As filed with the Securities & Exchange Commission on April 11, 1997
Registration No. ___________________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRUSH CREEK MINING AND DEVELOPMENT CO., INC.
(Exact Name of Registrant as Specified in its Charter)
Nevada 88-0180496
(State or other (I.R.S. Employer
jurisdiction of Identification
incorporation or Number)
organization)
970 E. Main Street, Suite 200
Grass Valley, California 95945
(916) 477-5961
(Address and Telephone of Principal Executive Offices) (Zip Code)
Consulting Agreement by and among
Brush Creek Mining and Development Co., Inc.,
Tiger Eye Capital, L.L.C., and Jason H. Pollak
(Full Title of Plan)
James S. Chapin, Chief Executive Officer
970 E. Main Street, Suite 200
Grass Valley, California 95945
(916) 477-5961
(Name, address and telephone number of agent for service)
Copies to:
David M. Kaye, Esq.
Danzig Garubo & Kaye, LLP
P.O. Box 333, 30A Vreeland Road
Florham Park, New Jersey 07932-0333
(201) 443-0600
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933 check the following box: [X]
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT
SECURITIES OFFERING AGGREGATE OF
TO BE AMOUNT TO BE PRICE PER OFFERING REGISTRA-
REGISTERED REGISTERED SHARE (1) PRICE (1) TION FEE
Common Stock,
par value
$.0001
per share(2) 100,000 $.25 $25,000 $7.58
Common Stock,
par value
$.0001
per share(3) 780,000 $.25 $195,000 $59.09
TOTAL REGISTRATION FEE $100.00(4)
_____________________
(1) Calculated in accordance with Rule 457(c) using the average of the bid
and asked price for the Common Stock on April 9, 1997.
(2) Represents shares of Common Stock issuable to Jason H. Pollak
pursuant to the terms of the Consulting Agreement (referenced above)
upon execution thereof which is to occur at or about the time of
filing and effectiveness of this Registration Statement on Form S-8.
(3) Represents shares of Common Stock issuable to Jason H. Pollak
pursuant to the terms of the Consulting Agreement (referenced
above).
(4) Minimum registration fee.
Item 1. Plan Information.
This Registration Statement (the "Registration Statement") relates to
the issuance of shares of common stock, par value $.0001 per share (the
"Common Stock") of Brush Creek Mining and Development Co., Inc. (the
"Company") to Jason H. Pollak (the "Consultant") pursuant to the terms of
a Consulting Agreement, dated as of the date hereof, by and among the
Company, Tiger Eye Capital, L.L.C. and the Consultant (the "Consulting
Agreement"). Pursuant to the terms of the Consulting Agreement, the
Company is obligated to issue to the Consultant an aggregate of up to
880,000 shares of Common Stock in exchange for the Consultant's
providing certain marketing and consulting services to the Company.
Pursuant to the terms of the Consulting Agreement, the initial term of the
Consulting Agreement is twelve months, subject to termination by the
Company upon delivery (15 days in advance) of written notice to the
Consultant.
The foregoing information relating to the provisions of the
Consulting Agreement is intended to provide a summary thereof and
does not purport to be a complete description of the Consulting Agreement.
Such summary should be read in conjunction with the Consulting Agreement
which has been filed as Exhibit 10.1 hereto and is incorporated herein by
reference in its entirety.
Item 2. Registrant Information and Employee Plan Annual Information.
The Consultant has been provided with copies of the documents
incorporated herein by reference in Part II: Item 3 hereof and has been
advised by the Company in writing that such documents will continue to
be available, without charge, to the Consultant upon the Consultant's
written request to the Company at its offices at 970 E. Main Street, Suite
200, Grass Valley, California 95945 (Telephone: (916) 477-5961).
PART II
Item 3. Incorporation of Documents by Reference.
The following materials are incorporated by reference herein in their
entirety:
(a) the Company's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1996, as amended, filed with the Securities and
Exchange Commission (File No. 0-12761);
(b) the Company's Quarterly Report on Form 10-QSB for the quarters
ended September 30, 1996 and December 31, 1996, as amended, filed with the
Securities and Exchange Commission (File No. 0-12761);
(c) the Company's Current Reports on Form 8-K dated December 31,
1996, January 14, 1997, January 28, 1997 and March 24, 1997;
(d) all other documents filed by the Company after the date of this
Registration Statement under Sections 13(a) and 15(d) of the
Securities and Exchange Act of 1934, prior to the filing of a
post-effective amendment to this Registration Statement that registers
securities covered hereunder that remain unsold; and
(e) the description of the Common Stock as set forth in the
Registration Statement on Form 8-A, filed with the Securities and Exchange
Commission on August 10, 1984, is incorporated herein by reference in
its entirety. In connection therewith, the following description is
provided:
The Company is authorized to issue 100,000,000 shares of Common Stock.
Holders of Common Stock are entitled (i) to receive ratable dividends from
funds legally available for distribution when and if declared by the board
of directors; (ii) to share ratably in all of the Company's assets
available for distribution upon liquidation, dissolution or winding up of
the Company; and (iii) to one vote for each share held of record on each
matter submitted to a vote of shareholders. Holders of shares of Common
Stock do not have cumulative voting rights.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Nevada Revised Statute 78.751 ("NRS 78.751") permits the Company's
board of directors to indemnify any person against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with any threatened pending or
completed action, suit or proceeding in which such person is made a party
by reason of his being or having been a director, officer, employee or
agent of the Company, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of
1933, as amended. The NRS 78.751 provides that indemnification pursuant to
its provisions is not exclusive of other rights of indemnification to which
a person may be entitled under any by-law, agreement, vote of stockholders
or disinterested directors, or otherwise.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS
OR PERSONS CONTROLLING THE COMPANY PURSUANT TO THE FOREGOING PROVISIONS,
THE COMPANY HAS BEEN INFORMED THAT IN THE OPINION OF THE SECURITIES
AND EXCHANGE COMMISSION, SUCH INDEMNIFICATION IS AGAINST PUBLIC
POLICY AS EXPRESSED IN THE ACT AND IS THEREFORE UNENFORCEABLE.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are attached hereto:
Exhibit No. Description of Exhibit Page No.
5.1 Opinion letter of Danzig Garubo & Kaye, LLP
10.1 Consulting Agreement, dated as of the date
hereof, by and among Brush Creek Mining and
Development Co., Inc., Tiger Eye Capital,
L.L.C. and Jason H. Pollak
23.1 Consent of Danzig Garubo & Kaye, LLP,
included in the Opinion of Counsel filed as
Exhibit 5.1
23.2 Consent of Brown Armstrong Randall & Reyes
Accountancy Corporation, independent
auditors
Item 9. Undertakings.
The undersigned Registrant hereby undertakes, except as otherwise
specifically provided in the rules of the Securities and Exchange
Commission promulgated under the Securities Act of 1933:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement;
(iii)To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Grass Valley, State of
California on April 11, 1997.
BRUSH CREEK MINING
AND DEVELOPMENT CO., INC.
By: /s/James S. Chapin
James S. Chapin,
Chief Executive Officer,
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/James S. Chapin Chief Executive Officer, 4/11/97
James S. Chapin Chief Financial Officer,
Chairman of the Board
and Director (Principal
Executive Officer and
Principal Financial and
Accounting Officer)
/s/Howard I. Kolodner Director 4/11/97
Howard I. Kalodner
/s/Albert Miller Director 4/11/97
Albert Miller
/s/Kenneth Friedman Director 4/11/97
Kenneth Friedman
Exhibit 5.1
[Letterhead of Danzig Garubo & Kaye, LLP]
April 10, 1997
Brush Creek Mining and Development Co., Inc.
970 E. Main Street
Suite 200
Grass Valley, CA 95945
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Brush Creek Mining and Development Co., Inc.
(the "Company"), a Nevada corporation, in connection with the preparation
and filing by the Company of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended,
covering an aggregate of 880,000 shares of the Company's Common Stock,
$.0001 par value ("Common Stock"), issuable pursuant to a consulting
agreement by and among the Company, Tiger Eye Capital L.L.C. and Jason H.
Pollak.
In acting as counsel for the Company, and arriving at the opinion as
expressed below, we have examined and relied upon originals or copies,
certified or otherwise identified to our satisfaction, of such records of
the Company, agreements and other instruments, certificates of officers and
representatives of the Company, certificates of public officials and other
documents as we have deemed necessary or appropriate as a basis for the
opinion expressed herein.
In connection with our examination, we have assumed the genuineness of the
signatures, the authenticity of all documents tendered to us as originals,
the legal capacity of natural persons and the conformity to original
documents of all documents submitted to us as certified, conformed,
photostatic or facsimile copies.
Based on the foregoing, and subject to the qualifications and limitations
set forth herein, it is our opinion that the Company has authority to issue
the Common Stock in the manner and under the terms set forth in the
Registration Statement, and the Common Stock has been duly authorized and
when issued, delivered and paid for by recipients in accordance with their
respective terms, will be validly issued, fully paid and non-assessable.
We express no opinion with respect to the laws other than those of the
States of New Jersey and New York and the federal laws of the United
States, and we assume no responsibility as to the applicability or the
effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and its use as part of the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement. It is not to be used,
circulated, quoted or otherwise referred to for any other purpose. Other
than the Company, no one is entitled to rely on this opinion.
Very truly yours,
DANZIG GARUBO & KAYE, LLP
/s/Danzig Garubo & Kaye, LLP
Exhibit 10.1
CONSULTING AGREEMENT
BY AND AMONG
BRUSH CREEK MINING & DEVELOPMENT CO., INC.,
TIGER EYE CAPITAL, L.L.C.,
AND
JASON H. POLLAK
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 970 East Main Street, Suite 200,
Grass Valley, California, 95945 (the "Corporation"), Jason H. Pollak
(hereinafter referred to as "Pollak" or the "Consultant" as the context may
require) and Tiger Eye Capital, L.L.C., a Delaware Corporation with
principal offices at 175 EAB Plaza, Lobby Level, Uniondale, N.Y. 11556-0175
("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, Pollak 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 Pollak to provide services
to the Corporation as set forth below, upon the terms and subject to the
conditions set forth herein;
WHEREAS, Pollak desires to provide services to the Corporation as set
forth below, upon the terms and subject to the conditions set forth herein;
WHEREAS, Tiger, Pollak and the Corporation have agreed that Pollak
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 Pollak 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 Pollak's 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/James S. Chapin
James S. Chapin
TIGER EYE CAPITAL
BY: /s/Jason H. Pollak
Jason H. Pollak
/s/Jason H. Pollak
Jason H. Pollak, individually
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to incorporation by reference in the Registration Statement
on Form S-8 of Brush Creek Mining and Development Co., Inc. of our report
dated August 9, 1996 with respect to the consolidated financial statements
of Brush Creek Mining and Development Co., Inc. included in its Annual
Report on Form 10-KSB, filed with the Securities and Exchange Commission,
which has been incorporated by reference in its entirety in the
Registration Statement on Form S-8.
BROWN ARMSTRONG RANDALL & REYES
ACCOUNTANCY CORPORATION
/s/Brown Armstrong Randall & Reyes
Accountancy Corporation
Bakersfield, California
April 7, 1997
