) MARCH 10, 1997
SARATOGA RESOURCES, INC.
(Exact Name of registrant as specified in its charter)
DELAWARE 0-11498 76-0453392
(State or jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
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2000 DAIRY ASHFORD SOUTH, SUITE 410, HOUSTON, TX 77077
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (281) 531-0022
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SARATOGA RESOURCES, INC. FORM 8-K PAGE 2 OF 3
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
DESCRIPTION OF THE TRANSACTION
See Item 5 (Other Events).
ITEM 5. OTHER EVENTS
LEGAL PROCEEDINGS
The Company has previously reported certain information regarding its
involvement in certain litigation (the "Company Federal Lawsuit" and the
"Kaminski Lawsuit") with Joseph T. Kaminski, a former director of the Company,
in the following reports and matters filed with the Securities and Exchange
Commission: (i) Form 8-K (filed July 16, 1996), (ii) Form 10-KSB (filed July 31,
1996), (iii) Form 10-QSB (filed August 1, 1996), (iv) Proxy Statement (filed
August 30, 1996), and (v) Form 10-QSB (filed November 13, 1996).
On January 6, 1997, the "Company Federal Lawsuit" proceeded to trial,
whereupon the Company, Cooke, Dryer and Dryer, Ltd. received an overall
favorable outcome as set forth in the "Settlement Agreement", a copy of which is
attached hereto as Exhibit "1". Prior to the final judgment being entered,
Kaminski indicated his intention to appeal any final judgment which may be
entered. The Board of Directors, being aware of the risks, uncertainties, and
costs of continued litigation determined that it would be in the best interest
of the Company and its shareholders to attempt to compromise and settle all
matters in dispute of whatever kind or character concerning both the "Company
Federal Lawsuit" and the "Kaminski Lawsuit". Accordingly, on March 10, 1997, the
Company, Cooke, Dryer, Dryer, Ltd. and Kaminski entered into a Settlement
Agreement and Full and Final Release (the "Settlement Agreement").
Pursuant to the terms of the Settlement Agreement (i) Kaminski assigned to
the Company all of his stock, warrants, stock options, or other rights to
purchase any debt or equity interest in the Company or its affiliates, under his
actual or constructive control, currently or within a period of three years from
the date of the Settlement Agreement [which Kaminski represented to be 2,465,371
shares of common stock ("shares") and warrants to purchase 100,000 shares], and
further Kaminski assigned an additional 8,000 shares to the Company which he had
held as "Trustee", (ii) Kaminski released the Company, Cooke, Dryer and Dryer,
Ltd. from any and all claims and causes of action, (iii) the Company, Cooke,
Dryer and Dryer, Ltd. released Kaminski from any and all claims and causes of
action, and (iv) the Company, Cooke, Dryer, Dryer, Ltd. and Kaminski filed
motions to dismiss with prejudice the "Company Federal Lawsuit" and the
"Kaminski Lawsuit".
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SARATOGA RESOURCES, INC. FORM 8-K PAGE 3 OF 3
Accordingly, all claims and counterclaims against the Company and its two
directors (Cooke and Dryer) have been, or will be, dismissed, and there is no
other pending litigation against the Company or its directors.
Additionally, and as a result of the Settlement Agreement the total number
of shares of common stock of the Company issued and outstanding has been reduced
from 6,809,400 to 4,336,029, and 2,473,371 shares are now held in treasury.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired: NONE
(b) Pro forma financial information: NONE
(c) Exhibits:
Documents filed as part of this report:
(1) Settlement Agreement and Full and Final Release dated March 10,
1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SARATOGA RESOURCES, INC.
Date: March 12, 1997 By: /s/
Thomas F. Cooke
Chairman & CEO
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SARATOGA RESOURCES, INC., --------
THOMAS F. COOKE, and |
RANDALL F. DRYER, |
|
Plaintiffs, |
|
v. | CAUSE NO. H 96-CA-2839 MAG NJ
|------
JOSEPH KAMINSKI, | JURY
|
Defendant and |
Counter-Plaintiff, |
|
v. |
|
THOMAS F. COOKE and |
RANDALL F. DRYER, |
|
Counter-Defendants, |
|
and |
|
DRYER, LTD., |
|
Third-Party Defendant. ------
SETTLEMENT AGREEMENT
AND FULL AND FINAL RELEASE
I.
RECITALS AND BACKGROUND
WHEREAS, there now exist disputes and litigation between Saratoga
Resources, Inc., Thomas F. Cooke, Randall F. Dryer, Dryer, Ltd., and Joseph T.
Kaminski (hereinafter referred
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to jointly as the "Parties" or individually as a "Party"), including, but
not limited to, all matters set out in the above-referenced cause number filed
in the United States District Court for the Southern District of Texas
(hereinafter "Federal Court Claims") and the state court proceeding pending in
Harris County, Texas, in a case styled JOSEPH T. KAMINSKI V. THOMAS F. COOKE,
RANDALL F. DRYER, SARATOGA RESOURCES, INC., AND DRYER, LTD., Cause No. 96-24469
(hereinafter "State Court Claims").
WHEREAS, on or about October 1, 1996, the Court in the State Court Claims
entered an Agreed Order where Joseph Kaminski was ordered to dismiss the
derivative action against Thomas Cooke, Randall Dryer, and Dryer, Ltd. on or
before December 6, 1996, unless a shareholder of Saratoga Resources, Inc. other
than Joseph Kaminski was allowed to appear with the Court's permission as a
proper derivative plaintiff by December 6, 1996. After notice, no other
shareholder timely appeared.
WHEREAS, on January 6, 1997, the Federal Court Claims proceeded to trial.
Following the close of all the evidence, on January 10, 1997, the Court granted
judgment as a matter of law in favor of Saratoga Resources, Inc., Thomas F.
Cooke, Randall F. Dryer, and Dryer, Ltd., as to each and every of the following
counterclaims and causes of action asserted against them by Joseph Kaminski:
breach of fiduciary duty; negligent misrepresentation; fraud; breach of
contract; violation of the securities laws of the United States; violation of
the securities laws of the State of Texas; fraud in the inducement; interference
with contract; and shareholder oppression. Further, Saratoga Resources, Inc. did
not contest as a factual matter that the company
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owed Joseph Kaminski $52,000.00 plus interest for back salary, but instead
claimed that the amount was offset by greater amounts owed to Saratoga
Resources, Inc. by Kaminski 90-1. The Court decided to reserve this issue, as
well as all claims for attorney's fees and interest, until after the jury
verdict. The Court then submitted the remaining claims to the jury.
WHEREAS, on January 15, 1997, a duly-empaneled jury returned its verdict in
favor of Saratoga Resources, Inc., Thomas F. Cooke, and Randall F. Dryer, and
against Kaminski. Specifically, the jury found Joseph Kaminski liable to
Saratoga Resources, Inc. for breach of fiduciary duty, breach of contract,
fraud, statutory fraud, negligent misrepresentation, Texas securities
violations, Federal securities violations. The jury awarded Saratoga Resources,
Inc. compensatory damages in the amount of $370,000.00 for the breach of
fiduciary claim, $370,000.00 for the negligent misrepresentation claim, and no
damages for the remaining claims. The jury also awarded Saratoga Resources, Inc.
punitive damages in the amount of $250,000.00 relative to the breach of
fiduciary claim. Saratoga Resources, Inc. has elected to proceed with its claims
for damages against Kaminski and not rescission. The jury also found Joseph
Kaminski liable to Thomas Cooke and Randall Dryer for fraud and negligent
misrepresentation. The jury did not award Thomas F. Cooke or Randall F. Dryer
any damages. A final judgment has not yet been entered in the case and Joseph
Kaminski has expressed an intention to appeal any final judgment.
WHEREAS, the parties are aware of the risks, uncertainties, and costs of
continued litigation and now desire to compromise and settle ALL matters in
dispute between them of whatever
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kind or character concerning the Federal Court Claims and the State Court
Claims.
II.
SETTLEMENT TERMS
The terms of the Settlement Agreement and Full and Final Release are set
out below:
1. All parties to this Settlement Agreement and Full and Final Release
(this "Agreement") have agreed that this Agreement shall neither constitute nor
be construed as an adjudication or finding on the merits of the Federal Court
Claims or State Court Claims and shall neither constitute nor be construed as an
admission by any party of liability.
2. The parties to this Agreement desire to dispose between them all claims
and causes of action that relate to the Federal Court Claims and the State Court
Claims.
3. Upon signing of this Agreement, Joseph Kaminski agrees to convey and
assign all of the stock, warrants, stock options, or other rights to purchase
any debt or equity interest, under his actual or constructive control, now or in
the future, in Saratoga Resources, Inc. or its affiliates to Saratoga Resources,
Inc. This conveyance and/or assignment applies to all such stock, warrants,
stock options, debt instruments, or other rights which Joseph Kaminski may
obtain or acquire, by whatever means, during the next three years from the date
of this Agreement; however, this conveyance and/or assignment does not affect or
apply to any stock Joseph Kaminski may obtain in Saratoga Resources, Inc. by
reason of his guarantee of the so-called "First Interstate loan." Joseph
Kaminski represents that as of the date of this Agreement such debt or equity
interest in Saratoga Resources, Inc. or its subsidiaries or affiliates is in the
aggregate
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amount of 2,465,371 shares, 100,000 warrants and no stock options, and no debt.
As part of this Agreement, Joseph Kaminski shall sign and execute the documents
attached as Exhibit A which are necessary to effectuate this conveyance and
assignment.
4. Further, upon signing of this Agreement, Joseph Kaminski, as trustee for
the Kristen Marie Kaminski and Joseph J. Kaminski Trustee, agrees to sell to
Saratoga Resources, Inc. the 8,000 shares of Saratoga Resources, Inc., for
$1,411.76. Such sale shall take place within seven days from the execution of
this Agreement. Joseph Kaminski represents to Saratoga Resources, Inc. that he
has obtained the consent of Kristen Marie Kaminski and Joseph J. Kaminski or his
legal representative to this transaction and that under Joseph Kaminski's belief
and advice from counsel this is a lawful transaction.
5. Joseph Kaminski hereby releases, acquits, and discharges Saratoga
Resources, Inc., Thomas Cooke, Randall Dryer, and Dryer, Ltd., including their
officers, directors, agents, partners, attorneys, heirs, successors,
representatives, and assigns, from any and all claims or causes of action of
every nature, whether known or unknown, existing between the parties as of the
date of this Agreement including, but not limited to, any claims asserted or
which could have been asserted in the Federal Court Claims or the State Court
Claims. However, this release does not cover any possible claims by or against
the parties to this Agreement for breach of the terms of this Agreement or to
enforce any covenant in this Agreement.
6. Saratoga Resources, Inc., Thomas Cooke, Randall Dryer, and Dryer, Ltd.
hereby release, acquit and discharge Joseph Kaminski, including his agents,
attorneys, heirs, successors,
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representatives, and assigns, from any and all claims or causes of action of
every nature, whether known or unknown, existing between the parties as of the
date of this Agreement including, but not limited to, any claims asserted or
which could have been asserted in the Federal Court Claims or the State Court
Claims. However, this release does not cover any possible claims by or against
the parties to this Agreement for breach of the terms of this Agreement or to
enforce any covenant in this Agreement.
7. Joseph Kaminski hereby grants, sells, conveys and assigns to Saratoga
Resources, Inc. all right, title, and interest to any property or assets
(including, without limitation, all cash on hand and in banks; U.S. Governments
securities; accounts, loans, and notes receivables; cash or surrender value in
any life insurance; other stocks or bonds; real estate; and automobiles) owned
by Joseph Kaminski, directly or beneficially, or in the name of Joseph Kaminski,
which are not reflected on Joseph Kaminski's sworn financial statement dated
February 5, 1997, with the attached addendum, which is attached to this
Agreement as Exhibit B. The effective date of this conveyance is February 5,
1997. Joseph Kaminski claims that there are no such assets, and Saratoga
suspects that there are such assets. Within seven days after the final execution
of this Agreement, Saratoga Resources, Inc. will disclose in writing those
assets of Kaminski, if any, that it believes were conveyed and/or assigned by
Joseph Kaminski pursuant to this paragraph 7. Thereafter, either Kaminski or
Saratoga Resources, Inc. may within fourteen days from the final execution of
this Agreement notify the other party that it wishes and by this Agreement
Kaminski and Saratoga Resources, Inc. agree to arbitrate any claims or disputes
arising out of the title or
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interest to any property or asset that has been conveyed and/or assigned by
Joseph Kaminski to Saratoga Resources, Inc. under this paragraph 7. Kaminski and
Saratoga Resources, Inc. agree that the case will be arbitrated by Michael S.
Wilk who will convene such arbitration within fourteen days after such notice.
Any arbitration will be limited to a one day hearing. The arbitrator shall award
the fee and expenses of the arbitrator to the prevailing party. This arbitration
shall be governed by the General Arbitration Act of Texas, Chapter 171 of the
Texas Civil Practice and Remedies Code. Any assets not specifically identified
or disclosed upon completion of the arbitration hearing shall be forever
excluded from the conveyance and/or assignment under this paragraph 7.
8. In consideration of the terms of this Agreement, the parties to this
Agreement agree to file motions to dismiss with prejudice all Federal Court
Claims and the State Court Claims. In particular, but without limitation, Joseph
Kaminski agrees to dismiss the derivative claims against Thomas Cooke, Randall
Dryer, and Dryer, Ltd.. The parties to this Agreement agree to execute at the
signing of this Agreement the agreed motions to dismiss as reflected in Exhibits
C and D.
9. Joseph Kaminski acknowledges that by the terms of this Agreement
Saratoga Resources, Inc. has not rescinded any term of the agreements dated
September 30, 1993, including the Joint Venture Agreement, the Assignment of
License for Exploration Use of Seismic Data Agreement, the Seismic Data Purchase
and Loan Retirement Agreement, and the Stock Rights Agreement, and that whatever
rights Joseph Kaminski had to the Seismic Data or contract or other
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rights related to these referenced agreements have been conveyed to Saratoga
Resources, Inc. Joseph Kaminski acknowledges that Saratoga Resources, Inc. has
the sole and exclusive right to deal with whatever rights related to the Seismic
Data. Further, Saratoga Resources, Inc., Thomas Cooke, Joseph Kaminski, Randall
Dryer, and Dryer, Ltd. terminate and extinguish any rights or claims for
indemnity, if any, between themselves arising out of the agreements dated
September 30, 1993, including the Joint Venture Agreement, the Assignment of
License for Exploration Use of Seismic Data Agreement, the Seismic Data Purchase
and Loan Retirement Agreement, and the Stock Rights Agreement.
10. Joseph Kaminski acknowledges by signing this Agreement that the
consideration for this Agreement is adequate and all that Joseph Kaminski is
ever entitled to receive. Joseph Kaminski agrees that he will not request any
additional consideration from Saratoga Resources, Inc. or its subsidiaries or
affiliates or successors, or Thomas Cooke, Randall Dryer, and/or Dryer, Ltd. in
the future. Joseph Kaminski understands that Saratoga Resources, Inc. intends to
consummate an acquisition, enter into a merger or consolidation or otherwise
enter into a similar material transaction as soon as practicable (all of the
foregoing collectively "a Fundamental Corporate Transaction"). Although Saratoga
Resources, Inc. has been exploring a variety of Fundamental Corporate
Transactions, Saratoga Resources, Inc. has not entered into any definitive
agreement, letter of intent or otherwise entered into any formal or informal
commitment to pursue any particular Fundamental Corporate Transaction, but
intends to do so as soon as practicable. At such time as any Fundamental
Corporate Transaction is effected, it is likely that the value of
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Saratoga Resources, Inc.'s stock would be effected and that such effect may be
material. Kaminski will not be entitled to participate in any such material
change in value, if any, resulting from such Fundamental Corporate Transaction
by reason of entering into this Agreement and consummation of the transactions
set forth in this Agreement.
11. The parties to this Agreement do hereby represent and warrant that:
a. they thoroughly understand this Agreement as a complete Settlement
Agreement and Full and Final Release;
b. they are entering into this Agreement freely and voluntarily, after
receiving the advice of their respective attorneys; and
c. this Agreement constitutes the only agreement between the parties.
12. If any term or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the provisions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired, or invalidated.
13. The parties further agree to execute any and all documents necessary to
effectuate the terms of this Agreement.
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Executed this 10th day of March, 1997.
/s/
Robert Ketchand
Short & Ketchand, L.L.P.
ATTORNEY-IN-CHARGE FOR SARATOGA RESOURCES, INC.
/s/
Michael Burnett
Minton, Burton, Foster & Collins, P.C.
ATTORNEY-IN-CHARGE FOR THOMAS F. COOKE,
RANDALL F. DRYER, AND DRYER, LTD.
/s/
Thomas Sankey
Sankey & Luck, L.L.P.
ATTORNEY-IN-CHARGE FOR JOSEPH KAMINSKI
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/s/
Thomas F. Cooke
Before me, the undersigned Notary Public, on this day personally
appeared Thomas F. Cooke, who, after being duly sworn, stated under oath that:
I, Thomas F. Cooke, executed the foregoing Agreement for the purposes and
consideration expressed in the Agreement. I have read the entire Agreement and
thoroughly understand its contents. I have personal knowledge of the facts set
forth in the Agreement and they are true and correct.
SUBSCRIBED AND SWORN TO BEFORE ME on the 5th day of March, 1997.
/s/ JANICE TEAS
Notary Public in and for
the State of Texas
My commission expires 6/20/99
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/s/
Kevin Smith, as a duly authorized
representative of Saratoga
Resources, Inc.
Before me, the undersigned Notary Public, on this day personally
appeared Kevin Smith, who, after being duly sworn, stated under oath that: I,
Kevin Smith, executed the foregoing Agreement on behalf of Saratoga Resources,
Inc. for the purposes and consideration expressed in the Agreement. I have read
the entire Agreement and thoroughly understand its contents. I have personal
knowledge of the facts set forth in the Agreement and they are true and correct.
SUBSCRIBED AND SWORN TO BEFORE ME on the 6 day of March, 1997.
/s/ DEBBIE RAMBIN
Notary Public in and for
the State of Texas
My commission expires 7/9/98
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/s/
Joseph T. Kaminski, individually
and as trustee for the Kristen
Marie Kaminski and Joseph J.
Kaminski Trust.
Before me, the undersigned Notary Public, on this day personally
appeared Joseph T. Kaminski, who, after being duly sworn, stated under oath
that: I, Joseph T. Kaminski, executed the foregoing Agreement for the purposes
and consideration expressed in the Agreement. I have read the entire Agreement
and thoroughly understand its contents. I have personal knowledge of the facts
set forth in the Agreement and they are true and correct.
SUBSCRIBED AND SWORN TO BEFORE ME on the 7th day of March, 1997.
/s/ MARY E. RUIZ
Notary Public in and for
the State of Texas
My commission expires 8/13/98
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/s/
Randall F. Dryer, as a duly authorized
representative of Dryer, Ltd. and in his
individual capacity
Before me, the undersigned Notary Public, on this day personally
appeared Randall F. Dryer, who, after being duly sworn, stated under oath that:
I, Randall F. Dryer, executed the foregoing Agreement, individually and on
behalf of Dryer, Ltd., for the purposes and consideration expressed in the
Agreement. I have read the entire Agreement and thoroughly understand its
contents. I have personal knowledge of the facts set forth in the Agreement and
they are true and correct.
SUBSCRIBED AND SWORN TO BEFORE ME on the 5th day of March, 1997.
/s/ JANICE TEAS
Notary Public in and for
the State of Texas
My commission expires 6/20/99
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EXHIBIT A
STOCK TRANSFER AGREEMENT
This Stock Transfer Agreement dated effective as of March 6 1997, by and
between Saratoga Resources, Inc., a Delaware corporation (the "Company"), and
Joseph T. Kaminski ("Kaminski").
WITNESSETH
WHEREAS, the Company, Kaminski and certain other parties have entered
into a Settlement Agreement and Full and Final Release as of March 6, 1997 (the
"Settlement Agreement") pursuant to which Kaminski has agreed to convey and
assign to the Company his entire equity and debt interest in the Company; and
WHEREAS, the parties hereto desire to set forth their understanding and
representations in order to effect that transfer;
NOW THEREFORE, in consideration of the foregoing and of the terms and
conditions herein contained, the Company and Kaminski hereby agree as follows:
1. OWNERSHIP OF STOCK. Kaminski hereby represents and warrants that he
is the legal record and beneficial owner of 2,465,371 shares of Company common
stock, and warrants to purchase 100,000 shares of Company common stock, that
being all of the debt or equity interest owned or controlled, beneficially or of
record, by Kaminski, in the Company or any of its subsidiaries or affiliates
(hereinafter collectively referred to as the "Stock"). Kaminski represents and
warrants that he owns the Stock free and clear of all liens, claims or
encumbrances, and that he has full right, power and authority to transfer the
Stock hereunder and to make the representations, warranties and agreements
regarding the Stock contained herein.
2. TRANSFER OF STOCK. Kaminski hereby assigns, transfers and conveys to
the Company, and the Company accepts from Kaminski, all right, title and
interest in and to the Stock. Kaminski contemporaneously herewith shall
surrender all certificates or other evidences of the Stock, duly endorsed for
transfer, and execute such stock powers or other instrument of transfer as may
be deemed necessary or advisable by the Company fully and effectively to
transfer the Stock to the Company under the terms and conditions hereof. This
transfer of Stock applies to any and all Stock or other securities in the
Company which Kaminski may acquire by whatever means during the next three years
from the execution of this agreement.
3. PAYMENT. The Company accepts the transfer of the Stock as partial
payment of the obligations of Kaminski to the Company as set forth in the
Settlement Agreement.
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4. ACCESS TO DOCUMENTS. Kaminski acknowledges and agrees that he has
been furnished a copy of and has thoroughly and carefully reviewed the following
documents with respect to the Company and its actual and proposed business and
affairs (such documents being collectively referred to as the "Company
documents"):
(a) Forms 10-K of the Company for the fiscal years ended October 31,
1994 and 1995, and any other 10-Ks, filed with the Securities and Exchange
Commission "SEC') under the Securities Exchange Act of 1934, as amended
(the "Exchange Act");
(b) Forms 10-Q of the Company for the fiscal quarters ended January
31, April 30, July 31, and September 30 1996;
(c) All Forms 8-K of the Company filed by it reporting certain
significant events in any of fiscal years 1994 through 1996, and since the
last fiscal year end to the date hereof; and
(d) any other filings of the Company with the SEC in the last three
years.
5. REPRESENTATIONS AND WARRANTIES. Kaminski hereby acknowledges, represents
and warrants to, and agrees with the Company as follows:
(a) He understands the information contained in the Company documents
and has had access to the same kind of information which would be available
in a registration statement filed by the Company under the Securities Act
of 1933, as amended (the "Securities Act"), and all other information
requested by him in order to make an informed decision with respect to the
transfer of the Stock to the Company;
(b) all documents, records and books pertaining to the transfer,
assignment and conveyance of the Stock hereby have been produced and made
available to his satisfaction for inspection by him, his attorney,
accountant or other representative advising him in this transaction
(hereinafter his "advisors");
(c) he and his advisors have had a reasonable opportunity to ask
questions of and receive answers from representatives of the Company
concerning the business and prospects of the Company, the Stock and the
transfer effected hereby, and all such questions have been answered to the
full satisfaction of Kaminski;
(d) no oral or written representations have been made other than as
stated in this Agreement, and no oral or written information furnished to
Kaminski or his advisors in connection with the transfer of the Stock
hereunder were in any way inconsistent with the information stated in this
Agreement or the Company documents;
(e) he has, or together with his advisors they have, such knowledge
and
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experience in financial, tax and business matters so as to enable Kaminski
to utilize the information made available to him in connection with the
transfer of the Stock hereby, to evaluate the merits and risks of a
disposition of the Stock and to make an informed decision with respect
thereto;
(f) he is not relying on the Company with respect to the tax and other
economic considerations of the transfer of the Stock, and Kaminski has
relied on the advice of and consulted with his own advisors with respect
thereto;
(g) the representations, warranties and agreements of Kaminski
contained herein shall survive the execution and delivery of this Agreement
and the Settlement Agreement, and the transfer of the Stock;
(h) the Company is relying on these representations and warranties of
Kaminski in its decision to enter into the Settlement Agreement and to
accept transfer of the Stock from Kaminski hereby, and that the Company
would not accept the transfer of the Stock from Kaminski but for the
representations and warranties of Kaminski made herein.
6. AUTHORITY. Kaminski represents and warrants that he has full right,
power and authority to convey, assign and transfer the Stock pursuant to the
terms of this Agreement, and that any execution of this Agreement by his wife,
if any, conveys the only other potential claim of ownership or control of the
Stock by any other party. The parties executing this Agreement on behalf of the
Company have full power and authority to bind the Company to this Agreement.
7. INDEMNIFICATION. Kaminski agrees to indemnify and hold harmless the
Company and its officers, directors, employees, agents, affiliates and counsel
against any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expenses reasonably incurred in
investigating, preparing, or defending against any litigation commenced or
threatened or any claim whatsoever) arising out of or based upon any false
representation or warranty or breach or failure by Kaminski to comply with any
covenant or agreement made by him herein, in the Settlement Agreement or in any
other document furnished by him to the Company.
8. NON-WAIVER. Failure on the part of a party in any one or more instance
to enforce any of its rights which arise in connection with this Agreement, or
to insist upon the strict performance of any of the terms, conditions or
covenants of this Agreement, shall not be construed as a waiver or
relinquishment for the future of any such rights, terms, conditions or
covenants. No waiver of any condition of this Agreement shall be valid unless it
is in writing, and executed by the party against whom such waiver is sought to
be enforced.
9. NOTICES. All notices, requests, deliveries, payments, demands and other
communications which are required or permitted to be given under this Agreement
shall be in writing and shall be either delivered personally or sent by
registered or certified mail, return
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receipt requested, postage prepaid, to the parties at their respective addresses
as shall have been specified by notice in writing to the other.
10. SEVERABILITY. If any provision of this Agreement shall for any reason
be held to violate applicable law, and so much of said Agreement is held
unenforceable, then the invalidity of such specific provisions herein shall not
be held to invalidate any other provision of this Agreement, which shall remain
in full force and effect.
11. ENTIRE AGREEMENT. This Agreement, together with the Settlement
Agreement and other documents contemplated hereby and thereby, collectively set
forth the entire agreement among the parties with respect to the subject matter
hereof.
12. MODIFICATION. Neither this Agreement nor any provisions hereof shall be
waived, modified, discharged or terminated except by an instrument in writing
signed by the party against whom any such waiver, modification, discharge or
termination is sought.
13. ASSIGNMENT. Neither party shall have the right to transfer or assign,
in whole or in part, its rights and obligations hereunder without the prior
written consent of the other party.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
15. HEADINGS. Headings in this Agreement are for convenience only and shall
not affect the interpretation of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall have the force and effect of an original, and all of which
shall constituted one and the same agreement.
17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties and their respective successors and assigns, but
this provision shall in no way alter the restrictions set forth herein relating
to assignment by the parties.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the
day and year first above written.
SARATOGA RESOURCES, INC.
By: /s/
Kevin Smith, Director
/s/
Joseph T. Kaminski
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EXHIBIT C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
-------
SARATOGA RESOURCES, INC., |
THOMAS F. COOKE, and |
RANDALL F. DRYER, |
|
Plaintiffs, |
|
v. |
|
JOSEPH KAMINSKI, |
|
Defendant and |
Counter-Plaintiff, |
|--- CAUSE NO. H96-CA-2839 MAG NJ
v. |
| JURY
THOMAS F. COOKE and |
RANDALL F. DRYER, |
|
Counter-Defendants, |
|
and |
|
DRYER, LTD., |
|
Third-Party Defendant. |
-------
AGREED MOTION TO DISMISS WITH PREJUDICE
The parties to the above-numbered cause respectfully request that this
Court dismiss this action in its entirety with prejudice against all parties.
Each party shall be responsible for their own costs and attorney's fees.
WHEREFORE, the parties request that this Court grant their Agreed Motion to
Dismiss
<PAGE>
with Prejudice.
Respectfully submitted,
SANKEY & LUCK, L.L.P.
6500 Texas Commerce Tower
600 Travis
Houston, Texas 77002
(713) 224-1007
(713) 228-3919
/s/ THOMAS W. SANKEY
Thomas W. Sankey
State Bar No. 17635670
ATTORNEY-IN-CHARGE FOR KAMINSKI
SHORT & KETCHAND, L.L.P.
11 Greenway Plaza, Suite 1520
Houston, Texas 77046
(713) 960-1996
(713) 960-1517
/s/ ROBERT L. KETCHAND
Robert L. Ketchand
State Bar No. 11362500
ATTORNEY-IN-CHARGE FOR
SARATOGA RESOURCES, INC.
MINTON, BURTON, FOSTER & COLLINS
A Professional Corporation
1100 Guadalupe
Austin, Texas 78701
(512)476-4873
(512)479-9315(FAX)
/s/ MICHAEL BURNETT
Michael Burnett
State Bar No. 00790399
ATTORNEY-IN-CHARGE FOR COOKE,
DRYER & DRYER, LTD.
<PAGE>
EXHIBIT D
CAUSE NO. 96-24469
-------
JOSEPH T. KAMINSKI |
|
v. | IN THE DISTRICT COURT
|---
THOMAS F. COOKE, | OF HARRIS COURTY, TEXAS
RANDALL F. DRYER, |
SARATOGA RESOURCES, INC., A |
DELAWARE CORPORATION, AND | 113TH JUDICIAL DISTRICT
DRYER, LTD. |
|
-------
AGREED MOTION TO DISMISS WITH PREJUDICE
The parties to the above-numbered cause respectfully request that this
Court dismiss this action in its entirety with prejudice against all parties.
Each party shall be responsible for their own costs and attorney's fees.
WHEREFORE, the parties request that this Court grant their Agreed Motion to
Dismiss with Prejudice.
Respectfully submitted,
SANKEY & LUCK, L.L.P.
6500 Texas Commerce Tower
600 Travis
Houston, Texas 77002
(713) 224-1007
(713) 228-3919
/s/ THOMAS W. SANKEY
Thomas W. Sankey
State Bar No. 17635670
ATTORNEY-IN-CHARGE FOR KAMINSKI
SHORT & KETCHAND, L.L.P.
11 Greenway Plaza, Suite 1520
Houston, Texas 77046
(713) 960-1996
(713) 960-1517
/s/ ROBERT L. KETCHAND
Robert L. Ketchand
State Bar No. 11362500
ATTORNEY-IN-CHARGE FOR
SARATOGA RESOURCES, INC.
MINTON, BURTON, FOSTER & COLLINS
A Professional Corporation
1100 Guadalupe
Austin, Texas 78701
(512)476-4873
(512)479-8315(FAX)
/s/ MICHAEL BURNETT
Michael Burnett
State Bar No. 00790399
ATTORNEY-IN-CHARGE FOR COOKE,
DRYER & DRYER, LTD.
