SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is entered into as of October
6, 1999, by and between: STRATFORD AMERICAN RESOURCE CORPORATION ("SARC"), a
Texas corporation; STRATFORD AMERICAN CORPORATION ("SAC"), an Arizona
corporation; ENERGY INVESTMENT ADVISORS, INC. ("EIA"), a dissolved Colorado
corporation; OIL & GAS ADVISORS, INC. ("OGA"), a Delaware corporation; PETROLEUM
ADVISORS & CO. ("PAC"), a New York partnership; XXXXXX X. XXXXX ("X. Xxxxx");
and XXXX X. XXXXX ("X. Xxxxx"). Each of the foregoing parties are sometimes
referred to as a "Party" or collectively as the "Parties."
RECITALS
A. On or about February 21, 1999, SARC and SAC initiated a lawsuit against
EIA, OGA, PAC, X. Xxxxx and X. Xxxxx captioned: Stratford American Resource
Corporation et al. v. Energy Investment Advisors, Inc., Case Xx. 00-XX-0000,
Xxxxxxxxx 00 (Xxxxxxxx Xxxxx, Xxxx and County of Denver, Colorado) (the
"Lawsuit"). In the Lawsuit, SARC and SAC sought a declaratory judgment and
alleged breach of contract relating to a Settlement Agreement (the "Prior
Settlement Agreement") and Assignment (the "Assignment"), both dated July 18,
1988, entered into by and between and among the Parties.
B. In the Lawsuit, EIA, OGA, PAC, X. Xxxxx and X. Xxxxx asserted
counterclaims against SARC, SAC alleging breach of contract, unjust enrichment
and accounting relating to the Prior Settlement Agreement and Assignment. EIA,
OGA, PAC, X. Xxxxx and X. Xxxxx have denied liability to SARC and SAC. SARC and
SAC have denied liability to EIA, OGA, PAC, X. Xxxxx and X. Xxxxx.
C. The Parties wish to enter into this Agreement to resolve all claims,
counterclaims, allegations and defenses which they had against each other in the
Lawsuit and arising out of all other transactions, communications and other
dealings between the Parties to the date of this Agreement regardless of whether
the factual basis of such claims is fully known or appreciated.
AGREEMENT
NOW, THEREFOR, in consideration of the foregoing recitals, the mutual
promises, covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. SETTLEMENT PAYMENT. Contemporaneously with the full execution of this
Agreement by all Parties, SARC shall make a single payment of US $87,500.00 (the
"Payment") for the benefit of EIA, OGA, PAC, X. Xxxxx and X. Xxxxx. The payment
shall be made by wire transfer to the "Xxxxx, Xxxxxx & Xxxxxx LLP Client Trust
Fund Account" (the "Account") in accordance with the wire transfer instructions
attached hereto as EXHIBIT A. Upon receipt of the Payment, Counsel for EIA, OGA,
PAC, X. Xxxxx and X. Xxxxx agrees to verify receipt of the Payment by sending an
email to counsel for SARC (at xxxxxx@xxxx.xxx) acknowledging receipt of the
Payment.
2. REASSIGNMENT OF PAC INTERESTS. Contemporaneously with the full execution
of this Agreement by all the Parties, PAC shall transfer all of its remaining
interests in the Acquired Interests (as defined in the Assignment) and any and
all other interests under the Assignment pertaining to the Acquired Interests,
if any, to SARC, by execution and delivery of the form attached hereto as
EXHIBIT B (the "Transfer of Interests"). The Transfer of Interests shall be free
of any representations or warranties of any type or description whatsoever,
including but not limited to representations or warranties of title.
3. GENERAL RELEASE BY SARC AND SAC. Effective upon the later of the receipt
of Payment into the Account or the delivery of the Transfer of Interests to
SARC, then SARC and SAC, for themselves and for their successors, heirs,
assigns, agents, representatives, officers, directors and employees, completely,
unconditionally and forever release, acquit and discharge EIA, OGA, PAC, X.
Xxxxx and X. Xxxxx, together with their respective successors, heirs, assigns,
representatives, agents, affiliated entities, employees, attorneys, officers,
directors, and partners, of and from any and all actions, causes of action,
claims, contracts, debts, demands, liabilities, losses and damages of every kind
and nature whatsoever, whether known or unknown, including but not limited to,
those which were made, may have been made or could have been made in the
Lawsuit, or which in any manner relate to any and all other transactions,
communications and other dealings between the Parties prior to the date of this
Agreement. This release shall be a full and final general release.
Notwithstanding the foregoing, nothing contained in this Paragraph No. 3 shall
constitute a release of EIA, OGA, PAC, X. Xxxxx and X. Xxxxx from complying with
the terms and conditions of this Agreement.
4. GENERAL RELEASE BY EIA, OGA, PAC, X. XXXXX AND X. XXXXX. Effective upon
the later of the receipt of Payment into the Account or delivery of the Transfer
of Interests to SARC, then EIA, OGA, PAC, X. Xxxxx and X. Xxxxx, for themselves
and for their successors, heirs, assigns, agents, representatives, officers,
directors, and employees, completely, unconditionally and forever RELEASE,
ACQUIT AND DISCHARGE SARC AND SAC, together with their respective successors,
heirs, assigns, representatives, agents, affiliated entities, employees,
attorneys, officers, directors, and partners, of and from any and all actions,
causes of action, claims, contracts, debts, demands, liabilities, losses and
damages of every kind and nature whatsoever, whether known or unknown, including
but not limited to, those which were made, may have been made or could have been
made in the Lawsuit, or which in any manner relate to any and all other
transactions, communications and other dealings between the Parties prior to the
date of this Agreement. This release shall be a full general release.
Notwithstanding the foregoing, nothing contained in this Paragraph No. 4 shall
constitute a release of SARC and SAC from complying with the terms and
conditions of this Agreement.
5. DISMISSAL OF THE LAWSUIT. After the later of receipt of Payment into the
Account or delivery of the Transfer to SARC, then the Parties shall promptly
dismiss the Lawsuit, with prejudice. Counsel for the Parties shall execute and
file with the District Court for the City and County of Denver, Colorado a
Stipulation for Dismissal With Prejudice in the form attached hereto as EXHIBIT
C.
6. COVENANT NOT TO XXX. Each Party covenants that it will not initiate any
lawsuit or proceeding or otherwise assert any claims which have been released
under this Agreement.
-2-
7. SOLE SURVIVING AGREEMENT. SARC and SAC on the one hand and EIA, OGA,
PAC, X. Xxxxx and X. Xxxxx on the other hand acknowledge that this Agreement
evidences the sole surviving contractual relationship between and among them and
supersedes all prior and contemporaneous agreements, representations, warranties
and understandings of the Parties. Notwithstanding the foregoing, Paragraph No.
7 (Right to Compete) in the Prior Settlement Agreement shall remain in effect.
8. ALLOCATION OF PAYMENT. The Parties agree that SARC may internally
allocate the payment as follows: (a) $37,500.00 toward acquisition of the
Transfer Interests; and (b) $50,000 toward settlement of the Lawsuit. The
Payment and Transfer are made in satisfaction and settlement of the claims,
counterclaims and defenses asserted in the Lawsuit and the Reassignment of the
PAC Interests as specified in Paragraph No. 2, above, and the Transfer of
Interests.
9. ATTORNEYS' FEES. Each Party shall be responsible for its own attorneys'
fees, costs and expenses incurred in connection with the Lawsuit and the
preparation of this Agreement.
10. NO ADMISSION OF LIABILITY. The Parties' agreement to the terms of this
Agreement shall in no manner be deemed to be, and is not, an admission, express
or implied, of: (a) liability by any Party to any other person or entity; (b)
any fact, other than the facts set forth in the Recitals to this Agreement; or
(c) the merits of the position taken by any Party with respect to any matter.
11. FUTURE COOPERATION. Each Party agrees to execute any and all documents
and to do and perform any and all acts and things reasonably necessary or proper
to effectuate or further evidence the terms and provisions of this Agreement.
12. NO ASSIGNMENT OF CLAIMS. Each Party represents and warrants to the
other that it has not heretofore assigned or transferred, or purported to assign
or transfer to any person or entity any of the claims that it might have against
the other which are released in Paragraph Nos. 3 and 4, above, and has not
encumbered the interests transferred pursuant to paragraph 2, above.
13. NO THIRD-PARTY BENEFICIARIES. Except as otherwise provided in this
Agreement, nothing in this Agreement is intended to confer any rights or
remedies under or by reason of this Agreement on any persons other than the
Parties, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third person to any Party, nor shall any
provision of this Agreement give any third person any right of subrogation or
action over or against any Party.
14. CONFIDENTIALITY. Except as may be required by any regulatory agency
having authority over any party or excepts pursuant to a SUBPOENA DUCES TECUM or
other proper order for production of information in any subsequent judicial
proceeding or as required by applicable law or to effectuate the purpose and
terms of this Agreement, each Party agrees to keep the terms and conditions of
this Agreement confidential.
15. [Intentionally deleted].
-3-
16. MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by all Parties. No
waiver of any of the provisions of this Agreement shall be deemed or constitute
a waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed in
writing by the Party making the waiver.
17. REVIEW; REPRESENTATION BY COUNSEL; ETC. Each Party acknowledges and
represents that:
(1) It has fully and carefully read and considered this Agreement
prior to its execution;
(2) It has consulted with or has had the opportunity to consult with
its attorneys regarding the legal effect and meaning of this Agreement and all
terms and conditions hereof, and that it is fully aware of the contents of this
Agreement and its legal effect;
(3) It has had the opportunity to make whatever investigation or
inquiry it deems necessary or appropriate in connection with the subject matter
of this Agreement;
(4) It is executing this Agreement voluntarily and free from any undue
influence, coercion, duress or fraud of any kind; and
(5) It is knowingly and voluntarily waiving and releasing all claims
against the other Party, regardless of whether such claims are known or fully
appreciated, except as provided in this Agreement.
18. Miscellaneous Provisions.
(1) This Agreement shall be binding upon and shall inure to the
benefit of the Parties and the Parties' respective heirs, legal representatives,
successors and assigns;
(2) If either Party is required to take any action to enforce this
Agreement, the prevailing Party shall be entitled to recover all reasonable
attorneys' fees and costs from the non-prevailing Party;
(3) If either Party is required to take any action to enforce or
interpret this Agreement, such action shall be brought only the state courts in
Denver County, Colorado;
(4) The paragraph headings used in this Agreement are for purposes of
identification only and shall not be considered in construing this Agreement.
Furthermore, this Agreement shall be deemed to have been prepared with the full
and equal participation of all the Parties and their respective counsel and
shall not be construed by one Party against the other;
(5) This Agreement shall be construed and enforced in accordance with
the laws of the State of Colorado;
-4-
(6) By executing this Agreement, each of the undersigned represents
and warrants to the other that each of the undersigned has the full power and
authority to enter into and perform this Agreement in accordance with its terms;
and
(7) This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, and both of which together shall constitute
one and the same document. The parties shall accept facsimile signatures as
original signatures.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above written.
STRATFORD AMERICAN RESOURCE CORPORATION
---------------------------------------
By: Xxx Xxxxxx
Its: President
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxx Xxxxxx, as President of Stratford American Resources
Corporation, a Texas corporation.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
-5-
STRATFORD AMERICAN RESOURCE CORPORATION
---------------------------------------
By: Xxx Xxxxxx
Its: President
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxx Xxxxxxx, as President of Stratford American Corporation, a
Delaware corporation.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
-6-
PETROLEUM ADVISORS & CO.
By Oil & Gas Advisors, & Inc., Partner
---------------------------------------
By: Xxxxxx X. Xxxxx
Its: President
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxxxxx X. Xxxxx, as President of Oil & Gas Advisors, Inc., a
Partner in Petroleum Advisors & Co., a New York Partnership.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
OIL & GAS ADVISORS, INC.
---------------------------------------
By: Xxxxxx X. Xxxxx
Its: President
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxxxxx X. Xxxxx, as President of Oil & Gas Advisors, Inc., a
Delaware corporation.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
-7-
XXXXXX X. XXXXX
---------------------------------------
Xxxxxx X. Xxxxx, Individually
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxxxxx X. Xxxxx, Individually.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
-8-
PETROLEUM ADVISORS & CO.
By Energy Investment Advisors, Inc.,
Partner
---------------------------------------
By: Xxxx X. Xxxxx
Its: President
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxxx X. Xxxxx, as President of Energy Investment Advisors,
Inc., Partner in Petroleum Advisors & Co., a New York partnership.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
ENERGY INVESTMENT ADVISORS, INC.
---------------------------------------
By: Xxxx X. Xxxxx
Its: President
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxxx Xxxxx, as President of Energy Investment Advisors, Inc., a
dissolved Colorado corporation. Witness my hand and official seal.
My commission expires: _______________________________
Notary Public
-9-
XXXX X. XXXXX
---------------------------------------
Xxxx X. Xxxxx, Individually
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this _____ day of
October, 1999 by Xxxx X. Xxxxx, Individually.
Witness my hand and official seal.
My commission expires: _______________________________
---------------------------------------
Notary Public
-10-
APPROVED AS TO FORM:
XXXXXXXX XXXXXX XXXXXXX & XXXXXXXX, P.C.
By:
---------------------------------------
Xxxxx X. Xxxxx
The Equitable Building
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attorneys for Plaintiffs and Counterclaim-Defendants SARC and SAC
XXXXX, XXXXXX & XXXXXX LLP
By:
---------------------------------------
Xxx XxXxxxxx
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attorneys for Defendants and Counterclaim-Plaintiffs EIA, OGA, PAC, X. Xxxxx and
X. Xxxxx
EXHIBIT A
XXXXX, XXXXXX & XXXXXX LLP -
WIRE TRANSFER INSTRUCTIONS
REVISED: OCTOBER 1, 1999
In order to have funds wire transferred into the Xxxxx, Xxxxxx & Xxxxxx LLP
Agency Trust Account, please comply with the following instructions:
RECEIVING BANK:
Name: Bank One, Colorado, NA
ABA ROUTING NUMBER: 000000000
Branch: Downtown Branch
0000 00 xx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Specific Identifiers: Energy Investment Advisors, Inc.
CREDIT ACCOUNT:
Name: Xxxxx, Xxxxxx & Xxxxxx LLP
Agency Trust Account
Address: 000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
ACCOUNT NUMBER: 0000000000
FIRM CONTACT:
Name: Xxxx Xxx - Controller
Telephone: (000) 000-0000
EXHIBIT B
ASSIGNMENT OF OIL AND GAS INTERESTS
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, PETROLEUM ADVISORS & CO., a New York partnership,
hereinafter called "Assignor", for and in consideration of Ten Dollars ($10.00),
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, does hereby sell, assign, transfer, quitclaim and convey
unto STRATFORD AMERICAN RESOURCE CORPORATION, with an address of 2400 E. Arizona
Biltmore Circle, Building 2, Suite 1270, Xxxxxxx, Xxxxxxx 00000, hereinafter
called "Assignee", all of Assignor's right, title and interest, of every kind
and character, in and to the oil and gas leases, lands and xxxxx described on
Exhibit 1, attached hereto and made a part hereof, including all of assignor's
associated rights and properties, both real and personal (the "Oil and Gas
Interests"). It is the intent of Assignor to convey to Assignee all of the
right, title and interest of Assignor in the Oil and Gas Interests previously
conveyed by Assignee to Assignor in that certain Assignment dated July 18, 1988.
This assignment is made without warranty of any kind, express, implied or
statutory, general or special.
This assignment shall be governed by and construed under the law of the
State of Colorado.
The terms and conditions contained in this assignment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
EXECUTED this _____ day of October 1999, but effective October 1, 1999.
PETROLEUM ADVISORS & CO.
A New York general partnership
By: Energy Investment Advisors, Inc,
Partner
By:_______________________________
Xxxx X. Xxxxx, President
This instrument was prepared by:
Xxxx X. Xxxxxxx
Clanahan, Tanner, Xxxxxxx & Xxxxxxxx, P.C.
000 00xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
STATE OF ______________________ )
)ss.
COUNTY OF _____________________ )
The foregoing instrument was acknowledged before me this ___ day of
October, 1999, by Xxxx X. Xxxxx, as President of Energy Investment Advisors,
Inc., a Partner of Petroleum Advisors
Witness my hand and official seal this ______ day of October, 1999.
My commission expires:
----------------------- -------------------------------
Notary Public
EXHIBIT 1
TO
ASSIGNMENT OF OIL AND GAS INTERESTS
1. The Lysander Resources Xxxx #1-31 Well, and all oil and gas leases and
interests insofar as they cover Xxxxxxx 00, X0X, X00X, Xxxxxxx Xxxxxx,
Xxxxxxxx.
2. The Lysander Resources Xxxxxx #1-27 Well, and all oil and gas leases and
interests insofar as they cover Section 27, T7N, R32W, Sebastian County,
Arkansas.
3. The Lysander Resources Xxxxxxxxx #1-9 Well; and all oil and gas leases and
interests insofar as they cover Xxxxxxx 0, X0X, X00X, Xxxx Xxxxxx,
Xxxxxxxx.
4. The Lysander Resources Rye #1-23 Well; and all oil and gas leases and
interests insofar as they cover Section 23, T7N, R32W, Sebastian County,
Arkansas.
5. The Lysander Resources Gage #1-10 Well; and all oil and gas leases and
interests insofar as they cover Section 10, T10N, R27W, Franklin County,
Arkansas.
6. The Lysander Resources Xxxxxx #1-8 Well; and all oil and gas leases and
interests insofar as they cover Section 8, T8N, R18W, Xxxx County,
Arkansas, including but not limited to Assignments of Oil and Gas Leases
from Lysander Resources, Inc. to Night Hawk Resource Corporation dated
December 1, 1987, recorded in Book 23C, Pages 391-95, Xxxx County, Arkansas
real property records.
7. The Lysander Resources Xxxxxx #2-4 Well; and all oil and gas leases and
interests insofar as they cover Xxxxxxx 0, X00X, X00X, Xxxxxxxx Xxxxxx,
Xxxxxxxx.
8. The Lysander Resources Xxxxxxx #1-26 Well; and all oil and gas leases and
interests insofar as they cover Section 26, T7N, R32W, Sebastian County,
Arkansas.
9. The Alexander Energy Xxxxxxx #1-36 Well; and all oil and gas leases and
interests insofar as they cover Xxxxxxx 00, X0X, X00X, Xxxx Xxxxxx,
Xxxxxxxx.
10. The Lysander Resources Xxxxx Xxxx Xxxxxxx #1-10 Well; and all oil and gas
leases and interests insofar as they cover Xxxxxxx 00, X0X, X00X, Xxxxx
Xxxxxx, Xxxxxxxx.
EXHIBIT X
XXXXXXXX XXXXX, XXXX XXX XXXXXX XX XXXXXX, XXXXXXXX
Case No. 99-CV-1069, Courtroom 18
--------------------------------------------------------------------------------
STIPULATION OF DISMISSAL WITH PREJUDICE
--------------------------------------------------------------------------------
STRATFORD AMERICAN RESOURCE CORPORATION, a Texas corporation; and
STRATFORD AMERICAN CORPORATION, an Arizona corporation,
Plaintiffs and Counterclaim-Defendants,
v.
ENERGY INVESTMENT ADVISORS, INC., a dissolved Colorado corporation;
OIL & GAS ADVISORS, INC., a Delaware corporation;
PETROLEUM ADVISORS & CO., a New York general partnership;
XXXXXX X. XXXXX; and XXXX X. XXXXX,
Defendants and Counterclaim-Plaintiffs.
--------------------------------------------------------------------------------
Pursuant to Colo. R. Civ. Pro. Rule 41(a)(1), Plaintiffs and
Counterclaim-Defendants, Stratford American Resource Corporation and Stratford
American Corporation, and Defendants and Counterclaim-Plaintiffs, Energy
Investment Advisors, Inc., Oil & Gas Advisors, Inc., Petroleum Advisors & Co.,
Xxxxxx X. Xxxxx and Xxxx X. Xxxxx, by and through their respective undersigned
counsel, stipulate that this action shall be dismissed with prejudice. In
accordance with Colo. R. Civ. Pro. Rule 41(a)(1), this Stipulation has been
signed by the attorneys for all parties who have appeared in this action. Each
Party has agreed to bear such party's own costs and attorneys' fees.
Dated: October __, 1999.
XXXXXXXX XXXXXX XXXXXXX & XXXXXXXX, P.C. XXXXX, XXXXXX & XXXXXX LLP
By: By:
------------------------------------- ------------------------------
Xxxxx X. Xxxxx Xxx XxXxxxxx
Xxxx X. Xxxxxxx 000 00xx Xxxxxx, Xxxxx 0000
000 00xx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxxx 00000
Xxxxxx, Xxxxxxxx 00000
Attorneys for Plaintiffs and Attorneys for Defendants and
Counterclaim-Defendants SARC and SAC Counterclaim-Plaintiffs EIA, OGA,
PAC, X. Xxxxx and X. Xxxxx
