SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
ERLY INDUSTRIES INC.
(Name of Issuer)
Common Stock, par value $.01 per share
(Title of Class of Securities)
268839 10 7
(CUSIP Number)
Jean B. LeBlanc, Esq.
Murphy, Weir & Butler
2049 Century Park East, 21st floor
Los Angeles, CA 90067
310-788-3700
(Name, Address and Telephone Number
of Person Authorized to
Receive Notices and Communications)
August 5, 1996
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with this statement / / (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendments subsequent
thereto reporting beneficial ownership of less than five percent of such class.
See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter disclosure
provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
"filed" for the purpose of Section 18 of the Securities Exchange Act of 1934
("Act") or otherwise subject to
<PAGE>
liabilities of that section of the Act but shall be subject to all other
provisions of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 268839 10 7
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Internationale Nederlanden (U.S.) Capital Corporation
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / X /
3. SEC USE ONLY
4. SOURCE OF FUNDS*
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) / /
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7. SOLE VOTING POWER 0
SHARES
BENEFICIALLY 8. SHARED VOTING POWER 0
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER 0
REPORTING
PERSON
WITH 10. SHARED DISPOSITIVE POWER 0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0%
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING
EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
Amendment No. 2 to Schedule 13D
This Statement amends the Schedule 13D, dated March 7, 1995, as amended by
Amendment No. 1 to Schedule 13D dated August 2, 1995 (the "Schedule 13D"), filed
by Internationale Nederlanden (U.S.) Capital Corporation with respect to the
Common Stock, $.01 par value (the "Common Stock") of ERLY Industries Inc., a
California corporation ("Issuer"). Capitalized terms used without definition
have the meanings ascribed to them in the Schedule 13D. Items 2, 3, 5 and 7 are
amended to add the following information.
Schedule 1 to Item 2 is amended as attached hereto and incorporated
herein by reference.
Item 3 of the Schedule 13D, "Source and Amount of Funds or Other
Consideration," is hereby amended to add the following information:
On August 25, 1995, the obligations owing from Issuer to
Internationale Nederlanden (U.S.) Capital Corporation ("Holder") under the ERLY
Juice Loan Agreement, which obligations were in the amount of approximately $9.6
million, and the obligations owing to Holder from American Rice, Inc., a Texas
corporation and a subsidiary of which Issuer then owned approximately 81% of the
voting power, which obligations were in the amount of approximately $23.4
million, were satisfied in full. As a result of such payment, among other
things, (1) with respect to the C Warrant and the D Warrant, the "Expiration
Date" (under and as defined in such warrants) occurred in accordance with the
terms thereof, and such warrants terminated, and (2) with respect to the A
Warrant and the B Warrant, (a) the "Call Period" (as defined in such warrants)
commenced, (b) the "Call Share Price" (as defined in such warrants) was reduced
to $5.50 per share, and (c) the Call Cutoff Date (as defined in such warrants)
was extended from April 30, 1996 to September 30, 1996, all in accordance with
the terms of such warrants.
In connection with a common stock dividend distributed in
September 1995 by Issuer to its shareholders and pursuant to a letter agreement
between Issuer and Holder dated September 14, 1995, the Call Share Price was
adjusted from $5.50 per share to $4.78 per share. As a result of such price
adjustment, the aggregate repurchase price to Issuer to redeem in full the A
Warrant and the B Warrant was $2,511,666.
Item 5(a) of the Schedule 13D, "Interest in Securities of the Issuer,"
is amended and restated in its entirety by the following:
On August 2, 1996, Holder transferred the A Warrant and the B
Warrant to ING (U.S.) Investment Corporation, a Delaware corporation ("ING
Investment") and a wholly-owned subsidiary of Holder. Under the terms of an
agreement dated August 5, 1996, Issuer and ING Investment agreed that the
aggregate repurchase price for the A Warrant and the B Warrant would be adjusted
to $2,125,000, subject to adjustment upon certain transactions occurring within
six (6) months of the repurchase date. On August 5, 1996, Issuer repurchased in
full the A Warrant and the B Warrant from ING Investment (exercisable for
525,167 shares of Common Stock, as adjusted pursuant to antidilution provisions)
pursuant to Issuer's call option. Following such repurchase, none of (i) Holder,
(ii) ING Investment, (iii) U.S. Holdings, (iv) INB, (v) ING, and, (vi) to the
best knowledge of Holder, the persons identified in Schedule 1 hereto, presently
beneficially own any Common Stock.
Item 7 is hereby amended to add the following exhibits that are being
filed as part of this Schedule 13D:
Item 7. Material to be Filed as Exhibits.
Exhibit 1 - Agreement dated as of August 5, 1996 between Erly Industries
Inc. and ING (U.S.) Investment Corporation, regarding the
repurchase price in connection with the call of the A Warrant
and the B Warrant by ERLY Industries Inc.
Exhibit 2 - Assignment of A Warrant from Internationale Nederlanden (U.S.)
Capital Corporation to ING (U.S.) Investment Corporation.
Exhibit 3 - Assignment of B Warrant from Internationale Nederlanden (U.S.)
Capital Corporation to ING (U.S.) Investment Corporation.
Exhibit 4 - Assignment of A Warrant from ING (U.S.) Investment Corporation
to ERLY Industries Inc.
Exhibit 5 - Assignment of B Warrant from ING (U.S.) Investment Corporation
to ERLY Industries Inc.
Exhibit 6 - Letter Agreement dated as of September 14, 1995 between
Internationale Nederlanden (U.S.) Capital Corporation and ERLY
Industries Inc. regarding the A Warrant and the B Warrant.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: August 6, 1996
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ Michael W. Adler
Name: Michael W. Adler
Title: Senior Vice President
SCHEDULE 1
Set forth below are the name and position of each of the executive
officers and directors of (i) Holder, (ii) U.S. Holdings, (iii) INB and (iv)
ING.
Except as otherwise indicated, the principal occupation of each person
listed below is as a Senior Officer of Holder, U.S. Holdings, INB and/or ING, as
the case may be. Unless otherwise indicated, each person listed below is a
citizen of The Netherlands.
The business address of each person at Holder and U.S. Holdings is 135
East 57th Street, New York, New York 10022. The business address of each person
at INB is De Amsterdamse Poort, 1102 MG, Amsterdam Zuid - Oost, Postbus 1800,
1000 AV, Amsterdam, The Netherlands. The business address of each person at ING
is Strawinskylaan 2631, Postbus 810, 1000 AV Amsterdam, The Netherlands.
Executive Officers of Holder
Name Position
L.C. Grijns Chairman
H.D. Bartges Director & President
(U.S.)
Directors of Holder
Principal Occupation
Name (if other than as indicated above)
L.C. Grijns
Chairman
H.D. Bartges Director & President
(U.S.)
J.C. Gray Treasurer and Senior Managing Director of Holder
(U.S.)
<PAGE>
Executive Officers of U.S. Holdings
Name Position
L.C. Grijns Chairman
H.D. Bartges President & Director
(U.S.)
P. Geraghty Senior Managing Director
(U.S.)
Directors of U.S. Holdings
Principal Occupation
Name (if other than as indicated above)
L.C. Grijns
Chairman
J.C. Gray
(U.S.)
H.D. Bartges
(U.S.)
H.H. Idzerda General Manager of INB
C. Maas
D. Arends
Executive Officers of INB
Name Position
G.J.A. van der Lugt Chairman
J.H.M. Lindenbergh Member
C. Maas Member
M. Minderhoud Member
Directors of INB
Principal Occupation
Name (if other than as indicated above)
J.W. Berghuis Vice Chairman, Executive Board, Koninklijke Pakhoed N.V.
J. Kamminga Chairman of the Board, MKB Nederland; director of
Makelaarskantoor J. Kamminga & Zonen B.V.
O.H.A. van Royen Retired
G. Verhagen Chairman
P.F. van der Heijden
<PAGE>
Executive Officers of ING
Name Position
A.G. Jacobs Chairman
G.J.A. van der Lugt Vice Chairman
J.H. Holsboer Member
H. Huizinga Member
E. Kist Member
J.H.M. Lindenbergh Member
C. Maas Member
M. Minderhoud Member
Directors of ING
Principal Occupation
Name (if other than as indicated above)
J.P. Erbe Chairman
L.A.A. van den Berghe Professor at Erasmus University of Rotterdam,
(Belgium) The Netherlands (Economics and management of
insurance companies)
J.W. Berghuis Vice Chairman, Executive Board, Koninklijke Pakhoed N.V.
P.F. van der Heijden
J. Kamminga Chairman of the Board, MKB Nederland; director
of Makelaarskantoor J. Kamminga & Zonen B.V.
O.H.A. van Royen Retired
J.J. van Rijn Retired
G. Verhagen Vice Chairman
M. Ververs Vice Chairman; Chairman of Executive Board,
Wolters Kluwer N.V.
Exhibit 1
AGREEMENT
This Agreement ("Agreement") is entered into as of August 5,
1996 by ERLY Industries Inc., a California corporation ("ERLY") and ING (U.S.)
Investment Corporation, a Delaware Corporation ("ING Investment"), a wholly
owned subsidiary of Internationale Nederlanden (U.S.) Capital Corporation, a
Delaware corporation ("ING Capital"), with reference to the following:
RECITALS
A. Reference is made to (i) the Amended and Restated Warrant
to Purchase Common Stock of ERLY Industries Inc., denominated the "A" Warrant,
dated as of February 16, 1995, as amended by Amendment No. 1 To A Warrant dated
as of July 28, 1995 (such Warrant, as so amended, the "A Warrant"), and (ii) the
Amended and Restated Warrant to Purchase Common Stock of ERLY Industries Inc.,
denominated the "B" Warrant, dated as of February 16, 1995, as amended by
Amendment No. 1 To B Warrant dated as of July 28, 1995 (such Warrant, as so
amended, the "B Warrant"; each of the A Warrant and B Warrant may be referred to
individually as a "Warrant," and shall be referred to collectively as the
"Warrants"), both of which were issued by ERLY in favor of ING Capital, and both
of which have been assigned by ING Capital to ING Investment. Capitalized terms
not otherwise defined herein are as defined in the Warrants.
B. ERLY has given notice to ING Investment of its intention to
exercise the Call Option with respect to 100% of the Callable Warrant Stock, but
has proposed a repurchase price for the Callable Warrant Stock that is less than
the price provided for in the Warrants.
C. ING Investment has agreed to accept the reduced repurchase
price proposed by ERLY, subject to the terms and conditions hereof.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, it is agreed as
follows:
1. Reduced Call Share Price; Repurchase Price. Subject to
SECTION 2 below, and notwithstanding anything to the contrary in the Warrants,
the Call Share Price shall be an amount calculated by dividing (i)
$2,125,000.000 by (ii) the total number of shares of Callable Warrant Stock on
the Closing Date (as defined below) (the amount so calculated, the "Reduced Call
Share Price"). Consequently, the aggregate purchase price for 100% of the
Callable Warrant Stock shall be $2,125,000.000 (the "Repurchase Price").
2. Subsequent Public Offering, Sale or Merger. In the event
that at any time within six (6) months following the date upon which the
Repurchase Price is paid to ING Investment (the "Closing Date"):
a. ERLY files a registration statement with the Commission
with respect to a public offering of Common Stock, and if the net offering price
per share to ERLY (after deduction of all underwriters' discounts, fees,
commissions and expenses related to such offering, but without deducting the
value of any warrants, options or other rights granted or sold to any such
underwriter) upon consummation of such public offering exceeds the Reduced Call
Share Price, ERLY shall, within five days after the consummation of such public
offering, pay to ING Investment
<PAGE>
AGREEMENT
in cash as an additional amount of Repurchase Price hereunder the lesser of (i)
$387,000 and (ii) the amount of such excess multiplied by the number of shares
of Callable Warrant Stock on the Closing Date; or
b. (i) ERLY enters into any agreement for the merger or sale of
substantially all of the assets of ERLY or (ii) the holders of a majority of the
shares of Common Stock Outstanding at such time enter into an agreement to sell
such shares of Common Stock, and if the "net value per share", as defined below,
received by ERLY or such holders upon consummation of such merger or sale, as
the case may be, exceeds the Reduced Call Share Price, ERLY shall, within five
days after the consummation of such merger or sale, as the case may be, pay to
ING Investment in cash as an additional amount of Repurchase Price hereunder an
amount equal to the lesser of (A) $387,000 and (B) the product of such excess
(x) multiplied by total number of shares of Callable Warrant Stock on the
Closing Date, (y) multiplied by the number of shares of Common Stock Outstanding
on the date of such consummation, and (z) divided by a number equal to the sum
of (1) the number of shares of Common Stock Outstanding on the Closing Date plus
(2) the number of shares of Callable Warrant Stock on the Closing Date. "Net
value per share" shall mean all proceeds received by ERLY or such holders in
respect of such shares of Common Stock after the Closing Date, and shall
include, without limitation, any distributions made in respect of such shares.
Notwithstanding the foregoing, if there shall have been a subdivision or
combination of the Common Stock after the Closing Date, the additional
Repurchase Price payable in connection with any of the events described in the
foregoing CLAUSES (A) and (B) shall be the amount that it would have been had
such subdivision or combination not occurred.
3. Miscellaneous.
a. Waivers, Amendments, etc. The provisions of this Agreement may
from time to time be amended, modified, or waived if such amendment,
modification or waiver is in writing and consented to by ING Investment. No
failure or delay on the part of ING Investment in exercising any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right.
b. Costs and Expenses. ERLY shall pay all attorneys' fees and
costs in connection with any action taken by ING Investment to enforce or
preserve any of its rights under this Agreement.
c. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
d. Further Assurances. ERLY agrees, upon the written request of
ING Investment, to execute and deliver to ING Investment, from time to time, any
additional instruments or documents reasonably considered necessary by ING
Investment to accomplish the transactions contemplated herein.
2
<PAGE>
e. Headings. The various headings of this Agreement are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Agreement or any provisions hereof.
f. Counterparts, Effectiveness, etc. This Agreement may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which together shall be deemed to be one and
the same instrument.
g. Interpretation. No provision of this Agreement shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured, drafted or dictated such provision.
h. Complete Agreement. This Agreement, together with the
Warrants, constitutes the complete agreement between the parties, and supersedes
any prior written or oral agreements, writings, communications or understandings
of the parties with respect to the subject matter hereof.
i. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
j. GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE. IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE
PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA. THE PARTIES CONSENT TO PERSONAL JURISDICTION, WAIVE
ANY OBJECTION AS TO JURISDICTION OR VENUE, AND AGREE NOT TO ASSERT ANY DEFENSE
BASED ON LACK OF JURISDICTION OR VENUE, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA.
k. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY, RATHER THAN ARBITRATION RULES, THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ERLY INDUSTRIES INC.
By: /s/ KURT GREY
Name: Kurt Grey
Its: Vice President
ING (U.S.) INVESTMENT CORPORATION
By: /s/ MICHAEL W. ADLER
Name: Michael W. Adler
Its: Attorney in Fact
4
<PAGE>
RECEIPTS
ING (U.S.) Investment Corporation, a Delaware corporation, hereby
acknowledges receipt of $2,125,000.00 from ERLY by wire transfer as payment in
full (subject to the provisions of SECTION 2 of the Agreement to which this
Receipt is attached) for the (i) the Amended and Restated Warrant to Purchase
Common Stock of ERLY Industries Inc., denominated the "A" Warrant, dated as of
February 16, 1995, as amended, and (ii) the Amended and Restated Warrant to
Purchase Common Stock of ERLY Industries Inc., denominated the "B" Warrant,
dated as of February 16, 1995, as amended.
ING (U.S.) INVESTMENT CORPORATION
By: /s/ MICHAEL W. ADLER
Name: Michael W. Adler
Title: Attorney in Fact
Date: August 5, 1996
ERLY Industries Inc., a California corporation, hereby
acknowledges receipt of (i) the Amended and Restated Warrant to Purchase Common
Stock of ERLY Industries Inc., denominated the "A" Warrant, dated as of February
16, 1995, as amended, and (ii) the Amended and Restated Warrant to Purchase
Common Stock of ERLY Industries Inc., denominated the "B" Warrant, dated as of
February 16, 1995, as amended, as delivered to it by ING (U.S.) Investment
Corporation.
ERLY INDUSTRIES INC.
By: /s/ KURT GREY
Name: Kurt Grey
Title: Vice President
Date: August 5, 1996
5
Exhibit 2
ASSIGNMENT FORM
[A Warrant]
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of Stock Units
set forth below:
No. of Stock
Name and Address of Assignee Units
ING (U.S.) Investment Corporation 257,679
135 East 57th Street
New York, NY 10022
and does hereby irrevocably constitute and appoint ING (U.S.) Investment
Corporation Attorney to make such transfer on the books of ERLY Industries Inc.,
a California corporation, maintained for the purpose, with full power of
substitution in the premises.
Dated: August 2, 1996
/s/ INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
Internationale Nederlanden (U.S.)
Capital Corporation
by: Michael W. Adler
its: Vice President
/s/ GERLACH JACOBS
Witness
by: Gerlach Jacobs
Exhibit 3
ASSIGNMENT FORM
[B Warrant]
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of Stock Units
set forth below:
No. of Stock
Name and Address of Assignee Units
ING (U.S.) Investment Corporation 257,679
135 East 57th Street
New York, NY 10022
and does hereby irrevocably constitute and appoint ING (U.S.) Investment
Corporation Attorney to make such transfer on the books of ERLY Industries Inc.,
a California corporation, maintained for the purpose, with full power of
substitution in the premises.
Dated: August 2, 1996
/s/ INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION
Internationale Nederlanden (U.S.)
Capital Corporation
by: Michael W. Adler
its: Vice President
/s/ GERLACH JACOBS
Witness
by: Gerlach Jacobs
Exhibit 4
ASSIGNMENT FORM
[A Warrant]
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of Stock Units
set forth below:
No. of Stock
Name and Address of Assignee Units
ERLY INDUSTRIES INC. 257,679
10990 Wilshire Blvd. Suite 1800
Los Angeles, CA 90024
and does hereby irrevocably constitute and appoint ERLY Industries Inc. Attorney
to make such transfer on the books of ERLY Industries Inc., a California
corporation, maintained for the purpose, with full power of substitution in the
premises.
Dated: August 5, 1996
/s/ ING (U.S.) INVESTMENT
CORPORATION
ING (U.S.) Investment Corporation
by: Michael W. Adler
its: Attorney-In-Fact
/s/ GERLACH JACOBS
Witness
by: Gerlach Jacobs
Exhibit 5
ASSIGNMENT FORM
[B Warrant]
FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby
sells, assigns and transfers unto the Assignee named below all of the rights of
the undersigned under this Warrant, with respect to the number of Stock Units
set forth below:
No. of Stock
Name and Address of Assignee Units
ERLY INDUSTRIES INC. 257,679
10990 Wilshire Blvd. Suite 1800
Los Angeles, CA 90024
and does hereby irrevocably constitute and appoint ERLY Industries Inc. Attorney
to make such transfer on the books of ERLY Industries Inc., a California
corporation, maintained for the purpose, with full power of substitution in the
premises.
Dated: August 5, 1996
/s/ ING (U.S.) INVESTMENT
CORPORATION
ING (U.S.) Investment Corporation
by: Michael W. Adler
its: Attorney-In-Fact
/s/ GERLACH JACOBS
Witness
by: Gerlach Jacobs
Exhibit 6
September 14, 1995
VIA FACSIMILE
Mr. Kurt Grey
ERLY Industries Inc.
10990 Wilshire Blvd., Suite 1800
Los Angeles, California 90024
RE: ERLY INDUSTRIES A AND B WARRANTS
Dear Kurt:
Reference is made to (i) the Amended and Restated Warrant to Purchase Common
Stock of ERLY Industries Inc., denominated the "A" Warrant, dated as of February
16, 1995, as amended by Amendment No. 1 To A Warrant dated as of July 28, 1995
(such Warrant, as so amended, the "A Warrant"), and (ii) the Amended and
Restated Warrant to Purchase Common Stock of ERLY Industries Inc., denominated
the "B" Warrant, dated as of February 16, 1995, as amended by Amendment No. 1 To
B Warrant dated as of July 28, 1995 (such Warrant, as so amended, the "B
Warrant"; each of the A Warrant and B Warrant may be referred to individually as
a "Warrant," and shall be referred to collectively as the "Warrants"), both of
which were issued by ERLY Industries Inc. ("ERLY") in favor of Internationale
Nederlanden (U.S.) Capital Corporation ("ING Capital"). Capitalized terms not
otherwise defined herein are as defined in the Warrants.
This confirms the following understandings and agreements between ERLY and ING
Capital with respect to the Warrants:
1. You have informed us that ERLY is distributing a 15% Common
Stock dividend on or about October 6, 1995 (the "Stock
Dividend"). This confirms that, notwithstanding anything to
the contrary in the Warrants, the adjustments to the Call
Share Price that are provided for in the second sentence of
the definition of Call Share Price shall be made in connection
with the Stock Dividend. Nothing herein shall limit the effect
of Section 4.A of the Warrants or the adjustments required to
be made thereunder as a result of the Stock Dividend. The
foregoing agreement only applies with respect to the Stock
Dividend and shall not apply with respect to any subsequent
stock dividends that may be distributed to ERLY shareholders.
<PAGE>
September 14, 1995
Page 2
2. Notwithstanding anything to the contrary in the Warrants, no
adjustment of the number of shares of Common Stock comprising
a Stock Unit shall be made pursuant to Section 4.C of either
Warrant in the case of any reduction in the number of shares
of Common Stock into which the other Warrant is convertible or
exchangeable, which reduction is the result of any partial or
full exercise of the put option (pursuant to Section 25 of the
Warrants) or the Call Option under such other Warrant.
By executing this letter, ERLY hereby indicates its agreement to all of the
foregoing.
Sincerely,
Internationale Nederlanden (U.S.) Capital Corporation
By: /s/ MICHAEL W. ADLER
Name: Michael W. Adler
Title: Vice President
cc: Ronald J. Epman, Esq. (via facsimile)
THE FOREGOING IS ACKNOWLEDGED AND AGREED
ERLY Industries Inc.
By: /s/ KURT GREY
Name: Kurt Grey
Title: Vice President
Date: September 18, 1995
