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As filed with the Securities and Exchange Commission on November 23, 1998
Registration No. 33-16110-D
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SOUTHWESTERN WATER EXPLORATION CO.
(Exact name of Registrant as specified in its charter)
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COLORADO 84-1062895
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
615 MACLEOD TRAIL S.E., SUITE 1100
ROCKY MOUNTAIN PLAZA
CALGARY ALBERTA T2G 4T8
(Address of principal executive offices) (zip code)
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1998 CONSULTANT'S STOCK PLAN
(Full titles of the plans)
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STEVEN B. MISNER
PRESIDENT
SOUTHWESTERN WATER EXPLORATION CO.
615 MACLEOD TRAIL S.E., SUITE 1100, ROCKY MOUNTAIN PLAZA,
CALGARY ALBERTA T2G 4T8
(403) 531-2630
(Name, address and telephone number, including area code, of agent for service)
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This Registration Statement shall become effective upon its filing pursuant to
Rule 462, and sales of the registered securities will begin as soon as
reasonably practicable after such effective date.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Proposed
maximum maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered per share(1) offering price registration fee
- ------------------------------------ ------------ -------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 300,000 $ 0.001 $300 $.08
(Issued Pursuant to the
1998 Consultant's Stock Plan)
====================================================================================================================
</TABLE>
(1) Calculated in accordance with Rule 457(h) of the Securities Act of 1933,
as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
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* The information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the registration statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Southwestern Water Exploration Co., a Colorado corporation (the
"Registrant"), hereby incorporates by reference into this Registration Statement
the following documents which were previously filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's annual report on Form 10-KSB for the fiscal
year ended March 31, 1998;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or Section 15(d) of the Securities and Exchange Act of 1934, as amended
(the "1934 Act"), since March 31, 1998 through the date hereof; and
(c) Any similar report filed subsequent to the date hereof with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, such reports being deemed to be incorporated by reference
herein and to be a part hereof from the date of filing such reports.
Item 4. Description of Securities
The following summary description of the capital stock of the
Registrant is qualified in its entirety by reference to the Registrant's Amended
and Restated Articles of Incorporation ("Articles") and by the provisions of
applicable law.
The Registrant is authorized to issue two hundred million
(200,000,000) shares, consisting of 150,000,000 shares of Common Stock, par
value $0.001 ("Common Stock") and 50,000,000 shares of Preferred Stock, par
value $0.001 ("Preferred Stock").
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share held
on all matters submitted to a vote of stockholders. There is no cumulative
voting. Holders of Common Stock are entitled to receive ratably any dividends
that may be declared by the Board of Directors of the Registrant out of legally
available funds. Upon the liquidation, dissolution or winding up of the
Registrant, the holders of Common Stock are entitled to receive ratably the net
assets of the Registrant after payment of all debts and liabilities and
liquidation preferences of any outstanding shares of Preferred Stock. Holders of
Common Stock have no preemptive rights. Shares of Common Stock, when issued,
will be fully paid and nonassessable.
PREFERRED STOCK
Shares of unissued Preferred Stock may be issued in one or more series
from time to time with such designations, rights, preferences and limitations as
the Board of Directors may determine. The rights, preferences and limitations of
separate series of Preferred Stock may differ with respect to such matters as
may be determined by the Board of Directors including without limitation, the
rate of dividends, method or nature of payment of dividends, terms of
redemption, amounts payable on liquidation, sinking fund provisions, conversion
rights and voting rights.
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Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Article 109 of Section 7 of the Colorado Revised Statutes
("CRS"), the Registrant has broad powers to indemnify its directors and officers
against liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended. Under Section 7-109-103 of the
CRS, Registrant may, in certain circumstances, be required to indemnify its
officers and directors. The Registrant's Articles authorize the Registrant to
indemnify its officers and directors to the full extent and in the manner
permitted by the laws of the State of Colorado. The Registrant's Bylaws provide
that (i) no officer or director of the Registrant shall liable for any acts,
defaults or omissions of any other officer or director of the Registrant, or for
any loss sustained by the Registrant unless the loss resulted from such
officer's or director's willful misconduct, neglect, or gross negligence, (ii)
the Registrant shall indemnify officers, directors and certain other individuals
against all reasonable costs imposed or resulting from such person's role as an
officer, director or agent of the Registrant unless such person is adjudged to
be liable from willful misconduct, willful neglect, or gross negligence, and
(iii) the Registrant may purchase and maintain officers and directors liability
insurance.
The above discussion of the Registrant's Articles, Bylaws and of the
CRS is not intended to be exhaustive and is respectively qualified in its
entirety by such charter documents and statutes.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES ARISING UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, MAY BE PERMITTED TO DIRECTORS, OFFICERS OR
PERSONS CONTROLLING THE REGISTRANT PURSUANT TO THE FOREGOING PROVISIONS, THE
REGISTRANT 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
<TABLE>
<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4.1 Consulting Agreement and Stock Plan.
4.2 Articles of Incorporation, as amended.*
4.3 Bylaws.*
5 Opinion and consent of Manning, Marder & Wolfe.
23.1 Consent of Independent Accountants.
23.2 Consent of Manning, Marder & Wolfe is contained in Exhibit 5.
</TABLE>
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* Incorporated by reference to the Registrant's annual report on Form 10-KSB
for the fiscal year ended March 31, 1998.
Item 9. Undertakings
A. The Undersigned Registrant hereby undertakes: (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, as amended, (ii) to reflect in the
prospectus any facts or events arising
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after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement, and (iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) shall 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 1934 Act that are incorporated by reference into the
Registration Statement; (2) that for the purpose of determining any liability
under the Securities Act of 1933, as amended, 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.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the 1934 Act that is incorporated by reference into the
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.
C. Insofar as indemnification for liabilities arising the
Securities Act of 1933, as amended, may be permitted to directors, officers or
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933, as amended, 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 Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
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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 Calgary Alberta on November 17, 1998.
SOUTHWESTERN WATER EXPLORATION CO.
By: /s/ Steven B. Misner
----------------------------------------
Steven B. Misner, President
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Steven B. Misner President and Director November 17, 1998
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Steven B. Misner
/s/ Barbara J. McAllister Secretary, Chief Financial Officer November 17, 1998
- ------------------------- and Director
Barbara J. McAllister
/s/ Arthur Webb Vice-President of Operations November 17, 1998
- ------------------------- and Director
Arthur Webb
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Exhibit
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4.1 Consulting Agreement and Stock Plan.
4.2 Articles of Incorporation, as amended.*
4.3 Bylaws.*
5 Opinion and consent of Manning, Marder & Wolfe.
23.1 Consent of Independent Accountants.
23.2 Consent of Manning, Marder & Wolfe is contained as Exhibit 5.
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* Incorporated by reference to the Registrant's annual report on Form 10-KSB
for the fiscal year ended March 31, 1998.
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EXHIBIT 4.1
CONSULTING AGREEMENT AND STOCK PLAN
THIS CONSULTING AGREEMENT AND STOCK PLAN (this "Agreement") is entered
into as of November 1, 1998 by and between Southwestern Water Exploration Co.
("Southwestern"), a Colorado corporation, whose principal place of business is
located at 615 Macleod Trail S.E., Suite 1100, Calgary, Alberta T2G 4T8, and
Steven Antebi ("Consultant"), whose principal place of business is located at
345 North Maple Drive, Suite 358, Beverly Hills, California 90210 (individually,
a "Party" and collectively, the "Parties").
RECITALS
A. Southwestern is a public company whose Common Stock, $0.001 par
value, is quoted on the OTC Bulletin Board. Southwestern intends to locate,
develop and market potable water throughout the American Southwest.
B. Consultant is experienced in evaluating and developing strategic
business plans.
C. Southwestern is desirous of utilizing Consultant's services to
further develop and refine its strategic business plan.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the Parties as
follows:
1. Engagement. Southwestern hereby retains and engages Consultant to
evaluate and assist in the development of Southwestern's strategic business plan
and as described in more detail in paragraph 2 below (the "Consulting
Services"), and Consultant agrees to perform the Consulting Services subject to
the terms and conditions of this Agreement.
2. Consulting Services. The consulting services contemplated by this
Agreement (the "Consulting Services") shall consist of:
a. Reviewing and evaluating Southwestern's current business plan
and remaining knowledgeable about the contents thereof;
b. Working with Southwestern's management to develop and prepare
a detailed strategic business plan; and
c. Working with Southwestern's management to periodically revise
the Southwestern strategic business plan as required during the term of this
Agreement.
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3. Scope of this Agreement. The raising of capital by Consultant for
Southwestern is outside the scope of this Agreement. Consultant shall not
perform for Southwestern any service related to the raising of capital, whether
directly or indirectly, including without limitation (a) securing additional
marketmakers; (b) obtaining exposure to institutional investors and other
interested parties; and (c) locating regional firm analysis to initiate coverage
on Southwestern.
4. Consideration. In consideration of the performance by Consultant of
the Consulting Services, Southwestern will issue to Consultant 300,000 shares of
Southwestern common stock (the "Shares") at a purchase price of $0.001 per
share, for a total consideration of $300. In the event that Consultant does not
completely perform the Consulting Services (for any reason including the death
or incapacity of Consultant), then for each month that Consultant does not
perform the Consulting Services, one twenty-fourth (1/24) of the Shares (as
adjusted for stock splits, reverse stock splits, stock dividends or
distributions or other reclassifications of Southwestern's common stock) shall
be returned to Southwestern and canceled. Consultant agrees to purchase shares
in the open market, if necessary, to fulfill such obligation to return shares to
Southwestern.
The shares will be issued as soon as practicable following execution of
this Agreement and the filing of a registration statement under the Securities
Act of 1933, as amended, on Form S-8 covering the Shares.
5. Expenses. Consultant shall bear his out-of-pocket costs and expenses
incident to performing the Consulting Services, without a right of reimbursement
by Southwestern.
6. Term. The term of this Agreement is two years, commencing November
1, 1998 and ending October 31, 2000 (the "Term"). This Agreement may be
terminated prior to the end of the Term upon the mutual agreement of the Parties
or in the event Consultant is in default (as defined below) in the performance
of the Consulting Services, which default is not cured within a reasonable time
following written notice thereof from Southwestern. A "default" occurs when, in
Southwestern's sole and exclusive judgment, Consultant is not satisfactorily
performing the Consulting Services.
7. Miscellaneous.
a. Entirety of Agreement. This Agreement sets forth the entire
understanding of the Parties with respect to the matters contemplated hereby.
Any and all previous agreements and understandings between or among the Parties
regarding the subject matter hereof, whether written or oral, are superseded by
this Agreement. This Agreement shall not be amended or modified except by
written instrument duly executed by each of the Parties.
b. Assignment and Binding Effect. This Agreement may not be
assigned without the prior written consent of the other Party.
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c. Waiver. Any term or provision of this Agreement may be waived
at any time by the Party entitled to the benefit thereof by a written instrument
duly executed by such Party.
d. Notices. Any notice, request, demand, waiver, consent,
approval or other communication which is required or permitted hereunder shall
be in writing and shall be deemed given only if delivered personally or sent by
facsimile, or by registered or certified mail, postage prepaid, as follows:
If to Southwestern to:
Southwestern Water Exploration Co.
615 Macleod Trail S.E., Suite 1100 Calgary,
Alberta T2G 4T8
If to Consultant, to:
Mr. Steven Antebi
345 North Maple Drive, Suite 358
Beverly Hills, California 90210
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communications will be deemed to have been given as
of the date so delivered, telephoned or mailed.
e. Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of California.
f. No Benefit to Others. The representations, warranties,
covenants and agreements contained in this Agreement are for the sole benefit of
the Parties hereto.
g. Severability. Any provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability in such jurisdiction without invalidating or
rendering unenforceable the remaining provisions hereof, and any such invalidity
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
h. Attorneys' Fees. In the event of a dispute concerning the
matters contained in this Agreement, the prevailing party shall be reimbursed
all of its attorneys' fees and costs incurred.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the date first above written.
Southwestern Water Exploration Co.
a Colorado corporation
By: /s/ Steven B. Misner
----------------------------------
Name: Steven B. Misner
Its: President
Consultant
/s/ Steven Antebi
----------------------------------
Steven Antebi
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EXHIBIT 5
November 17, 1998
Southwestern Water Exploration Co.
615 Macleod Trail, Suite 1100 S.E.
Calgary, Alberta T2G 4T8
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as special counsel for Southwestern Water Exploration
Co., a Colorado corporation (the "Company") in connection with the preparation
and filing of the Company's Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating to
300,000 shares of the Company's Common Stock, $0.001 par value (the "Common
Stock"), issuable under the Southwestern Water Exploration Co. 1998 Consultants'
Stock Plan (the "Plan").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Plan and of such other documents, corporate records,
certificates of public officials and other instruments relating to the adoption
and implementation of the Plan as we deemed necessary or advisable for purposes
of this opinion.
Based on the foregoing examination, we are of the opinion that the
shares of Common Stock issuable pursuant to the Plan are duly authorized and,
when issued in accordance with the Plan, will be validly issued, fully paid and
nonassessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to all references therein to our firm.
Very truly yours,
/s/ Manning, Marder, & Wolfe
MANNING, MARDER & WOLFE
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EXHIBIT 23.1
[KPMG LLP LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Southwestern Water Exploration Co. of our report dated June 26, 1998
relating to the consolidated balance sheets of Southwestern Water Exploration
Co. and its subsidiary as of March 31, 1998 and 1997, and the related
consolidated statements of loss and deficit and cash flow for the years ended
March 31, 1998 and 1997, which report appears in the March 31, 1998 annual
reports on Form 10-KSB of Southwestern Water Exploration Co.
/s/ KPMG LLP
Chartered Accountants
Calgary, Canada
November 12, 1998
