<PAGE>
As filed with the Securities and Exchange Commission on December 12, 1997
Registration No. 333-33367
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
POST EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGRIBIOTECH, INC.
------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Nevada 85-0325742
- ------------------------------- ----------------
(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. [_]
<PAGE>
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
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<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, 148,402 Shs.(2) $2.16(2) $320,000 $96.97
$.001 par value
Common Stock, 4,000,000 Shs.(4) $7.47(3) $29,880,000 $9,054.55
$.001 par value
Common Stock, 1,225,000 Shs.(5) $2.12(6) $2,597,000 $895.52(7)
$.001 par value
Common Stock, 750,000 Shs.(8) $2.00(6) $1,500,000 $517.24(7)
$.001 par value
Common Stock, 125,000 Shs.(9) $2.25(6) $281,250 $85.23(10)
$.001 par value
Common Stock, 125,000 Shs.(9) $3.50(6) $437,500 $132.58(10)
$.001 par value
- --------------------------------------------------------------------------------
Total Registration Fee.......................................... $10,782.09(11)
</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) Issued by the Registrant in connection with the acquisition of Clark Seeds,
Inc.
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the closing sale price of the Common
Stock of the Registrant on August 4, 1997 on the Nasdaq National Market of
$7 15/32 per share.
(4) Issuable (i) in exchange for the assets and/or stock of entities to be
acquired by the Registrant, including approximately 1,500,000 anticipated
to be issued in connection with the Company's previously announced
acquisitions, for resale by the former shareholders of such acquired
companies or (ii) in original equity issuances by the Registrant.
(5) Issuable to Henry Ingalls, an officer of the Registrant, upon exercise of
transferrable stock options.
(6) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h)(1) based upon the per share exercise price.
(7) This amount was paid when the securities were first registered on the
Company's Registration Statement on Form S-8 No. 333-07123 (first filed
June 28, 1996).
<PAGE>
(8) Issuable to Kathleen L. Gillespie, an officer of the Registrant, upon
exercise of transferrable stock options.
(9) Issuable to Byron Ford, a former officer of the Registrant, upon exercise
of transferrable stock options.
(10) This amount was paid when the securities were first registered on the
Company's Registration Statement on Post Effective Amendment No. 1 to Form
S-8 No. 333-07123 (first filed on July 24, 1997).
(11) Of this amount, $1,630.57 was paid with Registration Statement No.
333-07123 and the remaining $9,151.52 is being paid with this Registration
Statement.
-------------------
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 Statements (File Numbers 33-
78470 and 333-13953) 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."
<PAGE>
PROSPECTUS
AGRIBIOTECH, INC.
6,373,402 Shares of Common Stock
This Prospectus pertains to 6,373,402 shares of Common Stock (the
"Shares"), $.001 par value per share, of AgriBioTech, Inc., a Nevada corporation
("ABT" or the "Company"). Of the 6,373,402 Shares: 148,402 Shares were issued to
the former shareholders of Clark Seeds, Inc.; an aggregate of 840,000 Shares
were issued to the former shareholders of Olsen Fennell Seeds, Inc. and 10,000
for fees in such acquisition; and 229,885 Shares were issued in connection with
the Company's acquisition of LaCrosse Seed Corporation; an aggregate of
2,225,000 Shares are issuable upon exercise of transferrable stock options
granted to officers of the Company; and 2,920,115 Shares are issuable by the
Company either (a) in exchange for the assets and/or stock of entities which may
be acquired by the Company, including 1,000,000 Shares anticipated to be issued
in connection with the Company's previously announced acquisition of Lofts Seed,
Inc., all of the foregoing Shares to be sold by the selling stockholders named
herein or by supplement (the "Selling Stockholders"), or (b) in registered
original equity issuances to qualified institutional buyers ("QIBs"),
institutional accredited investors and other accredited investors.
The Company will not receive any proceeds from the sale of the Shares by
the Selling Stockholders, although it will receive the exercise price of options
exercised under this Prospectus and in original equity issuances to QIBs and
other accredited investors at a price determined by a formula related to the
market price for the Company's Common Stock. It is anticipated that the Selling
Stockholders will offer shares of Common Stock for resale at prevailing prices
on the Nasdaq National Market ("Nasdaq"). See "Plan of Distribution." All
selling and other expenses incurred by individual Selling Stockholders will be
borne by such Selling Stockholders.
The Common Stock is traded on Nasdaq under the symbol "ABTX." On December
11, 1997, the closing sale price of the Common Stock as reported on Nasdaq was
$13.50 per share.
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 6.
----------
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 Prospectuses dated October 10,
1995 and October 18, 1996.
THE DATE OF THIS PROSPECTUS IS DECEMBER 12, 1997
<PAGE>
The registration of the Shares offered hereby is being effected in
connection with registration rights granted by the Company pursuant to the terms
of various asset 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 Shares and their respective legal expenses.
Commencing on the effective date of this Prospectus, the Shares may be sold
by the Company as original equity issuances, and/or 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 Shares. Sales of the Shares may be made on
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
Shares (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 Shares may
be deemed to be underwriting compensation under the Securities Act. The sale of
the Shares 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 Shares 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 the Northeast
Regional Office, Seven World Trade Center, New York, New York 10048, and at the
Midwest Regional Office, 500 West Madison Street, Chicago, Illinois 60611-2511.
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.
-2-
<PAGE>
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
Shares 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 Shares, 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 fiscal year
ended June 30, 1997 ("Form 10-KSB").
(2) The Company's Quarterly Report on Form 10-Q for the fiscal
quarters ended September 30, 1997 ("Form 10-Q").
(3) The Company's Current Reports on Form 8-K for October 30, 1996 (as
amended), May 15, 1997 (as amended), August 22, 1997 (as amended)
and October 22, 1997 ("Forms 8-K").
(4) The description of the Company's Common Stock, $.001 par value,
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 including any amendment or report filed for the purpose
of updating such information.
(5) The Company's Proxy Statement dated January 13, 1997.
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 superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
-3-
<PAGE>
The Company furnishes its shareholders and registered warrant holders 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" or "ABT") is the largest agricultural seed
company in the United States that specializes in developing, processing,
packaging and distributing varieties of forage and cool season turfgrass seeds.
Since January 1, 1995, the Company has completed 15 acquisitions and has grown
from essentially zero sales in calendar 1994 to a current annualized level of
net sales of approximately $155 million. The Company has also executed a letter
of intent and two definitive purchase agreements to acquire three additional
companies with aggregate annual net sales of approximately $125 million. The
Company's vertically integrated forage and turfgrass seed operations include
traditional genetic breeding and research and development programs for most
forage and cool season turfgrass species, seed processing plants that clean,
condition and package ABT's products, and national and international
distribution and sales networks (see "Recent Developments").
The Company was incorporated in 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.
THE OFFERING
<TABLE>
<S> <C>
Shares of Common Stock to be offered:................ 6,373,402 (1)
Shares of Common Stock issued and outstanding as
of December 8, 1997:................................ 26,796,350 (2)
</TABLE>
_______________
(1) Consists of (i) 148,402 shares of Common Stock issued to the former
shareholders of Clark Seeds, Inc.; an aggregate of 840,000 Shares issued to
the former shareholders of Olsen Fennell Seeds, Inc. and 10,000 for fees in
such acquisition; and 229,885 Shares issued in connection with the
Company's acquisition of LaCrosse Seed Corporation; (ii) 2,920,115 shares
of Common Stock reserved for issuance in connection with (a) future
acquisitions, including the pending acquisition of Lofts Seed, Inc. (see
"Recent Developments") or (b) in registered original equity issuances to
qualified institutional buyers ("QIBs"), institutional accredited investors
and other accredited investors; and (iii)
-4-
<PAGE>
an aggregate of 2,225,000 Shares issuable upon exercise of transferrable
stock options granted to officers of the Company.
(2) Based on 26,796,350 shares outstanding as of December 8, 1997, but does
not give effect to 5,062,766 shares of Common Stock reserved for issuance
upon exercise of stock options currently outstanding and an additional
496,400 shares of Common Stock issuable upon exercise of options available
for future grants under the 1994 Plan and; (ii) 560,179 shares of Common
Stock issuable upon exercise of Class C Warrants currently outstanding;
(iii) 400,000 shares of Common Stock reserved for issuances upon grant of
shares under the Bonus Plan; and (iv) 299,947 shares of Common Stock
issuable upon exercise of Preferred Stock outstanding.
Use of
Proceeds: The Company will not receive any proceeds from the sale of the
- --------- Securities offered hereby. The Company will receive an aggregate of
$4,815,750 if all options were exercised for which the underlying
Common Stock is registered under this Prospectus. In addition, the
Company will receive proceeds from original equity issuances to QIBs
and other accredited investors at a price determined by a formula
related to the market price for the Company's Common Stock. Such
proceeds will be used for working capital purposes, including, but
not limited to, the funding of potential acquisitions.
Risk
Factors: The Shares offered hereby are speculative and involve a high degree
- ------- of risk. The purchase of Shares offered hereby should be considered
only by those persons who can afford a loss of their investment.
See "Risk Factors."
RECENT DEVELOPMENTS
On December 3, 1997, ABT signed a binding definitive purchase agreement for
Lofts Seed, Inc. (including its operating division Great Western) and its
affiliated companies, Sunbelt Seed and Budd Seed (collectively "Lofts") one of
the nation's premier turfgrass seed companies, with combined annualized net
sales of approximately $75,000,000. Under the terms of the definitive agreement,
which is scheduled to close in early January 1998, ABT will acquire Lofts
effective January 1, 1998. The cost of the acquisition is 2,000,000 shares
(1,000,000 of which are to be registered and are anticipated to be issued
pursuant to this Prospectus) of ABT common stock (valued at $8.50 per share when
the letter of intent was signed) and approximately $17 million in cash.
On December 9, 1997, ABT signed a binding definitive purchase agreement for Seed
Corporation of America and Green Seed Company (collectively "Seedco"), a leading
East Coast forage and turfgrass seed distribution company, with combined
annualized sales of approximately $40,000,000. Under the terms of the definitive
agreement, which is scheduled to close in early January 1998, ABT will acquire
Seedco effective January 1, 1998. The cost of the acquisition is approximately
$10 million in cash.
-5-
<PAGE>
RISK FACTORS
In addition to considering the other information set forth in, or
incorporated by reference into, this Prospectus, prospective investors should
carefully consider the following factors in evaluating an investment in the
Company. This Prospectus, including the documents incorporated by reference
herein, contains forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933, as amended (the "Securities Act"). Also, documents
subsequently filed by the Company with the Commission, and incorporated herein
by reference will contain forward-looking statements. These include the
Company's historical lack of profitability, need to manage its growth, intense
competition in the seed industry, seasonality of quarterly results and other
risks detailed from time to time in the Company's SEC reports. Actual results
could differ materially from those projected in the forward-looking statements
as a result of the risk factors set forth below and the matters set forth or
incorporated in the Prospectus generally. The Company cautions the reader,
however, that this list of factors may not be exhaustive, particularly with
respect to future filings. In analyzing an investment in the securities offered
hereby, prospective investors should carefully consider, along with the other
matters referred to herein, the risk factors described below.
Lack of Historical Profitability. The Company has reported only two
--------------------------------
profitable quarters, both in calendar 1997, since becoming a publicly owned
company in September 1993. Potential investors should be aware that over the
life of the Company, the Company has not reported a profitable fiscal year and
has failed to show consistent profitability. Although the Company has reported
recent profits, there can be no assurance that the Company will achieve
profitability in the future or maintain consistent profitability. Furthermore,
the Company had an accumulated deficit of $11,640,541 through September 30,
1997. The Company's prospects must therefore be evaluated in light of the
problems, expenses, delays and complications associated with operating, managing
and integrating a large group of disparate businesses and/or subsidiaries. See
"Management's Discussion and Analysis or Plan of Operations" in the Form 10-KSB
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations" in the Form 10-Q (collectively "MD & A") and the Financial
Statements in the Form 10-KSB and in the Form 10-Q.
Ability to Manage Growth. The Company has acquired all or part of 15 seed
------------------------
companies since January 1, 1995, has signed a letter of intent and two
definitive purchase agreements to acquire three additional seed companies and
intends to expand current levels of operations. The Company's rapid growth
since January 1995 has placed and may continue to place significant demands on
the Company's management, technical, financial and other resources. In
addition, successful expansion of the Company's operations will depend on, among
other things, its ability to attract, hire and retain skilled management and
other personnel, 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 improve operational, financial and
management information systems, procedures and controls. There can be no
assurance that the Company will be able to manage its future growth effectively,
and failure to do so could have a material adverse effect on the Company's
business, financial condition and/or operating results. See "MD & A" and
"Business - Acquisition Program" in the Form 10-KSB.
Integration of Acquisitions. The Company has acquired all or part of 15
---------------------------
seed companies since January 1, 1995, and intends to expand current levels of
operations through additional acquisitions. A key component of the Company's
future success depends upon its ability to combine the operations of its
acquired subsidiaries into a coherent vertically integrated company. The
Company's acquired subsidiaries represent the full spectrum of the forage and
turfgrass seed production, processing, sales and distribution process. There
can be no assurance that the Company will be able to effectively integrate the
acquired subsidiaries, and failure to do so could have a material adverse effect
on the Company's business, financial condition and/or operating results. See "MD
& A" and "Business - Acquisition Program" in the Form 10-KSB.
No Assurance of Future Growth and Acquisition Strategy. The Company has
------------------------------------------------------
experienced significant growth in net sales, from essentially zero sales in
calendar 1994 to $66 million in Fiscal 1997, with a current annualized level of
net sales of approximately $155 million per annum exclusive of $125 million of
net sales from pending acquisitions. Although a portion of such growth is
attributed to year-over-year sales growth of companies acquired more than one
year ago, the substantial portion of such growth has resulted from the Company's
acquisitions. The Company's future growth will depend upon its ability to
continue to make acquisitions, as well as increase sales from existing
operations, neither of which can be assured.
-6-
<PAGE>
The Company is unable to predict whether and when any prospective
acquisition candidate will become available or the likelihood that any
acquisition will be completed. The Company competes for acquisition candidates
with many entities that have substantially greater resources than the Company.
While the Company has been able to complete 15 acquisitions during the last
three years, the Company expects to face intensified competition, as the
Company's acquisition program has become well known in the seed industry. The
Company expects that the costs of future acquisitions may increase and the more
profitable companies will command a premium. There can be no assurance that the
Company will be able to successfully identify suitable acquisition candidates,
complete acquisitions and integrate and expand acquired companies into its
operations. Once integrated, there can be no assurance that acquired businesses
will achieve comparable levels of revenue, profitability, or productivity as
existed prior to their acquisition. There have been previous unsuccessful
attempts by others to consolidate the forage and/or turfgrass seed sectors. To
the Company's knowledge, however, each of these attempts preceded the
developments concerning the Plant Variety Protection Act (the "PVPA") discussed
under "Business - Proprietary Information" in the Form 10-KSB. Nevertheless, in
view of the fact that no other company has successfully vertically integrated
and consolidated the forage and turfgrass seed sectors, there can be no
assurance the Company will be successful in its efforts.
Need for Future Capital. The Company's capital requirements have been and
-----------------------
are expected to continue to be significant. The Company plans to use a
substantial portion of the net proceeds of this offering to fund both internal
growth and pending acquisitions. There can be no assurance that the Company
will be able to fund its planned growth, particularly if the Company is able to
negotiate and execute letters of intent to acquire additional companies. The
Company's future capital requirements will depend on numerous factors including,
but not limited to, the timing and cost of any future acquisitions and the time
and cost involved in integrating the Company's acquisitions and growing the
Company's existing operations. See "MD & A."
Leverage. The Company has incurred a substantial amount of indebtedness in
--------
connection with certain of its acquisitions during the course of the last three
years. ABT remains leveraged and its present debt service requirements are
substantial. The effect of such leverage may negatively impact, without
limitation, the ability of the Company (i) to obtain additional financing on
favorable terms; (ii) to service existing debt; and (iii) to comply with
financial and other covenants and operating restrictions imposed by its existing
long-term indebtedness.
The ability of ABT to satisfy such obligations will primarily depend upon
the future financial and operating performance of its operating subsidiaries and
upon the Company's ability to renew or refinance bank borrowings and/or to raise
additional equity capital. The Company's future performance is dependent upon
financial, business and other economic factors affecting the Company and
agriculture in particular, many of which are beyond the control of the Company
and its subsidiaries. See "MD & A."
Competition. The seed industry and the field of agricultural technology
-----------
are both highly competitive. The Company competes in the forage and turfgrass
seed sectors primarily on the basis of price, product quality and service. The
major agricultural seed companies in the United States focus their sales around
hybrid seed corn (Pioneer Hi-Bred International, DEKALB Genetics Corporation,
Novartis AG and Mycogen Corporation), cotton seed (Delta and Pine Land Company)
and other grain crops. In the past, these companies have treated forage and
turfgrass seeds as ancillary crops when they compete in the marketplace. This
is the opposite of the Company's business strategy, which is to treat forage and
turfgrass seed as its primary product. Therefore, the Company's major
competitors in the forage and turfgrass seed sectors currently are large
regional companies and numerous small family seed businesses. However, any of
the major agricultural seed companies may decide to compete directly against the
Company by intensifying their efforts in the forage and turfgrass seed sectors.
Management believes that as ABT's acquisition strategy becomes better known in
the seed industry, the competition for acquisitions, sales, facilities and
personnel will intensify. The largest United States alfalfa competitors are
Cenex/Land O' Lakes/Research Seed, Helena/AgriPro, Pioneer and Cal/West Seeds.
The largest competitors for other forages are FFR Research and its farm
cooperative members. There are also small family owned businesses that are
strong competitors in small geographic areas. The largest producers and
marketers of turfgrass seed (excluding the Company) in the United States are
Pennington Seed and O.M. Scott.
-7-
<PAGE>
The Company expects that it will have to compete directly against companies
with substantially greater financial, marketing, personnel and research and
development resources than those of the Company. There can be no assurance that
the Company will be able to compete successfully against such companies. These
competitive factors could have a material adverse effect on the Company's
business, results of operation and/or financial condition. See "Business-
Competition" in the Form 10-KSB.
Dependence on Key Personnel. The success of the Company is largely
---------------------------
dependent upon the efforts, abilities and expertise of Johnny R. Thomas,
President and Chief Executive Officer, as well as each of the Company's four
vice presidents. The Company has entered into at-will employment agreements
with each of these persons. Each of these officers devotes substantially all of
his or her business time to the Company's affairs. The loss of any key
personnel could have a material adverse effect on the Company's business,
financial condition and results of operations. The Company's prospects depend
upon its ability to attract and retain qualified marketing, financial,
management information service, and other technical personnel. Competition for
such personnel is intense and there can be no assurance that the Company will be
successful in attracting or retaining such personnel. See "Management" in the
Form 10-KSB.
Seasonality of Quarterly Results. The seed business is highly seasonal and
--------------------------------
the Company's business is subject to wide seasonal fluctuations. Weather
affects commodity prices, seed yields and planting decisions by farmers.
Results of operations from quarter to quarter will not necessarily reflect the
results for the entire year and are not necessarily indicative of results which
may be expected for any other interim period. Management believes that
quarterly sales will continue to fluctuate significantly depending on, among
other things, the breakdown of the Company's sales between the two sectors for
any specific period of time. See "MD & A."
Cyclical Nature of Agricultural Products. Agricultural products,
----------------------------------------
including forage and turfgrass seed, generally follow cyclical business
patterns. Most 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, resulting
in larger fluctuations in results of operations between quarters.
Development of New Products. The Company continues to seek to develop
---------------------------
new, genetically superior forage and turfgrass varieties. The Company believes
that the development and marketing of such elite varieties will play a key role
in the Company's success. There can be no assurance that the Company will
develop such genetically superior strains either its own or with industry
partners. If the Company is unable to develop new product lines, this could
have an adverse effect on the Company's business, financial condition and
results of operations. See "Business--Research and Development" in the Form 10-
KSB.
Market Acceptance. Potential investors should be aware that even if the
-----------------
Company is successful in developing genetically superior strains as stated
above, there can be no assurance that there will be a market for such products;
or, if such a market develops that the Company will be able to recoup the costs
associated with the development of these products. If the Company is unable to
effectively market products it has developed, at prices sufficient to (i) cover
the Company's costs and (ii) generate adequate return on the Company's capital,
this could have an adverse effect on the Company's business, financial condition
and results of operations.
Reliance on Patents and Proprietary Rights. The Company owns proprietary
------------------------------------------
varieties for a number of forage and turfgrass species that are protected under
the PVPA and is seeking to acquire and/or develop other varieties protected by
the PVPA. The PVPA prohibits others from selling seed of those proprietary
varieties for 20 years, after which such protection expires. The inability to
develop protected varieties could have an adverse impact on the Company's
business, financial condition and results of operations. There can be no
assurance that any proprietary rights owned by the Company or licensed from
third parties, will not be challenged, invalidated, or circumvented, or that the
rights held by the Company will provide any competitive advantage, or that the
Company's competitors will not possess protected varieties that perform better
than those of the Company. The Company could also incur substantial costs in
asserting its proprietary rights against others, including any such rights
obtained from third parties, and/or defending any infringement suits brought
against the Company. See "Business - Proprietary Rights" in the Form 10-KSB.
-8-
<PAGE>
Biotechnology Risks. Biotechnological breakthroughs have been introduced
-------------------
into other seed sectors such as corn, soybeans and cotton. The Company believes
that similar biotechnology breakthroughs in the forage and turfgrass sectors
should follow. The Company operates a traditional genetic breeding program and
is seeking to become the licensee or partner of choice for owners of
biotechnology genes, in order to accelerate the introduction of seeds with
value-added characteristics developed through biotechnology. There can be no
assurance that (i) the Company's genetic breeding program will produce
biotechnology breakthroughs; (ii) the Company will succeed in its efforts to
license biotechnology genes and develop partnerships with owners of
biotechnology genes; (iii) commercially feasible products will ultimately be
developed; or (iv) genetically engineered products will gain market acceptance.
If the Company is unable to effectively develop or market products through
biotechnology at prices sufficient to recover its costs and generate adequate
returns on capital, the Company's business, financial condition and results of
operations may be adversely affected. See "Business -- Biotechnology Access" in
the Form 10-KSB.
Government Regulation. The Company's operations are directly and
----------------------
indirectly subject to various Federal and state environmental controls and
regulations. Management believes that the Company is in substantial compliance
with existing environmental regulations, but can give no assurance that it may
maintain such compliance without incurring substantial cost and expense if
additional laws and regulations are enacted or promulgated.
While not affecting the Company's operations, certain government
regulations may have an effect on the demand for the Company's products. For
example, from time to time the Federal governmental has imposed restrictions on
the sale of certain commodities to certain countries, including commodities, the
seed for which are produced by the Company. In addition, United States
government agricultural policies are designed to maintain a balanced supply and
demand for certain commodities by regulating planted acreage through set-asides
in certain crops. Adherence to set-asides is the basis for farmer's eligibility
for government subsidy payments and other benefits. An increase in the set-aside
for a crop generally reduces farmer demand for seed for that crop, and a
decrease in the set-aside generally increases demand for seed. In addition,
other government policies, such as subsidizing export sales of certain
commodities, ultimately affect seed sales. Certain of the Company's sales of
seed are subject to demand swings resulting from changes in these programs.
Adoption of regulations regarding the allocation of water in California,
Arizona and other states with limited water supplies could result in a reduction
of the number of acres planted with various crops, reducing the demand for the
Company's products in those states.
The development of seed of genetically altered plants, is regulated by the
Environmental Protection Agency, the U.S. Department of Agriculture, the Food
and Drug Administration and various state agencies. The Federal agencies require
permits for field testing and EPA regulates insecticide and herbicide products.
The Company is not aware of any pending legislation that would materially impact
either its traditional product development or commercialization of seed from
genetically altered plants. There can be no assurance that regulatory agencies
administering existing or future regulations or legislation will allow the
Company to produce and market genetically engineered seed, if at all, in a
timely manner or under technically or commercially feasible conditions.
Control by Management and Current Stockholders. Management of the Company
----------------------------------------------
owned 4,232,231 (approximately 15.8%) of the 26,758,350 shares of the Company's
Common Stock outstanding as of December 8, 1997, and would own 23.2% after
giving full effect to the exercise of their options and Warrants. After giving
effect to the sale of 2,920,115 additional shares of Common Stock offered
hereby, management of the Company would own approximately 14.3% of the
29,678,465 shares of Common Stock then outstanding. Accordingly, the Company's
present management may be able to significantly influence or 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 "Principal Stockholders" in the Form 10-
KSB.
-9-
<PAGE>
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.
At December 8, 1997, the Company had 1,100 shares of Convertible Preferred
Stock issued and outstanding, with an aggregate liquidation preference of
$1,268,422 and convertible into 299,947 shares of Common Stock.
Although there are no present plans, agreements, commitments or
undertakings with respect to the Company's issuance of any additional shares of
Preferred Stock, except as may be used for potential acquisitions, any such
issuances may be deemed to be an anti-takeover device which could be utilized as
a method of discouraging, delaying or preventing a change in control of the
Company or to dilute the public ownership of the Company and give clear control
of the Company to current Management and there can be no assurance that the
Company will not issue such shares.
Adverse Effect of Potential Future Sales of Common Stock. Of the Company's
--------------------------------------------------------
26,758,350 issued and outstanding shares of Common Stock as of December 8, 1997,
approximately 1,400,000 shares are "restricted securities" as that term is
defined under Rule 144 under the Securities Act. All of these restricted shares
have been registered for resale under the Securities Act. As of December 8,
1997, an additional 5,922,892, shares of Common Stock were issuable without
restriction upon conversion of outstanding shares of convertible Preferred
Stock, options or warrants and are either exempt from registration or have been
registered under the Securities Act. The Company cannot predict the effect that
sales made under Rule 144, sales made pursuant to registration statements, or
otherwise, may have on any then prevailing market price. The Company is unable
to predict the effect that sales made pursuant to this and other Registration
Statements, Rule 144, or otherwise, may have on the then existing market price
of the Company's securities. The possibility exists that the sale of any of
these Securities, or even the potential of such sales, may be expected to have a
depressive effect on the price of the Company's securities in any public trading
market. This could impair the Company's ability to raise additional equity
capital. See "Principal Stockholders" in the Form 10-KSB.
Public Market Risks; Possible Volatility of Securities Prices. The market
-------------------------------------------------------------
price for the Company's securities has been and may continue to be volatile.
Factors such as the Company's financial results, financing efforts, changes in
earnings estimates by analysts, conditions in the Company's business and various
factors affecting the agricultural industry generally may have a significant
impact on the market price of the Company's securities. Additionally, in the
last several years, the stock market has experienced a high level of price and
volume volatility, and market prices for many companies, particularly small and
emerging growth companies, the common stock of which trades in the over-the-
counter market, have experienced wide price fluctuations and volatility which
have not necessarily been related to the operating performance of such companies
themselves. Any such fluctuations or general economic and market trends, could
adversely affect the price of the Company's securities. In view of the
foregoing factors, in some future quarters 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 securities would likely be materially
adversely affected. See "Price Range of Common Stock" in the Form 10-KSB.
Immediate Substantial Dilution. Original issuances of Common Stock under
------------------------------
this Prospectus will be purchased at a price determined by a formula related to
the market price for the Company's Common Stock. The Company's present
stockholders acquired their shares of Common Stock at costs substantially below
the anticipated offering price of the Common Stock to be sold in this offering.
Therefore, investors purchasing Common Stock in this offering will incur an
immediate and substantial dilution.
-10-
<PAGE>
SELLING STOCKHOLDERS
An aggregate of 148,402 Shares were issued to the former shareholders of
Clark Seeds, Inc.; an aggregate of 840,000 Shares were issued to the former
shareholders of Olsen Fennell Seeds, Inc. and 10,000 for fees in such
acquisition; and 229,885 Shares were issued in connection with the Company's
acquisition of LaCrosse Seed Corporation. In addition, (i) 2,920,115 Shares are
issuable to (a) various persons in connection with future acquisitions by the
Company, including 1,000,000 shares anticipated to be issued in connection with
the Company's previously announced acquisition of Lofts Seed, Inc., or (b) in
registered original equity issuances to qualified institutional buyers ("QIBs"),
institutional accredited investors and other accredited investors; and (ii) an
aggregate of 2,225,000 Shares are issuable to officers of the Company upon
exercise of transferrable options. The transferees will become Selling
Stockholders by supplement to this Prospectus.
The following table sets forth information as of November 10, 1997, based
on information obtained from the Selling Stockholders named below, with respect
to the beneficial ownership of Shares being registered hereunder; the number of
Shares known to the Company to be held by each; the number of Shares 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 will be owned
after this offering.
<TABLE>
<CAPTION>
Percentage of Outstanding
Amount and Nature of Number of Shares to Shares Owned Before
Name Beneficial Ownership(1) be Sold (3) Offering(3)
---- ----------------------- ------------------- -------------------------
<S> <C> <C> <C>
Fred Clark(4) 219,627(5) 102,027(2) *
Brent Clark(4) 71,725(5) 27,825(2) *
Steven Jensen(4) 46,366(5) 9,275(2) *
Donald Morris(4) 62,599(5) 9,275(2) *
Greg S. Fennell 446,100(6) 386,100(2) 1.7%(6)
James E. Olsen 446,100(6) 386,100(2) 1.7%(6)
James L. Carnes 10,000 10,000 *
Ramy Commercial
Property, Inc. 108,334(7) 15,000(2) 0.4%(7)
LaCrosse Seed
Corporation 308,219(7) 214,885(2) 1.1%(7)
</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 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) The shares offered hereby are the subject of individual lock-up agreements.
-11- (Footnotes continued on following page)
<PAGE>
(3) Based on 26,796,350 shares of Common Stock issued and outstanding as of
December 8, 1997.
(4) This person was a shareholder of Clark Seeds, Inc. prior to its
acquisition by the Company and is now an employee of the Company.
(5) Includes less than 2,000 Shares underlying options currently
exercisable.
(6) Includes 60,000 shares of Common Stock issuable upon exercise of currently
exercisable stock options, but excludes an additional 250,000 shares of
Common Stock not currently issuable upon exercise of stock options.
(7) Includes an aggregate of 93,334 shares of Common Stock issued upon
exercise of stock options to Michael T. Ramy, Sr. and David P. Ramy, Sr.,
affiliates of Ramy Commercial Property, Inc. and LaCrosse Seed Corporation,
but excludes 186,666 shares of Common Stock not currently issuable upon
exercise of stock options.
DESCRIPTION OF SECURITIES
Authorized
The authorized capital stock of the Company consists of 50,000,000 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 900 shares were issued and outstanding as
of December 8, 1997 and 15,000 shares of Series C Convertible Preferred Stock
of which 200 shares were issued and outstanding as of December 8, 1997. The
following summary description of the Company's Common Stock 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 26,796,350 shares of Common Stock issued and outstanding as of
December 8, 1997 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. Management of the Company beneficially held
4,232,231 shares (15.8%) without giving effect to the exercise of their options
and warrants, as of December 8, 1997, 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.
-12-
<PAGE>
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Company's Common Stock is
Corporate Stock Transfer, Inc., Denver, Colorado.
PLAN OF DISTRIBUTION
A portion of the Shares offered hereby are issuable by the Company in
original equity issuances to Qualified Institutional Buyers (as defined in
Rule 144A promulgated under the Securities Act), institutional accredited
investors (as defined in Rule 501(A)(1), (2), (3) or (7) promulgated under the
Securities Act) and/or other accredited investors. These Shares will be issued
without restrictive legend and, subject to any lock-up agreement entered into
with the Company, may be sold without restriction.
The remainder of the Shares may be sold from time to time directly by the
Selling Stockholders and/or by their assignees, transferees, pledgees or other
successors for their own accounts and not for the account of the Company.
Alternatively, the Selling Stockholders may from time to time offer the Shares
through underwriters, dealers or agents. The distribution of the Shares 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, donees,
pledgees or other successors in interest through whom the Shares are sold
may be deemed "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, as amended (the "Act"), with respect to the Shares
offered and any profits realized or commissions received may be deemed
underwriting compensation. Registration of a portion of the Shares 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 Shares to the public
except as described hereinafter. The Company will not pay, 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.
There can be no assurance that any of the Selling Stockholders will sell
any or all of the Shares of Common Stock offered by them hereunder.
The sale of the Shares 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 Shares 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.
-13-
<PAGE>
Under the Exchange Act, and the regulations thereunder, any person engaged
in a distribution of the Shares 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 five
business 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, Regulation M, in connection with
transactions in the shares, which provisions may limit the timing of purchases
and sales of Shares 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 Shares 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 43,823 shares of the Company's Common Stock and individual
members of the firm own additional shares of Common Stock.
EXPERTS
The consolidated financial statements of AgriBioTech, Inc. as of June 30,
1997 and 1996 and for the years ended June 30, 1997 and 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.
The combined financial statements of Germain's Inc. and W-L Research, Inc.
as of September 30, 1995 and September 30, 1994 and for each of the years in the
two year period ended September 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.
The consolidated financial statements of E.F. Burlingham & Sons as of
December 31, 1996 and for the year then ended, 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.
The financial statements of Olsen-Fennell Seeds, Inc. as of December 31,
1996 and for the year then ended 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.
-14-
<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......................... $ 5,852.56
Printing and Engraving Expenses........ 5,000.00
Legal Fees and Expenses................ 20,000.00
Accounting Fees and Expenses........... 5,000.00
Miscellaneous.......................... 4,147.44
----------
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 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 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
II-1
<PAGE>
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 subsection 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 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.
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
<PAGE>
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.
(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
II-3
<PAGE>
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 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 judgement 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
II-4
<PAGE>
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
Exhibit No. Description
- ---------- -----------
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)
- ------------------
* Previously filed with this Registration Statement.
** Filed with this Post-Effective Amendment.
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.
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<PAGE>
(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 December 12,
1997.
AGRIBIOTECH, INC.
By: /s/ Henry A. Ingalls
---------------------------
Henry A. Ingalls, Vice President
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the 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) December 12, 1997
-------------------- and Director
Johnny R. Thomas
/s/ Henry A. Ingalls Vice President and Treasurer (Principal December 12, 1997
-------------------- Financial and Accounting Officer)
Henry A. Ingalls
*/s/ Scott J. Loomis Vice President and Director December 12, 1997
-------------------
Scott J. Loomis
*/s/ John C. Francis Vice President, Secretary and Director December 12, 1997
-------------------
John C. Francis
*/s/ Kent Schulze Director December 12, 1997
----------------
Kent Schulze
*/s/ James Hopkins Director December 12, 1997
-----------------
James Hopkins
</TABLE>
*/s/ Henry A. Ingalls
--------------------
Henry A. Ingalls, as
Attorney-in-fact for each of
the above-named persons
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<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our reports related to the consolidated financial
statements of AgriBioTech, Inc., the combined financial statements of Germain's,
Inc. and W-L Research, Inc., the consolidated financial statements of E.F.
Burlingham & Sons and the financial statements of Olsen-Fennell Seeds, Inc.,
incorporated herein by reference and to the reference to our firm under the
heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
December 12, 1997
