As
filed with the Securities and Exchange Commission on December 30,
2008
Registration
No. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CADIZ
INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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77-0313235
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(State or other
jurisdiction of
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(I.R.S.
Employer
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incorporation or
organization)
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Identification
No.)
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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.
J.
Brad Wiggins, Esq.
Torrie
M. Byers, 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):
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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)
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Smaller
reporting company o
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Calculation
of Registration Fee
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Title
of Each Class of Securities to be
Registered
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Amount
to
be
Registered
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Proposed
Maximum
Offering
Price
Per
Unit
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock, Par Value $0.01 Per Share
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825,000
Shares(1)
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$11.76(2)
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$9,702,000
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$381.29
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(1)
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This
registration statement is being used to register for resale (i) 495,000
shares of common stock issued to investors pursuant to a private placement
which closed in 2008 (“Private Placement”) (ii) 165,000 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,
and (iii) 165,000 shares of common stock issuable upon the exercise of
outstanding non-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
December 23, 2008, which date is within five business days prior to the
initial filing date of this registration
statement.
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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 30, 2008, SUBJECT TO COMPLETION
CADIZ
INC.
825,000
Shares of Common Stock
The selling stockholders identified
in this prospectus may offer from time to time up to 825,000 shares of our
common stock, including 495,000 shares of common stock purchased by the selling
stockholders in our 2008 private offering (“Private Placement”), 165,000 shares
of common stock issuable upon the exercise of callable warrants issued to those
stockholders, and 165,0000 shares of common stock issuable upon the exercise of
non-callable warrants issued to those stockholders. 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 December 23, 2008,
the last reported sale price of our common stock on Nasdaq was
$11.70.
___________
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 ______________, 2008.
i
TABLE OF CONTENTS
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3
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3
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5
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7
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9
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10
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11
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11
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11
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11
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Unless the
context otherwise requires, the terms “we,” “us,” “our,” “Cadiz,” and “the
Company” refer to Cadiz Inc., a Delaware corporation.
ii
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 11.
PROSPECTUS SUMMARY
Our
Business
Our primary
asset consists 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. 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 aquifer systems
underlying the properties are suitable for a variety of water storage and supply
programs.
The value of
these assets derives from a combination of projected population increases and
limited water supplies throughout Southern California. In addition,
most of the major population centers in Southern California are not located
where significant precipitation occurs, requiring the importation of water from
other parts of the state. We therefore believe that a competitive
advantage exists for companies that can provide high-quality, reliable, and
affordable water to major population centers.
Our objective
is to realize the highest and best use for these assets. In 1993, we
acquired permits for up to 9,600 acres of agricultural development in the Cadiz
Valley and the withdrawal of more than 1 million acre-feet of groundwater from
the aquifer system underlying our Cadiz Valley property. We believe
that the location, geology and hydrology of this property is uniquely suited for
both agricultural development and the development of a groundwater storage and
dry-year supply program to augment the water supplies available to Southern
California.
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.
3
Private
Placement of Securities
In November
and December 2008 we sold a total of 165,000 units in a private offering of
securities. Each unit consisted of three (3) shares of our common
stock and two (2) warrants to purchase 1 share of common stock per
warrant. As a result of the sale of the units, we issued an aggregate
of 495,000 shares of our common stock and an aggregate of 330,000 warrants. The
warrants are exercisable at any time ninety (90) days after issuance and have an
exercise price of $12.50 per share. One of the warrants issued with
each unit expires one year from the date of issuance and is subject to call
rights by us. The other warrant issued with each unit expires three
years from the date of issuance and is not subject to call rights. 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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825,000
shares of common stock, including 330,000 shares of common stock
underlying warrants
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Use
of proceeds
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We
will not receive any of the proceeds from the sale of the shares by any of
the selling stockholders.
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Nasdaq
Global Market symbol
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“CDZI”
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Risk
Factors
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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.
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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 development activities are focused on water resource and real estate
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 from these
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
real estate 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. Both water and real estate
development programs are subject to the risk of adverse changes in public
policies and changes to or interpretations of U.S. federal, state and local
laws, regulations and policies. 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 and Requires Governmental
Approvals and Permits That Could Be Denied
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 these laws 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, 2008 fiscal year federal government appropriations did not include
funding to allow for Cadiz Project permit work at the U.S. Department of the
Interior.
Moreover, 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.
5
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, 2008, we had indebtedness outstanding to our senior secured
lenders of approximately $40.7 million. Our assets have been put up
as collateral for this debt. If we cannot generate sufficient cash
flow to make principal and interest 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, 2008, our senior indebtedness was
convertible into 1,896,356 shares of our common stock, an amount equal to
approximately 16% of the number of 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
We will
require additional capital to finance our operations until such time as our
asset development programs produce revenues. 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. Any further equity financings would result in the dilution of
ownership interests of our current stockholders.
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.
We
Are Restricted by Contract from Paying Dividends and We Do Not Intend To Pay
Dividends in the Foreseeable Future
Any return on
investment on our common stock will depend primarily upon appreciation in the
price of our common stock. To date, we have never paid a cash
dividend on our common stock. The loan documents governing our credit
facilities with our senior secured lenders prohibit the payment of dividends
while such facilities are outstanding. As we have a history of
operating losses, we have been unable to pay dividends to date. Even
if we post a profit in future years, we currently intend to retain all future
earnings for the operation of our business. As a result, we do not
anticipate that we will declare any dividends in the foreseeable
future.
6
SALES BY SELLING
STOCKHOLDERS
In November
and December 2008 we sold a total of 165,000 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 two (2) warrants to purchase 1 share of common stock per
warrant (“Warrants”). As a result of the sale of the Units, we issued
an aggregate of 495,000 shares of our common stock (based on 3 shares per Unit)
and an aggregate of 330,000 Warrants (based on 2 Warrants 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 $12.50 per share and are exercisable commencing the
date that is ninety (90) days from their date of issuance.
One of the
two Warrants issued in the Private Placement is callable by us, subject to
certain conditions, if at any time following the date that is six (6) months
from the date of issuance of the Warrant, the closing market price of our common
stock equals or exceeds $18.75 (subject to adjustment if the exercise price of
the Warrant is adjusted as described in the Warrant) for ten (10) consecutive
trading days (“Callable Warrant”). A condition to the exercise
of our call rights is that the registration statement has been declared
effective and remains effective through the date we terminate the Callable
Warrant and exercise our call rights (“Callable Warrant Termination
Date”). A holder of a Callable Warrant has the right to exercise the
Callable Warrant at any time prior to the Callable Warrant Termination
Date.
The Callable
Warrant expires, absent an earlier termination if a Callable Warrant Termination
Date occurs, on the date that is one (1) year from the date of
issuance. Callable Warrants to purchase an aggregate of 165,000
shares of our common stock were issued in the Private Placement.
The other
Warrant issued in the Private Placement is not callable by us (“Non-Callable
Warrant”). The Non-Callable Warrant expires on the date that is three
(3) years from the date of issuance. Non-Callable Warrants to
purchase an aggregate of 165,000 shares of our common stock were issued in the
Private Placement.
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 following
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.
7
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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
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2,517,823(5)
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480,000(6)
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2,037,823
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14.18%
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LPMA1,
LTD.
c/o
Latigo Partners L.P.
590
Madison Avenue
9th
Floor
New
York, NY 10022
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270,000(7)
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240,000(8)
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30,000
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0%
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Pictet
& Cie, Banquiers
60,
route des Acacias
CH-1211
Geneva
Switzerland
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259,587(9)
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43,650(10)
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215,937
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1.7%
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Credit
Suisse Client Nominees (UK) Limited
1
Cabot Square
Canary
Wharf
London
E14
4QJ
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20,000(11)
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20,000(12)
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-0-
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0%
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Fortis
Banque (Suisse) SA
20
Boulevard des Philosophes
1211
Geneva
Switzerland
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96,443(13)
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19,840(14)
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76,603
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0%
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Mark
Fabiani, LLC
939
Coast Boulevard
Suite
4D
La
Jolla, CA 90237
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10,755(15)
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10,755(16)
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-0-
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0%
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CSL
Strategies, LLC
115
Presidio Ave
San
Francisco, CA 94115
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10,755(17)
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10,755(18)
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-0-
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0%
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___________________________
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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 December 24, 2008. The shares listed in this column
include shares issuable upon the exercise of the Warrants issued in the
Private Placement because the Warrants are exercisable within 60 days of
December 24, 2008. 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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(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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8
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(4)
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Based
upon (a) 12,453,210
shares of common stock outstanding as of December 24, 2008, which includes
the 495,000 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; and (c) as
to L.C. Capital Master Fund, Ltd., only, an additional shares 1,724,971
shares outstanding giving effect to the conversion of the Loan and
issuance of the Loan Shares described in footnote (5)
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”).
Based
upon a Form 4 filed on November 20, 2008 with the SEC by LC Capital Master
Fund Ltd.
Includes 600,852 shares of common stock
beneficially owned as of November 20, 2008, including 288,000 shares
acquired in the 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 the Private Placement. Includes
561,455 shares of common stock issuable upon conversion of $10,190,419.04
in principal and interest under the Loan as of December 15, 2008 at a
conversion rate of $18.15 per share and 1,163,516 shares of common stock
issuable upon conversion of $26,877,230.22 in principal and interest under
the Loan as of December 15, 2008 at a conversion rate of $23.10 per share
(collectively, the Loan Shares”). Does not include 274,739 shares of
common stock issuable upon conversion of a maximum of an additional
$5,903,831.92 in interest which may accrue in favor of LC Capital Master
Fund Ltd. during the term of the Loan. Of the 274,739 shares of
common stock, only 14,841 was beneficially owned by LC Capital Master Fund
Ltd. as of December 15, 2008 as a result of common stock issuable upon
conversion of $318,906.41 of interest which is the amount of interest
which will have accrued within 60 days of December 15, 2008.
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.
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(6)
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Includes
288,000 shares acquired in the Private Placement and 192,000 shares
issuable upon exercise of the
Warrants.
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(7)
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Includes
144,000 shares acquired in the Private Placement and 96,000 shares
issuable upon exercise of the Warrants. Latigo
Partners, L.P., the investment manager of LP MAI, Ltd., has voting and
investment power with respect to the
securities.
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(8)
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Includes
144,000 shares acquired in the Private Placement and 96,000 shares
issuable upon exercise of the
Warrants.
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(9)
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Includes
26,190 shares acquired in the Private Placement and 17,460 shares issuable
upon exercise of the Warrants. The beneficial owner of these securities is
Hoving Partners.
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(10)
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Includes
26,190 shares acquired in the Private Placement and 17,460 shares issuable
upon exercise of the Warrants.
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(11)
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Includes
12,000 shares acquired in the Private Placement and 8,000 shares issuable
upon exercise of the Warrants. The beneficial owner of these
securities is Smith &
Williamson.
|
|
(12)
|
Includes
12,000 shares acquired in the Private Placement and 8,000 shares issuable
upon exercise of the Warrants.
|
|
(13)
|
Includes
11,904 shares acquired in the Private Placement and 7,936 shares issuable
upon exercise of the Warrants. The beneficial owner of these
securities is Hoving Partners.
|
|
(14)
|
Includes
11,904 shares acquired in the Private Placement and 7,936 shares issuable
upon exercise of the Warrants.
|
|
(15)
|
Includes
6,453 shares acquired in the Private Placement and 4,302 shares issuable
upon exercise of the Warrants.
|
|
(16)
|
Includes
6,453 shares acquired in the Private Placement and 4,302 shares issuable
upon exercise of the Warrants.
|
|
(17)
|
Includes
6,453 shares acquired in the Private Placement and 4,302 shares issuable
upon exercise of the Warrants.
|
|
(18)
|
Includes
6,453 shares acquired in the Private Placement and 4,302 shares issuable
upon exercise of the Warrants.
|
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 $4,125,000 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.
9
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.
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.
10
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 for the year ended December 31, 2007 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 and the exhibits filed with it. For further
information about us and our common stock, you should refer to the registration
statement.
You may read,
without charge, and copy, at prescribed rates, all or any portion of the
registration statement and any other reports, statements or other information in
the files of the public reference room at the SEC’s principal office at 100 F
Street, N.E., Washington, D.C. 20549. You can request copies of these
documents upon payment of a duplicating fee by writing to the
SEC. You may call the SEC at 1-800-SEC-0330 for further information
on the operation of its public reference room. Our filings, including
the registration statement, will also be available to you on the Internet
website maintained by the SEC at http://www.sec.gov.
We are
subject to the information and reporting requirements of the Securities Exchange
Act and file annual, quarterly and current reports, proxy statements and other
information with the SEC. You can request copies of these documents,
for a copying fee, by writing to the SEC. We furnish our stockholders
with annual reports containing financial statements audited by our independent
auditors.
We also make
available on our website www.cadizinc.com copies of our annual, quarterly and
special reports, proxy and information statements and other
information.
INFORMATION INCORPORATED BY
REFERENCE
The SEC
allows us to "incorporate by reference" the information we file with
them. This prospectus incorporates important business and financial
information about us which is not included in or delivered with this
prospectus. The information incorporated by reference is an important
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information.
We
incorporate by reference the following documents:
11
|
|
·
|
our
Annual Report on Form 10-K for the year ended December 31, 2007, filed on
March 14, 2008;
|
|
|
·
|
our
Current Report on Form 8-K dated April 16, 2008, filed on April 17,
2008;
|
|
|
·
|
our
Current Report on Form 8-K dated April 21, 2008, filed on April 21,
2008;
|
|
|
·
|
our
Current Report on Form 8-K dated April 30, 2008, filed on May 6,
2008;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2008, filed
on May 8, 2008;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2008, filed
on August 6, 2008;
|
|
|
·
|
our
Current Report on Form 8-K dated September 3, 2008, filed on September 8,
2008;
|
|
|
·
|
our
Current Report on Form 8-K dated September 17, 2008, filed on September
19, 2008;
|
|
|
·
|
our
Current Report on Form 8-K dated October 7, 2008, filed on October 8,
2008;
|
|
|
·
|
our
Current Report on Form 8-K dated October 9, 2008, filed on October 9,
2008;
|
|
|
·
|
our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2008,
filed on November 10, 2008;
|
|
|
·
|
our
Current Report on Form 8-K dated November 13, 2008, filed on November 13,
2008;
|
|
|
·
|
our
Current Report on Form 8-K dated November 19, 2008, filed on November 25,
2008;
|
|
|
·
|
our
Current Report on Form 8-K dated November 26, 2008, filed on November 26,
2008;
|
|
|
·
|
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
|
|
|
·
|
future
filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 until all of the shares offered by the
selling stockholders have been
sold.
|
Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement.
12
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
If you would
like to request these filings from us, please do so at least five business days
before you have to make an investment decision.
You should
rely only on the information incorporated by reference or provided in this
prospectus. We have not authorized anyone else to provide you with
different information. These securities are not being offered in any
state where the offer is not permitted. You should not assume that
the information in this prospectus or the documents incorporated by reference is
accurate as of any date other than on the front of such documents.
13
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
| SEC registration fee | $ | 381.29 | ||
| Printing expenses | $ | - | ||
| Accounting fees and expenses | $ | 12,000.00 | ||
| Legal fees and expenses | $ | 15,000.00 | ||
| Miscellaneous | $ | - | ||
|
Total
|
$ | 27,381.29 |
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(5)
4.7 Certificate
of Elimination of Series A Junior Participating Preferred Stock of Cadiz Inc.,
dated March 25, 2004(6)
4.8 Amended
and Restated Certificate of Designations of Series F Preferred Stock of Cadiz
Inc. dated November 30, 2004(7)
4.9 Second
Amended and Restated Certificate of Designations of Series F Preferred Stock of
Cadiz Inc. dated June 30, 2006(8)
4.10 Cadiz
Inc. Bylaws, as amended(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
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)
|
(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
|
II-2
|
(4)
|
Previously
filed as an exhibit to our annual report on Form 10-K for the year ended
December 31, 2003 and incorporated herein by
reference
|
|
(5)
|
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
|
|
(6)
|
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
|
|
(7)
|
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
|
|
(8)
|
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
|
|
(9)
|
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
|
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; 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 or Form F-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
|
II-3
|
|
(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
SIGNATURES
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 30, 2008.
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
30, 2008
|
|
/s/ Timothy J. Shaheen
Timothy
J. Shaheen
|
Chief
Financial Officer and Director
(Principal
Financial and
Accounting
Officer)
|
December
30, 2008
|
|
/s/ Murray H. Hutchison
Murray
H. Hutchison
|
Director
|
December
30, 2008
|
|
/s/ Raymond J. Pacini
Raymond
J. Pacini
|
Director
|
December
30, 2008
|
|
/s/ Stephen J. Duffy
Stephen
J. Duffy
|
Director
|
December
30, 2008
|
|
/s/ Winston H. Hickox
Winston
H. Hickox
|
Director
|
December
30, 2008
|
|
/s/ Geoffrey Grant
Geoffrey
Grant
|
Director
|
December
30, 2008
|
|
/s/ Stephen E. Courter
Stephen
E. Courter
|
Director
|
December
30,
2008
|
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(5)
4.7 Certificate
of Elimination of Series A Junior Participating Preferred Stock of Cadiz Inc.,
dated March 25, 2004(6)
4.8 Amended
and Restated Certificate of Designations of Series F Preferred Stock of Cadiz
Inc. dated November 30, 2004(7)
4.9 Second
Amended and Restated Certificate of Designations of Series F Preferred Stock of
Cadiz Inc. dated June 30, 2006(8)
4.10 Cadiz
Inc. Bylaws, as amended(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
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)
|
(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 and incorporated herein by
reference
|
|
(5)
|
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
|
|
(6)
|
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
|
|
(7)
|
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
|
|
(8)
|
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
|
|
(9)
|
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
|