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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
Amendment No. 4
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 22, 1997
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AgriBioTech, Inc.
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(Exact name of registrant as specified in its charter)
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Nevada 0-19352 85-0325742
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<S> <C> <C>
(State or Other Jurisdiction (Commission File Number) (IRS Employer Ident. No.)
of Incorporation)
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120 Corporate Park Drive, Henderson, Nevada 89014
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(Address of Principal Executive Offices) (Zip Code)
(702) 566-2440
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Registrant's telephone number, including area code
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EXPLANATORY NOTE
This Amendment No. 4 on Form 8-K/A to the Current report on Form 8-K ("Form
8-K") for August 22, 1997 of AgriBioTech, Inc., a Nevada corporation (the
"Company") is submitted in order to amend Item 7 of the Form 8-K to include
Exhibit 2.3, Guaranty Agreement dated August 22, 1997 by and among the Company,
Greg S. Fennell and James E. Olsen.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits.
2.1 Purchase Agreement dated August 22, 1997 by and among
AgriBioTech, Inc., Olsen Fennel Seeds, Inc., Greg S. Fennel
and James E. Olsen.*
2.2 Omitted Schedules and Exhibits to the Purchase Agreement.*
2.3 Guaranty Agreement dated August 22, 1997 by and among
AgriBioTech, Inc., Greg S. Fennel and James E. Olsen.
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* Filed Previously
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AGRIBIOTECH, INC.
(Registrant)
Date: August 27, 1998 /s/ Henry A. Ingalls
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Henry A. Ingalls,
Vice President
EXHIBIT INDEX
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Exhibit No. Description
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2.1 Purchase Agreement dated August 22, 1997 by and among
AgriBioTech, Inc., Olsen Fennel Seeds, Inc., Greg S. Fennel and
James E. Olsen.*
2.2 Omitted Schedules and Exhibits to the Purchase Agreement.*
2.3 Guaranty Agreement dated August 22, 1997 by and among
AgriBioTech, Inc., Greg S. Fennel and James E. Olsen.
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* Filed Previously
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Exhibit 2.3
GUARANTY AGREEMENT
GUARANTY AGREEMENT (the "Guaranty") dated August 22, 1997 (the "Closing
Date") by and among Greg S. Fennell and James E. Olsen (collectively, the
"Sellers") and AgriBioTech, Inc., a Nevada corporation ("ABT").
W I T N E S S E T H:
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WHEREAS, ABT has agreed to purchase from the Sellers all of the issued and
outstanding shares of capital stock of Olsen Fennell Seeds, Inc. ("Olsen
Fennell") pursuant to a Stock Purchase Agreement dated August 22, 1997 (the
"Stock Purchase Agreement"), by and among ABT, the Sellers and Olsen Fennell;
WHEREAS, pursuant to Section 3(a)(ii) of the Stock Purchase Agreement, ABT
will transfer to the Sellers 777,500 registered shares of Common Stock of ABT
(the "ABT Shares"); and
WHEREAS, pursuant to Section 3(a)(ii) of the Stock Purchase Agreement, the
Sellers have entered into a Lock-Up Agreement (the "Lock-Up"), pursuant to which
they have agreed that they shall not sell, transfer or otherwise dispose of the
ABT Shares except during the time periods and in the amounts set forth in the
Lock-Up; and
WHEREAS, pursuant to Section 3(c) of the Stock Purchase Agreement, ABT has
guaranteed the Net Proceeds (as defined below) from the sale of the ABT Shares
when sold pursuant to the Lock-Up.
NOW, THEREFORE, in consideration of the foregoing and the terms, conditions
and mutual covenants appearing in this Guaranty, the parties hereto hereby agree
as follows:
SECTION 1. The ABT Shares, if sold pursuant to the Lock-Up, shall have
Guaranteed Net Proceeds (defined as gross sales price less customary sales
commissions and any applicable stock transfer and sales taxes) guaranteed by ABT
pursuant to the following schedule:
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MAXIMUM
NUMBER GUARANTEED GUARANTEED
QUARTER SALE PERIOD OF SHARES PRICE/ SHARE NET PROCEEDS
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1 Sept. 1 - Dec. 31, 1997 137,500 8.00/share $1,100,000
2 Jan. 1 - March 31, 1998 100,000 9.00/share 900,000
3 April 1 - June 30, 1998 140,000 10.00/share 1,400,000
4 July 1 - Sept. 30, 1998 100,000 10.50/share 1,050,000
5 Oct. 1 - Dec. 31, 1998 100,000 11.00/share 1,100,000
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MAXIMUM
NUMBER GUARANTEED GUARANTEED
QUARTER SALE PERIOD OF SHARES PRICE/ SHARE NET PROCEEDS
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<S> <C> <C> <C> <C>
6 Jan. 1 - March 31, 1999 100,000 11.50/share 1,150,000
7 April 1 - June 30, 1999 100,000 12.00/share 1,200,000
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777,500 $7,900,000
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SECTION 2. (a) To the extent that sales of ABT Shares pursuant to the Lock-
Up are made at prices per Share which are lower than the Guaranteed Price/Share
set forth in the Schedule above, ABT shall pay to the Sellers cash for any
shortfalls in the Guaranteed Net Proceeds on the last day of the month following
the end of the quarter in which such shortfall occurred; provided, however, that
(i) any shortfalls shall be calculated on a cumulative basis such that a
shortfall in any one quarter may be offset by surpluses in previous quarters and
(ii) such cumulative shortfall shall be adjusted by subtracting from such amount
an amount equal to 120,000 multiplied by the difference between the five day
average price/share measured at the end of such measured period (if greater than
$5.00/share) and $5.00.
(b) Any ABT Shares that Sellers elect not to sell during their
allocated quarters as described above shall be eligible for sale after June 30,
1999 in such quantities as Sellers desire. The Guaranty shall not apply to the
Net Proceeds received from the sale of such Shares.
(c) In the event that Sellers offer, sell, transfer or otherwise
dispose of the ABT Shares in violation of the Lock-Up, without the prior written
consent of ABT, (i) the Guaranty shall not apply to the Net Proceeds received
from such sale and shall from that time be null and void, and (ii) ABT shall be
entitled to all Net Proceeds received from such sale and all subsequent sales of
ABT Shares above $14.00 per Share.
SECTION 3. Subject to Section 6 hereunder, this Agreement shall inure to
the benefit of and be binding upon ABT, its successors and assigns, and upon the
Sellers, their heirs, executors, administrators, legatees and legal
representatives.
SECTION 4. Should any part of this Guaranty, for any reason whatsoever, be
declared invalid, illegal, or incapable of being enforced in whole or in part,
such decision shall not affect the validity of any remaining portion, which
remaining portion shall remain in full force and effect as if this Guaranty had
been executed with the invalid portion thereof eliminated, and it is hereby
declared the intention of the parties hereto that they would have executed the
remaining portion of this Guaranty without including therein any portion which
may for any reason be declared invalid.
SECTION 5. This Guaranty shall be construed and enforced in accordance with
the laws of the State of Nevada applicable to agreements made and to be
performed in such State without application of the principles of conflicts of
laws of such State.
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SECTION 6. This Guaranty and all rights hereunder are personal to the
parties and shall not be assignable, and any purported assignment in violation
thereof shall be null and void.
SECTION 7. (A) All notices, requests, consents, and demands by the parties
hereunder shall be delivered by fax, by hand, by recognized national overnight
courier or by deposit in the United States Mail, postage prepaid, by registered
or certified mail, return receipt requested, addressed to the party to be
notified at the address set forth below:
(i) if to the Sellers to:
Greg S. Fennell
5702 Charles Circle
Lake Oswego, OR 97034
Telecopier No.: (503) 624-1179
James E. Olsen
3372 Concomly S.E.
Salem, OR 97306
Telecopier No.: (503) 399-7119
with a copy to:
Clark, Lindauer, McClinton, Fetherston,
Edmonds and Lippold
880 Liberty Street N.E.
P.O. Box 2206
Salem, Oregon 97301
Attention: Ben Fetherston, Esq.
Telecopier No.: (503) 585-3978
(ii) if to the Buyer to:
AgriBioTech, Inc.
2700 Sunset Road, Suite C-25
Las Vegas, Nevada 89120
Attention: Johnny R. Thomas, President
Telecopier No.: (702) 798-8808
with a copy to:
Snow Becker Krauss P.C.
605 Third Avenue
New York, New York 10158
Attention: Elliot H. Lutzker, Esq.
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Telecopier No.: (212) 949-7052
(B) Notices given by mail shall be deemed effective on the
earlier of the date shown on the proof of receipt of such mail or, unless the
recipient proves that the notice was received later or not received, three (3)
days after the date of mailing thereof. Other notices shall be deemed given on
the date of receipt. Any party hereto may change the address specified herein by
written notice to the other parties hereto.
SECTION 8. (a) ABT shall be in default under this Guaranty upon failure
of ABT to comply with any payment ("Default Payment") due under Section 2(a) of
this Guaranty within 30 days after receipt of written notice from Sellers
demanding such compliance. Upon default, and at any time after default
hereunder, Sellers may declare a default under the Trust Deed and pursue all
remedies entitled to thereunder; for payment of the Default Payment. All other
payments not yet due under this Guaranty shall not otherwise be affected, until
their respective sale periods. The Sellers' election to declare a default under
the Trust Deed and seek payment of the Default Payment shall not be exclusive
and shall not limit or otherwise impair Sellers' available remedies at law or in
equity to enforce the terms of this Agreement.
(b) In the event that ABT commences a voluntary bankruptcy
proceeding, or there is an Order of Relief entered in an involuntary bankruptcy
case against ABT (which involuntary petition is not dismissed within sixty (60)
days after the date of filing) and the trustee in bankruptcy voids this Guaranty
or otherwise refuses to make the Default Payment to Sellers, then and only in
such event will the Sellers be relieved of all obligations under the non-
competition provisions set forth in each of the Sellers' Employment Agreements
entered into on this date.
SECTION 9. The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and said terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or any condition of this Agreement on the
part of either party shall be effective for any purpose whatsoever unless such
waiver is in writing and signed by such party.
IN WITNESS WHEREOF, the parties hereto have executed this Guaranty as of
the day and year first written above.
/s/ Greg S. Fennell
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Greg S. Fennell
/s/ James E. Olsen
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James E. Olsen
AGRIBIOTECH, INC.
By: /s/ Kathleen L. Gillespie
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Kathleen L. Gillespie, Vice President
