Exhibit 10.1
CONSULTING AGREEMENT
BY AND AMONG
BRUSH CREEK MINING & DEVELOPMENT CO., INC.,
TIGER EYE CAPITAL, L.L.C.,
AND
XXXXX X. XXXXXX
THIS AGREEMENT is entered into as of this 11th day of April, 1997, by
and among Brush Creek Mining and Development, Co., Inc., a Nevada
Corporation with principal offices at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxx Xxxxxx, Xxxxxxxxxx, 00000 (the "Corporation"), Xxxxx X. Xxxxxx
(hereinafter referred to as "Xxxxxx" or the "Consultant" as the context may
require) and Tiger Eye Capital, L.L.C., a Delaware Corporation with
principal offices at 000 XXX Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx, X.X. 00000-0000
("Tiger").
WHEREAS, Tiger, through its officers and employees has developed
expertise in and is in the business of providing consulting services,
including providing investor and public relations services;
WHEREAS, Xxxxxx is the president and an employee of Tiger, and has
expertise in the area of providing consulting services, including providing
investor and public relations services;
WHEREAS, the Corporation desires to engage Xxxxxx to provide services
to the Corporation as set forth below, upon the terms and subject to the
conditions set forth herein;
WHEREAS, Xxxxxx desires to provide services to the Corporation as set
forth below, upon the terms and subject to the conditions set forth herein;
WHEREAS, Tiger, Xxxxxx and the Corporation have agreed that Xxxxxx
shall render the services set forth below to the Corporation upon the terms
and subject to the conditions set forth herein; and
WHEREAS, Tiger has agreed to provide Xxxxxx the opportunity to avail
himself of Tiger resources including without limitation, use of any phone
lines, computers, photocopiers, facsimile machines, postage meters, and
other supplies in exchange for Xxxxxx'x reimbursement to Tiger of the costs
of the same.
NOW, THEREFORE, in consideration of the foregoing and for such other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Engagement. The Corporation hereby engages the Consultant to render
to it for a period of twelve (12) months commencing April 11, 1997 (the
"Term") the investor and public relations services described herein. The
Term hereof may be renewed for successive periods of twelve (12) months
each upon written agreement of the Corporation, Tiger, and the Consultant
entered into prior to expiration of the initial Term hereof.
2. Services. For the Term of this Agreement, the Consultant shall
perform the following services for the corporation:
Introduce, negotiate, and structure for potential mergers and
acquisitions;
Introduce potential strategic partners;
Introduce future financing sources;
Prepare and distribute due-diligence packages for [the brokerage
community] which would include presentation folders, press release sheets
and a Corporation overview pamphlet;
Prepare and distribute investor relations packages;
Provide a dedicated "800" toll free telephone number for investors
to utilize;
Coordinate broker presentations;
Prepare and disseminate information about the Corporation to
investors;
(b) Present and introduce the Corporation to brokers, fund
managers and analysts on a continual basis;
(c) Prepare and disseminate press releases incompliance with any
applicable regulatory guidelines to wire/news services;
Disseminate for informational purposes the Corporation's publicly
filed materials, including the Corporation's Annual and Current Reports on
Form 10-K and Form 10-Q, respectively, to investors;
(d) Prepare and distribute 100,000 units of broker information
packages;
Provide for the production and presentation [on national/local
radio stations] of financial interviews about the Corporation;
(d) Prepare and distribute 100,000 units of mailers on the
Corporation to the investor community.
(e) Introduce the Company to journalists for the purpose of
placing articles and events in newspapers and magazine publications;
(f) Perform such other services as may be reasonably requested
from time to time by the officers of the Corporation;
(g) Reimburse Tiger for its costs related to the use of any of
its resources as contemplated herein;
Locate and introduce at least ten (10) broker dealers and/or
market makers to the corporation to make a market in the Corporations
securities; and
Bear all costs and expenses relating to any of the foregoing.
3. Compensation. In consideration for the performance of the services
described above, the Corporation shall issue to the Consultant an aggregate
of up to Eight Hundred and Eighty Thousand (880,000) shares of its common
stock, par value $0.0001 per share (the "Common Stock") as follows:
One Hundred Thousand (100,000) shares of Common Stock shall be
issued upon execution of this Agreement; and
Sixty Five Thousand (65,000) shares of Common Stock shall be
issuable thereafter on the last day of each successive month during the Term
of this Agreement.
4. Registration Rights. The Corporation has filed or shall file,
contemporaneously with the execution hereof, a registration statement
relating to the shares of Common Stock issuable pursuant hereto on Form S-8
with the Securities and Exchange Commission pursuant to the Securities Act
of 1933 (the "Act"). In the event that, for any reason whatsoever, such
Form S-8 is not available for use by the Corporation, the Corporation shall
file such form of registration statement as is available for use by the
Corporation as specified or otherwise permitted by the Act and the rules
and regulations promulgated thereunder. The Corporation shall bear the
expenses of such registration and shall: (a) provide prospectuses meeting
the requirements of the Act and such other documents as the Consultant my
reasonably request for a period of at least twelve (12) months following
the effectiveness of such registration statement in order to facilitate the
sale or other disposition of such securities; (b) register and qualify for
sale any of such securities in such states as the Consultant may reasonably
designate; and (c) do any and all other acts and things which may be
necessary or desirable to enable the Consultant to consummate the sale or
other disposition of such securities.
The Consultant understands that: (i) the shares of Common Stock issuable
hereunder have not previously been the subject of registration under the
Act or any applicable state securities laws; (ii) the Consultant my not
sell or otherwise transfer such shares unless they are subject to an
effective registration statement under the Act and any applicable state
securities laws (unless exemptions from such registration requirements are
available); (iii) until such shares of Common Stock are subject to an
effective registration statement under the Act, a legend will be placed on
any certificate or certificates evidencing the same indicating that such
securities have not been registered under the Act and setting forth or
referring to the restrictions on have not been registered under the Act and
setting forth or referring to the restrictions on transferability and sales
of such securities; and (iv) the Corporation will place stop transfer
instructions against the certificate or certificates evidencing such shares
of Common Stock to restrict the transfer thereof. The Consultant agrees not
to resell the shares of Common Stock without compliance with the Act and
any applicable state securities laws.
5. Confidential Information. The parties hereto recognize that it is
fundamental to the business and operation of the Corporation, its
subsidiaries and divisions thereof to preserve the specialized knowledge,
trade secrets, and confidential information of the foregoing entities. The
strength and good will of the Corporation is derived from the specialized
knowledge, trade secrets, and confidential information generated from
experience through the activities undertaken by the Corporation, its
subsidiaries and divisions thereof. The disclosure of any such information
and the knowledge thereof on the part of competitors would be beneficial to
such competitors and detrimental to the Corporation, its subsidiaries and
divisions thereof, as would the disclosure of information about the
marketing practices, pricing practices, costs, profit margins, design
specifications, analytical techniques, concepts, ideas, process
developments (whether or now patentable), customer and client agreements,
vendor and supplier agreements and similar items or technologies.
By reason of performance under this Agreement, the Consultant may have
access to and may obtain specialized knowledge, trade secrets and
confidential information such as that described herein about the business
and operation of the Corporation, its subsidiaries and divisions thereof.
Therefore, the Consultant hereby agrees that he shall keep secret and
retain in confidence and shall not use, disclose to others, or publish,
other than in connection with the performance of services hereunder, any
information relating to the business operation or other affairs of the
Corporation, its subsidiaries and divisions thereof including but not
limited to, confidential information concerning the marketing practices,
pricing practices, costs, profit margins, products, methods, guidelines,
procedures, engineering designs and standards, design specifications,
analytical techniques, technical information, customer, client vendor or
supplier information, employee information, or other conformational
information acquired by each of them in the course of providing services
for the Corporation. The Consultant agrees to hold as the Corporation's
property all notes, memoranda, books, records, papers, letters, formulas
and other data and all copies thereof and therefrom in any way relating
to the business or operation of the Corporation, its subsidiaries and
divisions thereof, whether made by the Corporation or the Consultant or
as may otherwise come into the possession of the Consultant. Upon the
termination of this Agreement or upon the demand of the Corporation, at
any time, the Consultant shall deliver the same to the Corporation within
twenty-four (24) hours of such termination or demand.
6. Reformation. In the event that a court of competent jurisdiction
determines that the confidentiality provisions hereof are unreasonably
broad or otherwise unenforceable because of the length of their respective
terms or the breadth of their territorial scope, or for any other reason,
the parties hereto agree that such court may reform the terms and/or scope
of such covenants so that the same are reasonable and, as reformed, shall
be enforceable.
7. Applicable Law. This agreement shall be construed and enforced in
accordance with the laws of the State of Delaware without regard to the
principals of conflicts of laws thereof and shall inure to the benefit of
and be binding upon Tiger, the Consultant and the Corporation and their
respective legal successors and assigns.
8. Remedies. In the event of a breach of any of the provisions of
this Agreement, the non-breaching party shall provide written notice of
such breach to the breaching party. The breaching party shall have thirty
(30) days after receipt of such notice in which to cure its breach. If, in
the thirty-first (31st) day after receipt of such notice, the breaching
party shall have failed to cure such breach, the non-breaching party
thereafter shall be entitled shall be entitled to seek damages. It is
acknowledged that this Agreement is of a unique nature and of extraordinary
value and of such a character that a breach hereof by the Consultant or the
Corporation shall result in irreparable damage and injury for which the
non-breach party may not have any adequate remedy at law.
Therefore, if, on the thirty-first (31st) day after receipt of such notice,
the breaching party shall have failed to cure such breach, the non-
breaching party shall also be entitled to seek a decree of specific
performance against the breaching party, or such other relief by way of
restraining order, injunction or otherwise as may be appropriate to ensure
compliance with this Agreement. The remedies provided by this section are
non-exclusive and the pursuit of such remedies shall not in any way limit
any other remedy available to the parties with respect to this Agreement,
including, without limitation, any remedy available at law or equity with
respect to any anticipatory or threatened breach of the provisions hereof.
9. No Continuing Waiver. The waiver by any other party of any
provision or breach of this Agreement shall not operate as or be construed
to be a waiver of any other provision hereof or any other breach of any
provision hereof.
10. Notice. Any and all notices from either party to the other which
may be specified by, otherwise deemed necessary or incident to this
Agreement shall, in the absence of hand delivery with return receipt
requested, be deemed duly given when mailed if the same shall be sent to
the address of the party set out on the first page of this Agreement by
registered or certified mail, return receipt requested, or express delivery
(e.g., Federal Express).
11. Severability of Provisions. The provisions of this Agreement shall
be considered severable in the event that any of such provisions are held
by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable. Such invalid, void or otherwise unenforceable provisions
shall be automatically replaced by other provisions which are valid and
enforceable and which are as similar as possible in term and intent to
those provisions deemed to be invalid void or otherwise unenforceable.
Notwithstanding the forgoing, the remaining provisions hereof shall remain
enforceable to the fullest extent permitted by law.
12. Assignability. This Agreement shall not be assignable without the
prior written consent of the non-assigning parties hereto and shall be
binding upon and inure to the benefit of any heirs, executors, legal
representatives or successors or permitted assigns of the parties hereto.
13. Entire Agreement; Amendment. This agreement contains the entire
agreement among the Corporation, Tiger, and the Consultant with respect to
the subject matter hereof. This agreement may not be amended, changed,
modified or discharged, nor may any provisions hereof be waived, except by
an instrument in writing executed by or on behalf of the party against whom
enforcement of any amendment, waiver, change, modification or discharge is
sought. No course of conduct or dealing shall be construed to modify, amend
or otherwise affect any of the provisions hereof.
14. Headings. The paragraph headings contained in this Agreement are
for reference purposes only and shall no in any way affect the meaning or
interpretation of the provisions of this Agreement.
15. Termination. The Corporation may terminate this Agreement with or
without cause at any time upon delivery of fifteen (15) days prior written
notice to the other party. Any such termination shall result in the
termination of Tiger and/or the Consultant's rights to receive any further
compensation, except with respect to accrued compensation which Tiger
and/or the Consultant shall have the right to receive notwithstanding the
termination hereof.
16. Survival. Sections 6 through 9 and sections 11 and 12 shall
survive the termination for any reason of this Agreement (whether such
termination is by the Corporation, upon the expiration of this Agreement by
its terms or otherwise).
IN WITNESS WHEREOF, the parties have caused this Agreement for
consulting Services to be executed and delivered by their duly authorized
officers as set forth below and have caused their respective corporate
seals to be hereunder affixed as of the first above written.
BRUSH CREEK MINING
AND DEVELOPMENT CO., INC.
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
TIGER EYE CAPITAL
BY: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
/s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, individually
