<PAGE>
As filed with the Securities and Exchange Commission on October 11, 1996
Registration No. 333-______
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGRIBIOTECH, INC.
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(Exact Name of Registrant as Specified in its Charter)
Nevada 85-0325742
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(State or Other Jurisdiction of (I.R.S.Employer
Incorporation or Organization) Identification Number)
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
(702) 798-1969
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(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
Dr. Johnny R. Thomas, President
AgriBioTech, Inc.
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
(702) 798-1969
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(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies to:
Elliot H. Lutzker, Esq.
Snow Becker Krauss P.C.
605 Third Avenue
New York, New York 10158
Tel: (212) 687-3860 Fax: (212) 949-7052
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. /___/
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X /
----
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /___/
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. /___/
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /___/
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Each Maximum Maximum
Class of Offering Aggregate Amount of
Securities to Amount to be Price Offering Registration
be Registered Registered Per Share (1) Price(1) Fee
- ------------- ---------- ------------- -------- ------------
<S> <C> <C> <C> <C>
Common Stock, 556,433 Shs.(2) $2.75(10) $ 1,530,191 $ 463.69(3)
$.001 par value
Class B 1,616,000 Wts.(4) $5.00 $ 8,080,000 $ 2,448.48(3)
Warrants
Common Stock, 1,616,000 Shs.(5) (6) (6) (6)
$.001 par value
Class C 2,500,000 Wts.(4) $7.50 $18,750,000 $ 5,681.82(3)
Warrants
Common Stock, 2,500,000 Shs.(5) (6) (6) (6)
$.001 par value
Common Stock, 21,600 Shs.(7) $2.75(10) $ 59,400 $ 18.00(3)
$.001 par value
Common Stock, 1,583,501 Shs.(8)(9) $2.75(10) $ 4,354,628 $ 1,319.58
$.001 par value
Common Stock, 4,711,416 Shs.(9)(11) $2.75(10) $12,956,394 $ 3,926.18
$.001 par value
Common Stock, 185,625 Shs.(5)(12) $3.00 $ 556,875 $ 168.75
$.001 par value
Common Stock, 162,343 Shs.(13) $2.75(10) $ 446,443 $ 135.29
$.001 par value
Common Stock, 15,000 Shs.(14) $2.75(10) $ 41,250 $ 12.50
$.001 par value
Common Stock, 362,500 Shs.(15) $2.75(10) $ 996,875 $ 302.08
$.001 par value
Common Stock, 1,637,500 Shs.(16) $1.81 $ 2,963,875 $ 898.14
$.001 par value
Common Stock, 750,000 Shs.(17) $2.75(10) $ 2,062,500 $ 625.00
$.001 par value
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Total Registration Fee .............................................................. $16,000.04(18)
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 promulgated under the Securities Act of 1933, as
amended.
(2) These shares were originally issued as part of Units, each consisting of
one share of Common Stock and one Class A Warrant or were acquired from a
former affiliate of the Company on September 30, 1993 in connection with
the Registrant's acquisition of AgriBioTech, Inc.(Nevada).
(3) Paid when the securities were first registered on Registration Statement
No. 33-78470 and Post Effective Amendment No. 1 to Registration Statement
No. 33-97684.
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<PAGE>
(4) Each Class B Warrant entitles the holder to purchase one share of Common
Stock and one Class C Warrant at $5.00 and each Class C Warrant entitles
the holder to purchase one Share of Common Stock at $7.50.
(5) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable additional shares as may become issuable as a result of
anti-dilution adjustments in accordance with the terms of these securities.
(6) Pursuant to Rule 457(g), no additional registration fee is required for
these securities issuable upon exercise of the Warrants.
(7) Issued or issuable to employees as compensation.
(8) These shares are issuable upon conversion of currently outstanding Series B
Convertible Preferred Stock issued in the Company's April 1996 private
placement.
(9) This Registration Statement also covers such indeterminable additional
shares as may become issuable pursuant to (a) Rule 416 as a result of
payment-in-kind premiums and anti-dilution adjustments, and (b) Rule 457(i)
as a result of the conversion features in accordance with the terms of the
Series B and Series C Convertible Preferred Stock.
(10) The average of the bid and asked prices of the Common Stock of the
Registrant on October 7, 1996 on the Nasdaq SmallCap Market was $2 3/4 per
share.
(11) These shares are issuable upon conversion of Series C Convertible Preferred
Stock issued in the Company's September 1996 private placement.
(12) Issuable upon exercise of the Placement Agent's Warrants issued in April
1996 pursuant to a Consulting Agreement dated March 8, 1996.
(13) Issued to Research Seeds, Inc. in May 1996 in exchange for the assets of
Beachly-Hardy Seed.
(14) Issued to Snow Becker Krauss P.C., counsel to the Company, in payment of
legal fees.
(15) These shares were acquired upon exercise of stock options.
(16) Issuable upon exercise of Stock options originally issued on January 5,
1996 to Liviakis Financial Communications, Inc. ("LFC") and Robert B. Prag,
an officer of LFC.
(17) Issued to LFC (562,500 shares) and Robert B. Prag (187,500 shares) under an
Exchange Agreement dated August 6, 1996.
(18) Of this amount $8,611.31 was paid when the securities were first registered
on Registration Statement, File No. 33-78470 and Post Effective Amendment
No. 1, File No. 33-97684 and $7,388.73 is being paid with this Registration
Statement. The number of securities associated with this fee being carried
forward is 4,694,033 shares of Common Stock and 4,116,000 warrants.
----------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the
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<PAGE>
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
- --------------------
Pursuant to Rule 429 under the Act, the Prospectus included as a part of
this Registration Statement shall be deemed to be a combined prospectus which
shall also relate to the Registrant's Registration Statement (File Number 33-
78470) and Post-Effective Amendment No. 1 (File Number 33-97684). This
Registration Statement and the Registration Statement being amended hereby are
collectively referred to herein as the "Registration Statement."
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<PAGE>
PROSPECTUS
AGRIBIOTECH, INC.
14,101,918 Common Shares
1,616,000 Class B Common Stock Purchase Warrants
2,500,000 Class C Common Stock Purchase Warrants
This Prospectus pertains to 14,101,918 shares of Common Stock (the
"Shares"), $.001 par value per share, of AgriBioTech, Inc., a Nevada corporation
("ABT" or the "Company"), as well as 1,616,000 redeemable Class B Common Stock
Purchase Warrants ("Class B Warrants") and 2,500,000 redeemable Class C Common
Stock Purchase Warrants ("Class C Warrants") that may be sold by the Selling
Stockholders named herein (the "Selling Stockholders"). Of the 14,101,918
Shares, an aggregate of 4,116,000 Shares are issuable upon exercise of Class B
and Class C Warrants (collectively, the Warrants"). The Shares and Warrants are
collectively referred to herein as the "Securities." Each Class B Warrant is
exercisable until January 17, 1997 at $5.00 for one share of Common Stock and
one redeemable Class C Warrant, exercisable until January 17, 1998 at $7.50 for
one share of Common Stock. As of October 1, 1996, there were 1,616,000 Class B
Warrants and 884,000 Class C Warrants issued and outstanding and an additional
1,616,000 Class C Warrants authorized for issuance upon exercise of the
1,616,000 outstanding Class B Warrants. The Board of Directors has the right to
extend the exercise periods and/or reduce the exercise prices. The Warrants are
subject to redemption on 30 days' prior written notice, for $.01 per Warrant.
The Company reserves the right, however, to have standby purchasers of all
unexercised Warrants on the redemption date exercise such Warrants. See
"Description of Securities -Warrants" and "Selling Stockholders" for a
description of the remaining Shares being offered hereby and how they were
acquired.
The Company will not directly receive any proceeds from the sale of the
Shares by the Selling Stockholders, but will receive the exercise price of all
options and warrants exercised. See "Use of Proceeds."
The Common Stock is traded on the Nasdaq SmallCap Market under the symbol
"ABTX." On October 7, 1996, the closing price of the Common Stock as reported on
the Nasdaq SmallCap Market was $2.75 per share.
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 7.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus also amends the Company's Prospectus dated October 10,
1995.
THE DATE OF THIS PROSPECTUS IS _______ __, 1996
<PAGE>
The registration of the Securities offered hereby is being effected in
connection with registration rights granted by the Company pursuant to the terms
of various subscription agreements, warrants, options and stock purchase
agreements. In accordance with the terms of such rights, the Company will bear
the expenses of such registration, which are estimated to be $40,000, except
that the Selling Stockholders will bear the cost of all brokerage commissions
and discounts incurred in connection with the sale of their respective
Securities and their respective legal expenses.
Commencing on the effective date of this Prospectus, the Securities may be
sold, from time to time, by the Selling Stockholders directly to purchasers,
pledged or, alternatively, may be offered through agents, brokers, dealers or
underwriters, who may receive compensation in the form of commissions or
discounts from the Selling Stockholders or purchasers of the Securities. Sales
of the Shares may be made on the Nasdaq SmallCap Market ("Nasdaq"), in privately
negotiated transactions or otherwise, and such sales may be made at the market
price prevailing at the time of sale, a price related to such prevailing market
price or at a negotiated price.
Any brokers, dealers or agents that participate in the distribution of the
Securities (the "Offering") may be deemed to be underwriters under Section 2(11)
of the Securities Act of 1933, as amended (the "Securities Act"), and any
commissions or discounts received by them on the resale of such Securities may
be deemed to be underwriting compensation under the Securities Act. The sale of
the Securities by the Selling Stockholders is subject to the prospectus delivery
and other requirements of the Securities Act. See "Plan of Distribution."
No person has been authorized to give any information or to make any
representations in connection with the Offering other than those contained in
this Prospectus and, if given or made, such other information and
representations must not be relied upon as having been authorized by the
Company. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
This Prospectus does not constitute an offer to sell, or a solicitation of an
offer to buy, the Securities in any circumstances in which such offer or
solicitation is unlawful.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (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 may be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices located at Seven World Trade
Center, New York, New York 10048, and at Northwestern Atrium Center, 500 West
Madison Street,
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<PAGE>
Chicago, Illinois 60661. Copies of such material may be obtained, at prescribed
rates, by writing to the Commission, Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C. 20549 and may be found on the Commission's Worldwide Web
site at http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act with respect to the
Securities offered hereby. This Prospectus, filed as part of the Registration
Statement, does not contain all the information set forth in the Registration
Statement and the exhibits thereto, certain portions of which have been omitted,
as permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the Securities, reference is hereby
made to such Registration Statement and the exhibits thereto or incorporated
therein by reference. The Registration Statement, including such exhibits, may
be inspected without charge at the public reference facilities maintained by the
Commission, at the Commission's regional offices at the addresses stated above
and on the Commission's Web site. Copies of these documents may be obtained, at
prescribed rates, by writing to the Commission's Public Reference Section at the
address set forth above.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission are incorporated into
this Prospectus by reference:
(1) The Company's Annual Report on Form 10-KSB for the year ended
June 30, 1996 ("Form 10-KSB").
(2) The Company's Current Report on Form 8-K for September 13,1996
("Form 8-K").
(3) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A (File No. 0-19352),
filed July 11, 1995, pursuant to Section 12(g) of the Exchange
Act.
(4) The Company's Proxy Statement dated January 8, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
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 Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or
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<PAGE>
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company furnishes its shareholders and registered Warrantholders with
annual reports which contain financial statements audited by its independent
certified public accountants and such other interim reports containing unaudited
financial information as it deems appropriate.
The Company will provide without charge to each person who receives this
Prospectus, upon written or oral request, a copy of any information that is
incorporated by reference in the Prospectus (not including exhibits to the
information that is incorporated by reference unless the exhibits are themselves
specifically incorporated by reference). Such requests should be directed to the
following address:
AGRIBIOTECH, INC.
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
Attention: Corporate Secretary
(702) 798-1969
THE COMPANY
AgriBioTech, Inc. (the "Company") is a full service seed company
specializing in forage seed and turf grass seed. The Company is becoming the
leader in the forage and turf grass seed industry through an acquisition
program, initiated in January 1995. The Company is becoming vertically
integrated through the acquisition of research companies, production companies
(having seed cleaning, conditioning, processing and packaging facilities) and
distribution companies located throughout the United States. The Company has
completed ten acquisition transactions since January 1, 1995 and expects to
complete the eleventh acquisition in October 1996. These eleven acquisitions
will give the Company complete vertical integration throughout the alfalfa and
sorghum sudangrass hybrid forage seed industry with distribution in forty-three
states and six-foreign countries. Closing of the eleventh acquisition would make
the Company the fourth largest company in the forage seed industry in the United
States with historical annualized revenues of approximately $57 million.
The Company was formed under the laws of the State of Colorado on December
31, 1987 under the name Sussex Ventures, Ltd. ("Sussex"). The Company was an
inactive development stage company until September 30, 1993 when it acquired all
of the outstanding stock of AgriBioTech, Inc., a Nevada corporation ("ABT"). 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, and changed its name to
AgriBioTech, Inc. and became a Nevada corporation. The Company had limited
revenues until 1995, when it commenced its acquisition program.
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<PAGE>
CURRENT DEVELOPMENTS
On May 28, 1996 the Company signed a letter of intent, as extended on
August 30, 1996, to acquire certain assets of a seed business. It is anticipated
that the transaction will be completed in October 1996.
In consideration for the sale, transfer and conveyance of the assets, the
Company and certain of its subsidiaries will pay a total of approximately $17.4
million (subject to adjustment), including (i) approximately $16.2 million in
cash; and (ii) the assumption of accounts payable and other liabilities
aggregating approximately $1.2 million.
THE OFFERING
<TABLE>
<S> <C>
Shares of Common Stock to be offered:..................... 14,101,918 (1)
Class B Warrants to be offered:........................... 1,616,000
Class C Warrants to be offered:........................... 2,500,000
Shares of Common Stock issued and outstanding:
Before the Offering as of October 7, 1996:............. 10,894,117
After the Offering upon exercise or conversion
of Securities offered hereby:....................... 23,128,159
</TABLE>
(1) Includes (i) an aggregate of 1,867,876 shares of Common Stock currently
outstanding; (ii) an aggregate of 2,500,000 shares of Common Stock issuable
upon the exercise of 1,616,000 Class B Warrants and 884,000 Class C
Warrants currently outstanding; (iii) 1,616,000 shares of Common Stock
issuable upon exercise of Class C Warrants issuable upon exercise of
currently outstanding Class B Warrants; (iv) an aggregate of 1,583,501
Shares issuable as of October 7, 1996 (subject to adjustment) upon the
conversion of outstanding shares of Series B Convertible Preferred Stock
("Series B Preferred Shares"); (v) an aggregate of 4,711,416 Shares
issuable as of October 7 1996 (subject to adjustment) upon the conversion
of outstanding shares of Series C Convertible Preferred Stock ("Series C
Preferred Shares"); (vi) 185,625 Shares issuable upon the exercise of
Warrants issued to the placement agent of the Company's Series B Preferred
Shares (the "Placement Agent's Warrants") and (vii) 1,637,500 Shares
issuable upon the exercise of options originally issued under a consulting
agreement dated January 5, 1996 (the "Consultant's Options").
Warrant
Terms: Each redeemable Class B Warrant is exercisable at $5.00 for one share
- -----
of Common Stock and one redeemable Class C Warrant until January 17,
1997, and each Class C Warrant is exercisable at $7.50 for one share
of Common Stock until January 17, 1998. The Board of Directors has the
right to extend the exercise periods and/or reduce the exercise
prices.
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<PAGE>
The Warrants are subject to redemption on 30 days' prior written
notice, for $.01 per Warrant. The Company reserves the right, however,
to have standby purchasers of all unexercised Warrants on the
redemption date 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 unexercised
Warrants.
The Company has no current plans, arrangements, agreements or
understandings concerning such proposed standby purchasers, although
the Company intends to redeem the Warrants prior to their expiration
date. Management believes that existing warrant holders may seek to
exercise any unexercised Warrants, held by others, as standby
purchasers.
Use of
Proceeds: The Company will not receive any proceeds from the sale of the
- --------
Securities offered hereby, but will receive proceeds from the exercise
of Warrants, Placement Agent's Warrants and Consultant's Options
offered hereby. Although there can be no assurance that any of the
Warrants will be exercised, if only the Class B Warrants were
exercised at the current exercise price, the Company would receive
gross proceeds of $8,080,000; but if all of the Warrants, including
Warrants issuable upon exercise of outstanding Warrants, Placement
Agent's Warrants and Consultant's Options were exercised, the Company
would receive gross proceeds of $30,350,750. The gross proceeds will
be used for potential acquisitions, repayment of bank indebtedness,
offering expenses, working capital and general corporate purposes. See
"Use of Proceeds."
Risk
Factors: The Securities offered hereby are highly speculative and involve a
- -------
high degree of risk. The purchase of Securities offered hereby should
be considered only by those persons who can afford a loss of their
entire investment. See "Risk Factors."
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<PAGE>
RISK FACTORS
The Securities offered hereby involve a high degree of risk and should be
purchased only by persons who can afford to risk the loss of their entire
investment. In addition to other information contained in this Prospectus,
prospective investors should carefully consider the following Risk Factors
before making a decision to invest in the Company.
This Prospectus contains, in addition to historical information, forward-
looking statements that involve a number of risks and uncertainties. The
Company's actual results could differ materially. Factors that could cause or
contribute to such difference include, but are not limited to, the Company's
lack of profitability, need to manage its growth, intense competition in the
seed industry, need for additional financing, seasonality of quarterly results
and the other risks discussed below, as well as those discussed elsewhere in
this Prospectus.
1. Limited Operating History; No Assurance of Future Profitability. The
---------------------------------------------------------------
Company did not generate significant revenues from ABT's formation in 1983 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. 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 $1,406,687 and $3,324,132
during the nine-month period ended June 30, 1995 ("Fiscal 1995") and the fiscal
year ended June 30, 1996 ("Fiscal 1996"), respectively. There can be no
assurance that the Company will be able to become profitable in the future.
2. Need to Manage Growth. The Company has acquired all or a portion of
---------------------
ten regional seed companies since January 1995, anticipates closing an eleventh
acquisition in October 1996 and intends to use a significant portion of the
proceeds of this Offering to expand current levels of operations through
additional acquisitions. The Company's success depends upon its ability to
integrate the operations of its 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 success depends on its ability to manage an
effective national sales organization and national distribution of its seed
inventory.
In addition, successful expansion of the Company's operations will depend
on, among other things, its ability to retain skilled management and other
personnel on a regional and 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 implement and
improve operations, financial and management information systems, procedures and
controls. There can be no assurance that the Company will be able to manage its
growth effectively, and failure to do so could have a material adverse effect on
the Company's business and operating results.
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<PAGE>
3. Competition. The seed industry and the field of agriculture technology
-----------
are both highly competitive. Approximately 80% of the 2,000 United States seed
companies are small family-owned companies. Most of the remaining companies,
exclusive of the Company, are either multinational or large regional seed
companies which have substantially greater financial resources 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
which could have an adverse effect on the Company's operations.
4. Dependence on Key Personnel. The success of the Company is largely
---------------------------
dependent upon the personal efforts of Johnny R. Thomas, President, as well as
each of the Company's four Vice Presidents, Scott J. Loomis, John C. Francis,
Kathleen L. Gillespie and Henry A. Ingalls. While the Company has entered into
employment agreements with each of these persons, should any of their services
become unavailable for any reason, the location and hiring of a suitable
replacement could be very difficult and have an adverse effect on the Company's
business.
5. 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 drought, wind, hail, disease, insects, early
frost and numerous other forces that could adversely affect the growing of seed
in any growing season and consequently the availability of the Company's product
for sale. Weather affects commodity prices, seed yields and planting decisions
by farmers.
6. Need for Additional Financing. At June 30, 1996, the Company had an
-----------------------------
accumulated deficit of $9,711,316 and working capital of $6,460,969. The Company
had cash of $2,522,309 at June 30, 1996, and subsequently raised approximately
$10 million before commissions of 13% in a Regulation D Private Placement, the
proceeds of which were substantially earmarked for a pending acquisition.
Therefore, without proceeds from the exercise of Warrants or other financing,
the Company will be unable to fund the growth of its operations, unless the
Company is able to generate sufficient 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 any such
additional funds, if needed, will be available on terms acceptable to or
affordable by the Company. See "Use of Proceeds."
7. Lack of Proprietary Rights. While the Company possesses rights to
--------------------------
various technologies, has one patent and will be able to maintain ownership of
and control the use of its
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<PAGE>
proprietary varieties though the Plant Variety Protection Act of 1970, there can
be no assurance that the Company's competitors will not develop products that
infringe upon the Company's proprietary rights.
8. Discretion by Management in Use of Proceeds. The substantial portion
-------------------------------------------
of the proceeds from the exercise of Warrants and options has been allocated to
potential acquisitions and working capital purposes. Accordingly, the
utilization of any proceeds realized by the Company from this Offering allocated
to working capital will be entirely at the discretion of Management of the
Company. See "Use of Proceeds."
9. Seasonality of Quarterly Results. The seed business is highly
--------------------------------
seasonal, and the Company's results of operations from quarter to quarter will
not necessarily reflect the results for the entire year. The bulk of all seed
sales occur between December and May. The Company's first two fiscal quarters
beginning July 1st will normally be losses. Changes in climate can also affect
delivery of seed and can cause a shift in sales between quarters.
10. Control by Management and Current Stockholders. As of October 7, 1996,
----------------------------------------------
Management of the Company beneficially owned 9,798,212 (approximately 52%) of
the shares of the Company's Common Stock outstanding, giving effect to the
exercise of each person's currently exercisable warrants and options.
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 "Selling Stockholders."
11. 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. As of October
7, 1996, the Company had 3,218 shares of Series B Convertible Preferred Stock
issued and outstanding, convertible as of October 7, 1996, into 1,583,501 shares
of Common Stock and 10,000 shares of Series C Convertible Preferred Stock issued
and outstanding, convertible as of October 7, 1996, into 4,711,416 shares of
Common Stock. These shares of Preferred Stock are convertible based upon current
market prices at the time of conversion. Accordingly, the number of shares of
Common Stock issuable upon conversion of the Series B and Series C Preferred
Stock is subject to increase in the event the Company's Common Stock price
declines in the future, thereby diluting the interests of current stockholders.
Although there are no present plans, agreements, commitments or
undertakings with respect to the Company's issuance of any additional shares of
Preferred Stock, 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
-9-
<PAGE>
ownership of the Company and give additional control of the Company to current
Management at any time. See "Description of Securities-Preferred Stock."
12. Adverse Effect of Potential Future Sales of Common Stock Under Rule 144
-----------------------------------------------------------------------
or this Registration Statement. Of the Company's 10,894,117 issued and
- ------------------------------
outstanding shares of Common Stock as of October 7, 1996, approximately
1,290,000 shares are "restricted securities" as that term is defined under Rule
144 under the Securities Act and are not currently eligible for sale under the
Securities Act, but are being registered for resale as part of this Prospectus.
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. Nevertheless, 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 "Description of Securities - Shares
Eligible for Future Sale" and "Selling Stockholders."
13. 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.
14. Public Market Risks; Determination of Price; Possible Volatility of
-------------------------------------------------------------------
Securities Prices. Prior to this Offering there has been no trading market for
- -----------------
the Warrants and the exercise prices of the Warrants were arbitrarily determined
by the Company. There can be no assurance that a market for the Warrants will
develop. The Company's Common Stock has traded on Nasdaq SmallCap Market since
May 24, 1995, and there can be no assurance that a regular trading market will
be sustained. Purchasers of the Securities may have difficulties in selling
their Common Stock or Warrants should they desire to do so. The market price for
the Company's securities following this Offering may be highly volatile. Factors
such as the Company's financial results, financing efforts, introduction of new
products in the marketplace, 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
Common Stock. Due to all of the foregoing factors, it is likely that in some
future quarter the Company's operating results may be below the expectations of
public market analysts and investors. In that event, the price of the Company's
Common Stock would likely be materially adversely affected.
15. Inability to Exercise Warrants. The Company intends to qualify the
------------------------------
sale of the Shares and Warrants in a limited number of states. Although certain
exemptions in the securities ("blue sky") laws of certain states might permit
Warrants to be transferred to purchasers in states other than in which the
Securities were initially qualified, the Company will be prevented
-10-
<PAGE>
from issuing Common Stock in such states upon the exercise of the 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 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 Warrants reside. In such a case,
the Warrants held by purchasers will expire and have no value if such Warrants
cannot be sold. Accordingly, the market for the Warrants may be limited because
of these restrictions. Further, a current prospectus covering the shares of
Common Stock issuable upon exercise of the Warrants must be in effect before the
Company may accept Warrant exercises. There can be no assurance that the Company
will be able to have a prospectus in effect when the holders of the Warrants
desire to exercise them, notwithstanding the Company's commitment to use its
best efforts to do so. See "Description of Securities - Warrants."
16. Potential Adverse Effect of Redemption of Warrants. The Warrants may
--------------------------------------------------
be redeemed by the Company at any time upon notice of not less than 30 days, at
a price of $.01 per Warrant. 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.
In addition, the Company has reserved the right to have standby purchasers
of all unexercised Warrants on the redemption date exercise such Warrants
without possession of the Warrant certificates with the registered holders of
unexercised Warrants receiving the $.01 redemption price per warrant. If the
Warrants are exercised by standby purchasers the registered holders will be
diluted. Although the Company intends to redeem the Warrants prior to their
expiration date, the Company has no current plans, arrangements, agreements or
understandings concerning such proposed standby purchasers.
17. Effect of Outstanding Derivative Securities and Registration Rights.
-------------------------------------------------------------------
The Company had outstanding as of October 7 1996, options to purchase an
aggregate of 7,389,000 shares of Common Stock exercisable at various prices from
$1.81 to $4.06 per share; 1,616,000 Class B Warrants exercisable until January
17, 1997; 2,500,000 Class C Warrants exercisable until January 17, 1998;
Placement Agent Warrants to purchase 185,625 shares of Common Stock; 3,218
Series B Preferred Shares and 10,000 Series C Preferred Shares convertible, as
of October 7, 1996, into 1,583,501 and 4,711,416 shares of Common Stock,
respectively.
During the respective terms of the Company's outstanding derivative
securities, the holders thereof may be able to purchase Common Stock at prices
substantially below the then current market price of the Company's Common Stock
with a resultant dilution in the interests of the existing stockholders. The
holders of the Company's derivative securities may be expected to exercise their
rights to acquire Common Stock at times when the Company would, in all
likelihood, be able to obtain needed capital through a new offering of
securities on terms more favorable than those provided by these outstanding
securities. Thus, the terms upon which
-11-
<PAGE>
the Company may obtain additional financing during the next several years may be
adversely affected. In addition, the exercise of outstanding derivative
securities and the subsequent public sales of Common Stock by holders of such
securities pursuant to a registration statement, including the one for the
Shares offered hereby, effected at their demand, under Rule 144 or otherwise,
could have an adverse effect upon the market for and price of the Company's
securities. See "Description of Securities" and "Shares Eligible for Future
Sale."
18. 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 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.
USE OF PROCEEDS
The Company will not receive the proceeds of sales of the Shares by the
Selling Stockholders. However, the Class B Warrants, Class C Warrants, the
Placement Agent's Warrants, and the Consultant's Options, if exercised in full,
would result in the Company receiving aggregate cash of $30,350,750 consisting
of $8,080,000, $18,750,000, $556,875, and $2,963,875, respectively. The Company
will use the proceeds from the payment of the respective exercise prices for
potential acquisitions, repayment of bank indebtedness, offering expenses,
working capital and general corporate purposes. The Company has no plans,
agreements, understandings or arrangements with respect to any such potential
acquisition, since its currently pending acquisition will not be funded with
proceeds from this Offering. There can be no assurance that the Company will be
able to make any acquisition.
-12-
<PAGE>
SELLING STOCKHOLDERS
An aggregate of 4,116,000 Shares are issuable to certain Selling
Stockholders upon exercise of Class B and Class C Warrants outstanding and/or
reserved for issuance upon exercise of outstanding Class B Warrants: 1,583,501
shares are issuable upon conversion of 3,218 Series B Preferred Shares and
4,711,416 Shares are issuable upon conversion of 10,000 Series C Preferred
Shares outstanding as of October 7, 1996, based on current prices for ABT Common
Stock and subject to adjustment for payment-in-kind premiums at conversion, as
well as for changes in the number of shares issuable at the time of conversion
based on the applicable conversion formula; 556,433 Shares were acquired in a
private placement or from a former affiliate of the Company in connection with
the Company's acquisition of ABT(Nevada); 185,625 Shares are issuable upon
exercise of warrants ("Placement Agent's Warrants") issued to Zanett Capital,
Inc., the placement agent of the Company's Series B Preferred Share offering;
162,343 Shares are held by Research Seeds, Inc., a Missouri corporation, which
acquired the Shares from the Company in May 1996 in exchange for the assets of
Beachley-Hardy Seed; 15,000 Shares are held by Snow Becker Krauss P.C., counsel
to the Company, which Shares were acquired in payment of legal fees; an
aggregate of 362,500 Shares are held by Unicorn Trust (110,000 Shares) and Helen
Arman (252,500 Shares), which Shares were acquired upon exercise of stock
options; 1,637,500 Shares are issuable upon exercise of stock options (the
"Consultant's Options") originally issued to Liviakis Financial Communications,
Inc. ("LFC") and Robert B. Prag ("Prag"), an officer of LFC, under a consulting
agreement dated January 5, 1996 by and between LFC and the Company, of which
1,550,000 options were subsequently transferred to third parties and 450,000
options were retained by LFC and Prag; and 562,500 Shares held by LFC and
187,500 Shares held by Prag which were received under an Exchange Agreement
dated August 6, 1996 (the "Exchange Agreement") by and among LFC, Prag, John M.
Liviakis and the Company.
The following table sets forth information as of October 7, 1996 based on
information obtained from the Selling Stockholders named below, with respect to
the beneficial ownership of Shares and Warrants being registered hereunder; the
number of Shares and Warrants known to the Company to be held by each; the
number of Shares and Warrants to be sold by each; and the percentage of
outstanding shares of Common Stock beneficially owned by each, before this
offering and assuming that no Shares and Warrants will be owned after this
offering.
<TABLE>
<CAPTION>
Number of Number of Percentage of
Shares of Number of Number of Warrant Number of Common Stock
Common Stock Warrants Shares to Shares Warrants Owned Before
Name Owned(1) Owned be Sold (2) to be Sold to be Sold Offering (3)
- ---- ------------ --------- ----------- ---------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
Johnny R. Thomas(4)(5) 3,556,497 (6) 1,434,790 -0- 1,434,790 1,434,790 26.7%
John C. Francis (5)(7) 2,118,655 (8) 778,840 -0- 778,840 778,840 16.7%
Scott J. Loomis (9) 1,803,060 (10) 562,040 240,333 562,040 562,040 14.5%
5840 N. Genematas
Tucson, AZ 85704
AgriResearch and
Development, Inc. 21,260 (11) 21,260 -0- 21,260 21,260 *
Helen Arman 484,500 (12) 182,000 302,500 182,000 182,000 4.4%
</TABLE>
-13-
<PAGE>
<TABLE>
<CAPTION>
Number of Number of Percentage of
Shares of Number of Number of Warrant Number of Common Stock
Common Stock Warrants Shares to Shares Warrants Owned Before
Name Owned(1) Owned be Sold (2) to be Sold to be Sold Offering (3)
- ---- ------------ --------- ----------- ---------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
Strategic Resources 3,200 -0- 3,200 -0- -0- *
Management, Inc.
Aqumulate Ltd. 50,000(13) 50,000 -0- 50,000 50,000 *
Kaidon Financial
Company 25,000(14) 25,000 -0- 25,000 25,000 *
Morton Karper 50,000(13) 50,000 -0- 50,000 50,000 *
The Unicorn Trust 345,120(15) 235,120 110,000 235,120 235,120 3.1%
Ronald Liebmann 25,000(16) 25,000 -0- 25,000 25,000 *
Clara J. Worth 27,600(17) 17,600 10,000 17,600 17,600 *
Charles J. Albus 2,500 -0- 2,500 -0- -0- *
John Albus 250 -0- 250 -0- -0- *
Joshua Albus 100 -0- 100 -0- -0- *
Laura Albus 250 -0- 250 -0- -0- *
Lorraine Albus 2,500 -0- 2,500 -0- -0- *
Mark Albus 100 -0- 100 -0- -0- *
Susan Albus 500 -0- 500 -0- -0- *
Carolee Allen 500 -0- 500 -0- -0- *
Paula Gunn Allen 1,000 -0- 1,000 -0- -0- *
Sulieman A. Allen 250 -0- 250 -0- -0- *
Thomas Allen 500 -0- 500 -0- -0- *
Jennifer Baker 500 -0- 500 -0- -0- *
Roxie Baker 337,500(36) -0- 337,500 -0- -0- 3.1%
Samantha Baker 500 -0- 500 -0- -0- *
Sarah Baker 500 -0- 500 -0- -0- *
Isidore A. Becker 224,000(18) 224,000 -0- 224,000 224,000 2.0%
Laura Lee Brown 250 -0- 250 -0- -0- *
Anthony Conforti 1,000 -0- 1,000 -0- -0- *
Jeff Cottom 250 -0- 250 -0- -0- *
Paulette Cottom 250 -0- 250 -0- -0- *
Sami Jo Cottom 100 -0- 100 -0- -0- *
Karen Fabian 200,000(19) 200,000 -0- 200,000 200,000 1.8%
Briget A. Francis (20) 5,000 -0- 5,000 -0- -0- *
Karrina N. Francis (20) 4,500 -0- 4,500 -0- -0- *
Lee Francis, III 500 -0- 500 -0- -0- *
Lee Francis, IV 250 -0- 250 -0- -0- *
Mary Francis 500 -0- 500 -0- -0- *
Siobhan Gray 500 -0- 500 -0- -0- *
Alice A. Hamm 1,000 -0- 1,000 -0- -0- *
Leon Herried 2,800(21) -0- 1,500 -0- -0- *
</TABLE>
-14-
<PAGE>
<TABLE>
<CAPTION>
Number of Number of Percentage of
Shares of Number of Number of Warrant Number of Common Stock
Common Stock Warrants Shares to Shares Warrants Owned Before
Name Owned(1) Owned be Sold (2) to be Sold to be Sold Offering (3)
- ---- ------------ --------- ----------- ---------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
Genova Keith 1,000 -0- 1,000 -0- -0- *
Jack Klein 1,000 -0- 1,000 -0- -0- *
Jeffrey Klein 1,000 -0- 1,000 -0- -0- *
Christie Kurtz 4,400 -0- 4,400 -0- -0- *
Linda Loomis 90,000 -0- 90,000 -0 -0- *
Rev. Trust
Ruth Lytle 17,100(22) -0- 16,500 -0- -0- *
Manzano Limited
Partnership 420,000(23) 20,000 400,000 20,000 20,000 3.7%
Christian Nieto 500 -0- 500 -0- -0- *
Gary Regner 4,900(21) -0- 3,600 -0- -0- *
Henry Sartorio 9,525(24) 6,350 -0- 6,350 6,350 *
Andrew Daniel Sauter 500 -0- 500 -0- -0- *
Libby Jean Sauter 500 -0- 500 -0- -0- *
Lorena Segovia-Frias 500 -0- 500 -0- -0- *
Clifford P. Shoemaker, II 500 -0- 500 -0- -0- *
Gustav Swanquist 500 -0- 500 -0- -0- *
Karine Swanquist 250 -0- 250 -0- -0- *
Kathleen Swanquist 500 -0- 500 -0- -0- *
Kristin Swanquist 250 -0- 250 -0- -0- *
Linea Swanquist 250 -0- 250 -0- -0- *
Estal Thomas 2,000 -0- 2,000 -0- -0- *
Ester Thomas 2,000 -0- 2,000 -0- -0- *
Linda Thomas 1,000 -0- 1,000 -0- -0- *
Danny Thomas 200,000(25) -0- 200,000 -0- -0- 1.8%
Estelle Weber 500 -0- 500 -0- -0- *
Benjamin M. Whitten 100 -0- 100 -0- -0- *
Christopher D. Whitten 100 -0- 100 -0- -0- *
Clyde D. Whitten 250 -0- 250 -0- -0- *
Leslie D. Whitten 250 -0- 250 -0- -0- *
Christian Winfield 500 -0- 500 -0- -0- *
Keegan Winfield 500 -0- 500 -0- -0- *
Tammie Winfield 489,000(26) 284,000 205,000 284,000 284,000 4.3%
Reesor G. Woodling (27) 165,000 -0- 165,000 -0- -0- 1.5%
Zannett Capital, Inc. 185,625(28) -0- 185,625 -0- -0- 1.7%
Research Seeds, Inc. 162,343(29) -0- 162,343 -0- -0- 1.5%
Snow Becker
Krauss P.C.(30) 15,000 -0- 15,000 -0- -0- *
</TABLE>
-15-
<PAGE>
<TABLE>
<CAPTION>
Number of Number of Percentage of
Shares of Number of Number of Warrant Number of Common Stock
Common Stock Warrants Shares to Shares Warrants Owned Before
Name Owned(1) Owned be Sold (2) to be Sold to be Sold Offering (3)
- ---- ------------ --------- ----------- ---------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C>
Liviakis Financial
Communications, Inc. 762,500(31) -0- 875,000 -0- -0- 6.9%
2118 P Street, Suite 3
Sacramento, CA 95816
Robert B. Prag 287,500(32) -0- 325,000 -0- -0- 2.6%
The Tail Wind Fund Ltd. 231,685(33) -0- 143,382 -0- -0- 2.1%
Zannett Lombardier, Ltd. 300,979(33) -0- 230,197 -0- -0- 2.7%
(34)
Capital Ventures 738,569(33) -0- 738,569 -0- -0- 6.3%
Woody Gundy London 368,802(33) -0- 368,802 -0- -0- 3.3%
Halifax Fund, L.P. 290,149(33) -0- 196,695 -0- -0- 2.6%
RBB Bank
Aktiengesellschaft 1,414,625(34) -0- 1,414,625 -0- -0- 11.5%
Plaza Corp
Investments Ltd. 330,080(34) -0- 330,080 -0- -0- 2.9%
Van Moer Santerre 188,617(34) -0- 188,617 -0- -0- 1.7%
RJ Cole Financial
Consulting Ltd. 51,870(34) -0- 51,870 -0- -0- *
Jay A. Smith 94,309(34) -0- 94,309 -0- -0- *
Buchanan Partners Ltd. 235,977(34) -0- 235,977 -0- -0- 2.1%
Buchanan Fund Ltd. 235,977(34) -0- 235,977 -0- -0- 2.1%
Busschaert Co. BVBA-Klein 188,782(34) -0- 188,782 -0- -0- 1.7%
Christiania Funds 94,288(34) -0- 94,288 -0- -0- *
The Bridge Fund 23,578(34) -0- 23,578 -0- -0- *
H&H Fine Art Company, Inc. 51,870(34) -0- 51,870 -0- -0- *
Intercontinental
Investments Ltd. 67,331(34) -0- 67,331 -0- -0- *
FirmCorp. Equities, Ltd. 94,293(34) -0- 94,293 -0- -0- *
Windward Island Ltd. 329,412(34) -0- 329,412 -0- -0- 2.9%
Gross Foundation, Inc. 235,000(34) -0- 235,000 -0- -0- 2.1%
Libertyview Plus Fund 141,031(34) -0- 141,031 -0- -0- 1.3%
Libertyview Fund, LLC 47,011(34) -0- 47,011 -0- -0- *
Paresco, Inc. 329,071(34) -0- 329,071 -0- -0- 2.9%
Arbinter-Omnivalor
S.A. B17 139,056(34) -0- 139,056 -0- -0- 1.3%
Faisal Finance 235,257(34) -0- 235,257 -0- -0- 2.1%
Banco Cooperative
Costarricense, RL 89,837(34) -0- 89,837 -0- -0- *
Total: 4,116,000 9,985,918 4,116,000(35) 4,116,000
========= ========= ========= =========
- -----------------------
</TABLE>
* Less than 1% of the outstanding common stock of the Company.
(1) Unless otherwise noted, the Company believes that all persons named in the
table have sole investment power with respect to all shares of Common Stock
beneficially owned by them. A person is deemed to be the beneficial owner
of securities that can be acquired by such person within 60 days from the
date hereof upon the exercise of warrants or options. Assumes, for each
person, that the exercisable and
-16-
<PAGE>
convertible Securities that are held by such person (but not those held by
any other person) and which are exercisable or convertible within 60 days
from the date hereof have been exercised.
(2) Does not include Warrant Shares to be sold.
(3) Based on 10,894,117 shares of Common Stock issued and outstanding as of
October 7, 1996. Assumes the full sale of the Securities held by each
person and that such person will not own any Securities following this
Offering.
(4) Johnny R. Thomas is the President, Chief Executive Officer and a Director
of the Company.
(5) This person's address is c/o the Company, 2700 Sunset Road, Suite C-25, Las
Vegas, Nevada 89120.
(6) Includes 1,000,000 shares underlying options currently exercisable (900,000
for cash only), 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). Does not include 10,000 currently exercisable
Class B Warrants and 10,000 issuable Class C Warrants and 400,000 Stock
Options held by Manzano Limited Partnership, a family limited partnership
established for Dr. Thomas' estate planning purposes of which Dr. Thomas is
a partner and all of which shares he disclaims beneficial ownership.
(7) John C. Francis is Vice President, Secretary and a Director of the Company.
(8) Includes 1,000,000 shares underlying options currently exercisable (900,000
for cash only), 314,420 currently exercisable Class B Warrants, 150,000
currently exercisable Class C Warrants and 314,420 issuable Class C
Warrants.
(9) Scott J. Loomis is a Vice President and a Director of the Company.
(10) Includes 1,000,000 shares underlying options currently exercisable (900,000
for cash only), and 281,020 currently exercisable Class B Warrants and
281,020 issuable Class C Warrants. Also includes 2,500 shares held in trust
for Mr. Loomis' minor children.
(11) Includes 10,630 currently exercisable Class B Warrants and 10,630 issuable
Class C Warrants.
(12) Includes 16,000 currently exercisable Class B Warrants, 150,000 currently
exercisable issuable Class C Warrants and 16,000 issuable Class C Warrants
and 50,000 shares underlying stock options.
(13) Includes 25,000 currently exercisable Class B Warrants and 25,000 issuable
Class C Warrants.
(14) Includes 12,500 currently exercisable Class B Warrants and 12,500 issuable
Class C Warrants.
(15) Includes 117,560 currently exercisable Class B Warrants and 117,560
issuable Class C Warrants.
(16) Includes 12,500 currently exercisable Class B Warrants and 12,500 issuable
Class C Warrants. Also excludes 20,000 shares held in Mr. Liebmann's
pension account in the name of Wertheim & Co. Retirement.
(17) Includes 8,800 currently exercisable Class B Warrants and 8,800 issuable
Class C Warrants.
(18) Includes 112,000 currently exercisable Class B Warrants and 112,000
issuable Class C Warrants.
(19) Includes 100,000 currently exercisable Class B Warrants and 100,000
issuable Class C Warrants.
-17-
<PAGE>
(20) Briget A. Francis and Karrina N. Francis are the wife and daughter,
respectively, of John C. Francis, the Company's Vice President.
(21) Includes 1,300 shares underlying stock options.
(22) Includes 12,000 shares of Common Stock to vest in monthly increments
through March 31, 1997 pursuant to this person's employment agreement and
600 shares underlying stock options.
(23) Includes 10,000 currently exercisable Class B Warrants and 10,000 issuable
Class C Warrants and 400,000 shares underlying stock options.
(24) Includes 3,175 currently exercisable Class B Warrants and 3,175 issuable
Class C Warrants.
(25) Includes 200,000 shares underlying stock options.
(26) Includes 284,000 currently issuable Class C warrants and 200,000 shares
underlying stock options.
(27) Reesor G. Woodling is a former Director of the Company.
(28) These shares are issuable upon exercise of the Placement Agent's Warrants
issued pursuant to a Consulting Agreement dated March 8, 1996 concerning
the Company's Series B Convertible Preferred Stock private placement. Does
not include 70,782 shares of Common Stock owned of record by an affiliate
of Zanett Capital, Inc. and 230,197 shares of Common Stock issuable upon
conversion of Series B Convertible Preferred Stock held by that affiliate.
(29) These shares were acquired from the Company in May 1996 in exchange for the
assets of Beachley-Hardy Seed, a division of Research Seeds, Inc.
(30) This entity is counsel to the Company.
(31) Includes 200,000 shares issuable upon exercise of Consultant's Options,
issued pursuant to a Consulting Agreement dated January 5, 1996 by and
between the Company and Liviakis Financial Communications, Inc. Excludes
112,500 shares underlying options which are not currently exercisable.
(32) Includes 100,000 shares underlying stock options. Excludes 37,500 shares
underlying options which are not currently exercisable.
(33) Issuable upon conversion of Series B Preferred Stock outstanding as of
October 7, 1996, based on current prices for Common Stock, and subject to
adjustment for payment in kind premiums. Premiums payable as of October 7,
1996 are included. Convertibility is subject to the limitation that, upon
conversion, the person may hold no more than 4.9% of the outstanding Common
Stock.
(34) Issuable upon conversion of Series C Preferred Stock outstanding as of
October 7, 1996, based on current prices for Common Stock, and subject to
adjustment for payment in kind premiums. Premiums payable as of October 7,
1996 are included. Convertibility is subject to the limitation that, upon
conversion, the person may hold no more than 4.99% of the outstanding
Common Stock.
(35) Includes 4,116,000 Shares underlying 1,616,000 currently outstanding Class
B Warrants, 884,000 currently outstanding Class C Warrants and 1,616,000
issuable Class C Warrants.
(36) Includes 337,500 shares underlying stock options.
-18-
<PAGE>
DESCRIPTION OF SECURITIES
Authorized
The authorized capital stock of the Company consists of 30,000,000 shares
of Common Stock, $.001 par value, and 10,000,000 shares of Preferred Stock,
$.001 par value. The Company has designated 10,000 shares of Series B
Convertible Preferred Stock of which 3,218 shares were issued and outstanding as
of October 7, 1996 and 15,000 shares of Series C Convertible Preferred Stock of
which 10,000 shares were issued and outstanding as of October 7, 1996. The
following summary description of the Company's Common Stock and Warrants
registered hereby is qualified in its entirety by reference to the Company's
Certificate of Incorporation, Certificates of Designation and By-Laws, copies of
which have been filed as exhibits to the Registration Statement of which this
Prospectus is a part.
Common Stock
All of the 10,894,117 shares of Common Stock issued and outstanding as of
October 7, 1996 and those issuable upon exercise and payment for the Warrants
are and will be, duly authorized, validly issued, fully paid and non-assessable.
Holders of shares of Common Stock are entitled to one vote for each share held
of record on all matters to be voted on by shareholders. There are no
preemptive, subscription, conversion or redemption rights pertaining to the
Common Stock. Holders of shares of Common Stock are entitled to receive such
dividends as may be declared on Common Stock by the Board of Directors out of
funds legally available therefor and to share ratably in the assets of the
Company available upon liquidation subject to rights of creditors and any shares
of Preferred Stock. The holders of shares of Common Stock do not have the right
to cumulate their votes in the election of directors and, accordingly the
holders of more than 50% of all the Common Stock outstanding are able to elect
all directors. The current officers and directors beneficially hold 9,798,212
shares (52%) giving full effect to the exercise of their Warrants, as of the
date hereof, prior to any sales by them, and accordingly they may be able to
elect all of the Company's directors prior to their selling any shares of Common
Stock.
Class B and C Warrants
The Board of Directors has authorized the issuance of an aggregate of
5,000,000 Class B and Class C Common Stock purchase warrants, to purchase an
equal number of shares of Common Stock. The following statements are brief
summaries of certain provisions of the Class B and Class C Warrants
(collectively, the "Warrants") which are issued in registered form under,
governed by and subject to the terms of a warrant agreement (the "Warrant
Agreement") between the Company and Corporate Stock Transfer, Inc. as warrant
agent (the "Warrant Agent"). Copies of the Warrant Agreement may be obtained
from the Company or the Warrant Agent.
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<PAGE>
The Warrants consist of: (i) 2,500,000 authorized redeemable Class B Common
Stock Purchase Warrants (1,616,000 of which are outstanding) each entitling the
holder thereof to purchase one share of Common Stock and one redeemable Class C
Common Stock Purchase Warrant for $5.00, subject to adjustment and/or
redemption, until January 17, 1997, and (ii) 2,500,000 authorized redeemable
Class C Common Stock Purchase Warrants (884,000 of which are outstanding and
1,616,000 of which are issuable upon exercise of Class B Warrants) each
entitling the holder thereof to purchase one share of Common Stock at $7.50 per
share, subject to adjustment and/or redemption until January 17, 1998. The Board
of Directors has the authority to extend the exercise periods and/or reduce the
exercise prices.
The Warrants contain provisions that protect the holders thereof against
dilution by adjustment of the exercise price and the number of Warrants in
certain events including, but not limited to, stock dividends, stock splits,
reclassifications, mergers and similar transactions. A Warrant holder will not
possess any rights as a stockholder of the Company. The shares of Common Stock,
when issued upon the exercise of the Warrants in accordance with the terms
thereof, will be fully paid and non-assessable.
The Warrants are subject to redemption on 30 days' prior written notice for
$.01 per share. The Company reserves the right, however, to have standby
purchasers of all unexercised Warrants on the redemption date exercise such
Warrants and pay the exercise price to the Company without holding Warrant
certificates during the two week period following the redemption date. In turn,
the Company will pay the redemption price to the registered holders of
unexercised Warrants. While the Company intends to redeem its Warrants prior to
their expiration, it has no current plans, arrangements, agreements or
understandings concerning such proposed standby purchasers.
The Company is required to have a current registration statement on file
with the Commission, such as the one of which this Prospectus is a part, and to
effect appropriate qualifications under the laws and regulations of the states
in which the holders of Warrants reside in order to comply with applicable laws
in connection with the exercise of the Warrants and the resale of the Common
Stock issued upon such exercise. The Company has agreed to keep current the
registration statement of which this Prospectus is a part and to effect
appropriate action under applicable state securities laws. Nevertheless, the
inability for any reason to maintain a current Prospectus, may cause the
exercise of the Warrants and resale or other disposition of the underlying
Common Stock to be effected under circumstances which do not comply with
applicable securities laws.
Warrants are generally more speculative than shares of common stock which
are purchasable upon the exercise thereof. Historically, the percentage increase
or decrease in the market price of a warrant has tended to be greater than the
percentage increase or decrease in the market price of the underlying common
stock. A 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
warrant. There is no current public market for the Warrants and there is no
assurance that one will ever develop.
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<PAGE>
REGISTRAR, TRANSFER AGENT AND WARRANT AGENT
The Registrar and Transfer Agent for the Company's Common Stock and the
Warrant Agent for its Warrants, is Corporate Stock Transfer, Inc., Denver,
Colorado.
SHARES ELIGIBLE FOR FUTURE SALE
Of the Company's 10,894,117 issued and outstanding shares of Common Stock
as of October 7, 1996, approximately 1,290,000 shares are "restricted
securities" as that term is defined under Rule 144 under the Securities Act, and
are not eligible for sale under the Securities Act, but are being registered
hereby.
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. Nevertheless, the possibility
exists that the sale of any of these Securities, or even the potential of such
sales, may have a depressive effect on the price of the Company's securities in
any public trading market. See "Selling Stockholders."
PLAN OF DISTRIBUTION
The Securities may be sold from time to time directly by the Selling
Stockholders and/or by their transferees and not for the account of the Company.
Alternatively, the Selling Stockholders may from time to time offer the
Securities through underwriters, dealers or agents. The distribution of the
Securities by the Selling Stockholders may be effected from time to time in one
or more transactions that may take place in the over-the-counter market
including ordinary broker's transactions, privately negotiated transactions,
pledges, or through sales to one or more broker/dealers for resale of such
securities as principals, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. Usual
and customary or specifically negotiated brokerage fees or commissions may be
paid by these holders in connection with such sales.
The Selling Stockholders, their transferees, intermediaries and pledgees
through whom the Securities are sold may be deemed "underwriters" within the
meaning of the Securities Act of 1993, as amended (the "Act"), with respect to
the securities offered and any profits realized or commissions received may be
deemed underwriting compensation. Registration of a portion of the Securities is
being made pursuant to agreements with the Company pursuant to which the Company
will pay all expenses incident to the offering and sale of the Securities to the
public except as described hereinafter. The Company will not pay the exercise
prices of options and warrants and, among other expenses, commissions and
discounts of underwriters, dealers or agents or the fees and expenses of counsel
for the Selling Stockholders. In some cases, the Company has agreed to indemnify
the Selling Stockholders against certain liabilities, including liabilities
under the Act. See "Commission Position on Indemnification for Securities Act
Liabilities" below.
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<PAGE>
The sale of the Securities is subject to the Prospectus delivery and other
requirements of the Act. To the extent required, the Company will use its best
efforts to file and distribute, during any period in which offers or sales are
being made, one or more amendments or supplements to this Prospectus or a new
registration statement with respect to the Securities to describe any material
information with respect to the plan of distribution not previously disclosed in
this Prospectus, including, but not limited to, the number of shares being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, if any, the purchase price paid by the
underwriter for Shares purchased from a Selling Stockholder, and any discounts,
commissions or concessions allowed or reallowed or paid to dealers and the
proposed selling price to the public.
Under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and the regulations thereunder, any person engaged in a distribution of the
Securities of the Company offered by this Prospectus may not simultaneously
engage in market-making activities with respect to the Common Stock of the
Company during the applicable "cooling off" period (9 days) prior to the
commencement of such distribution. In addition, and without limiting the
foregoing, the Selling Stockholders will be subject to applicable provisions of
the Exchange Act and the rules and regulations thereunder, including without
limitation, Rules 10b-6 and 10b-7, in connection with transactions in the
shares, which provisions may limit the timing of purchases and sales of shares
of Securities by the Selling Stockholders.
COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions or otherwise, the small business
issuer has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon by Snow
Becker Krauss P.C., 605 Third Avenue, New York, New York 10158. Snow Becker
Krauss P.C. owns 15,000 shares of the Company's Common Stock included under
"Selling Stockholders."
EXPERTS
The consolidated financial statements of AgriBioTech, Inc. and subsidiaries
as of June 30, 1996 and June 30, 1995 and for the year ended June 30, 1996 and
the nine-month period ended June 30, 1995, have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
- ------- -------------------------------------------
The expenses in connection with the issuance and distribution of the
securities being registered shall be borne by the Registrant and are estimated
as follows:
<TABLE>
<S> <C>
SEC Filing Fee.................... $ 7,388.73
Printing and Engraving Expenses... 5,000.00
Legal Fees and Expenses........... 20,000.00
Accounting Fees and Expenses...... 5,000.00
Miscellaneous..................... 2,611.27
----------
Total:....................... $40,000.00
==========
</TABLE>
Item 15. Indemnification of Directors and Officers
- ------- -----------------------------------------
Except to the extent hereinafter set forth, there is no statute, charter
provision, by-law, contract or other arrangement under which any controlling
person, director or officer of the Registrant is insured or indemnified in any
manner against liability which he may incur in his capacity as such.
The Company maintains insurance protecting its directors and officers
against any liability asserted against or incurred by them in such capacity or
arising out of their status as such.
Article Ninth of the Registrant's Certificate of Incorporation provides for
the indemnification of directors and officers to the fullest extent allowed by
the Nevada General Corporation Law ("GCL"), which provides in relevant part as
follows:
Section 78.751:
1. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he 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
II-1
<PAGE>
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the corporation. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, he must be indemnified by the corporation
against expenses, including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
4. Any indemnification under subsections 1 and 2, unless ordered by a
court or advanced pursuant to subsection 5, must be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding so orders, by independent legal counsel
in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
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<PAGE>
5. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
6. The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to subsection 2 or for the
advancement of expenses made pursuant to subsection 5, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
Section 78.752:
1. A corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
2. The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by granting a
security interest or other lien on any assets of the corporation.
II-3
<PAGE>
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide protection
for a person adjudged by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court.
3. Any insurance or other financial arrangement made on behalf of a
person pursuant to this section may be provided by the corporation or any other
person approved by the board of directors, even if all or part of the other
person's stock or other securities is owned by the corporation.
4. In the absence of fraud:
(a) The decision of the board of directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to this section and the choice of the person to provide the insurance
or other financial arrangement is conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to personal liability
for his action,
even if a director approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial arrangement.
5. A corporation or its subsidiary which provides self-insurance for
itself or for another affiliated corporation pursuant to this section is not
subject to the provisions of Title 57 of NRS [The Nevada Revised Statutes].
Article VI of the Registrant's Bylaws provides as follows:
Indemnification
---------------
On the terms, to the extent, and subject to the condition 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
II-4
<PAGE>
officer of 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 attorneys' 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 attorneys' fees, actually and necessarily incurred by him in
connection with the defense of such action, or in connection with an appeal
therein, and (b) the Corporation may pay, in advance of final disposition of any
such action, expenses incurred by such person in defending such action or
proceeding.
ITEM 16. EXHIBITS, LIST AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Form of Class B Warrant Certificate. (1)
4.2 Form of Class C Warrant Certificate. (1)
5.1 Securities opinion of Snow Becker Krauss P.C.*
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Snow Becker Krauss P.C. is included in Exhibit 5.1 to
this Registration Statement.
24.1 Power of Attorney (on signature page)
</TABLE>
___________________
(1) Incorporated by reference from the Registrant's Annual Report on Form 10-K
for the fiscal year ended September 30, 1993.
* Filed with this Registration Statement.
II-5
<PAGE>
Item 17. Undertakings
- ------- ------------
The Registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Act");
(ii) reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the information
in the registration statement; and
(iii) include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Act, to treat each post-effective
amendment as a new registration statement of the securities offered, and the
offering of the securities at that time to be the initial bona fide offering.
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(4) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the small
business issuer pursuant to the foregoing provisions, or otherwise, the small
business issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the small
business issuer of expenses incurred or paid by a director, officer or
controlling person of the small business issuer 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 small business
issuer will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(5) For determining any liability under the Act, to treat the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A and contained in a form of prospectus filed by the
small business issuer under Rule 424(b)(1), or (4) or 497(h) under the Act as
part of this registration statement as of the time the Commission declared it
effective.
(6) For determining any liability under the Act, to treat each post-
effective amendment that contains a form of prospectus as a new registration
statement for the securities offered in the registration statement, and that
offering of the securities at that time as the initial bona fide offering of
those securities.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Las Vegas, State of Nevada, on October 11, 1996.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
-----------------------------
Johnny R. Thomas, President
POWER OF ATTORNEY
Each of the undersigned hereby authorizes Johnny R. Thomas or Henry A.
Ingalls as his attorneys-in-fact to execute in the name of each such person and
to file such amendments (including post-effective amendments) to this
registration statement as the Registrant deems appropriate and appoints such
persons as attorneys-in-fact to sign on his behalf individually and in each
capacity stated below and to file all amendments, exhibits, supplements and
post-effective amendments to this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Johnny R. Thomas President (Principal Executive Officer) October 11, 1996
- ------------------------ and Director
Johnny R. Thomas
/s/ Henry A. Ingalls Vice President and Treasurer (Principal October 11, 1996
- ------------------------ Financial and Accounting Officer)
Henry A. Ingalls
/s/ Scott J. Loomis Vice President and Director October 11, 1996
- ------------------------
Scott J. Loomis
/s/ John C. Francis Vice President, Secretary and Director October 11, 1996
- ------------------------
John C. Francis
/s/ Kent Schulze Director October 11, 1996
- ------------------------
Kent Schulze
/s/ Bryon D. Ford Director October 11, 1996
- ------------------------
Byron D. Ford
</TABLE>
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<PAGE>
Exhibit 5.1
Snow Becker Krauss P.C.
605 Third Avenue
New York, NY 10158
October 10, 1996
AgriBioTech, Inc.
Quail Park West
2700 Sunset Road, Suite 25
Las Vegas, Nevada 89120
Re: Registration Statement on Form S-3 Relating to 14,101,918 Shares of
Common Stock, Par Value $.001 Per Share, of AgriBioTech, Inc., as well
as 1,616,000 redeemable Class B Common Stock Purchase Warrants and
2,500,000 redeemable Class C Common Stock Purchase Warrants.
-----------------------------------------------------------
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-3 (the "Registration
Statement") relating to 14,101,918 shares of Common Stock (the "Shares"), $.001
par value per share, of the Company, as well as 1,616,000 redeemable Class B
Common Stock Purchase Warrants ("Class B Warrants") and 2,500,000 redeemable
Class C Common Stock Purchase Warrants ("Class C Warrants") that may be sold by
the Selling Stockholders.
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Certificate of
Incorporation and amendments thereto and the Company's Amended and Restated By-
Laws, as each is currently in effect, the Registration Statement, and the
proposed registration and issuance of the Shares and such other corporate
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:
1. The Company has been duly organized, is validly existing, and in good
standing under the laws of the State of Nevada.
2. The Shares have been duly authorized, legally issued and are fully paid
and non-assessable.
3. The Class B Warrants and the Class C Warrants have been duly authorized
and are legally issued and enforceable in accordance with their terms.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference in the Registration Statement to
this firm under the heading "Interests of Named Experts and Counsel." 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, or 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 23.1
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report incorporated by reference herein and to the
reference to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG PEAT MARWICK LLP
Albuquerque, New Mexico
October 11, 1996
