EXHIBIT 4.11
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FORM OF ELEVENTH WARRANT CERTIFICATE
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 1,000,000 Shares of Common Stock.
WARRANT TO PURCHASE COMMON STOCK
OF
CADIZ INC.
(Eleventh Warrant Certificate)
This is to Certify that, FOR VALUE RECEIVED, Middenbank
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"), 1,000,000 shares
of Common Stock, $0.01 par value, of the Company ("Common Stock")
at a price of One Cent ($0.01 per share) at any time during the
period from January 31, 2003 (the "Initial Exercise Date") to the
third 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".
Notwithstanding anything to the contrary set forth herein,
this Warrant shall not be exercisable by the Holder unless all
accrued and unpaid interest and all then unpaid principal on the
Company's Term Loan Obligations and Revolving Loan Obligations,
as both terms are defined in the Fifth Global Amendment Agreement
dated as of the date hereof 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") and the
Fourth Amendment to Credit Agreement dated as of the date hereof
between the Company and ING, shall not have been repaid in full
on or before January 30, 2003.
(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,
issuance 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, no later than ten days after notice of exercise is given
to the Company by the Holder with respect to all or any part of
this Warrant, 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, register for resale by such holder in
such registration statement this Warrant and the Warrant
Shares held by such holder and include in any such
registration statement such information as may be required
to permit a public offering of the Warrants and the Warrant
Shares. Notwithstanding the foregoing, the Company shall
not be obligated to include this Warrant or the Warrant
Shares in any such registration statement unless: (i) this
Warrant and the Warrant Shares are eligible to be resold
utilizing such registration statement pursuant to the Act;
and (ii) such registration statement is filed on or after
August 1, 2002. 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 matters of federal
securities laws (said counsel to be acceptable to the
Holder hereof in the reasonable judgment of such
Holder), or counsel for the Holder hereof,
knowledgeable and experienced in matters of federal
securities laws (said counsel to be acceptable to the
Company in the Company's reasonable judgment), the
Holder hereof may lawfully sell publicly, at the time
(or during any ninety (90) day period thereafter) and
in the manner the Holder hereof proposes to sell the
Warrants or the Warrant Shares, all of the securities
proposed to be sold pursuant to Rule 144 under the Act.
(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.
CADIZ INC.
By:_________________________________
Its:________________________________
Dated: January 31, 2002
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 ________________________