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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
SJW CORP.
- ------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $3.125
- ------------------------------------------------------------------------------
(Title of Class of Securities)
784305104
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(CUSIP Number)
JOHN D. HUSSEY, ESQUIRE
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
333 SOUTH HOPE STREET, 48TH FLOOR
LOS ANGELES, CALIFORNIA 90071
- ------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
OCTOBER 28, 1999
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(Date of Event which Requires Filing of this Statement)
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Page 1 of 22
<PAGE>
If the filing person has previously filed a statement of Schedule 13G to report
the acquisition which is the subject of the Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Continued on following page(s))
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Page 2 of 22
<PAGE>
CUSIP No. 784305104 13D
- ------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GEORGE E. MOSS
- ------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
- ------------------------------------------------------------------------------
3 SEC USE ONLY
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4 SOURCE OF FUNDS*
NOT APPLICABLE
- ------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [ ]
NOT APPLICABLE
- ------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- ------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 497,812
BENEFICIALLY ------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH NONE
REPORTING ------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 378,673
------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
119,139
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Page 3 of 22
<PAGE>
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
497,812
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.35%
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
-4-
Page 4 of 22
<PAGE>
Schedule 13D
Item 1. Security and Issuer
This statement relates to the Common Stock, par value $3.125 ("Common
Stock"), of SJW Corp. ("SJW"). The address of the principal executive office is:
SJW Corp.
374 West Santa Clara Street
San Jose, California 95113
Item 2. Identity and Background
The following information relates to the Reporting Person, as defined
below:
(a) Name: George E. Moss (the "Reporting Person")
(b) Business Address: 4360 Worth Street, Los Angeles,
California 90063
(c) Principal Occupation: Vice Chairman, Roscoe Moss Manufacturing
Company, 4360 Worth Street, Los Angeles, California 90063
(d) Criminal Convictions: None
(e) Securities Violations: None
(f) Citizenship: United States of America
Item 3. Source and Amount of Funds or Other Consideration
On August 20, 1992, SJW, Roscoe Moss Company (now Western Precision,
Inc.), Roscoe Moss, Jr., George E. Moss and the other shareholders of Roscoe
Moss Company entered into a Stock Exchange Agreement (the "Exchange Agreement")
pursuant to which the shareholders of Roscoe Moss Company agreed to exchange
their shares of Roscoe Moss Company stock for SJW Common Stock (the "Exchange").
Prior to the closing of the Exchange (the "Closing") and as required by the
Exchange Agreement, Roscoe Moss Company merged its wholly-owned subsidiary,
Western Precision, Inc., into itself and changed its name from Roscoe Moss
Company to Western Precision, Inc.
The Closing occurred on December 31, 1992 and as a result Western
Precision's shareholders received shares of SJW Common Stock, SJW received all
of the outstanding shares of Western Precision (formerly Roscoe Moss Company)
stock and Western Precision became a wholly-owned subsidiary of SJW. Pursuant to
the Exchange Agreement, a portion of the shares issued to the Reporting Person
were deposited into escrow with Bank of America pursuant to the terms of an
-5-
Page 5 of 22
<PAGE>
Escrow Agreement among Bank of America, SJW, Roscoe Moss, Jr. and George E. Moss
(the "Escrow Agreement"). Thereafter the Escrow Agreement terminated according
to its terms, and the Reporting Person received dispositive power as to the
withheld shares he was entitled to receive.
Item 4. Purpose of Transaction
The securities were originally acquired for investment. See Item 6 below
for a description of a proposed transaction involving the acquisition of SJW by
American Water Works Company, Inc. ("AWW"), a transaction which, if completed,
would cause the Reporting Person to cease to have a reporting obligation.
Item 5. Interest in Securities of the Issuer
(a) The Reporting Person is deemed to beneficially own 497,812 shares
(16.35% of the outstanding shares of SJW based on the most recently available
filings with the Commission). The Reporting Person disclaims beneficial
ownership of 119,139 shares. See (b) below.
(b) The Reporting Person, as Trustee of the George E. Moss Revocable
Trust, as amended, has sole voting power and sole power to dispose of 378,673
shares of SJW. The Reporting Person, as Trustee of the John Kimberly Moss Trust
dated October 24, 1991 (the "JKM Trust") has sole power to vote and shared power
to dispose of 119,139 shares of SJW, as to which the Reporting Person disclaims
beneficial ownership.
(c) The Reporting Person has had no transactions in the common stock in
the last 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
On October 28, 1999, SJW, AWW and SJW Acquisition Corp. ("Merger Sub")
entered into an Agreement and Plan of Merger ("Merger Agreement") whereby Merger
Sub will, upon the as the yet to be determined Closing Date (as such term is
defined in the Merger Agreement), merge with and into SJW and SJW shall continue
as the surviving corporation and wholly-owned subsidiary of AWW (the "Merger').
Pursuant to the terms of the Merger Agreement, at the Effective Time (as such
term is defined in the Merger Agreement (the "Effective Time")), each
outstanding share of SJW will convert into the right to receive $128.00 in cash.
In addition, at the Effective Time, all shares of SJW shall cease to exist and
shall be canceled.
In conjunction with the Merger Agreement, the Reporting Person has entered
into two Stockholders Agreements (the "Stockholders Agreements"). The first
Stockholders Agreement is dated as of October 28, 1999, by and among AWW, the
Reporting Person, and Roscoe Moss, Jr., and the second Stockholders Agreement is
dated as of the same date and is by and among AWW and the Reporting Person, in
his capacity as Trustee to the JKM Trust. Pursuant to the terms of the
Stockholders Agreements, the Reporting Person has agreed to vote the
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Page 6 of 22
<PAGE>
shares of SJW over which he has voting power in favor of approval of the Merger
Agreement and the Merger, and against any action that either would result in
breach of the Merger Agreement, or would interfere with or delay completion of
the Merger.
Item 7. Material to be Filed as Exhibits
Exhibit "A" - Stockholders Agreement
Exhibit "B" - Stockholders Agreement
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Page 7 of 22
<PAGE>
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: November 8, 1999 /s/ George E. Moss
----------------------------------------
George E. Moss
-8-
Page 8 of 22
<PAGE>
Exhibit A
---------
Roscoe Moss, Jr.
George E. Moss, Sr.
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of October 28, 1999 (this
"Agreement"), among American Water Works Company, Inc., a Delaware corporation
("AWW"), and the individuals and other parties listed on Schedule A attached
hereto (each, a "Shareholder" and, collectively, the "Shareholders").
WHEREAS AWW, SJW Acquisition Corp., a Delaware corporation ("Merger
Sub") and SJW Corp., a California corporation (the "Company"), propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the same
may be amended or supplemented, the "Merger Agreement"; capitalized terms used
but not defined herein shall have the meanings set forth in the Merger
Agreement), providing for the merger of Merger Sub with and into the Company,
with the Company as the surviving corporation in the merger (the "Merger"), upon
the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS each Shareholder owns the number of shares of common stock,
par value $3.125 per share, of the Company (the "Common Stock"), set forth
opposite his, her or its name on Schedule A attached hereto (such shares of
Common Stock, together with any other shares of capital stock of the Company
acquired by such Stockholder after the date hereof and during the term of this
Agreement (including through the exercise of any stock options, warrants or
similar instruments), being collectively referred to herein as the "Subject
Shares");
WHEREAS as a condition to its willingness to enter into the Merger
Agreement, AWW has requested that each Shareholder enter into this Agreement.
NOW, THEREFORE, to induce AWW to enter into, and in consideration of
its entering into, the Merger Agreement, and in consideration of the promises
and the representations, warranties and agreements contained herein, the parties
agree as follows:
1. AGREEMENT TO VOTE SHARES. Each of the Shareholders agrees
during the term of this Agreement to vote the Subject Shares as to which it has
voting power or control, in person or by proxy, (i) in favor of the Merger, the
adoption and approval of the Merger Agreement and the approval of the
transactions contemplated by the Merger Agreement; (ii) against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (iii) against any action or agreement (other
than the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger
including, but not limited to: (A) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the Company
or any Subsidiary; (B) a sale or transfer of a material amount of assets of the
Company or any Subsidiary or a reorganization, recapitalization or liquidation
of the Company or any Subsidiary; (C) any change in the management or the board
Page 9 of 22
<PAGE>
of directors of the Company or any Subsidiary, except as otherwise agreed to in
writing by AWW; (D) any material change in the present capitalization or
dividend policy of the Company; or (E) any other material change in the
Company's or any Subsidiary's corporate structure or business, at every meeting
of the stockholders of the Company at which such matters are considered and at
every adjournment thereof (each, a "Stockholder Meeting") and in any action
taken by written consent in lieu of a meeting.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each
Stockholder hereby represents and warrants to AWW as follows:
(a) Ownership of Shares. Such Stockholder owns beneficially
and of record the number of Subject Shares set forth on Schedule A opposite such
Stockholder's name and such Subject Shares constitute all of the shares of
capital stock of the Company owned by such Stockholder. Such Stockholder has
sole voting power and sole power of disposition with respect to all of such
Subject Shares, with no restrictions on such Stockholder's rights of voting or
disposition pertaining thereto and no other person has any right to direct such
Stockholder with respect to voting any of such Stockholder's Subject Shares or
approve the voting by such Stockholder of any of the Subject Shares or has any
right to approve any amendment or modification of this Agreement. Such
Stockholder owns all of such Subject Shares, free and clear of any Encumbrance,
other than pursuant to this Agreement or applicable securities laws.
(b) Enforceability. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming this Agreement
constitutes a valid and binding obligation of AWW, this Agreement constitutes a
valid and binding agreement of such Stockholder enforceable against such
Stockholder in accordance with its terms.
3. NO OTHER GRANT OF PROXY. The Shareholder will not, directly
or indirectly, grant any proxies or powers of attorney with respect to the
Subject Shares (other than in connection with matters proposed by the Company at
an annual meeting of the Company other than any matter described in Section 1
above) to any individual, corporation, partnership, limited liability company,
joint venture, association, trust, unincorporated organization or other person
(each, a "person") other than to AWW or any person designated in writing by AWW.
4. NO VOTING TRUST. Each of the Shareholders agrees that such
Shareholder will not, nor will such Shareholder permit any person under such
Shareholder's control to, deposit any of such Shareholder's Subject Shares in a
voting trust or subject any of its Subject Shares to any arrangement with
respect to the voting of the Subject Shares inconsistent with this Agreement.
5. ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the California or in a California state court, this being in addition
to any other remedy to which they are entitled at law or in equity, and neither
party will oppose the granting of such relief on the basis that the other party
has an adequate remedy at law.
2
Page 10 of 22
<PAGE>
6. TERM AND TERMINATION. Subject to Section 11(f), the term of
this Agreement shall commence on the date hereof, and such term and this
Agreement shall terminate upon the earliest to occur of (i) the Effective Time,
(ii) the date on which the Merger Agreement is terminated in accordance with its
terms and (iii) the date of any amendment or modification of the Merger
Agreement, or other agreement entered into in connection therewith, or action
taken (including any waiver of the terms of the Merger Agreement) by the Company
or AWW which reduces the Merger Consideration. Upon any such termination, no
party shall have any further obligations or liabilities hereunder, provided that
no such termination shall relieve Shareholder from any willful breach of this
Agreement occurring prior to such termination.
7. CERTAIN EVENTS. Each Shareholder agrees that this Agreement
and the obligations hereunder shall attach to such Shareholder's Subject Shares
and shall be binding upon any person to which legal or beneficial ownership of
such Subject Shares shall pass, whether by operation of law or otherwise,
including such Shareholder's heirs, guardians, administrators or successors. In
the event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the Company
affecting the Common Stock, or the acquisition of additional shares of Common
Stock or other voting securities of the Company by any Shareholder, the number
of Subject Shares listed in Schedule A beside the name of such Shareholder shall
be adjusted appropriately and this Agreement and the obligations hereunder shall
attach to any additional shares of Common Stock or other voting securities of
the Company issued to or acquired by such Shareholder.
8. SHAREHOLDER CAPACITY. No person executing this Agreement who
is or becomes during the term hereof a director or officer of the Company (or
who has been designated to the Board of Directors of the Company by a
Shareholder) makes (or shall be deemed to have made) any agreement or
understanding herein in his or her capacity as such director or officer. Without
limiting the generality of the foregoing, each Shareholder signs solely in its,
his or her capacity as the record and/or beneficial owner, as applicable, of
such Shareholder's Subject Shares and nothing herein shall limit or affect any
actions taken by a Shareholder (or a designee of a Shareholder) in his or her
capacity as an officer or director of the Company in exercising its rights under
the Merger Agreement.
9. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES;
AMENDMENT; WAIVER. This Agreement (including the documents and instruments
referred to herein) (i) constitutes the entire agreement and supersedes all
prior agreements and understandings, written or oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by each of
the parties hereto. No waiver of any provisions hereof by any party shall be
deemed a waiver of any other provisions hereof by any such party, nor shall any
such waiver be deemed a continuing waiver of any provision hereof by such party.
10. NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be in writing and
shall be deemed to have been duly given if mailed, by first class or registered
mail, three (3) business days after deposit in the United States Mail, or if
3
Page 11 of 22
<PAGE>
telexed or telecopied, sent by telegram, or delivered by hand or reputable
overnight courier, when confirmation is received, in each case as follows:
If to the Shareholders, to the addresses listed on Schedule A
hereto.
With a copy to:
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, CA 90071
Attention: John D. Hussey, Esq. and Jon W. Newby, Esq.
Telephone: (213) 620-1780
Facsimile: (213) 620-1398
And a copy to:
Brobeck, Phleger & Harrison
Spear Street Tower
One Market Plaza
San Francisco, CA 94105
Attention: Ronald B. Moskovitz, Esq.
Telephone: (415) 442-0900
Facsimile: (415) 442-1010
If to AWW, in accordance with Section 8.2 of the Merger Agreement;
or to such other persons or addresses as may be designated in writing by the
party to receive such notice. Nothing in this Section 10 shall be deemed to
constitute consent to the manner and address for service of process in
connection with any legal proceeding (including litigation arising out of or in
connection with this Agreement), which service shall be effected as required by
applicable law.
11. MISCELLANEOUS.
(a) When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
(b) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws.
(c) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
4
Page 12 of 22
<PAGE>
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner and to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(d) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any Shareholder, on the one hand,
without the prior written consent of AWW, nor by AWW, on the other hand, without
the prior written consent of the Shareholders, except that AWW may assign, in
its sole discretion, any or all of its rights, interests and obligations
hereunder to any direct or indirect wholly-owned subsidiary of AWW; provided
that notwithstanding such assignment AWW shall remain liable for performance of
its obligations hereunder. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
(f) The obligations of the Shareholders set forth in this
Agreement shall not be effective or binding upon the Shareholders until after
such time as the Merger Agreement is executed and delivered by AWW and the
Company. Nothing contained in this Agreement shall be construed as containing
any liability on the part of the Shareholders under the Merger Agreement.
[SIGNATURE PAGES FOLLOW]
5
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<PAGE>
IN WITNESS WHEREOF, AWW has caused this Agreement to be signed by
its officer thereunto duly authorized and each Shareholder has signed this
Agreement, all as of the date first written above.
AMERICAN WATER WORKS COMPANY, INC.
By: /s/ W. Timothy Pohl
___________________________
W. Timothy Pohl
Its: General Counsel and Secretary
SHAREHOLDERS:
/s/ Roscoe Moss, Jr.
---------------------------------
Roscoe Moss, Jr.
/s/ George E. Moss, Sr.
---------------------------------
George E. Moss, Sr.
6
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<PAGE>
SCHEDULE A
SHAREHOLDER NUMBER OF PERCENTAGE OF
OUTSTANDING VOTING POWER OF
SHARES OWNED THE COMPANY (1)
Roscoe Moss, Jr. 523,878 17.20%
George E. Moss, Sr. 378,668 12.44%
- -------------------------
1 Based on 3,045,147 total shares outstanding as of October 28, 1999
7
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<PAGE>
Exhibit B
----------
John Kimberly Moss Trust
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of October 28, 1999 (this
"Agreement"), among American Water Works Company, Inc., a Delaware corporation
("AWW"), and the individuals and other parties listed on Schedule A attached
hereto (each, a "Shareholder" and, collectively, the "Shareholders").
WHEREAS AWW, SJW Acquisition Corp., a Delaware corporation ("Merger
Sub") and SJW Corp., a California corporation (the "Company"), propose to enter
into an Agreement and Plan of Merger dated as of the date hereof (as the same
may be amended or supplemented, the "Merger Agreement"; capitalized terms used
but not defined herein shall have the meanings set forth in the Merger
Agreement), providing for the merger of Merger Sub with and into the Company,
with the Company as the surviving corporation in the merger (the "Merger"), upon
the terms and subject to the conditions set forth in the Merger Agreement;
WHEREAS each Shareholder owns the number of shares of common stock,
par value $3.125 per share, of the Company (the "Common Stock"), set forth
opposite his, her or its name on Schedule A attached hereto (such shares of
Common Stock, together with any other shares of capital stock of the Company
acquired by such Stockholder after the date hereof and during the term of this
Agreement (including through the exercise of any stock options, warrants or
similar instruments), being collectively referred to herein as the "Subject
Shares");
WHEREAS as a condition to its willingness to enter into the Merger
Agreement, AWW has requested that each Shareholder enter into this Agreement.
NOW, THEREFORE, to induce AWW to enter into, and in consideration of
its entering into, the Merger Agreement, and in consideration of the promises
and the representations, warranties and agreements contained herein, the parties
agree as follows:
1. AGREEMENT TO VOTE SHARES. Each of the Shareholders agrees during
the term of this Agreement to vote the Subject Shares as to which it has voting
power or control, in person or by proxy, (i) in favor of the Merger, the
adoption and approval of the Merger Agreement and the approval of the
transactions contemplated by the Merger Agreement; (ii) against any action or
agreement that would result in a breach in any material respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement; and (iii) against any action or agreement (other
than the Merger Agreement or the transactions contemplated thereby) that would
impede, interfere with, delay, postpone or attempt to discourage the Merger
including, but not limited to: (A) any extraordinary corporate transaction, such
as a merger, consolidation or other business combination involving the Company
or any Subsidiary; (B) a sale or transfer of a material amount of assets of the
Company or any Subsidiary or a reorganization, recapitalization or liquidation
of the Company or any Subsidiary; (C) any change in the management or the board
Page 16 of 22
<PAGE>
of directors of the Company or any Subsidiary, except as otherwise agreed to in
writing by AWW; (D) any material change in the present capitalization or
dividend policy of the Company; or (E) any other material change in the
Company's or any Subsidiary's corporate structure or business, at every meeting
of the stockholders of the Company at which such matters are considered and at
every adjournment thereof (each, a "Stockholder Meeting") and in any action
taken by written consent in lieu of a meeting.
2. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each Stockholder
hereby represents and warrants to AWW as follows:
(a) Ownership of Shares. Such Stockholder owns beneficially
and of record the number of Subject Shares set forth on Schedule A opposite such
Stockholder's name and such Subject Shares constitute all of the shares of
capital stock of the Company owned by such Stockholder. Such Stockholder has
sole voting power and sole power of disposition with respect to all of such
Subject Shares, with no restrictions on such Stockholder's rights of voting or
disposition pertaining thereto and no other person has any right to direct such
Stockholder with respect to voting any of such Stockholder's Subject Shares or
approve the voting by such Stockholder of any of the Subject Shares or has any
right to approve any amendment or modification of this Agreement. Such
Stockholder owns all of such Subject Shares, free and clear of any Encumbrance,
other than pursuant to this Agreement or applicable securities laws.
(b) Enforceability. This Agreement has been duly and validly
executed and delivered by such Stockholder and, assuming this Agreement
constitutes a valid and binding obligation of AWW, this Agreement constitutes a
valid and binding agreement of such Stockholder enforceable against such
Stockholder in accordance with its terms.
3. NO OTHER GRANT OF PROXY. The Shareholder will not, directly or
indirectly, grant any proxies or powers of attorney with respect to the Subject
Shares (other than in connection with matters proposed by the Company at an
annual meeting of the Company other than any matter described in Section 1
above) to any individual, corporation, partnership, limited liability company,
joint venture, association, trust, unincorporated organization or other person
(each, a "person") other than to AWW or any person designated in writing by AWW.
4. NO VOTING TRUST. Each of the Shareholders agrees that such
Shareholder will not, nor will such Shareholder permit any person under such
Shareholder's control to, deposit any of such Shareholder's Subject Shares in a
voting trust or subject any of its Subject Shares to any arrangement with
respect to the voting of the Subject Shares inconsistent with this Agreement.
5. ENFORCEMENT. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the California or in a California state court, this being in addition
to any other remedy to which they are entitled at law or in equity, and neither
party will oppose the granting of such relief on the basis that the other party
has an adequate remedy at law.
2
Page 17 of 22
<PAGE>
6. TERM AND TERMINATION. Subject to Section 11(f), the term of this
Agreement shall commence on the date hereof, and such term and this Agreement
shall terminate upon the earliest to occur of (i) the Effective Time, (ii) the
date on which the Merger Agreement is terminated in accordance with its terms
and (iii) the date of any amendment or modification of the Merger Agreement, or
other agreement entered into in connection therewith, or action taken (including
any waiver of the terms of the Merger Agreement) by the Company or AWW which
reduces the Merger Consideration. Upon any such termination, no party shall have
any further obligations or liabilities hereunder, provided that no such
termination shall relieve Shareholder from any willful breach of this Agreement
occurring prior to such termination.
7. CERTAIN EVENTS. Each Shareholder agrees that this Agreement and
the obligations hereunder shall attach to such Shareholder's Subject Shares and
shall be binding upon any person to which legal or beneficial ownership of such
Subject Shares shall pass, whether by operation of law or otherwise, including
such Shareholder's heirs, guardians, administrators or successors. In the event
of any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of the Company affecting the Common Stock,
or the acquisition of additional shares of Common Stock or other voting
securities of the Company by any Shareholder, the number of Subject Shares
listed in Schedule A beside the name of such Shareholder shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Common Stock or other voting securities of the Company
issued to or acquired by such Shareholder.
8. SHAREHOLDER CAPACITY. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company (or who
has been designated to the Board of Directors of the Company by a Shareholder)
makes (or shall be deemed to have made) any agreement or understanding herein in
his or her capacity as such director or officer. Without limiting the generality
of the foregoing, each Shareholder signs solely in its, his or her capacity as
the record and/or beneficial owner, as applicable, of such Shareholder's Subject
Shares and nothing herein shall limit or affect any actions taken by a
Shareholder (or a designee of a Shareholder) in his or her capacity as an
officer or director of the Company in exercising its rights under the Merger
Agreement.
9. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; AMENDMENT;
WAIVER. This Agreement (including the documents and instruments referred to
herein) (i) constitutes the entire agreement and supersedes all prior agreements
and understandings, written or oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder. This Agreement may not
be amended, supplemented or modified, and no provisions hereof may be modified
or waived, except by an instrument in writing signed by each of the parties
hereto. No waiver of any provisions hereof by any party shall be deemed a waiver
of any other provisions hereof by any such party, nor shall any such waiver be
deemed a continuing waiver of any provision hereof by such party.
10. NOTICES. All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be in writing and
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shall be deemed to have been duly given if mailed, by first class or registered
mail, three (3) business days after deposit in the United States Mail, or if
telexed or telecopied, sent by telegram, or delivered by hand or reputable
overnight courier, when confirmation is received, in each case as follows:
If to the Shareholders, to the addresses listed on Schedule A
hereto.
With a copy to:
Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 48th Floor
Los Angeles, CA 90071
Attention: John D. Hussey, Esq. and Jon W. Newby, Esq.
Telephone: (213) 620-1780
Facsimile: (213) 620-1398
And a copy to:
Brobeck, Phleger & Harrison
Spear Street Tower
One Market Plaza
San Francisco, CA 94105
Attention: Ronald B. Moskovitz, Esq.
Telephone: (415) 442-0900
Facsimile: (415) 442-1010
If to AWW, in accordance with Section 8.2 of the Merger Agreement;
or to such other persons or addresses as may be designated in writing by the
party to receive such notice. Nothing in this Section 10 shall be deemed to
constitute consent to the manner and address for service of process in
connection with any legal proceeding (including litigation arising out of or in
connection with this Agreement), which service shall be effected as required by
applicable law.
11. MISCELLANEOUS.
(a) When a reference is made in this Agreement to Sections,
such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Wherever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
(b) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws.
(c) If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect. Upon such determination that any term or other
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<PAGE>
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner and to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
(d) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any Shareholder, on the one hand,
without the prior written consent of AWW, nor by AWW, on the other hand, without
the prior written consent of the Shareholders, except that AWW may assign, in
its sole discretion, any or all of its rights, interests and obligations
hereunder to any direct or indirect wholly-owned subsidiary of AWW; provided
that notwithstanding such assignment AWW shall remain liable for performance of
its obligations hereunder. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
(f) The obligations of the Shareholders set forth in this
Agreement shall not be effective or binding upon the Shareholders until after
such time as the Merger Agreement is executed and delivered by AWW and the
Company. Nothing contained in this Agreement shall be construed as containing
any liability on the part of the Shareholders under the Merger Agreement.
[SIGNATURE PAGES FOLLOW]
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<PAGE>
IN WITNESS WHEREOF, AWW has caused this Agreement to be signed by
its officer thereunto duly authorized and each Shareholder has signed this
Agreement, all as of the date first written above.
AMERICAN WATER WORKS COMPANY, INC.
By: /s/ W. Timothy Pohl
___________________________
W. Timothy Pohl
Its: General Counsel and Secretary
SHAREHOLDERS:
John Kimberly Moss Trust dated October 24, 1991
By /s/ George E. Moss, Sr.
______________________________________
George E. Moss, Sr., Trustee
By /s/ John Kimberly Moss
______________________________________
John Kimberly Moss, Trustor and Beneficiary
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<PAGE>
SCHEDULE A
SHAREHOLDER NUMBER OF PERCENTAGE OF
OUTSTANDING VOTING POWER OF
SHARES OWNED THE COMPANY(1)
John Kimberly Moss Trust 119,193 3.91%
- ------------------------
1 Based on 3,045,147 total shares outstanding as of October 28, 1999
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