EXHIBIT 4.8
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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 200,000 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"), 200,000 shares of Common Stock,
$0.01 par value, of the Company ("Common Stock") at the
exercise price of Seven Dollars ($7.00) per share commencing
on the date hereof (the "Initial Exercise Date") and ending
on the seventh 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".
(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 $7.00 per
share, the adjusted Exercise Price immediately after
such event would be $3.50 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 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 __________________________________