<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 28, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGRIBIOTECH, INC.
(Exact Name of Registrant as Specified in its Charter)
NEVADA 84-117681
(State or other jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
QUAIL PARK WEST
2700 SUNSET ROAD, SUITE C-25
LAS VEGAS, NV 89120
(702) 798-1969
-----------------------------------
(Address of principal executive offices)
1995 EMPLOYEE STOCK OPTION PLAN
EMPLOYEE STOCK BONUS PLAN
(Full Title of the Plans)
DR. JOHNNY R. THOMAS, PRESIDENT
AGRIBIOTECH, INC.
2700 SUNSET ROAD, SUITE C-25
LAS VEGAS, NV 89120
(702) 798-1969
-----------------------------------
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
A copy of all communications, including communications sent to the agent for
service, should be sent to:
ELLIOT H. LUTZKER, ESQ.
SNOW BECKER KRAUSS P.C.
605 THIRD AVENUE
NEW YORK, N.Y. 10158-0125
(212) 687-3860
---------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
Title of Each Class Proposed Maximum Proposed
of Securities to be Amount to be Offering Maximum Amount of
Registered Registered Price Aggregate Registration
Per Share Offering Price Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options 1,200,000 (1) -- -- (3)
5,950,000 (2)
- -----------------------------------------------------------------------------------------------------------
Common Stock, par 500,000 (4)(5) $ 1.81 (7) $ 905,000 $ 312,07
value $.001 per 250,000 (4)(5) $ 2.50 (7) $ 625,000 $ 215,52
share 950,000 (4)(5) $ 2.00 (7) $1,900,000 $ 655.17
1,250,000 (4)(5) $ 2.12 (7) $2,650,000 $ 913.79
3,000,000 (4)(5) $ 3.00 (7) $9,000,000 $3,103.45
300,000 (5)(6) $ 2.00 (7) $ 600,000 $ 206.90
40,000 (5)(6) $ 4.06 (7) $ 162,400 $ 56.00
- -----------------------------------------------------------------------------------------------------------
Common Stock, par 860,000 (8)(5) $3.8125 (9) $3,278,750 $1,130.60
value $.001 per 400,000 (10) $3.8125 (9) $1,525,000 $ 525.86
share
- -----------------------------------------------------------------------------------------------------------
Total....................................................................................... $ 7,119.36
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
(1) Represents options granted or to be granted pursuant to the 1994
Employee Stock Option Plan, as amended (the "1994 Plan") of
AgriBioTech, Inc. (the "Registrant").
(2) Represents options granted to consultants and employees outside of the
Plans (the "Non-Plan Options").
(3) No registration fee is required pursuant to Rule 457(h)(2).
(4) Shares issuable upon exercise of the Non-Plan Options.
(5) Includes an indeterminable number of shares of Common Stock which may
become issuable pursuant to the anti-dilution provisions of the Plan
or the Non-Plan Options, as the case may be.
(6) Shares issuable upon exercise of options granted under the 1994 Plan.
(7) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h)(1) based upon the average exercise price.
(8) Shares issuable upon exercise of options available for grant under the
1994 Plan.
(9) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the average of the last bid and
asked prices for the Common Stock on the Nasdaq SmallCap Market on
June 21, 1996.
(10) Shares issued or issuable under the Registrant's Employee Stock Bonus
Plan.
-ii-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, AgriBioTech, Inc., a Nevada corporation
(the "Company"), pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated by reference in this registration
statement.
(1) The Company's Annual Reports on Form 10-KSB for the fiscal year
ended June 30, 1995;
(2) The Company's Quarterly Reports on Form 10-QSB ("Forms 10-QSB")
for the fiscal quarters ended September 30, 1995, December 31, 1995 as amended
and March 31, 1996;
(3) The Company's Current Reports on Form 8-K for June 22, 1995 (as
amended), June 23, 1995 (as amended), December 14, 1995 (as amended), December
22, 1995, February 1, 1996 (as amended) and April 12, 1996;
(4) The Company's Proxy Statement dated January 8, 1996 ("Proxy
Statement"); and
(5) The description of the Company's common stock, par value $.001
per share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A (File No. 0-19352), filed pursuant to Section 12(g) of the
Exchange Act, including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Company 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 herein and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
II-1
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 78.751 of the Nevada Corporation Law ("NCL"), directors
and officers may be indemnified against judgments, fines and amounts paid in
settlement and reasonable expenses (including attorneys' fees), actually and
reasonably incurred as a result of specified actions or proceedings (including
appeals), whether civil or criminal (other than an action by or in the right of
the corporation--a "derivative action") if they acted in good faith and for a
purpose which they reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to amounts paid in settlement and reasonable
expenses (including attorneys' fees) actually and reasonably incurred by them in
connection with the defense or settlement of such an action (including appeals),
except in respect of a claim, issue or matter as to which such person shall have
been finally adjudged to be liable to the corporation, unless and only to the
extent a court of competent jurisdiction deems proper.
Article NINTH of the Company's Certificate of Incorporation provides for
indemnification of directors, officers and others to the "full extent permitted"
by Nevada law. In addition, Article VI of the Company's Amended and Restated
By-Laws provides for indemnification of directors and officers of the Company as
follows:
"On the terms, to the extent, and subject to the conditions
prescribed by statute and by such rules and regulations, not
inconsistent with statute, as the Board of Directors may in its
discretion impose in general or particular cases or classes of cases,
(a) the Corporation shall indemnify any person made, or threatened to
be made, a party to an action or proceeding, civil or criminal,
including an action by or in the right of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise which any director or
officer of the Corporation served in any capacity at the request of
the Corporation, by reason of the fact that he, his testator or
intestate, was a director or officer of
II-2
<PAGE>
the Corporation, or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any
capacity, against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorney's fees, actually and
necessarily incurred as a result of such action or proceeding, or any
appeal therein, and (b) the Corporation may pay, in advance of final
disposition of any such action or proceeding, expenses incurred by
such person in defending such action or proceeding.
On the terms, to the extent, and subject to the conditions
prescribed by statute and by such rules and regulations, not
inconsistent with statute, as the Board of Directors may in its
discretion impose in general or particular cases or classes of cases,
(a) the Corporation shall indemnify any person made a party to an
action by or in the right of the Corporation to procure a judgment in
its favor, by reason of the fact that he, his testator or intestate,
is or was a director or officer of the Corporation, against the
reasonable expenses, including attorney's fees, actually and
necessarily incurred by him in connection with an appeal therein, and
(b) the Corporation may pay, in advance of final disposition of any
such action or proceeding, expenses incurred by such person in
defending such action or proceeding."
The Company maintains insurance, at its expense, to reimburse itself
and directors and officers of the Company and of its direct and indirect
subsidiaries against any expense, liability or loss arising out of
indemnification claims against directors and officers and to the extent
otherwise permitted under the NCL.
In accordance with Section 78.037(1) of the NCL, Article TENTH of the
Company's Certificate of Incorporation, as amended, eliminates the personal
liability of the Company's directors to the Company or its shareholders for
monetary damages for breach of their fiduciary duties as directors, with certain
limited exceptions set forth in said Article TENTH and Section 78.037(1).
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed 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.
II-3
<PAGE>
Item 7. Exemption From Registration Claimed.
No Options to purchase shares of Common Stock have been exercised.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 1994 Employee' Stock Option Plan./(1)/
4.2 Employee Stock Bonus Plan./(1)/
4.3 Form of Stock Option Agreement dated
January 5, 1996 between the
Registrant and Robert B. Prag.
4.4 Stock Option Agreement dated as of
December 20, 1995 between Registrant
and Kathleen L. Gillespie (ISOs).
4.5 Stock Option Agreement dated as of
December 20, 1995 between Registrant
and Kathleen L. Gillespie (NQSOs).
4.6 Stock Option Agreement dated as of
February 13, 1996 between Registrant
and Henry A. Ingalls.
4.7 Form of Stock Option Agreement as of
March 5, 1996 between Registrant and
Robert Olins.
4.8 Form of Stock Option Agreement dated as of
March 11, 1996 between Registrant and
each of (i) Johnny R. Thomas; (ii) John C.
Francis; and (iii) Scott J. Loomis.
4.9 Form of Stock Option Agreement dated May 8, 1996
between Registrant and each of (i) Kent Schulze;
and (ii) Byron D. Ford.
II-4
<PAGE>
Exhibit No. Description of Exhibit
- ----------- ----------------------
5.1 Opinion of Snow Becker Krauss P.C.
23.1 Consent of Snow Becker Krauss P.C.
(included in Exhibit 5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Bailey & Co. Chtd.
23.4 Consent of Michael R. Lemm, C.P.A., P.S.
23.5 Consent of KPMG Peat Marwick LLP.
23.6 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on the
signature page of this Registration
Statement).
________________
(1) Incorporated by reference to the Company's Registration Statement on Form
SB-2 for April 29, 1994, as amended (33-78470-NY).
II-5
<PAGE>
Item 9. Required Undertakings.
The undersigned Registrant hereby undertakes:
(a)(l) 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, represents
a fundamental change in the information set forth in the 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;
(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.
- ----
(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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
---- ----
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to any arrangement, provision 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 of 1933 and is, therefore, unenforceable. In the event
that claim for indemnification against
II-6
<PAGE>
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 of 1933 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 Las Vegas, State of Nevada, on June 24, 1996.
AGRIBIOTECH, INC.
By: /s/ Dr. Johnny R. Thomas By:/s/ Henry A. Ingalls
---------------------------- -----------------------
Dr. Johnny R. Thomas Henry A. Ingalls
President Vice President
and Chief Executive Officer (principal financial and
(principal executive officer) accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Johnny
R. Thomas or Henry A. Ingalls, his true and lawful attorneys-in-fact and agents,
with power of substitution and resubstitution, 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 to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying all that said attorneys-in-
fact and agents or their substitute or substitutes, or any of them, may lawfully
do or cause to be done by virtue hereof.
II-7
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on June 24, 1996.
Signature Title
--------- -----
/s/ Johnny R. Thomas
- --------------------
Johnny R. Thomas President and Director
(principal executive
officer)
/s/ Henry A. Ingalls
- --------------------
Henry A. Ingalls Vice President
(principal financial
and accounting officer)
/s/ Scott J. Loomis
- -------------------
Scott J. Loomis Vice President and Director
/s/ John C. Francis
- -------------------
John C. Francis Vice President and Director
/s/ Byron D. Ford Director
- ------------------------
Byron D. Ford
/s/ Kent Schulze Director
- ------------------------
Kent Schulze
II-8
<PAGE>
PROSPECTUS
AGRIBIOTECH, INC.
7,150,000 OPTIONS
7,550,000 SHARES
COMMON STOCK, PAR VALUE $.001
This Prospectus has been prepared by AgriBioTech, Inc., a Nevada
corporation (the "Company), for use upon resale of shares of the Company's
common stock, par value $.001 per share (the "Common Stock"), by certain
"affiliates" (as defined in Rule 405 under the Securities Act of 1933, as
amended) of the Company (the "Selling Shareholders") who have acquired or may
acquire such shares of Common Stock: upon exercise of an aggregate of 1,200,000
options granted or to be granted under the AgriBioTech, Inc. 1994 Employee Stock
Option Plan (the "1994 Plan"), up to 400,000 shares issued or issuable under the
Company's Employee Stock Bonus Plan, or up to 5,950,000 shares issuable pursuant
to stock option agreements outside of the Plan between the Company and employees
and/or consultants in connection with services rendered to the Company. The
maximum number of shares which may be offered or sold hereunder is subject to
adjustment in the event of stock splits or dividends, recapitalization and other
similar changes affecting the Common Stock. It is anticipated that the Selling
Shareholders will offer shares of Common Stock for resale at prevailing prices
on the Nasdaq SmallCap Market (or Nasdaq National Market System, to which the
Company has applied for a listing, if the Common Stock is then trading thereon)
on the date of sale. See "Plan of Distribution." The Company will receive none
of the proceeds from the sale of the Common Stock offered hereby, but it will
receive the exercise price upon exercise of options. All selling and other
expenses incurred by individual Selling Shareholders will be borne by such
Selling Shareholders.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR CERTAIN RISKS OF AN
INVESTMENT IN THE COMMON STOCK.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION; NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------
The date of this Prospectus is June 28, 1996.
<PAGE>
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
any offer to sell or sale of the securities to which this Prospectus relates
and, if given or made, such information or representations must not be relied
upon as having been authorized. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, imply that there has been no
change in the facts herein set forth since the date hereof. This Prospectus does
not constitute an offer to sell to or a solicitation of any offer to buy from
any person in any state in which any such offer or solicitation would be
unlawful.
--------------------
AgriBioTech, Inc. was incorporated in the State of Colorado on
December 31, 1987 under the name Sussex Ventures, Ltd. In September 1993, the
Company acquired all of the issued and outstanding Common Stock of AgriBioTech,
Inc. ("ABT"), a Nevada corporation. ABT was treated as the acquiring
corporation in the transaction, which was accounted for as a reverse purchase.
In June 1994, the Company merged with and into ABT, then a wholly-owned
subsidiary of the Company, changed its name to AgriBioTech, Inc. and became a
Nevada corporation. Its principal executive offices are located at Quail Park
West, 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120, and its telephone
number is (702) 798-1969.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Regional Offices of the Commission at
Seven World Trade Center, New York, New York 10048 and at 500 West Madison
Street, Chicago, Illinois 60611. Copies can be obtained from the Commission at
prescribed rates by writing to the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549 or on the Worldwide Web at www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference the documents listed
below:
(a) The Company's Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1995 ("Form 10-KSB").
ii
<PAGE>
(b) The Company's Quarterly Reports on Form 10-QSB for the
fiscal quarters ended September 30, 1995, December 31, 1995 (as amended) and
March 31, 1996 ("Forms 10-QSB").
(c) The Company's Current Reports on Form 8-K for June 22, 1995
(as amended), June 23, 1995 (as amended), December 14, 1995 (as amended),
December 22, 1995, February 1, 1996 (as amended) and April 12, 1996;
(d) The Company's Proxy Statement dated January 8, 1996 for the
Annual Meeting of Shareholders held on February 16, 1996 (the "Proxy
Statement"); and
(e) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A (File No. 0-19352) filed
pursuant to Section 12(g) of the Exchange Act, including any amendment or report
filed for the purpose of updating such information.
All documents subsequently filed by the Company after the date of
this Prospectus pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange
Act shall be deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents. Any statement contained in a
previously filed document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement herein modifies or supersedes such statement; and any statement
contained herein shall be deemed to be modified or superseded to the extent that
a statement in any document subsequently filed, which is incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person, including
any beneficial owner, to whom a copy of this Prospectus is delivered, upon
written or oral request of such person, a copy of any or all of the information
that has been incorporated by reference in this Prospectus (not including
exhibits to such information, unless such exhibits are specifically incorporated
by reference into the information which this Prospectus incorporates). Requests
for copies of such information should be directed to the Company at Quail Park
West, 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120; Attention: Corporate
Secretary.
RISK FACTORS
In addition to considering the other information set forth in, or
incorporated by reference into, this Prospectus, prospective investors should
carefully consider the following factors in evaluating an investment in the
Company. Statements in this Prospectus include forward looking statements that
involve a number of risks and uncertainties. These include the
iii
<PAGE>
Company's lack of profitability, need to manage its growth, intense competition
in the seed industry, seasonality of quarterly results, and the other risks
detailed from time to time in the Company's SEC Reports.
Limited Operating History; No Assurance of Future Profitability. The
---------------------------------------------------------------
Company did not generate significant revenues from its formation until its first
acquisition effective January 1, 1995. While the Company's subsidiaries have
operating histories, the Company itself has had a limited operating history, and
limited experience in managing operating subsidiaries. Potential investors
should be aware of the difficulties encountered by a company with limited
available capital and other risk factors set forth in this section, including,
but not limited to, the competition which the Company faces in the seed
industry. The Company's prospects must therefore be evaluated in light of the
problems, expenses, delays and complications associated with a new business.
Furthermore, the Company had net losses of approximately $1,407,000 and
$1,966,000 during the nine-month period ended June 30, 1995 ("Fiscal 1995")and
the nine-month period ended March 31, 1996 (the "Nine-Month Period") and is
expected to incur losses in the near term. There can be no assurance that the
Company will be able to become profitable in the future. Accordingly, investors
hereunder may lose their entire investment.
Need for Financing. At March 31, 1996, the Company had an accumulated
------------------
deficit of $8,352,760, a working capital deficit of $722,842, and cash of
$185,518. In April 1996, the Company received net proceeds of $6,608,250 from
the issuance of 7,425 shares of Class B Convertible Preferred Stock, which was
used to finance an acquisition and for working capital. However, without
additional financing, the Company will be unable to fund the growth of its
operations unless the Company is able to generate a positive cash flow from
operations, of which there can be no assurance. If the Company is unable to
generate a positive cash flow from operations, it may have to seek additional
funds through equity financing, which may result in dilution to the then
existing stockholders, or through bank or other borrowings. There can be no
assurance that such additional funds, if needed, will be available and, if
available, will be on terms acceptable to or affordable by the Company. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and Financial Statements in the Form 10-KSB and Forms 10-QSB.
Need to Manage Growth. The Company has acquired all or part of nine
---------------------
regional seed companies since January 1, 1995 and intends to expand current
levels of operations through additional acquisitions. The Company's future
success depends upon its ability to integrate the operations of its operating
subsidiaries into a vertically integrated company. While each of the Company's
subsidiaries has experience in marketing forage and/or turf grass seed, these
companies operate in different geographic regions. Therefore, the Company's
ultimate success depends on its ability to manage an effective national sales
organization.
iv
<PAGE>
The Company's rapid growth since January 1995 has placed and may
continue to place significant demands on the Company's management, technical,
financial and other resources. In addition, successful expansion of the
Company's operations will depend on, among other things, its ability to attract,
hire and retain skilled management and other personnel on a regional and/or
national level, secure adequate sources of seed on commercially reasonable terms
and successfully manage growth, none of which can be assured. To manage growth
effectively, the Company will need to expand its support staff and
infrastructure commensurate with any increase in business and implement and
improve operation, financial and management information systems, procedures and
controls. There can be no assurance that the Company will be able to manage any
future growth effectively, and failure to do so could have a material adverse
effect on the Company's business and operating results. See "Management's
Discussion and Analysis of Financial Condition and Results of Operations" in the
Form 10-KSB and the Forms 10-QSB.
Competition. The seed industry and the field of agriculture
-----------
technology are both highly competitive. The seed industry consists of
approximately 1,600 small local companies accounting for approximately 60% of
the total seed sales and approximately 400 multinational and large regional seed
companies many of which have substantially greater financial resources,
facilities and organizations than the Company has currently.
Competition in the seed industry is based primarily on price and
product performance. From time to time regional seed distributors will sell
outside of their region to dump excess seed inventory resulting in fierce price
cutting having an adverse effect on the Company's operations. The recent
introduction of the first full line of alfalfa varieties developed specifically
for use in grazing has led to competition by the major seed companies to develop
alfalfa seed for grazing and hay throughout the United States. See "Business-
Competition" in the Form 10-KSB.
Dependence on Key Personnel. The success of the Company is largely
---------------------------
dependent upon the efforts, abilities and expertise of Johnny R. Thomas,
President, as well as each of the Company's four Vice Presidents, Scott J.
Loomis, John C. Francis, Henry A. Ingalls and Kathleen L. Gillespie. The
Company has entered into at will employment agreements with each of these
persons. Each of these officers and key employee intends to devote
substantially all of his or her business time to the Company's affairs. See
"Election of Directors" in the Proxy Statement.
Cyclical Nature of Agricultural Products. Agricultural products
----------------------------------------
including seed are generally cyclical in nature. Agricultural products are
commodities subject to wide fluctuations in price based on supply of the
products and demand for, in this case, the raw or processed seed. Furthermore,
the demand for seed is dependent on the demand of farmers, which is influenced
by the general farm economy. The production of seed is subject to a variety of
nature's adversities including
v
<PAGE>
drought, wind, hail, disease, insects, early frost and numerous other forces
that could adversely affect the growing of seed in any growing season. Weather
affects commodity prices, seed yields and planting decisions by farmers.
Lack of Proprietary Rights. The Company currently possesses
--------------------------
proprietary rights to certain products protected under the Plant Variety
Protection Act. While the Company is seeking other protected varieties such
protection is not considered essential to the production and marketing of its
products and the Company's ultimate success. There can be no assurance that the
Company will obtain other proprietary varieties or the Company's competitors
will not possess protected varieties that perform better than those of the
Company.
Seasonality of Quarterly Results. The seed business is highly
--------------------------------
seasonal and the Company's business is subject to wide seasonal fluctuations.
Results of operations from quarter to quarter will not necessarily reflect the
results for the entire year and are not necessary indicative of results which
may be expected for any other interim period. The bulk of the Company's forage
seed sales currently occur between December and May. It is anticipated that the
Company's first two fiscal quarters beginning July 1st will normally be a loss.
Changes in climate can also fluctuate results of operations between quarters.
These climatic conditions affect delivery of seed and can cause a shift in
sales between quarters.
Control by Management and Current Stockholders. Prior to this
----------------------------------------------
offering, Management of the Company owned 10,677,517 (approximately 78%) of the
13,615,479 shares of the Company's Common Stock outstanding, giving full effect
to the exercise of their options and Warrants. Accordingly, the Company's
present Management may be able to effectively control the Company, elect all of
the Company's directors, increase the authorized capital, dissolve, merge or
sell all of the assets of the Company and generally direct the affairs of the
Company. See "Voting Securities in the Proxy Statement."
Blank Check Preferred Stock and Control of the Company. The Company's
------------------------------------------------------
Certificate of Incorporation authorizes the issuance of Preferred Stock with
such designations, rights and preferences as may be determined from time to time
by the Board of Directors. Accordingly, the Board of Directors is empowered,
without shareholder approval, to issue Preferred Stock with dividend,
liquidation, conversion, voting or other rights which could adversely affect the
voting power or other rights of the holders of the Common Stock. Although there
are no present plans, agreements, commitments or undertakings with respect to
the Company's issuance of any shares of Preferred Stock, except as may be used
for potential acquisitions, any such issuances may be deemed to be an anti-
takeover device which could be utilized as a method of discouraging, delaying or
preventing a change in control of the Company or to dilute the public ownership
of the Company and give clear control of the Company to current
vi
<PAGE>
Management and there can be no assurance that the Company will not issue such
shares.
Adverse Effect of Potential Future Sales of Common Stock Under Rule
-------------------------------------------------------------------
144 or this Registration Statement. Of the Company's 8,075,479 issued and
- ----------------------------------
outstanding shares of Common Stock as of June 17, 1995, approximately 773,000
shares are "restricted securities" as that term is defined under Rule 144 under
the Securities Act. Of these restricted shares, approximately 611,000 have been
registered for resale under the Securities Act. The Company cannot predict the
effect that sales made under Rule 144, sales made pursuant to this or other
registration statements may have on any then prevailing market price. The
Company is unable to predict the effect that sales made pursuant to this
Registration Statement, Rule 144, or otherwise, may have on the then existing
market price of the Company's securities. The possibility exists that the sale
of any of these Securities, or even the potential of such sales, may be expected
to have a depressive effect on the price of the Company's securities in any
public trading market. This could impair the Company's ability to raise
additional equity capital. See "Voting Securities" in the Proxy Statement.
The Company has granted demand and piggyback registration rights to
the former stockholder of an acquired company with respect to an aggregate of
162,343 shares of Common Stock of the Company. No prediction can be made as to
the effect, if any, that sales of shares of Common Stock or even the
availability of such shares for sale will have on the market prices prevailing
from time to time. The possibility that substantial amounts of Common Stock may
be sold in the public market may adversely affect the prevailing market price
for the Common Stock and could impair the Company's ability in the future to
raise capital through the sale of its equity securities.
Issuance of Common Stock Without Stockholder Approval. The Company
-----------------------------------------------------
has 30,000,000 authorized shares of Common Stock, of which _8,075,479 were
issued and outstanding as of June 17, 1996. Management will have broad
discretion with respect to the issuance of the 21,924,521 authorized but
unissued shares, including discretion to issue such shares in compensatory and
acquisition transactions. However, if the Company's Common Stock becomes quoted
on the Nasdaq National Market system, shareholder approval will be required for
the establishment of a plan or arrangement for the issuance of compensatory
shares exceeding the lesser of 25,000 shares or 1% of the outstanding shares,
the issuance of 20% or more of the outstanding shares in connection with the
acquisition of stock or assets of another company or the issuance of 20% or more
of the Common Shares at a price less than the greater of book value or market
value.
No Dividends. The Company has not paid any dividends and does not
------------
expect to declare or pay any cash or other dividends in the foreseeable future.
To the extent the Company has future earnings, the Company intends to reinvest
such earnings in the business operations of the Company.
vii
<PAGE>
Public Market Risks; Possible Volatility of Securities Prices. The
-------------------------------------------------------------
Company's Common Stock has traded on Nasdaq SmallCap Market since May 24, 1995,
however there can be no assurance that a regular trading market will be
sustained. The market price for the Company's securities following the date
hereof may be highly volatile. Factors such as the Company's financial results,
financing efforts, and various factors affecting the agricultural industry
generally may have a significant impact on the market price of the Company's
securities. Additionally, in the last several years, the stock market has
experienced a high level of price and volume volatility, and market prices for
many companies, particularly small and emerging growth companies, the common
stock of which trades in the over-the-counter market, have experienced wide
price fluctuations and volatility which have not necessarily been related to the
operating performance of such companies themselves. Any such fluctuations, or
general economic and market trends, could adversely affect the price of the
Company's securities. Due to all of the foregoing factors, it is likely that in
some future quarter the Company's operating results will be below the
expectations of public market analysts and investors. In that event, the price
of the Company's securities would likely be materially adversely affected.
Speculative Nature of Options and Warrants. As of June 25, 1996,
------------------------------------------
the Company had outstanding 1,766,000 Class B Warrants each exercisable until
January 17, 1997 at $5.00 for one share of Common Stock and one Class C Warrant,
and 734,000 Class C Warrants, each exercisable at $7.50, for one share of Common
Stock until January 17, 1998. The Company also had outstanding options to
purchase 8,250,000 shares of Common Stock exercisable for up to ten (10) years
ending in 2006, at prices ranging from $1.81 to $3.00 per share. Options and
warrants are generally more speculative than Common Stock which is purchasable
upon the exercise thereof. During the term of the options and warrants, the
holders thereof are given the opportunity to profit from a rise in the market
price of the Company's Common Stock, subject, in certain cases, to the Company's
right of redemption. See "Potential Adverse Effect of Redemption of Warrants"
--------------------------------------------------
below. Historically, the percentage increase or decrease in the market price of
an option or warrant has tended to be greater than the percentage increase or
decrease in the market price of the underlying common shares. An option or
warrant may become valueless, or of reduced value, if the market price of the
Common Stock decreases, or increases only modestly, over the term of the option
or warrant. The holders of options and warrants would be most likely to exercise
them and purchase the Company's Common Stock at a time when the Company could
obtain capital by a new offering of securities on terms more favorable than
those provided by the options and warrants. Consequently, the terms on which the
Company could obtain additional capital during such period may be adversely
affected.
Inability to Exercise Options or Warrants. The Company intends to qualify
-----------------------------------------
the sale of the shares offered hereby in a limited number of states. Although
certain exemptions in the securities ("blue sky") laws of certain states might
permit
viii
<PAGE>
options or warrants to be transferred to purchasers in states other than in
which the Securities were initially qualified, the Company will be prevented
from issuing Common Stock in such states upon the exercise of the options or
warrants unless an exemption (e.g., private placement) from qualification is
available or unless the issuance of shares of Common Stock upon exercise of the
options or warrants is qualified. The Company may decide not to seek or may not
be able to obtain qualifications of the issuance of such shares of Common Stock
in all of the states in which the ultimate purchasers of the options or warrants
reside. In such a case, the options or warrants held by purchasers will expire
and have no value if such options or warrants cannot be sold. Accordingly, the
market for the options or warrants may be limited because of these restrictions.
Further, a current prospectus covering the shares of Common Stock issuable upon
exercise of the options or warrants must be in effect before the Company may
accept Warrant exercises. There can be no assurance the Company will be able to
have a prospectus in effect when the holders of the options or warrants desire
to exercise them, notwithstanding the Company's commitment to use its best
efforts to do so.
Potential Adverse Effect of Redemption of Warrants. The Warrants may be
--------------------------------------------------
redeemed by the Company upon notice of not less than 30 days, at a price of $.01
per Warrant. The Company reserved the right, however, to have standby
purchasers exercise such Warrants and pay the exercise price to the Company
without possession of the Warrant certificates during the two weeks following
the redemption date. In turn, the Company will pay the $.01 redemption price to
the registered holders of exercised Warrants. Redemption of the Warrants could
force the holders to exercise the Warrants and pay the exercise price at a time
when it may be disadvantageous for the holders to do, to sell the Warrants at
the then current market price when they might otherwise wish to hold the
Warrants, or to accept the redemption price, which is expected to be
substantially less than the market value of the Warrants at the time of
redemption.
Disclosure Relating to Low-Priced Stocks; Restrictions on Resales of Low-
------------------------------------------------------------------------
Priced Stocks and Restrictions on Broker-Dealer Sales. In the event that the
- -----------------------------------------------------
Company's Common Stock was no longer traded on the Nasdaq SmallCap Market in the
future, an investor may find it difficult to dispose of, or to obtain accurate
quotations as to the market value of the Company's securities. In addition, the
Company would be subject to Rule 15g-9 (the "Rule") promulgated under the
Securities Exchange Act of 1934, which imposes various sales practice
requirements on broker-dealers who sell securities governed by the Rule to
persons other than established customers and accredited investors (generally
institutions with assets in excess of $5,000,000 or individuals with a net worth
in excess of $1,000,000 or annual income exceeding $200,000 or $300,000 jointly
with their spouse). For transactions covered by the Rule, the broker-dealer must
make a special suitability determination for the purchaser and have received the
purchaser's written consent to the transaction prior to sale. Consequently, the
Rule may have an adverse effect on
ix
<PAGE>
the ability of broker-dealers to sell the Company's securities and may affect
the ability of stockholders to sell the Company's securities in the secondary
market and otherwise affect the trading market in the Common Stock.
In addition, if the Company's Common Stock was no longer traded on the
Nasdaq SmallCap Market in the future, the Commission has adopted rules that
regulate broker-dealer practices in connection with transactions in "penny
stocks." Penny stocks generally are equity securities, such as those of the
Company, with a price of less than $5.00 per share (other than securities
registered on certain national securities exchanges or quoted on the NASDAQ
system, provided that current price and volume information with respect to
transactions in that security is provided by the exchange or system). The penny
stock rules, which generally became effective January 1, 1993, require a broker-
dealer, prior to a transaction in a penny stock not otherwise exempt from the
rules, to deliver a standardized risk disclosure document required by the
Commission that provides information about penny stocks and the nature and level
of risks in the penny stock market. The broker-dealer also must provide the
customer with current bid and offer quotations for the penny stock, the
compensation of the broker-dealer and its salesperson in the transaction, and
monthly account statements showing the market value of each penny stock held in
the customer's account. The bid and offer quotations, and the broker dealer and
salesperson compensation information, must be given to the customer orally or in
writing prior to effecting the transaction and must be given to the customer in
writing before or with the customer's confirmation. These disclosure
requirements may have the effect of reducing the level of trading activity in
the secondary market for a stock that becomes subject to the penny stock rules.
The Company's Common Stock and Warrants are not currently subject to the penny
stock rules.
SELLING SHAREHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by Selling Stockholders of the Company who
have acquired or may acquire such shares pursuant to the exercise of options
granted or to be granted under the 1994 Plan or pursuant to stock option
agreements with the Company outside of the 1994 Plan in connection with services
rendered to the Company, or shares issued pursuant to the Bonus Plan
(collectively, the "Plans"). The Selling Shareholders named below may resell
all, a portion, or none of such shares.
Participants under the Plans who are deemed to be "affiliates" of the
Company who acquire Common Stock under the Plans may be added to the Selling
Shareholders listed below from time to time by use of a prospectus supplement
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"). An "affiliate" is defined in Rule 405 under the Securities
Act as a "person that directly, or indirectly,
x
<PAGE>
through one or more intermediaries, controls, or is controlled by, or is under
common control with", the Company.
The table below sets forth with respect to each Selling Shareholder, based
upon information available to the Company as of June 17, 1996, the number of
shares of Common Stock beneficially owned before and after the sale of the
Shares offered hereby; the number of Shares to be sold; and the percent of the
outstanding shares of Common Stock owned before and after the sale of the Shares
offered hereby. Each Selling Shareholder's relationship to the Company is set
forth in a footnote to the table.
<TABLE>
<CAPTION>
Amount and Shares
Nature of Shares Beneficially Percent of Class(1)(3)
Beneficial to be Owned After ------------------------
Ownership(1) Sold(2) Offering Before After
Name Offering Offering
- ------------ -------------- ------------ ---------------- ------------- ----------
<S> <C> <C> <C> <C> <C>
Johnny R. Thomas (4) 3,556,497(5) 1,000,000 2,556,497 33.8%(5) 24.3%
John C. Francis (4) 2,277,960(6) 1,000,000 1,277,960 22.4%(6) 12.6%
Henry Ingalls (4) 1,250,000(7) 1,250,000 -0- 13.4%(7) 0
Scott J. Loomis 1,803,060(8) 1,000,000 803,060 18.7%(8) 8.3%
5840 N. Genematas
Tucson, AZ 85704
Kathleen L. Gillespie(4) 1,250,000(9) 1,250,000 -0- 13.4%(9) -0-
Byron D. Ford 20,000 20,000 -0- * -0-
975 North 2nd Avenue
St. Charles, IL 60174
Kent Schulze 20,000 20,000 -0- * -0-
2621 Irving Avenue, South
Minneapolis, MN 55408
Robert B. Prag 375,000(10) 500,000 -0- 4.4%(10) -0-
2118 "P" Street
Suite C
Sacramento, CA 95818
</TABLE>
- -----------
s* Less than 1%
(1) Unless otherwise noted, the Company believes that each Selling Shareholder
has sole voting and investment power with respect to all shares of Common
Stock beneficially owned, subject to community property laws, where
applicable. Each Selling Shareholder is deemed to be the beneficial owner
of securities that can be acquired by such person within 60 days from the
date of determination upon the exercise of warrants or options. The
percentage ownership of each Selling Shareholder is determined by assuming
that options or warrants that are held by such person (but not those held
by any other person) and which are exercisable within 60 days from the date
of determination have been exercised.
(2) Does not constitute a commitment to sell any or all of the stated number of
shares of Common Stock. The number of Shares offered hereby shall be
determined from time to time by each Selling Shareholder at his/her sole
discretion.
(3) Based on 8,075,479 shares outstanding as of June 17, 1996, but does not
give effect to (except those owned or sold by the Selling Shareholder) (i)
340,000 shares of Common Stock reserved for issuance upon exercise
xi
<PAGE>
of stock options currently outstanding and an additional 860,000 shares of
Common stock issuable upon exercise of options available for future grants
under the 1994 Plan and ; (ii) 5,950,000 shares of Common Stock issuable
upon exercise of options granted outside of the Company's 1994 Plan; and
(iii) 400,000 shares of Common Stock reserved for issuances upon grant of
shares under the Bonus Plan.
(4) This person's address is c/o the Company, Quail Park West, 2700 Sunset
Road, Suite C-25, Las Vegas, Nevada 89120.
(5) Includes 1,000,000 shares underlying options currently exercisable (900,000
for cash only), and shares underlying 567,395 currently exercisable Class B
Warrants, 300,000 currently exercisable Class C Warrants and 567,395
issuable Class C Warrants (each Class B Warrant is exercisable for one
share of Common Stock and one Class C Warrant).
(6) Includes shares underlying 314,420 currently exercisable Class B Warrants,
150,000 currently exercisable Class C Warrants and 314,420 issuable Class C
Warrants, and 1,000,000 shares underlying options currently exercisable
(900,000 for cash only).
(7) Includes 1,250,000 shares underlying options currently exercisable
(1,000,000 for cash only).
(8) Includes shares underlying 281,020 currently exercisable Class B Warrants
and 281,020 issuable Class C Warrants. Also includes 1,000,000 shares
underlying options currently exercisable (900,000 for cash only).
(9) Includes 1,250,000 shares underlying options currently exercisable (850,000
for cash only).
(10) Includes 375,000 shares underlying options currently exercisable.
PLAN OF DISTRIBUTION
The Options and/or Shares are being sold by the Selling Shareholders
for their own accounts. The Options and/or Shares may be sold or transferred
for value by the Selling Shareholders, or by pledgees, donees, transferees or
other successors in interest to the Selling Shareholders, in one or more
transactions on the Nasdaq SmallCap market (or any successor stock exchange), in
negotiated transactions or in a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at prices otherwise negotiated. The Selling Shareholders may
effect such transactions by selling the Options and/or Shares to or through
brokers-dealers, and such broker-dealers may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Shareholders
and/or the purchasers of the Options and/or Shares for whom such broker-dealers
may act as agent (which compensation may be less than or in excess of customary
commissions). The Selling Shareholders and any broker-dealers that participate
in the distribution of the Options and/or Shares may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commissions received by them and any profit on the resale of the Options
and/or Shares sold by them may be deemed to be underwriting discounts and
commissions under the Securities Act.
xii
<PAGE>
There can be no assurance that any of the Selling Shareholders will
sell any or all of the Shares of Common Stock offered by them hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Snow Becker Krauss P.C., 605 Third Avenue, New
York, New York 10158-0125.
EXPERTS
The consolidated financial statements of AgriBioTech, Inc. for the
nine-month period ended June 30, 1995 and the year ended September 30, 1994
incorporated by reference in this Prospectus have been included in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, given upon the authority of said firm as
experts in accounting and auditing.
The financial statements of Clark Seeds, Inc. for the year ended May
31, 1995, incorporated by reference in this Prospectus, have been included in
reliance upon the report of Bailey & Co., Chtd, independent certified public
accountants, incorporated by reference herein, given upon the authority of said
firm as experts in accounting and auditing.
The financial statements of Arnold-Thomas Seed Service, Inc. for the
years ended May 31, 1995 and 1994, incorporated by reference in this Prospectus,
have been included in reliance upon the report of Michael R. Lemm, C.P.A., P.S.,
independent certified public accountant, incorporated by reference herein, given
upon the authority of said firm as experts in accounting and auditing.
The financial statements of Seed Resource, Inc. for the nine-month
period ended September 30, 1995 and the year ended December 31, 1994,
incorporated by reference in this Prospectus, have been included in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, given upon the authority of said
firm as experts in accounting and auditing.
The financial statements of Hobart Seed Company for the ten-month
period ended September 30, 1995 and the year ended November 30, 1994,
incorporated by reference in this Prospectus have been included in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, given upon the authority of said firm as
experts in accounting and auditing.
xiii
<PAGE>
EXHIBIT 4.3
NON - QUALIFIED STOCK OPTION AGREEMENT
--------------------------------------
AGREEMENT, made as of the fifth day of January 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, Nevada 89120 (the "Grantor"), and
Robert B. Prag, with an address at 2118 "P" Street, Suite C, Sacramento,
California 95816 (the "Optionee").
WITNESSETH:
WHEREAS, the Optionee has agreed to perform services for the Grantor; and
WHEREAS, the Grantor is desirous that Optionee exert its utmost efforts on
behalf of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's service to the Grantor,
and for other good and valuable consideration, the Grantor hereby grants to the
Optionee options to purchase common stock of the Grantor, $.001 par value
("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on January
4, 2001, as set forth in Paragraph 3 hereof, up to an aggregate of five hundred
thousand (500,000) fully paid and non-assessable shares of Common Stock (the
"Shares"), subject to the terms and conditions set forth below.
2. Exercise Price.
--------------
The exercise price shall be One Dollar and Eighty-One Cents ($1.81) per
Share. The Grantor shall pay all original issue or transfer taxes on the
exercise of this option and all other fees and expenses incurred by the Grantor
in connection herewith.
3. Exercise of Option.
------------------
The options granted hereby shall first become exercisable as follows:
options to purchase 375,000 Shares shall first become exercisable on July 5,
1996, and the options to purchase the balance of 125,000 Shares shall first
become exercisable on July 5, 1997. Subject to the provisions of Paragraph 4
hereof, such options shall be exercisable in whole or in part at any time and
from time to time from the date on which they are first exercisable through 5:00
p.m. Las Vegas time on January 4, 2001.
<PAGE>
In order to exercise the option granted hereunder in whole or in part, the
Optionee shall deliver to the Grantor a written notice substantially in the form
of Notice of Exercise of Option to Purchase Shares attached hereto, delivery to
be effected by personal delivery, by overnight courier or by registered or
certified mail, return receipt requested, addressed to the Grantor at its
principal office. Such notice shall specify the number of Shares which Optionee
is purchasing under the option herein granted and shall be accompanied by
payment (in the form of cash or certified or bank cashier's check) for the
Shares so being purchased at the exercise price therefor as specified in
Paragraph 2 above.
As soon as practicable thereafter but in any event within five (5) business
days after Grantor's receipt of notice of exercise, the Grantor shall cause to
be delivered to the Optionee certificates issued in the Optionee's name
evidencing the full number of Shares as to which this option was exercised by
the Optionee. Optionee shall be considered to be the holder and owner of the
Shares to be evidenced by such certificates as of the close of business on the
date Grantor receives the notice of exercise accompanied by payment, as
contemplated herein, without regard to the date of actual issuance of the
certificate(s) representing such Shares.
4. Divisibility and Non-Assignability of the Option.
------------------------------------------------
(a) The Optionee may exercise the option herein granted in whole or in part
at any time and from time to time, subject to the provisions of Paragraph 3
above, with respect to any whole number of Shares included therein, but in no
event may an option be exercised as to less than ten thousand (10,000) Shares at
any one time, except for the remaining Shares covered by the option if less than
ten thousand (10,000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, and the options herein granted, or any of them, shall be
exercisable only by the Optionee or its legal successors.
5. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees that it is Optionee's
intention to purchase Shares hereunder for investment and without any view
towards the resale or distribution thereof. In the event Shares to be issued
upon exercise of this Option have not been registered at the time of proposed
issuance under the Securities Act of 1933, as amended (the "Securities Act"),
the Optionee shall deliver to the Grantor at the time of such issuance a written
representation that Optionee is acquiring such Shares in good faith for
investment purposes only and not for
-2-
<PAGE>
resale or distribution. Grantor may place a "stop transfer" order with respect
to such Shares with its transfer agent and place an appropriate restrictive
legend on the stock certificate(s) evidencing such Shares, in order to prevent
transfers unless such Shares are registered under the Securities Act or an
exemption from the registration requirements of the Securities Act is
applicable.
6. Conditions to Issuance of Shares.
--------------------------------
The Grantor shall issue and deliver certificates for Shares purchased upon
the exercise of any option granted hereunder, provided each of the following
conditions is satisfied, which conditions the Grantor hereby undertakes and
agrees to satisfy or cause to be satisfied: (a) the issuance of such Shares
shall have been registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or counsel to the Grantor shall have given
an opinion that such issuance is exempt from the registration requirements of
such Act; (b) approval, to the extent required, shall have been obtained from
any state regulatory body having jurisdiction thereof; and (c) permission for
the listing of such Shares, if required, shall have been given by NASDAQ or any
national securities exchange on which Shares are at the time of issuance listed.
7. Registration Rights.
-------------------
(a) If, at any time during the exercise period hereof and the three (3)
years following any exercise hereunder, the Grantor proposes to file a
registration statement with respect to any class of securities (other than
pursuant to a registration statement on Forms S-4 or S-8 or any successor form)
under the Securities Act, the Grantor shall notify the Optionee at least twenty
(20) days prior to the filing of such registration statement and will offer to
include in such registration statement all or any portion of the Shares. In a
written notice to be delivered to the Grantor within twenty (20) days after
receipt of any such notice from Grantor, the Optionee shall state the number of
Shares that it wishes to register for resale and distribution publicly under the
proposed registration statement. The Grantor will use its best efforts, through
its officers, directors, auditors and counsel in all matters necessary or
advisable, to file at least one (1) such registration statement by January 31,
1997. The Grantor will also use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable, to
include within the coverage of each such registration statement (except as
hereinafter provided) the shares that Optionee has advised Grantor that Optionee
wishes to register pursuant to such registration statement for resale and
distribution, to prosecute each such registration statement diligently to
effectiveness, and to cause such registration statement to become effective as
promptly as practicable. In
- 3 -
<PAGE>
that regard, the Grantor makes no representations or warranties as to its
ability to have any registration statement declared effective.
All registrations requested pursuant to this Paragraph 7 (a) are referred
to herein as "Piggyback Registrations." In the event the Grantor is advised by
the staff of the SEC, NASDAQ or any self-regulatory or state securities agency
that the inclusion of the Shares will prevent, preclude or materially delay the
effectiveness of a registration statement filed, the Grantor, in good faith, may
amend such registration statement to exclude the Shares without otherwise
affecting the Optionee's rights to any other registration statement herein.
(i) Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Grantor, and if the
underwriter thereof advises the Grantor in writing that in its opinion the
number of Shares requested to be included in such registration statement exceeds
the number that can be sold in such offering without materially adversely
affecting the distribution of such securities by the Grantor, then the Grantor,
will include in such registration statement first, the securities that the
Grantor proposes to sell and second, the securities requested to be included in
such registration statement by selling securityholders, such rights to inclusion
being apportioned pro rata among the Optionee and the other holders of any
securities requesting registration according to the market value of Shares and
other securities requested to be registered.
Notwithstanding the above, if any such underwriter shall advise the Grantor
in writing that the distribution of the Shares being included in the
registration statement concurrently with the securities being registered by the
Grantor would materially adversely affect the distribution of such securities by
the Grantor, then the Optionee shall delay its offering and sale for such period
ending on the earliest of (a) 180 days following the effective date of the
Grantor's registration statement, (b) the earliest date that, in the opinion of
such underwriter, such adverse effect would no longer be caused, or (c) such
date as the Grantor, managing underwriter and Optionee shall otherwise agree.
In the event of such delay, the Grantor shall file such supplements and
post-effective amendments and take any such other actions as may be necessary or
appropriate to permit such Optionee to make its proposed offering and sale for a
period of at least ninety (90) days commencing immediately following the end of
such period of delay. If any party disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Grantor, the underwriter and the Optionee. Notwithstanding the foregoing, the
Grantor shall not be required to include Shares within the coverage of a
registration statement being filed pursuant to this Paragraph
-4-
<PAGE>
7(a) (i) if, in the opinion of counsel for both the Grantor and Optionee, all of
the Shares proposed to be registered may be immediately transferred pursuant to
the provisions of Rule 144 under the Securities Act.
(ii) Priority on Secondary Registrations. If a Piggyback
-----------------------------------
Registration is an underwritten secondary registration on behalf of holders of
securities of the Grantor, and the underwriter thereof advises the Grantor in
writing that in its opinion the number of Shares requested to be included in
such registration statement exceeds the number which can be sold in such
offering without materially adversely affecting the distribution of such
securities, then the Grantor will include in such registration statement the
securities requested to be included in such registration statement by selling
securityholders on a pro rata basis, with such rights to inclusion being
apportioned among the Optionee and the other holders of any other securities
requesting registration according to the market value of Shares and other
securities requested by them, respectively, to be registered. Notwithstanding
the foregoing, the Grantor shall not be required to include Shares within the
coverage of a registration statement being filed pursuant to this Paragraph 7(a)
(ii) if, in the opinion of counsel for both the Grantor and Optionee, all of the
Shares proposed to be registered may be immediately transferred pursuant to the
provisions of Rule 144 under the Securities Act.
(b) If at any time after July 5, 1997 and prior to the third (3rd)
anniversary of the earlier of the expiration of the option herein granted and
the purchase of the final Shares remaining subject to such option Shares issued
or issuable upon exercise of the option herein granted are not then registered
under one or more Piggyback Registrations and then covered by a prospectus
complying with the requirements of the Securities Act, the Optionee may by
written notice to the Grantor require Grantor to file a registration statement
under the Securities Act covering such Shares as Optionee may specify in such
notice. Optionee shall be entitled so to require Grantor to file a registration
statement pursuant to this Paragraph 7(b) on only one (1) occasion. The Grantor
will file such a registration statement within ninety (90) days of receipt of
such notice; and thereafter will prosecute such registration statement
diligently to effectiveness; will cause such registration statement to become
effective as promptly as practicable; will promptly file all such supplements
and post-effective amendments to such registration statement and take any such
other actions as may be necessary or appropriate to make available to Optionee
on as continuous a basis as is practicable a prospectus meeting the requirements
of the Securities Act through the earliest of (a) the date on which the final
Shares have been sold and distributed by Optionee, (b) the date on which, in the
opinion of counsel for both the Grantor and Optionee, all of the Shares which
Optionee
- 5 -
<PAGE>
then holds may be immediately transferred pursuant to the provisions of Rule 144
under the Securities Act, and (c) January 5, 2004. In that regard, the Grantor
makes no representation or warranties as to its ability to have any registration
statement or post-effective amendment thereto declared effective.
(c) In the event of any registration of a security pursuant to this
Paragraph 7, the Grantor shall indemnify the Optionee and its officers and
directors against all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented) relating
to such registration, or caused by any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in conformity
with information furnished to the Grantor by the Optionee expressly for use
therein. The Optionee shall also indemnify the Grantor, its officers and
directors and each underwriter of the Shares so registered with respect to
losses, claims damages and liabilities caused by any untrue statement or
omission made in reliance upon and in conformity with information furnished by
the Optionee to the Grantor in writing expressly for use in such registration
statement or prospectus.
(d) All expenses of any registration referred to in this Paragraph 7,
except the fees and disbursements of counsel to the Optionee, underwriting
commissions or discounts and any transfer or other taxes applicable to the
transfer of Shares by the Optionee, shall be borne by the Grantor.
(e) Following the exercise of options hereunder, the Optionee shall
promptly advise the Grantor when Optionee no longer holds any Shares acquired
through the exercise of options granted hereunder, and upon the request of the
Grantor, the Optionee shall advise the Grantor from time to time of the number
of Shares then held by Optionee which were acquired through the exercise of
options granted hereunder.
8. Adjustments Upon Changes in Capitalization.
------------------------------------------
(a) In the event of changes in the outstanding Common Stock of the Grantor
by reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, consolidations, combinations, exchanges of shares,
separations, reorganizations, liquidations or any similar events or events
having similar consequences, the number and class of Shares as to which the
option may be exercised shall be correspondingly adjust so that for the same
aggregate exercise prices the Optionee shall be entitled to acquire the
securities and other property Optionee would have held if Optionee had exercised
the option granted.
-6-
<PAGE>
hereunder for the number of Shares under consideration prior to the first of
such events to occur and continued to hold such Shares and all other securities
and other property issued with respect thereto in connection with such events.
No adjustment shall be made with respect to cash dividends or non-liquidating
dividends payable in property other than cash, so long as Grantor provides
Optionee with written notice of any such proposed dividend at least fifteen (15)
days prior to the record date for such dividend. Grantor shall also give
Optionee prompt written notice of any event resulting in an adjustment under
this Paragraph 8(a), including a detailed computation of such adjustment.
(b) Any adjustment in the number and kind of Shares and other securities
shall apply proportionately to only the unexercised portion of the option
granted hereunder at the time of the event given rise to the adjustment. If
fractions of a Share would result from any such adjustment, the adjustment shall
be revised to the next higher whole number of Shares so long as such increase
does not result in the holder of the option being deemed to own more than 5% of
the total combined voting power or value of all classes of stock of the Grantor
or its subsidiaries, in which case the adjustment shall be revised to the next
lower whole number of Shares.
9. Effect of Mergers, Consolidations or Sales of Assets.
----------------------------------------------------
In the event Grantor should propose to merge or consolidated with, or
engage in some other form of business combination with, any other corporation or
entity on a basis in which Grantor is not to be the surviving entity,then as a
condition precedent to proceeding with such merger, consolidation or other
business combination Grantor shall secure the commitment of the surviving entity
to assume and perform all of Grantor's obligations under this Option Agreement,
on the basis that the Optionee shall have the right to acquire the same
securities and property for the option exercise price specified herein as
Optionee would have received if Optionee had exercised the option granted herein
immediately prior to such merger, consolidation or other business combination.
To the extent the above may be inconsistent with Sections 424 (a) (1) and (2) of
the Code, the above shall be deemed interpreted so as to comply therewith.
10. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
- 7 -
<PAGE>
11. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to employment by, or
any other relationship with, the Grantor.
12. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
13. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By: /s/
____________________
ACCEPTED AND AGREED TO:
/s/ Robert B. Prag
-8-
<PAGE>
NOTICE OF EXERCISE OF OPTION TO PURCHASE SHARES
TO: AGRIBIOTECH, INC.
The undersigned hereby exercises the option for the purchase of
________________________________________ (_________) shares according to the
terms and conditions of that certain Non-Qualified Stock Option Agreement, dated
as of January 5, 1996, between AgriBioTech, Inc. and the undersigned (the
"Agreement") and herewith makes payment of the exercise price in full in
accordance with the terms of said Agreement by payment in the form of cash or
certified or bank cashier's check for the Shares so being purchased at the
exercise price therefor as specified in Paragraph 2 of the Agreement.
The undersigned is purchasing such shares for investment purposes only and not
with a view to the sale or distribution thereof. Kindly issue the certificate
for such shares in accordance with the instructions given below.
-----------------------------
Signature
Social Security or Taxpayer I.D. Number:____________________________
Instructions for issuance of stock:
- --------------------------------------------------------------------
Name
- --------------------------------------------------------------------
Street Address
- --------------------------------------------------------------------
City State Zip Code
-9-
<PAGE>
Exhibit 4.4
STOCK OPTION AGREEMENT
----------------------
AGREEMENT made as of the 20th day of December, 1995 by and between
AGRIBIOTECH, INC., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 (the "Grantor"), and
KATHLEEN L. GILLESPIE, with an address at 4793 Newhope Street South, Liverpool,
NY 13090 (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Optionee is presently employed by Grantor; and
WHEREAS, Grantor is desirous of increasing the incentive of Optionee to
exert Optionee's utmost efforts to improve the business of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's continued service to the
Grantor, and for other good and valuable consideration, the Grantor hereby
grants the Optionee options to purchase common stock of the Grantor, $.001 par
value ("Common Stock"), on the following terms and conditions:
1. Option.
------
Pursuant to its 1994 Employee Stock Option Plan, as amended (the "Plan"),
the Grantor hereby grants to the Optionee an Incentive Stock Option, as such
term is defined in Section 422(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), to purchase, prior to 5:00 p.m. on December 19, 2005, as
set forth in Paragraph 3 hereof, up to an aggregate of 300,000 fully paid and
non-assessable shares of Common Stock (the "Shares"), subject to the terms and
conditions set forth below.
2. Purchase Price.
--------------
The purchase price shall be $2.00 per Share. The Grantor shall pay all
original issue or transfer taxes on the exercise of this option and all other
fees and expenses necessarily incurred by the Grantor in connection therewith.
3. Exercise of Option.
------------------
(a) The option granted hereby may be exercised with respect to up to 50,000
Shares immediately, and the option shall vest with respect to an additional
50,000 Shares on each June 30 beginning June 30, 1996 and ending on June 30,
2000. In the event of any of the following material changes in control of the
Grantor, this option shall immediately vest in full:
(i) Approval by the Grantor's shareholders of (x) a merger or consolidation
in which the Grantor is not the surviving corporation and/or which results in
any reclassification or reorganization of the then outstanding Common Stock, (y)
a sale of all or substantially all of the Grantor's assets or capital stock or
(z) a plan of liquidation or dissolution of Grantor;
(ii) the first purchase of the Common Stock pursuant to a tender or
exchange offer (other than a tender or exchange offer made by the Company)
affecting at least 25% of the Common Stock or any other sale of at least 25% of
the Common Stock to a person or group of persons who are not officers, directors
or 5% shareholders of the Grantor on the date hereof; or
(iii) Johnny R. Thomas is not elected to the Board of Directors or is no
longer the chief executive officer of the Grantor.
<PAGE>
(b) The Optionee shall notify the Grantor in writing in person, by
overnight courier or registered or certified mail, return receipt requested,
addressed to its principal office, as to the number of Shares which Optionee
desires to purchase hereunder, which notice shall be accompanied by payment (by
cash, certified check, promissory notes or shares of Common Stock then owned by
Optionee valued at the closing sale price on the day preceding such tender) of
the option price therefor, as specified in Paragraph 2 above. As soon as
practicable thereafter, the Grantor shall, at its principal office, tender to
Optionee certificates issued in the Optionee's name evidencing the Shares
purchased by the Optionee.
(c) If the aggregate fair market value of all the stock with respect to
which Incentive Stock Options are exercisable for the first time by the Optionee
during any calendar year under the Plan and all Incentive Stock Option plans of
the Grantor or its affiliates exceeds $100,000.00, the grant of the Incentive
Stock Option hereunder shall not, to the extent of such excess, be deemed a
grant of an Incentive Stock Option but will instead be deemed the grant of a
Non-Qualified Stock Option under the Plan. For purposes hereof, the fair market
value of the stock with respect to which an Incentive Stock Option is
exercisable shall be $2.00 per share, the value of such stock at the time that
specific option is granted as provided for in Section 422(b)(7) of the Code.
4. Option Conditioned On Continued Employment.
------------------------------------------
(a) If the employment of the Optionee shall be terminated for cause, or if
the Optionee leaves such employment voluntarily, the option granted to the
Optionee hereunder shall expire immediately upon such termination. If such
employment shall terminate otherwise than by reason of death, disability, for
cause or voluntary termination, such option may be exercised at any time within
three (3) months after such termination, subject to the provisions of
subparagraph (d) of this Paragraph 4.
(b) If the Optionee dies (i) while employed by the Grantor or a subsidiary
or parent corporation, or (ii) within three (3) months after the termination of
Optionee's employment other than voluntarily by the Optionee or for cause, such
option, subject to the provisions of subparagraph (d) of this Paragraph 4, may
be exercised by a legatee or legatees of such option under the Optionee's last
will or by Optionee's personal representatives or distributees at any time
within one (1) year after Optionee's death.
(c) If the Optionee becomes disabled within the definition of Section
22(e)(3) of the Code while employed by the Grantor or a subsidiary or parent
corporation, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised at any time within one (1) year after they
termination of employment due to disability.
(d) An option may not be exercised pursuant to this Paragraph 4 except to
the extent that the Optionee was entitled to exercise the option, or any part
thereof, at the time of termination of employment or death, and in any event may
not be exercised after the original expiration date of the option.
5. Divisibility and Non-Assignability of the Options.
-------------------------------------------------
(a) The Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1,000) Shares at any one time, except for the
remaining Shares covered by the option if less than one thousand (1,000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent
-2-
<PAGE>
and distribution, and these options, or any of them, shall be exercisable during
Optionee's lifetime only by the Optionee.
6. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees for Optionee, Optionee's
heirs and legatees that any and all Shares purchased hereunder shall be acquired
for investment and not for distribution, and upon the issuance of any or all of
the Shares the Optionee, or Optionee's heirs or legatees receiving such Shares,
shall deliver to the Grantor a representation in writing, that such Shares are
being acquired in good faith for investment and not for distribution. Grantor
may place a "stop transfer" order with respect to such Shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate(s)
evidencing such Shares.
7. Restriction on Issuance of Shares.
---------------------------------
The Grantor shall not be required to issue or deliver any certificate for
shares of its Common Stock purchased upon the exercise of any option unless (a)
the issuance of such shares has been registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, or counsel to the
Grantor shall have given an opinion that such registration is not required; (b)
approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof, and (c) permission for the listing
of such shares shall have been given by NASDAQ and any national securities
exchange on which the Common Stock of the Grantor is at the time of issuance
listed.
8. Recapitalization.
----------------
(a) In the event of changes in the outstanding Common Stock of the Grantor
by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of shares as to which the
options may be exercised shall be correspondingly adjusted by the Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to stockholders of
the Grantor of rights to subscribe for additional shares of Common Stock or
other securities. Anything to the contrary contained herein notwithstanding,
the Board of Directors of the Grantor shall have the discretionary authority to
take any action necessary or appropriate to prevent these options from being
disqualified as "Incentive Stock Options" under the United States income tax
laws then in effect.
(b) Any adjustment in the number of Shares shall apply proportionately to
only the unexercised portion of an option granted hereunder. If fractions of a
share would result from any such adjustment, the adjustment shall be revised to
the next higher whole number of Shares so long as such increase does not result
in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of the Grantor or its
subsidiaries.
9. No Rights in Option Stock.
--------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
-3-
<PAGE>
10. Effect Upon Employment.
-----------------------
This Agreement does not give the Optionee any right to continued employment
by the Grantor.
11. Binding Effect.
---------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
legal representatives and assigns.
12. Agreement Subject to Plan.
--------------------------
Notwithstanding anything contained herein to the contrary, and unless the
Plan is not adopted by the shareholders of the Company, this Agreement is
subject to, and shall be construed in accordance with, the terms of the Plan,
and in the event of any inconsistency between the terms hereof and the terms of
the Plan, the terms of the Plan shall govern.
13. Miscellaneous.
--------------
This Agreement shall be construed under the laws of the State of New York
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
-----------------------------
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Kathleen L. Gillespie
--------------------------------
Kathleen L. Gillespie
-4-
<PAGE>
Exhibit 4.5
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the 20th day of December 1995, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 (the "Grantor"), and
Kathleen L. Gillespie, with an address at 4793 Newhope Street South, Liverpool,
NY 13090 (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Optionee is presently employed by Grantor; and
WHEREAS, Grantor is desirous of increasing the incentive of Optionee
to exert Optionee's utmost efforts to improve the business of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's service to the
Grantor, and for other good and valuable consideration, the Grantor hereby
grants to the Optionee options to purchase common stock of the Grantor, $.001
par value ("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option
(not qualified as described in Section 422 of the Internal Revenue Code of 1986,
as amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on
December 19, 2005, as set forth in Paragraph 3 hereof, up to an aggregate of
950,000 fully paid and non-assessable shares of Common Stock (the "Shares"),
subject to the terms and conditions set forth below.
2. Purchase Price.
--------------
The purchase price shall be $2.00 per Share. The Grantor shall pay
all original issue or transfer taxes on the exercise of this option and all
other fees and expenses necessarily incurred by the Grantor in connection
herewith.
3. Exercise of Option.
------------------
(a) The options granted hereby shall vest with respect to Shares as
follows: 200,000 on December 20, 1995, and 150,000 on each June 30, commencing
in 1996 and continuing until fully vested in 2000. Notwithstanding anything to
the contrary contained in this instrument, if the Optionee tenders solely cash
in payment of the exercise price, the options for which payment is tendered
shall immediately vest. In addition, in the event of any of the following
material changes in control of the Grantor, this option shall immediately vest
in full:
(i) Approval by the Grantor's shareholders of (x) a merger or
consolidation in which the Grantor is not the surviving corporation and/or which
results in any reclassification or reorganization of the then outstanding Common
Stock, (y) a sale of all or substantially all of the Grantor's assets or capital
stock or (z) a plan of liquidation or dissolution of Grantor;
(ii) the first purchase of the Common Stock pursuant to a tender
or exchange offer (other than a tender or exchange offer made by the Company)
affecting at least 25% of the Common Stock or any other sale of at least 25% of
the Common Stock to a person or group of persons who are not officers, directors
or 5% shareholders of the Grantor on the date hereof; or
(iii) Johnny R. Thomas is not elected to the Board of Directors
or is no longer the chief executive officer of the Grantor.
<PAGE>
(b) As to any vested options, the Optionee shall notify the Grantor
in writing in person, by overnight courier or by registered or certified mail,
return receipt requested, addressed to its principal office, as to the number of
Shares which Optionee desires to purchase under the option herein granted, which
notice shall be accompanied by payment (by cash, certified check, promissory
notes or shares of Common Stock then owned by Optionee valued at the closing
sale price on the day preceding such tender) of the exercise price therefor as
specified in Paragraph 2 above. As soon as practicable thereafter, the Grantor
shall cause to be delivered to the Optionee certificates issued in the
Optionee's name evidencing the Shares purchased by the Optionee.
4. Option Conditioned On Continued Service.
---------------------------------------
(a) If the employment of the Optionee shall be terminated for cause,
or if the Optionee leaves such employment voluntarily, the option granted to the
Optionee hereunder shall expire immediately upon such termination. If such
employment shall terminate otherwise than by reason of death, disability, for
cause or voluntary termination, such option may be exercised at any time within
three (3) months after such termination, subject to the provisions of
subparagraph (d) of this Paragraph 4.
(b) If the Optionee dies (i) while employed by the Grantor or a
subsidiary or parent corporation, or (ii) within three (3) months after the
termination of Optionee's employment other than voluntarily by the Optionee or
for cause, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised by a legatee or legatees of such option under the
Optionee's last will or by Optionee's personal representatives or distributees
at any time within one (1) year after Optionee's death.
(c) If the Optionee becomes disabled within the definition of Section
22(e)(3) of the Code while employed by the Grantor or a subsidiary or parent
corporation, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised at any time within one (1) year after the
termination of employment due to disability.
(d) An option may not be exercised pursuant to this Paragraph 4 except
to the extent that the Optionee was entitled to exercise the option, or any part
thereof, at the time of termination of employment or death, and in any event may
not be exercised after the original expiration date of the option.
5. Divisibility and Non-Assignability of the Option.
------------------------------------------------
(a) The Optionee may exercise the option herein granted from time to
time subject to the provisions of Section 3 above with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1000) Shares at any one time, except for the
remaining Shares covered by the option if less than one thousand (1000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal
title, pledge, assign or otherwise encumber or dispose of the options herein
granted or any interest therein, and the options herein granted, or any of them,
shall be exercisable only by the Optionee or its legal successors.
6. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees that any and all Shares
purchased hereunder shall be acquired for investment purposes only and not for
sale or distribution, and upon the issuance of any or all of the Shares issuable
under the option granted hereunder, the Optionee shall deliver to the Grantor a
representation in writing, that such Shares are being acquired in good faith for
investment purposes only and not for sale or distribution. Grantor may place a
"stop transfer" order with respect to such Shares with its transfer agent and
-2-
<PAGE>
place an appropriate restrictive legend on the stock certificate(s) evidencing
such Shares.
7. Restriction on Issuance of Shares.
---------------------------------
The Grantor shall not be required to issue or deliver any certificate
for Shares purchased upon the exercise of any option granted hereunder unless
(a) the issuance of such Shares has been registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, or counsel to
the Grantor shall have given an opinion that such registration is not required;
(b) approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof; and (c) permission for the listing
of such Shares, if required, shall have been given by NASDAQ and any national
securities exchange on which the Common Stock of the Grantor is at the time of
issuance listed.
8. Adjustments Upon Changes in Capitalization.
-------------------------------------------
(a) In the event of changes in the outstanding Common Stock of the
Grantor by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of Shares as to which the
option may be exercised shall be correspondingly adjusted by the Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to shareholders of
the Grantor of rights to subscribe for additional Common Stock or other
securities.
(b) Any adjustment in the number of Shares shall apply proportionately
to only the unexercised portion of the option granted hereunder. If fractions
of a Share would result from any such adjustment, the adjustment shall be
revised to the next higher whole number of Shares so long as such increase does
not result in the holder of the option being deemed to own more than 5% of the
total combined voting power or value of all classes of stock of the Grantor or
its subsidiaries.
9. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as
to which the option granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to
continued employment by the Grantor.
11. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
12. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of
Nevada applied to agreements made and to be performed entirely within such
State. Headings have been included herein for convenience of reference only and
shall not be deemed a part of this Agreement.
-3-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
---------------------------
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Kathleen L. Gillespie
---------------------------
Kathleen L. Gillespie
-4-
<PAGE>
Exhibit 4.6
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the 13th day of February 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 (the "Grantor"), and Henry
Ingalls, with an address c/o the Grantor at 2700 Sunset Road, Suite C-25, Las
Vegas, NV 89120 (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Optionee has agreed to join the employ of Grantor; and
WHEREAS, Grantor desires to maximize the incentive of Optionee to
exert Optionee's utmost efforts to improve the business of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's service to the
Grantor, and for other good and valuable consideration, the Grantor hereby
grants to the Optionee options to purchase common stock of the Grantor, $.001
par value ("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option
(not qualified as described in Section 422 of the Internal Revenue Code of 1986,
as amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on
February 12, 2006, as set forth in Paragraph 3 hereof, up to an aggregate of
1,250,000 fully paid and non-assessable shares of Common Stock (the "Shares"),
subject to the terms and conditions set forth below.
2. Purchase Price.
--------------
The purchase price shall be $2.12 per Share. The Grantor shall pay
all original issue or transfer taxes on the exercise of this option and all
other fees and expenses necessarily incurred by the Grantor in connection
herewith.
3. Exercise of Option.
------------------
(a) The options granted hereby shall vest with respect to Shares as
follows: 250,000 on each April 3, commencing in 1996 and continuing until fully
vested in 2000. Notwithstanding anything to the contrary contained in this
instrument, if the Optionee tenders solely cash in payment of the exercise
price, the options for which payment is tendered shall immediately vest. In
addition, in the event of any of the following material changes in control of
the Grantor, this option shall immediately vest in full:
(i) Approval by the Grantor's shareholders of (x) a merger or
consolidation in which the Grantor is not the surviving corporation and/or which
results in any reclassification or reorganization of the then outstanding Common
Stock, (y) a sale of all or substantially all of the Grantor's assets or capital
stock or (z) a plan of liquidation or dissolution of Grantor;
(ii) the first purchase of the Common Stock pursuant to a tender
or exchange offer (other than a tender or exchange offer made by the Company)
affecting at least 25% of the Common Stock or any other sale of at least 25% of
the Common Stock to a person or group of persons who are not officers, directors
or 5% shareholders of the Grantor on the date hereof;
(iii) Johnny R. Thomas is not elected to the Board of Directors
or is no longer the chief executive officer of the Grantor; or
<PAGE>
(iv) Any other material change in ownership or management of the
Corporation after which (x) the Optionee is terminated or (y) in the sole
determination of the Optionee, there is a significant change in the Optionee's
duties, responsibilities, principal location of employment, or compensation.
(b) In addition, for a period of one (1) year following any change of
control or management, described in (a) above, the Optionee shall have the
option of terminating this Agreement without justification and, in such event,
he will be immediately vested with respect to the options which would otherwise
become vested on the April 3 following such termination.
(c) As to any vested options, the Optionee shall notify the Grantor
in writing in person, by overnight courier or by registered or certified mail,
return receipt requested, addressed to its principal office, as to the number of
Shares which Optionee desires to purchase under the option herein granted, which
notice shall be accompanied by payment (by cash, certified check, promissory
notes or shares of Common Stock then owned by Optionee valued at the closing
sale price on the day preceding such tender) of the exercise price therefor as
specified in Paragraph 2 above. As soon as practicable thereafter, the Grantor
shall cause to be delivered to the Optionee certificates issued in the
Optionee's name evidencing the Shares purchased by the Optionee.
(d) Pursuant to the Optionee's Employment Agreement with the Grantor,
dated as of February 13, 1996, and for so long as such Employment Agreement is
in force, the Optionee shall have the following "stock depreciation rights"
after the exercise of options hereunder:
(i) at the end of the six-month period following the date of
exercise during which the Optionee is subject to the restrictions of Section
16(b) of the Securities Exchange Act of 1934, as amended, if the market price
has declined from the date of exercise, the Grantor shall pay to the Optionee
the difference between the aggregate market price of the Shares purchased on the
date of exercise and the aggregate market price of such Shares on the day
following the end of the six-month period; and
(ii) if, upon sale, the Optionee is subject to taxes on the
proceeds at a rate higher than the capital gains rate, then the Grantor shall
pay to the Optionee the difference between the taxes paid and the taxes that
would have been paid if the capital gains rate had been applied.
4. Option Conditioned On Continued Service.
---------------------------------------
(a) If the employment of the Optionee shall be terminated for cause,
or if the Optionee leaves such employment voluntarily, the option granted to the
Optionee hereunder shall expire immediately upon such termination. If such
employment shall terminate otherwise than by reason of death, disability, for
cause or voluntary termination, such option may be exercised at any time within
three (3) months after such termination, subject to the provisions of
subparagraph (d) of this Paragraph 4.
(b) If the Optionee dies (i) while employed by the Grantor or a
subsidiary or parent corporation, or (ii) within three (3) months after the
termination of Optionee's employment other than voluntarily by the Optionee or
for cause, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised by a legatee or legatees of such option under the
Optionee's last will or by Optionee's personal representatives or distributees
at any time within one (1) year after Optionee's death.
(c) If the Optionee becomes disabled within the definition of Section
22(e)(3) of the Code while employed by the Grantor or a subsidiary or parent
corporation, such option, subject to the provisions of subparagraph (d) of this
-2-
<PAGE>
Paragraph 4, may be exercised at any time within one (1) year after the
termination of employment due to disability.
(d) An option may not be exercised pursuant to this Paragraph 4 except
(i) to the extent that the Optionee was entitled to exercise the option, or any
part thereof, at the time of termination of employment or death, or (ii) if the
Optionee's employment is terminated by the Grantor without cause, the options
with respect to which the Optionee would otherwise become vested on the next
April 3 will immediately vest; and (iii) in any event the option may not be
exercised after the original expiration date of the option.
5. Divisibility and Non-Assignability of the Option.
------------------------------------------------
(a) The Optionee may exercise the option herein granted from time to
time subject to the provisions of Section 3 above with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1000) Shares at any one time, except for the
remaining Shares covered by the option if less than one thousand (1000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal
title, pledge, assign or otherwise encumber or dispose of the options herein
granted or any interest therein, and the options herein granted, or any of them,
shall be exercisable only by the Optionee or its legal successors.
6. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees that any and all Shares
purchased hereunder shall be acquired for investment purposes only and not for
sale or distribution, and upon the issuance of any or all of the Shares issuable
under the option granted hereunder, the Optionee shall deliver to the Grantor a
representation in writing, that such Shares are being acquired in good faith for
investment purposes only and not for sale or distribution. Grantor may place a
"stop transfer" order with respect to such Shares with its transfer agent and
place an appropriate restrictive legend on the stock certificate(s) evidencing
such Shares.
7. Restriction on Issuance of Shares.
---------------------------------
The Grantor shall not be required to issue or deliver any certificate
for Shares purchased upon the exercise of any option granted hereunder unless
(a) the issuance of such Shares has been registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, or counsel to
the Grantor shall have given an opinion that such registration is not required;
(b) approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof; and (c) permission for the listing
of such Shares, if required, shall have been given by NASDAQ and any national
securities exchange on which the Common Stock of the Grantor is at the time of
issuance listed.
8. Adjustments Upon Changes in Capitalization.
-------------------------------------------
(a) In the event of changes in the outstanding Common Stock of the
Grantor by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of Shares as to which the
option may be exercised shall be correspondingly adjusted by the Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to shareholders of
the Grantor of rights to subscribe for additional Common Stock or other
securities.
-3-
<PAGE>
(b) Any adjustment in the number of Shares shall apply
proportionately to only the unexercised portion of the option granted hereunder.
If fractions of a Share would result from any such adjustment, the adjustment
shall be revised to the next higher whole number of Shares so long as such
increase does not result in the holder of the option being deemed to own more
than 5% of the total combined voting power or value of all classes of stock of
the Grantor or its subsidiaries.
9. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as
to which the option granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to continued
employment by the Grantor.
11. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
12. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of
Nevada applied to agreements made and to be performed entirely within such
State. Headings have been included herein for convenience of reference only and
shall not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
---------------------------
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Henry Ingalls
---------------------------
Henry Ingalls
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<PAGE>
Exhibit 4.7
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the 5th day of March 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 (the "Grantor"), and Robert
Olins, with an address at 14 East 82nd Street, New York, NY 10028 (the
"Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Optionee is performing consulting services on behalf of the
Grantor;
NOW, THEREFORE, in consideration of certain consulting services, and for
other good and valuable consideration, the Grantor hereby grants to the Optionee
options to purchase common stock of the Grantor, $.001 par value ("Common
Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on April 30,
2001, as set forth in Paragraph 3 hereof, up to an aggregate of Two Hundred
Fifty Thousand (250,000) fully paid and non-assessable shares of Common Stock
(the "Shares"), subject to the terms and conditions set forth below.
2. Purchase Price.
--------------
The purchase price shall be $ 2.50 per Share (the market closing price of
the Shares on February 29, 1996 when the terms of this option were agreed to.
The Grantor shall pay all original issue or transfer taxes on the exercise of
this option and all other fees and expenses necessarily incurred by the Grantor
in connection herewith.
3. Exercise of Option.
------------------
The Optionee shall notify the Grantor in writing in person, by overnight
courier or by registered or certified mail, return receipt requested, addressed
to its principal office, as to the number of Shares which Optionee desires to
purchase under the option herein granted, which notice shall be accompanied by
payment (by cash or certified check) of the exercise price therefor as specified
in Paragraph 2 above. As soon as practicable thereafter, the Grantor shall
cause to be delivered to the Optionee certificates issued in the Optionee's name
evidencing the Shares purchased by the Optionee.
4. Divisibility and Non-Assignability of the Option.
------------------------------------------------
(a) The Optionee may exercise the option herein granted from time to time
subject to the provisions of Paragraph 3 above with respect to any whole number
of Shares included therein, but in no event may an option be exercised as to
less than ten thousand (10,000) Shares at any one time, except for the remaining
Shares covered by the option if less than ten thousand (10,000).
(b) The Optionee may give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, provided the provisions of Paragraphs 5 and 6 are complied
with in their entirety.
5. Stock as Investment.
-------------------
<PAGE>
By accepting this option, the Optionee agrees that any and all Shares
purchased hereunder shall be acquired for investment purposes only and not for
sale or distribution, and upon the issuance of any or all of the Shares issuable
under the option granted hereunder, the Optionee shall deliver to the Grantor a
representation in writing, that such Shares are being acquired in good faith for
investment purposes only and not for sale or distribution. Grantor may place a
"stop transfer" order with respect to such Shares with its transfer agent and
place an appropriate restrictive legend on the stock certificate(s) evidencing
such Shares.
6. Restriction on Issuance of Shares.
---------------------------------
The Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any option granted hereunder unless (a)
the issuance of such Shares has been registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended ("Securities Act") or
counsel to the Grantor or Optionee shall have given an opinion that such
registration is not required; (b) approval, to the extent required, shall have
been obtained from any state regulatory body having jurisdiction thereof; and
(c) permission for the listing of such Shares, if required, shall have been
given by NASDAQ and any national securities exchange on which the Common Stock
of the Grantor are at the time of issuance listed.
7. Registration Rights
-------------------
The Shares issued upon exercise of this option carry the registration
rights set forth below:
(a) Piggyback Rights. The Grantor agrees to use its best efforts to file
----------------
a registration statement (other than pursuant to a registration statement on
Forms S-4 or S-8 or any successor form) under the Securities Act on or prior to
September 30, 1996. If the Grantor files such a registration statement, the
Grantor shall notify the Optionee at least twenty (20) days prior to the filing
of such registration statement and will offer to include in such registration
statement all or any portion of the Shares. At the written request of the
Optionee, delivered to the Grantor within twenty (20) days after receipt of the
Grantor's notice, the Optionee shall state the number of Shares that it wishes
to sell or distribute publicly under the proposed registration statement. The
Grantor will use its best efforts, through its officers, directors, auditors and
counsel in all matters necessary or advisable, to cause such registration
statement to become effective as promptly as practicable. In that regard, the
Grantor makes no representations or warranties as to its ability to have the
registration statement declared effective. All registrations requested pursuant
to this Paragraph are referred to herein as "Piggyback Registrations." In the
event the Grantor is advised by the staff of the SEC, NASDAQ or any self-
regulatory or state securities agency that the inclusion of the Shares will
prevent, preclude or materially delay the effectiveness of a registration
statement filed, the Grantor, in good faith, may amend such registration
statement to exclude the Shares without otherwise affecting the Optionee's
rights to any other registration statement herein.
(i) Primary Registrations. If a Piggyback Registration is an
---------------------
underwritten primary registration on behalf of the Grantor, and if the
underwriter thereof advises the Grantor in writing that in its opinion the
number of Shares requested to be included in such registration statement exceeds
the number that can be sold in such offering without materially adversely
affecting the distribution of such securities by the Grantor, then the Grantor
will include in such registration statement first, the securities that the
Grantor proposes to sell and second, the securities requested to be included in
such registration statement, any sales of which shall apportioned pro rata among
the Optionee and the holders of any other securities requesting registration
according to the amounts of Shares and other securities requested to be
registered.
-2-
<PAGE>
Notwithstanding the above, if any such underwriter shall advise the Grantor
in writing that the distribution of the Shares requested to be included in the
registration statement concurrently with the securities being registered by the
Grantor would materially adversely affect the distribution of such securities by
the Grantor, then the Optionee shall delay its offering and sale for such period
ending on the earliest of (a) 180 days following the effective date of the
Grantor's registration statement or (b) such date as the Grantor, managing
underwriter and Optionee shall otherwise agree. In the event of such delay, the
Grantor shall file such supplements, post-effective amendments and take any such
other steps as may be necessary to permit such Optionee to make its proposed
offering and sale for a period of ninety (90) days immediately following the end
of such period of delay. If any party disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Grantor, the underwriter and the Optionee. Notwithstanding the foregoing, the
Grantor shall not be required to file a registration statement to include the
Shares pursuant to this Paragraph if, in the opinion of counsel for the Grantor,
all of the Shares proposed to be disposed of may be transferred pursuant to the
provisions of Rule 144 under the Securities Act.
(ii) Priority on Secondary Registrations. If a Piggyback Registration
-----------------------------------
is an underwritten secondary registration on behalf of holders of securities of
the Grantor, and the underwriter thereof advises the Grantor in writing that in
its opinion the number of Shares requested to be included in such registration
statement exceeds the number which can be sold in such offering without
materially adversely affecting the distribution of such securities, then the
Grantor will include in such registration statement the securities requested to
be included in such registration statement, any sales of which shall be
apportioned pro rata among the Optionee and the holders of any other securities
requesting registration according to the amounts of Shares and other securities
requested to be registered.
(b) Demand Right. If at any one time, after September 30, 1996, the
------------
Company has not filed a registration statement concerning the Shares and the
Company shall receive a written request therefor from either the Optionee, or
any of the holders of any other option originally issued on March 5, 1996 (the
"Bridge Options"), the Company shall prepare and file one registration statement
under the Securities Act covering the shares which are the subject of such
request and the Shares of Optionee and the Bridge Options, and shall use its
best efforts to cause such registration statement to become effective.
(c) Indemnification. In the event of any registration of a security
---------------
pursuant to this Section, the Grantor shall indemnify the Optionee and its
officers and directors against all losses, claims, damages and liabilities
caused by any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus (and as amended or
supplemented) relating to such registration, or caused by any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they are made unless such statement or omission was
made in reliance upon and in conformity with information furnished to the
Grantor by the Optionee expressly for use therein. The Optionee shall also
indemnify the Grantor, its officers and directors and each underwriter of the
Shares so registered with respect to losses, claims, damages and liabilities
caused by any untrue statement or omission made in reliance upon and in
conformity with information furnished by the Optionee to the Grantor expressly
for use in such registration statement or prospectus.
(d) Expenses. All expenses of any registration referred to in this
--------
Section, underwriting commissions or discounts, filing fees and any transfer or
other taxes applicable to the options and/or Shares, shall be borne by the
Grantor, except the fees and disbursements of counsel to the Optionee.
8. Adjustments Upon Changes in Capitalization.
------------------------------------------
-3-
<PAGE>
(a) In the event of changes in the outstanding Common Stock of the Grantor
by reason of common stock dividends, stock splits, recapitalizations,
combinations, or exchanges of shares, separations, reorganizations, or
liquidations, the number and class of Shares as to which the option may be
exercised shall be correspondingly adjusted by the Grantor. No adjustment shall
be made with respect to stock dividends or splits which do not exceed 10% in any
fiscal year, cash dividends or the issuance to shareholders of the Grantor of
rights to subscribe for additional Common Stock or other securities.
(b) Any adjustment in the number of Shares shall apply proportionately to
only the unexercised portion of the option granted hereunder. If fractions of a
Share would result from any such adjustment, the adjustment shall be revised to
the next higher whole number of Shares so long as such increase does not result
in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of the Grantor or its
subsidiaries.
9. Effect of Mergers, Consolidations or Sales of Assets.
----------------------------------------------------
Anything contained herein to the contrary, a merger or consolidation in
which the Grantor is not the surviving corporation, or a sale of substantially
all of the Grantor's assets or capital stock shall cause the unexercised options
to terminate automatically, unless otherwise provided by the Board of Directors.
Furthermore, this option may, at the discretion of the Board of Directors
of the Grantor and said other corporation, be exchanged for options to purchase
shares of capital stock of another corporation which the Grantor, and/or a
subsidiary thereof is merged into, consolidated with, or all or a substantial
portion of the property or stock of which is acquired by said other corporation
or separated or reorganized into. The terms, provisions and benefits to the
Optionee of such substitute option(s) shall in all respects be identical to the
terms, provisions and benefits of Optionee under this option prior to said
substitution. To the extent the above may be inconsistent with Sections
424(a)(1) and (2) of the Code, the above shall be deemed interpreted so as to
comply therewith.
-4-
<PAGE>
10. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
11. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
12. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
13. Counterparts. This Agreement may be executed and delivered in
------------
multiple counterpart copies, each of which shall be an original and all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By: /S/ Johnny R. Thomas
--------------------------
Johnny R. Thomas,
President
ACCEPTED AND AGREED TO:
/s/ Robert Olins
-----------------------------
Robert Olins
-5-
<PAGE>
Exhibit 4.8
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the 11th day of March 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 (the "Grantor"), and
____________, with an address c/o the Grantor at 2700 Sunset Road, Suite C-25,
Las Vegas, NV 89120 (the "Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Optionee is presently employed by Grantor; and
WHEREAS, Grantor desires to increase the incentive of Optionee to
exert Optionee's utmost efforts to improve the business of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's service to the
Grantor, and for other good and valuable consideration, the Grantor hereby
grants to the Optionee options to purchase common stock of the Grantor, $.001
par value ("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option
(not qualified as described in Section 422 of the Internal Revenue Code of 1986,
as amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on March
10, 2006, as set forth in Paragraph 3 hereof, up to an aggregate of 1,000,000
fully paid and non-assessable shares of Common Stock (the "Shares"), subject to
the terms and conditions set forth below.
2. Purchase Price.
--------------
The purchase price shall be $3.00 per Share. The Grantor shall pay
all original issue or transfer taxes on the exercise of this option and all
other fees and expenses necessarily incurred by the Grantor in connection
herewith.
3. Exercise of Option.
------------------
(a) The options granted hereby shall vest as follows: 100,000 on each
June 30, commencing in 1996 and continuing until fully vested in 2005.
Notwithstanding the above, if: (i) the audited sales of the Grantor for any
fiscal year ("Sales") exceed $100,000,000, one third of the unvested options
shall immediately vest; (ii) Sales exceed $200,000,000, another one third (or an
aggregate of two-thirds) of the unvested options shall immediately vest; (iii)
Sales exceed $300,000,000, all of the options shall immediately vest; or (iv)
the Optionee tenders solely cash, the options for which payment is tendered
shall immediately vest. In addition, in the event of any of the following
material changes in control of the Grantor, this option shall immediately vest
in full:
(i) Approval by the Grantor's shareholders of (x) a merger or
consolidation in which the Grantor is not the surviving corporation and/or which
results in any reclassification or reorganization of the then outstanding Common
Stock, (y) a sale of all or substantially all of the Grantor's assets or capital
stock or (z) a plan of liquidation or dissolution of Grantor;
(ii) the first purchase of the Common Stock pursuant to a tender
or exchange offer (other than a tender or exchange offer made by the Company)
affecting at least 25% of the Common Stock or any other sale of at least 25% of
the Common Stock to a person or group of persons who are not officers, directors
or 5% shareholders of the Grantor on the date hereof; or
(iii) Johnny R. Thomas is not elected to the Board of Directors
or is no longer the chief executive officer of the Grantor.
<PAGE>
(b) As to any vested options, the Optionee shall notify the Grantor
in writing in person, by overnight courier or by registered or certified mail,
return receipt requested, addressed to its principal office, as to the number of
Shares which Optionee desires to purchase under the option herein granted, which
notice shall be accompanied by payment (by cash, certified check, promissory
notes or shares of Common Stock then owned by Optionee valued at the closing
sale price on the day preceding such tender) of the exercise price therefor as
specified in Paragraph 2 above. As soon as practicable thereafter, the Grantor
shall cause to be delivered to the Optionee certificates issued in the
Optionee's name evidencing the Shares purchased by the Optionee.
4. Option Conditioned On Continued Service.
---------------------------------------
If the employment of the Optionee shall be terminated for cause, or if
the Optionee leaves his employment or affiliation with the Company voluntarily,
the option granted to the Optionee hereunder shall expire immediately upon such
termination. If such employment shall terminate otherwise than for cause or
voluntary termination, such option may be exercised to the extent that the
Optionee was entitled to exercise the option, or any part thereof, at the time
of termination, and in any event may not be exercised after the original
expiration date of the option.
5. Divisibility and Assignability of the Option.
--------------------------------------------
(a) The Optionee may exercise the option herein granted from time to
time subject to the provisions of Section 3 above with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1,000) Shares at any one time, except for the
remaining Shares covered by the option if less than one thousand (1,000).
(b) This option shall be fully transferrable. In connection with the
sale, assignment or other transfer of this option, in whole or in part, the
assignee must deliver to the Grantor or its counsel such investment
representations and other documents as are reasonably requested, and no transfer
may take place in violation of any securities law or regulation.
6. Stock as Investment.
-------------------
By accepting this option, the Optionee and any assignee agrees that
any and all Shares purchased hereunder shall be acquired for investment purposes
only and not for sale or distribution, and upon the issuance of any or all of
the Shares issuable under the option granted hereunder, the holder shall deliver
to the Grantor a representation in writing, that such Shares are being acquired
in good faith for investment purposes only and not for sale or distribution.
Grantor may place a "stop transfer" order with respect to such Shares with its
transfer agent and place an appropriate restrictive legend on the stock
certificate(s) evidencing such Shares.
7. Restriction on Issuance of Shares.
---------------------------------
The Grantor shall not be required to issue or deliver any certificate
for Shares purchased upon the exercise of any option granted hereunder unless
(a) the issuance of such Shares has been registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, or counsel to
the Grantor shall have given an opinion that such registration is not required;
(b) approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof; and (c) permission for the listing
of such Shares, if required, shall have been given by NASDAQ and any national
securities exchange on which the Common Stock of the Grantor is at the time of
issuance listed.
8. Adjustments Upon Changes in Capitalization.
------------------------------------------
-2-
<PAGE>
(a) In the event of changes in the outstanding Common Stock of the
Grantor by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of Shares as to which the
option may be exercised shall be correspondingly adjusted by the Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to shareholders of
the Grantor of rights to subscribe for additional Common Stock or other
securities.
(b) Any adjustment in the number of Shares shall apply proportionately
to only the unexercised portion of the option granted hereunder. If fractions
of a Share would result from any such adjustment, the adjustment shall be
revised to the next higher whole number of Shares so long as such increase does
not result in the holder of the option being deemed to own more than 5% of the
total combined voting power or value of all classes of stock of the Grantor or
its subsidiaries.
9. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as
to which the option granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to continued
employment by the Grantor.
11. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
12. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of
Nevada applied to agreements made and to be performed entirely within such
State. Headings have been included herein for convenience of reference only and
shall not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AGRIBIOTECH, INC.
By:___________________________
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
---------------------------
-3-
<PAGE>
Exhibit 4.9
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the 8th day of May 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 (the "Grantor"), and Byron
D. Ford, with an address at 975 North 2nd Avenue, St. Charles, IL 60174 (the
"Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Optionee has become a director of Grantor; and
WHEREAS, Optionee has elected to receive this option as part of his
annual retainer fee.
NOW, THEREFORE, in consideration of the Optionee's service to the
Grantor, and for other good and valuable consideration, the Grantor hereby
grants to the Optionee an option to purchase common stock of the Grantor, $.001
par value ("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option
(not qualified as described in Section 422 of the Internal Revenue Code of 1986,
as amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on May 7,
2006, as set forth in Paragraph 3 hereof, up to an aggregate of 20,000 fully
paid and non-assessable shares of Common Stock (the "Shares"), subject to the
terms and conditions set forth below.
2. Purchase Price.
--------------
The purchase price shall be $4.06 per Share. The Grantor shall pay
all original issue or transfer taxes on the exercise of this option and all
other fees and expenses necessarily incurred by the Grantor in connection
herewith.
3. Exercise of Option.
------------------
(a) The options granted hereby shall vest as follows: 10,000
immediately and 10,000 on the first anniversary of the date hereof. In
addition, in the event of any of the following material changes in control of
the Grantor, this option shall immediately vest in full:
(i) Approval by the Grantor's shareholders of (x) a merger or
consolidation in which the Grantor is not the surviving corporation and/or which
results in any reclassification or reorganization of the then outstanding Common
Stock, (y) a sale of all or substantially all of the Grantor's assets or capital
stock or (z) a plan of liquidation or dissolution of Grantor; or
(ii) the first purchase of the Common Stock pursuant to a
tender or exchange offer (other than a tender or exchange offer made by the
Company) affecting at least 25% of the Common Stock or any other sale of at
least 25% of the Common Stock to a person or group of persons who are not
officers, directors or 5% shareholders of the Grantor on the date hereof.
(b) As to any vested options, the Optionee shall notify the Grantor
in writing in person, by overnight courier or by registered or certified mail,
return receipt requested, addressed to its principal office, as to the number of
Shares which Optionee desires to purchase under the option herein granted, which
notice shall be accompanied by payment (by cash, certified check, promissory
notes or shares of Common Stock then owned by Optionee valued at the closing
sale price on the day preceding such tender) of the exercise price therefor as
specified in Paragraph 2 above. As soon as practicable thereafter, the Grantor
<PAGE>
shall cause to be delivered to the Optionee certificates issued in the
Optionee's name evidencing the Shares purchased by the Optionee.
4. Option Not Conditioned On Continued Service.
-------------------------------------------
If the term of the Optionee as director shall be terminated for any
reason, the option granted hereby may be exercised to the extent that the
Optionee was entitled to exercise the option, or any part thereof, at the time
of termination, and in any event may not be exercised after the original
expiration date of the option.
5. Divisibility and Assignability of the Option.
--------------------------------------------
(a) The Optionee may exercise the option herein granted from time to
time subject to the provisions of Paragraph 3 above with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than one thousand (1,000) Shares at any one time, except for the
remaining Shares covered by the option if less than one thousand (1,000).
(b) This option shall be fully transferrable. In connection with the
sale, assignment or other transfer of this option, in whole or in part, the
assignee must deliver to the Grantor or its counsel such investment
representations and other documents as are reasonably requested, and no transfer
may take place in violation of any securities law or regulation.
6. Stock as Investment.
-------------------
By accepting this option, the Optionee and any assignee agrees that
any and all Shares purchased hereunder shall be acquired for investment purposes
only and not for sale or distribution, and upon the issuance of any or all of
the Shares issuable under the option granted hereunder, the holder shall deliver
to the Grantor a representation in writing, that such Shares are being acquired
in good faith for investment purposes only and not for sale or distribution.
Grantor may place a "stop transfer" order with respect to such Shares with its
transfer agent and place an appropriate restrictive legend on the stock
certificate(s) evidencing such Shares.
7. Restriction on Issuance of Shares.
---------------------------------
The Grantor shall not be required to issue or deliver any certificate
for Shares purchased upon the exercise of any option granted hereunder unless
(a) the issuance of such Shares has been registered with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, or counsel to
the Grantor shall have given an opinion that such registration is not required;
(b) approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof; and (c) permission for the listing
of such Shares, if required, shall have been given by NASDAQ and any national
securities exchange on which the Common Stock of the Grantor is at the time of
issuance listed.
8. Adjustments Upon Changes in Capitalization.
-------------------------------------------
(a) In the event of changes in the outstanding Common Stock of the
Grantor by reason of stock dividends, stock splits, combinations or exchanges of
shares, liquidations or any of the following events in which the Company is not
the surviving entity: recapitalizations, mergers or consolidations, then the
number and class of Shares as to which the option may be exercised shall be
correspondingly adjusted by the Grantor. No adjustment shall be made with
respect to stock dividends or splits which do not exceed 10% in any fiscal year,
cash dividends or the issuance to shareholders of the Grantor of rights to
subscribe for additional Common Stock or other securities.
-2-
<PAGE>
(b) Any adjustment in the number of Shares shall apply
proportionately to only the unexercised portion of the option granted hereunder.
If fractions of a Share would result from any such adjustment, the adjustment
shall be revised to the next higher whole number of Shares so long as such
increase does not result in the holder of the option being deemed to own more
than 5% of the total combined voting power or value of all classes of stock of
the Grantor or its subsidiaries.
9. Registration Rights
-------------------
(a) If, at any time during the exercise period hereof, the Grantor
proposes to file a registration statement with respect to any class of
securities (other than pursuant to a registration statement on Forms S-4 or S-8
or any successor form) under the Securities Act, the Grantor shall notify the
Optionee at least twenty (20) days prior to the filing of such registration
statement and will offer to include in such registration statement all or any
portion of the Shares. At the written request of the Optionee, delivered to the
Grantor within ten (10) days after receipt of the Grantor's notice, the Optionee
shall state the number of Shares that it wishes to sell or distribute publicly
under the proposed registration statement. The Grantor will use its best
efforts, through its officers, directors, auditors and counsel in all matters
necessary or advisable, to cause such registration statement to become effective
as promptly as practicable. In that regard, the Grantor makes no
representations or warranties as to its ability to have the registration
statement declared effective. In the event the Grantor is advised by the staff
of the SEC, NASDAQ or any self-regulatory or state securities agency that the
inclusion of the Shares will prevent, preclude or materially delay the
effectiveness of a registration statement filed by the Grantor with respect to
any securities other than the Shares, the Grantor, in good faith, may amend such
registration statement to exclude the Shares without otherwise affecting the
Optionee's rights to any other registration statement herein.
(i) Primary Registrations. If a registration statement is
filed with respect to an underwritten primary registration on behalf of the
Grantor, and if the underwriter thereof advises the Grantor in writing that, in
its opinion, the number of Shares requested to be included in such registration
statement exceeds the number that can be sold in such offering without
materially adversely affecting the distribution of securities by the
underwriter, then the Grantor will include in such registration statement first,
the securities that the Grantor proposes to sell and second, the Shares
requested to be included in such registration statement, to the extent permitted
by such underwriter. Any sales of Shares shall be apportioned pro rata among the
Optionee and the holders of any other securities requesting registration
pursuant to registration rights according to the amounts of Shares and such
other securities requested to be registered.
Notwithstanding the above, if any such underwriter shall advise the
Grantor in writing that the distribution of the Shares requested to be included
in the registration statement concurrently with the securities being registered
by the Grantor would materially adversely affect the distribution of such
securities by the Grantor, then the Optionee shall delay his offering and sale
for such period ending on the earliest of (a) 180 days following the effective
date of the Grantor's registration statement or (b) such date as the Grantor,
managing underwriter and Optionee shall otherwise agree. In the event of such
delay, the Grantor shall file such supplements, post-effective amendments and
take any such other steps as may be necessary to permit such Optionee to make
his proposed offering and sale for a period of ninety (90) days immediately
following the end of such period of delay.
(ii) Priority on Secondary Registrations. If a registration
-----------------------------------
statement is filed with respect to an underwritten secondary registration on
behalf of holders of securities of the Grantor, and the underwriter thereof
advises the
-3-
<PAGE>
Grantor in writing that in its opinion the number of Shares requested to be
included in such registration statement exceeds the number which can be sold in
such offering without materially adversely affecting the distribution of such
securities, then the Grantor will include in such registration statement such
securities requested to be included in such registration statement, as permitted
by the managing underwriter, any sales of which shall be apportioned pro rata
among the Optionee and the holders of any other securities requesting
registration according to the amounts of Shares and other securities requested
to be registered.
(iii) Rule 144 Exception. Notwithstanding the foregoing, the
Grantor shall not be required to file a registration statement to include the
Shares pursuant to this Agreement if, in the opinion of counsel for the Grantor,
all of the Shares proposed to be disposed of may be transferred pursuant to the
provisions of Rule 144 under the Securities Act.
(b) In the event of any registration of a security pursuant to this
Agreement, the Grantor shall indemnify the Optionee and its officers and
directors against all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented) relating
to such registration, or caused by any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in conformity
with information furnished to the Grantor by the Optionee expressly for use
therein. The Optionee shall also indemnify the Grantor, its officers and
directors and each underwriter of the Shares so registered with respect to
losses, claims, damages and liabilities caused by any untrue statement or
omission made in reliance upon and in conformity with information furnished by
the Optionee to the Grantor expressly for use in such registration statement or
prospectus.
(c) All expenses of any registration referred to in this Agreement,
except the fees and disbursements of counsel to the Optionee, underwriting
commissions or discounts, filing fees and any transfer or other taxes applicable
to the options and/or Shares, shall be borne by the Grantor.
-4-
<PAGE>
10. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as
to which the option granted hereunder shall not have been exercised and payment
made as herein provided.
11. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to employment by
the Grantor.
12. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
13. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of
Nevada applied to agreements made and to be performed entirely within such
State. Headings have been included herein for convenience of reference only and
shall not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AGRIBIOTECH, INC.
By:___________________________
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
---------------------------
Byron D. Ford
-5-
<PAGE>
EXHIBIT 5.1
SNOW BECKER KRAUSS P.C.
605 Third Avenue
New York, NY 10158
(212) 687-3860
June 28, 1996
VIA FAX AND MAIL:
Board of Directors
AgriBioTech, Inc.
2700 Sunset Road
Suite C25
Las Vegas, NV 89120
Re: Registration Statement on Form S-8 Relating to 7,150,000 Options
and 7,550,000 Shares of Common Stock, Par Value $.001 Per Share,
of AgriBioTech, Inc. Issuable Under the Company's Plans and
Certain Stock Option Agreements
Ladies and Gentlemen:
We are acting as counsel to AgriBioTech, Inc., a Nevada corporation (the
"Company"), in connection with the filing by the Company with the Securities and
Exchange commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-8 (the "Registration
Statement") relating to the exercise of options to purchase an aggregate of
7,150,000 shares of the company's common stock, par value $.001 per share (the
"Common Stock"), and the sale of 7,550,000 shares (the "Shares") of Common
Stock, consisting of (i) 1,200,000 Shares issuable upon exercise of stock
options issued or issuable under the 1994 Employee Stock Option Plan (the "1994
Plan") of the Company; (ii) 400,000 Shares issuable pursuant to the Company's
Employee Stock Bonus Plan (the "Bonus Plan"); (iii) an aggregate of 500,000
shares of Common Stock issuable upon exercise of stock options granted, outside
of any plan, to Robert B. Prag pursuant to a Stock Option Agreement dated
January 5, 1996 with the Company; (iv) 950,000 shares of Common Stock issuable
upon exercise of stock options granted, outside of any plan, to Kathleen L.
Gillespie pursuant to a Stock Option Agreement dated December 20, 1995 with the
Company; (v) 1,250,000 shares of Common Stock issuable upon exercise of stock
options granted, outside of any plan, to Henry A. Ingalls pursuant to a Stock
Option Agreement dated February 13, 1996 with the company; (vi) 250,000 shares
of Common Stock issuable upon exercise of stock options granted, outside of any
plan, to Robert Olins pursuant to a Stock Option Agreement dated March 5, 1996
with the Company; and (vii) an aggregate of 3,000,000 shares of Common Stock
issuable upon exercise of stock options granted, outside of any plan, to Johnny
R. Thomas, John C. Francis and Scott J. Loomis pursuant to Stock Option
Agreements dated March 11, 1996 with the Company. The option agreements
described in items (iii) through (vii) above are hereinafter collectively
referred to as the "NQSOs."
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of the Certificate of Incorporation
and By-Laws of the Company, as each is currently in effect,the Registration
Statement, the related prospectus and reoffer prospectus, the 1994 Plan, the
Bonus Plan, the NQSOs, the corporate proceedings in connection with the proposed
<PAGE>
registration and issuance of the Shares and such other corporate proceedings,
documents and records and other certificates, and we have made such
investigations of law, as we have deemed necessary or appropriate in order to
render the opinions hereinafter set forth.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized and, when issued upon the full
payment of the exercise price specified in the option agreements executed in
accordance with the terms of the 1994 Plan or in the NQSOs or when issued in
accordance with the Bonus Plan, as the case may be, and certificates therefor
have been duly executed and delivered, such Shares will be duly and validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus accompanying the Registration Statement for
resale of the Shares by affiliates. In giving this consent, we do not hereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
/s/ Snow Becker Krauss P.C.
SNOW BECKER KRAUSS P.C.
<PAGE>
Exhibit 23.2
Independent Auditors Consent
----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report related to the consolidated financial
statements of AgriBioTech, Inc. incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
June 24, 1996
<PAGE>
$$NOFOLIO
Exhibit 23.3
Independent Auditors Consent
----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report related to the consolidated financial
statements of Clark Seeds, Inc. incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
Bailey & Co., Chtd.
Nampa, Idaho
June 24, 1996
<PAGE>
Exhibit 23.4
Independent Auditors Consent
----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report relating to the financial statements of
Arnold-Thomas Seed Service, Inc. incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
Michael R. Lemm, C.P.A., P.S.
Walla Walla, Washington
June 24, 1996
<PAGE>
Exhibit 23.5
Independent Auditors Consent
----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report relating to the financial statements of Seed
Resource, Inc. incorporated herein by reference and to the reference to our firm
under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
June 24, 1996
<PAGE>
Exhibit 23.6
Independent Auditors Consent
----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report relating to the financial statements of
Hobart Seed Company incorporated herein by reference and to the reference to our
firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
June 24, 1996
