Exhibit 10.25
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") between Southwest Water
Company ("Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Garnier") is entered into effective
March 16, 2006 ("Effective Date"). The Company and Garnier are each a Party and
are collectively referred to as the "Parties" to this Agreement.
REASON FOR AGREEMENT
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A. Garnier currently serves as Chairman of the Board of Directors and
Chief Executive Officer of the Company ("CEO/Chairman").
B. As part of an orderly succession process and in accordance with
prudent corporate governance practices, the Company has retained an executive
recruiting firm to begin a search for a new Chief Executive Officer ("CEO"). It
is intended by the Parties that Garnier will continue to serve as CEO/Chairman
until a new CEO is in place. Thereafter, Garnier will serve in another capacity
and will have other duties and responsibilities as an employee and as a
consultant to the Company. The date a new CEO is hired will be referred to as
the "Transition Date."
C. The Parties desire to formalize the terms of their continued
employment and consulting relationship.
THEREFORE, in consideration of the promises and of the covenants and
agreements herein provided, the Parties agree as follows:
1. Term of Employment. The Company will continue to employ Garnier and
Garnier will continue employment with the Company beginning as of the Effective
Date and continuing for a two year period following the Transition Date, unless
earlier terminated as provided by this Agreement ("Employment Term").
2. Term of Consulting Relationship. Upon the termination of Garnier's
employment for reasons other than Cause or Garnier's death or disability, the
Company will engage Garnier to serve as a consultant, with such responsibilities
and upon the terms set forth in Section 4 and as more fully set forth in a
Consulting Agreement. The term of the consulting period will begin immediately
following the termination of Garnier's employment and end on June 30, 2010
("Consulting Term"). The combined period of the Employment Term and the
Consulting Term is collectively referred to as the "Term."
3. Duties and Responsibilities.
3.1. Duties. Garnier agrees to continue to serve as CEO/Chairman until
the Transition Date. During that period Garnier will be responsible for the
general supervision of the business and affairs of the Company and will have
such other powers, duties and responsibilities as are usually vested in a CEO,
subject to the direction of the Board of Directors. Except as otherwise provided
in this Agreement, following the Transition Date, Garnier will serve in another
agreed upon position and will continue to devote his full business time to the
Company during the Employment Period. Following the Transition Date, Garnier
will have such duties and responsibilities as may be determined from time to
time by the new CEO and the Board of Directors, including to assist with
strategic planning and the transition. During the Employment Term, Garnier will
maintain comparable offices in Southern California and an executive assistant.
3.2. Business Ethics. During the Term, Garnier will perform his duties
and responsibilities faithfully, diligently and to the best of his ability,
consistent with the highest and best standards of the industry and in compliance
with all applicable laws and the Company's policies and procedures. Garnier
understands that it is the Company's policy to conduct its business according to
the highest moral, ethical and legal standards and agrees to uphold those
standards of business conduct and ethical principles, and comply with all
applicable laws and regulations and the Company's Ethics Policy.
4. Compensation and Method of Payment.
4.1. Total Compensation.
4.1.1. Compensation During The Employment Period. Garnier is
currently paid a base annual salary of $ 390,000 ("Base Salary") and is eligible
for salary review, certain bonus programs and stock option awards subject to
review by the Compensation and Organization Committee and Board of Directors.
For so long as Garnier serves in the capacity of CEO/Chairman, the Parties do
not intend his eligibility for such compensation to change, except as in the
ordinary course of business the Compensation and Organization Committee and the
Board of Directors may determine. Following the Transition Date and for the
remainder of the Employment Term, Garnier will be paid at least the same Base
Salary as was in effect on the Transition Date and will be eligible for bonuses
and stock options in such amounts as may be approved by the Compensation and
Organization Committee and subject to criteria to be established at the
discretion of the Board of Directors.
4.1.2. Compensation during Consulting Term. During the Consulting
Term, Garnier will provide services upon request of the Company. To the extent
that the Consulting Term begins before the second anniversary of the Transition
Date, this Agreement serves as adequate consideration for any consulting
services provided by Garnier before the second anniversary of the Transition
Date. For consulting services that Garnier may provide at the request of the CEO
or the Board of Directors following the second anniversary of the Transition
Date, Garnier will be paid such amounts as may be agreed to by the Parties in
writing. In addition, during the Consulting Term, Garnier will be eligible to
participate in the Company's stock option plan ("Stock Option Plan"), and will
have such rights as provided under the Stock Option Plan, including the form of
attestation for the exercise of vested options.
4.1.3. Reasonable Expenses. For so long as Garnier provides
services to the Company during the Employment Term, the Company will reimburse
Garnier for all reasonable travel, entertainment and other expenses incurred or
paid by Garnier in connection with, or related to, the performance of Garnier's
duties, responsibilities or services under this Agreement, consistent with the
Company's policies for executives upon presentation by the Garnier of
documentation, expense statements, vouchers and/or such other reasonable
supporting information as the Company may request. After the Transition Date,
Garnier will obtain pre-approval from the CEO for expenses.
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4.1.4. Benefits. For so long as Garnier provides services to the
Company during the Employment Term, Garnier may continue to participate in the
Company's executive fringe benefits, health insurance, life insurance, key
employee insurance and other plans and programs in effect from time to time for
executives of the Company and its affiliates at comparable levels of
responsibility. Garnier will not receive these benefits during the Consulting
Term.
4.2. Reservation Of Rights. Notwithstanding any other provision of
this Agreement, the Company reserves the right to modify, suspend or discontinue
any and all benefit plans, practices, policies and programs at any time whether
before or after termination of employment without advance notice to or recourse
by Garnier; provided that any such changes or terminations are made generally
with respect to all executives who are similarly situated to Garnier and are not
targeted with respect to Garnier alone.
4.3. Payment Of Compensation. During the Employment Term, the Company
will pay Garnier's Base Salary in accordance with the normal payroll cycle of
the Company as established from time to time, subject to applicable taxes,
withholding and other required, usual or elected employee deductions. During the
Consulting Period, Garnier will be paid on a monthly basis following submission
of invoices to the Company.
5. Termination. Garnier's employment will terminate upon the earliest to
occur of any of the following:
5.1. Expiration Of Term and Voluntary Resignation by Garnier.
Garnier's employment will terminate upon the expiration of the Employment Term
or upon Garnier's voluntary resignation with 60 days advance written notice.
5.2. Termination By Company For Cause. The Company may terminate
Garnier's employment for "Cause." Garnier's employment will terminate
immediately following written notice from the Company to Garnier which
identifies the termination provision relied upon and outlines in reasonable
detail the circumstances claimed to provide the basis for termination
("Termination Notice"). For the purpose of this Section 5.2, "Cause" for
termination will be deemed to include (a) willful acts or omissions by Garnier
which could materially adversely affect the Company, which acts or omissions are
not remedied within 30 days after a notice of breach is delivered to Executive
by the Company; (b) acts or omissions by Garnier which constitute
discriminatory, harassing or retaliatory conduct; (c) theft, fraud, dishonesty
or Garnier's conviction of a felony; (d) Garnier's breach of his fiduciary duty
or duty of loyalty to the Company, including violation of the restrictive
covenants in Section 6; and (e) the failure of Garnier to comply with any
material term of this Agreement, which failure is not remedied within 30 days
notice of breach is delivered to Executive by the Company.
5.3. Termination by Company Upon Garnier's Disability Or Death.
Garnier's employment and service as a consultant will terminate immediately upon
the death of Garnier. In addition, the Company may terminate Garnier's
employment and service as a consultant upon reasonable determination that
Garnier has a permanent disability and is unable to perform his duties and
responsibilities with or without reasonable accommodation.
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5.4. Termination By Company Without Cause. The Company may terminate
Garnier's employment for any reason or no reason upon 60 days written notice to
Garnier, provided a "change in control" (within the meaning of Internal Revenue
Code Section 280G(b)(2)(A)(i)) has not occurred since inception of this
Agreement.
5.5. Effect Of Termination.
5.5.1. Termination Due to Expiration Of Term or Voluntary
Termination by Garnier. In the event that Garnier's employment terminates upon
the expiration of the Employment Term or upon voluntary termination by Garnier,
the Company will pay Garnier (a) all accrued but unpaid compensation; (b)
reimbursement of approved business expenses; and (c) accrued benefits provided
under the Company's benefit plans and as otherwise required by law.
5.5.2. Termination By Company Upon Garnier's Death. Upon
Garnier's death, the Company will pay to Garnier's representatives (a) all
accrued but unpaid compensation; (b) reimbursement of approved business
expenses; and (c) accrued benefits provided under the Company's benefit plans
and as otherwise required by law. In addition, as permitted by law all of
Garnier's then unvested stock options will be deemed to have vested in full and
become exercisable within one year of his death.
5.5.3. Termination By Company Upon Garnier's Disability. Upon
Garnier's termination related to his Disability, the Company will pay to Garnier
(a) all accrued but unpaid compensation; (b) reimbursement of approved business
expenses; (c) accrued benefits provided under the Company's benefit plans and as
otherwise required by law; and (d) for the period remaining in the Employment
Term if Garnier's employment had not earlier terminated, the difference in Base
Salary and amounts paid to Garnier under the Company's disability plans. In
addition, as permitted by law all of Garnier's then unvested stock options will
be deemed to have vested in full and become exercisable within one year of the
termination of his employment due to disability.
5.5.4. Termination By Company For Cause. In the event of
termination for Cause pursuant to Section 5.2, the Company will pay Garnier (a)
all accrued but unpaid compensation; (b) reimbursement of approved business
expenses; and (c) accrued benefits provided under the Company's benefit plans
and as otherwise required by law.
5.5.5. Termination By Company Without Cause. In the event of the
termination of Garnier's employment pursuant to Section 5.4 during the
Employment Term, the Company will continue to pay Garnier (a) an amount equal to
the remaining amount of unpaid Base Salary that Garnier would have received if
his employment had not terminated before the end of the Employment Term plus
$6,000 for each month that would have remained in the Employment Term; (b)
reimbursement of approved business expenses; and (c) other benefits provided
under the Company's benefit plans and as otherwise required by law. The Company
will make the payments required by this Section 5.5.5(a) on a monthly basis
beginning on the first day of the seventh month after the termination of
Garnier's employment. The first monthly payment represents a payment for 6
months and thereafter equal monthly payments will continue until the amount due
is paid. The payments will be subject to applicable taxes and required or
employee elected deductions.
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5.6. Resignation As Board Member Or Officer. Immediately upon the
termination of Garnier's employment with the Company, Garnier will tender a
written notice of Garnier's resignation from any and all offices of the Company
and all subsidiaries, affiliates or clients in which Garnier represents the
Company in the capacity of an officer or director. Notwithstanding any failure
by Garnier to provide the Company with such written notice of resignation within
three days after the date of the termination of Garnier's employment with the
Company, Garnier authorizes and directs the Board of Directors to accept
Garnier's resignation from all said positions effective as of the date of
termination of Garnier's employment.
5.7. Good Faith Discussions. The Parties intend that during the Term,
Garnier will have the same rights under the Stock Option Plan as may exist for
all executives who are similarly situated to Garnier. The Company and Garnier
agree that in the event that changes in the law or other circumstances would
frustrate the intent of the parties to provide Garnier with the termination pay
and rights under the Company's Stock Option Plan set forth in this Section 5,
the Parties agree to engage in good faith discussions to explore options for
solutions.
5.8. Execution Of Release Agreement As Condition To Receiving
Payments. Except in the event that Garnier's employment is terminated pursuant
to Section 5.2, Garnier agrees to execute a general release of claims in a form
agreeable to the Parties as a condition to receiving the benefits and payments
provided under Section 5.5.
6. Property Rights And Obligations Of Garnier.
6.1. Trade Secrets. For purposes of this Agreement, "trade secrets"
will include without limitation any and all financial, cost and pricing
information and any and all information contained in any drawings, designs,
plans, proposals, customer lists, records of any kind, data, formulas,
specifications, concepts or ideas, where such information is reasonably related
to the business of the Company, has been divulged to or learned by Garnier
during his service as an employee or consultant to the Company, and has not
previously been publicly released by duly authorized representatives of the
Company or otherwise lawfully entered the public domain. Trade secrets as used
herein is intended to come within the meaning of, but be broader than, Trade
Secrets as defined in California Civil Code Section 3426.1(d).
6.2. Preservation Of Trade Secrets. Garnier will preserve as
confidential all trade secrets pertaining to the Company's business that have
been obtained or learned by him by reason of his employment or service as a
consultant. Garnier will not, without the prior written consent of the Company,
either use for his own benefit or purposes or disclose or permit disclosure to
any third parties, either during the Term or thereafter (except as required in
fulfilling the duties as an employee or consultant), any trade secret connected
with the business of the Company. Garnier agrees that he will not disclose to
the Company or induce the Company to use any trade secrets belonging to any
third party.
6.3. Property Of The Company. Garnier agrees that all documents,
reports, files, analyses, drawings, designs, tools, equipment, plans (including,
without limitation, marketing and sales plans), proposals, customer lists,
computer software or hardware, and similar materials that are made by him or
come into his possession by reason of and during the his employment or
consulting relationship with the Company are the property of the Company and
will not be used by him in any way adverse to the Company's interests. Garnier
will not allow any such documents or things, or any copies, reproductions or
summaries thereof, to be delivered to or used by any third party without the
specific consent of the Company. Garnier agrees to deliver to the Board of
Directors of the Company or its designee, upon demand, and in any event upon the
termination of Garnier's employment or his consulting relationship, all of such
documents and things which are in Garnier's possession or under his control.
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6.4. Noncompetition And Nonsolicitation By Garnier.
6.4.1. Noncompetition During Term. Garnier agrees that during the
Term, he will not directly or indirectly compete with the Company or any of its
affiliates ("Company Group") in the active business of the Company Group in such
territories as the Company Group continues in active business. The Parties
acknowledge that Garnier has in the past and may continue to be a shareholder
and serve as an Officer and Board member for California Domestic Land and Water
Company and has been and continues to be associated with the operations and
management of the California and Michigan Land and Water Company and that these
activities do not violate this Section 6.4.1.
6.4.2. Nonsolicitation Of Employees. Garnier agrees during the
Term and for two years following, he will not recruit, engage in passive hiring
efforts, solicit or induce any person or entity who during the period within one
year prior to expiration of the Term was an employee or independent contractor
of the Company Group, to leave or cease employment or other relationship with
the Company Group for hire or engage the services of such person for Garnier in
any business substantially similar to or competitive with that in which the
Company Group was engaged during the Term.
6.4.3. Nonsolicitation Of Customers. Garnier acknowledges that in
the course of his employment and consulting relationship, he will learn about
the Company Group's business, services, materials, programs and products and the
manner in which they are developed, marketed, served and provided. Garnier
acknowledges that the Company Group has invested considerable time and money in
developing its programs, agreements, offices, representatives, services,
products and marketing techniques and that they are unique and original. Garnier
further acknowledges that the Company Group must keep secret all pertinent
information divulged to Garnier about the Company Group business concepts,
ideas, programs, plans and processes, so as not to aid the Company Group's
competitors. Accordingly, the Company Group is entitled to the following
protection, which Garnier agrees is reasonable: Garnier agrees that during the
Term and for a period of two years following, he will not, on his own behalf or
on behalf of any person or entity other than the Company, knowingly solicit,
call upon, or initiate communication or contact any customer or prospective
customer of the Company Group with the intent of soliciting business or
diverting business from the Company Group.
6.5. Effect Of Violation Of Provisions Of Section 6. The Parties agree
that to the extent permitted by law, in the event that Garnier breaches his
obligations under Section 6, effective upon determination of a breach, after
notice to Garnier, and where appropriate a reasonable opportunity to cure of not
more than 30 days, the Company's obligations will to make post termination
payments will terminate except for payments required in Section 5.5.4.
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6.6. Survival Provisions And Certain Remedies. Unless otherwise agreed
to in writing between the Parties hereto, the provisions of this Section 6 will
survive the termination of this Agreement. In the event Garnier breaches any of
the provisions of this Section 6, Garnier agrees that the Company will be
entitled to injunctive relief in addition to any other remedy to which the
Company may be entitled.
6.7. Severability. The covenants in this Section 6 will be construed
as separate covenants and to the extent any covenant will be judicially
unenforceable, it will not affect the enforcement of any other covenant. In the
event that any of the provisions of this Section are deemed to exceed the
temporal or geographic limitations permitted by law, then such provisions will
be and are hereby reformed to the maximum temporal or geographic limitations
permitted by law.
7. General Provisions.
7.1. Notices. Any notices or other communications required or
permitted to be given under this Agreement must be in writing and addressed to
the Company or Garnier at the addresses below, or at such other address as
either Party may from time to time designate in writing. Any notice or
communication that is addressed as provided in this Section 7 will be deemed
given (a) upon delivery, if delivered personally or via certified mail, postage
prepaid, return receipt requested; or (b) on the first business day of the
receiving Party after the timely delivery to the courier, if delivered by
overnight courier. Other methods of delivery will be acceptable only upon proof
of receipt by the Party to whom notice is delivered.
If to Company: Southwest Water Company
Attn: Vice President of Human Resources
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If to Garnier: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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7.2. Choice Of Law And Forum. This Agreement will be governed by and
construed in accordance with the laws of the State of California and both
Parties consent to the personal jurisdiction of the courts of the State of
California.
7.3. Arbitration. Subject to the exceptions described in this
Agreement, any controversy, dispute or claim arising out of or relating to this
Agreement or any breach of it (each a "Claim" and collectively "Claims"), will
be settled by binding arbitration in Los Angeles, California in accordance with
the Employment Dispute Resolution Procedures of any recognized arbitration
organization selected by the parties to resolve any Claim.
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7.3.1. The Claims covered by this agreement include, without
limitation, claims for wages and other compensation, claims for breach of
contract (express or implied), tort claims, claims for discrimination
(including, but not limited to, race, sex, sexual orientation, religion,
national origin, age, marital status, medical condition, and disability),
harassment (including, but not limited to race, sex, sexual orientation,
religion, national origin, age, marital status, medical condition, and
disability), and claims for violation of any federal, state, or other government
law, statute, regulation, or ordinance. This provision shall not apply, however,
to claims for workers' compensation or unemployment insurance benefits or
claims; nor shall it restrict the Garnier's right to submit claims to the Equal
Employment Opportunity Commission or the Department of Fair Employment and
Housing, as appropriate. The Parties may elect to arbitrate or bring a civil
action to obtain any injunctive or other provisional relief (including for
breaches or threatened breaches of Section 6 or any of the restrictive
covenants, confidentiality and non-disclosure agreements).
7.3.2. The Parties may select an arbitrator from any recognized
arbitration associations satisfactory to both Parties. If the Parties cannot
agree on an arbitrator within 30 days of the demand for arbitration, the moving
Party will request from either of American Arbitration Association, JAMS or ADR
a list of five (5) names drawn from its panel of employment arbitrators. The
Parties will select from that list by striking arbitrators pursuant to the
strike procedures of that organization.
7.3.3. The demand for arbitration must be in writing and made
within the applicable statue of limitations period. The parties will be entitled
to conduct reasonable discovery, including conducting depositions and requesting
documents. The arbitrator will have the authority to resolve discovery disputes
including determining what constitutes reasonable discovery. The arbitrator will
have all powers conferred by law, and will prepare and provide to the Parties a
written decision and award which includes factual findings and the conclusions
upon which such an award is based. The arbitrator may grant injunctions or other
relief in such dispute or controversy. The decision of the arbitrator will be
final, conclusive and binding on the Parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction
7.3.4. If required by law, the fees for the arbitrator and the
arbitration forum shall be paid by the Company and Garnier will not be required
to bear any type of expense that the Garnier would not be required to bear if
Claims were litigated in court. The Parties will each bear their own attorneys'
fees and costs incurred in connection with the arbitration, except for any
attorneys' fees or costs which are awarded by the Arbitrator pursuant this
Agreement or statute which provides for recovery of such fees and costs.
7.3.5. The Company and Garnier each understand and agree that by
using arbitration to resolve any claims between the Parties, the Company and
Garnier are giving up any right that they may have to a judge or jury trial with
regard to the Claims. Both Parties acknowledge that they are entering into this
Agreement voluntarily and have independently negotiated and agreed upon this
arbitration provision.
7.4. Entire Agreement. This Agreement supersedes any and all other
agreements (including Garnier's Severance Compensation Agreement dated August 5,
1998), whether oral or in writing, between the Parties hereto with respect to
Garnier's employment by the Company and contains all covenants and agreements
between the Parties relating to such employment in any manner whatsoever. The
Parties may however enter into a Consulting Agreement which may by its terms
supersede the terms of this Agreement relating to a consulting relationship
between the Parties. Each Party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, oral or written, have
been made by any Party, or anyone acting on behalf of any Party, that are not
embodied herein, and that no other agreement, statement, or promise not
contained in this Agreement will be valid or binding.
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7.5. Modification And Waiver. Any modification of this Agreement will
be effective only if it is in writing signed by the Party to be charged. No
waiver of any of the provisions of this Agreement will be deemed, or will
constitute, a waiver of any other provision, whether or not similar, nor will
any waiver constitute a continuing waiver. No waiver will be binding unless
executed in writing by the Party making the waiver.
7.6. Assignment. Because of the personal nature of the services to be
rendered hereunder, this Agreement may not be assigned in whole or in part by
Garnier without the prior written consent of the Company. Subject to the
foregoing limitation, this Agreement will be binding on, and will inure to the
benefit of, the Parties hereto and their respective heirs, legatees, executors,
administrators, legal representatives, successors and assigns. The Company
agrees to require any successor to assume and perform this Agreement.
7.7. Severability. If for any reason whatsoever, any one or more of
the provisions of this Agreement will be held or deemed to be inoperative,
unenforceable, or invalid as applied to any particular case or in all cases,
such circumstances will not have the effect of rendering any such provision
inoperative, unenforceable, or invalid in any other case or of rendering any of
the other provisions of this Agreement inoperative, unenforceable or invalid.
7.8. Representation By Counsel; Interpretation. The Company and
Garnier acknowledge that each Party to this agreement has had the opportunity to
be represented by counsel in connection with this Agreement and the matters
contemplated by this Agreement. Accordingly, any rule of law or decision which
would require interpretation of any claimed ambiguities in this Agreement
against the Party that drafted it has no application and is expressly waived. In
addition, the term "including" and its variations are always used in the
non-restrictive sense (as if followed by a phrase such as "but not limited to").
The provisions of this Agreement will be interpreted in a reasonable manner to
affect the intent of the Parties.
7.9. Corporate Authority. The Company represents and warrants as of
the Effective Date that the Company's execution and delivery of this Agreement
to Garnier and the carrying out of the provisions of the Agreement have been
duly authorized by the Company's Board of Directors and authorized by the
Company's shareholders as appropriate.
7.10. Attorneys' Fees. In any action at law or in equity to enforce or
construe any provisions or rights under this Agreement, the unsuccessful Party
will pay the successful Party all costs, expenses, and reasonable attorneys'
fees.
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7.11. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of, which will be deemed an original, but all of
which together will constitute one and the same instrument. Fax signatures will
be valid and binding.
7.12. Headings And Captions. Headings and captions are included for
purposes of convenience only and are not a part hereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
effective as of the day and year first written above at Los Angeles, California.
SOUTHWEST WATER COMPANY
By:
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Its:
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Reviewed and Approved As To Form By:
ANGLIN, FLEWELLING, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
-------------------------------- DATE: _________ __, 2006
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attorneys for ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
DATE: _________ __, 2006
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By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Attorneys for Southwest Water Company
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