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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO._______)*
AgriBioTech, Inc.
-------------------------------------------------------------
(Name of Issuer)
Common Stock, $.001 par value
-------------------------------------------------------------
(Title of Class of Securities)
008494-10-6
-----------------------------------------
(CUSIP Number)
John M. Liviakis, 2118 "P" St., Suite C, Sacramento, CA 95816, (916) 448-6084
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 6, 1996
----------------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [_].
Check the following box if a fee is being paid with this statement [X]. (A fee
is not required only if the filing person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7).
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
- ------------------------ --------------------
CUSIP NO. 008494-10-6 SCHEDULE 13D PAGE 2 OF 35 PAGES
- ------------------------ --------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Liviakis Financial Communications, Inc.
68-0311399
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
WC
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
5 ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
State of California
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 1,125,000
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
0
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 1,125,000
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,125,000
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [X]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
12.9%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
CO
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! 2 of 7
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
- ----------------------- ---------------------
CUSIP NO. 008494-10-6 SCHEDULE 13D PAGE 3 OF 35 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John M. Liviakis
###-##-####
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
00
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
5 ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
1,125,000
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,125,000
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,125,000
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [X]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
12.9%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! 2 of 7
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
- ----------------------- ---------------------
CUSIP NO. 008494-10-6 SCHEDULE 13D PAGE 4 OF 35 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Renee A. Liviakis
###-##-####
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
00
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
5 ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
1,125,000
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,125,000
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,125,000
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [X]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
12.9%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! 2 of 7
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
- ----------------------- ---------------------
CUSIP NO. 008494-10-6 SCHEDULE 13D PAGE 5 OF 35 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Robert B. Prag
###-##-####
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [X]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
PF, 00
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
5 ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 394,500
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
1,125,000
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 394,500
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
1,125,000
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
1,519,500
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
16.8%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT! 2 of 7
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
Page 6 of 35
1. SECURITY AND ISSUER.
The title of the class of equity securities to which this statement relates
is common stock. $.001 par value (the "Common Stock"), issued by AgriBioTech,
Inc., a Nevada corporation (the "Corporation"). The principal offices of the
Corporation are located at 2700 Sunset Road, Suite C-25, Las Vegas, Nevada
89120.
2. IDENTITY AND BACKGROUND.
This statement is filed by Liviakis Financial Communications, Inc., a
California corporation ("LFC"), John M. Liviakis ("JML"), Renee A. Liviakis
("RAL") and Robert B. Prag ("RBP"). LFC's principal business is as a consultant
in the areas of investor communications, financial and investor public relations
and corporate finance. LFC's principal business and principal office address is
2118 "P" Street, Suite C, Sacramento, California 95816.
LFC's President is JML, its Senior Vice President is RBP, and its
Treasurer, Chief Financial Officer and Secretary is RAL. JML, RAL and RBP are
the only executive officers of LFC. The activities associated with these
positions constitute the principal occupation and employment of JML, RBP and
RAL. JML, RBP and RAL are LFC's only directors, and JML and RAL are its sole
stockholders. JML, RBP and RAL are citizens of the United States, and their
business address is LFC's principal business address listed above.
During the last five years, none of LFC, JML, RBP and RAL has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), and during such period none of them has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction, the
result of which was to subject such person to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
This Schedule 13D is being filed to report 1,125,000 shares of the
Corporation's Common Stock which LFC may first acquire on July 5, 1996 pursuant
to a Non-Qualified Stock Option Agreement dated as of January 5, 1996 by and
between the Corporation and LFC (the "LFC Stock Option"), and 19,500 shares of
the Corporation's Common Stock owned by RBP and 375,000 shares of the
Corporation's Common Stock which RBP may first acquire on July 5, 1996 pursuant
to a Non-Qualified Stock Option Agreement dated as of January 5, 1996 by and
between the Corporation and RBP (the "RBP Stock Option" and collectively with
the LFC Stock Option,
<PAGE>
Page 7 of 35
the "Stock Options"). The Stock Options also permit LFC to acquire an additional
375,000 shares of Common Stock and RBP to acquire an additional 125,000 shares
of Common Stock commencing July 5, 1997. Pursuant to the Stock Options, LFC and
RBP may purchase shares of Common Stock at $1.81 per share through January 4,
2001.
To the extent LFC exercises the LFC Stock Option, it presently intends to
utilize its working capital. To the extent RBP exercises the RBP Stock Option,
he presently intends to utilize his personal funds. Copies of the LFC Stock
Option and the RBP Stock Option are attached hereto as Exhibits "10.1" and
"10.2", respectively.
4. PURPOSE OF TRANSACTION.
The Option Agreements were entered into pursuant to a Consulting Agreement
effective as of January 5, 1996 by and between the Corporation and LFC (the
"Consulting Agreement"), in consideration for consulting services to be
performed by LFC for the Corporation. A copy of the Consulting Agreement is
attached hereto as Exhibit "10.3".
To the extent LFC and RBP exercise the Stock Options, each presently
intends to acquire and hold the shares of Common Stock so purchased for
investment purposes. RBP holds the 19,500 shares of Common Stock presently owned
by him for investment purposes. LFC, JML, RAL and RBP may also acquire
additional shares of Common Stock for investment purposes from time to time,
although they do not have any present plans to do so.
LFC, JML, RAL and RBP have no plans or proposals which relate to or would
result in: any extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Corporation or any subsidiary of the
Corporation; the sale or transfer of a material amount of assets of the
Corporation or any of its subsidiaries; any change in the Corporation's present
Board of Directors or management; any material change in the present
capitalization or dividend policy of the Corporation; any material change in the
Corporation's business or corporate structure; any changes in the Corporation's
charter, bylaws, or instruments corresponding thereto or other actions which may
impede the acquisition of control of the Corporation by any person; a class of
securities of the Corporation being delisted from a national securities exchange
or ceasing to be authorized to be quoted in an inter-dealer quotation system of
a registered national securities association; a class of equity securities of
the Corporation becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Securities Exchange Act of 1934, as amended; or any
similar action.
<PAGE>
Page 8 of 35
5. INTEREST IN SECURITIES OF THE ISSUER.
Pursuant to the LFC Stock Option, LFC has the right to purchase up to
1,125,000 shares of Common Stock from the Corporation from July 5, 1996 through
January 4, 2001 at an exercise price of $1.81 per share of Common Stock and the
right to purchase up to an additional 375,000 shares of Common Stock from the
Corporation from July 5, 1997 through January 4, 2001 at an exercise price of
$1.81 per share of Common Stock. As the directors of LFC, JML, RAL and RBP share
the power to direct the vote or disposition of any shares of the Common Stock of
the Corporation acquired by LFC pursuant to the LFC Stock Option or otherwise.
Pursuant to the RBP Stock Option, RBP has the right to purchase up to
375,000 shares of Common Stock from the Corporation from July 5, 1996 through
January 4, 2001 at an exercise price of $1.81 per share of Common Stock and the
right to purchase up to an additional 125,000 shares of Common Stock from the
Corporation from July 5, 1997 through January 4, 2001 at an exercise price of
$1.81 per share of Common Stock. RBP has the sole power to direct the vote or
disposition of any shares of the Common Stock of the Corporation acquired by RBP
pursuant to the RBP Stock Option or otherwise as well as the 19,500 shares of
Common Stock presently owned by RBP. LFC, JML and RAL disclaim any beneficial
ownership of shares of Common Stock presently owned by RBP or which may be
acquired by RBP pursuant to the RBP Stock Option.
The 1,125,000 shares of Common Stock that LFC has the right to acquire
within sixty days of the date hereof, and as to which JML, RAL and RBP as
officers and directors of LFC would have shared power to direct the vote or
disposition, represents approximately 12.9% of that class of securities. The
394,500 shares of Common Stock that RBP presently owns or has the right to
acquire within sixty days of the date hereof, and as to which RBP has or would
have the sole power to direct the vote or disposition, represents approximately
5.0% of that class of securities. The 1,519,500 shares of Common Stock which RBP
presently owns or as to which, if acquired through exercise of the Stock
Options, RBP would have either sole or shared power to direct the vote or
disposition represent approximately 16.7% of that class of securities. In each
case, the calculation of the percentage of the class of Common Stock is based on
the Corporation's advice to LFC that, as of the most recent practicable date,
7,567,200 shares of Common Stock were outstanding.
During the past sixty days, RAL has not engaged in any transactions in
Common Stock. During the past sixty days, LFC, JML and RBP have engaged in the
following transactions in Common Stock in brokers' transactions on the Nasdaq
SmallCap Market:
<PAGE>
Page 9 of 35
A. On April 30, 1996, RBP purchased 5,000 shares for $20,625.00.
B. On April 16, 1996, JML sold 15,000 shares for $65,531.25.
C. On April 16, 1996, LFC sold 6,000 shares for $25,000.00.
D. On April 15, 1996, LFC sold 4,000 shares for $16,000.00.
E. On April 12, 1996, LFC sold 4,000 shares for $15,625.00.
F. On April 11, 1996, LFC sold 4,000 shares for $15,625.00
G. On April 10, 1996, LFC sold 4,000 shares for $16,000.00.
H. On April 9, 1996, LFC sold 2,000 shares for $8,000.00.
I. On March 29, 1996, JML purchased 15,000 shares for $49,000.50.
J. On March 18, 1996, LFC sold 2,000 shares for $7,000.00.
K. On March 15, 1996, LFC sold 6,000 shares for $21,625.00.
L. On March 14, 1996, LFC sold 4,000 shares for $14,875.00.
M. On March 13, 1996, LFC sold 4,000 shares for $15,000.00.
6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The Corporation entered into the Stock Option Agreements with LFC and RBP
in consideration for consulting services to be performed by LFC pursuant to the
Consulting Agreement from January 5, 1996 through July 4, 1997. In the Option
Agreements, the Corporation grants to LFC and RBP certain rights to have shares
of Common Stock purchased pursuant to the Stock Option Agreements registered
under the Securities Act of 1933, as amended.
Except for the Consulting Agreement and the Stock Options, there are no
contracts, arrangements, understandings or
<PAGE>
Page 10 of 35
relationships between the persons named in Item 2 above and any person with
respect to any securities of the Corporation.
7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 10.1 - Non-Qualified Stock Option Agreement dated as of January 5,
1996 by and between the Corporation and LFC.
Exhibit 10.2 - Non-Qualified Stock Option Agreement dated as of January 5,
1996 by and between the Corporation and RBP.
Exhibit 10.3 - Consulting Agreement, dated effective as of January 5, 1996,
by and between the Corporation and LFC.
Exhibit 10.4 - Agreement of LFC, JML, RAL and RBP pursuant to Rule
13d-1(f).
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: May 10, 1996 LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John M. Liviakis
-------------------------------
John M. Liviakis, President
/s/ John M. Liviakis
-------------------------------
John M. Liviakis
/s/ Renee A. Liviakis
-------------------------------
Renee A. Liviakis
/s/ Robert B. Prag
-------------------------------
Robert B. Prag
<PAGE>
Page 11 of 35
EXHIBIT "10.1"
--------------
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the fifth day of January 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, Nevada 89120 (the "Grantor"), and
Liviakis Financial Communications, Inc., a California corporation having its
principal executive offices at 2118 "P" Street, Suite C, Sacramento, California
95816 (the "Optionee").
WITNESSETH:
WHEREAS, the Optionee has agreed to perform services for the Grantor; and
WHEREAS, the Grantor is desirous that Optionee exert its utmost efforts on
behalf of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's service to the Grantor,
and for other good and valuable consideration, the Grantor hereby grants to the
Optionee options to purchase common stock of the Grantor, $.001 par value
("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on January
4, 2001, as set forth in Paragraph 3 hereof, up to an aggregate of one million
five hundred thousand (1,500,000) fully paid and non-assessable shares of Common
Stock (the "Shares"), subject to the terms and conditions set forth below.
2. Exercise Price.
--------------
The exercise price shall be One Dollar and Eighty-One Cents ($1.81) per
Share. The Grantor shall pay all original issue or transfer taxes on the
exercise of this option and all other fees and expenses incurred by the Grantor
in connection herewith.
3. Exercise of Option.
------------------
The options granted hereby shall first become exercisable as follows:
options to purchase 1,125,000 Shares shall first become exercisable on July 5,
1996, and the options to purchase the balance of 375,000 Shares shall first
become exercisable on July 5, 1997. Subject to the provisions of Paragraph 4
hereof, such options shall be exercisable in whole or in part at any time and
from time to time from the date on which they are first
<PAGE>
Page 12 of 35
exercisable through 5:00 p.m. Las Vegas time on January 4, 2001.
In order to exercise the option granted hereunder in whole or in part, the
Optionee shall deliver to the Grantor a written notice substantially in the form
of Notice of Exercise of Option to Purchase Shares attached hereto, delivery to
be effected by personal delivery, by overnight courier or by registered or
certified mail, return receipt requested, addressed to the Grantor at its
principal office. Such notice shall specify the number of Shares which Optionee
is purchasing under the option herein granted and shall be accompanied by
payment (in the form of cash or certified or bank cashier's check) for the
Shares so being purchased at the exercise price therefor as specified in
Paragraph 2 above.
As soon as practicable thereafter but in any event within five (5) business
days after Grantor's receipt of notice of exercise, the Grantor shall cause to
be delivered to the Optionee certificates issued in the Optionee's name
evidencing the full number of Shares as to which this option was exercised by
the Optionee. Optionee shall be considered to be the holder and owner of the
Shares to be evidenced by such certificates as of the close of business on the
date Grantor receives the notice of exercise accompanied by payment, as
contemplated herein, without regard to the date of actual issuance of the
certificate(s) representing such Shares.
4. Divisibility and Non-Assignability of the Option.
------------------------------------------------
(a) The Optionee may exercise the option herein granted in whole or in part
at any time and from time to time, subject to the provisions of Paragraph 3
above, with respect to any whole number of Shares included therein, but in no
event may an option be exercised as to less than ten thousand (10,000) Shares at
any one time, except for the remaining Shares covered by the option if less than
ten thousand (10,000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, and the options herein granted, or any of them, shall be
exercisable only by the Optionee or its legal successors.
5. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees that it is Optionee's
intention to purchase Shares hereunder for investment and without any view
towards the resale or distribution thereof. In the event Shares to be issued
upon exercise of this Option have not been registered at the time of proposed
issuance under the Securities Act of 1933, as amended (the "Securities Act"),
the Optionee shall deliver to the Grantor at the time of such issuance a written
representation that Optionee is acquiring such
<PAGE>
Page 13 of 35
Shares in good faith for investment purposes only and not for resale or
distribution. Grantor may place a "stop transfer" order with respect to such
Shares with its transfer agent and place an appropriate restrictive legend on
the stock certificate(s) evidencing such Shares, in order to prevent transfers
unless such Shares are registered under the Securities Act or an exemption from
the registration requirements of the Securities Act is applicable.
6. Conditions to Issuance of Shares.
--------------------------------
The Grantor shall issue and deliver certificates for Shares purchased upon
the exercise of any option granted hereunder, provided each of the following
conditions is satisfied, which conditions the Grantor hereby undertakes and
agrees to satisfy or cause to be satisfied: (a) the issuance of such Shares
shall have been registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or counsel to the Grantor shall have given
an opinion that such issuance is exempt from the registration requirements of
such Act; (b) approval, to the extent required, shall have been obtained from
any state regulatory body having jurisdiction thereof; and (c) permission for
the listing of such Shares, if required, shall have been given by NASDAQ or any
national securities exchange on which Shares are at the time of issuance listed.
7. Registration Rights.
-------------------
(a) If, at any time during the exercise period hereof and the three (3)
years following any exercise hereunder, the Grantor proposes to file a
registration statement with respect to any class of securities (other than
pursuant to a registration statement on Forms S-4 or S-8 or any successor form)
under the Securities Act, the Grantor shall notify the Optionee at least twenty
(20) days prior to the filing of such registration statement and will offer to
include in such registration statement all or any portion of the Shares. In a
written notice to be delivered to the Grantor within twenty (20) days after
receipt of any such notice from Grantor, the Optionee shall state the number of
Shares that it wishes to register for resale and distribution publicly under the
proposed registration statement. The Grantor will use its best efforts, through
its officers, directors, auditors and counsel in all matters necessary or
advisable, to file at least one (1) such registration statement by January 31,
1997. The Grantor will also use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable, to
include within the coverage of each such registration statement (except as
hereinafter provided) the Shares that Optionee has advised Grantor that Optionee
wishes to register pursuant to such registration statement for resale and
distribution, to prosecute each such registration statement diligently to
effectiveness, and to cause such registration statement to become effective as
promptly as practicable. In
<PAGE>
Page 14 of 35
that regard, the Grantor makes no representations or warranties as to its
ability to have any registration statement declared effective.
All registrations requested pursuant to this Paragraph 7(a) are referred to
herein as "Piggyback Registrations." In the event the Grantor is advised by the
staff of the SEC, NASDAQ or any self-regulatory or state securities agency that
the inclusion of the Shares will prevent, preclude or materially delay the
effectiveness of a registration statement filed, the Grantor, in good faith, may
amend such registration statement to exclude the Shares without otherwise
affecting the Optionee's rights to any other registration statement herein.
(i) Primary Registrations. If a Piggyback Registration is an
---------------------
underwritten primary registration on behalf of the Grantor, and if the
underwriter thereof advises the Grantor in writing that in its opinion the
number of Shares requested to be included in such registration statement exceeds
the number that can be sold in such offering without materially adversely
affecting the distribution of such securities by the Grantor, then the Grantor
will include in such registration statement first, the securities that the
Grantor proposes to sell and second, the securities requested to be included in
such registration statement by selling securityholders, such rights to inclusion
being apportioned pro rata among the Optionee and the other holders of any other
securities requesting registration according to the market value of Shares and
other securities requested to be registered.
Notwithstanding the above, if any such underwriter shall advise the Grantor
in writing that the distribution of the Shares being included in the
registration statement concurrently with the securities being registered by the
Grantor would materially adversely affect the distribution of such securities by
the Grantor, then the Optionee shall delay its offering and sale for such period
ending on the earliest of (a) 180 days following the effective date of the
Grantor's registration statement, (b) the earliest date that, in the opinion of
such underwriter, such adverse effect would no longer be caused, or (c) such
date as the Grantor, managing underwriter and Optionee shall otherwise agree. In
the event of such delay, the Grantor shall file such supplements and post-
effective amendments and take any such other actions as may be necessary or
appropriate to permit such Optionee to make its proposed offering and sale for a
period of at least ninety (90) days commencing immediately following the end of
such period of delay. If any party disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Grantor, the underwriter and the Optionee. Notwithstanding the foregoing, the
Grantor shall not be required to include Shares within the coverage of a
registration statement being filed pursuant to this Paragraph 7(a)(i) if, in the
opinion of counsel for both the Grantor and
<PAGE>
Page 15 of 35
Optionee, all of the Shares proposed to be registered may be immediately
transferred pursuant to the provisions of Rule 144 under the Securities Act.
(ii) Priority on Secondary Registrations. If a Piggyback Registration
-----------------------------------
is an underwritten secondary registration on behalf of holders of securities of
the Grantor, and the underwriter thereof advises the Grantor in writing that in
its opinion the number of Shares requested to be included in such registration
statement exceeds the number which can be sold in such offering without
materially adversely affecting the distribution of such securities, then the
Grantor will include in such registration statement the securities requested to
be included in such registration statement by selling securityholders on a pro
rata basis, with such rights to inclusion being apportioned among the Optionee
and the other holders of any other securities requesting registration according
to the market value of Shares and other securities requested by them,
respectively, to be registered. Notwithstanding the foregoing, the Grantor shall
not be required to include Shares within the coverage of a registration
statement being filed pursuant to this Paragraph 7(a)(ii) if, in the opinion of
counsel for both the Grantor and Optionee, all of the Shares proposed to be
registered may be immediately transferred pursuant to the provisions of Rule 144
under the Securities Act.
(b) If at any time after July 5, 1997 and prior to the third (3rd)
anniversary of the earlier of the expiration of the option herein granted and
the purchase of the final Shares remaining subject to such option Shares issued
or issuable upon exercise of the option herein granted are not then registered
under one or more Piggyback Registrations and then covered by a prospectus
complying with the requirements of the Securities Act, the Optionee may by
written notice to the Grantor require Grantor to file a registration statement
under the Securities Act covering such Shares as Optionee may specify in such
notice. Optionee shall be entitled so to require Grantor to file a registration
statement pursuant to this Paragraph 7(b) on only one (1) occasion. The Grantor
will file such a registration statement within ninety (90) days of receipt of
such notice; and thereafter will prosecute such registration statement
diligently to effectiveness; will cause such registration statement to become
effective as promptly as practicable; will promptly file all such supplements
and post-effective amendments to such registration statement and take any such
other actions as may be necessary or appropriate to make available to Optionee
on as continuous a basis as is practicable a prospectus meeting the requirements
of the Securities Act through the earliest of (a) the date on which the final
Shares have been sold and distributed by Optionee, (b) the date on which, in the
opinion of counsel for both the Grantor and Optionee, all of the Shares which
Optionee then holds may be immediately transferred pursuant to the provisions of
Rule 144 under the Securities Act, and (c) January
<PAGE>
Page 16 of 35
5, 2004. In that regard, the Grantor makes no representations or warranties as
to its ability to have any registration statement or post-effective amendment
thereto declared effective.
(c) In the event of any registration of a security pursuant to this
Paragraph 7, the Grantor shall indemnify the Optionee and its officers and
directors against all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented) relating
to such registration, or caused by any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in conformity
with information furnished to the Grantor by the Optionee expressly for use
therein. The Optionee shall also indemnify the Grantor, its officers and
directors and each underwriter of the Shares so registered with respect to
losses, claims damages and liabilities caused by any untrue statement or
omission made in reliance upon and in conformity with information furnished by
the Optionee to the Grantor in writing expressly for use in such registration
statement or prospectus.
(d) All expenses of any registration referred to in this Paragraph 7,
except the fees and disbursements of counsel to the Optionee, underwriting
commissions or discounts and any transfer or other taxes applicable to the
transfer of Shares by the Optionee, shall be borne by the Grantor.
(e) Following the exercise of options hereunder, the Optionee shall
promptly advise the Grantor when Optionee no longer holds any Shares acquired
through the exercise of options granted hereunder, and upon the request of the
Grantor, the Optionee shall advise the Grantor from time to time of the number
of Shares then held by Optionee which were acquired through the exercise of
options granted hereunder.
8. Adjustments Upon Changes in Capitalization.
------------------------------------------
(a) In the event of changes in the outstanding Common Stock of the Grantor
by reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, consolidations, combinations, exchanges of shares,
separations, reorganizations, liquidations or any similar events or events
having similar consequences, the number and class of Shares as to which the
option may be exercised shall be correspondingly adjusted so that for the same
aggregate exercise price the Optionee shall be entitled to acquire the
securities and other property Optionee would have held if Optionee had exercised
the option granted hereunder for the number of Shares under consideration prior
to the first of such events to occur and continued to hold such Shares and all
other securities and other property issued with
<PAGE>
Page 17 of 35
respect thereto in connection with such events. No adjustment shall be made with
respect to cash dividends or non-liquidating dividends payable in property other
than cash, so long as Grantor provides Optionee with written notice of any such
proposed dividend at least fifteen (15) days prior to the record date for such
dividend. Grantor shall also give Optionee prompt written notice of any event
resulting in an adjustment under this Paragraph 8(a), including a detailed
computation of such adjustment.
(b) Any adjustment in the number and kind of Shares and other securities
shall apply proportionately to only the unexercised portion of the option
granted hereunder at the time of the event given rise to the adjustment. If
fractions of a Share would result from any such adjustment, the adjustment shall
be revised to the next higher whole number of Shares so long as such increase
does not result in the holder of the option being deemed to own more than 5% of
the total combined voting power or value of all classes of stock of the Grantor
or its subsidiaries, in which case the adjustment shall be revised to the next
lower whole number of Shares.
9. Effect of Mergers, Consolidations or Sales of Assets.
----------------------------------------------------
In the event Grantor should propose to merge or consolidate with, or engage
in some other form of business combination with, any other corporation or entity
on a basis in which Grantor is not to be the surviving entity, then as a
condition precedent to proceeding with such merger, consolidation or other
business combination Grantor shall secure the commitment of the surviving entity
to assume and perform all of Grantor's obligations under this Option Agreement,
on the basis that the Optionee shall have the right to acquire the same
securities and property for the option exercise price specified herein as
Optionee would have received if Optionee had exercised the option granted herein
immediately prior to such merger, consolidation or other business combination.
To the extent the above may be inconsistent with Sections 424(a)(1) and (2) of
the Code, the above shall be deemed interpreted so as to comply therewith.
10. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
11. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to employment by, or
any other relationship with, the Grantor.
<PAGE>
Page 18 of 35
12. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
13. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
------------------------------------
ACCEPTED AND AGREED TO:
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John M. Liviakis
------------------------------------
<PAGE>
Page 19 of 35
NOTICE OF EXERCISE OF OPTION TO PURCHASE SHARES
TO: AGRIBIOTECH, INC.
The undersigned hereby exercises the option for the purchase of
( ) shares according to the
- ------------------------------- ---------
terms and conditions of that certain Non-Qualified Stock Option Agreement, dated
as of January 5, 1996, between AgriBioTech, Inc. and the undersigned (the
"Agreement") and herewith makes payment of the exercise price in full in
accordance with the terms of said Agreement by payment in the form of cash or
certified or bank cashier's check for the Shares so being purchased at the
exercise price therefor as specified in Paragraph 2 of the Agreement.
The undersigned is purchasing such shares for investment purposes only and not
with a view to the sale or distribution thereof. Kindly issue the certificate
for such shares in accordance with the instructions given below.
-----------------------------------
Signature
Social Security or Taxpayer I.D. Number:
----------------------------
Instructions for issuance of stock:
- ---------------------------------------------------------------------
Name
- ---------------------------------------------------------------------
Street Address
- ---------------------------------------------------------------------
City State Zip Code
<PAGE>
Page 20 of 35
EXHIBIT "10.2"
--------------
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the fifth day of January 1996, by and between
AgriBioTech, Inc., a Nevada corporation having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, Nevada 89120 (the "Grantor"), and
Robert B. Prag, whose business address is 2118 "P" Street, Suite C, Sacramento,
California 95816 (the "Optionee").
WITNESSETH:
WHEREAS, the Optionee has agreed to perform services for the Grantor; and
WHEREAS, the Grantor is desirous that Optionee exert its utmost efforts on
behalf of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's service to the Grantor,
and for other good and valuable consideration, the Grantor hereby grants to the
Optionee options to purchase common stock of the Grantor, $.001 par value
("Common Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to the Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase, prior to 5:00 p.m. Las Vegas time on January
4, 2001, as set forth in Paragraph 3 hereof, up to an aggregate of five hundred
thousand (500,000) fully paid and non-assessable shares of Common Stock (the
"Shares"), subject to the terms and conditions set forth below.
2. Exercise Price.
--------------
The exercise price shall be One Dollar and Eighty-One Cents ($1.81) per
Share. The Grantor shall pay all original issue or transfer taxes on the
exercise of this option and all other fees and expenses incurred by the Grantor
in connection herewith.
<PAGE>
Page 21 of 35
3. Exercise of Option.
------------------
The options granted hereby shall first become exercisable as follows:
options to purchase 375,000 Shares shall first become exercisable on July 5,
1996, and the options to purchase the balance of 125,000 Shares shall first
become exercisable on July 5, 1997. Subject to the provisions of Paragraph 4
hereof, such options shall be exercisable in whole or in part at any time and
from time to time from the date on which they are first exercisable through 5:00
p.m. Las Vegas time on January 4, 2001.
In order to exercise the option granted hereunder in whole or in part, the
Optionee shall deliver to the Grantor a written notice substantially in the form
of Notice of Exercise of Option to Purchase Shares attached hereto, delivery to
be effected by personal delivery, by overnight courier or by registered or
certified mail, return receipt requested, addressed to the Grantor at its
principal office. Such notice shall specify the number of Shares which Optionee
is purchasing under the option herein granted and shall be accompanied by
payment (in the form of cash or certified or bank cashier's check) for the
Shares so being purchased at the exercise price therefor as specified in
Paragraph 2 above.
As soon as practicable thereafter but in any event within five (5) business
days after Grantor's receipt of notice of exercise, the Grantor shall cause to
be delivered to the Optionee certificates issued in the Optionee's name
evidencing the full number of Shares as to which this option was exercised by
the Optionee. Optionee shall be considered to be the holder and owner of the
Shares to be evidenced by such certificates as of the close of business on the
date Grantor receives the notice of exercise accompanied by payment, as
contemplated herein, without regard to the date of actual issuance of the
certificate(s) representing such Shares.
4. Divisibility and Non-Assignability of the Option.
------------------------------------------------
(a) The Optionee may exercise the option herein granted in whole or in part
at any time and from time to time, subject to the provisions of Paragraph 3
above, with respect to any whole number of Shares included therein, but in no
event may an option be exercised as to less than ten thousand (10,000) Shares at
any one time, except for the remaining Shares covered by the option if less than
ten thousand (10,000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, and the options herein granted, or any of them, shall be
exercisable only by the Optionee or its legal successors.
<PAGE>
Page 22 of 35
5. Stock as Investment.
-------------------
By accepting this option, the Optionee agrees that it is Optionee's
intention to purchase Shares hereunder for investment and without any view
towards the resale or distribution thereof. In the event Shares to be issued
upon exercise of this Option have not been registered at the time of proposed
issuance under the Securities Act of 1933, as amended (the "Securities Act"),
the Optionee shall deliver to the Grantor at the time of such issuance a written
representation that Optionee is acquiring such Shares in good faith for
investment purposes only and not for resale or distribution. Grantor may place a
"stop transfer" order with respect to such Shares with its transfer agent and
place an appropriate restrictive legend on the stock certificate(s) evidencing
such Shares, in order to prevent transfers unless such Shares are registered
under the Securities Act or an exemption from the registration requirements of
the Securities Act is applicable.
6. Conditions to Issuance of Shares.
--------------------------------
The Grantor shall issue and deliver certificates for Shares purchased upon
the exercise of any option granted hereunder, provided each of the following
conditions is satisfied, which conditions the Grantor hereby undertakes and
agrees to satisfy or cause to be satisfied: (a) the issuance of such Shares
shall have been registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or counsel to the Grantor shall have given
an opinion that such issuance is exempt from the registration requirements of
such Act; (b) approval, to the extent required, shall have been obtained from
any state regulatory body having jurisdiction thereof; and (c) permission for
the listing of such Shares, if required, shall have been given by NASDAQ or any
national securities exchange on which Shares are at the time of issuance listed.
7. Registration Rights.
-------------------
(a) If, at any time during the exercise period hereof and the three
(3) years following any exercise hereunder, the Grantor proposes to file a
registration statement with respect to any class of securities (other than
pursuant to a registration statement on Forms S-4 or S-8 or any successor form)
under the Securities Act, the Grantor shall notify the Optionee at least twenty
(20) days prior to the filing of such registration statement and will offer to
include in such registration statement all or any portion of the Shares. In a
written notice to be delivered to the Grantor within twenty (20) days after
receipt of any such notice from Grantor, the Optionee shall state the number of
Shares that it wishes to register for resale and distribution publicly under the
proposed registration statement. The Grantor will use its best efforts, through
its officers, directors, auditors and counsel in all matters necessary or
<PAGE>
Page 23 of 35
advisable, to file at least one (1) such registration statement by January 31,
1997. The Grantor will also use its best efforts, through its officers,
directors, auditors and counsel in all matters necessary or advisable, to
include within the coverage of each such registration statement (except as
hereinafter provided) the Shares that Optionee has advised Grantor that Optionee
wishes to register pursuant to such registration statement for resale and
distribution, to prosecute each such registration statement diligently to
effectiveness, and to cause such registration statement to become effective as
promptly as practicable. In that regard, the Grantor makes no representations or
warranties as to its ability to have any registration statement declared
effective.
All registrations requested pursuant to this Paragraph 7(a) are referred to
herein as "Piggyback Registrations." In the event the Grantor is advised by the
staff of the SEC, NASDAQ or any self-regulatory or state securities agency that
the inclusion of the Shares will prevent, preclude or materially delay the
effectiveness of a registration statement filed, the Grantor, in good faith, may
amend such registration statement to exclude the Shares without otherwise
affecting the Optionee's rights to any other registration statement herein.
(i) Primary Registrations. If a Piggyback Registration is an
---------------------
underwritten primary registration on behalf of the Grantor, and if the
underwriter thereof advises the Grantor in writing that in its opinion the
number of Shares requested to be included in such registration statement exceeds
the number that can be sold in such offering without materially adversely
affecting the distribution of such securities by the Grantor, then the Grantor
will include in such registration statement first, the securities that the
Grantor proposes to sell and second, the securities requested to be included in
such registration statement by selling securityholders, such rights to inclusion
being apportioned pro rata among the Optionee and the other holders of any other
securities requesting registration according to the market value of Shares and
other securities requested to be registered.
Notwithstanding the above, if any such underwriter shall advise the Grantor
in writing that the distribution of the Shares being included in the
registration statement concurrently with the securities being registered by the
Grantor would materially adversely affect the distribution of such securities by
the Grantor, then the Optionee shall delay its offering and sale for such period
ending on the earliest of (a) 180 days following the effective date of the
Grantor's registration statement, (b) the earliest date that, in the opinion of
such underwriter, such adverse effect would no longer be caused, or (c) such
date as the Grantor, managing underwriter and Optionee shall otherwise agree. In
the event of such delay, the Grantor shall file such supplements and post-
effective amendments and take any such other
<PAGE>
Page 24 of 35
actions as may be necessary or appropriate to permit such Optionee to make its
proposed offering and sale for a period of at least ninety (90) days commencing
immediately following the end of such period of delay. If any party disapproves
of the terms of any such underwriting, it may elect to withdraw therefrom by
written notice to the Grantor, the underwriter and the Optionee. Notwithstanding
the foregoing, the Grantor shall not be required to include Shares within the
coverage of a registration statement being filed pursuant to this Paragraph
7(a)(i) if, in the opinion of counsel for both the Grantor and Optionee, all of
the Shares proposed to be registered may be immediately transferred pursuant to
the provisions of Rule 144 under the Securities Act.
(ii) Priority on Secondary Registrations. If a Piggyback Registration
-----------------------------------
is an underwritten secondary registration on behalf of holders of securities of
the Grantor, and the underwriter thereof advises the Grantor in writing that in
its opinion the number of Shares requested to be included in such registration
statement exceeds the number which can be sold in such offering without
materially adversely affecting the distribution of such securities, then the
Grantor will include in such registration statement the securities requested to
be included in such registration statement by selling securityholders on a pro
rata basis, with such rights to inclusion being apportioned among the Optionee
and the other holders of any other securities requesting registration according
to the market value of Shares and other securities requested by them,
respectively, to be registered. Notwithstanding the foregoing, the Grantor shall
not be required to include Shares within the coverage of a registration
statement being filed pursuant to this Paragraph 7(a)(ii) if, in the opinion of
counsel for both the Grantor and Optionee, all of the Shares proposed to be
registered may be immediately transferred pursuant to the provisions of Rule 144
under the Securities Act.
(b) If at any time after July 5, 1997 and prior to the third (3rd)
anniversary of the earlier of the expiration of the option herein granted and
the purchase of the final Shares remaining subject to such option Shares issued
or issuable upon exercise of the option herein granted are not then registered
under one or more Piggyback Registrations and then covered by a prospectus
complying with the requirements of the Securities Act, the Optionee may by
written notice to the Grantor require Grantor to file a registration statement
under the Securities Act covering such Shares as Optionee may specify in such
notice. Optionee shall be entitled so to require Grantor to file a registration
statement pursuant to this Paragraph 7(b) on only one (1) occasion. The Grantor
will file such a registration statement within ninety (90) days of receipt of
such notice; and thereafter will prosecute such registration statement
diligently to effectiveness; will cause such registration statement to become
effective as promptly as practicable; will promptly file
<PAGE>
Page 25 of 35
all such supplements and post-effective amendments to such registration
statement and take any such other actions as may be necessary or appropriate to
make available to Optionee on as continuous a basis as is practicable a
prospectus meeting the requirements of the Securities Act through the earliest
of (a) the date on which the final Shares have been sold and distributed by
Optionee, (b) the date on which, in the opinion of counsel for both the Grantor
and Optionee, all of the Shares which Optionee then holds may be immediately
transferred pursuant to the provisions of Rule 144 under the Securities Act, and
(c) January 5, 2004. In that regard, the Grantor makes no representations or
warranties as to its ability to have any registration statement or post-
effective amendment thereto declared effective.
(c) In the event of any registration of a security pursuant to this
Paragraph 7, the Grantor shall indemnify the Optionee and its officers and
directors against all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus (and as amended or supplemented) relating
to such registration, or caused by any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they are made
unless such statement or omission was made in reliance upon and in conformity
with information furnished to the Grantor by the Optionee expressly for use
therein. The Optionee shall also indemnify the Grantor, its officers and
directors and each underwriter of the Shares so registered with respect to
losses, claims damages and liabilities caused by any untrue statement or
omission made in reliance upon and in conformity with information furnished by
the Optionee to the Grantor in writing expressly for use in such registration
statement or prospectus.
(d) All expenses of any registration referred to in this Paragraph 7,
except the fees and disbursements of counsel to the Optionee, underwriting
commissions or discounts and any transfer or other taxes applicable to the
transfer of Shares by the Optionee, shall be borne by the Grantor.
(e) Following the exercise of options hereunder, the Optionee shall
promptly advise the Grantor when Optionee no longer holds any Shares acquired
through the exercise of options granted hereunder, and upon the request of the
Grantor, the Optionee shall advise the Grantor from time to time of the number
of Shares then held by Optionee which were acquired through the exercise of
options granted hereunder.
<PAGE>
Page 26 of 35
8. Adjustments Upon Changes in Capitalization.
------------------------------------------
(a) In the event of changes in the outstanding Common Stock of the Grantor
by reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, consolidations, combinations, exchanges of shares,
separations, reorganizations, liquidations or any similar events or events
having similar consequences, the number and class of Shares as to which the
option may be exercised shall be correspondingly adjusted so that for the same
aggregate exercise price the Optionee shall be entitled to acquire the
securities and other property Optionee would have held if Optionee had exercised
the option granted hereunder for the number of Shares under consideration prior
to the first of such events to occur and continued to hold such Shares and all
other securities and other property issued with respect thereto in connection
with such events. No adjustment shall be made with respect to cash dividends or
non-liquidating dividends payable in property other than cash, so long as
Grantor provides Optionee with written notice of any such proposed dividend at
least fifteen (15) days prior to the record date for such dividend. Grantor
shall also give Optionee prompt written notice of any event resulting in an
adjustment under this Paragraph 8(a), including a detailed computation of such
adjustment.
(b) Any adjustment in the number and kind of Shares and other securities
shall apply proportionately to only the unexercised portion of the option
granted hereunder at the time of the event given rise to the adjustment. If
fractions of a Share would result from any such adjustment, the adjustment shall
be revised to the next higher whole number of Shares so long as such increase
does not result in the holder of the option being deemed to own more than 5% of
the total combined voting power or value of all classes of stock of the Grantor
or its subsidiaries, in which case the adjustment shall be revised to the next
lower whole number of Shares.
9. Effect of Mergers, Consolidations or Sales of Assets.
----------------------------------------------------
In the event Grantor should propose to merge or consolidate with, or engage
in some other form of business combination with, any other corporation or entity
on a basis in which Grantor is not to be the surviving entity, then as a
condition precedent to proceeding with such merger, consolidation or other
business combination Grantor shall secure the commitment of the surviving entity
to assume and perform all of Grantor's obligations under this Option Agreement,
on the basis that the Optionee shall have the right to acquire the same
securities and property for the option exercise price specified herein as
Optionee would have received if Optionee had exercised the option granted herein
immediately prior to such merger, consolidation or other business combination.
To the extent the above may be inconsistent with
<PAGE>
Page 27 of 35
Sections 424(a)(1) and (2) of the Code, the above shall be deemed interpreted so
as to comply therewith.
10. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
11. Effect Upon Employment.
----------------------
This Agreement does not give the Optionee any right to employment by, or
any other relationship with, the Grantor.
12. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
13. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
-------------------------------
ACCEPTED AND AGREED TO:
/s/ Robert B. Prag
-------------------------------
Robert B. Prag
<PAGE>
Page 28 of 35
NOTICE OF EXERCISE OF OPTION TO PURCHASE SHARES
TO: AGRIBIOTECH, INC.
The undersigned hereby exercises the option for the purchase of
( ) shares according to the terms
- ----------------------------------- ---------
and conditions of that certain Non-Qualified Stock Option Agreement, dated as of
January 5, 1996, between AgriBioTech, Inc. and the undersigned (the "Agreement")
and herewith makes payment of the exercise price in full in accordance with the
terms of said Agreement by payment in the form of cash or certified or bank
cashier's check for the Shares so being purchased at the exercise price therefor
as specified in Paragraph 2 of the Agreement.
The undersigned is purchasing such shares for investment purposes only and not
with a view to the sale or distribution thereof. Kindly issue the certificate
for such shares in accordance with the instructions given below.
-----------------------------------
Signature
Social Security or Taxpayer I.D. Number:
----------------------------
Instructions for issuance of stock:
- ---------------------------------------------------------------------
Name
- ---------------------------------------------------------------------
Street City State Zip Code
<PAGE>
EXHIBIT "10.3"
--------------
CONSULTING AGREEMENT
--------------------
This Consulting Agreement (the "Agreement"), effective as of January 5, 1996 is
entered into by and between AGRIBIOTECH, INC., a Nevada corporation (herein
referred to as the "Company") and LIVIAKIS FINANCIAL COMMUNICATIONS, INC., a
California corporation (herein referred to as the "Consultant").
RECITALS
--------
WHEREAS, Company is a publicly held corporation with its common stock
traded on the NASDAQ; and
WHEREAS, Consultant has experience in the area of corporate finance,
investor communications and financial and investor public relations; and
WHEREAS, Company desires to engage the services of Consultant to assist and
consult to the Company in matters concerning corporate finance and to represent
the company in investors' communications and public relations with existing
shareholders and brokers, dealers and other investment professionals as to the
Company's current and proposed activities;
NOW THEREFORE, in consideration of the promises and the mutual covenants
and agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
1. Term of Consultancy. Company hereby agrees to retain the Consultant to act
-------------------
in a consulting capacity to the Company, and the Consultant hereby agrees to
provide services to the Company, for a term of eighteen (18) months commencing
on January 5, 1996 and ending on July 4, 1997.
2. Duties of Consultant. The Consultant agrees to provide the following
--------------------
specified consulting services through it's officers and employees during the
term specified in Section 1.:
(a) Advise and assist the Company in developing and implementing
appropriate plans and materials for presenting the Company and its business
plans, strategy and personnel to the financial community, establishing an image
for the Company in the financial community, and creating the foundation for
subsequent financial public relations efforts;
(b) Introduce the Company to the financial community;
(c) With the cooperation of the Company, maintain an awareness during the
term of this Agreement of the Company's plans, strategy and personnel, as they
may evolve during such period, and advise and assist the Company in
communicating appropriate information regarding such plans, strategy and
personnel to the financial community;
(d) Assist and advise the Company with respect to its (i) corporate
finance activities, (ii) stockholder and investor relations, (iii) relations
with brokers, dealers, analysts and other investment professionals, and (iv)
financial public relations generally;
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(e) Perform the functions generally assigned to investor/stockholder
relations and public relations departments in major corporations, including
responding to telephone and written inquiries (which may be referred to the
Consultant by the Company); preparing or reviewing press releases, reports and
other communications with or to shareholders, the investment community and the
general public; advising with respect to the timing, form, distribution and
other matters related to such releases, reports and communications; and
consulting with respect to corporate symbols, logos, names, the presentation of
such symbols, logos and names, and other matters relating to corporate image;
(f) Disseminate information regarding the Company to shareholders,
brokers, dealers, other investment community professionals and the general
investment public;
(g) Conduct meetings, in person or by telephone, with brokers, dealers,
analysts and other investment professionals to advise them of the Company's
plans, goals and activities, and assist the Company in preparing for press
conferences and other forums involving the media, investment community
professionals and the general investment public;
(h) At the Company's request, review business plans, strategies, mission
statements budgets, proposed transactions and other plans for the purpose of
advising the Company of the investment community implications thereof;
(i) Otherwise perform as the Company's financial relations and public
relations consultant; and,
(j) Make public communications and disclosures regarding the Company only
within the scope of the authorizations conferred by the Company and not make any
such communications or disclosures of information not provided or authorized by
the Company.
3. Allocation of Time and Energies. The Consultant hereby promises to
-------------------------------
perform and discharge well and faithfully the responsibilities which may be
assigned to the Consultant from time to time by the officers and duly authorized
representatives of the Company in connection with the conduct of its financial
and investor public relations and communications activities, so long as such
activities are in compliance with applicable securities laws and regulations.
Consultant shall diligently and thoroughly provide the consulting services
required hereunder. Although no specific hours-per-day requirement will be
required, Consultant and the Company agree that Consultant will perform the
duties set forth hereinabove in a diligent and professional manner. At the
request of the Company, the Consultant will inform the Company of its specific
activities concerning the Company. The parties acknowledge and agree that a
disproportionately large amount of the effort to be expended and the costs to be
incurred by the Consultant and the benefits to be received by the Company are
expected to occur upon and shortly after, and in any event, within four or five
months of the effectiveness of this Agreement.
4. Remuneration. As full and complete compensation for services described
------------
in this Agreement, the Company shall compensate Consultant as follows:
4.1 For undertaking this engagement and for other good and valuable
consideration, the Company agrees to issue and deliver to the Consultant a
"Commencement Bonus" payable in the form of 2,000,000 options (the
"Options") entitling the Consultant the right to purchase shares of the
Company's Common Stock. The form and content of the Option
2
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agreement will be acceptable to both the Company and the Consultant. Among
other things, the Options will contain the following terms and conditions:
1. the Options will be excercisable at a price of One Dollar and
Eight One Cents ($1.81);
2. the Options will be excercisable at any time for a five year
period;
3. the Options will contain no call and/or redemption provisions;
4. the shares of common stock issuable upon the exercise of the
Options will be included in the next appropriate registration
done by the Company, which shall be no later than January 31,
1997. All registration costs shall be borne solely by the
Company.
This Commencement Bonus shall be issued to the Consultant promptly
following execution of this Agreement and shall, when issued and delivered
to Consultant, be fully paid and non-assessable. The Company understands
and agrees that Consultant has foregone significant opportunities to accept
this engagement and that the Company derives substantial benefit from the
execution of this Agreement and the ability to announce its relationship
with Consultant. The 2,000,000 Options issued as a Commencement Bonus,
therefore, constitute payment for Consultant's agreement to represent the
Company and are a nonrefundable, non-apportionable, and non-ratable
retainer; such Options are not a prepayment for future services. 1,500,000
of the Options issued pursuant to this Agreement shall be evidenced by an
option agreement(s) issued in the name of Liviakis Financial
Communications, Inc. and 500,000 of the Options issued pursuant to this
Agreement shall be evidenced by an option agreement(s) issued in the name
of Robert B. Prag ("Prag").
4.2 Consultant and Prag (hereinafter referred to as "Consultants") acknowledges
that both the Options and the shares issuable upon the exercise of the
Options to be issued pursuant to this Agreement (the "Shares") have not
been registered under the Securities Act of 1933, and accordingly are
"restricted securities" within the meaning of Rule 144 of the Act. As such,
the Options and the Shares may not be resold or transferred unless the
Company has received an opinion of counsel reasonably satisfactory to the
Company that such resale or transfer is exempt from the registration
requirements of that Act.
4.3 In connection with the acquisition of Options hereunder, the Consultants
represent and warrants to the Company as follows:
(a) Consultants acknowledge that the Consultants have been afforded the
opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning an investment
in the Shares, and any additional information which the Consultants have
requested.
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(b) Consultants' investment in restricted securities is reasonable in
relation to the Consultants' net worth, which is in excess of ten (10)
times the Consultants' cost basis in the Shares. Consultants have had
experience in investments in restricted and publicly traded securities, and
Consultants have had experience in investments in speculative securities
and other investments which involve the risk of loss of investment.
Consultants acknowledges that an investment in the Warrants is speculative
and involves the risk of loss. Consultants have the requisite knowledge to
assess the relative merits and risks of this investment without the
necessity of relying upon other advisors, and Consultants can afford the
risk of loss of his entire investment in the Options.
Consultants are (i) accredited investors, as that term is defined in
Regulation D promulgated under the Securities Act of 1933, and (ii) a
purchaser described in Section 25102(f)(2) of the California Corporate
Securities Law of 1968, as amended.
(c) Consultants are acquiring the Options for the Consultants' own account
for long-term investment and not with a view toward resale or distribution
thereof except in accordance with applicable securities laws.
5. Expenses. Consultant agrees to pay for all its expenses (phone, mailing,
--------
labor, etc.), other than extraordinary items (travel required by/or specifically
requested by the Company, luncheons or dinners to large groups of investment
professionals, mass faxing to a sizable percentage of the Company's
constituents, investor conference calls, etc.) approved by the Company prior to
its incurring an obligation for reimbursement.
6. Indemnification. The Company warrants and represents that all oral
---------------
communications, written documents or materials, other than those designated by
the Company to the Consultant as "confidential" or "Company private", furnished
to Consultant by the Company with respect to financial affairs, operations,
profitability and strategic planning of the Company are accurate and Consultant
may rely upon the accuracy thereof without independent investigation. The
Company will protect, indemnify and hold harmless Consultant against any claims
or litigation including any damages, liability, cost and reasonable attorney's
fees with respect thereto resulting from Consultant's communication or
dissemination of any said information, documents or materials not designated by
the Company to the Consultant as "confidential" or "Company private", excluding
any such claims or litigation resulting from Consultant's communication or
dissemination of information not provided or authorized by the Company. To the
extent feasible, the Company agrees to make Consultant an additional insured on
any and all commercial liability and directors and officers liability insurance
policies and to provide Consultant with current Certificates of Insurance
reflecting the same.
7. Representations. Consultant represents that he is not required to maintain
---------------
any licenses and registrations under federal or any state regulations necessary
to perform the services set forth herein. Consultant acknowledges that, to the
best of his knowledge, the performance of the services set forth under this
Agreement will not violate any rule or provision of any regulatory agency having
jurisdiction over Consultant. Consultant acknowledges that, to the best of his
knowledge, Consultant is not the subject of any investigation, claim, decree or
judgment
4
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involving any violation of the SEC or securities laws. Consultant further
acknowledges that he is not a securities Broker Dealer or a registered
investment advisor.
8. Legal Representation. The Company acknowledges that it has been
--------------------
represented by independent legal counsel in the preparation of this Agreement.
Consultant represents that he has consulted with independent legal counsel
and/or tax, financial and business advisors, to the extent the Consultant deemed
necessary.
9. Status as Independent Contractor. Consultant's engagement pursuant to this
--------------------------------
Agreement shall be as independent contractor, and not as an employee, officer or
other agent of the Company. Neither party to this Agreement shall represent or
hold itself out to be the employer or employee of the other. Consultant further
acknowledges the consideration provided hereinabove is a gross amount of
consideration and that the Company will not withhold from such consideration any
amounts as to income taxes, social security payments or any other payroll taxes.
All such income taxes and other such payment shall be made or provided for by
Consultant and the Company shall have no responsibility or duties regarding such
matters. Neither the Company or the Consultant possess the authority to bind
each other in any agreements without the express written consent of the entity
to be bound.
10. Attorney's Fee. If any legal action or any arbitration or other proceeding
--------------
is brought for the enforcement or interpretation of this Agreement, or because
of an alleged dispute, breach, default or misrepresentation in connection with
or related to this Agreement, the successful or prevailing party shall be
entitled to recover reasonable attorneys' fees and other costs in connection
with that action or proceeding, in addition to any other relief to which it or
they may be entitled.
11. Waiver. The waiver by either party of a breach of any provision of this
------
Agreement by the other party shall not operate or be construed as a waiver of
any subsequent breach by such other party.
12. Notices. All notices, requests, and other communications hereunder shall be
-------
deemed to be duly given if sent by U.S. mail, postage prepaid, addressed to the
other party at the address as set forth herein below:
To the Company: Dr. Johnny R. Thomas
President & CEO
AgriBiotech, Inc.
Quail Park West
2700 Sunset Road; #25
Las Vegas, NV 89120
To the Consultant: Liviakis Financial Communications, Inc.
John M. Liviakis, President
2118 "P" Street; Suite C
Sacramento, California 95816
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It is understood that either party may change the address to which notices
for it shall be addressed by providing notice of such change to the other party
in the manner set forth in this paragraph.
13. Choice of Law, Jurisdiction and Venue. This Agreement shall be governed
-------------------------------------
by, construed and enforced in accordance with the laws of the State of
California. The parties agree that Sacramento County, CA. will be the venue of
any dispute and will have jurisdiction over all parties.
14. Arbitration. Any controversy or claim arising out of or relating to this
-----------
Agreement, or the alleged breach thereof, or relating to Consultant's activities
or remuneration under this Agreement, shall be settled by binding arbitration in
California, in accordance with the applicable rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator(s) shall be
binding on the parties and may be entered in any court having jurisdiction
thereof. The provisions of Title 9 of Part 3 of the California Code of Civil
Procedure, including section 1283.05. and successor statutes, permitting
expanded discovery proceedings shall be applicable to all disputes that are
arbitrated under this paragraph.
15. Third Party Fees. Consultant will not accept from any third parties any
----------------
fees or other remuneration related to services to be performed under this
Agreement, except with the prior written consent of the Company.
16. Complete Agreement. This Agreement instrument contains the entire agreement
------------------
of the parties relating to the subject matter hereof. This Agreement and its
terms may not be changed orally but only by an agreement in writing signed by
the party against whom enforcement of any waiver, change, modification,
extension or discharge is sought.
AGREED TO:
"Company" AGRIBIOTECH, INC.
Date: 1/5/96 By: /s/ Johnny R. Thomas
------ ---------------------
Dr. Johnny R. Thomas
President & CEO
"Consultant" LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
Date: 1/5/96 By: /s/ John M. Liviakis /s/ Robert B. Prag
------ -------------------- --------------------
John M. Liviakis Robert B. Prag
President Sr. Vice President
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Page 35 of 35
EXHIBIT "10.4"
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JOINT FILING AGREEMENT
----------------------
Liviakis Financial Communications, Inc., John M. Liviakis, Renee A.
Liviakis and Robert B. Prag (collectively the "Parties" and individually a
"Party") hereby agree that they shall file a single statement on Schedule 13D
(as amended from time to time, the "Statement") with respect to their beneficial
ownership of shares of Common Stock (the "Securities") of AgriBioTech, Inc., a
Nevada corporation, on behalf of and in satisfaction of the obligations of all
of the Parties and that they shall amend the Statement from time to time as
required by rules promulgated under the Securities Exchange Act of 1934, as
amended.
Each of the Parties represents and warrants that such Party is eligible to
use Schedule 13D with respect to information regarding the Securities and agrees
to assume responsibility for the timely filing of the Statement and any
amendments thereto. Each of the Parties hereby assumes responsibility for the
completeness and accuracy of the information concerning such Party contained in
the Statement. No Party shall be responsible for the completeness and accuracy
of the information contained in the Statement concerning the other Parties,
unless such Party knows or has reason to believe that such information is
incomplete or inaccurate. The execution of the Statement, including any
amendment thereto, by one of the Parties shall constitute a representation by
such Party that the information concerning such Party contained therein is
complete and accurate and that such Party neither knows nor has any reason to
believe that the information concerning the other Parties contained therein is
either incomplete or inaccurate.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but which together shall constitute one and the same
instrument.
In Witness Whereof, the Parties have executed this Joint Filing Agreement
this tenth day of May, 1996.
LIVIAKIS FINANCIAL COMMUNICATIONS, INC.
By: /s/ John M. Liviakis
------------------------------------
/s/ John M. Liviakis
------------------------------------
John M. Liviakis
/s/ Renee A. Liviakis
------------------------------------
Renee A. Liviakis
/s/ Robert B. Prag
------------------------------------
Robert B. Prag
