Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of August 25,
1997 between BRUSH CREEK MINING AND DEVELOPMENT CO., INC., a Nevada
corporation (the "Company"), and GEOGRAPHE CORPORATE ADVISORY LIMITED, a
Barbados corporation (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; and
WHEREAS, the Company and Consultant desire to set forth in a formal
written agreement the terms and conditions upon which Consultant has
provided and shall continue to 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) It is agreed that as of approximately November 1, 1996 the
Company retained Consultant to render those consulting services
contemplated by this Agreement for an initial term of four months, and
thereafter until terminated by either party on 30 days written notice to
the other (the "Term").
(b) During the Term hereof, Consultant has rendered and will continue
to render to the Company, by and through certain designated employees of
the Consultant, consulting advice as has been and shall be reasonably
requested from time to time by the Chief Executive Officer of the Company
in connection with the business conducted or to be conducted by the
Company, including but not limited to finding and assessing one or more
joint venture or strategic mining partners for the Company's mining
properties. In performing services hereunder, Consultant shall report to
the Company's Chief Executive Officer and shall perform such services from
Consultant's place of business in Barbados, West Indies and/or Vancouver,
British Columbia or such other location as may be agreed to by the parties.
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.
During the Term hereof, Consultant shall have no power or authority to
represent or bind the Company unless specifically authorized in writing by
the Chief Executive Officer.
2. Payments to Consultant During the Term.
The Company agrees to pay to Consultant during the Term the following:
(a) In consideration of Consultant's performance of the consulting
services described herein during the Term hereof, the Company has paid
Consultant US$30,000 in cash and agrees to issue to the Consultant 125,668
shares of the Company's Common Stock which 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.
(b) If the Company directly or indirectly enters into a Purchase or
Joint Venture transaction (a "Transaction") with any mining or exploration
company ("Party") introduced by the Consultant, the Company will pay the
Consultant a Bonus Payment of US$20,000 and a Success Fee of six percent
(6%) of the non-discounted value of all consideration which may be paid
directly or indirectly by the Party to the Company in connection with each
Transaction, whether or not the payment of such consideration is optional
or mandatory, as described more fully below. Subject to the formula
defined below, the Success Fee will be paid in cash forthwith after the
time of the initial closing of the Transaction. The Bonus Payment will
also be paid in cash forthwith after the time of the initial closing of the
Transaction.
The basis for calculation of the Success Fee will differ depending
upon the nature of the Transaction and it is not possible to describe here
all the forms which a Transaction may take. However, by way of
illustration:
(i) if the Transaction involves the sale of an interest in one
or all of the Company's Projects, the Success Fee will be
calculated on the aggregate value of the maximum
consideration paid or payable for the maximum interest which
may be received under the Transaction. Payment would be
according to the formula defined in clause (b)(v) below;
(ii) if the Transaction involves an option to an acquire an
interest in one or all of the Company's Projects, the
Success Fee will be calculated on the sum of the
consideration, if any, payable at the initial closing of the
Transaction and the consideration payable thereafter to
acquire the maximum interest which may be acquired under the
Transaction, regardless whether the payment of such further
consideration is optional or mandatory. Payment would be
according to the formula defined in clause (b)(v) below;
(iii) if the Transaction involves a joint venture to explore,
develop and/or exploit the Company's properties, the Success
Fee will be calculated on the maximum aggregate costs which
may be incurred by the acquiring party under the joint
venture to vest its interest, regardless whether incurring
such costs is optional or mandatory. Payment would be
according to the formula defined in clause (b)(v) below;
(iv) if a Transaction involves more than one form (for example,
if the Company receives shares and also enters into a joint
venture), the Success Fee will be calculated on the
aggregate consideration which may be paid in respect of all
forms the Transaction takes. Payment would be according to
the formula defined in clause (b)(v) below;
(v) Under the circumstances described above, 50% of the Success
Fee, or US$50,000 whichever is greater would be payable at
the time of initial closing. The balance of the Success Fee
would be payable, in increments, at the time of payment or
when an optional obligation becomes mandatory by the
acquiring Party or Pre-existing Party.
(c) The Company shall reimburse Consultant for all reasonable
out-of-pocket expenses directly incurred by Consultant after the date
hereof in connection with Consultant's rendering of the consulting services
set forth in this Agreement. Any such reimbursement hereunder shall be
made by the Company within 14 days after submission by Consultant of
supporting documentation as reasonably required by the Company.
3. Confidential Information.
The parties hereto recognize that a major need of the Company is to
preserve its specialized knowledge, trade secrets, and confidential
information. The strength and good will of the Company is derived from the
specialized knowledge, trade secrets, and confidential information
generated from experience with the activities undertaken by the Company.
The disclosure of this information and knowledge to competitors would be
beneficial to them and detrimental to the Company, as would the disclosure
of information about the marketing practices, pricing practices, costs,
profit margins, analytical techniques, and similar items of the Company.
By reason of its position with the Company, Consultant has or will have
access to, and has obtained or will obtain, specialized knowledge, trade
secrets and confidential information about the Company's operations.
Therefore, subject to the provisions of Section 6 hereof, Consultant hereby
represents, warrants and covenants as follows, recognizing that the Company
is relying on the same in entering into this Agreement:
At any time during or after the Term hereof, except for the exclusive
benefit of the Company, Consultant will not, directly or indirectly, use,
disclose to others, or publish or otherwise make available to any other
party any confidential business information about the affairs of the
Company, including but not limited to confidential information concerning
its products, methods, analytical techniques, technical information,
customer information, employee information, and other confidential
information acquired by it in the course of its past or future services for
the Company. Consultant agrees to hold as the Company's property all
memoranda, books, papers, letters, formulas and other data, and all copies
thereof and therefrom, in any way relating to the Company's business and
affairs, whether made by it or otherwise coming into its possession, and on
termination of this Agreement, or on demand of the Company, at any time, to
deliver the same to the Company within twenty four (24) hours of such
termination or demand.
4. Reasonableness of Restrictions; Specific Enforcement.
Consultant hereby agrees that the restrictions in this Agreement,
including without limitation those relating to the duration of the
provisions thereof, are necessary and fundamental to the protection of the
business and operation of the Company and are reasonable and valid. Each
party acknowledges and agrees that the Company would suffer irreparable
damage if any of the provisions of Section 3 were not performed by
Consultant in accordance with their specific terms or were otherwise
breached. Accordingly, the Company will be entitled to an injunction or
injunctions to prevent breaches of such provisions and to enforce
specifically such provisions in any court of competent jurisdiction without
the necessity of furnishing a bond of any type, and Consultant will not
oppose the granting of such relief on the grounds that an adequate remedy
at law exists.
5. Proprietary Information or Trade Secrets of Others.
Consultant represents, warrants and covenants that it will not
disclose to the Company, or use, or induce the Company to use, any
proprietary information or trade secrets of others. Consultant further
represents, warrants and covenants that it is not party to any agreement,
oral or written, which restricts its right or capacity to execute this
Agreement or to compete with a previous employer, associate or affiliate in
any way whatsoever.
6. Survival of Obligations.
The obligations of the parties under Sections 3, 4, 5 and 7 of this
Agreement shall survive the termination for any reason of this Agreement
(whether such termination is by the Company, by Consultant, upon the
expiration of this Agreement or otherwise), for a period of twenty-four
(24) months after such termination.
7. Reformation.
In case any one or more of the provisions or part of a provision
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall be deemed not to affect
any other jurisdiction or any other provision or part of a provision of
this Agreement nor shall such invalidity, illegality or unenforceability
affect the validity, legality or enforceability of this Agreement or any
provision or provisions hereof in any other jurisdiction, and this
Agreement shall be reformed and construed in such jurisdiction as if such
provision or part of a provision held to be invalid or illegal or
unenforceable had never been contained herein and such provision or part
reformed so that it would be valid, legal and enforceable in such
jurisdiction to the maximum extent possible.
8. 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.
9. 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
with an additional copy by like means to:
Danzig Garubo & Xxxx, LLP
00X Xxxxxxxx Xxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxx, Esq.
(b) To Consultant:
Geographe Corporate Advisory Limited
"Summerland House"
Prospect, St. Xxxxx
Barbados, West Indies
Attention: Xxxxxxx X.X. Xxxxxxx
with an additional copy by like means to:
Geographe Corporate Advisory Limited
0000 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 2NY
Attention: Xxxxxx X. Xxxx
and/or to such other persons and addresses as any party shall have
specified in writing to the other.
10. Assignability.
This Agreement shall not be assignable by Consultant and shall be
binding upon, and shall inure to the benefit of, the successors of the
Company. Notwithstanding any other provision of this Agreement, this
Agreement shall be assignable by the Company provided that the assignee is
a controlled subsidiary of the Company.
11. 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.
12. 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.
13. Waiver and Further Agreement.
Any waiver of any breach of any terms or conditions of this Agreement
shall not operate as a waiver of any other breach of such terms or
conditions or any other term or condition, nor shall any failure to enforce
any provision hereof operate as a waiver of such provision or of any other
provision hereof. Each of the parties hereto agrees to execute all such
further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
14. Headings of No Effect.
The paragraph headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of this Agreement.
15. 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
GEOGRAPHE CORPORATE ADVISORY LIMITED
by: /s/Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Director
