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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 000 Xxxxxxx Xxxxx X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx X0X 0X0, and
Xxxxxx Xxxxxx ("Consultant"), whose principal place of business is located at
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (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.
000 Xxxxxxx Xxxxx X.X., Xxxxx 0000 Xxxxxxx,
Xxxxxxx X0X 0X0
If to Consultant, to:
Xx. Xxxxxx Xxxxxx
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
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/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Its: President
Consultant
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
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