| SECURITIES AND EXCHANGE COMMISSION | |
| Washington, D.C. 20549 | |
| SCHEDULE 13D/A | |
| Under the Securities Exchange Act of 1934 | |
| (Amendment No. 2) | |
|
Cadiz Inc. | |
| (Name of Issuer) | |
|
Common Stock, par value $0.01 per share | |
| (Title of Class of Securities) | |
|
127537207 | |
| (CUSIP Number) | |
|
Marc Robert, Chief Operating Officer Water Asset Management, LLC 509 Madison Avenue, Suite 804 New York, New York 10022 (212) 754-5132
with a copy to: Aneliya Crawford, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 (212) 756-2000 | |
| (Name, Address and Telephone Number of Person | |
| Authorized to Receive Notices and Communications) | |
|
April 19, 2019 | |
| (Date of Event Which Requires Filing of This Statement) | |
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. [X]
(Page 1 of 11 Pages)
______________________________
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).
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 2 of 11 Pages |
| 1 |
NAME OF REPORTING PERSON Water Asset Management, LLC | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ¨ (b) x | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS AF | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION New York | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER 3,258,219 shares of Common Stock | ||
| 8 |
SHARED VOTING POWER -0- | |||
| 9 |
SOLE DISPOSITIVE POWER 3,258,219 shares of Common Stock | |||
| 10 |
SHARED DISPOSITIVE POWER -0- | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,258,219 shares of Common Stock | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.8% | |||
| 14 |
TYPE OF REPORTING PERSON OO, IA | |||
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 3 of 11 Pages |
| 1 |
NAME OF REPORTING PERSON TRF Master Fund (Cayman) LP | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ¨ (b) x | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS WC | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER 3,258,219 shares of Common Stock | ||
| 8 |
SHARED VOTING POWER -0- | |||
| 9 |
SOLE DISPOSITIVE POWER 3,258,219 shares of Common Stock | |||
| 10 |
SHARED DISPOSITIVE POWER -0- | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,258,219 shares of Common Stock | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.8% | |||
| 14 |
TYPE OF REPORTING PERSON PN | |||
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 4 of 11 Pages |
| 1 |
NAME OF REPORTING PERSON Anthony L. Arnerich | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ¨ (b) x | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS PF | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION United States | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER 39,300 shares of Common Stock | ||
| 8 |
SHARED VOTING POWER -0- | |||
| 9 |
SOLE DISPOSITIVE POWER 39,300 shares of Common Stock | |||
| 10 |
SHARED DISPOSITIVE POWER -0- | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 39,300 shares of Common Stock | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than one percent | |||
| 14 |
TYPE OF REPORTING PERSON IN | |||
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 5 of 11 Pages |
| 1 |
NAME OF REPORTING PERSON John A. Bohn | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ¨ (b) x | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS PF, OO | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION United States | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER 893 shares of Common Stock | ||
| 8 |
SHARED VOTING POWER -0- | |||
| 9 |
SOLE DISPOSITIVE POWER 893 shares of Common Stock | |||
| 10 |
SHARED DISPOSITIVE POWER -0- | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 893 shares of Common Stock | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than one percent | |||
| 14 |
TYPE OF REPORTING PERSON IN | |||
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 6 of 11 Pages |
| 1 |
NAME OF REPORTING PERSON Jeffrey J. Brown | |||
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP |
(a) ¨ (b) x | ||
| 3 | SEC USE ONLY | |||
| 4 |
SOURCE OF FUNDS OO | |||
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) | ¨ | ||
| 6 |
CITIZENSHIP OR PLACE OF ORGANIZATION United States | |||
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: |
7 |
SOLE VOTING POWER 3,718 shares of Common Stock | ||
| 8 |
SHARED VOTING POWER -0- | |||
| 9 |
SOLE DISPOSITIVE POWER 3,718 shares of Common Stock | |||
| 10 |
SHARED DISPOSITIVE POWER -0- | |||
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 3,718 shares of Common Stock | |||
| 12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES | ¨ | ||
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than one percent | |||
| 14 |
TYPE OF REPORTING PERSON IN | |||
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 7 of 11 Pages |
| This Amendment No. 2 (“Amendment No. 2”) amends and supplements the statement on Schedule 13D filed with the Securities and Exchange Commission (the “SEC”) on March 26, 2018 (the “Original Schedule 13D”) and Amendment No. 1 filed with the SEC on May 3, 2018 (“Amendment No. 1,” and together with the Original Schedule 13D and this Amendment No. 2, the “Schedule 13D”) with respect to the shares of Common Stock, par value $0.01 per share (“Common Stock”), of Cadiz Inc., a Delaware corporation (the “Issuer”). Capitalized terms used herein and not otherwise defined in this Amendment No. 2 shall have the meanings set forth in the Original Schedule 13D. This Amendment No. 2 amends Items 2, 3, 4, 5, 6, and 7 as set forth below. |
| Item 2. | IDENTITY AND BACKGROUND |
| Item 2(a) – (f) of the Schedule 13D is hereby amended and restated as follows: | |
| (a) |
This Schedule 13D is filed by:
(i) Water Asset Management, LLC, a New York limited liability company (“Water Asset Management”); (ii) TRF Master Fund (Cayman) LP, a Cayman Islands limited partnership (“TRF Master Fund” and together with Water Asset Management, the “WAM Parties”); (iii) Anthony Arnerich (“Mr. Arnerich”); (iv) John A. Bohn (“Mr. Bohn”); and (v) Jeffrey J. Brown (“Mr. Brown,” and together with the WAM Parties, Mr. Arnerich, and Mr. Bohn, the “Reporting Persons”). The general partner of TRF Master Fund is Water Investment Advisors (Cayman), Ltd., a Cayman Islands exempted company. Disque D. Deane, Jr. (“Mr. Deane”), Matthew J. Diserio (“Mr. Diserio”) and Marc Robert (“Mr. Robert”) are the managing members of Water Asset Management (each, a “Managing Member”).
Annex A attached to the Original Schedule 13D sets forth the information required by Instruction C of the instructions to Schedule 13D.
Any disclosures herein with respect to persons other than the Reporting Persons are made on information and belief after making inquiry to the appropriate party.
The filing of this statement shall not be deemed an admission that any Reporting Person is the beneficial owner of the securities reported herein for purposes of Section 13 of the Securities Exchange Act of 1934, as amended, or otherwise. |
| (b) | The business address of each of the WAM Parties and Managing Members is 509 Madison Avenue, Suite 804, New York, New York 10022. The business address of Mr. Arnerich is 2045 NE Martin Luther King Jr. Blvd., Portland, Oregon 97212. The business address of Mr. Bohn is 220 Montgomery Street, Penthouse 10, San Francisco, California 94104. The business address of Mr. Brown is 2721 East Coast Highway, Suite 108, Corona del Mar, California 92625. |
| (c) | The principal business of: (i) Water Asset Management is investing for funds and accounts under its management; (ii) TRF Master Fund is investing in securities; (iii) Mr. Deane is serving as the Chief Investment Officer and Co-Portfolio Manager of Water Asset Management; (iv) Mr. Diserio is serving as the President of Water Asset Management; (v) Mr. Robert is serving as the Chief Operating Officer of Water Asset Management; (vi) Mr. Arnerich is serving as the Chief Executive Officer of Arnerich Massena; (vii) Mr. Bohn is serving as the Chief Strategist for Deepwater Desal, LLC; and (viii) Mr. Brown is serving as the Chief Executive Officer of Brown Equity Partners, LLC. |
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 8 of 11 Pages |
| (d) & (e) | During the last five years, no Reporting Person or Managing Member has been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining further violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
| (f) | Water Asset Management is a limited liability company organized under the laws of the State of New York. TRF Master Fund is a Cayman Islands limited partnership. Each of the Managing Members is a United States citizen. Each of Messrs. Arnerich, Bohn, and Brown is a United States citizen. |
| Item 3. | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION |
| Item 3 of the Schedule 13D is hereby amended and restated as follows: | |
|
The WAM Parties used approximately $30,000,320 (excluding brokerage commissions) in the aggregate to purchase the shares of Common Stock reported as beneficially owned by the WAM Parties in this Schedule 13D. Funds for the purchase of the shares of Common Stock reported herein as beneficially owned by the WAM Parties were derived from the working capital of the funds and accounts under Water Asset Management’s management.
The shares of Common Stock beneficially owned by Mr. Arnerich were purchased with his personal funds in open market purchases. The aggregate purchase price of the shares of Common Stock beneficially owned by Mr. Arnerich is approximately $328,757, including brokerage commissions. Of the 893 shares of Common Stock beneficially owned by Mr. Bohn, 500 shares of Common Stock were purchased with his personal funds in open market purchases for approximately $5,230, excluding brokerage commissions, and 393 shares of Common Stock were allocated to him for his services rendered as a director of the Issuer. All 3,718 shares of Common Stock beneficially owned by Mr. Brown were allocated to him for his services rendered as a director of the Issuer, with 3,325 of the shares of Common Stock being allocated, at his election, in lieu of cash compensation for such services. |
| Item 4. | PURPOSE OF TRANSACTION |
| Item 4 of the Schedule 13D is hereby amended and supplemented by the addition of the following: |
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 9 of 11 Pages |
| On April 19, 2019, TRF Master Fund submitted to the Issuer a notice of its intent to present a proposal and nominate candidates (the “Notice”) for election as directors at the Issuer’s 2019 annual meeting of the stockholders (the “Annual Meeting”). The Notice stated TRF Master Fund’s intention to nominate five nominees—Anthony L. Arnerich, Alan L. Boyce, and Scott D. Krase along with current directors of the Issuer John A. Bohn and Jeffrey J. Brown (each, a “Nominee,” and collectively, the “Nominees”)—for election as directors at the Annual Meeting. TRF Master Fund has nominated directors Bohn and Brown in case the Issuer should fail to: (a) nominate one or both of them; or (b) include one or both of them in the Issuer’s proxy statement and form of proxy card. In addition, TRF Master Fund notified the Issuer in the Notice that it intends to present a stockholder proposal at the Annual Meeting to amend the Issuer’s bylaws to clarify the advance notice bylaw provision. |
| Item 5. | INTEREST IN SECURITIES OF THE ISSUER |
| Item 5(a) of the Schedule 13D is hereby amended and restated as follows: | |
| (a) |
See rows (11) and (13) of the cover pages to this Schedule 13D for the aggregate number of shares of Common Stock and percentages of the shares of Common Stock beneficially owned by the Reporting Persons. The percentages used in this Schedule 13D are calculated based upon a total of 25,454,266 shares of Common Stock outstanding as of March 7, 2019, as reported in the Issuer’s Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 18, 2019.
Water Asset Management serves as investment manager to a number of investment funds and manages investments for certain entities in managed accounts with respect to which it has dispositive authority and voting power over the 3,258,219 shares of Common Stock reported herein. |
| (b) | See rows (7) through (10) of the cover pages to this Schedule 13D for the number of shares of Common Stock as to which the Reporting Persons have the sole or shared power to vote or direct the vote and sole or shared power to dispose or to direct the disposition. |
| (c) | There have been no transactions in the securities of the Issuer effected by the Reporting Persons since the filing of the Schedule 13D, and in the case of each of the Nominees, in the past 60 days except for the April 1, 2019 transaction reported on Mr. Brown’s Form 4 filed with the SEC on April 3, 2019. |
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 10 of 11 Pages |
| Item 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER |
| Item 6 of the Schedule 13D is hereby amended and supplemented by the addition of the following: |
|
TRF Master Fund and WAM-Paa, LP, on the one hand, and each of Messrs. Arnerich, Boyce, and Krase, on the other hand, entered into an agreement (each, a “Nominee Agreement,” and collectively, the “Nominee Agreements”) whereby, among other things, each of them agreed to become a member of a slate of nominees and stand for election as a director of the Issuer in connection with a proxy solicitation which may be conducted by Water Asset Management and/or its affiliates in respect of the Annual Meeting. Messrs. Arnerich, Boyce, and Krase also agreed to seek the prior approval of Water Asset Management prior to any acquisition or disposition of any securities of the Issuer, which approval shall not be unreasonably withheld or delayed. This description of the Nominee Agreements is qualified in its entirety by reference to the full text of the Nominee Agreements, the form of which is attached hereto as Exhibit 3 and is incorporated herein by reference in its entirety.
On April 23, 2019, the Reporting Persons entered into a Joint Filing Agreement in which, among other things, the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Issuer to the extent required by applicable law. The Joint Filing Agreement is filed as Exhibit 4 to this Schedule 13D and is incorporated herein by reference in its entirety.
The Reporting Persons’ response to Item 4 is incorporated by reference into this Item 6.
Except as set forth herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons or between the Reporting Persons and any other person with respect to the Common Stock. |
| Item 7. | MATERIAL TO BE FILED AS EXHIBITS |
| Item 7 of the Schedule 13D is hereby amended and supplemented by the addition of the following: | |
| Exhibit 3 | Form of Nominee Agreement |
| Exhibit 4 | Joint Filing Agreement, dated April 23, 2019 |
| CUSIP No. 127537207 | SCHEDULE 13D/A | Page 11 of 11 Pages |
SIGNATURES
After reasonable inquiry and to the best of his or its knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Date: April 23, 2019
| WATER ASSET MANAGEMENT, LLC | ||
| By: | /s/ Marc Robert | |
| Name: Marc Robert | ||
| Title: Chief Operating Officer | ||
| TRF MASTER FUND (CAYMAN) LP | ||
| By: | Water Investment Advisors (Cayman), Ltd., its general partner | |
| By: | /s/ Marc Robert | |
| Name: Marc Robert | ||
| Title: Chief Operating Officer | ||
| WATER INVESTMENT ADVISORS (CAYMAN), LTD. | ||
| By: | /s/ Marc Robert | |
| Name: Marc Robert | ||
| Title: Chief Operating Officer | ||
| /s/ Anthony L. Arnerich | ||
| Name: Anthony L. Arnerich | ||
| /s/ John A. Bohn | ||
| Name: John A. Bohn | ||
| /s/ Jeffrey J. Brown | ||
| Name: Jeffrey J. Brown | ||
Exhibit 3
Form of Nominee Agreement
PERSONAL AND CONFIDENTIAL
[Nominee]
[Nominee Address]
[Nominee Address]
[Nominee Address]
Dear Mr. [Nominee]:
This will confirm our understanding as of April [·], 2019, as follows:
You agree that you are willing, should we so elect, to become a member of a slate of nominees (the “Slate”) to be proposed by Water Asset Management, LLC or an affiliate thereof (the “Soliciting Party”), to stand for election as a director of Cadiz Inc., a Delaware corporation (the “Company”), in connection with a proxy solicitation (the “Proxy Solicitation”) to be conducted by the undersigned and certain other parties, or appointment or election by other means. You further agree to serve as a director of the Company if so elected or appointed. The undersigned agrees on behalf of the Soliciting Party to pay the costs of the Proxy Solicitation.
You understand that it may be difficult, and perhaps impossible, to replace a nominee who has agreed to serve on the Slate and, if elected, as a director of the Company if such nominee later changes his mind and determines not to serve on the Slate or, if elected, as a director of the Company. Accordingly, the undersigned is relying upon your agreement to serve on the Slate and, if elected, as a director of the Company. In that regard, you are being supplied with a questionnaire (the “Questionnaire”) in which you will provide the undersigned with information necessary for the Soliciting Party to make appropriate disclosure to the Company and to use in creating the Proxy Solicitation materials to be sent to stockholders of the Company and filed with the Securities and Exchange Commission in connection with the Proxy Solicitation.
You agree that (i) you will promptly complete, execute and return the Questionnaire; (ii) your responses in the Questionnaire will be true, complete and correct in all respects; and (iii) you will provide any additional information as may be requested by the undersigned. In addition, you agree that, concurrently with your execution of this letter, you will execute and return the enclosed instrument confirming that you consent to being nominated for election as a director of the Company and, if elected, consent to serving as a director of the Company. Upon being notified that we have chosen you, we may forward your consent and your completed Questionnaire (or summary thereof) to the Company, and we may at any time, in our discretion, disclose such information, as well as the existence and contents of this letter. Furthermore, you understand that we may elect, at our expense, to conduct a background and reference check on you and you agree to complete and execute any necessary authorization forms or other documents required in connection therewith.
You further agree that (i) you will treat confidentially all information relating to the Proxy Solicitation which is non-public, confidential or proprietary in nature; (ii) neither you nor any of your affiliates will acquire or dispose of any securities of the Company without the prior approval of the undersigned, which approval shall not be unreasonably withheld or delayed; (iii) you will not issue, publish or otherwise make any public statement or any other form of communication relating to the Company or the Proxy Solicitation without the prior approval of the undersigned; and (iv) you will not agree to serve, or agree to be nominated to stand for election by the Company or any other stockholder of the Company (other than the undersigned), as a director of the Company without the prior approval of the undersigned.
The undersigned agrees on behalf of the Soliciting Party that the undersigned will defend, indemnify and hold you harmless from and against any and all losses, claims, damages, penalties, judgments, awards, settlements, liabilities, costs, expenses and disbursements (including, without limitation, reasonable attorneys’ fees, costs, expenses and disbursements) incurred by you in the event that you become a party, or are threatened to be made a party, to any civil, criminal, administrative or arbitrative action, suit or proceeding, and any appeal thereof, (i) relating to your role as a nominee for director of the Company on the Slate, or (ii) otherwise arising from or in connection with or relating to the Proxy Solicitation. Your right of indemnification hereunder shall continue after the delivery of proxies to the Company pursuant to the Proxy Solicitation (the “Delivery”) has taken place but only for events that occurred prior to the Delivery and subsequent to the date hereof. Anything to the contrary herein notwithstanding, the undersigned is not indemnifying you for any action taken by you or on your behalf that occurs prior to the date hereof or subsequent to the conclusion of the Proxy Solicitation or such earlier time as you are no longer a nominee on the Slate or for any actions taken by you as a director of the Company, if you are so elected or appointed.
Nothing herein shall be construed to provide you with indemnification (i) if you are found to have engaged in a violation of any provision of state or federal law in connection with the Proxy Solicitation, unless you demonstrate that your action was taken in good faith and in a manner you reasonably believed to be in or not opposed to the best interests of electing the Slate; (ii) if you acted in a manner that constitutes gross negligence or willful misconduct; or (iii) if you provided false or misleading information, or omitted material information, in the Questionnaire or otherwise in connection with the Proxy Solicitation. You shall promptly notify the undersigned in writing in the event of any third-party claims actually made against you or known by you to be threatened if you intend to seek indemnification hereunder in respect of such claims. In addition, upon your delivery of notice with respect to any such claim, the undersigned shall have the option, at any time, to assume control of the defense of such claim with counsel chosen by the undersigned. The undersigned shall not be responsible for any settlement of any claim against you covered by this indemnity without its prior written consent. However, the undersigned may not enter into any settlement of any such claim without your consent unless such settlement includes (i) no admission of liability or guilt by you and (ii) a release of you from any and all liability in respect of such claim.
Each of us recognizes that should you be elected to the Board of Directors of the Company, all of your activities and decisions as a director will be governed by applicable law and subject to your fiduciary duties, as applicable, to the Company and to the stockholders of the Company and, as a result, that there is, and can be, no agreement between you and the undersigned that governs the decisions which you will make as a director of the Company.
This agreement shall automatically terminate on the earliest to occur of (i) the conclusion of the Company’s next annual or special meeting of shareholders, as applicable (regardless of the outcome); (ii) your election or appointment to the Board of Directors of the Company; or (iii) our communication to you of our intent not to proceed with the Proxy Solicitation.
This letter sets forth the entire agreement between the undersigned and you as to the subject matter contained herein, and cannot be amended, modified or terminated except by a writing executed by the undersigned and you. This letter shall be governed by the laws of the State of New York, without giving effect to principles of conflicts of law.
Should the foregoing agree with your understanding, please so indicate in the space provided below, whereupon this letter will become a binding agreement between us.
Very truly yours,
| TRF MASTER FUND (CAYMAN) LP | |
| Water Investment Advisors (Cayman), Ltd., its General Partner | |
| Name: Marc Robert | |
| Title: Chief Operating Officer | |
| WAM-Paa, LP | |
| WAM-Paa GP LLC, its General Partner | |
| Name: Marc Robert | |
| Title: Managing Member | |
Agreed to and Accepted
as of the date set forth above:
By:
Name: [Nominee]
Exhibit 4
JOINT FILING AGREEMENT
PURSUANT TO RULE 13d-1(k)
The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning him or it contained herein and therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that he or it knows or has reason to believe that such information is inaccurate.
DATE: April 23, 2019
| WATER ASSET MANAGEMENT, LLC | ||
| By: | /s/ Marc Robert | |
| Name: Marc Robert | ||
| Title: Chief Operating Officer | ||
| TRF MASTER FUND (CAYMAN) LP | ||
| By: | Water Investment Advisors (Cayman), Ltd., its general partner | |
| By: | /s/ Marc Robert | |
| Name: Marc Robert | ||
| Title: Chief Operating Officer | ||
| WATER INVESTMENT ADVISORS (CAYMAN), LTD. | ||
| By: | /s/ Marc Robert | |
| Name: Marc Robert | ||
| Title: Chief Operating Officer | ||
| /s/ Anthony L. Arnerich | ||
| Name: Anthony L. Arnerich | ||
| /s/ John A. Bohn | ||
| Name: John A. Bohn | ||
| /s/ Jeffrey J. Brown | ||
| Name: Jeffrey J. Brown | ||