UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB/A
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934
For the fiscal year ended JUNE 30, 1998
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
Commission file number 0-12761
BRUSH CREEK MINING AND DEVELOPMENT CO., INC.
(Name of Small Business Issuer in Its Charter)
NEVADA
(State or Other Jurisdiction of Incorporation or Organization)
88-0180496
(I.R.S. Employer Identification Number)
11117 LOWER CIRCLE DRIVE, GRASS VALLEY, CALIFORNIA 85949
(Address of principal executive offices)
(530) 477-0834
(Issuer's telephone number, including area code)
Securities registered under Section 12(b) of the Exchange Act: NONE
Securities registered under Section 12(g) of the Exchange Act: COMMON, PAR VALUE
$.0001
Check whether the Issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the Registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes No X
-----
Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of Registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. [X]
State Issuer's revenues for its most recent fiscal year: $15,390.
As of September 30, 1998, the aggregate market value of the Common Stock held by
non-affiliates of the Issuer (5,143,743 shares) was approximately $1,846,604.
The number of shares outstanding of the Common Stock ($.0001 par value) of the
Issuer as of the close of business on September 30, 1998 was 5,554,179.
Documents Incorporated by Reference: Portions of the registrant's proxy
statement for the annual meeting of shareholders to be held in fiscal 1998 are
incorporated by reference into Part III of this report.
Transitional Small Business Disclosure Format: Yes X No ____
-----
- 1 -
<PAGE>
PART III
Item 9 - Directors, Executive Officers, Promoters and Control Persons:
Compliance with Section 16(a) of the Exchange Act.
Election of Directors
Due to changes in ownership subsequent to year end, the serving directors noted
below are subject to change at the next board members meeting.
INFORMATION CONCERNING DIRECTORS AND OFFICERS
The following table sets forth certain information with respect to the Board of
Directors as of June 30, 1998.
<TABLE>
<CAPTION>
PRESENT POSITION HAS SERVED AS
NAME AGE AND OFFICES DIRECTOR SINCE
<S> <C> <C> <C>
James S. Chapin . . 43 Chief Executive Officer, 1994
a . . . . . . . . . Chief Financial Officer,
a . . . . . . . . . Chairman of the Board
a . . . . . . . . . and Director
Howard I. Kalodner. 64 Director 1994
Albert E. Miller. . 71 Director 1994
Kenneth S. Friedman 56 Director 1995
</TABLE>
JAMES S. CHAPIN has been a Director of the Company since April 1994. Since
April 1994, Mr. Chapin has also served as the Chief Executive Officer and Chief
Financial Officer of the Company. Prior to working with the Company, Mr. Chapin
was registered with the Hartford, Connecticut offices of Tucker Anthony, a
securities broker-dealer from 1988 to April 1994. He previously served in
executive positions from 1977 to 1983 with IBM and from 1983 to 1988 with the
securities firm of Smith Barney.
HOWARD I. KALODNER has been a Director of the Company since March 1994. Mr.
Kalodner is a professor of law and, from 1977 to 1994, served as the dean of
Western New England College School of Law in Springfield, Massachusetts. He is
a member of the American Law Institute (ALI).
ALBERT E. MILLER has been a Director of the Company since March 1994. From 1976
to 1991, Mr. Miller was chairman and chief executive officer to Royalpar
Industries, a publicly owned human resources company. He retired from Royalpar
in July 1991 when it was acquired by another company.
- 2 -
<PAGE>
KENNETH S. FRIEDMAN has been a Director of the Company since January 1995. Mr.
Friedman has served as president and chief executive officer of Strathmore
Resources Ltd. from December 1996 to the present. From 1993 to the present, he
has also served as president of Nonlinear Resource Corp. and, from 1991 to
1993, he served as director of research for Dickinson & Co. He served as the
natural resources analyst for Kemper Securities, a securities firm, from 1990 to
1991, and the metal and mining analyst for Boettcher Co., a brokerage firm, from
1989 to 1990.
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's
directors and executive officers, and persons who own more than 10% of a
registered class of the Company's equity securities, to file with the Securities
and Exchange Commission initial reports of ownership and reports of changes in
ownership of Common Stock and other equity securities of the Company. Officers,
directors and greater than 10% shareholders are required by SEC regulation to
furnish the Company with copies of all Section 16(a) forms they file.
Based solely on the Company's review of such reports and written representations
from certain of such persons, the Company believes that, during the fiscal year
ended June 30, 1998, all Section 16(a) filing requirements applicable to its
officers, directors and greater than 10% beneficial owners were complied with
except James S. Chapin filed two reports late relating to a total of three
transactions, Howard I. Kalodner filed two reports late relating to a total of
two transactions, Albert E. Miller filed one report late relating to a total of
one transaction, and Kenneth S. Friedman filed one report late relating to one
transaction and failed to file two reports relating to two transactions.
- 3 -
<PAGE>
Item 10 - Executive Compensation
The following summary compensation table sets forth information concerning the
annual and long-term compensation for services in all capacities to the Company
for the fiscal years ended June 30, 1998, 1997 and 1996, of those persons who
were, at June 30, 1998 (I) the chief executive officer and (ii) the other most
highly compensated executive officers of the Company, whose annual base salary
and bonus compensation was in excess of $100,000 (the named executive officers):
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
ANNUAL LONG-TERM
COMPENSATION COMPENSATION
AWARDS PAYOUTS
NAME AND
PRINCIPAL FISCAL OPTIONS ALL OTHER
POSITION YEAR SALARY BONUS (SHARES) COMPENSATION
<S> <C> <C> <C> <C> <C>
James S. Chapin,. . . . . . 1998 $110,000 $ 50,000(4) 0 $ 0
Chief Executive Officer . . 1996 $110,000 $ 0 250,000(3) $ 0
and Chief Financial Officer 1997 $110,000 $100,000(1) 375,000(2) $ 0
<FN>
- ---------------------------
(1) Represents amount which was released to Mr. Chapin in January 1997 from
$100,000 which had been held in trust by the Company in connection with certain
severance arrangements which existed between the Company and Mr. Chapin. Due to
the release of said funds, such severance arrangements have been terminated.
See "-Employment Agreements and Termination of Employment Arrangements".
(2) In March 1997, Mr. Chapin was granted options to acquire 375,000 shares of the
Company's Common Stock. In connection therewith, all previously granted options
To Mr. Chapin were canceled.
(3) Such options have been canceled (see footnote (2) above).
(4) Pursuant to the terms of his Employment Agreement dated April 5, 1994, the Board
of Directors may at its own discretion deem or grant bonuses. For the current
year, the Board unanimously approved a $50,000 bonus to be paid to Mr. Chapin
for his achievements in successfully raising funds for the Company.
</TABLE>
STOCK OPTION PLANS
The Company has an incentive stock option plan under which five and ten-year
options may be granted to key employees to purchase up to 33,333 shares of the
Company's Common Stock at the market price on the date of grant. At June 30,
1998, no options had been granted under this plan. A total of 33,333 shares of
the Company's unissued Common Stock has been reserved for this plan.
- 4 -
<PAGE>
The Company has a nonqualified stock option plan, under which options to
purchase a total of 1,186,000 shares from $.23 to $4.13 were outstanding and
exercisable at June 30, 1998.
LONG-TERM INCENTIVE PLAN
Other than the stock option plans described above, the Company does not have any
plan providing compensation to its officers for performance to occur over a
period longer than one fiscal year.
PENSION PLANS
The Company does not have any pension plan available to its executive officers.
COMPENSATION OF DIRECTORS
The independent Directors of the Company are entitled to compensation at a rate
of $1,500 per month for their services. During the fiscal year ended June 30,
1998, however, no fees were paid to Directors. Certain expenses incurred in
connection with such services, including travel to meetings, may also be
reimbursed. In addition the Board has awarded options to acquire Common Stock
of the Company to directors in recognition of services.
EMPLOYMENT AGREEMENTS AND TERMINATION OF EMPLOYMENT ARRANGEMENTS
The Company has an employment agreement with James S. Chapin, which provides
that Mr. Chapin's employment will commence April 4, 1994, and continue through
April 3, 1995, following which his employment is to continue for an indefinite
term, subject to certain notice provisions. In addition, the Company agreed to
pay Mr. Chapin $100,000 as severance compensation if he was terminated other
than "for cause" which amount would be held in trust and secured by an
irrevocable letter of credit. Upon completion of five consecutive years of
employment with the Company this obligation would terminate. Notwithstanding
the foregoing, in January 1997, the Board of Directors resolved to award Mr.
Chapin such amount as a bonus. In connection therewith, such severance
arrangements which existed between the Company and Mr. Chapin were terminated.
REPRICING OF OPTIONS
In March 1997, the Company canceled all previously issued options to its four
directors (which included Mr. Chapin, the Company's named executive officer) and
issued in place thereof 960,000 options exercisable at $.225 per share. All
previously granted options which were canceled were exercisable at prices
ranging from $1.13 to $2.98 per share. The exercise price of $.225 per share
fro the options issued in place of the canceled options represented 90% of the
closing bid price of the Company's Common Stock on the date immediately prior to
the date of grant.
- 5 -
<PAGE>
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's
directors and executive officers, and persons who own more than 10% of a
registered class of the Company's equity securities, to file with the Securities
and Exchange Commission initial reports of ownership and reports of changes in
ownership of Common Stock and other equity securities of the Company. Officers,
directors and greater than 10% shareholders are required by SEC regulation to
furnish the Company with copies of all Section 16(a) forms they file.
Based solely on the Company's review of such reports and written representations
from certain of such persons, The Company believes that, during the fiscal year
ended June 30, 1998, all Section 16(a) filing requirements applicable to its
officers, directors and greater than 10% beneficial owners were complied with
except James S. Chapin filed two reports late relating to a total of three
transactions, Howard I. Kalodner filed two reports late relating to a total of
two transactions, Albert E. Miller filed one report late relating to a total of
one transaction, and Kenneth S. Friedman filed one report late relating to one
transaction and failed to file two reports relating to two transactions.
Item 11 - Principal Shareholders and Security Ownership of Management
The following table sets forth, as of March 8, 1998, (I) the number of shares of
Common Stock owned of record or beneficially, or both, by each person who owned
of record, or is known by the Company to have beneficially owned, individually,
or with his associates, more than 5% of such shares then outstanding; (ii) the
number of shares owned beneficially by each Director of the Company, each person
nominated to be a Director and each named executive officer of the Company; and
(iii) the number of shares owned beneficially by all Directors and executive
officers as a group. Except as otherwise indicated below, each of the persons
listed below has sole voting and investment power with respect to his or her
shares.
- 6 -
<PAGE>
<TABLE>
<CAPTION>
Amount and Nature
Name of Beneficial Owner of Beneficial Ownership Percent of Class
<S> <C> <C>
James S. Chapin. . . . . . . . 142,587(1) (2) 2.5%
970 E. Main Street, Suite 200
Grass Valley, CA 95945
Howard I. Kalodner . . . . . . 103,700(1) (2) 1.8%
55 Riverview Terrace
Springfield, CA 01108
Albert E. Miller . . . . . . . 50,833(1) (2) .9%
250 Westmont
West Hartford, CT 06117
Kenneth S. Friedman. . . . . . 129,520(1) (2) 2.4%
26 Willow Lane
Blackhawk, CO 80422
Ariel Holdings LLC . . . . . . 405,000 7.4%
5151 Collins Avenue
Miami Beach, FL 33140
David Werner . . . . . . . . . 410,000 7.4%
36 West 44th Street
New York, NY 10036
All Executive Officers . . . . 426,640(1) (2) 7.8%
and Directors
as a Group (four persons)
<FN>
- -------------------------
(1) Includes shares which may be acquired within 60 days pursuant to the
exercise of options, as follows: Mr. Chapin, 37,500 shares; Mr.
Kalodner, 20,000 shares; Mr. Miller, 20,000 shares; and Mr. Friedman,
18,500 shares; and all executive officers and directors as a group,
2,460,000 shares.
(2) Figure includes shares owned by a spouse.
</TABLE>
- 7 -
<PAGE>
Item 12 - Certain Relationships and Related Transactions
Change in Management
- ----------------------
On November 16, 1998, Brush Creek Mining and Development Inc. received the
resignation of its chief executive officer (C.E.O.), James Chapin. Brush Creek
has accepted the proposal submitted by Mr. Larry Stockett, President of U.S.
Cement Company and the Board appointed him as the new President and C.E.O. Mr.
Stockett has accepted these positions without compensation until the Company
reaches its first quarterly after tax profit. Upon resolution of Brush Creek's
current legal and financial problems, Mr. Stockett has agreed to transfer his
51% ownership in U.S. Cement Company to Brush Creek. In return, Mr. Stockett
will receive restricted share of stock of Brush Creek at a price of $5 per share
for the audited book value of U.S. Cement. In addition, Mr. Stockett will
receive one million share of Brush Creek restricted stock if the BCMDE shares
achieve a $5 per share closing price for 10 consecutive days.
- 8 -
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
BRUSH CREEK MINING AND DEVELOPMENT CO., INC.
(Registrant)
By: /s/ James S. Chapin
----------------------
James S. Chapin,
Chief Executive Officer
Dated: December 21, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the Registrant, and
in the capacities and on the dates indicated:
Signature: /s/ James S. Chapin
----------------------
James S. Chapin
Chief Executive Officer
Chief Financial Officer,
Chairman of the Board and Director
(Principal Executive Officer and Principal Financial and
Accounting Officer)
Date: December 21, 1998
Signature: /s/ Howard I. Kalodner
-----------------------
Howard I. Kalodner
Director
Date: December 21, 1998
Signature: /s/ Albert Miller
-------------------
Albert Miller
Director
Date: December 21, 1998
Signature: /s/ Kenneth Friedman
----------------------
Kenneth Friedman
Director
Date: December 21, 1998
