<PAGE>
As filed with the Securities and Exchange Commission on August 11, 1997
Registration No. 333-_____
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGRIBIOTECH, INC.
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(Exact Name of Registrant as Specified in its Charter)
Nevada 85-0325742
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
(702) 798-1969
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(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
Dr. Johnny R. Thomas, President
AgriBioTech, Inc.
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
(702) 798-1969
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(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies to:
Elliot H. Lutzker, Esq.
Snow Becker Krauss P.C.
605 Third Avenue
New York, New York 10158
Tel: (212) 687-3860 Fax: (212) 949-7052
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
<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
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Total Registration Fee.....................................................$10,782.09(11)
</TABLE>
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(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 in exchange for the assets and/or stock of entities to be acquired
by the Registrant, including approximately 1,500,000 participated to be
issued in connection with the Company's previously announced acquisitions.
(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 Bryon Ford, an 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.
----------------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
--------------------
Pursuant to Rule 429 under the Act, the Prospectus included as a part of
this Registration Statement shall be deemed to be a combined prospectus which
shall also relate to the Registrant's Registration 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>
PRELIMINARY PROSPECTUS - SUBJECT TO COMPLETION
DATED AUGUST 11, 1997
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"), that may be sold by the selling stockholders named herein (the
"Selling Stockholders"). Of the 6,373,402 Shares: 148,402 Shares were issued to
the former shareholders of Clark Seeds, Inc.; an aggregate of 2,225,000 Shares
are issuable upon exercise of transferrable stock options granted to officers of
the Company; and 4,000,000 Shares are issuable by the Company in exchange for
the assets and/or stock of entities which may be acquired by the Company,
including approximately 1,500,000 Shares anticipated to be issued in connection
with the Company's previously announced acquisitions.
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. 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 August
8, 1997, the closing sale price of the Common Stock as reported on Nasdaq was
$8 3/16 per share.
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 6.
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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 AUGUST __, 1997
<PAGE>
The registration of the Securities offered hereby is being effected in
connection with registration rights granted by the Company pursuant to the terms
of various 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 Securities and their respective legal expenses.
Commencing on the effective date of this Prospectus, the Securities may be
sold, from time to time, by the Selling Stockholders directly to purchasers,
pledged or, alternatively, may be offered through agents, brokers, dealers or
underwriters, who may receive compensation in the form of commissions or
discounts from the Selling Stockholders or purchasers of the Securities. Sales
of the Shares may be made on Nasdaq, in privately negotiated transactions or
otherwise, and such sales may be made at the market price prevailing at the time
of sale, a price related to such prevailing market price or at a negotiated
price.
Any brokers, dealers or agents that participate in the distribution of the
Securities (the "Offering") may be deemed to be underwriters under Section 2(11)
of the Securities Act of 1933, as amended (the "Securities Act"), and any
commissions or discounts received by them on the resale of such Securities may
be deemed to be underwriting compensation under the Securities Act. The sale of
the Securities by the Selling Stockholders is subject to the prospectus delivery
and other requirements of the Securities Act. See "Plan of Distribution."
No person has been authorized to give any information or to make any
representations in connection with the Offering other than those contained in
this Prospectus and, if given or made, such other information and
representations must not be relied upon as having been authorized by the
Company. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
This Prospectus does not constitute an offer to sell, or a solicitation of an
offer to buy, the Securities in any circumstances in which such offer or
solicitation is unlawful.
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company may be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices located at 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.
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<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
Securities offered hereby. This Prospectus, filed as part of the Registration
Statement, does not contain all the information set forth in the Registration
Statement and the exhibits thereto, certain portions of which have been omitted,
as permitted by the rules and regulations of the Commission. For further
information with respect to the Company and the Securities, reference is hereby
made to such Registration Statement and the exhibits thereto or incorporated
therein by reference. The Registration Statement, including such exhibits, may
be inspected without charge at the public reference facilities maintained by the
Commission, at the Commission's regional offices at the addresses stated above
and on the Commission's Web site. Copies of these documents may be obtained, at
prescribed rates, by writing to the Commission's Public Reference Section at the
address set forth above.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed with the Commission are incorporated into this
Prospectus by reference:
(1) The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996 ("Form 10-KSB").
(2) The Company's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended September 30, 1996, December 31, 1996, and March 31,
1997 ("Forms 10-QSB").
(3) The Company's Current Reports on Form 8-K for September 13,1996,
October 30, 1996 (as amended), May 15, 1997 (as amended) and June
18, 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.
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<PAGE>
The Company furnishes its shareholders and registered Warrantholders with
annual reports which contain financial statements audited by its independent
certified public accountants and such other interim reports containing unaudited
financial information as it deems appropriate.
The Company will provide without charge to each person who receives this
Prospectus, upon written or oral request, a copy of any information that is
incorporated by reference in the Prospectus (not including exhibits to the
information that is incorporated by reference unless the exhibits are themselves
specifically incorporated by reference). Such requests should be directed to
the following address:
AGRIBIOTECH, INC.
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
Attention: Corporate Secretary
(702) 798-1969
THE COMPANY
AgriBioTech, Inc. (the "Company") is a fully integrated full service seed
company specializing in the forage and turf seed sector, complete with research
and development of proprietary seed varieties, seed processing plants and a
national distribution and sales network. The Company became the largest forage
and turf grass seed company in the United States through an acquisition program.
The Company has completed 13 acquisition transactions since January 1, 1995 with
historical annualized revenues of approximately $110 million, exclusive of
pending acquisitions previously announced totaling approximately $45 million
(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: 23,870,385 (2)
</TABLE>
_______________
(1) Consists of (i) 148,402 shares of Common Stock issued to the former
shareholders of Clark Seeds, Inc.; (ii) 4,000,000 shares of Common Stock
reserved for issuance in connection with future acquisitions, including
certain of which are pending (see Recent Developments); 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 23,870,385 shares outstanding as of August 6, 1997, but does not
give effect to 3,973,400 shares of Common Stock reserved for issuance upon
exercise of stock options currently outstanding and an additional 473,600
shares of Common Stock issuable upon exercise of options available for
future grants under the 1994 Plan and; (ii) 2,000,000 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; (iv) 185,625 shares of Common Stock reserved
for issue upon exercise of other warrants outstanding; and (v) 288,956
shares of Common Stock issuable as of June 30, 1997, 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 and will use such
proceeds 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 entire
investment. See "Risk Factors."
RECENT DEVELOPMENTS
On June 23, 1997, the Company announced it had signed a letter of intent to
acquire the seed operations of Olsen-Fennell Seeds, Inc. and its affiliates,
which have approximately $35 million in annual sales. On June 25, 1997, the
Company announced it had signed a letter of intent to acquire another seed
operation which has annual sales of approximately $10 million. The Company is
continuing with the due diligence process and anticipates these acquisitions
will be consummated. Of the shares registered in this offering, the Company
estimates approximately 1,500,000 will be issued in connection with these
previously announced acquistions.
-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. Statements in this Prospectus include forward looking statements that
involve a number of risks and uncertainties. These include the Company's need
to manage its growth, intense competition in the seed industry, seasonality of
quarterly results, and the other risks detailed from time to time in the
Company's SEC Reports.
Limited Operating History; No Assurance of Future Profitability. The
---------------------------------------------------------------
Company did not generate significant revenues from its formation until its first
acquisition effective January 1, 1995. While the Company's subsidiaries have
operating histories, the Company itself has had a limited operating history, and
limited experience in managing operating subsidiaries. Potential investors
should be aware of the difficulties encountered by a company with limited
available capital and other risk factors set forth in this section, including,
but not limited to, the competition which the Company faces in the seed
industry. The Company's prospects must therefore be evaluated in light of the
problems, expenses, delays and complications associated with a new business.
Furthermore, the Company had an accumulated deficit of $10,900,242 through March
31, 1997, and reported its first profitable quarter during the quarter ended
March 31, 1997. The Company will not, however, report profits for the fiscal
year ended June 30, 1997, and there can be no assurance that the Company will
achieve profitability in the future.
Need for Financing. At March 31, 1997, the Company had cash of $644,000.
------------------
The Company currently has a revolving line of credit with Bank of America.
Borrowings under the line of credit are available based on 70% of the Company's
eligible receivables and 50% of the Company's eligible inventory up to a maximum
limit of $22 million. Due to the seasonality of the Company's business, there
are wide fluctuations in both the levels of the Company's borrowing needs and
the amounts of available collateral. The Company also has a $2 million
unsecured credit facility from the Bank of America which is due on August 31,
1997. If the Company is unable to generate a positive cash flow from
operations, of which there can be no assurance, it may have to seek additional
funds to finance operations through equity financing, which may result in
dilution to the then existing stockholders, or through bank or other borrowings.
Additional financing will also be necessary to finance future acquisitions.
There can be no assurance that such additional funds, if needed, will be
available and, if available, will be on terms acceptable to or affordable by the
Company. See "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and Financial Statements in the Form 10-KSB and Forms 10-
QSB.
Need to Manage Growth. The Company has acquired all or part of thirteen
---------------------
regional seed companies since January 1, 1995 and intends to expand current
levels of operations through additional acquisitions. The Company's future
success depends upon its ability to integrate the operations of its operating
subsidiaries into a vertically integrated company. While each of the Company's
subsidiaries has experience in marketing forage and/or turf grass seed, these
companies operate in different geographic regions. Therefore, the Company's
ultimate success depends on its ability to manage an effective national sales
organization.
-6-
<PAGE>
The Company's rapid growth since January 1995 has placed and may continue
to place significant demands on the Company's management, technical, financial
and other resources. In addition, successful expansion of the Company's
operations will depend on, among other things, its ability to attract, hire and
retain skilled management and other personnel on a regional and/or national
level, secure adequate sources of seed on commercially reasonable terms and
successfully manage growth, none of which can be assured. To manage growth
effectively, the Company will need to expand its support staff and
infrastructure commensurate with any increase in business and implement and
improve 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 and operating results. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in the Form 10-KSB and the Forms 10-QSB.
Competition. The seed industry and the field of agriculture technology are
-----------
both highly competitive. The seed industry consists of approximately 1,600
small local companies accounting for approximately 60% of the total seed sales
and approximately 400 multinational and large regional seed companies many of
which have substantially greater financial resources, facilities and
organizations than the Company has currently. Competition in the seed industry
is based primarily on price and product performance. From time to time regional
seed distributors will sell outside of their region to dump excess seed
inventory resulting in fierce price cutting having an adverse effect on the
Company's operations. See "Business-Competition" in the Form 10-KSB.
Dependence on Key Personnel. The success of the Company is largely
---------------------------
dependent upon the efforts, abilities and expertise of Johnny R. Thomas,
President, as well as each of the Company's five Vice Presidents. The Company
has entered into at-will employment agreements with each of these persons. Each
of these officers and key employee intends to devote substantially all of his or
her business time to the Company's affairs. See "Management" in the Form 10-KSB
and "Election of Directors" in the Proxy Statement.
Cyclical Nature of Agricultural Products. Agricultural products including
----------------------------------------
seed are generally cyclical in nature. Agricultural products are commodities
subject to wide fluctuations in price based on supply of the products and demand
for, in this case, the raw or processed seed. Furthermore, the demand for seed
is dependent on the demand of farmers, which is influenced by the general farm
economy. The production of seed is subject to a variety of nature's adversities
including drought, wind, hail, disease, insects, early frost and numerous other
forces that could adversely affect the growing of seed in any growing season.
Weather affects commodity prices, seed yields and planting decisions by farmers.
Lack of Proprietary Rights. The Company currently possesses proprietary
--------------------------
rights to certain products protected under the Plant Variety Protection Act.
While the Company is seeking other protected varieties such protection is not
considered essential to the production and marketing of its products and the
Company's ultimate success. There can be no assurance that the Company will
obtain other proprietary varieties or the Company's competitors will not possess
protected varieties that perform better than those of the Company.
-7-
<PAGE>
Seasonality of Quarterly Results. The seed business is highly seasonal and
--------------------------------
the Company's business is subject to wide seasonal fluctuations. Results of
operations from quarter to quarter will not necessarily reflect the results for
the entire year and are not necessary indicative of results which may be
expected for any other interim period. The bulk of the Company's forage seed
sales currently occur between December and May. Changes in climate can also
fluctuate results of operations between quarters. These climatic conditions
affect delivery of seed and can cause a shift in sales between quarters.
Control by Management and Current Stockholders. Prior to this offering,
----------------------------------------------
Management of the Company owned 4,255,620 (approximately 17.8%) of the
23,870,385 shares of the Company's Common Stock outstanding, and would own 29.3%
after giving full effect to the exercise of their options and Warrants.
Accordingly, the Company's present Management may be able to effectively control
the Company, elect all of the Company's directors, increase the authorized
capital, dissolve, merge or sell all of the assets of the Company and generally
direct the affairs of the Company. See "Voting Securities" in the Proxy
Statement.
Blank Check Preferred Stock and Control of the Company. The Company's
------------------------------------------------------
Certificate of Incorporation authorizes the issuance of Preferred Stock with
such designations, rights and preferences as may be determined from time to time
by the Board of Directors. Accordingly, the Board of Directors is empowered,
without shareholder approval, to issue Preferred Stock with dividend,
liquidation, conversion, voting or other rights which could adversely affect the
voting power or other rights of the holders of the Common Stock.
At June 30, 1997, the Company had: (a) 900 shares of Series B Convertible
Preferred Stock issued and outstanding, with a liquidation preference of
$1,009,479 and Convertible into 227,489 shares of Common Stock, and (b) 200
shares of Series C Convertible Preferred Stock with a liquidation preference of
$212,186 and convertible into 61,467 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 Under Rule 144 or
--------------------------------------------------------------------------
this Registration Statement. Of the Company's 23,820,835 issued and outstanding
- ---------------------------
shares of Common Stock as of August 6, 1997, approximately 465,000 shares are
"restricted securities" as that term is defined under Rule 144 under the
Securities Act,except for 148,402 Shares registered as part of this Prospectus.
All of these restricted shares have been registered for resale under the
Securities Act. The Company cannot predict the effect that sales made under
Rule 144, sales made pursuant to this or other registration statements may have
on any then prevailing market price. The Company is unable to predict the
effect that sales made pursuant to this Registration Statement, Rule 144, or
otherwise, may have on the then existing market price of the Company's
securities. The possibility exists that the sale of any of these Securities, or
even the potential of
-8-
<PAGE>
such sales, may be expected to have a depressive effect on the price of the
Company's securities in any public trading market. This could impair the
Company's ability to raise additional equity capital. See "Voting Securities" in
the Proxy Statement.
Issuance of Common Stock Without Stockholder Approval. The Company has
-----------------------------------------------------
50,000,000 authorized shares of Common Stock, of which 23,820,835 were issued
and outstanding as of August 6, 1997. Management will have broad discretion with
respect to the issuance of the 26,129,165 authorized but unissued shares,
including discretion to issue such shares in compensatory and acquisition
transactions. However, since the Company's Common Stock is quoted on the Nasdaq
National Market, shareholder approval is required for the establishment of a
plan or arrangement for the issuance of compensatory shares exceeding the lesser
of 25,000 shares or 1% of the outstanding shares, except with respect to, among
other things, acquisitions of companies and newly hired personnel, the issuance
of 20% or more of the outstanding shares in connection with the acquisition of
stock or assets of another company or the issuance of 20% or more of the Common
Shares at a price less than the greater of book value or market value.
No Dividends. The Company has not paid any dividends on its Common Stock
------------
and does not expect to declare or pay any cash or other dividends in the
foreseeable future. To the extent the Company has future earnings, the Company
intends to reinvest such earnings in the business operations of the Company.
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, and various
factors affecting the agricultural industry generally may have a significant
impact on the market price of the Company's securities. Additionally, in the
last several years, the stock market has experienced a high level of price and
volume volatility, and market prices for many companies, particularly small and
emerging growth companies, the common stock of which trades in the over-the-
counter market, have experienced wide price fluctuations and volatility which
have not necessarily been related to the operating performance of such companies
themselves. Any such fluctuations, or general economic and market trends, could
adversely affect the price of the Company's securities. Due to all of the
foregoing factors, it is likely that in some future quarter the Company's
operating results will be below the expectations of public market analysts and
investors. In that event, the price of the Company's securities would likely be
materially adversely affected.
Speculative Nature of Options and Warrants. As of August 6, 1997, the
------------------------------------------
Company had outstanding 2,000,000 Class C Warrants, each exercisable at $7.50,
for one share of Common Stock until January 17, 1998. The Company also had
outstanding options to purchase 3,973,400 shares of Common Stock exercisable for
up to ten (10) years ending in 2006, at prices ranging from $2.00 to $6.94 per
share. Options and warrants are generally more speculative than Common Stock
which is purchasable upon the exercise thereof. During the term of the options
and warrants, the holders thereof are given the opportunity to profit from a
rise in the market price of the Company's Common Stock, subject, in certain
cases, to the Company's right of redemption. See "Potential Adverse Effect of
---------------------------
Redemption of Warrants" below. Historically, the percentage increase or
- ----------------------
decrease in the market price of an option or warrant has tended to be greater
than the percentage increase or decrease in the market price of the underlying
common
-9-
<PAGE>
shares. An option or warrant may become valueless, or of reduced value, if the
market price of the Common Stock decreases, or increases only modestly, over the
term of the option or warrant. The holders of options and warrants would be most
likely to exercise them and purchase the Company's Common Stock at a time when
the Company could obtain capital by a new offering of securities on terms more
favorable than those provided by the options and warrants. Consequently, the
terms on which the Company could obtain additional capital during such period
may be adversely affected.
Potential Adverse Effect of Redemption of Warrants. The Warrants may be
--------------------------------------------------
redeemed by the Company upon notice of not less than 30 days, at a price of $.01
per Warrant. The Company reserved the right, however, to have standby
purchasers exercise such Warrants and pay the exercise price to the Company
without possession of the Warrant certificates during the two weeks following
the redemption date. In turn, the Company will pay the $.01 redemption price to
the registered holders of exercised Warrants. Redemption of the Warrants could
force the holders to exercise the Warrants and pay the exercise price at a time
when it may be disadvantageous for the holders to do so, to sell the Warrants at
the then current market price when they might otherwise wish to hold the
Warrants, or to accept the redemption price, which is expected to be
substantially less than the market value of the Warrants at the time of
redemption.
Disclosure Relating to Low-Priced Stocks; Restrictions on Resales of Low-
------------------------------------------------------------------------
Priced Stocks and Restrictions on Broker-Dealer Sales. In the event that the
- -----------------------------------------------------
Company's Common Stock was no longer traded on Nasdaq in the future, an investor
may find it difficult to dispose of, or to obtain accurate quotations as to the
market value of the Company's securities. In addition, the Company would be
subject to Rule 15g-9 (the "Rule") promulgated under the Securities Exchange Act
of 1934, which imposes various sales practice requirements on broker-dealers who
sell securities governed by the Rule to persons other than established customers
and accredited investors (generally institutions with assets in excess of
$5,000,000 or individuals with a net worth in excess of $1,000,000 or annual
income exceeding $200,000 or $300,000 jointly with their spouse). For
transactions covered by the Rule, the broker-dealer must make a special
suitability
-10-
<PAGE>
determination for the purchaser and have received the purchaser's written
consent to the transaction prior to sale. Consequently, the Rule may have an
adverse effect on the ability of broker-dealers to sell the Company's securities
and may affect the ability of stockholders to sell the Company's securities in
the secondary market and otherwise affect the trading market in the Common
Stock.
SELLING STOCKHOLDERS
An aggregate of 148,402 Shares were issued to the former shareholders of
Clark Seeds, Inc. In addition, (i) 4,000,000 Shares are issuable to various
persons in connection with future acquisitions by the Company, including
approximately 1,500,000 anticipated to be issued in connection with the
Company's previously announced acquisitions, 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 August 6, 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 (2) Offering(2)
---- ----------------------- ------------------- -------------------------
<S> <C> <C> <C>
Fred Clark(3) 219,627(4) 102,027 *
Brent Clark(3) 71,725(4) 27,825 *
Steven Jensen(3) 46,366(4) 9,275 *
Donald Morris(3) 62,599(4) 9,275 *
</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.
-11- (Footnotes continued on following page)
<PAGE>
(2) Based on 23,870,385 shares of Common Stock issued and outstanding as of
August 6, 1997.
(3) This person was a shareholder of Clark Seeds, Inc. prior to its
acquisition by the Company and is now an employee of the Company.
(4) Includes less than 2,000 Shares underlying options currently exercisable.
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 August 1, 1997 and 15,000 shares of Series C Convertible Preferred Stock of
which 200 shares were issued and outstanding as of August 1, 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 23,870,385 shares of Common Stock issued and outstanding as of
August 6, 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. The current officers and directors beneficially held 4,255,620
shares (18%) without giving effect to the exercise of their options and
warrants, as of August 6, 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
The Securities 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
Securities through underwriters, dealers or agents. The distribution of the
Securities by the Selling Stockholders may be effected from time to time in one
or more transactions that may take place in the over-the-counter market
including ordinary broker's transactions, privately negotiated transactions,
pledges, or through sales to one or more broker/dealers for resale of such
securities as principals, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. Usual
and customary or specifically negotiated brokerage fees or commissions may be
paid by these holders in connection with such sales.
The Selling Stockholders, their transferees, intermediaries, donees,
pledgees or other successors in interest through whom the Securities 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 securities
offered and any profits realized or commissions received may be deemed
underwriting compensation. Registration of a portion of the Securities is being
made pursuant to agreements with the Company pursuant to which the Company will
pay all expenses incident to the offering and sale of the Securities to the
public except as described hereinafter. The Company will not pay, 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 Securities is subject to the Prospectus delivery and other
requirements of the Act. To the extent required, the Company will use its best
efforts to file and distribute, during any period in which offers or sales are
being made, one or more amendments or supplements to this Prospectus or a new
registration statement with respect to the Securities to describe any material
information with respect to the plan of distribution not previously disclosed in
this Prospectus, including, but not limited to, the number of shares being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, if any, the purchase price paid by the
underwriter for Shares purchased from a Selling Stockholder, and any discounts,
commissions or concessions allowed or reallowed or paid to dealers and the
proposed selling price to the public.
-13-
<PAGE>
Under the Exchange Act, and the regulations thereunder, any person engaged
in a distribution of the Securities of the Company offered by this Prospectus
may not simultaneously engage in market-making activities with respect to the
Common Stock of the Company during the applicable "cooling off" period 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 of Securities by the Selling Stockholders.
COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the small business
issuer pursuant to the foregoing provisions or otherwise, the small business
issuer has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon by Snow
Becker Krauss P.C., 605 Third Avenue, New York, New York 10158. Snow Becker
Krauss P.C. owns 43,823 shares of the Company's Common Stock and Warrants to
purchase 25,000 shares of Common Stock.
EXPERTS
The consolidated financial statements of AgriBioTech, Inc. as of June 30,
1996 and June 30, 1995 and for the year ended June 30, 1996 and the nine-month
period ended June 30, 1995, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein and upon the authority of said
firm as experts in accounting and auditing.
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.
-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>
<CAPTION>
<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
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no 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 subsections 1 and 2, unless ordered by a
court or advanced pursuant to subsection 5, must be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the act, suit or proceeding so orders, by independent legal counsel
in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the act,
suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
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
II-2
<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 judgment in its
favor, by reason of the fact that he, his testator or intestate, is or was a
director or officer of the Corporation, against the reasonable expenses,
including attorneys' fees, actually and
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
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
5.1 Securities opinion of Snow Becker Krauss P.C.*
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Snow Becker Krauss P.C. is included in Exhibit 5.1 to
this Registration Statement.
24.1 Power of Attorney (on signature page)
</TABLE>
___________________
* Filed with this Registration Statement.
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.
II-5
<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.
II-6
<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 August 11, 1997.
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas
---------------------------------
Johnny R. Thomas, President
POWER OF ATTORNEY
Each of the undersigned hereby authorizes Johnny R. Thomas or Henry A.
Ingalls as his attorneys-in-fact to execute in the name of each such person and
to file such amendments (including post-effective amendments) to this
registration statement as the Registrant deems appropriate and appoints such
persons as attorneys-in-fact to sign on his behalf individually and in each
capacity stated below and to file all amendments, exhibits, supplements and
post-effective amendments to this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ Johnny R. Thomas President (Principal Executive Officer) August 11, 1997
- --------------------
Johnny R. Thomas and Director
/s/ Henry A. Ingalls Vice President and Treasurer (Principal August 11, 1997
- --------------------
Henry A. Ingalls Financial and Accounting Officer)
/s/ Scott J. Loomis Vice President and Director August 11, 1997
- --------------------
Scott J. Loomis
/s/ John C. Francis Vice President, Secretary and Director August 11, 1997
- --------------------
John C. Francis
/s/ Kent Schulze Director August 11, 1997
- --------------------
Kent Schulze
/s/ James Hopkins Director August 11, 1997
- --------------------
James Hopkins
</TABLE>
II-7
<PAGE>
Exhibit 5.1
Snow Becker Krauss P.C.
605 Third Avenue
New York, NY 10158
August 8, 1997
AgriBioTech, Inc.
2700 Sunset Road, Suite 25
Las Vegas, Nevada 89120
Re: Registration Statement on Form S-3 Relating to 6,373,402 Shares of
Common Stock, Par Value $.001 Per Share, of AgriBioTech, Inc.
-------------------------------------------------------------
Gentlemen:
We are acting as counsel to AgriBioTech, Inc., a Nevada corporation (the
"Company"), in connection with the filing by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-3 (the "Registration
Statement") relating to 6,373,402 shares of Common Stock (the "Shares"), $.001
par value per share, of the Company that may be sold by the Selling
Stockholders.
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Certificate of
Incorporation and amendments thereto and the Company's Amended and Restated By-
Laws, as each is currently in effect, the Registration Statement, and the
proposed registration and issuance of the Shares and such other corporate
documents and records and other certificates, and we have made such
investigations of law as we have deemed necessary or appropriate in order to
render the opinions hereinafter set forth.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly organized, is validly existing, and in good
standing under the laws of the State of Nevada.
<PAGE>
2. The Shares have been duly authorized, legally issued and are fully paid
and non-assessable.
3. The Class C Warrants have been duly authorized and are legally issued
and enforceable in accordance with their terms.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference in the Registration Statement to
this firm under the heading "Interests of Named Experts and Counsel." In giving
this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act, or the rules
and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Snow Becker Krauss P.C.
---------------------------
SNOW BECKER KRAUSS P.C.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our reports related to the consolidated financial
statements of AgriBioTech, Inc., the combined financial statements of Germain's,
Inc. and W-L Research, Inc. and the consolidated financial statements of E.F.
Burlingham & Sons 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
August 11, 1997
