AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 15, 2005
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)
DELAWARE 77-0313235
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
777 S. FIGUEROA STREET
SUITE 4250
LOS ANGELES, CALIFORNIA 90017
(213) 271-1600
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
KEITH BRACKPOOL
CHIEF EXECUTIVE OFFICER
777 S. FIGUEROA STREET
SUITE 4250
LOS ANGELES, CALIFORNIA 90017
(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.
TORRIE M. BYERS, ESQ.
MILLER & HOLGUIN
1801 CENTURY PARK EAST, SEVENTH FLOOR
LOS ANGELES, CALIFORNIA 90067
(310) 556-1990
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: [ ]
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. [ ]
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. [ ]
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. [ ]
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. [ ]
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER UNIT PRICE FEE
---------------------- ---------- -------- -------------- ------------
Common Stock, Par 4,302,109 $20.25(2) $87,117,707.25 $9,321.59
Value $0.01 Per Share Shares(1)
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(1) This registration statement is being used to register
4,302,109 shares of common stock, including 405,400 shares
of common stock underlying a like number of warrants for the
purchase of common stock and 17,289 shares of common stock
issuable upon conversion of 1,000 shares of Series F
Preferred Stock. Also registered hereunder are an
indeterminate number of additional shares of common stock
that may become issuable by virtue of the anti-dilution
provisions of the warrants and Series F Preferred Stock
(2) 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 National Stock Market
for December 13, 2005, which date is within five business
days prior to the initial filing date of this 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 preliminary prospectus is not an
offer to sell nor does it seek an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
DATED DECEMBER 15, 2005, SUBJECT TO COMPLETION
CADIZ INC.
4,302,109 SHARES OF COMMON STOCK, INCLUDING
405,400 SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF WARRANTS
AND
17,289 SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF SERIES F
PREFERRED STOCK
The selling stockholders identified in this prospectus may
offer from time to time up to 4,302,109 shares of common stock of
Cadiz Inc. We have agreed to pay for expenses of the offering.
We will not receive any of the proceeds from the sale of the
shares by the selling stockholders. However, we will receive the
exercise price of the warrants if and when they are exercised.
These warrants entitle the holders to purchase common stock at an
initial exercise price per share of $15.00.
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 National Market
System, 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 National Market
System under the symbol "CDZI". On December 13, 2005, the last
reported sale price of our common stock on Nasdaq was $20.50.
------------
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
YOU SHOULD CAREFULLY READ AND CONSIDER THE "RISK FACTORS"
BEGINNING ON PAGE 3.
-----------
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 ______________, 2005.
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 3. 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 7.
ABOUT CADIZ INC.
Our primary asset consists of three separate properties, each
of which consists of largely contiguous land in eastern San
Bernardino County, California. This land position totals
approximately 45,000 acres. Virtually all of this land is
underlain by high-quality groundwater resources with demonstrated
potential for various applications, including water storage and
supply programs and agricultural, municipal, recreational, and
industrial development. Two of the three properties are located
in proximity to the Colorado River Aqueduct, the major source of
imported water for southern California. The third property is
located near the Colorado River.
The value of these assets derives from a combination of
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 those companies that possess or can provide
high quality, reliable, and affordable water to major population
centers.
We expect to be able to use our land assets and related water
resources to participate in a broad variety of asset development
programs, including water storage and supply, exchange, and
conservation programs with public agencies and other parties.
Our principal executive offices are located at 777 S.
Figueroa Street, Suite 4250, Los Angeles, California 90401-90017
and our telephone number is (213) 271-1600.
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 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 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 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 hydrologic risks of variable
water supplies, risks presented by allocations of water under
existing and prospective priorities, and risks of adverse changes
to or interpretations of U.S. federal, state and local laws,
regulations and policies. Additional risks attendant to such
programs 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 water supplies, and the time gap needed to
generate significant operating revenues from such programs after
operations commence.
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, 2005, we had indebtedness outstanding to
our senior secured lender of approximately $25.9 million. Our
assets have been put up as collateral to secure the payment of
this debt. If we cannot generate sufficient cash flow to make
timely payments of principal and interest on this indebtedness,
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, may
result in a cessation or sale of our operations.
THE ISSUANCE OF SHARES UNDER OUR MANAGEMENT EQUITY INCENTIVE PLAN
WILL IMPACT EARNINGS.
Under applicable accounting rules, the issuance of shares
and options under our Management Incentive Equity Plan will
result in a charge to earnings based on the value of our common
stock at the time of issue and the valuation of options at the
time of their award and will be recorded over the vesting period
in proportion to the quantities vested. Our Management Equity
Incentive Plan provides for the issuance of up to 1,472,051
shares of common stock. Subsequent to January 1, 2005 we have
issued stock or options to purchase stock representing 1,459,712
of the shares authorized for issuance under this Management
Equity Incentive Plan. Based on the trading price of our common
stock at the time of such issuances, such issuances will result
in significant charges to our earnings for our fiscal years
ending December 31, 2005 and 2006. The cost of approximately 83%
of the shares and options issued in our fiscal year ending
December 31, 2005 will be an expense during 2005. We have
recognized $13.6 million of such costs as of September 30, 2005.
WE MAY NOT BE ABLE TO OBTAIN THE FINANCING WE NEED TO IMPLEMENT
OUR ASSET DEVELOPMENT PROGRAMS.
We may require additional capital to finance our operations
until such time as our asset development operations 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 SALE OF SHARES COVERED BY THIS PROSPECTUS AND FUTURE SALES OF
COMMON STOCK COULD REDUCE THE MARKET PRICE OF OUR COMMON STOCK
AND DILUTE OUR EARNINGS PER SHARE.
The registration for resale of common stock under this
prospectus increases the number of outstanding shares of our
common stock eligible for resale. The sale, or availability for
sale, of these shares could cause decreases in the market price
of our common stock, particularly in the event that a large
number of shares were sold in the public market over a short
period of time. Similarly, the perception that additional shares
of our common stock could be sold in the public market in the
future, could cause a reduction in the trading price of our
stock.
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 the 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 lender prohibit the payment of dividends while
such facilities are outstanding. As we have a history of
operating losses, we have been unable to date to pay dividends.
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.
USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling
stockholders of our common stock. However, in order for the
selling stockholders to sell shares of common stock issuable upon
exercise of warrants, the selling stockholders must first exercise
these warrants. We will therefore receive an amount equal to the
exercise price of the warrants if and when any of these warrants
are exercised.
Under the terms of our senior secured debt, we are obligated
to and shall use the gross proceeds, if any, from the exercise of
the warrants to prepay this senior secured debt.
SALES BY SELLING STOCKHOLDERS
The selling stockholders are offering under this prospectus a
total of 4,302,109 shares of our common stock. The selling
stockholders acquired these shares of our common stock (or the
convertible securities which are convertible into these shares of
our common stock) in previously completed unregistered sales of
equity securities. The following is a summary of the initial
transactions in which such equity securities were sold.
On December 15, 2003 we issued 100,000 shares of our Series F
preferred stock in connection with the concurrent restructuring of
our senior secured debt with ING Capital, LLC ("ING"). On
November 30, 2004, ING agreed to convert 99,000 shares of our
Series F preferred stock into 1,711,665 shares of our common
stock, leaving 1,000 shares of Series F preferred stock
outstanding. The outstanding Series F preferred stock is
convertible into 17,289 shares of our common stock.
In February, 2004, we issued 60,000 shares of common stock in
consideration for services and 80,000 shares of common stock in
payment of a bonus for services rendered. In March, 2004 we
issued 555 shares of common stock to affiliates who exchanged
their deferred stock units for shares of common stock upon their
vesting dates.
On November 30, 2004 we completed a private placement of
2,000,000 shares of our common stock and 400,000 common stock
purchase warrants. Each warrant entitles the holder to purchase
one share of common stock at an exercise price of $15.00 per
share. Each warrant expires on November 30, 2007 and is callable
by us if the closing market price of our common stock exceeds
$18.75 for ten consecutive trading days. ING acquired 200,000
shares of our common stock and 40,000 common stock purchase
warrants in this private placement.
On February 23, 2005 we issued 27,200 shares of our common
stock and 5,400 common stock purchase warrants in consideration of
services provided to us. The terms of the warrants issued in this
placement are identical to those issued in the November 30, 2004
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 as of December 1, 2005, 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. Specifically, we may
amend or supplement this prospectus pursuant to Rule 430B under
the Securities Act in order to identify selling stockholders who
acquired our securities in the November 30, 2004 private placement
described above and whose identity has been omitted from the
following table in accordance with Rule 430B(b)(2).
SECURITIES SECURITIES
BENEFICIALLY BENEFICIALLY PERCENTAGE
OWNED SECURITIES OWNED OWNERSHIP
NAME OF SELLING PRIOR TO OFFERED AFTER AFTER
STOCKHOLDER OFFERING(1) FOR SALE OFFERING(2) OFFERING(3)
----------- ------------ ------------ ----------- -----------
ING Groep N.V. 1,968,954(4) 1,968,954(4) 0 *
ING Capital LLC
Keith Brackpool (5) 446,564(6) 80,370 366,194(6) 3.3%
Timothy J. Shaheen (7) 73,290 185 73,105 *
Michael Badeni 104,774(8) 92,600(8) 12,174 *
---------------------------
* Less than 1%.
(1) 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. 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.
(2) Assumes the sale of all shares of common stock offered
hereby.
(3) Based upon 10,965,568 shares of common stock outstanding as
of December 1, 2005
(4) Based upon a Schedule 13D filed on February 15, 2005 with
the SEC by ING Groep N.V. and ING Capital LLC, a wholly-owned
indirect subsidiary of ING Groep N.V., and based on our corporate
records, ING Groep N.V. and ING Capital LLC collectively
beneficially own (i) 1,911,665 shares of common stock, (ii)
17,289 shares of common stock issuable upon conversion of 1,000
shares of Series F Preferred Stock, and (iii) 40,000 shares of
common stock issuable upon the exercise of 40,000 common stock
purchase warrants by ING Capital LLC. ING Capital LLC has sole
voting and dispositive power as to all of the shares of common
stock, Series F Preferred Stock and common stock purchase
warrants.
ING Capital LLC is the holder of our senior secured debt.
In addition, ING Capital LLC, as the sole holder of our
Series F Preferred Stock, currently has the right to
nominate and elect two directors to our Board of Directors.
ING Capital LLC has nominated and elected Geoffrey W. Arens
and Raymond J. Pacini to serve as directors.
(5) Mr. Brackpool is our Chief Executive Officer and a member of
our Board of Directors.
(6) Includes 100,000 shares of common stock issuable upon
conversion of 100,000 employee stock options. Also includes
30,500 shares owned by a foundation of which Mr. Brackpool is a
trustee, but in which Mr. Brackpool has no economic interest and
2,000 shares owned by his separated spouse. Mr. Brackpool
disclaims any beneficial ownership of the 32,500 shares owned by
the foundation and his separated spouse.
(7) Mr. Shaheen is a member of our Board of Directors.
(8) Includes 5,400 shares issuable upon the exercise of 5,400
common stock purchase warrants.
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 National 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 agreed to indemnify the selling stockholders against
liabilities they may incur as a result of any untrue statement or
alleged untrue statement of a material fact in the registration
statement of which this prospectus forms a part, or any omission
or alleged omission in this prospectus or the registration
statement to state a material fact necessary in order to make the
statements made not misleading. This indemnification includes
liabilities that the selling stockholders may incur under the
Securities Act of 1933. We do not have to give such
indemnification if the untrue statement or omission was made in
reliance upon and in conformity with information furnished in
writing to us by the selling stockholders for use in this
prospectus or the registration statement.
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 Miller & Holguin LLP, attorneys at law, Los Angeles,
California.
EXPERTS
The financial statements incorporated in this prospectus by
reference to our Annual Report on Form 10-K for the year ended
December 31, 2004 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.
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:
* our Annual Report on Form 10-K for the year ended
December 31, 2004, filed on March 31, 2005;
* our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2005, filed on May 16, 2005;
* our Quarterly Report on Form 10-Q for the quarter ended
June 30, 2005, filed on August 12, 2005;
* our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2005, filed on November 14, 2005;
* our Current Report on Form 8-K dated May 4, 2005, filed
on May 6, 2005;
* our Current Report on Form 8-K dated June 16, 2005, filed
on June 17, 2005;
* our Current Report on Form 8-K dated August 26, 2005,
filed on August 30, 2005;
* our Current Report on Form 8-K dated October 3, 2005,
filed on October 3, 2005;
* 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, file number 012114, as amended by
reports on:
* Form 8-K filed with the SEC on May 26, 1988;
* Form 8-K filed with the SEC on June 2, 1992;
* Form 8-K filed with the SEC on May 18, 1999; and
* 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.
You may obtain a copy of these filings, without charge, by
writing or calling us at:
Cadiz Inc.
777 S. Figueroa Street
Suite 4250
Los Angeles, California 90017
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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Cadiz estimates that expenses in connection with the
distribution described in this Registration Statement will be as
shown below. All expenses incurred with respect to the
distribution, except for fees of counsel, if any, retained
individually by a selling stockholder and any discounts or
commissions payable with respect to sales of the shares, will be
paid by Cadiz. See "Plan of Distribution."
SEC registration fee $ 9,321.59
Printing expenses -
Accounting fees and expenses $ 7,000.00
Legal fees and expenses $20,000.00
Miscellaneous $ 3,678.41
----------
Total $40,000.00
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits
Cadiz' 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.
Cadiz' 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.
The subscription agreements between Cadiz and the purchasers
of the securities registered for resale under this registration
statement provide that Cadiz shall indemnify the purchasers for
liabilities under the Securities Act of 1933 arising out of
untrue statements and omissions of material fact made by Cadiz in
this registration statement. The subscription agreements also
provide that the purchasers similarly shall indemnify Cadiz and
controlling persons of Cadiz for liabilities under the Securities
Act of 1933 arising out of untrue statements and omissions of
material fact made by the purchasers in this registration
statement.
Cadiz' 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.
Cadiz' 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. Cadiz also has purchased a liability insurance
policy which insures its 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.
5.1 Opinion of Miller & Holguin as to the legality of
the securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Miller & Holguin (included in its opinion filed
as Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Form of Common Stock Purchase Warrant
------------------------------
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);
(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) Each prospectus filed by the registrant pursuant
to Rule 424(b)(3) shall be deemed to be part of
the registration statement as of the date the
filed prospectus was deemed part of and included
in the registration statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5), or (b)(7) as part of a
registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule
415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section
10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the
registration statement as of the earlier of the
date such form of prospectus is first used after
effectiveness or the date of the first contract of
sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person
that is at that date an underwriter, such date
shall be deemed to be a new effective date of the
registration statement relating to the securities
in the registration statement to which that
prospectus relates, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof. 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 effective date, 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 effective date.
(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) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual
report to stockholders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim
financial information required to be presented by Article 3
of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) 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.
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 15,
2005.
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 O'Donnell Iselin II, 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 Chief Executive Officer December 15, 2005
----------------------- and Director
Keith Brackpool (Principal Executive
Officer)
/s/ O'Donnell Iselin II Chief Financial Officer December 15, 2005
----------------------- (Principal Financial
O'Donnell ISelin II and Accounting Officer)
/s/ Murray H. Hutchison Director December 15, 2005
-----------------------
Murray H. Hutchison
/s/ Timothy J. Shaheen Director December 15, 2005
-----------------------
Timothy J. Shaheen
/s/ Geoffrey W. Arens Director December 15, 2005
-----------------------
Geoffrey W. Arens
/s/ Raymond J. Pacini Director December 15, 2005
-----------------------
Raymond J. Pacini
EXHIBITS INDEX
EXHIBIT NO.: TITLE OF DOCUMENT
------------ -----------------
5.1 Opinion of Miller & Holguin LLP as to the legality
of the securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Miller & Holguin LLP (included in its opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
99.1 Form of Common Stock Purchase Warrant
------------------------------