As
filed with the Securities and Exchange Commission on December 7,
2009
Registration
No. 333-163321
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________
AMENDMENT
NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CADIZ
INC.
(Exact
name of registrant as specified in its charter)
| Delaware | 77-0313235 |
| (State or other jurisdiction of | (I.R.S. Employer |
| incorporation or organization) | Identification No.) |
550
South Hope Street
Suite
2850
Los
Angeles, California 90071
(213)
271-1600
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Keith
Brackpool
Chief
Executive Officer
550
South Hope Street
Suite
2850
Los
Angeles, California 90071
(213)
271-1600
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
of communications to:
Howard
J. Unterberger, Esq.
Theodora
Oringher Miller & Richman PC
2029
Century Park East, Sixth Floor
Los
Angeles, California 90067
(310)
557-2009
Approximate
date of commencement of proposed sale to the public:
From time
to time after the effective date of this Registration
Statement
If the only securities being
registered on this Form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box: o
If any of the securities being
registered on this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check
the following box. x
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. o
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following
box. o
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of “large accelerated
filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
|
Large
accelerated filer o
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Accelerated
filer þ
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Non-accelerated
filer o
(Do
not check if a smaller reporting company)
|
Smaller
reporting company o
|
Calculation
of Registration Fee
|
Title
of Each Class of Securities to be
Registered
|
Amount
to
be
Registered
|
Proposed
Maximum
Offering
Price
Per
Unit
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Common
Stock, Par Value $0.01 Per Share
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904,800
Shares(1)
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$10.89(2)
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$9,853,272
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$549.81(3)
|
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(1)
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This
registration statement is being used to register for resale (i) 678,600
shares of common stock issued to investors pursuant to a private placement
which closed in 2009 (“Private Placement”) and (ii) 226,200 shares of
common stock issuable upon the exercise of outstanding callable warrants,
all of which warrants were issued to investors pursuant to the Private
Placement. This registration statement shall also cover an
indeterminate number of additional shares of common stock that may become
issuable by virtue of any stock dividend, stock split, recapitalization or
other similar transaction.
|
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(2)
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Estimated
solely for the purpose of calculating the registration fee, and based,
pursuant to Rule 457(c), on the average of the high and low prices of the
Registrant's common stock as reported by the Nasdaq Global Market for
November 20, 2009, which date is within five business days prior to the
initial filing date of this registration
statement.
|
|
(3)
|
The
registration fee was previously paid on November 24, 2009 upon filing of
the original registration
statement.
|
The Registrant hereby amends this
Registration Statement on such date or dates as may be necessary to delay its
effective date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
PROSPECTUS
The information in this prospectus is not complete and may be changed.
These securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
DATED
DECEMBER 7, 2009, SUBJECT TO COMPLETION
CADIZ
INC.
904,800
Shares of Common Stock
The selling
stockholders identified in this prospectus may offer from time to time up to
904,800 shares of our common stock, including 678,600 shares of common stock
purchased by the selling stockholders in our 2009 private offering (“Private
Placement”) and 226,200 shares of common stock issuable upon the exercise of
callable warrants issued to those stockholders in the Private
Placement. We are contractually obligated under the subscription
agreements with the selling stockholders in our Private Placement to register
the shares acquired, or which may be acquired pursuant to the warrants, which
the selling stockholders may resell.
We will not
receive any of the proceeds from the resale of the shares of our common stock by
the selling stockholders, other than payment of the exercise price of the
warrants. We have agreed to pay for expenses of this
offering.
We do not
know when or how the selling stockholders intend to sell their shares or what
the price, terms or conditions of any sales will be. The selling
stockholders may offer and sell their respective shares in transactions on the
Nasdaq Global Market, in negotiated transactions, or both. These
sales may occur at fixed prices that are subject to change, at prices that are
determined by prevailing market prices, or at negotiated prices. The
selling stockholders may sell shares to or through broker-dealers, who may
receive compensation in the form of discounts, concessions or commissions from
the selling stockholders, the purchasers of the shares or both.
Our common
stock is traded on the Nasdaq Global Market under the symbol
"CDZI". On November 20, 2009, the last reported sale price of our
common stock on Nasdaq was $10.94.
__________
Investing in
our common stock involves a high degree of risk. You should carefully read and
consider the “Risk Factors” beginning on page 5.
__________
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR
ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date
of this prospectus is ________, 2009.
TABLE OF CONTENTS
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3
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3
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5
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8
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12
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12
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13
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13
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13
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13
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You may rely
only on the information contained or incorporated by reference in this
prospectus. We have not authorized anyone to provide information or to make
representations not contained in this prospectus. This prospectus is neither an
offer to sell nor a solicitation of an offer to buy any securities other than
those registered by this prospectus, nor is it an offer to sell or a
solicitation of an offer to buy securities where an offer or solicitation would
be unlawful. Neither the delivery of this prospectus, nor any sale made under
this prospectus, means that the information contained incorporated by reference
in this prospectus is correct as of any time after the date of this
prospectus.
Unless the
context otherwise requires, the terms “we,” “us,” “our,” “Cadiz,” and “the
Company” refer to Cadiz Inc., a Delaware corporation.
NOTICE ABOUT FORWARD-LOOKING STATEMENTS
Information
presented in this prospectus, and in other documents which are incorporated by
reference in this prospectus under the section of this prospectus entitled
"Where You Can Find More Information," that discusses financial projections,
information or expectations about our business plans, results of operations,
products or markets, or otherwise makes statements about future events, are
forward-looking statements. Forward-looking statements can be
identified by the use of words such as "intends," "anticipates," "believes,"
"estimates," "projects," "forecasts," "expects," "plans," and
"proposes." Although we believe that the expectations reflected in
these forward-looking statements are based on reasonable assumptions, there are
a number of risks and uncertainties that could cause actual results to differ
materially from these forward-looking statements. These include,
among others, the cautionary statements in the "Risk Factors" section of this
prospectus beginning on page 5. These cautionary statements identify
important factors that could cause actual results to differ materially from
those described in the forward-looking statements. When considering
forward-looking statements in this prospectus, you should keep in mind the
cautionary statements in the "Risk Factors" section and other sections of this
prospectus, and other cautionary statements in documents which are incorporated
by reference in this prospectus and listed in "Where You Can Find More
Information" on page 13.
PROSPECTUS SUMMARY
Our
Business
Our primary
assets consist of 45,000 acres of land in three areas of eastern San Bernardino
County, California. Virtually all of this land is underlain by
high-quality groundwater resources that are suitable for a variety of uses,
including water storage and supply programs. The advantages of
underground water storage relative to surface storage include minimal surface
environmental impacts, low capital investment, and minimal evaporative water
loss. The properties are located in proximity to the Colorado River and the
Colorado River Aqueduct, the major source of imported water for Southern
California.
The value of
these assets derives from a combination of projected population increases and
limited water and energy supplies throughout Southern
California. California is facing the very real possibility that
current and future supplies of water will not be able to meet
demand. Water agencies throughout California imposed mandatory
rationing in 2009 in order to meet anticipated demand. Moreover,
through a series of policy initiatives, the State of California and the United
States government have issued compelling calls for increased renewable energy
production, including California’s mandate to acquire 33% of the state’s
electricity from renewable sources by 2020. As a result, we believe
that a competitive advantage exists for companies that can provide high-quality,
reliable, and affordable water to major population centers as well as for
companies that can site solar energy facilities.
Our objective
is to realize the highest and best use for these assets in an environmentally
responsible way. We believe this can best be achieved through a
combination of water conservation, supply, and storage programs. In
connection with these programs, we entered into five Letters of Intent ( “LOI”)
in June of this year, featuring substantially similar terms, with a broad
collection of Southern California water providers. Further to the
terms set out in the LOI, we are currently working together to define
responsibility of the environmental review and associated costs thereof,
finalize terms of pricing subject to completion of the California Environmental
Quality Act, and move forward with the design and capital allocation work
necessary toward implementation of our water conservation and storage
project.
3
Our principal
executive offices are located at 550 South Hope Street, Suite 2850, Los Angeles,
California 90071 and our telephone number is (213) 271-1600.
Private
Placement of Securities
In October
and November 2009 we sold a total of 226,200 units in a private offering of
securities. Each unit consisted of three (3) shares of our common
stock and one (1) warrant to purchase one share of common stock per
warrant. As a result of the sale of the units, we issued an aggregate
of 678,600 shares of our common stock and an aggregate of 226,200 warrants. The
warrants are exercisable at any time ninety (90) days after issuance and have an
exercise price of $15.00 per share. The warrant issued with each unit
expires on October 30, 2012 and is subject to call rights by the
Company. We did not use a placement agent in connection with this
private placement.
The Offering
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Common
stock offered by the selling stockholders
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904,800
shares of common stock, including 226,200 shares of common stock
underlying warrants
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|
Use
of proceeds
|
We
will not receive any of the proceeds from the sale of the shares by any of
the selling stockholders.
|
|
Nasdaq
Global Market symbol
|
“CDZI”
|
|
Risk
Factors
|
See
“Risk Factors” beginning on page 5 and other information in this
prospectus for a discussion of factors you should consider carefully
before investing in shares of our common
stock.
|
4
RISK FACTORS
An investment
in shares of our common stock involves a high degree of risk. You
should carefully consider the following factors as well as the other information
contained and incorporated by reference in this prospectus before deciding to
invest.
Our
Development Activities Have Not Generated Significant Revenues
At present,
our activities are focused on water resource, agricultural, and renewable energy
development at our San Bernardino County properties. We have not
received significant revenues from our development activities to date and we do
not know when, if ever, we will receive operating revenues sufficient to offset
the costs of our development activities. As a result, we continue to
incur a net loss from operations.
We
May Never Generate Significant Revenues or Become Profitable Unless We Are Able
To Successfully Implement Programs To Develop Our Land Assets and Related Water
Resources
We do not
know the terms, if any, upon which we may be able to proceed with our water and
other development programs. Regardless of the form of our water
development programs, the circumstances under which transfers or storage of
water can be made and the profitability of any transfers or storage are subject
to significant uncertainties, including the risk of variable water supplies and
changing water allocation priorities. Additional risks include our
ability to obtain all necessary regulatory approvals and permits, possible
litigation by environmental or other groups, unforeseen technical difficulties,
general market conditions for real estate and water supplies, and the time
needed to generate significant operating revenues from such programs after
operations commence.
The
Development of Our Properties Is Heavily Regulated, Requires Governmental
Approvals and Permits That Could Be Denied, and May Have Competing Governmental
Interests and Objectives
In developing
our land assets and related water resources, we are subject to local, state, and
federal statutes, ordinances, rules and regulations concerning zoning, resource
protection, environmental impacts, infrastructure design, subdivision of land,
construction and similar matters. Our development activities are
subject to the risk of adverse interpretations or changes to U.S. federal, state
and local laws, regulations and policies. Further, our development
activities require governmental approvals and permits that, if denied or granted
subject to unfavorable conditions or restrictions, would adversely impact our
ability to successfully implement our development
programs.
The
opposition of government officials may adversely affect our ability to obtain
needed government approvals and permits upon satisfactory terms in a timely
manner. In this regard, federal government appropriations currently
preclude spending for any proposal to store water for the purpose of export or
for any activities associated with the approval of rights-of-way on lands
managed by the Needles Field Office of the Bureau of Land
Management. As a result of a new right-of-way with the Arizona &
California Railroad Company, we do not believe federal approval will be required
to implement the Cadiz Project, however, even this may be subject to similar
challenges.
A significant
portion of our Cadiz Valley property is included in a study area as part of the
Environmental Impact Statement (“EIS”) process for the expansion of the Marine
Corp Air Ground Combat Center in Twentynine Palms, California. Our
property is included in one of the five different alternatives that will be
studied for the base expansion during the EIS process over the next three
years. If any of the Cadiz Valley landholdings are included in the
final expansion area, then we will be entitled to full fair market value
compensation for any property taken.
5
Additionally,
the statutes, regulations and ordinances governing the approval processes
provide third parties the opportunity to challenge proposed plans and
approvals. In California, third parties have the ability to file
litigation challenging the approval of a project, which they usually do by
alleging inadequate disclosure and mitigation of the environmental impacts of
the project. Opposition from environmental groups could cause delays
and increase the costs of our development efforts or preclude such development
entirely. While we have worked with representatives of various
environmental interests and agencies to minimize and mitigate the impacts of our
planned projects, certain groups may remain opposed to our development
plans.
Our
Failure To Make Timely Payments of Principal and Interest on Our Indebtedness
May Result in a Foreclosure on Our Assets
As of
September 30, 2009, we had indebtedness outstanding to our senior secured
lenders of approximately $43 million. Our assets have been put up as
collateral for this debt. If we cannot generate sufficient cash flow
to make principal and interest payments on this indebtedness when due, or if we
otherwise fail to comply with the terms of agreements governing our
indebtedness, we may default on our obligations. If we default on our
obligations, our lenders may sell off the assets that we have put up as
collateral. This, in turn, would result in a cessation or sale of our
operations.
The
Conversion of Our Outstanding Senior Indebtedness into Common Stock Would Dilute
the Percentage of Our Common Stock Held by Current Stockholders
Our senior
indebtedness is convertible into common stock at the election of our
lenders. As of September 30, 2009, our senior indebtedness was
convertible into 1,747,788 shares of our common stock, an amount equal to
approximately 11.32% of the number of fully-diluted shares of our common stock
outstanding as of that date. An election by our lenders to convert
all or a portion of our senior secured indebtedness into common stock will
dilute the percentage of our common stock held by current
stockholders.
We
May Not Be Able To Obtain the Financing We Need To Implement Our Asset
Development Programs
Based upon
our current and anticipated usage of cash resources, we have sufficient funds to
meet our expected working capital needs through fiscal year 2010. We
will continue to require additional working capital to meet our cash resource
needs from that point forward and to continue to finance our
operations until such time as our asset development programs produce
revenues. If we cannot raise needed funds, we might be forced to make
substantial reductions in our operating expenses, which could adversely affect
our ability to implement our current business plan and ultimately our viability
as a company. We cannot assure you that our current lenders, or any
other lenders, will give us additional credit should we seek it. If
we are unable to obtain additional credit, we may engage in further equity
financings. Our ability to obtain equity financing will depend, among
other things, on the status of our asset development programs and general
conditions in the capital markets at the time funding is
sought. Although we currently expect our capital sources to be
sufficient to meet our near term liquidity needs, there can be no assurance that
our liquidity requirements will continue to be satisfied. Any further
equity financings would result in the dilution of ownership interests of our
current stockholders.
6
The
Issuance of Equity Securities Under Management Equity Incentive Plans Will
Impact Earnings
Our
compensation programs for management emphasize long-term incentives, primarily
through the issuance of equity securities and options to purchase equity
securities. It is expected that plans involving the issuance of
shares, options, or both will be submitted from time to time to our stockholders
for approval. In the event that any such plans are approved and
implemented, the issuance of shares and options under such plans may result in
the dilution of the ownership interest of other stockholders and will, under
currently applicable accounting rules, result in a charge to earnings based on
the value of our common stock at the time of issue and the fair value of options
at the time of their award. The expense would be recorded over the
vesting period of each stock and option grant.
7
SALES BY SELLING STOCKHOLDERS
In October
and November 2009 we sold a total of 226,200 units (the “Units”) to certain
institutional and other accredited investors in a private placement (the
"Private Placement"). Each Unit consisted of three (3) shares of our
common stock and one (1) warrant to purchase one share of common stock
(“Warrants”). As a result of the sale of the Units, we issued an
aggregate of 678,600 shares of our common stock (based upon three shares per
Unit) and an aggregate of 226,200 Warrants (based upon one Warrant per
Unit). We did not use a placement agent in connection with the
Private Placement. We intend to use the net proceeds of the Private Placement
for general working capital purposes.
The Warrants
have an exercise price of $15.00 per share and are exercisable commencing the
date that is ninety (90) days from their date of issuance.
The Warrants
issued in the Private Placement are callable by us, subject to certain
conditions, if at any time following November 1, 2010, the closing market price
of our common stock equals or exceeds $22.50 (subject to adjustment if the
exercise price of the Warrant is adjusted as described in the Warrant) for ten
(10) consecutive trading days. A condition to the exercise of
our call rights is that the registration statement required by the Subscription
Agreements utilized in the Private Placement has been declared effective and
remains effective through the date we terminate the Warrant and exercise our
call rights (“Callable Warrant Termination Date”). The Warrant
expires, absent an earlier termination if a Callable Warrant Termination Date
occurs, on October 30, 2012.
Except as
noted with respect to selling stockholders listed in the following table, none
of the selling stockholders has held any position or office or had a material
relationship with us other than as a result of the ownership of our common
stock.
The table is
based on information supplied to us by the selling stockholders identified in
the table. The table sets forth, as to the selling stockholders
identified in the table, the number of shares of common stock that each selling
stockholder beneficially owns, the number of shares of common stock beneficially
owned by each selling stockholder that may be offered for sale from time to time
by this prospectus and the number of shares and percentage of common stock to be
held by each such selling stockholder assuming the sale of all the common stock
offered hereby.
We may amend
or supplement this prospectus from time to time to update the disclosures set
forth herein.
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Name of Selling Stockholder
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Securities
Beneficially Owned Prior to Offering
(1)
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Securities
which
may be Offered
Pursuant
to
this Offering (2)
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Securities
Beneficially Owned After Offering
(3)
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Percentage
Ownership After Offering
(4)
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LC
Capital Master Fund Ltd.
c/o
Lampe Conway & Co.
680
Fifth Avenue – 12th
Floor
New
York, New York 10019
|
2,466,010(5)
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83,520(6)
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2,382,490
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15.74%
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Altima
Global Special Opportunities Master Fund Limited
Queensgate
House
South
Church Street
PO
Box 1234 GT
Grand
Cayman, Cayman Islands British West Indies
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855,750(7)
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192,000(8)
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663,750
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4.96%
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8
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Pershing
Nominees Limited A/C PSL981
Capstan
House
One
Clove Crescent
East
India Dock
London
E14 2BH
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250,000(9)
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228,000(10)
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22,000
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.16%
|
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RAB
Energy Fund Ltd
Credit
Suisse Client Nominees (UK) Limited
One
Cabot Square
London,
E14 4QJ
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412,424(11)
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128,000(12)
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284,424
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2.13%
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Caldwell
Management AG
Baarerstrasse
53
P.O.
Box 4139
6304
Zug
Switzerland
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596,750(13)
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80,000(14)
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516,750
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3.87%
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Lloyd
I. Miller A4 Trust
MILFAM
II, LP
Lloyd
I. Miller
4550
Gordon Drive
Naples,
FL 34102
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444,374(15)
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73,280(16)
|
371,094
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2.74%
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Cadrela
Malta Limited
116,
Upper Rue D'Argens
MSD
1363
Msida,
Malta
|
40,000(17)
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40,000(18)
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0
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0%
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HSBC
Bank PLC Account Clients
c/o
Brown Brothers Harriman & Co. 140 Broadway
New
York, NY 10005
|
16,000(19)
|
16,000
(20)
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0
|
0%
|
|
Edward
A. Sugar
785
5th
Avenue
Apt.
11C
New
York, New York 10022
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20,000
(21)
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20,000
(22)
|
0
|
0%
|
|
Forest
Nominees Limited A/C GCI
PO
BOX 328
St
Peter Port
Guernsey
GYI 3TY
United
Kingdom
|
32,000
(23)
|
32,000
(24)
|
0
|
0%
|
|
John
Elliot Ford
15
Lafayette Ct, Apt 2D
Greenwich,
CT 06830
|
12,000(25)
|
12,000
(26)
|
0
|
0%
|
___________________________
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(1)
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Except
as otherwise noted herein, the number and percentage of shares
beneficially owned is determined in accordance with Rule 13d-3 of the
Exchange Act, and the information is not necessarily indicative of
beneficial ownership for any other purpose. Under such rule, beneficial
ownership includes any shares as to which the individual has sole or
shared voting power or investment power and also any shares which the
individual has the right to acquire within 60 days of the date of this
prospectus through the exercise of any stock option or other
right. Except as otherwise noted herein, the number of shares
beneficially owned by each selling stockholder identified in this table is
as of November 13, 2009. Unless otherwise indicated in the
footnotes, each person has sole voting and investment power, or shares
such powers with his or her spouse, with respect to the shares shown as
beneficially owned.
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9
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(2)
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In
the event not all of the Warrants are exercised or should some of the
Warrants be terminated pursuant to our call right in the case of the
Callable Warrants, the number of shares that will actually be issued will
be less than the number of shares being offered by this
prospectus.
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(3)
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Assumes
the sale of all shares of common stock offered
hereby.
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(4)
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Based
upon (a) 13,338,148
shares of common stock outstanding as of November 13, 2009, which includes
the 678,600 shares of common stock issued in the Private Placement; (b) as
to each selling stockholder, an additional number of shares outstanding
giving effect to the exercise by that stockholder only of all of the
Warrants issued to that stockholder in the Private
Placement; (c) as to L.C. Capital Master Fund, Ltd., only, an
additional 1,589,638 shares outstanding giving effect to the conversion of
the Loan and issuance of the Loan Shares described in footnote (5)
below;and (d) as to MILFAM II, LP and Lloyd I. Miller A4 Trust only, an
additional 176,627 shares outstanding giving effect to the conversion of
the Loan and issuance of the Loan Shares described in footnote
(15) below.
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(5)
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LC
Capital Master Fund Ltd. is the holder of 90% of our loan under our credit
facility (“Loan”).
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Based
upon a Form 4 filed on November 6, 2009 with the SEC by LC Capital Master
Fund Ltd.
Includes
663,492 shares of common stock beneficially owned as of November 6, 2009,
including 62,640 shares acquired in the Private Placement, 288,000 shares
acquired in our 2008 private placement, and 312,852 shares of common stock
beneficially owned immediately prior to the assignment and assumption of
the Loan. Includes 192,000 shares issuable upon the exercise of
the Warrants acquired in our 2008 private placement, of which 96,000 were
exercised on November 23, 2009 but as to which shares have not yet been
issued of record, and 20,880 shares issuable upon the exercise of Warrants
acquired in our 2009 Private Placement. Includes 585,000
shares of common stock issuable upon conversion of $4,095,000 in principal
under our credit facility (the "Loan") as of October 30, 2009 at a
conversion rate of $7.00 per share and 993,533 shares of common stock
issuable upon conversion of $34,773,665 in principal and interest under
the Loan as of October 30, 2009 at a conversion rate of $35.00 per
share. Does not include 275,070 shares of common stock issuable
upon conversion of a maximum of an additional $9,627,450 in interest which
may accrue in favor of LC Capital Master Fund Ltd. during the term of the
Loan, assuming no further extension of the maturity date of the Loan. Of
the 275,070 shares of common stock, only 11,105 shares were beneficially
owned by LC Capital Master Fund Ltd. as of October 30, 2009 as a result of
common stock issuable upon conversion of $388,625 of interest, which is
the amount of interest that will have accrued within 60 days of October
30, 2009. These shares are included. Does not include 177,833 shares
of stock issuable in the event of a further two year extension of the
maturity date of the Loan.
These
securities also may be deemed to be beneficially owned by LC Capital
Partners, LP ("Partners"), LC Capital Advisors LLC ("Advisors"), Lampe,
Conway & Co., LLC ("LC&C"), LC Capital International LLC
("International"), Steven G. Lampe (“Lampe”) and Richard F. Conway
("Conway") by virtue of the following relationships: (i) Partners'
beneficially owns one-third of the outstanding shares of the Master Fund;
(ii) Advisors is the sole general partner of Partners; (iii) LC&C acts
as investment manager to Partners and the Master Fund pursuant to certain
investment management agreements, and as a result of such agreements,
LC&C shares voting and dispositive power over the securities; (iv)
International acts as investment advisor to the Master Fund pursuant to an
investment advisory agreement and, as a result, International shares
voting and dispositive power over the securities; and (v) Lampe and Conway
act as the sole managing members of each of Advisors, LC&C and
International and are the natural persons with voting and dispositive
power over these securities.
LC
Capital Master Fund Ltd. and/or its affiliates have designated Mr. Stephen
E. Courter, a director of the Company, as their designee on our Board of
Directors.
|
|
(6)
|
Includes
62,640 shares acquired in the Private Placement and 20,880 shares issuable
upon exercise of the Warrants.
|
|
(7)
|
Includes
144,000 shares acquired in the Private Placement and 48,000 shares
issuable upon exercise of the
Warrants.
|
Dominic
Redfern is investment manager of Altima Global Special Opportunities Master Fund
Ltd. and has voting and dispositive power over these securities.
|
(8)
|
Includes
144,000 shares acquired in the Private Placement and 48,000 shares
issuable upon exercise of the
Warrants.
|
|
(9)
|
Includes
171,000 shares acquired in the Private Placement and 57,000 shares
issuable upon exercise of the Warrants. The selling stockholder holds
these securities as nominee for Williams De Broe
Limited. Len Russell account executive of Williams De
Broe Limited, is the natural born person that has voting and dispositive
power over 42,140 shares and 9,380 Warrants. Bob Catto, as investment
director of Williams De Broe Limited, is the natural born person that has
voting and dispositive power over 129,390 shares and 43,130 Warrants on
behalf of five execution-only clients, and over 21,470 shares and 4,490
Warrants for discretionary clients.
|
10
|
(10)
|
Includes
171,000 shares acquired in the Private Placement and 57,000 shares
issuable upon exercise of the
Warrants.
|
|
(11)
|
Includes
96,000 shares acquired in the Private Placement and 32,000 shares issuable
upon exercise of the Warrants. Mark Redway, Senior Fund Manager
of the selling stockholder, and Gavin Wilson, Director of Energy
Investments of the selling stockholder, are the natural born persons with
voting and dispositive power over these
securities.
|
|
(12)
|
Includes
96,000 shares acquired in the Private Placement and 32,000 shares issuable
upon exercise of the Warrants.
|
|
(13)
|
Includes
60,000 shares acquired in the Private Placement and 20,000 shares issuable
upon exercise of the Warrants. Philip Caldwell, owner of
Caldwell Management, Kin Tang, Investment Manager of Caldwell Management,
and Claudio Buehler, Investment Manager of Caldwell Management, are the
natural born persons with voting and dispositive power over these
securities.
|
|
(14)
|
Includes
60,000 shares acquired in the Private Placement and 20,000 shares issuable
upon exercise of the Warrants.
|
|
(15)
|
Lloyd
I. Miller A4 Trust is owned and operated by Lloyd I.
Miller. MILFAM II, LP, also owned and operated by Lloyd I.
Miller, is the holder of 10% of our loan under our credit facility
(“Loan”). Lloyd I. Miller is the natural born person with voting and
dispositive power over these
securities..
|
|
|
Includes
249,427 shares of common stock beneficially owned as of November 12, 2009,
including 54,960 shares acquired in the Private Placement, and 194,467
shares of common stock beneficially owned immediately prior to the Private
Placement. Includes 18,320 shares issuable upon the exercise of
Warrants acquired in our 2009 Private Placement. Includes
65,000 shares of common stock issuable upon conversion of $455,000 in
principal under our credit facility (the "Loan") as of October 30, 2009 at
a conversion rate of $7.00 per share and 110,393 shares of common stock
issuable upon conversion of $3,863,755 in principal and interest under the
Loan as of October 30, 2009 at a conversion rate of $35.00 per
share. Does not include 30,563 shares of common stock issuable upon
conversion of a maximum of an additional $1,069,705 in interest which may
accrue in favor of MILFAM II, LP during the term of the Loan, assuming no
further extension of the maturity date of the Loan. Of the 30,563 shares
of common stock, only 1,234 shares were beneficially owned by MILFAM II,
LP as of October 30, 2009 as a result of common stock issuable upon
conversion of $43,190 of interest, which is the amount of interest that
will have accrued within 60 days of October 30, 2009. These shares are
included. Does not include 19,759 shares of stock issuable in the event of
a further two year extension of the maturity date of the
Loan.
Lloyd I. Miller shares voting and
dispositive power with PNC Bank, National Association, with respect
to 55,503 shares held by trusts.
|
|
(16)
|
Includes
54,960 shares acquired in the Private Placement and 18,320 shares issuable
upon exercise of the Warrants.
|
|
(17)
|
Includes
30,000 shares acquired in the Private Placement and 10,000 shares issuable
upon exercise of the Warrants. Diane Vella Bianco and/or David
Vella, as the representatives of Cadrela Malta Limited are the natural
born persons with voting and dispositive power over these
securities.
|
|
(18)
|
Includes
30,000 shares acquired in the Private Placement and 10,000 shares issuable
upon exercise of the Warrants.
|
|
(19)
|
Includes
12,000 shares acquired in the Private Placement and 4,000 shares issuable
upon exercise of the Warrants. The selling stockholder holds
these securities as nominee for El Oro Limited. Clement Robine
Woodbine Parish, of El Oro Limited, is the natural person with
voting and dispositive power over these
securities.
|
|
(20)
|
Includes
12,000 shares acquired in the Private Placement and 4,000 shares issuable
upon exercise of the Warrants.
|
|
(21)
|
Includes
15,000 shares acquired in the Private Placement and 5,000 shares issuable
upon exercise of the Warrants. Edward Sugar is the natural born person
with voting and dispositive power over these securities
.
|
|
(22)
|
Includes
15,000 shares acquired in the Private Placement and 5,000 shares issuable
upon exercise of the Warrants.
|
|
(23)
|
Includes
24,000 shares acquired in the Private Placement and 8,000 shares issuable
upon exercise of the Warrants. The selling stockholder holds these
securities in nominee for Hawkwood Capital LLP. Russell
Duckworth is the natural born person that has voting and dispositive power
of the shares.
|
|
(24)
|
Includes
24,000 shares acquired in the Private Placement and 8,000 shares issuable
upon exercise of the Warrants.
|
|
(25)
|
Includes
9,000 shares acquired in the Private Placement and 3,000 shares issuable
upon exercise of the Warrants. John Elliot Ford is the natural born person
with voting and dispositive power over these
securities.
|
|
(26)
|
Includes
9,000 shares acquired in the Private Placement and 3,000 shares issuable
upon exercise of the Warrants.
|
11
USE OF PROCEEDS
We will not
receive any proceeds from the sale of any or all of the shares being offered by
the selling stockholders under this prospectus. We may receive
an amount of up to approximately $3,393,000.00 upon the exercise of the
Warrants, if exercised. Any proceeds that we receive from the
exercise of Warrants will be used by us for general working capital. There can
be no assurances that any of the Warrants will be exercised.
PLAN OF DISTRIBUTION
The shares of
common stock offered by this prospectus will be offered and sold by the selling
stockholders named in this prospectus, by their donees, or by their other
successors in interest. We have agreed to bear the expenses of the
registration of the shares, including legal and accounting fees, other than fees
of counsel, if any, retained individually by the selling stockholders, and any
discounts or commissions payable with respect to sales of the
shares.
The selling
stockholders from time to time may offer and sell the shares in transactions in
the Nasdaq Global Market at market prices prevailing at the time of
sale. The selling stockholders from time to time may also offer and
sell the shares in private transactions at negotiated prices. The
selling stockholders may sell their shares directly or to or through
broker-dealers who may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders or the purchasers of
shares for whom such broker-dealers may act as agent or to whom they may sell as
principal, or both. Such compensation may be in excess of customary
commissions.
From time to
time, a selling stockholder may pledge or grant a security interest in some or
all of the shares which the selling stockholder owns. If a selling
stockholder defaults in the performance of the selling stockholder’s secured
obligations, the pledgees or secured parties may offer and sell the shares from
time to time by this prospectus (except, in some cases, if the pledgees or
secured parties are broker-dealers or are affiliated with
broker-dealers). The selling stockholders also may transfer and
donate shares in other circumstances. Donees may also offer and sell
the shares from time to time by this prospectus (except, in some cases, if the
donees are broker-dealers or are affiliated with broker-dealers). The
number of shares beneficially owned by a selling stockholder will decrease as
and when a selling stockholder donates such stockholder’s shares or defaults in
performing obligations secured by such stockholder’s shares. The plan
of distribution for the shares offered and sold under this prospectus will
otherwise remain unchanged, except that the donees, pledgees, other secured
parties or other successors in interest will be selling stockholders for
purposes of this prospectus. If we are notified that a donee, pledgee
or other successor in interest of a selling stockholder intends to sell more
than 500 shares of our common stock, we will file a supplement to this
prospectus which includes all of the information required to be disclosed by
Item 507 of Regulation S-K. Further, we will file a post-effective
amendment to this registration statement upon notification of any change in the
plan of distribution.
The selling
stockholders and any broker-dealers acting in connection with the sale of the
shares covered by this prospectus may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, and any commissions
received by them and any profit realized by them on the resale of the shares as
principals may be deemed to be underwriting compensation under the Securities
Act of 1933.
12
We have
advised the selling stockholders of the requirement for delivery of this
prospectus in connection with any sale of the shares. We have also
advised the selling stockholders of the relevant cooling off period specified by
Regulation M and restrictions upon the selling stockholders’ bidding for or
purchasing our securities during the distribution of shares.
Transfer Agent
The transfer
agent for our common stock is Continental Stock Transfer & Trust Company,
New York, New York.
LEGAL MATTERS
Certain legal
matters in connection with the issuance of the securities offered under this
prospectus will be passed upon for us by Theodora Oringher Miller & Richman
PC, attorneys at law, Los Angeles, California.
The financial
statements and management’s assessment of the effectiveness of internal control
over financial reporting (which is included in Management’s Report on Internal
Control over Financial Reporting) incorporated in this prospectus by reference
to the Annual Report on Form 10-K of Cadiz Inc. for the year ended December 31,
2008 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration statement on Form S-3, including exhibits, under the Securities Act with respect to the common stock offered by this prospectus. This prospectus, which is part of the registration statement, does not contain all of the information in the registration statement. For further information about us and our common stock, you should refer to the registration statement, including exhibits, and the financial statements and notes filed as a part thereof.
We file
quarterly and annual reports, proxy statements and other information with the
Commission. You may read and copy any document that we file at the
public reference facilities of the Commission at 100 F Street, N.E., Washington,
D.C. 20549. You may call the Commission at 1-800-SEC-0330
for further information on the operation of its public reference
room. Our filings with the Commission, including the registration
statement, are available to you on the Commission’s website at http://www.sec.gov. In
addition, documents that we file with the Commission are available on our
website at www.cadizinc.com.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows us to
"incorporate by reference" into this prospectus the information we file with
them. The information we incorporate by reference into this
prospectus is an important part of this prospectus. Any statement in
a document we have filed with the Commission prior to the date of this
prospectus and which is incorporated by reference into this prospectus will be
considered to be modified or superseded to the extent a statement contained in
the prospectus or any other subsequently filed document that is incorporated by
reference into this prospectus modifies or supersedes that
statement. The modified or superseded statement will not be
considered to be a part of this prospectus, except as modified or
superseded.
13
We
incorporate by reference into this prospectus the information contained in the
following documents, which is considered to be a part of this
prospectus:
|
|
·
|
our
Annual Report on Form 10-K for the year ended December 31, 2008, filed on
March 11, 2009 and amended on April 30,
2009;
|
|
·
|
our
Current Report on Form 8-K filed on February 12,
2009;
|
|
|
·
|
our
Current Report on Form 8-K filed on April 8,
2009;
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, filed
on May 8, 2009;
|
|
|
·
|
our
Current Report on Form 8-K filed on May 14,
2009;
|
|
·
|
our
Current Report on Form 8-K filed on May 27,
2009;
|
|
|
·
|
our
Current Report on Form 8-K filed on June 4 ,
2009;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2009, filed
on August 10, 2009;
|
|
|
·
|
our
Current Report on Form 8-K filed on October 26,
2009;
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2009,
filed on November 6, 2009;
|
|
|
·
|
the
description of our common stock as set forth in our registration statement
filed on Form 8-A under the Exchange Act on May 8, 1984, as amended by
reports on:
|
|
o
|
Form
8-K filed with the SEC on May 26,
1988;
|
|
o
|
Form
8-K filed with the SEC on June 2,
1992;
|
|
o
|
Form
8-K filed with the SEC on May 18, 1999;
and
|
|
o
|
Annual
Report on Form 10-K for the year ended December 31, 2003, filed on
November 2, 2004
|
We also
incorporate by reference all additional documents that we file with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
that are filed after the effective date of the registration statement of which
this prospectus is a part and prior to the termination of the offering of
securities offered pursuant to this prospectus. We are not, however,
incorporating in each case, any documents or information that we are deemed to
“furnish” and not file in accordance with the Commission rules.
14
You may
obtain a copy of these filings, without charge, by writing or calling us
at:
Cadiz
Inc.
550 South
Hope Street
Suite
2850
Los
Angeles, California 90071
Attention:
Investor Relations
(213)
271-1600
No dealer,
salesperson, or other person has been authorized to give any information or to
make any representation not contained in this prospectus, and, if given or made,
such information and representation should not be relied upon as having been
authorized by us or any selling shareholder. This prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any of the
securities offered by this prospectus in any jurisdiction or to any person to
whom it is unlawful to make such offer or solicitation. Neither the
delivery of this prospectus nor any sale made hereunder shall under any
circumstances create an implication that there has been no change in the facts
set forth in this prospectus or in our affairs since the date
hereof.
15
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
| SEC registration fee | $ | 549.81 |
| Printing expenses | $ | 0.00 |
| Accounting fees and expenses | $ | 10,000.00 |
| Legal fees and expenses | $ | 5,000.00 |
| Miscellaneous | $ | 0.00 |
| Total | $ | 15,549.81 |
Section 145
of the Delaware General Corporation Law permits our Board of Directors to
indemnify any person against expenses, attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with any threatened, pending or completed action, suit or proceeding in which he
is made a party because he serves or served as a director, officer, employee or
agent of Cadiz or of another entity. The language of Section 145 is
sufficiently broad to permit indemnification in some situations for liabilities,
including reimbursement for expenses incurred, arising under the Securities Act
of 1933, as amended. The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
Our Bylaws
provide for mandatory indemnification of directors and officers of Cadiz, and
those serving at the request of Cadiz as directors, officers, employees, or
agents of other entities, to the maximum extent permitted by law. The
Bylaws provide that this indemnification shall be a contract right between each
of these persons and Cadiz.
Our
Certificate of Incorporation provides that a director of the company shall not
be personally liable to the company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability:
|
(1)
|
for
any breach of the director's duty of loyalty to Cadiz or its
stockholders;
|
|
(2)
|
for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of
law;
|
|
(3)
|
under
Section 174 of the Delaware General Corporation Law;
or
|
|
(4)
|
for
any transaction from which the director derived an improper personal
benefit.
|
II-1
Our
Certificate of Incorporation provides that if the Delaware General Corporation
Law is subsequently amended to authorize the further elimination or limitation
of the liability of a director, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the law as
amended. We have also purchased a liability insurance policy which
insures our directors and officers against certain liabilities, including
liabilities under the Securities Act of 1933.
Item
16. Exhibits.
The following
exhibits are filed or incorporated by reference as part of this Registration
Statement.
| 4.1 | Specimen form of stock certificate(1) |
| 4.2 | Cadiz Inc. Certificate of Incorporation, as amended(2) |
| 4.3 | Amendment to Cadiz Inc. Certificate of Incorporation dated November 8, 1996(3) |
| 4.4 | Amendment to Cadiz Inc. Certificate of Incorporation dated September 1, 1998(1) |
| 4.5 | Amendment to Cadiz Inc. Certificate of Incorporation dated December 15, 2003(4) |
| 4.6 | Certificate of Elimination of Series D Preferred Stock, Series E-1 Preferred Stock and Series E-2 Preferred Stock of Cadiz Inc. dated December 15, 2003(4) |
| 4.7 | Certificate of Elimination of Series A Junior Participating Preferred Stock of Cadiz Inc., dated March 25, 2004(4) |
| 4.8 | Amended and Restated Certificate of Designations of Series F Preferred Stock of Cadiz Inc. dated November 30, 2004(5) |
| 4.9 | Second Amended and Restated Certificate of Designations of Series F Preferred Stock of Cadiz Inc. dated June 30, 2006(6) |
| 4.10 | Cadiz Inc. Bylaws, as amended(7) |
| 4.11 | Certificate of Elimination of Series F Preferred Stock of Cadiz Inc. (as filed August 3, 2007)(8) |
| 4.12 | Form of Subscription Agreement used for issuance of Units in October and November 2009(9) |
| 4.13 | Form of Warrant Agreement(9) |
| 5.1 | Opinion of Theodora Oringher Miller & Richman PC as to the legality of the securities being registered |
| 23.1 | Consent of PricewaterhouseCoopers LLP(9) |
| 23.2 | Consent of Theodora Oringher Miller & Richman PC (included in its opinion filed as Exhibit 5.1) |
| 24.1 | Power of Attorney (included on signature page of the original registration statement filed on November 24, 2009, and incorporated by reference) |
| 99.1 | Letter of Intent with Golden State Water Company dated June 1, 2009(9) |
II-2
|
(1)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended September 30, 1998 and incorporated herein by
reference
|
|
(2)
|
Previously
filed as an exhibit to our registration statement on Form S-1
(Registration No. 33-75642) and incorporated herein by
reference
|
|
(3)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended September 30, 1996 and incorporated herein by
reference
|
|
(4)
|
Previously
filed as an exhibit to our annual report on Form 10-K for the year ended
December 31, 2003, filed on November 2, 2004 and incorporated herein by
reference
|
|
(5)
|
Previously
filed as an exhibit to our current report on Form 8-K dated November 30,
2004 and filed on December 2, 2004, and incorporated herein by
reference
|
|
(6)
|
Previously
filed as an exhibit to our current report on Form 8-K dated July 6, 2006
and filed on July 6, 2006, and incorporated herein by
reference
|
|
(7)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended June 30, 1999 and incorporated herein by
reference
|
|
(8)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended June 30, 2007 and incorporated herein by
reference
|
|
(9) |
Previously filed as an exhibit to the original registration statement filed on November 24, 2009, and incorporated herein by reference |
Item
17. Undertakings.
(a) The
undersigned registrant hereby undertakes:
|
|
(1)
|
to
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
|
|
|
(i)
|
To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933;
|
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
|
|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration
statement;
|
II-3
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if
the registration statement is on Form S-3 , and the information required to be
included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of this
registration statement;
|
|
(2)
|
That,
for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof; and
|
|
|
(3)
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
|
|
|
(4)
|
[Intentionally
omitted]
|
|
|
(5)
|
That,
for the purpose of determining liability under the Securities Act of 1933
to any purchaser:
|
|
|
(i)
|
If
the registrant is subject to Rule 430C, each prospectus filed pursuant to
Rule 424(b) as part of a registration statement relating to an offering,
other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of
and included in the registration statement as of the date it is first used
after effectiveness. Provided, however, that
no statement made in a registration statement or prospectus that is part
of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that
was part of the registration statement or made in any such document
immediately prior to such date of first
use.
|
|
(b)
|
That
for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona
fide offering thereof.
|
|
(c)
|
Insofar
as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such
issue.
|
II-4
Pursuant to
the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of Los
Angeles, State of California, on December 7, 2009.
CADIZ INC.
Registrant
| By: | /s/ Keith Brackpool |
| Keith Brackpool | |
| Chairman and Chief Executive Officer |
KNOW ALL
YE BY THESE PRESENTS, that each individual whose signature appears below
constitutes and appoints Keith Brackpool and Timothy J. Shaheen, and each of
them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement and any subsequent registration statements filed
by the Registrant pursuant to Rule 462(b) of the Securities Act of 1933, which
relates to this Registration Statement, and to file same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to
the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated.
|
SIGNATURE
|
TITLE
|
DATE
|
|
/s/ Keith Brackpool
Keith
Brackpool
|
Chief
Executive Officer
and
Director
(Principal
Executive Officer)
|
December
7, 2009
|
|
/s/ Timothy J.
Shaheen
Timothy
J. Shaheen
|
Chief
Financial Officer and Director
(Principal
Financial and
Accounting
Officer)
|
December
7, 2009
|
|
*
Murray
H. Hutchison
|
Director
|
December
7, 2009
|
|
*
Raymond
J. Pacini
|
Director
|
December
7, 2009
|
|
*
Stephen
J. Duffy
|
Director
|
December
7, 2009
|
|
*
Winston
H. Hickox
|
Director
|
December
7, 2009
|
|
*
Geoffrey
Grant
|
Director
|
December
7, 2009
|
|
*
Stephen
E. Courter
|
Director
|
December
7, 2009
|
|
By: /s/ Timothy J.
Shaheen
Attorney-in-fact
|
EXHIBITS
INDEX
Exhibit
No.: Title of
Document
| 4.1 | Specimen form of stock certificate(1) |
| 4.2 | Cadiz Inc. Certificate of Incorporation, as amended(2) |
| 4.3 | Amendment to Cadiz Inc. Certificate of Incorporation dated November 8, 1996(3) |
| 4.4 | Amendment to Cadiz Inc. Certificate of Incorporation dated September 1, 1998(1) |
| 4.5 | Amendment to Cadiz Inc. Certificate of Incorporation dated December 15, 2003(4) |
| 4.6 | Certificate of Elimination of Series D Preferred Stock, Series E-1 Preferred Stock and Series E-2 Preferred Stock of Cadiz Inc. dated December 15, 2003(4) |
| 4.7 | Certificate of Elimination of Series A Junior Participating Preferred Stock of Cadiz Inc., dated March 25, 2004(4) |
| 4.8 | Amended and Restated Certificate of Designations of Series F Preferred Stock of Cadiz Inc. dated November 30, 2004(5) |
| 4.9 | Second Amended and Restated Certificate of Designations of Series F Preferred Stock of Cadiz Inc. dated June 30, 2006(6) |
| 4.10 | Cadiz Inc. Bylaws, as amended(7) |
| 4.11 | Certificate of Elimination of Series F Preferred Stock of Cadiz Inc. (as filed August 3, 2007)(8) |
| 4.12 | Form of Subscription Agreement used for issuance of Units in October and November 2009(9) |
| 4.13 | Form of Warrant Agreement(9) |
| 5.1 | Opinion of Theodora Oringher Miller & Richman PC as to the legality of the securities being registered |
| 23.1 | Consent of PricewaterhouseCoopers LLP(9) |
| 23.2 | Consent of Theodora Oringher Miller & Richman PC (included in its opinion filed as Exhibit 5.1) |
| 24.1 | Power of Attorney (included on signature page of the original statement filed on November 24, 2009, and incorporated by reference) |
| 99.1 | Letter of Intent with Golden State Water Company dated June 1, 2009(9) |
______________________________
|
(1)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended September 30, 1998 and incorporated herein by
reference
|
|
(2)
|
Previously
filed as an exhibit to our registration statement on Form S-1
(Registration No. 33-75642) and incorporated herein by
reference
|
|
(3)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended September 30, 1996 and incorporated herein by
reference
|
|
(4)
|
Previously
filed as an exhibit to our annual report on Form 10-K for the year ended
December 31, 2003, filed on November 2, 2004, and incorporated herein by
reference
|
|
(5)
|
Previously
filed as an exhibit to our current report on Form 8-K dated November 30,
2004 and filed on December 2, 2004, and incorporated herein by
reference
|
|
(6)
|
Previously
filed as an exhibit to our current report on Form 8-K dated July 6, 2006
and filed on July 6, 2006, and incorporated herein by
reference
|
|
(7)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended June 30, 1999 and incorporated herein by
reference
|
|
(8)
|
Previously
filed as an exhibit to our quarterly report on Form 10-Q for the quarter
ended June 30, 2007 and incorporated herein by
reference
|
|
(9) |
Previously filed as an exhibit to the original registration statement filed on November 24, 2009, and incorporated herein by reference |