EXHIBIT 4.37
MUTUAL SETTLEMENT AND RELEASE
WHEREAS:
X. XXXXXX XXXXXXXXX of Chetwynd, B.C., and PINE VALLEY COAL PTY LIMITED of Ernst
& Young Building, 000 Xxxx Xxxxxx, Xxxxxx, XXX, 0000, Xxxxxxxxx are the parties
to an Executive Employment Agreement made effective as of the 11th day of March,
2003, pursuant to which Xxxxxx Xxxxxxxxx served as the Vice President - Willow
Creek of Pine Valley Coal Pty Limited and in various capacities with Pine Valley
Mining Corporation and its other subsidiaries (see below);
B. Pine Valley Coal Pty Limited is a wholly-owned subsidiary of PINE VALLEY
MINING CORPORATION (formerly Globaltex Industries Inc.), a British Columbia
company, having its registered office at 3000 - 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0;
C. in addition to the positions he held with Pine Valley Coal Pty Limited,
Xxxxxx Xxxxxxxxx also served in various capacities with Pine Valley Mining
Corporation, and two of its other wholly-owned subsidiaries, FALLS MOUNTAIN COAL
INC., a British Columbia company, and PINE VALLEY COAL LTD., an Alberta
corporation;
D. the above-described Employment Agreement terminated by its own terms on
December 4, 2003; and
E. by December 31, 2003 Xxxxxx Xxxxxxxxx and Pine Valley Mining Corporation had
settled the terms of a mutually agreeable employment arrangement pursuant to
which Xxxxxx Xxxxxxxxx is presently serving in various capacities with Pine
Valley Mining Corporation and its various subsidiaries.
NOW THEREFORE, FOR AND IN CONSIDERATION of the release given by the Pine Valley
Group (as defined below) provided for herein and the delivery by Pine Valley
Coal Pty Limited and Pine Valley Mining Corporation to Xxxxxx Xxxxxxxxx of
295,116 fully-paid and non-assessable Common shares of Pine Valley Mining
Corporation, registered in the name of Xxxxxx Xxxxxxxxx and issued by Pine
Valley Mining Corporation at a deemed issue price of $0.25 (Canadian) per share
(the "SHARES"), the receipt and sufficiency of which is hereby acknowledged by
Xxxxxx Xxxxxxxxx (including his heirs, executors, administrators, successors and
assigns (collectively, "MACKENZIE") DOES HEREBY REMISE, RELEASE, AND FOREVER
DISCHARGE Pine Valley Coal Pty Limited, Pine Valley Mining Corporation, Falls
Mountain Coal Inc. and Pine Valley Coal Ltd. (including each of their respective
past, present, and future directors, officers, shareholders, affiliated and
related companies, predecessor companies, insurers, employees, agents,
successors and assigns) (collectively, the "PINE VALLEY GROUP" and each a
"MEMBER OF THE PINE VALLEY GROUP") of and from any and all actions, causes of
action, claims, suits, debts, contracts, complaints, demands, damages, interest,
costs, expenses and compensation of whatsoever kind, whether in law or in
equity, whether at common law, under any legislation or otherwise, whether known
or unknown, and which Mackenzie now has or at any time hereafter can, shall or
may have in consequence of or in any way arising out of or in any way connected
with Mackenzie's role as an
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employee, director and/or officer of any Member of the Pine Valley Group up to
and including December 31, 2003;
AND FOR AND IN CONSIDERATION of the release given by Mackenzie provided for
herein the Pine Valley Group and each Member of the Pine Valley Group DOES
HEREBY REMISE, RELEASE, AND FOREVER DISCHARGE Mackenzie of and from any and all
actions, causes of action, claims, suits, debts, contracts, complaints, demands,
damages, interest, costs, expenses and compensation of whatsoever kind, whether
in law or in equity, whether at common law, under any legislation or otherwise,
whether known or unknown, and which the Pine Valley Group or any Member of the
Pine Valley Group now has or at any time hereafter can, shall or may have in
consequence of or in any way arising out of or in any way connected with
Mackenzie's role as an employee, director and/or officer of any Member of the
Pine Valley Group up to and including December 31, 2003;
AND FOR GREATER CERTAINTY the above described releases and discharges made by
Mackenzie in favour of the Pine Valley Group, and by the Pine Valley Group in
favour of Xxxxxxxxx, xxxx not apply in respect of any actions, causes of action,
claims, suits, debts, contracts, complaints, demands, damages, interest, costs,
expenses and compensation of whatsoever kind, whether in law or in equity,
whether at common law, under any legislation or otherwise, whether known or
unknown, and which the Pine Valley Group or any Member of the Pine Valley Group,
or Mackenzie, now has or at any time hereafter can, shall or may have in
consequence of or in any way arising out of or in any way connected with
Mackenzie's role as an employee, director and/or officer of any Member of the
Pine Valley Group at any time after December 31, 2003;
AND IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration expressed
herein, Mackenzie will not make any further claim or take any proceedings
whatsoever, which claim or proceedings are in consequence of or in any way arise
out of or are in any way connected with Mackenzie's role as an employee,
director and/or officer of any Member of the Pine Valley Group at any time up to
and including December 31, 2003, against any Member of the Pine Valley Group or
any other person, company or other legal entity which might result in a claim
for contribution, indemnity or otherwise in respect of the subject matter of
this Mutual Settlement and Release;
AND IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration expressed
herein, if Mackenzie commences any proceedings against any other person, company
or other legal entity, which proceedings are in consequence of or in any way
arise out of or are in any way connected with Mackenzie's role as an employee,
director and/or officer of any Member of the Pine Valley Group up to and
including December 31, 2003, and that other person, company or other legal
entity claims against the Pine Valley Group or any Member of the Pine Valley
Group in respect of Mackenzie's claim, then Mackenzie will indemnify and save
harmless the Pine Valley Group and each Member of the Pine Valley Group in
respect of any such claim or liability in respect thereof;
AND IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration expressed
herein, no Member of the Pine Valley Group will make any further claim or take
any proceedings whatsoever, which claim or proceedings are in consequence of or
in any way arise out of or are in any way connected with Mackenzie's role as an
employee, director and/or officer of any Member of the Pine Valley Group at any
time up to and including December 31, 2003, against Mackenzie or any other
person, company or other legal entity which might result in a claim for
contribution, indemnity or otherwise in respect of the subject matter of this
Mutual Settlement and Release;
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AND IT IS FURTHER UNDERSTOOD AND AGREED that for the consideration expressed
herein, if any Member of the Pine Valley Group commences any proceedings against
any other person, company or other legal entity, which proceedings are in
consequence of or in any way arise out of or are in any way connected with
Mackenzie's role as an employee, director and/or officer of any Member of the
Pine Valley Group up to and including December 31, 2003, and that other person,
company or other legal entity claims against Mackenzie in respect of the such
claim by a Member of the Pine Valley Group, then the Pine Valley Group will
indemnify and save harmless Mackenzie in respect of any such claim or liability
in respect thereof;
AND IT IS FURTHER UNDERSTOOD AND AGREED that the settlement expressed herein
shall not constitute or be construed as an admission of liability by any Member
of the Pine Valley Group or Mackenzie;
AND IT IS FURTHER UNDERSTOOD AND AGREED that the Shares are subject to trading
restrictions imposed under securities laws and stock exchange policies
applicable to Pine Valley Mining Corporation as a reporting issuer in British
Columbia having its Common shares listed for trading on the TSX Venture
Exchange, and that the certificates representing the Shares will bear legends
describing such restrictions;
AND FURTHER FOR THE CONSIDERATION AFORESAID, the Pine Valley Group and Mackenzie
hereby acknowledge and agree that the facts relating to the events with respect
to which this Mutual Settlement and Release is given may prove to be different
from the facts as they are now understood or believed to be by the Pine Valley
Group and Mackenzie. The Pine Valley Group and Mackenzie hereby accept and
assume the risk of the facts being different and agree that this Mutual
Settlement and Release shall be in all respects enforceable and not subject to
termination, rescission or variation by reason of any discovery or revelation of
any difference in facts;
AND FURTHER FOR THE CONSIDERATION AFORESAID, each Member of the Pine Valley
Group and Mackenzie hereby represents, warrants and acknowledges to the other
parties hereto that this Mutual Settlement and Release has been executed
voluntarily after having received independent legal advice;
AND IT IS FURTHER UNDERSTOOD AND AGREED that, notwithstanding any of the
foregoing, nothing in this Mutual Settlement and Release will have the effect of
limiting, or be interpreted as being a waiver by Mackenzie of, all or any part
of Mackenzie's: (i) rights in his capacity as a shareholder of Pine Valley
Mining Corporation that he has in common with the other shareholders of Pine
Valley Mining Corporation, in each case, in proportion to their respective
shareholdings of Pine Valley Mining Corporation; or (ii) rights he may otherwise
have to seek compensation from a Member of the Pine Valley Group for claims made
against him by a third party arising out of his good faith actions or omissions
in his capacity as a director and officer of a Member of the Pine Valley Group
up to and including December 31, 2003;
AND IT IS UNDERSTOOD AND AGREED that this Mutual Settlement and Release contains
the entire agreement between the Pine Valley Group and Mackenzie with respect to
the subject matter hereof, and the terms of this Mutual Settlement and Release
are contractual and not a recital;
AND IT IS UNDERSTOOD AND AGREED that this Mutual Settlement and Release may be
executed in several counterparts (including by fax), each of which when so
executed will be
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deemed to be an original and will have the same force and effect as an original
and such counterparts together will constitute one and the same instrument.
IN WITNESS WHEREOF, Xxxxxx Xxxxxxxxx, and an authorized signatory of each of
Pine Valley Coal Pty Limited, Pine Valley Mining Corporation, Falls Mountain
Coal Inc. and Pine Valley Coal Ltd. have hereunto set their hands to make this
Mutual Settlement and Release effective between them as of the 18th day August,
2004.
Signed and Delivered, by )
XXXXXX XXXXXXXXX in the presence of: )
)
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Name ) /s/ Xxxxxx Xxxxxxxxx (SEAL)
) ------------------------------
------------------------------------- ) XXXXXX XXXXXXXXX
Address )
)
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)
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Occupation )
Signed and Delivered, by an )
authorized signatory of PINE VALLEY )
COAL PTY LIMITED in the presence of: ) PINE VALLEY COAL PTY LIMITED
)
/s/ Xxx Xxxx )
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Name ) Per: /s/ Xxxx Xxxxxx
) -------------------------------
------------------------------------- ) Authorized Signatory
Address )
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)
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Occupation )
[Execution of this Mutual Settlement and Release by each of Pine Valley Mining
Corporation, Falls Mountain Coal Inc. and Pine Valley Coal Ltd. appears on page
5 below.]
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Signed and Delivered, by an )
authorized signatory of PINE VALLEY )
MINING CORPORATION in the presence of: ) PINE VALLEY MINING CORPORATION
/s/ Xxx Xxxx )
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Name )
) Per: /s/ Xxxx Xxxxxx
-------------------------------------- ) ------------------------------
Address ) Authorized Signatory
)
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)
)
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Occupation )
Signed and Delivered, by an )
authorized signatory of PINE VALLEY )
COAL LTD. in the presence of: )
/s/ Xxx Xxxx ) PINE VALLEY COAL LTD.
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Name )
) Per: /s/ Xxxx Xxxxxx
-------------------------------------- ) ------------------------------
Address ) Authorized Signatory
)
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)
)
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Occupation )
Signed and Delivered, by an )
authorized signatory of FALLS )
MOUNTAIN COAL INC. in the presence of: ) FALLS MOUNTAIN COAL INC.
/s/ Xxx Xxxx )
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Name )
) Per: /s/ Xxxx Xxxxxx
-------------------------------------- ) ------------------------------
Address ) Authorized Signatory
)
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)
)
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Occupation )
