EXHIBIT 4.6
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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 75,000 Shares of Common Stock.
WARRANT TO PURCHASE COMMON STOCK
OF
CADIZ LAND COMPANY, INC.
This is to Certify that, FOR VALUE RECEIVED, ING Baring
(U.S.) Capital Corporation ("ING"), or assigns ("Holder"), is
entitled to purchase, subject to the provisions of this
Warrant, from Cadiz Land Company, Inc., a Delaware corporation
("Company"), 75,000 shares of Common Stock, $0.01 par value,
of the Company ("Common Stock") at a price per share equal to
the average daily closing price of the Common Stock
(determined in accordance with the second sentence of Section
(f)(8) below) over the ten trading day period ending on and
including April 29, 1997 at any time during the period from
the earlier of (a) April 30, 1997 (if the Extension (as
defined below) is exercised) or May 30, 1997 (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".
Notwithstanding anything to the contrary set forth
herein, this Warrant shall not be exercisable by the Holder
unless and until (i) the Company has exercised its option to
extend the maturity date of the Borrowers' Obligations (as
defined in that certain Global Amendment Agreement by and
between the Company, its wholly owned subsidiary Cadiz Valley
Development Corp., and ING dated March 31, 1997) from April
30, 1997 to April 30, 1998 (the "Extension"), or (ii) if the
Company has not theretofore exercised the Extension, the
Borrowers' Obligations shall not have been repaid in full on
or before May 30, 1997. Should the Borrowers' Obligations be
repaid by the Company in full at any time on or prior to the
Initial Exercise Date, then this Warrant shall immediately
upon such repayment and without the requirement of notice be
canceled and shall be of no further force and effect.
(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
(x) if such event should occur prior to the
Initial Exercise Date, then the aggregate number and
kind of Warrant Shares shall be proportionately
adjusted so that the Holder of this Warrant exercised
after such date shall be entitled to receive the
aggregate number and kind of shares which, if this
Warrant had been exercised by such Holder immediately
prior to such date, such Holder would have owned upon
such exercise and been entitled to receive upon such
dividend, distribution, subdivision, combination or
reclassification. For example, if the Company
declares a 2 for 1 stock dividend or stock split and
the number of shares of Common Stock issuable upon
exercise of this Warrant immediately prior to such
event was 75,000, the adjusted number of shares of
Common Stock issuable upon exercise of this Warrant
immediately after such event would be 150,000;
(y) if such event should occur on or subsequent
to the Initial Exercise Date, 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 $10.00 per share, the adjusted Exercise Price
immediately after such event would be $5.00 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
(x) if such event should occur prior to the
Initial Exercise Date, the aggregate number and kind
of Warrant Shares shall be adjusted so that the same
shall equal the number determined by multiplying the
number of Warrant Shares 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 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), and the denominator 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. 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 number of
Warrant Shares shall be readjusted to the number of
Warrant Shares 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.
(y) if such event should occur on or subsequent
to the Initial Exercise Date, 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
(x) if such event should occur prior to the
Initial Exercise Date, in each such case the
aggregate number and kind of Warrant Shares shall be
adjusted so that the same shall equal the number
determined by multiplying the number of Warrant
Shares 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),
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, 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.
(y) if such event should occur on or subsequent
to the Initial Exercise Date, 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:
(x) if such event should occur prior to the
Initial Exercise Date, in each such case the
aggregate number and kind of Warrant Shares shall be
adjusted immediately thereafter so that the same
shall equal the number determined by multiplying the
number of Warrant Shares in effect immediately prior
thereto by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding
immediately after the issuance of such additional
shares, and the denominator 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.
(y) if such event should occur on or subsequent
to the Initial Exercise Date, 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
(x) if such event should occur prior to the
Initial Exercise Date, in each case the aggregate
number and kind of Warrant Shares shall be adjusted
immediately thereafter so that it shall equal the
number determined by multiplying the number of
Warrant Shares 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 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, and the denominator 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.
(y) if such event should occur on or subsequent
to the Initial Exercise Date, 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 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.
CADIZ LAND COMPANY, INC.
By: /s/ Stanley E. Speer
----------------------------
Its: Chief Financial Officer
Dated: ___________,_____
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 _____________________________