EXHIBIT 4.23
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THE WARRANTS AND WARRANT SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND THE WARRANTS AND THE
WARRANT SHARES MAY NOT BE SOLD UNLESS THERE IS A REGISTRATION
STATEMENT IN EFFECT COVERING THE WARRANTS AND WARRANT SHARES OR
THERE IS AVAILABLE AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OF 1933 AS AMENDED.
Void after 5:00 p.m. New York Time, on the Expiration Date.
Warrant to Purchase 100,000 Shares of Common Stock.
AMENDED AND RESTATED
WARRANT TO PURCHASE COMMON STOCK
OF
CADIZ INC.
(Fourth Warrant Certificate)
This is to Certify that, FOR VALUE RECEIVED, Middendbank Curacao,
N.V. ("Middenbank"), or assigns ("Holder"), is entitled to purchase,
subject to the provisions of this Warrant, from Cadiz Inc., a Delaware
corporation ("Company"), 100,000 shares of Common Stock, $0.01 par
value, of the Company ("Common Stock") at a price of Four Dollars and
Seventy-Five Cents ($4.75) per share at any time during the period from
April 5, 1999 (the "Initial Exercise Date") to the fifth anniversary of
the Initial Exercise Date (the "Expiration Date"), but not later than
5:00 p.m., New York Time, on the Expiration Date. The shares of Common
Stock (or other stock or securities) deliverable upon such exercise are
hereinafter sometimes referred to as "Warrant Shares" and the exercise
price of each share of Common Stock (as such price may be adjusted from
time to time as provided herein) is hereinafter sometimes referred to as
the "Exercise Price".
This Amended and Restated Warrant is being issued for the purpose
of modifying the Exercise Price as set forth in that certain Amended and
Restated Warrant (the "Fourth Warrant Certificate") for 100,000 shares
of Common Stock issued by the Company on otherwise identical terms in
connection with that certain Third Global Amendment Agreement by and
between the Company, for itself and as successor in interest to Cadiz
Valley Development Corporation, and ING Baring (U.S.) Capital LLC
("ING") dated as of December 22, 1999. This Amended and Restated
Warrant supersedes and replaces the Fourth Warrant Certificate.
(a) EXERCISE OF WARRANT. Subject to the provisions of Section (k)
hereof, this Warrant may be exercised in whole or in part at any time or
from time to time on or after the Initial Exercise Date and until the
Expiration Date, or if either such day is a day on which banking
institutions in the State of New York are authorized by law to close,
then on the next succeeding day which shall not be such a day, by
presentation and surrender hereof to the Company at its principal
office, or at the office of its stock transfer agent, if any, with the
Purchase Form annexed hereto duly executed and accompanied by payment of
the Exercise Price for the number of Warrant Shares specified in such
form. The Holder may exercise this Warrant, in whole or in part,
without the payment of any cash or other property, by presentation and
surrender of this Warrant to the Company at its principal office or at
the office of its stock transfer agent, if any, with the Purchase Form
duly executed and accompanied by a written request from the Holder
instructing the Company to issue to the Holder a number of Warrant
Shares equal to the product of (1) a fraction, (i) the numerator of
which shall be the excess of the current market price (as defined in
Section (f)(8) below) of the Common Stock on the date preceding the date
of such exercise of the Warrant over the then Exercise Price per Warrant
Share and (ii) the denominator of which shall be the current market
price (as defined in Section (f)(8) below) of the Common Stock on such
date, times (2) the number of Warrant Shares as to which the Warrant is
being exercised. If this Warrant should be exercised in part only, the
Company shall, upon surrender of this Warrant for cancellation, execute
and deliver a new Warrant evidencing the rights of the Holder thereof to
purchase the balance of the Warrant Shares purchasable thereunder. Upon
receipt by the Company of this Warrant at its office, or by the stock
transfer agent of the Company at its office, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the
shares of Common Stock issuable upon such exercise, notwithstanding that
the stock transfer books of the Company shall then be closed or that
certificates representing such shares of Common Stock shall not then be
actually delivered to the Holder. The Company shall pay all expenses,
transfer taxes and other charges payable in connection with the
preparation, issue and delivery of stock certificates under this Section
(a), except that, in case such stock certificates shall be registered in
a name or names other than the name of the holder of this Warrant, all
stock transfer taxes which shall be payable upon the issuance of such
stock certificate or certificates shall be paid by the Holder at the
time of delivering the Purchase Form.
(b) RESERVATION OF SHARES. The Company hereby agrees that at all
times following the Initial Exercise Date there shall be reserved for
issuance and/or delivery upon exercise of this Warrant such number of
shares of its Common Stock (or other stock or securities deliverable
upon exercise of this Warrant) as shall be required for issuance and
delivery upon exercise of this Warrant. All shares of Common Stock
issuable upon the exercise of this Warrant shall be duly authorized,
validly issued, fully paid and nonassessable and free and clear of all
liens and other encumbrances.
(c) FRACTIONAL SHARES. No fractional shares or script
representing fractional shares shall be issued upon the exercise of this
Warrant. With respect to any fraction of a share called for upon any
exercise hereof, the Company shall pay to the Holder an amount in cash
equal to such fraction multiplied by the current market value of a
share, determined as follows:
(1) If the Common Stock is listed on a National Securities
Exchange or admitted to unlisted trading privileges on such
exchange or listed for trading on the Nasdaq system, the current
market value shall be the last reported sale price of the Common
Stock on such exchange or system on the last business day prior to
the date of exercise of this Warrant or if no such sale is made on
such day, the average closing bid and asked prices for such day on
such exchange or system; or
(2) If the Common Stock is not so listed or admitted to
unlisted trading privileges, the current market value shall be the
mean of the last reported bid and asked prices reported by the
National Quotation Bureau, Inc. on the last business day prior to
the date of the exercise of this Warrant; or
(3) If the Common Stock is not so listed or admitted to
unlisted trading privileges and bid and asked prices are not so
reported, the current market value shall be an amount not less than
the book value thereof as at the end of the most recent fiscal year
of the Company ending prior to the date of the exercise of the
Warrant, determined in good faith and in such reasonable manner as
may be prescribed by the Board of Directors of the Company, and
reasonably acceptable to the Holder.
(d) EXCHANGE, TRANSFER, ASSIGNMENT OR LOSS OF WARRANT. This
Warrant is exchangeable, without expense, at the option of the Holder,
upon presentation and surrender hereof to the Company or at the office
of its stock transfer agent, if any, for other warrants of different
denominations entitling the holder thereof to purchase in the aggregate
the same number of shares of Common Stock purchasable hereunder. This
Warrant is transferable and may be assigned or hypothecated, in whole or
in part, at any time and from time to time from the date hereof.
Subject to the provisions of Section (k), upon surrender of this Warrant
to the Company at its principal office or at the office of its stock
transfer agent, if any, with the Assignment Form annexed hereto duly
executed and funds sufficient to pay any transfer tax, the Company
shall, without charge, execute and deliver a new Warrant registered in
the name of the assignee named in such instrument of assignment and this
Warrant shall promptly be canceled. This Warrant may be divided or
combined with other warrants which carry the same rights upon
presentation hereof at the principal office of the Company or at the
office of its stock transfer agent, if any, together with a written
notice specifying the names and denominations in which new Warrants are
to be issued and signed by the Holder hereof. The term "Warrant" as
used herein includes any Warrants into which this Warrant may be divided
or exchanged. Upon receipt by the Company of evidence satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant, and in
the case of loss, theft or destruction, of reasonably satisfactory
indemnification and upon surrender and cancellation of this Warrant, if
mutilated, the Company will execute and deliver a new Warrant of like
tenor and date. Any such new Warrant executed and delivered shall
constitute an additional contractual obligation on the part of the
Company, whether or not this Warrant so lost, stolen, destroyed, or
mutilated shall be at any time enforceable by anyone.
(e) RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof,
be entitled to any rights of a shareholder in the Company, either at law
or equity, and the rights of the Holder are limited to those expressed
in the Warrant and are not enforceable against the Company except to the
extent set forth herein. Furthermore, the Holder by acceptance hereof,
consents to and agrees to be bound by and to comply with all the
provisions of this Warrant, including, without limitation, all the
obligations imposed upon the holder hereof by Section (k). In addition,
the holder of this Warrant, by accepting the same, agrees that the
Company and the transfer agent may deem and treat the person in whose
name this Warrant is registered as the absolute, true and lawful owner
for all purposes whatsoever, and neither the Company nor the transfer
agent shall be affected by any notice to the contrary.
(f) ANTI-DILUTION PROVISIONS. The Exercise Price and the number
and kind of securities purchasable upon the exercise of this Warrant
(the "Warrant Shares") shall be subject to adjustment from time to time
upon the happening of certain events as hereinafter provided. The
Exercise Price in effect at any time and the Warrant Shares shall be
subject to adjustment as follows:
(1) In case the Company shall (i) pay a dividend or make a
distribution on its shares of Common Stock in shares of Common
Stock, (ii) subdivide or reclassify its outstanding Common Stock in
shares of Common Stock into a greater number of shares, or (iii)
combine or reclassify its outstanding Common Stock into a smaller
number of shares, then the Exercise Price in effect at the time of
the record date for such dividend or distribution or of the
effective date of such subdivision, combination or reclassification
shall be adjusted so that such Exercise Price shall equal the price
determined by multiplying the Exercise Price in effect immediately
prior to such record date or effective date by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding on such record date or effective date, and the
denominator of which is the number of shares of Common stock
outstanding immediately after such dividend, distribution,
subdivision, combination or reclassification. For example, if the
Company declares a 2 for 1 stock dividend or stock split and the
Exercise Price immediately prior to such event was $8.00 per share,
the adjusted Exercise Price immediately after such event would be
$4.00 per share.
Such adjustment shall be made successively whenever any event
listed in this Subsection (1) shall occur.
(2) In case the Company shall hereafter issue rights or
warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) at a price (or having a conversion
price per share) less than the current market price of the Common
Stock (as defined in Subsection (8) below) on the record date
mentioned below, then the Exercise Price shall be adjusted so that
the same shall equal the price determined by multiplying the
Exercise Price in effect immediately prior to the record date
mentioned below by a fraction, the numerator of which shall be the
sum of the number of shares of Common Stock outstanding on the
record date mentioned below and the number of additional shares of
Common Stock which the aggregate offering price of the total number
of shares of Common Stock so offered (or the aggregate conversion
price of the convertible securities so offered) would purchase at
such current market price per share of the Common Stock, and the
denominator of which shall be the sum of the number of shares of
Common Stock outstanding on such record date and the number of
additional shares of Common Stock offered for subscription or
purchase (or into which the convertible securities so offered are
convertible). Such adjustment shall be made successively whenever
such rights or warrants are issued and shall become effective
immediately after the record date for the determination of
shareholders entitled to receive such rights or warrants; and to the
extent that shares of Common Stock are not delivered (or securities
convertible into Common Stock are not delivered) after the
expiration of such rights or warrants the Exercise Price shall be
readjusted to the Exercise Price which would then be in effect had
the adjustments made upon the issuance of such rights or warrants
been made upon the basis of delivery of only the number of shares of
Common Stock (or securities convertible into Common Stock) actually
delivered.
(3) In case the Company shall hereafter distribute to all
holders of its Common Stock evidences of its indebtedness or assets
(excluding regular cash dividends or distributions and dividends or
distributions referred to in Subsection (1) above) or subscription
rights or warrants (excluding those referred to in Subsection (2)
above), then in each such case the Exercise Price in effect
thereafter shall be determined by multiplying the Exercise Price in
effect immediately prior thereto by a fraction, the numerator of
which shall be the total number of shares of Common Stock
outstanding multiplied by the current market price per share of
Common Stock (as defined in Subsection (8) below), less the
aggregate fair market value (as determined in good faith by the
Company's Board of Directors and reasonably acceptable to the Holder
) of said assets or evidences of indebtedness so distributed or of
such rights or warrants, and the denominator of which shall be the
total number of shares of Common Stock outstanding multiplied by
such current market price per share of Common Stock.
Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after
the record date for the determination of shareholders entitled to
receive such distribution.
(4) In case the Company shall issue shares of its Common Stock
[excluding shares issued (i) in any of the transactions described in
Subsection (1) above, (ii) upon exercise of options granted to the
Company's employees under a plan or plans adopted by the Company's
Board of Directors and approved by its shareholders, if such shares
would otherwise be included in this Subsection (4), (but only to the
extent that the aggregate number of shares excluded hereby and
issued after the date hereof, shall not exceed 5% of the Company's
Common Stock outstanding at the time of any issuance), (iii) upon
exercise of options and warrants outstanding at the date hereof, and
this Warrant, (iv) upon the exercise of any convertible security as
to which the Exercise Price has already been adjusted pursuant to
Subsection (5) below, and (v) to shareholders of any corporation
which merges into the Company in proportion to their stock holdings
of such corporation immediately prior to such merger, upon such
merger, or issued in a bona fide public offering pursuant to a firm
commitment underwriting, but only if no adjustment is required
pursuant to any other specific subsection of this Section (f)
(without regard to Subsection (9) below) with respect to the
transaction giving rise to such rights] for a consideration per
share less than the current market price per share defined in
Subsection (8) below, then on the date the Company fixes the
offering price of such additional shares, the Exercise Price shall
be adjusted immediately thereafter so that it shall equal the price
determined by multiplying the Exercise Price in effect immediately
prior thereto by a fraction, the numerator of which shall be the sum
of the number of shares of Common Stock outstanding immediately
prior to the issuance of such additional shares and the number of
shares of Common Stock which the aggregate consideration received
[determined as provided in Subsection (7) below] for the issuance of
such additional shares would purchase at such current market price
per share of Common Stock, and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after the
issuance of such additional shares.
Such adjustment shall be made successively whenever such an
issuance is made; provided, however, that no such adjustment shall
be made unless, in such issuance, the Company issues shares of
Common Stock in an amount which, when combined with all other
issuances of Common Stock after the date hereof and all other
issuances of securities convertible into or exchangeable for its
Common Stock after the date hereof, which securities are excluded
from Subsections (4) or (5) by operation of this proviso or the
proviso in the last section of Subsection (5), would exceed 20% of
the Company's Common Stock outstanding immediately prior to the time
of such issuance.
(5) In case the Company shall issue any securities convertible
into or exchangeable for its Common Stock [excluding securities
issued in transactions described in Subsections (2) and (3) above]
for a consideration per share of Common Stock initially deliverable
upon conversion or exchange of such securities [determined as
provided in Subsection (7) below] less than the current market price
per share [as defined in Subsection (8) below] in effect immediately
prior to the issuance of such securities, then the Exercise Price
shall be adjusted immediately thereafter so that it shall equal the
price determined by multiplying the Exercise Price in effect
immediately prior thereto by a fraction, the numerator of which
shall be the sum of the number of shares of Common Stock outstanding
immediately prior to the issuance of such securities and the number
of shares of Common Stock which the aggregate consideration received
[determined as provided in Subsection (7) below] for such securities
would purchase at such current market price per share of Common
Stock, and the denominator of which shall be the sum of the number
of shares of Common Stock outstanding immediately prior to such
issuance and the maximum number of shares of Common Stock of the
Company deliverable upon conversion of or in exchange for such
securities at the initial conversion or exchange price or rate.
Such adjustment shall be made successively whenever such an
issuance is made; provided, however, that no such adjustment shall
be made unless, in such issuance, the Company issues securities
convertible into or exchangeable for a number of shares of its
Common Stock in an amount which, when combined with all other
issuances of Common Stock after the date hereof and all other
issuances of securities convertible into or exchangeable for its
Common Stock after the date hereof, which securities are excluded
from Subsections (4) or (5) by operation of this proviso or the
proviso in the last section of Subsection (4), would exceed 20% of
the Company's Common Stock outstanding immediately prior to the time
of such issuance.
(6) Whenever the Exercise Price payable upon exercise of each
Warrant is adjusted pursuant to Subsections (1), (2), (3), (4) and
(5) above, the number of Warrant Shares purchasable upon exercise of
this Warrant shall simultaneously be adjusted by multiplying the
number of Warrant Shares issuable upon exercise of this Warrant
immediately prior to such adjustment by the Exercise Price in effect
immediately prior to such adjustment and dividing the product so
obtained by the Exercise Price, as adjusted.
(7) For purposes of any computation respecting consideration
received pursuant to Subsections (4) and (5) above, the following
shall apply:
(A) in the case of the issuance of shares of Common
Stock for cash, the consideration shall be the amount of such
cash, provided that in no case shall any deduction be made for
any commissions, discounts or other expenses incurred by the
Company for any underwriting of the issue or otherwise in
connection therewith:
(B) in the case of the issuance of shares of Common
Stock for a consideration in whole or in part other than cash,
the consideration other than cash shall be deemed to be the
fair market value thereof as determined in good faith by the
Board of Directors of the Company (irrespective of the
accounting treatment thereof) and reasonably acceptable to the
Holder; and
(C) in the case of the issuance of securities
convertible into or exchangeable for shares of Common Stock,
the aggregate consideration received therefor shall be deemed
to be the consideration received by the Company for the
issuance of such securities plus the additional minimum
consideration, if any, to be received by the Company upon the
conversion or exchange thereof [the consideration in each case
to be determined in the same manner as provided in clauses (A)
and (B) of this Subsection (7)].
(8) For the purpose of any computation under Subsections (2),
(3), (4) and (5) above, the current market price per share of Common
Stock at any date shall be deemed to be the average of the daily
closing prices for 30 consecutive business days before such date.
The closing price for each day shall be the last sale price regular
way or, in case no such reported sale takes place on such day, the
average of the last reported bid and asked prices regular way, in
either case on the principal national securities exchange on which
the Common Stock is admitted to trading or listed, or if not listed
or admitted to trading on such exchange, the average of the last
reported bid and asked prices as reported by Nasdaq, or other
similar organization if Nasdaq is no longer reporting such
information, of if not so available, the fair market price as
determined in good faith by the Board of Directors and reasonably
acceptable to the Holder.
(9) No adjustment in the Exercise Price shall be required
unless such adjustment would require an increase or decrease of at
least five cents ($0.05) in such price; provided, however, that any
adjustments which by reason of this Subsection (9) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment required to be made hereunder. All
calculations under this Section (f) shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
Anything in this Section (f) to the contrary notwithstanding, the
Company shall be entitled, but shall not be required, to reduce the
Exercise Price, in addition to those changes required by this
Section (f), as it, in its sole discretion, shall determine to be
advisable in order that any dividend or distribution in shares of
Common Stock, subdivision, reclassification or combination of Common
Stock, issuance of warrants to purchase Common Stock or distribution
or evidences of indebtedness or other assets (excluding cash
dividends) referred to hereinabove in this Section (f) hereafter
made by the Company to the holders of its Common Stock shall not
result in any tax to such holders of its Common Stock or securities
convertible into Common Stock.
(10) In the event that at any time, as a result of an
adjustment made pursuant to Subsection (1) above, the Holder of this
Warrant thereafter shall become entitled to receive any shares of
the Company, other than Common Stock, thereafter the number of such
other shares so receivable upon exercise of this Warrant shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to
the Common Stock contained in Subsections (1) to (9), inclusive
above. The Company may retain a firm of independent certified public
accountants selected by the Board of Directors (who may be the
regular accountants employed by the Company) to make any computation
required by Section (f), and a certificate signed by such firm shall
be conclusive evidence of the correctness of such adjustment absent
manifest error or negligence.
(11) Irrespective of any adjustments in the Exercise Price or
the number or kind of shares purchasable upon exercise of this
Warrant, Warrants theretofore or thereafter issued may continue to
express the same price and number and kind of shares as are stated
in this Warrant.
(g) OFFICER'S CERTIFICATE. Whenever the Exercise Price or number
of Warrant Shares shall be adjusted as required by the provisions of the
foregoing Section, the Company shall forthwith file in the custody of
its Secretary or an Assistant Secretary at its principal office and with
its stock transfer agent, if any, an officer's certificate showing the
adjusted Exercise Price or number of Warrant Shares determined as herein
provided, setting forth in reasonable detail the facts requiring such
adjustment, including a statement of the number of additional shares of
Common Stock, if any, and such other facts as shall be necessary to show
the reason for and the manner of computing such adjustment. Each such
officer's certificate shall be made available at all reasonable times
for inspection by the Holder or any holder of a Warrant executed and
delivered pursuant to Sections (a) and (d) and the Company shall,
forthwith after each such adjustment, mail a copy by certified mail of
such certificate to such Holder or any such holder.
(h) NOTICES TO WARRANT HOLDERS. So long as this Warrant shall be
outstanding, (i) if the Company shall pay any dividend or make any
distribution upon the Common Stock or (ii) if the Company shall offer to
the holders of Common Stock for subscription or purchase by them any
share of or class of its capital stock or any other rights or (iii) if
any capital reorganization of the Company, reclassification of the
capital stock of the Company, consolidation or merger of the Company
with or into another entity, sale, lease, or transfer of all or
substantially all of the property and assets of the Company to another
entity, or voluntary or involuntary dissolution, liquidation or winding
up of the Company shall be effected, then in any such case, the Company
shall cause to be mailed by certified mail to the Holder, at least
fifteen days prior the record date specified in (x) or (y) below, as the
case may be, a notice containing a brief description of the proposed
action and stating the date on which (x) a record is to be taken for the
purpose of such dividend, distribution or offer of rights, or (y) such
reclassification, reorganization, consolidation, merger, conveyance,
lease, transfer, sale dissolution, liquidation or winding up is to take
place and the date, if any is to be fixed, as of which the holders of
Common Stock or other securities shall be entitled to receive cash or
other property deliverable upon such reclassification, reorganization,
consolidation, merger, conveyance, lease, transfer, sale, dissolution,
liquidation or winding up.
(i) RECLASSIFICATION, REORGANIZATION OR MERGER. In case of any
reclassification, capital reorganization or other change of outstanding
shares of Common Stock of the Company, or in case of any consolidation
or merger of the Company with or into another entity (other than a
merger with a subsidiary in which merger the Company is the continuing
corporation and which does not result in any reclassification, capital
reorganization or other change of outstanding shares of Common Stock of
the class issuable upon exercise of this Warrant) or in case of any
sale, lease, or conveyance to another entity of all or substantially all
of the property and assets of the Company, the Company shall, as a
condition precedent to such transaction, cause effective provisions to
be made so that such Holder shall have the right thereafter by
exercising this Warrant at any time prior to the expiration of the
Warrant, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such reclassification, capital
reorganization and other change, consolidation, merger, sale, lease or
conveyance by a holder of the number of shares of Common Stock which
might have been purchased upon exercise of this Warrant immediately
prior to such reclassification, change, consolidation, merger, sale,
lease or conveyance. Any such provision shall include provision for
adjustments which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Warrant. The Company shall not
effect any such reorganization, consolidation, merger, sale or
conveyance (i) unless prior to or simultaneously with the consummation
thereof the survivor or successor corporation (if other than the
Company) resulting from such reorganization, consolidation or merger or
the corporation purchasing such assets shall assume by written
instrument executed and sent to each holder of this Warrant, the
obligation to deliver to such holder such shares of stock, securities or
assets as, in accordance with the foregoing provisions, such holder may
be entitled to receive, and containing the express assumption by such
successor corporation of the due and punctual performance and observance
of every provision herein to be performed and observed by the Company
and of all liabilities and obligations of the Company hereunder, and
(ii) in which the Company, as opposed to another party to the
reorganization, consolidation, merger, sale or conveyance, shall be
required under any circumstances to make a cash payment at any time to
the holders of this Warrant. The foregoing provisions of this Section
(i) shall similarly apply to successive reclassifications, capital
reorganizations, and changes of shares of Common Stock and to successive
consolidations, mergers, sales, leases or conveyances. In the event
that in connection with any such capital reorganization or
reclassification, consolidation, merger, sale, lease or conveyance,
additional shares of Common Stock shall be issued in exchange,
conversion, substitution, or payment, in whole or in part, for a
security of the Company other than Common Stock, any such issue shall be
treated as an issue of Common Stock covered by the provisions of
Subsection (1) of Section (f) hereof.
(j) REGISTRATION UNDER THE SECURITIES ACT OF 1933.
(1) The Company shall advise the Holder of this Warrant or of
the Warrant Shares or any then holder of Warrants or Warrant Shares
(such persons being collectively referred to herein as "holders") by
written notice at least four weeks prior to the filing of any new
registration statement under the Securities Act of 1933, as amended,
or the Rules and Regulations promulgated thereunder (such Act and
Rules and Regulations being hereinafter referred to as the "Act")
covering securities of the Company and will for a period ending on
the second anniversary of the Initial Exercise Date and commencing
as of the date hereof, upon the request of any such holder, include
in any such registration statement such information as may be
required to permit a public offering of the Warrants and the Warrant
Shares. The Company shall supply prospectuses, use its best efforts
to cause the registration statement to become effective and to
qualify the Warrants and/or the Warrant Shares for sale in such
states as any such holder designates and furnish indemnification in
the manner as set forth in Subsection (2)(B) of this Section (j).
Such holders shall furnish information and indemnification as set
forth in Subsection (2)(B) of this Section (j).
(2) The following provision of this Section (j) shall also be
applicable:
(A) The Company shall bear the entire cost and
expense of any registration of securities initiated by it under
Subsection (1) of this Section (j) notwithstanding that
Warrants and/or Warrant Shares subject to this Warrant may be
included in any such registration. Any holder whose Warrants
and/or Warrant Shares are included in any such registration
statement pursuant to this Section (j) shall, however, bear the
fees of such holder's own counsel and any registration fees,
transfer taxes or underwriting discounts or commissions
applicable to the Warrant Shares sold by such holder pursuant
thereto.
(B) (i) The Company shall indemnify and hold
harmless each such holder and each underwriter, within the
meaning of the Act, who may purchase from or sell for any such
holder any Warrants and/or Warrant Shares (in the case of
indemnification of such underwriter) from and against any and
all losses, claims, damages and liabilities ("Losses") arising
out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration
statement or any post-effective amendment thereto under the Act
or any prospectus included therein required to be filed or
furnished by reason of this Section (j) or arising out of or
based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as
such Losses arise out of or are based upon any such untrue
statement or alleged untrue statement or omission or alleged
omission based upon information furnished or required to be
furnished in writing to the Company by such holder, in the case
of indemnification of such holder, or underwriter, in the case
of indemnification of such underwriter, expressly for use
therein, which indemnification shall include each person, if
any, who controls any such holder or underwriter within the
meaning of such Act; provided, however, that the Company shall
not be obliged so to indemnify any such holder or underwriter
or controlling person unless such holder or underwriter shall
at the same time indemnify, severally and not jointly, the
Company, its directors, each officer signing the related
registration statement and each person, if any, who controls
the Company within the meaning of such Act, from and against
any and all Losses arising out of or based upon any untrue
statement or alleged untrue statement of a material fact
contained in any registration statement or any prospectus
required to be filed or furnished by reason of this Section (j)
or arising out of or based upon any omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, insofar as such
Losses arise out of or are based upon any untrue statement or
alleged untrue statement or omission made in conformity with
information furnished in writing to the Company by any such
holder or underwriter expressly for use therein.
(ii) If the indemnity obligation provided for
above is unavailable or insufficient to hold harmless an
indemnified party in respect of any Losses, then the
indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such Losses in
such proportion as is appropriate to reflect the relative fault
of the indemnifying party on the one hand and the indemnified
party on the other hand in connection with statements or
omissions which resulted in such Losses, as well as any other
relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates
to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it
would not be just and equitable if contributions pursuant to
this paragraph were to be determined by pro rata allocation or
by any other method of allocation which does not take account
of the equitable considerations referred to in the previous
sentence.
(C) Notwithstanding anything herein to the contrary,
the Holder hereof shall have no rights to have the Warrants or
Warrant Shares registered if in the opinion of either counsel
for the Company, knowledgeable and experienced in Federal
securities matters (said counsel to be acceptable to the Holder
hereof in the reasonable judgement of such Holder), or counsel
for the Holder hereof, knowledgeable and experienced in Federal
securities matters (said counsel to be acceptable to the
Company in the Company's reasonable judgement), the Holder
hereof may lawfully sell publicly, at the time and in the
manner the Holder hereof proposes to sell the Warrants or the
Warrant Shares, all of the securities proposed to be sold
without registering the sale under the Act, whether pursuant to
an exemption from registration available under Section 4(1) of
the Act, Rule 144 or Rule 144(k) under the Act, or otherwise.
(D) The Company will (a) file reports in compliance
with the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (b) comply with all rules and regulations of
the Securities and Exchange Commission (the "Commission")
applicable in connection with the use of Rule 144 under the Act
and take such other actions and furnish the Holder with such
other information as such Holder may request in order to avail
itself of such rule or any other rule or regulation of the
Commission allowing such Holder to sell any Warrants or Warrant
Shares without registration, and (c) at its expense, upon the
request of the Holder, deliver to such Holder a certificate,
signed by the Company's principal financial officer, stating
(i) the Company's name, address and telephone number (including
area code), (ii) the Company's Internal Revenue Service
identification number, (iii) the Company's Commission file
number, (iv) the number of shares of each class of stock
outstanding as shown by the most recent report or statement
published by the Company, and (v) whether the Company has filed
the reports required to be filed under the Exchange Act for a
period of at least ninety (90) days prior to the date of such
certificate and in addition has filed the most recent annual
report required to be filed thereunder. If at any time the
Company is not required to file reports in compliance with
either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, upon the written request of the
Holder, make available adequate current public information with
respect to the Company within the meaning of paragraph (c)(2)
of Rule 144 under the Act.
(k) EXERCISE AND TRANSFER TO COMPLY WITH THE SECURITIES ACT OF
1933. The Holder of this Warrant and any transferee hereof, by their
acceptance hereof, hereby agree that: (a) the Warrants being acquired
hereunder are being purchased for investment purposes only and not with
a view to distribution and will not be transferred unless registered or
unless there is an exemption available from the registration
requirements of the Act, which exemption has been established to the
reasonable satisfaction of the Company; (b) no public distribution of
the Warrants or Warrant Shares will be made in violation of the
provisions of the Act or any applicable state laws; and (c) during such
period as delivery of a prospectus with respect to the Warrants or
Warrant Shares may be required by the Act, no public distribution of the
Warrants or Warrant Shares will be made in a manner or on terms
different from those set forth in, or without delivery of, a prospectus
then meeting the requirements of Section 10 of the Act and in compliance
with all applicable state laws. The Holder of this Warrant and any such
transferee hereof further agree that if any public distribution of any
of the Warrants or Warrant shares is proposed to be made by them
otherwise than by delivery of a prospectus meeting the requirements of
Section 10 of the Act, which action shall be taken only after submission
to the Company of an opinion of counsel, reasonably satisfactory in form
and substance to the Company's counsel, to the effect that the proposed
distribution will not be in violation of the Act or of applicable state
law. Furthermore, it shall be a condition to the transfer of the
Warrants or Warrant Shares that the transferee thereof deliver to the
Company such Holder's written agreement to accept and be bound by all of
the terms and conditions of this Warrant.
(l) FURTHER ADJUSTMENT TO EXERCISE PRICE. In addition to any
adjustments provided for in Section (f) hereof, the Exercise Price in
effect at any time shall also be subject to adjustment upon the
happening of certain events as follows:
(1) In case the Company has not, on or prior to July 31, 2001,
paid to ING all accrued and unpaid interest and all then unpaid
principal on Borrower's Obligations (as defined in both that certain
Fourth Global Amendment Agreement by and between the Company, for itself
and as successor in interest to Cadiz Valley Development Corporation,
and ING dated as of December 22, 2000 (the "Fourth Global Amendment
Agreement") and that certain Third Amendment to Credit Agreement by and
between the Company, for itself and as successor in interest to Cadiz
Valley Development Corporation, and ING dated as of December 22, 2000
(the "Third Amendment to Credit Agreement") (collectively, the
"Amendment Agreements")), then the Company may, by delivery of advance
written notice to ING as required under the Amendment Agreements and in
lieu of cash fees otherwise required to be paid under the Amendment
Agreements, effect a reduction by One Dollar ($1.00) of the Exercise
Price that would otherwise have been in effect on August 1, 2001 but for
the application of this Section (l). Such reduction in the Exercise
Price shall be effective as of August 1, 2001.
(2) In case the Company has not, on or prior to October 31,
2001, paid to ING all accrued and unpaid interest and all then unpaid
principal on Borrower's Obligations, then the Company may, by delivery
of advance written notice to ING as required under the Amendment
Agreements and in lieu of cash fees otherwise required to be paid under
the Amendment Agreements, effect a reduction by One Dollar ($1.00) of
the Exercise Price that would otherwise have been in effect on November
1, 2001 but for the application of this Section (l). Such reduction in
the Exercise Price shall be effective as of November 1, 2001.
(3) In the event that, prior to any reduction in the Exercise
Price as provided in subsections (1) and (2) above, there shall have
been an adjustment in the Exercise Price pursuant to Section (f) above,
then the amount of the adjustment provided for in this Section (l) (i.e.
$1.00) shall concurrently and automatically be adjusted upwards or
downwards in proportion to any adjustment to the Exercise Price
effectuated pursuant to Section (f). For example, if prior to an
adjustment provided for in this Section (l) the Company declares a 2 for
1 stock dividend or stock split then in addition to the adjustment to
the Exercise Price provided for under Section (f) the amount of the
adjustment provided for under this Section (l) shall be reduced from
$1.00 to $0.50.
(4) Nothing in this Section (l) shall require any adjustment
in the number and kind of Warrant Shares, notwithstanding any adjustment
of the Exercise Price pursuant to the application of this Section (l).
CADIZ INC.
By: /s/ Stanley E. Speer
_____________________________
Stanley E. Speer
Its: Chief Financial Officer
Dated: December 28, 2000
PURCHASE FORM
Dated: __________________-,
The undersigned hereby irrevocably elects to exercise the within
Warrant to the extent of purchasing ______ shares of Common Stock and
hereby makes payment of ______ in payment of the actual exercise price
thereof.
INSTRUCTIONS FOR REGISTRATION OF STOCK
Name__________________________________________________________
(Please typewrite or print in block letters)
Address_________________________________________________________
Signature___________________________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, __________________hereby sells, assigns and
transfers unto
Name_________________________________________________________
(Please typewrite or print in block letters)
Address________________________________________________________
the right to purchase Common Stock represented by this Warrant to the
extent of ______ shares as to which such right is exercisable and does
hereby irrevocably constitute and appoint Attorney, to
transfer the same on the books of the Company with full power of
substitution in the premises.
Date________________,
_____________________________________
Signature