Exhibit 5
AFFILIATE AGREEMENT
August 9, 1999
Saratoga Resources, Inc.
000 Xxxxxxxx Xxxxxx - Xxxxx 0000
Xxxxxx, XX 00000
Gentlemen:
In connection with the merger of OptiCare Eye Health Centers, Inc.
("OptiCare") with a subsidiary of Saratoga Resources, Inc. (the "Company"),
pursuant to which each shareholder of OptiCare will receive shares of Common
Stock, .001 par value per share, of the Company in accordance with the Agreement
and Plan of Merger ("the Merger Agreement") dated as of April 12, 1999 by and
among the Company, OptiCare, OptiCare Shellco Merger Corporation, PrimeVision
Shellco Merger Corporation and PrimeVision Health, Inc., I have been advised
that I may be deemed to be an underwriter of the Company as that term is defined
for purposes of paragraphs (c) and (d) of Rule 145 ("Rule 145") of the rules and
regulations of the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Securities Act").
In connection with the Merger Agreement and the receipt of the merger
consideration thereunder, I represent and warrant to the Company and agree that:
1. I shall not make any sale, transfer or other disposition of the
shares of Common Stock that I receive pursuant to the Merger Agreement (the
"Shares") in violation of the Securities Act or the rules and regulations of the
Commission promulgated thereunder.
2. I have been advised that the issuance of the Shares to me pursuant
to the Merger Agreement has been or will be registered with the Commission under
the Securities Act by means of a Registration Statement on Form S-4. However, I
have also been advised that, because at the time the Merger Agreement was
submitted to the shareholders of OptiCare, I could be deemed an "affiliate" of
OptiCare and because any distribution by me of the Shares I receive as aforesaid
will not be registered under the Securities Act, such shares must be held by me
indefinitely unless (i) the distribution of such Shares has been registered
under the Securities Act, (ii) a sale of such Shares is made in conformity with
the provisions of Rule 145, or (iii) in the opinion of counsel acceptable to the
Company, some other exemption from registration requirements is available with
respect to any such proposed distribution, sale, transfer or other disposition
of such Shares.
3. I have carefully read this letter and the Merger Agreement and have
discussed the requirements of each and the limitations upon the distribution,
sale, transfer or disposition of the Shares, to the extent I believe necessary,
with my personal counsel or with counsel for OptiCare.
4. The Company is under no obligation to register the sale, transfer
or other disposition of the Shares to be received by me pursuant to the Merger
Agreement or to take any
other action necessary for the purpose of making an exemption from registration
requirements available.
5. There will be placed on the certificates representing the Shares
received by me, or any certificates delivered in substitution therefor, a legend
stating in substance:
"The shares represented by this certificate were issued in a
transaction to which Rule 145 under the Securities Act of 1933 applies.
The shares represented by this certificate may be transferred only in
accordance with the terms of a letter agreement between the registered
holder and Saratoga Resources, Inc., a copy of which agreement is on
file at the principal offices of Saratoga Resources, Inc."
6. Unless the transfer by me of the Shares held by me is a sale made
in conformity with the provisions of Rule 145(d) or made pursuant to a
registration statement under the Securities Act, the Company reserves the right
to take such actions, including, without limitation, the placing of a legend on
the certificates representing the transferred shares, when necessary, in the
Company's opinion, to comply with the Securities Act of 1933 or the rules and
regulations promulgated thereunder.
It is understood and agreed that the legend set forth in paragraph 5
above shall be removed by delivery of substitute certificates without such
legend if I shall have delivered to the Company a copy of a letter from the
staff of the Commission, or a opinion of counsel in form and substance
satisfactory to the Company, to the effect that such legend is not required for
the purpose of the Securities Act.
It is further understood and agreed that this letter agreement will be
null and void if the mergers contemplated by the Merger Agreement do not become
effective.
Very truly yours,
OXFORD HEALTH PLANS, INC.
BY /s/ Xxx X. Xxxxxxxxxx
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Ass't Secretary
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