Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of April 28, 1998,
between BRUSH CREEK MINING AND DEVELOPMENT CO., INC. (the "Company"), and
XXXXXXX DOWNEY ENTERTAINMENT INC. (the "Consultant").
W I T N E S S E T H:
WHEREAS, in light of the expertise and experience of Consultant, the
Company has engaged Consultant to provide the Company with consulting
services and Consultant has been and is willing and able to provide such
services as hereinafter provided; and
WHEREAS, the Company and Consultant desire to set forth in a formal written
agreement the terms and conditions upon which Consultant shall provide
services to the Company;
NOW, THEREFORE, in consideration of the mutual benefits to be derived from
this Agreement, the Company and Consultant hereby agree as follows:
1. Appointment; Consulting Services. (a) The Company hereby agrees
to retain the Consultant, and the Consultant hereby agrees, to provide
certain public relations, communications and consulting services to the
Company as the parties shall mutually agree to be rendered in connection
with the production and distribution by the Consultant of a one-half hour
television and radio show which shall include a segment about the Company
of approximately fifteen minutes in duration. It is understood that said
television and radio show is contemplated to be broadcast by various
television and radio stations.
(b) Such services shall be rendered to the Company by and through certain
designated employees of the Consultant. The Company acknowledges that the
Consultant will devote such time as is reasonably necessary to perform the
services for the Company. The Consultant shall not engage in any direct or
indirect capital raising activities in the offer or sale of securities on
behalf of the Company.
2. Compensation. In consideration of Consultant's performance of the
consulting services described herein, the Company agrees to issue to the
Consultant such number of shares of the Company's Common Stock which shall
have a value of $40,000 in the aggregate determined on the basis of the bid
price of the Company's Common Stock as of the close of business on the date
immediately prior hereto. The shares shall be issued as soon as practicable
following the execution of this Agreement. The Company has filed or shall
file contemporaneously with the execution hereof, at the Company's sole
expense, a registration statement with the Securities and Exchange
Commission on Form S-8 relating to the shares of Common Stock issuable
pursuant hereto.
3. Independent Contractor. It is expressly agreed that the Consultant is
acting as an independent contractor in performing its services hereunder.
Consultant shall have no power or authority to represent or bind the
Company unless specifically authorized in writing by the Chief Executive
Officer of the Company.
4. Entire Agreement; Amendment. This Agreement contains the entire
agreement between the Company and Consultant with respect to the subject
matter thereof, merges and supersedes all exiting agreements between them
concerning such subject matter, and may not be amended, waived, changed,
modified or discharged except by an instrument in writing executed by or on
behalf of the party against whom 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.
5. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given
(i) upon delivery, if personally delivered, (ii) the next business day, if
delivered with all charges prepaid to a recognized overnight delivery
service for next day delivery, or (iii) five days after mailing, if mailed,
postage prepaid, via first class mail, in each such case as follows:
(a) To the Company:
Brush Creek Mining and Development Co., Inc.
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
(b) To Consultant:
Xxxxxxx Downey Entertainment Inc.
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
6. Assignability. This Agreement shall not be assignable by either party
without the written consent of the other party. This Agreement shall be
binding upon, and shall inure to the benefit of, the successors and
permitted assigns of the parties hereto.
7. Representation by Counsel. Each of the parties hereto represents,
warrants and covenants that it has had ample opportunity to consider
entering into this Agreement and has had an opportunity to consult with
counsel regarding this Agreement prior to executing the same.
8. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California without regard to the conflicts
of law principles thereof.
9. Counterparts. This Agreement may be executed by the parties hereto in
one or more counterparts each of which shall be an original and all of
which shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BRUSH CREEK MINING
AND DEVELOPMENT CO., INC.
by:/s/Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXX DOWNEY
ENTERTAINMENT INC.
by:/s/Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title:President
