Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), dated as of September 24,
1997 between BRUSH CREEK MINING AND DEVELOPMENT CO., INC., a Nevada
corporation (the "Company"), and XXXXXX XXXXXXXX, an individual (the
"Consultant").
W I T N E S S E T H:
WHEREAS, in light of the expertise and experience of Consultant, the
Company desires to engage Consultant to provide the Company with consulting
services and Consultant 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 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 retains Consultant to render those
consulting services contemplated by this Agreement for a period of twelve
(12) months, unless earlier terminated pursuant hereto, commencing as of
September 1, 1997 (the "Term").
(b) During the Term hereof, Consultant agrees to render to the
Company consulting advice as 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, providing investor and public relations services. 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 Manitoba, Canada 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 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.
In consideration of Consultant's performance of the consulting
services described herein during the Term hereof, the Company agrees to pay
to Consultant the following:
(a) 100,000 shares of the Company's Common Stock shall be issued as
soon as practicable to the Consultant following the execution of this
Agreement.
(b) At the end of each calendar month during the Term, the
Consultant shall be issued the number of shares of the Company's Common
Stock which may be obtained by dividing 4,000 by an amount which is equal
to 75% of the closing bid price of the Company's Common Stock as reported
by NASDAQ, which shall be the average of the closing bid price for the last
five trading days of said calendar month, provided, however, that the
number of shares to be issued for any given calendar month shall not exceed
20,000 shares of the Company's Common Stock.
(c) Commencing March 1, 1998, the Consultant shall be paid $4,000 in
cash per month for the balance of the Term, unless earlier terminated as
provided herein. Notwithstanding the foregoing, the Consultant shall have
the option to receive in lieu of the cash compensation provided for in this
subparagraph an aggregate of 100,000 shares of the Company's Common Stock,
subject to subparagraph (f) below, which shall represent payment in full
for the cash compensation provided herein for the balance of the Term,
provided the Consultant provides the Company with written notice of his
election to receive stock in lieu of cash prior to March 1, 1998.
(d) In addition thereto, the Consultant's performance will be
reviewed by the Board of Directors from time to time during the Term in
order to determine whether to pay the Consultant bonus compensation based
upon the Consultant's performance. Such determination including the amount
of bonus compensation, if any, shall be made in the sole discretion of the
Board of Directors of the Company. Such compensation may take the form of
cash or shares of the Company's Common Stock, subject to the provisions of
subparagraph (f) below.
(e) Upon termination of this Agreement, the Consultant shall receive
an additional 100,000 shares of the Company's Common Stock.
(f) The number of shares of the Company's Common Stock which may be
issued to the Consultant under the provisions of this Section 2 shall not
exceed in the aggregate 1,000,000 shares of the Company's Common Stock.
(g) In determining the number of shares the Consultant shall receive
hereunder, appropriate adjustments shall be made as a result of any stock
split, reverse stock split, stock dividend, recapitalization, combination
or reclassification during the Term.
(h) The Company shall reimburse Consultant for all reasonable
out-of-pocket expenses directly incurred by Consultant in connection with
Consultant's rendering of the consulting services set forth in this
Agreement, provided, however, that the incurrence of such expenses in an
amount greater than $100.00 must be approved in writing in advance by the
Chief Executive Officer of the Company. 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. Registration Statement. The Company has filed or shall file,
contemporaneously with the execution hereof, a registration statement
relating to the shares of Common Stock which may be issuable pursuant
hereto on Form S-8 with the Securities and Exchange Commission pursuant to
the Securities Act of 1933, as amended.
4. 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, 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.
5. 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 4 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.
6. 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.
7. Earlier Termination.
Notwithstanding anything herein to the contrary, the Company may
terminate this Agreement with or without cause at any time upon delivery of
fifteen (15) days prior written notice to the Consultant. Any such
termination shall result in the termination of the Consultant and/or the
Consultant's rights to receive any further compensation, except with
respect to accrued compensation which the Consultant shall have the right
to receive notwithstanding the termination hereof.
8. Survival of Obligations.
The obligations of the parties under Sections 4, 5 and 6 of this
Agreement shall survive the termination for any reason of this Agreement.
9. 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.
10. Entire Agreement; Amendment.
This Agreement contains the entire agreement between the Company and
Consultant with respect to the subject matter thereof. This Agreement 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.
11. 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:
Xxxxxx Xxxxxxxx
General Delivery
Ste. Rose du Lac
Manitoba, Canada
ROL 1SO
and/or to such other persons and addresses as any party shall have
specified in writing to the other.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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
/s/Xxxxxx Xxxxxxxx
XXXXXX XXXXXXXX
