Exhibit 2.5
MUTUAL RELEASE OF ALL CLAIMS
THIS AGREEMENT is made and entered into this 27th day of May, 2003, by,
between and among XXXXXX EXPLORATION COMPANY, a Delaware corporation with its
principal place of business in Traverse City, Michigan ("MEXP") and K2 ENERGY
CORP., an Alberta corporation with its principal place of business in Calgary,
Alberta, together with K2 AMERICA CORPORATION, a Montana corporation with its
principal place of business in Cut Bank, Montana (jointly "K2")
WHEREAS, MEXP and K2 have each entered into two separate exploration
and development agreements with the Blackfeet Tribe of Indians pursuant to the
Indian Mineral Development Act of 1982, 25 U.S.C. Section 2101, et seq.; and
WHEREAS, MEXP and K2 entered into a K2-MEXP Exploration and Development
Agreement dated June 17, 1998, pertaining to joint exploration and development
of the lands described in their respective IMDA agreements with the Blackfeet
Tribe of Indians; and
WHEREAS, MEXP and K2 did commence such joint exploration and
development activities pursuant to the June 17, 1998, agreement; and
WHEREAS, disputes arose in 1999 as to the respective rights and
obligations of MEXP and K2 under the June 17, 1998, agreement; and
WHEREAS, upon the arising of the disputes, MEXP and K2 ceased any joint
activities under the June 17, 1998, agreement and instead each embarked upon a
course of separate exploration and development of the properties described in
their respective IMDA
agreements; and
WHEREAS, MEXP filed a lawsuit against K2 in the United States District
Court for the District of Montana, as Case No. CV-00-054-GF, seeking both
monetary and non-monetary relief caused by K2's alleged breach of the June 17,
1998, agreement; and
WHEREAS that federal court lawsuit was dismissed without prejudice on
September 4, 2001, under the doctrines of comity and abstention, so that the
parties could first exhaust any remedies available in Blackfeet Tribal Court,
and
WHEREAS MEXP initiated a new lawsuit against K2 in Blackfeet Tribal
Court, as Case No. 21 CA 282, in October, 2001, seeking both monetary and
non-monetary relief of the same type previously sought in the federal court
proceeding, in response to which K2 denied any liability and counterclaimed for
its own alleged monetary losses, and
WHEREAS, MEXP and K2 have negotiated an agreement resolving all matters
between themselves on the basis of (a) dismissal with prejudice of the above
mentioned pending tribal court lawsuit, (b) termination of the K2-MEXP
Exploration and Development Agreement dated June 17, 1998, and (c) a mutual
release of claims for all alleged acts or omissions of the other party prior to
the date of this Agreement; and
WHEREAS, MEXP and K2 have agreed in principal to the execution of a new
joint venture agreement limited to specific portions of the lands described in
their respective IMDA agreements with the Blackfeet Tribe of Indians, as those
IMDA agreements have from time to time been amended, which limited joint venture
agreement shall likewise obligate MEXP and K2 not to compete with each other on
the other lands described in the versions of their respective IMDA agreements in
effect as of the date of
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this Agreement, but MEXP and K2 expressly intend that any such new limited joint
venture agreement shall be a separate and independent agreement the negotiations
for, the execution of, and terms of which shall have no consequence or effect on
this Agreement,
NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED, that in
consideration of the foregoing recitations and full performance of the covenants
and agreements of the parties, as set forth below:
(1) MEXP and K2 do hereby forever and fully release, acquit and discharge
each other and the other's directors, officers, employees, agents, attorneys,
successors and assigns, from any and all actions, causes of action, claims and
demands of whatsoever kind or nature that now exist between themselves over
their respective rights and obligations under the K2-MEXP Exploration and
Development Agreement dated June 17, 1998, including, but not limited to all
claims and demands which were asserted or were capable of assertion as of the
date hereof in either the above-described United States District Court and/or
Blackfeet Tribal Court proceedings and do accordingly also release any claim of
right, title, or ownership to or interest in the rights, title or interest of
the other party as may exist under that other party's IMDA agreement with the
Blackfeet Tribe of Indians, as now amended and in effect.
(2) MEXP and K2 shall execute all documents and take such additional steps
as are necessary to effect a dismissal with prejudice of Blackfeet Tribal Court
Case No. 21 CA 282 as soon as possible.
(3) The K2-MEXP Exploration and Development Agreement dated June 17, 1998,
is terminated effective upon the full execution of this Agreement and shall
thereafter be of no
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further force or effect.
(4) This Agreement shall be construed and interpreted in accordance with
the laws of the State of Montana. Any dispute arising under this Agreement shall
be construed under the jurisdiction of the State District Court for the State of
Montana and the proper venue or location to determine any dispute hereunder
shall be Glacier County, Montana, and the parties expressly waive any right they
might have to challenge such jurisdiction or venue, whether based on comity,
abstention, inconvenience, prejudice, or otherwise.
(5) This Agreement shall bind all parties hereto, their heirs, legal
representatives, successors, assigns, shareholders, agents, officers, directors,
employees and attorneys.
(6) MEXP and K2 shall bear their own respective attorney fees and costs
incurred related to in the above mentioned actions and the settlement hereof,
provided however that the prevailing party or parties in any legal action
seeking to enforce the terms of this Agreement shall be entitled to reasonable
costs and attorney fees.
(7) It is understood that this Agreement is accepted as the sole
consideration for full satisfaction and in compromise of all that is identified
herein, the action required by this Agreement, nor negotiations for this
Agreement shall be considered as an admission of liability of any party hereto.
(8) This Agreement constitutes the entire agreement between and among the
parties, and the parties agree that there were no inducements or representations
leading to the execution of this Agreement, except as herein contained. This
Agreement supersedes all prior oral and written agreements and communications
between and among the parties and the terms of this Agreement are contractual
and not mere recitals. To the extent the Parties
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have agreed in principal to the execution of a new joint venture agreement
limited to specific portions of the lands described in their respective IMDA
agreements with the Blackfeet Tribe of Indians, as those IMDA agreements have
from time to time been amended, which joint venture agreement shall likewise
obligate MEXP and K2 not to compete with each other on the other lands described
in the versions of their respective IMDA agreements in effect as of the date
hereof, any such limited joint venture agreement is expressly independent of and
not a contingent term of this Agreement, and the execution of, failure of
execution, performance of, claims or disputes related thereto, or terms of such
limited joint venture agreement, has and shall have no consequence or effect on
this Agreement and the enforcement thereof.
(9) In the case any one or more of the provisions of this Agreement shall
be invalid or unenforceable in any respect, the validity of the remaining
provisions contained in this Agreement will not in any way be affected or
impaired thereby.
(10) The parties each acknowledge that they have read and understands the
terms of this Agreement, that they are voluntarily entering into this Agreement,
and that this Agreement is intended to be a legally binding.
(11) No person is or will be authorized by any party hereto to orally
modify, terminate or waive any provision of this Agreement or to orally make any
additional or other agreement relating to this Agreement or its subject matter.
Any discussion or conversations pertaining to any such modification,
termination, waiver or additional or other agreement are to be considered
preliminary and non-binding. If any such modification, termination, waiver or
additional or other agreement is in the future authorized by or to be binding on
a party
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hereto, it will be set forth in writing signed on behalf of all parties. The
provisions of this Agreement, including this paragraph, may be modified or
waived only in writing signed by the party or parties affected by the
modification or waiver.
(12) This Agreement has been reviewed by the parties' respective counsel,
and is and shall be deemed jointly drafted and written by all parties and shall
not be construed or interpreted against the party originating or preparing it.
(13) This Agreement may be executed in multiple counterparts, and at
different times, each signed copy of which shall be deemed an original. A
facsimile containing a signature of one or more of the parties hereto shall be
deemed an original.
DATED this 27th day of May, 2003.
XXXXXX EXPLORATION COMPANY
By /s/ Xxxxx X. Xxxxxx
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Xxxxx Xxxxxx
President & CEO
K2 ENERGY CORP.
By /s/ Xxxx XxxXxx
-------------------------------------
Xxxx XxxXxx
President & CEO
K2 AMERICA CORPORATION
By /s/ Xxxx XxxXxx
-------------------------------------
Xxxx XxxXxx
President & CEO
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