As filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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CADIZ INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0313235
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
100 Wilshire Boulevard, Suite 1600
Santa Monica, California 90401
(Address of principal executive offices)
1998 NON-QUALIFIED STOCK OPTION PLAN
1998 EXECUTIVE COMPENSATION AGREEMENT
(Full title of the plans)
STANLEY E. SPEER
100 Wilshire Boulevard, Suite 1600
Santa Monica, California 90401
(Name and address of agent for service)
(310) 899-4700
(Telephone number, including area code, of agent for service)
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Copies of communications to:
J. BRAD WIGGINS, ESQ.
Miller & Holguin
1801 Century Park East, Seventh Floor
Los Angeles, California 90067
(310) 556-1990
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities Amount to be price offering registration
to be registered registered per unit price fee
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Common Stock(1)(4) 435,000 shares $ 9.3750 $ 4,078,125.00 $ 1,133.72
Common Stock(1)(4) 10,000 shares $ 8.0000 $ 80,000.00 $ 22.24
Common Stock(1)(4) 10,000 shares $ 8.6875 $ 86,875.00 $ 24.15
Common Stock(1)(4) 10,000 shares $ 7.0000 $ 70,000.00 $ 19.46
Common Stock(1)(4) 85,000 shares $ 8.0313 $ 682,660.50 $ 189.78
Common Stock(2)(4) 500,000 shares $ 7.9766 $ 3,988,281.25 $ 1,108.75
Options to purchase
Common Stock(3)(4) 500,000 options
Common Stock(5) 18,750 shares $ 7.9766 $ 149,560.55 $ 41.58
_________________________________________________________________________
Total $ 9,135,502.30 $ 2,539.68
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(1) These shares underlie options previously issued under the
Cadiz Inc. 1998 Non-Qualified Stock Option Plan (the "Option Plan").
Pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), the offering price and the
amount of the fee for these shares were computed based on the
actual exercise price of the options previously issued under the
Option Plan.
(2) These shares underlie options issuable under the Option Plan.
Pursuant to Rule 457(h) and Rule 457(c) under the Securities
Act, the offering price and the amount of the fee for these
shares were computed based on the average of the high and
low prices of the Company's Common Stock as reported by Nasdaq
for March 15, 1999.
(3) These are the remaining options that are issuable under the
Option Plan. No additional fee for registration of these options
is required by virtue of Rule 457(g).
(4) Also registered hereunder are an indeterminate number of
additional options and shares of Common Stock, which may become
issuable by virtue of the anti-dilution adjustment provisions of
the Option Plan.
(5) These shares are issuable under the 1998 Executive Compensation
Agreement. Pursuant to Rule 457(h) and Rule 457(c), the offering
price and the amount of the fee for these shares were computed
based on the average of the high and low prices of the Company's
Common Stock as reported by Nasdaq for March 15, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 need not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), but will be sent or given to employees as
specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement:
(a) The registrant's annual report on Form 10-K for the year
ended December 31, 1998.
(b) The description of the registrant's class of Common Stock
which is registered under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
which description is set forth in Item 1 of the
registration statement on Form 8-A filed under the
Exchange Act on May 8, 1984, and updated in reports on
Form 8-K dated May 9, 1988 and May 6, 1992.
In addition, all documents subsequently filed by the
registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and
to be part thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters in connection with the issuance of the
securities offered hereby will be passed upon for the registrant by
Miller & Holguin, attorneys at law, Los Angeles, California.
The financial statements incorporated in this Registration
Statement by reference to the registrant's annual report on Form 10-K
for the year ended December 31, 1998 have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits
the registrant's Board of Directors to indemnify any person against
expenses (including 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 such person is made a party by reason of his
being or having been a director, officer, employee or agent of the
registrant, in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the
Securities Act. 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.
The registrant's Bylaws provide for mandatory indemnification
of directors and officers of the registrant, and those serving at
the request of the registrant as directors, officers, employees, or
agents of other entities (collectively, "Agents"), to the maximum
extent permitted by law. The Bylaws provide that such
indemnification (other than in an action by or in the right of the
registrant) shall be a contract right between each Agent and the
registrant.
In 1990, the registrant entered into an Indemnity Agreement
with each of the individuals then serving as an executive officer
or director of the registrant, including Keith Brackpool, the
current Chief Executive Officer of the registrant. The Indemnity
Agreement as to Mr. Brackpool remains in effect; all of the other
executive officers and directors who executed an Indemnity
Agreement with the registrant have since resigned from their
positions with the registrant. The Indemnity Agreement provides
for the indemnification of the indemnified party with respect to
his activities as a director or officer of the registrant or an
affiliate of the registrant against expenses and liabilities, of
whatever nature, incurred in connection with any claim made against
him by reason of facts which include his affiliation with the
registrant. Such indemnification is provided to the maximum extent
permitted by the registrant's charter documents, insurance policies
and/or any applicable law.
The registrant's Certificate of Incorporation provides that a
director of the registrant shall not be personally liable to the
registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the registrant or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper
personal benefit. The registrant has also purchased a liability
insurance policy, which insures its directors and officers against
certain liabilities, including liabilities under the Securities
Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed or incorporated by reference
as part of this Registration Statement:
4.1 Specimen form of stock certificate(1)
4.2 Certificate of Incorporation, as amended(2)
4.3 Amendment to Certificate of Incorporation dated November 12,
1996(3)
4.4 Amendment to Certificate of Incorporation dated September 1,
1998(1)
4.5 Bylaws, as amended to date(4)
4.6 Certificate of Designations of 6% Convertible Series A
Preferred Stock(5)
4.7 Certificate of Designations of 6% Convertible Series B
Preferred Stock(6)
4.8 Certificate of Designations of 6% Convertible Series C
Preferred Stock(5)
4.9 Indenture dated as of April 16, 1997 for the benefit of
holders of 11-1/4% First Mortgage Notes due 2004 (including
provisions of Guarantee given by the registrant)(7)
4.10 Form of Amendment to Indenture dated as of October 9,
1997(8)
4.11 Form of Amendment to Indenture dated as of January 23,
1998(9)
5.1 Opinion of Miller & Holguin
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Miller & Holguin (included in Exhibit 5.1)
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(1) Previously filed as an exhibit to the registrant's quarterly
report on Form 10-Q for the period ended September 30, 1998,
and incorporated herein by reference
(2) Previously filed as an exhibit to Registration Statement No.
33-75642, and incorporated herein by reference
(3) Previously filed as an exhibit to the registrant's quarterly
report on Form 10-Q for the period ended September 30, 1996,
and incorporated herein by reference
(4) Previously filed as an exhibit to the registrant's report on
Form 8-K dated May 6, 1992, and incorporated herein by
reference
(5) Previously filed as an exhibit to the registrant's report on
Form 8-K dated September 13, 1996, and incorporated herein by
reference
(6) Previously filed as an exhibit to the registrant's report on
Form 10-K for the fiscal year ended March 31, 1996, and
incorporated herein by reference
(7) Previously filed as an exhibit to Amendment No. 1 to
Registration Statement No. 333-19109, and incorporated herein
by reference
(8) Previously filed as an exhibit to Amendment No. 2 to
Registration Statement No. 333-31103, and incorporated herein
by reference
(9) Previously filed as an exhibit to the registrant's report on
Form 10-K for the fiscal year ended December 31, 1997, and
incorporated herein by reference
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) (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;
(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) and
(a)(1)(ii) do not apply if the Registration Statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
(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.
(b) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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 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
Securities 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 Securities 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-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Santa Monica, State of California, on the 19th day of March, 1999.
CADIZ INC.
By: /s/ Keith Brackpool
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Keith Brackpool
Chief Executive Officer
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
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/s/ Dwight W. Makins Chairman of the Board March 19, 1999
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Dwight W. Makins
/s/ Keith Brackpool Chief Executive Officer March 19, 1999
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Keith Brackpool (Principal Executive Officer)
/s/ Murray H. Hutchison Director March 19, 1999
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Murray H. Hutchison
/s/ Mitt Parker Director March 19, 1999
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Mitt Parker
/s/ Stanley E. Speer Chief Financial Officer March 19, 1999
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Stanley E. Speer (Principal Financial
and Accounting Officer)
/s/ Timothy J. Shaheen Director March 19, 1999
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Timothy J. Shaheen
/s/ Anthony L. Coelho Director March 19, 1999
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Anthony L. Coelho
EXHIBIT 5.1
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March 18, 1999
Cadiz Inc.
100 Wilshire Boulevard
Suite 1600
Santa Monica, California 90401
Re: Cadiz Inc. (the "Company") - Registration on Form S-8
Ladies and Gentlemen:
Our opinion has been requested in connection with the
registration statement on Form S-8 with which this opinion is being
filed as an exhibit (the "Registration Statement") relating to the
issuance of (i) up to 1,050,000 shares (the "Option Shares") of the
Company's par value $.01 per share common stock (the "Common
Stock") and 500,000 options (the "Options") pursuant to the
Company's 1998 Non-Qualified Stock Option Plan, as amended to date
(the "Option Plan"), and (ii) 18,750 shares of Common Stock (the
"Bonus Shares") pursuant to the Company's 1998 Executive
Compensation Agreement (the "Compensation Agreement").
We have examined a copy of the Option Plan and the
Compensation Agreement and such corporate records and other
documents and have made such examination of law as we have deemed
relevant. Based on and subject to the above, it is our opinion
that the Options and Option Shares, when issued pursuant to the
terms of the Option Plan, and the Bonus Shares, when issued
pursuant to the terms of the Compensation Agreement, will be duly
authorized, legally issued, fully paid and non-assessable.
We are members of the Bar of the State of California, and we
do not express any opinion herein concerning any law other than the
law of the State of California, the General Corporation Law of the
State of Delaware and the federal law of the United States.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name under Part
II, Item 5, "Interests of Named Experts and Counsel," in the
Registration Statement.
Very truly yours,
/s/ Miller & Holguin
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MILLER & HOLGUIN
EXHIBIT 23.1
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February
19, 1999, appearing on page 34 of Cadiz Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
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PricewaterhouseCoopers LLP
Los Angeles, California
March 19, 1999
