As filed with the Securities & Exchange Commission on April 28, 1998
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
(530) 477-5961
(Address and Telephone of Principal Executive Offices) (Zip Code)
Consulting Agreement by and between
Brush Creek Mining and Development Co., Inc. and
Langley Downey Entertainment Inc.
(Full Title of Plan)
James S. Chapin, Chief Executive Officer
970 E. Main Street, Suite 200
Grass Valley, California 95945
(530) 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
(973) 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: [ ]
<PAGE>
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) 106,667 $.40625 $43,333.47 $13.14
TOTAL REGISTRATION FEE $100.00(3)
_____________________
(1) Calculated in accordance with Rule 457(c) using the average of the bid
and asked price for the Common Stock on April 27, 1998.
(2) Represents shares of Common Stock issuable to Langley Downey
Entertainment Inc. pursuant to the terms of the Consulting Agreement
(referenced above) between Brush Creek Mining and Development Co., Inc. and
Langley Downey Entertainment Inc.
(3) Minimum registration fee.
<PAGE>
PART I
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 Langley Downey Entertainment Inc. (the "Consultant")
pursuant to the terms of a Consulting Agreement, dated as of April 28,
1998 by and between the Company and the Consultant (the "Consulting
Agreement"). Pursuant to the terms of the Consulting Agreement, the
Company is obligated to issue to the Consultant shares of Common Stock in
exchange for the Consultant's providing certain consulting services to
the Company. Pursuant to the terms of the Consulting Agreement, it is
agreed that the Company shall 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 to
the date of the Consulting Agreement. In accordance therewith, the Company
is obligated to issue 106,667 shares of its Common Stock 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: (530) 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, 1997, as amended, filed with the Securities and Exchange
Commission (File No. 0-12761);
(b) the Company's Quarterly Reports on Form 10-QSB for the quarters ended
September 30, 1997 and December 31, 1997, as amended, filed with the
Securities and Exchange Commission (File No. 0-12761);
(c) the Company's Current Report on Form 8-K dated March 25, 1998;
(d) all other reports filed by the Company pursuant to Sections 13(a) and
15(d) of the Securities Exchange Act of 1934 since the end of the Company's
fiscal year ended June 30, 1997;
(e) all other documents filed by the Company after the date of this
Registration Statement under Sections 13(a) and 15(d) of the
Securities Exchange Act of 1934 and prior to the filing of a
post-effective amendment to this Registration Statement which indicates
that all securities offered hereunder have been sold, or which deregisters
all securities that remain unsold under this registration statement; and
(f) 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 April 28, 1998
by and between Brush Creek Mining
and Development Co., Inc., and
Langley Downey Entertainment Inc.
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.
<PAGE>
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 28, 1998.
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, 4/28/98
James S. Chapin Chief Financial Officer,
Chairman of the Board
and Director (Principal
Executive Officer and
Principal Financial and
Accounting Officer)
/s/Howard I. Kalodner Director 4/28/98
Howard I. Kalodner
/s/Albert Miller Director 4/28/98
Albert Miller
Director
Kenneth Friedman
Exhibit 5.1
April 28, 1998
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 106,667 shares of the Company's Common Stock,
$.0001 par value ("Common Stock"), issuable pursuant to a consulting
agreement by and between the Company and Langley Downey Entertainment Inc.
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.
Brush Creek Mining and Development Co., Inc.
April 28, 1998
Page 2
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 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.
Very truly yours,
/s/Danzig Garubo & Kaye, LLP
DANZIG GARUBO & KAYE, LLP
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
LANGLEY 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.
970 E. Main Street, Suite 200
Grass Valley, California 95945
Attn: Chief Executive Officer
(b) To Consultant:
Langley Downey Entertainment Inc.
1875 Century Park East, Suite 150
Century City, California 90067
Attn: Rick Langley
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/James S. Chapin
Name: James S. Chapin
Title: Chief Executive Officer
LANGLEY DOWNEY
ENTERTAINMENT INC.
by:/s/Rick Langley
Name: Rick Langley
Title:President
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 29, 1997 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.
BROWN ARMSTRONG RANDALL & REYES
ACCOUNTANCY CORPORATION
/s/Brown Armstrong Randall & Reyes
Brown Armstrong Randall & Reyes
Accountancy Corporation
Bakersfield, California
April 22, 1998
