<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 1997
REGISTRATION NO. 333-07123
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE
AMENDMENT NO. 1 TO
FORM S-8
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, NV 89120
(702) 798-1969
----------------------------
(Address of principal executive offices)
1994 EMPLOYEE STOCK OPTION PLAN
EMPLOYEE STOCK BONUS PLAN
(Full Title of the Plans)
DR. JOHNNY R. THOMAS, PRESIDENT
AGRIBIOTECH, INC.
2700 SUNSET ROAD, SUITE C-25
LAS VEGAS, NV 89120
(702) 798-1969
-------------------------------
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
A copy of all communications, including communications sent to the agent for
service, should be sent to:
ELLIOT H. LUTZKER, ESQ.
SNOW BECKER KRAUSS P.C.
605 THIRD AVENUE
NEW YORK, N.Y. 10158-0125
(212) 687-3860
---------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- - ---------------------------------------------------------------------------------------------------------------------
Title of Each Proposed Maximum Proposed
Class of Amount to be Offering Maximum Amount of
Securities to be Registered Price Aggregate Registration
Registered Per Share Offering Price Fee
- - --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options 1,599,000 (1) -- -- (3)
4,862,500 (2)
- - --------------------------------------------------------------------------------------------------------------------
Common Stock, par 37,500 (4)(5) $ 1.81 (6) $ 67,875 $ 23.41 (13)
value $.001 per 750,000 (4)(5) $ 2.00 (6) $ 1,500,000 $ 517.24 (13
share 1,225,000 (4)(5) $ 2.12 (6) $ 2,597,000 $ 895.52 (13)
125,000 (4)(5) $ 2.25 (6) $ 281,250 $ 85.23
200,000 (4)(5) $ 3.00 (6) $ 600,000 $ 181.82
125,000 (4)(5) $ 3.25 (6) $ 406,250 $ 123.11
200,000 (4)(5) $ 4.00 (6) $ 800,000 $ 242.42
200,000 (4)(5) $ 5.00 (6) $ 1,000,000 $ 303.03
2,000,000 (5)(7) $ 6.344 (9) $12,688,000 $ 3,844.85
40,000 (5)(8) $ 4.06 (6) $ 162,400 $ 56.00 (13)
300,000 (5)(8) $ 2.00 (6) $ 600,000 $ 206.90 (13)
859,000 (5)(10) $ 3.8125 (11) $ 3,274,938 $ 1,129.29 (13)
- - --------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- - --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
400,000 (10) $ 6.344 (9) $ 2,537,600 $ 768.97
400,000 (12) $ 3.8125 (11) $ 1,525,000 $ 525.86 (13)
2,098,500 (14) $ 3.00 (14) $ 6,295,500 $ 2,170.86 (13)
25,000 (14) $ 2.12 (14) $ 53,000 $ 18.28 (13)
- - --------------------------------------------------------------------------------------------------------------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $11,092.79 (15)
- - --------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents options granted or to be granted pursuant to the 1994 Employee
Stock Option Plan, as amended (the "1994 Plan") of AgriBioTech, Inc. (the
"Registrant").
(2) Represents options granted or to be granted to consultants and employees
outside of the 1994 Plan (the "Non-Plan Options").
(3) No registration fee is required pursuant to Rule 457(h)(2).
(4) Shares issuable upon exercise of the Non-Plan Options issued and
outstanding.
(5) Includes an indeterminable number of shares of Common Stock which may
become issuable pursuant to the anti-dilution provisions of the 1994 Plan
or the Non-Plan Options, as the case may be.
(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) Shares issuable upon exercise of Non-Plan Options available for grant.
(8) Shares issuable upon exercise of options granted under the 1994 Plan.
(9) Calculated solely for the purposes of determining the registration fee
pursuant to Rule 457(c) based upon the closing asked price of the Common
Stock on the Nasdaq National Market on July 21, 1997.
(10) Shares issuable upon exercise of options available for grant under the 1994
Plan.
(11) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) based upon the average of the last bid and asked
prices for the Common Stock on the Nasdaq SmallCap Market on June 21, 1996.
(12) Shares issued or issuable under the Registrant's Employee Stock Bonus
Plan.
(13) This amount was paid when the securities were first registered on
Registration Statement No. 333-07123 (filed June 28, 1996).
(14) Shares issued upon exercise of options at $2.12 and $3.00 per share.
(15) $5,549.43 is being paid with this Post-Effective Amendment No. 1. The
number of securities associated with this additional fee being paid is
3,250,000 shares of Common Stock and 3,250,000 Options.
-ii-
<PAGE>
PROSPECTUS
AGRIBIOTECH, INC.
6,461,500 OPTIONS
8,985,000 SHARES
COMMON STOCK, PAR VALUE $.001
This Prospectus has been prepared by AgriBioTech, Inc., a Nevada
corporation (the "Company), for use upon resale of shares of the Company's
common stock, par value $.001 per share (the "Common Stock"), by certain
"affiliates" (as defined in Rule 405 under the Securities Act of 1933, as
amended) of the Company (the "Selling Shareholders") who have acquired or may
acquire such shares of Common Stock: upon exercise of an aggregate of 1,599,000
options (the "Options")granted or to be granted under the AgriBioTech, Inc. 1994
Employee Stock Option Plan (the "1994 Plan"); up to 400,000 shares issued or
issuable under the Company's Employee Stock Bonus Plan, or up to 4,862,500
shares issuable pursuant to stock option agreements either granted (2,862,500)
or to be granted (2,000,000) outside of the Plan (the "Non-Plan Options"),
granted in connection with acquisitions of companies and as inducements to
employ persons not previously employed by the Company. The maximum number of
shares which may be offered or sold hereunder is subject to adjustment in the
event of stock splits or dividends, recapitalization and other similar changes
affecting the Common Stock. It is anticipated that the Selling Shareholders will
offer shares of Common Stock for resale at prevailing prices on the Nasdaq
National Market. See "Plan of Distribution." The Company will receive none of
the proceeds from the sale of the Common Stock offered hereby, but it will
receive the exercise price upon exercise of options. All selling and other
expenses incurred by individual Selling Shareholders will be borne by such
Selling Shareholders.
SEE "RISK FACTORS" BEGINNING ON PAGE 3 FOR CERTAIN RISKS OF AN
INVESTMENT IN THE COMMON STOCK.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION; NOR HAS THE COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------------
The date of this Prospectus is July 24, 1997.
<PAGE>
No person is authorized to give any information or to make any
representations other than those contained in this Prospectus in connection with
any offer to sell or sale of the securities to which this Prospectus relates
and, if given or made, such information or representations must not be relied
upon as having been authorized. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, imply that there has been no
change in the facts herein set forth since the date hereof. This Prospectus does
not constitute an offer to sell to or a solicitation of any offer to buy from
any person in any state in which any such offer or solicitation would be
unlawful.
--------------------
AgriBioTech, Inc. was incorporated in the State of Colorado on
December 31, 1987 under the name Sussex Ventures, Ltd. In September 1993, the
Company acquired all of the issued and outstanding Common Stock of AgriBioTech,
Inc. ("ABT"), a Nevada corporation. ABT was treated as the acquiring
corporation in the transaction, which was accounted for as a reverse purchase.
In June 1994, the Company merged with and into ABT, then a wholly-owned
subsidiary of the Company, changed its name to AgriBioTech, Inc. and became a
Nevada corporation. Its principal executive offices are located at 2700 Sunset
Road, Suite C-25, Las Vegas, NV 89120, and its telephone number is (702) 798-
1969.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the Regional Offices of the Commission at
Seven World Trade Center, New York, New York 10048 and at 500 West Madison
Street, Chicago, Illinois 60611. Copies can be obtained from the Commission at
prescribed rates by writing to the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549 or on the Worldwide Web at www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference the documents listed
below:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996 ("Form 10-KSB").
-2-
<PAGE>
(b) The Company's Quarterly Reports on Form 10-QSB for the fiscal quarters
ended September 30, 1996, December 31, 1996 (as amended) and March 31, 1997
("Forms 10-QSB").
The Company's Current Reports on Form 8-K for September 13, 1996, October
30, 1996 (as amended), May 15, 1997 and June 18, 1997;
(d) The Company's Proxy Statement dated January 13, 1997 for the Annual
Meeting of Shareholders held on February 24, 1997 (the "Proxy Statement"); and
(e) The description of the Company's common stock, par value $.001 per
share (the "Common Stock") contained in the Company's Registration Statement on
Form 8-A (File No. 0-19352) filed pursuant to Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating such
information.
All documents subsequently filed by the Company after the date of this
Prospectus pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained in a
previously filed document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement herein modifies or supersedes such statement; and any statement
contained herein shall be deemed to be modified or superseded to the extent that
a statement in any document subsequently filed, which is incorporated by
reference herein, modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the information that has
been incorporated by reference in this Prospectus (not including exhibits to
such information, unless such exhibits are specifically incorporated by
reference into the information which this Prospectus incorporates). Requests for
copies of such information should be directed to the Company at 2700 Sunset
Road, Suite C-25, Las Vegas, NV 89120; Attention: Corporate Secretary.
RISK FACTORS
In addition to considering the other information set forth in, or
incorporated by reference into, this Prospectus, prospective investors should
carefully consider the following factors in evaluating an investment in the
Company. Statements in this Prospectus include forward looking statements that
involve a number of risks and uncertainties. These include the Company's need to
manage its growth, intense competition in the
-3-
<PAGE>
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 profits during the quarter ended March 31, 1997.
There can be no assurance that the Company will remain profitable 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 $4 million
unsecured credit facility from the Bank of America which is due in equal
installments on July 31, 1997 and 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.
-4-
<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.
-5-
<PAGE>
Lack of Proprietary Rights. The Company currently possesses proprietary
--------------------------
rights to certain products protected under the Plant Variety Protection Act.
While the Company is seeking other protected varieties such protection is not
considered essential to the production and marketing of its products and the
Company's ultimate success. There can be no assurance that the Company will
obtain other proprietary varieties or the Company's competitors will not possess
protected varieties that perform better than those of the Company.
Seasonality of Quarterly Results. The seed business is highly seasonal
--------------------------------
and the Company's business is subject to wide seasonal fluctuations. Results of
operations from quarter to quarter will not necessarily reflect the results for
the entire year and are not necessary indicative of results which may be
expected for any other interim period. The bulk of the Company's forage seed
sales currently occur between December and May. 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 17.9%) of the
23,743,385 shares of the Company's Common Stock outstanding, and would own 29.5%
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) 217
shares of Series C Convertible Preferred Stock with a liquidation preference of
$230,603 and convertible into 66,955 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
-6-
<PAGE>
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 23,743,385 issued and outstanding
- - ---------------------------
shares of Common Stock as of June 30, 1997, approximately 465,000 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. The Company cannot predict the effect that sales made
under Rule 144, sales made pursuant to this or other registration statements may
have on any then prevailing market price. The Company is unable to predict the
effect that sales made pursuant to this Registration Statement, Rule 144, or
otherwise, may have on the then existing market price of the Company's
securities. The possibility exists that the sale of any of these Securities, or
even the potential of such sales, may be expected to have a depressive effect on
the price of the Company's securities in any public trading market. This could
impair the Company's ability to raise additional equity capital. See "Voting
Securities" in the Proxy Statement.
Issuance of Common Stock Without Stockholder Approval. The Company has
-----------------------------------------------------
50,000,000 authorized shares of Common Stock, of which 23,743,385 were issued
and outstanding as of June 30, 1997. Management will have broad discretion with
respect to the issuance of the 26,256,615 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, 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
-7-
<PAGE>
trades in the over-the-counter market, have experienced wide price fluctuations
and volatility which have not necessarily been related to the operating
performance of such companies themselves. Any such fluctuations, or general
economic and market trends, could adversely affect the price of the Company's
securities. Due to all of the foregoing factors, it is likely that in some
future quarter the Company's operating results will be below the expectations of
public market analysts and investors. In that event, the price of the Company's
securities would likely be materially adversely affected.
Speculative Nature of Options and Warrants. As of June 30, 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 3,987,900 shares of Common Stock exercisable for
up to ten (10) years ending in 2006, at prices ranging from $1.81 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
shares. An option or warrant may become valueless, or of reduced value, if the
market price of the Common Stock decreases, or increases only modestly, over the
term of the option or warrant. The holders of options and warrants would be
most likely to exercise them and purchase the Company's Common Stock at a time
when the Company could obtain capital by a new offering of securities on terms
more favorable than those provided by the options and warrants. Consequently,
the terms on which the Company could obtain additional capital during such
period may be adversely affected.
Inability to Exercise Options or Warrants. The Company intends to qualify
-----------------------------------------
the sale of the shares offered hereby in a limited number of states. Although
certain exemptions in the securities ("blue sky") laws of certain states might
permit options or warrants to be transferred to purchasers in states other than
in which the Securities were initially qualified, the Company will be prevented
from issuing Common Stock in such states upon the exercise of the options or
warrants unless an exemption (e.g., private placement) from qualification is
available or unless the issuance of shares of Common Stock upon exercise of the
options or warrants is qualified. The Company may decide not to seek or may not
be able to obtain qualifications of the issuance of such shares of Common Stock
in all of the states in which the ultimate purchasers of the options or warrants
reside. In such a case, the options or warrants held by purchasers will expire
and have no value if such options or warrants cannot be sold. Accordingly, the
market for the options or warrants may be limited because of these restrictions.
-8-
<PAGE>
Further, a current prospectus covering the shares of Common Stock issuable upon
exercise of the options or warrants must be in effect before the Company may
accept Warrant exercises. There can be no assurance the Company will be able to
have a prospectus in effect when the holders of the options or warrants desire
to exercise them, notwithstanding the Company's commitment to use its best
efforts to do so.
Potential Adverse Effect of Redemption of Warrants. The Warrants may be
--------------------------------------------------
redeemed by the Company upon notice of not less than 30 days, at a price of $.01
per Warrant. The Company reserved the right, however, to have standby
purchasers exercise such Warrants and pay the exercise price to the Company
without possession of the Warrant certificates during the two weeks following
the redemption date. In turn, the Company will pay the $.01 redemption price to
the registered holders of exercised Warrants. Redemption of the Warrants could
force the holders to exercise the Warrants and pay the exercise price at a time
when it may be disadvantageous for the holders to do 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 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 SHAREHOLDERS
The shares of Common Stock to which this Prospectus relates are being
registered for reoffers and resales by Selling Stockholders of the Company who
have acquired or may acquire such shares pursuant to the exercise of options
granted or to be granted under the 1994 Plan or pursuant to stock option
agreements with the Company outside of the 1994 Plan in connection with services
rendered to the Company, or shares
-9-
<PAGE>
issued pursuant to the Bonus Plan (collectively, the "Plans"). The Selling
Shareholders named below may resell all, a portion, or none of such shares.
Participants under the Plans who are deemed to be "affiliates" of the
Company who acquire Common Stock under the Plans may be added to the Selling
Shareholders listed below from time to time by use of a prospectus supplement
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"). An "affiliate" is defined in Rule 405 under the Securities
Act as a "person that directly, or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with",
the Company.
The table below sets forth with respect to each Selling Shareholder, based
upon information available to the Company as of July 22, 1997, the number of
shares of Common Stock beneficially owned before and after the sale of the
Shares offered hereby; the number of Shares to be sold; and the percent of the
outstanding shares of Common Stock owned before and after the sale of the Shares
offered hereby. Each Selling Shareholder's relationship to the Company is set
forth in a footnote to the table.
<TABLE>
<CAPTION>
Percent
Amount and Shares of Class(1)(3)
Nature of Shares Beneficially ---------------------
Beneficial to be Owned After Before After
Name Ownership(1) Sold(2) Offering Offering Offering
- - --------------- ------------ ------- ------------ ---------- --------
<S> <C> <C> <C> <C> <C>
Johnny R. Thomas (4) 2,658,602(5) 623,500 2,035,102 10.9%(5) 8.3%
John C. Francis (4) 1,379,235(6) 575,000 804,235 5.7%(6) 3.3%
Henry Ingalls (4) 1,328,378(7) 1,250,000 78,378 5.3%(7) *
Scott J. Loomis 1,422,040(8) 900,000 522,040 5.9%(8) 2.2%
5840 N. Genematas
Tucson, AZ 85704
Kathleen L. Gillespie(4) 900,000(9) 1,050,000 -0- 3.7%(9) *
Byron D. Ford 80,000(10) 270,000 10,000 * (10) *
Kent Schulze 25,000(11) 25,000 -0- * (11) *
James W. Hopkins 15,000(12) 25,000 -0- * (12) *
</TABLE>
- - -----------
* Less than 1%
(1) Unless otherwise noted, the Company believes that each Selling Shareholder
has sole voting and investment power with respect to all shares of Common
Stock beneficially owned, subject to community property laws, where
applicable. Each Selling Shareholder is deemed to be the beneficial owner of
securities that can be acquired by such person within 60 days from the date
of determination upon the exercise of warrants or options. The percentage
ownership of each Selling Shareholder is determined by assuming that options
or warrants that are held by such person (but not those held by any other
person) and which are exercisable within 60 days from the date of
determination have been exercised.
(2) Does not constitute a commitment to sell any or all of the stated number of
shares of Common Stock. The number of Shares offered hereby shall be
-10-
<PAGE>
determined from time to time by each Selling Shareholder at his/her sole
discretion.
(3) Based on 23,743,385 shares outstanding as of June 30, 1997, but does not
give effect to (except those owned or sold by the Selling Shareholder) (i)
1,125,400 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) 2,862,500 shares of Common Stock issuable
upon exercise of options granted outside of the Company's 1994 Plan and an
additional 2,000,000 shares of Common Stock issuable upon exercise of Non-
Plan Options available for future grants; and (iii) 400,000 shares of
Common Stock reserved for issuances upon grant of shares under the Bonus
Plan.
(4) This person's address is c/o the Company, 2700 Sunset Road, Suite C-25, Las
Vegas, Nevada 89120.
(5) Includes shares underlying 633,006 currently exercisable Class C Warrants.
Includes 623,500 shares owned as a result of options previously exercised.
(6) Includes shares underlying 364,420 currently exercisable Class C Warrants.
Includes 575,000 shares owned as a result of options previously exercised.
(7) Includes 1,225,000 shares underlying options currently exercisable (725,000
for cash only), 19,500 shares and 19,500 currently exercisable Class C
Warrants held by Mr. Ingalls' children for which Mr. Ingalls disclaims
beneficial ownership and 19,689 currently exercisable Class C Warrants.
Includes 25,000 shares owned as a result of options previously exercised.
(8) Includes shares underlying 281,020 issuable Class C Warrants. Includes
900,000 shares owned as a result of options previously exercised.
(9) Includes 900,000 shares underlying options currently exercisable (450,000
for cash only). Excludes 150,000 shares underlying options not currently
exercisable.
(10) Includes 70,000 shares underlying options currently exercisable, but
excludes 200,000 shares underlying options not currently exercisable.
(11) Includes 25,000 shares underlying options currently exercisable.
(12) Includes 15,000 shares underlying options currently exercisable, but
excludes 10,000 shares underlying options not currently exercisable.
PLAN OF DISTRIBUTION
The Options and/or Shares are being sold by the Selling Shareholders
for their own accounts. The Options and/or Shares may be sold or transferred
for value by the Selling Shareholders, or by pledgees, donees, transferees or
other successors in interest to the Selling Shareholders, in one or more
transactions on the Nasdaq National Market (or any successor stock exchange), in
negotiated transactions or in a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at prices otherwise negotiated. The
-11-
<PAGE>
Selling Shareholders may effect such transactions by selling the Options and/or
Shares to or through brokers-dealers, and such broker-dealers may receive
compensation in the form of underwriting discounts, concessions or commissions
from the Selling Shareholders and/or the purchasers of the Options and/or Shares
for whom such broker-dealers may act as agent (which compensation may be less
than or in excess of customary commissions). The Selling Shareholders and any
broker-dealers that participate in the distribution of the Options and/or Shares
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of the Options and/or Shares sold by them may be deemed to be
underwriting discounts and commissions under the Securities Act.
There can be no assurance that any of the Selling Shareholders will
sell any or all of the Shares of Common Stock offered by them hereunder.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Snow Becker Krauss P.C., 605 Third Avenue, New
York, New York 10158-0125.
EXPERTS
The consolidated financial statements of AgriBioTech, Inc. for the
year ended June 30, 1996 and the nine-month period ended June 30, 1995
incorporated by reference in this Prospectus have been included in reliance upon
the report of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, given upon the authority of said firm as
experts in accounting and auditing.
The combined financial statements of Germain's Inc. and W-L Research,
Inc. for the years ended September 30, 1995 and 1994, incorporated by reference
in this Prospectus, have been included in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by reference
herein, given upon the authority of said firm as experts in accounting and
auditing.
-12-
<PAGE>
EXPLANATORY NOTE
This post-effective amendment to the Registration Statement of the Company
on Form S-8 (Registration No. 333-07123, filed on June 28, 1996) is intended to
cover (i) an increase in the number of options authorized to be granted under
the 1994 Plan from 1,200,000 to 1,600,000 (the "Options"), and an increase of
2,850,000 Non-Plan Options, including 850,000 which have been granted to date,
to be used in connection with acquisitions of companies and as inducements to
employ persons not previously employed by the Company and the underlying shares
of the Common Stock (hereinafter defined) of the Company, (ii) an increase in
the maximum number of Options that may be awarded to any person under the 1994
Plan in any two-year period, and (iii) the exercise of the Options.
The contents of the June 28, 1996 Registration Statement on Form S-8 (the
"Form S-8") except as amended hereby, are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, AgriBioTech, Inc., a Nevada corporation
(the "Company"), pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated by reference in this registration
statement.
(1) The Company's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1996;
(2) The Company's Quarterly Reports on Form 10-QSB ("Forms 10-QSB")
for the fiscal quarters ended September 30, 1996, December 31, 1996 and March
31, 1997;
(3) The Company's Current Reports on Form 8-K for September 13, 1996,
October 30, 1996 (as amended), May 15, 1997 and June 18, 1997;
(4) The Company's Proxy Statement dated January 13, 1997 ("Proxy
Statement"); and
(5) The description of the Company's common stock, par value $.001 per
share (the "Common Stock"), contained in the Company's Registration Statement
on Form 8-A (File No. 0-19352), filed pursuant to Section 12(g) of the Exchange
Act, including any amendment or report filed for the purpose of updating such
information.
II-1
<PAGE>
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 7. Exemption From Registration Claimed.
All restricted shares to be resold pursuant to this Registration
Statement were issued upon exercise of stock options by officers or employees of
the Company. Upon exercise of their options, such persons were afforded all of
the information available in a registration statement. Accordingly, exemption
from registration is claimed under Section 4(2) of the Securities Act of 1933,
as amended.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
- - ---------- ----------------------
<S> <C>
4.1 1994 Employee Stock Option Plan.(1)
4.2 Employee Stock Bonus Plan.(1)
4.3 Form of Stock Option Agreement dated January 5, 1996 between the
Registrant and Robert B. Prag.(2)
4.4 Stock Option Agreement dated as of December 20, 1995 between
Registrant and Kathleen L. Gillespie (ISOs).(2)
4.5 Stock Option Agreement dated as of December 20, 1995 between
Registrant and Kathleen L. Gillespie (NQSOs).(2)
4.6 Stock Option Agreement dated as of February 13, 1996 between
Registrant and Henry A. Ingalls.(2)
4.7 Form of Stock Option Agreement dated as of March 11, 1996 between
Registrant and each of (i) Johnny R. Thomas; (ii) John C. Francis;
and (iii) Scott J. Loomis.(2)
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
4.8 Form of Stock Option Agreement dated May 8, 1996 between Registrant
and each of (i) Kent Schulze; (ii) Byron D. Ford; and (iii) James
Hopkins.(2)
4.9 Form of Incentive Stock Option Agreement used pursuant to the 1994
Plan.(2)
4.10 Form of Non-Qualified Stock Option Agreement used pursuant to the
1994 Plan.(2)
* 4.11 Stock Option Agreement dated December 9, 1996, between the
Company and Byron Ford.
* 4.12 Form of Stock Option Agreement dated May 15, 1997, between the
Company and each of Greg McCarthy and Doug Pope.
* 5.1 Opinion of Snow Becker Krauss P.C., as amended.
* 23.1 Consent of Snow Becker Krauss P.C. (included in Exhibit 5.1
hereto).
* 23.2 Consent of KPMG Peat Marwick LLP.
24.1 Powers of Attorney (included on the signature page of this
Registration Statement ).
</TABLE>
- - ------------------
* Filed with this Amendment.
(1) Incorporated by reference to the Company's Registration Statement on Form
SB-2 for April 29, 1994, as amended (333-78470-NY).
(2) Incorporated by reference to the Form S-8 Registration Statement (No. 333-
07123).
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Post-Effective
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Las Vegas, State of
Nevada, on July 24, 1997.
II-3
<PAGE>
AGRIBIOTECH, INC.
By: /s/ Johnny R. Thomas By:/s/ Henry A. Ingalls
----------------------------- ----------------------
Dr. Johnny R. Thomas Henry A. Ingalls
President Vice President
and Chief Executive Officer (principal financial and
(principal executive officer) accounting officer)
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Johnny
R. Thomas or Henry A. Ingalls, his true and lawful attorneys-in-fact and agents,
with power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign this Post-Effective Amendment No.
1 and all further amendments (including post-effective amendments) to the Form
S-8, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying all that said attorneys-in-fact and agents or their substitute or
substitutes, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on July 24, 1997.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Johnny R. Thomas
- - --------------------
Johnny R. Thomas President and Director
(principal executive officer)
/s/ Henry A. Ingalls
- - --------------------
Henry A. Ingalls Vice President
(principal financial
and accounting officer)
/s/ Scott J. Loomis
- - -------------------
Scott J. Loomis Vice President and Director
/s/ John C. Francis
- - -------------------
John C. Francis Vice President and Director
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
/s/ Kent Schulze Director
- - -------------------------
Kent Schulze
/s/ James W. Hopkins Director
- - -------------------------
James W. Hopkins
</TABLE>
II-5
<PAGE>
EXHIBIT 4.11
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT, made as of the 9th day of December 1996, by and between
AgriBioTech, Inc., a Nevada corporation, having its principal executive offices
at 2700 Sunset Road, Suite C-25, Las Vegas, NV 89120 ("Grantor"), and Byron D.
Ford, with an address c/o AgriBioTech, Inc., 2700 Sunset Road, Suite C-25, Las
Vegas, Nevada 89120 ("Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Grantor desires that Optionee exert Optionee's utmost efforts to
improve the business of Grantor.
NOW, THEREFORE, in consideration of Optionee's service to Grantor, and for
other good and valuable consideration, Grantor hereby grants to Optionee options
to purchase common stock of Grantor, $.001 par value ("Common Stock"), on the
following terms and conditions:
1. Option.
------
Grantor hereby grants to Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase, at any time prior to 5:00 p.m. Las Vegas time
on June 30, 2002, up to an aggregate of 250,000 fully paid and non-assessable
shares of Common Stock (the "Shares"), subject to the terms and conditions set
forth below.
2. Purchase Price.
--------------
The purchase price shall be $2.25 per Share for the first 125,000 options
vesting as described in Paragraph 3(a) below. For the second 125,000 options,
the purchase price shall be $3.50 per Share. Grantor shall pay all original
issue or transfer taxes on the exercise of this option and all other fees and
expenses necessarily incurred by Grantor in connection therewith.
3. Exercise of Option.
------------------
(a) The options granted hereby shall vest as follows: 25,000 Shares on the
date hereof and an additional 25,000 Shares on June 30, 1997; then, an
additional 50,000 Shares on June 30 of each year, commencing in 1998 and
continuing until fully vested in 2001.
(b) As to any vested options, Optionee shall notify Grantor in writing in
person, by overnight courier or by registered or certified mail, return receipt
requested, addressed to its principal office, as to the number of Shares which
Optionee desires to purchase under the option herein granted, which notice shall
be accompanied by payment (by cash, certified check or shares of Common Stock
then owned by Optionee valued at the closing sale
<PAGE>
price on the day preceding such tender ("market price") or options valued at the
difference between market price and the exercise price of the options tendered)
of the exercise price therefor as specified in Paragraph 2 above. As soon as
practicable thereafter, Grantor shall cause to be delivered to Optionee
certificates issued in Optionee's name evidencing the Shares purchased by
Optionee.
4. Option Conditioned On Continued Service.
---------------------------------------
(a) If the services of Optionee shall be terminated for cause, or if
Optionee terminates services to the Company voluntarily, the option granted to
Optionee hereunder shall expire immediately upon such termination. If such
services shall terminate otherwise than by reason of death, disability, for
cause or voluntary termination, such option may be exercised at any time within
three (3) months after such termination, subject to the provisions of
subparagraph (d) of this Paragraph 4.
(b) If Optionee dies (i) while performing services for Grantor or a
subsidiary or parent corporation or (ii) within three (3) months after the
termination of Optionee's services other than voluntarily by Optionee or for
cause, such option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised by a legatee or legatees of such option under
Optionee's last will or by Optionee's personal representatives or distributees
at any time within one (1) year after Optionee's death.
(c) If Optionee becomes disabled within the definition of Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended (the "Code"), while performing
services for Grantor or a subsidiary or parent corporation, such option, subject
to the provisions of subparagraph (d) of this Paragraph 4, may be exercised at
any time within one (1) year after the termination of services due to
disability.
(d) An option may not be exercised pursuant to this Paragraph 4 except to
the extent that Optionee was entitled to exercise the option at the time of
termination of services or death, and in any event may not be exercised after
the original expiration date of the option.
5. Divisibility and Assignability of the Options.
---------------------------------------------
(a) The Optionee may exercise the options herein granted from time to time
subject to the provisions of Section 3 above with respect to any whole number of
Shares included therein, but in no event may an option be exercised as to less
than one thousand (1,000) Shares at any one time, except for the remaining
Shares covered by the option if less than one thousand (1,000).
(b) The Optionee may sell, assign or otherwise encumber or dispose of the
options herein granted or any interest therein, provided that such transfer does
not violate the registration provisions under the Securities Act of 1933, as
amended.
-2-
<PAGE>
6. Stock as Investment.
-------------------
Optionee and any transferees, by accepting these options, agree that any
and all Shares purchased hereunder shall be acquired for investment purposes
only and not for sale or distribution, and upon the issuance of any or all of
the Shares, Optionee shall deliver to Grantor, upon request, a representation in
writing that the Shares are being acquired in good faith for investment purposes
only and not for sale or distribution. Grantor may place a "stop transfer"
order with respect to the Shares with its transfer agent and place an
appropriate restrictive legend on the stock certificate(s) evidencing the
Shares.
7. Restriction on Issuance of Shares.
---------------------------------
Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any option granted hereunder unless (a)
the issuance of such Shares has been registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, or counsel to Grantor
shall have given an opinion that such registration is not required; (b)
approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof; and (c) permission for the listing
of such Shares, if required, shall have been given by NASDAQ and any national
securities exchange on which the Common Stock of Grantor is at the time of
issuance listed.
8. Adjustments; Merger or Consolidation.
-------------------------------------
(a) In the event of changes in the outstanding Common Stock of Grantor by
reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of shares as to which the
options may be exercised shall be correspondingly adjusted by Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to shareholders of
Grantor of rights to subscribe for additional Common Stock or other securities.
(b) Any adjustment in the number of Shares shall apply proportionately to
only the unexercised portion of the options granted hereunder. If fractions of
a Share would result from any such adjustment, the adjustment shall be revised
to the next higher whole number of Shares so long as such increase does not
result in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of Grantor or its
subsidiaries.
-3-
<PAGE>
9. No Rights in Option Stock.
-------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
----------------------
This Agreement does not give Optionee any right to employment by, or any
other relationship with, Grantor.
11. Binding Effect.
--------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
12. Options Subject to Plan.
-----------------------
Notwithstanding anything contained herein to the contrary, this Agreement
is subject to, and shall be construed in accordance with, the terms of the 1994
Employee Stock Option Plan, as amended (the "Plan"), and in the event of any
inconsistency between the terms hereof and the terms of the Plan, the terms of
the Plan shall govern.
13. Miscellaneous.
-------------
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By: /S/ Johnny R. Thomas
---------------------------
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Byron D. Ford
------------------------------
Byron D. Ford
-4-
<PAGE>
EXERCISE OF OPTION
TO
PURCHASE SHARES
------------------------------------
TO: AgriBioTech, Inc.
The undersigned hereby exercises the within Option for the purchase of
_______ shares according to the terms and conditions thereof and of the 1994
Employee Stock Option Plan and herewith makes payment of the exercise price in
full in accordance with the terms of the Stock Option Agreement, dated as of
December 9, 1996, between AgriBioTech, Inc. and the undersigned. The
undersigned is purchasing such shares for investment purposes only and not with
a view to the sale or distribution thereof, unless such distribution is
registered under the Securities Act of 1933, as amended. Kindly issue the
certificate for such shares in accordance with the instructions given below.
----------------------------
Signature
Social Sec. or Taxpayer I.D. Number:
----------------------------
Instructions for issuance of stock:
- - --------------------------------------------------------------------------------
Name
- - --------------------------------------------------------------------------------
Street City State Zip Code
<PAGE>
EXHIBIT 4.12
NON-QUALIFIED STOCK OPTION AGREEMENT
------------------------------------
AGREEMENT made as of the 15th day of May, 1997 by and between AGRIBIOTECH,
INC., a Nevada corporation, having its principal executive offices at 2700
Sunset Road, Suite C-25, Las Vegas, NV 89120 ("Grantor"), and Greg McCarthy,
with an address at 45953 S.W. Maple Lane, Haston, Oregon 97119 ("Optionee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Grantor and Optionee are entering into a Stock Purchase Agreement
dated May 15, 1997 (the "Stock Purchase Agreement")among the Grantor, the
Optionee, Doug Pope, E.F. Burlingham & Sons ("EFB") and G.W. Burlingham's, Inc.
and an Employment Agreement dated May 15, 1997 (the "Employment Agreement"),
among the Grantor, EFB and the Optionee.
NOW, THEREFORE, as part of the consideration under the Stock Purchase
Agreement and the Employment Agreement, the Grantor hereby grants to Optionee
options to purchase common stock of the Grantor, $.001 par value ("Common
Stock"), on the following terms and conditions:
1. Option.
------
The Grantor hereby grants to Optionee a non-qualified stock option (not
qualified as described in Section 422 of the Internal Revenue Code of 1986, as
amended, the "Code") to purchase up to an aggregate of three hundred thousand
(300,000) fully paid and non-assessable shares of Common Stock (the "Shares"),
subject to the terms and conditions set forth below.
2. Purchase Price.
--------------
The Grantor shall pay all original issue or transfer taxes on the exercise
of this option and all other fees and expenses necessarily incurred by Grantor
in connection therewith. The purchase price per Share is $3.00, $4.00 and
$5.00, as more particularly set forth in Paragraph 3 below.
3. Exercise of Option.
------------------
(a) The option granted hereby may be exercised as follows: 100,000 of said
options shall become immediately exercisable at a purchase price of $3.00 per
Share and be exercisable until May 14, 2002; 100,000 of said options shall
become exercisable on May 15, 1998 at a purchase price of $4.00 and be
exercisable until May 14, 2003; 100,000 of said options shall become
exercisable on May 15, 1999 at a purchase price of $5.00 per Share and be
exercisable until May 14, 2004.
<PAGE>
(b) Optionee shall notify the Grantor in writing in person, by overnight
courier or registered or certified mail, return receipt requested, addressed to
its principal office, as to the number of Shares which Optionee desires to
purchase hereunder, which notice shall be accompanied by payment (by cash,
certified check, promissory notes or shares of Common Stock then owned by
Optionee valued at the closing sale price on the day preceding such tender) of
the option price therefor, as specified in Paragraph 2 above. As soon as
practicable thereafter, Grantor shall, at its principal office, tender to
Optionee certificates issued in Optionee's name evidencing the Shares purchased
by Optionee.
4. Option Conditioned On Continued Service.
----------------------------------------
(a) If the employment of Optionee shall be terminated for cause, or if
Optionee leaves such employment voluntarily, the options granted to Optionee
hereunder that have not vested shall expire immediately upon such termination.
If such employment shall terminate otherwise than by reason of death, disability
or for cause, such option may be exercised at any time within ninety days after
such termination, subject to the provisions of subparagraph (c) of this
Paragraph 4.
(b) If Optionee dies (i) while employed by Grantor or a subsidiary or
parent corporation, or (ii) within three (3) months after the termination of
Optionee's employment other than voluntarily by Optionee or for cause, such
option, subject to the provisions of subparagraph (c) of this Paragraph 4, may
be exercised by a legatee or legatees of such option under Optionee's last will
or by Optionee's personal representatives or distributees at any time within one
(1) year after Optionee's death.
(c) An option may not be exercised pursuant to this Paragraph 4 except to
the extent that Optionee was entitled to exercise the option, or any part
thereof, at the time of termination of employment or death, and in any event may
not be exercised after the original expiration date of the option.
5. Divisibility and Non-Assignability of the Options.
-------------------------------------------------
(a) Optionee may exercise the options herein granted from time to time
during the periods of their respective effectiveness with respect to any whole
number of Shares included therein, but in no event may an option be exercised as
to less than ten thousand (10,000) Shares at any one time, except for the
remaining Shares covered by the option if less than ten thousand (10,000).
(b) Optionee may not give, grant, sell, exchange, transfer legal title,
pledge, assign or otherwise encumber or dispose of the options herein granted or
any interest therein, otherwise than by will or the laws of descent and
distribution, and these options, or any of them, shall be exercisable during
Optionee's lifetime only by Optionee.
2
<PAGE>
6. Stock as Investment.
-------------------
By accepting these options, Optionee agrees for Optionee, Optionee's heirs
and legatees that any and all Shares purchased hereunder shall be acquired for
investment and not for sale or distribution, and upon the issuance of any or all
of the Shares Optionee, or Optionee's heirs or legatees receiving the Shares,
shall deliver to Grantor a representation in writing, that the Shares are being
acquired in good faith for investment and not for sale or distribution. Grantor
may place a "stop transfer" order with respect to the Shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate(s)
evidencing the Shares.
7. Restriction on Issuance of Shares.
---------------------------------
Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any option unless (a) the issuance of such
shares has been registered with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or counsel to Grantor shall have given an
opinion that such registration is not required; (b) approval, to the extent
required, shall have been obtained from any state regulatory body having
jurisdiction thereof; and (c) permission for the listing of such shares, if
required, shall have been given by NASDAQ and any national securities exchange
on which the Common Stock of Grantor is at the time of issuance listed.
8. Adjustments; Merger or Consolidation
------------------------------------
(a) In the event of changes in the outstanding Common Stock of Grantor by
reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number and class of shares as to which the
options may be exercised shall be correspondingly adjusted by Grantor. No
adjustment shall be made with respect to stock dividends or splits which do not
exceed 10% in any fiscal year, cash dividends or the issuance to stockholders of
Grantor of rights to subscribe for additional shares of Common Stock or other
securities.
(b) Any adjustment in the number of Shares shall apply proportionately to
only the unexercised portion of an option granted hereunder. If fractions of a
share would result from any such adjustment, the adjustment shall be revised to
the next higher whole number of Shares so long as such increase does not result
in the holder of the option being deemed to own more than 5% of the total
combined voting power or value of all classes of stock of Grantor or its
subsidiaries.
(c) Notwithstanding anything contained herein to the contrary, a merger or
consolidation in which Grantor is not the surviving corporation, or a sale of
substantially all of Grantor's assets or capital stock shall cause the
unexercised options to terminate automatically, unless otherwise provided by the
Board of Directors.
3
<PAGE>
9. No Rights in Option Stock.
--------------------------
Optionee shall have no rights as a shareholder in respect of Shares as to
which the options granted hereunder shall not have been exercised and payment
made as herein provided.
10. Effect Upon Employment.
-----------------------
This Agreement does not give Optionee any right to continued employment by
Grantor.
11. Binding Effect.
---------------
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors
legal representatives and assigns.
12. Miscellaneous.
--------------
This Agreement shall be construed under the laws of the State of Nevada
applied to agreements made and to be performed entirely within such State.
Headings have been included herein for convenience of reference only and shall
not be deemed a part of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AGRIBIOTECH, INC.
By:_____________________________
Johnny R. Thomas, President
and Chief Executive Officer
ACCEPTED AND AGREED TO:
--------------------------------
Greg McCarthy
4
<PAGE>
EXERCISE OF OPTION
TO
PURCHASE SHARES
------------------------------------
TO: AgriBioTech, Inc.
The undersigned hereby exercises the within Option for the purchase of
_______ shares according to the terms and conditions thereof and herewith makes
payment of the exercise price in full in accordance with the terms of the Stock
Option Agreement, dated as of May 15, 1997, between AgriBioTech, Inc. and the
undersigned. The undersigned is purchasing such shares for investment purposes
only and not with a view to the sale or distribution thereof, unless such
distribution is registered under the Securities Act of 1933, as amended. Kindly
issue the certificate for such shares in accordance with the instructions given
below.
------------------------------
Signature
Social Security or Taxpayer I.D. Number: ______________________
Instructions for issuance of stock:
- - --------------------------------------------------------------------------------
Name
- - --------------------------------------------------------------------------------
Street City State Zip Code
5
<PAGE>
EXHIBIT 5.1
SNOW BECKER KRAUSS P.C.
605 Third Avenue
New York, NY 10158
(212) 687-3860
July 24, 1997
VIA FAX AND MAIL:
Board of Directors
AgriBioTech, Inc.
2700 Sunset Road
Suite C25
Las Vegas, NV 89120
Re: Registration Statement on Form S-8 Relating to 6,461,500 Options and
8,985,000 Shares of Common Stock, Par Value $.001, of AgriBioTech, Inc.
Issuable Under the Company's Plans and Certain Stock Option Agreements
Ladies and Gentlemen:
We are acting as counsel to AgriBioTech, Inc., a Nevada corporation (the
"Company"), in connection with the filing by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of a registration statement on Form S-8 (the "Registration
Statement") relating to the exercise of options to purchase an aggregate of
3,250,000 shares of the Company's common stock, par value $.001 per share (the
"Common Stock"), and the sale of 3,250,000 shares (the "Shares") of Common
Stock, consisting of (i) 400,000 Shares issuable upon exercise of stock options
issued or issuable under the 1994 Employee Stock Option Plan (the "1994 Plan")
of the Company; and (ii) an aggregate of 2,850,000 shares of Common Stock
issuable upon exercise of stock options granted, outside of any plan.
We have examined and are familiar with originals or copies,
<PAGE>
certified or otherwise identified to our satisfaction, of the Certificate of
Incorporation and By-Laws of the Company, as each is currently in effect, the
Registration Statement, the related prospectus and reoffer prospectus, the 1994
Plan, the Bonus Plan, the NQSOs, the corporate proceedings in connection with
the proposed registration and issuance of the Shares and such other corporate
proceedings, documents and records and other certificates, and we have made such
investigations of law, as we have deemed necessary or appropriate in order to
render the opinions hereinafter set forth.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized and, when issued upon full payment
of the exercise price specified in the option agreements executed in accordance
with the terms of the 1994 Plan or in the NQSOs or when issued in accordance
with the Bonus Plan, as the case may be, and certificates therefor have been
duly executed and delivered, such Shares will be duly and validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus accompanying the Registration Statement for
resale of the Shares by affiliates. In giving this consent, we do not hereby
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
SNOW BECKER KRAUSS P.C.
<PAGE>
EXHIBIT 23.2
Independent Auditors' Consent
-----------------------------
The Board of Directors
AgriBioTech, Inc.:
We consent to the use of our report related to the consolidated financial
statements of AgriBioTech, Inc. and the combined financial statements of
Germain's Inc. and W-L Research, 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
July 24, 1997
