<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 14, 1998
REGISTRATION NO. 333-61127
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AGRIBIOTECH, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
---------------
NEVADA 85-0325742
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
120 CORPORATE PARK DRIVE
HENDERSON, NEVADA 89014
(702) 566-2440
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DR. JOHNNY R. THOMAS, CHAIRMAN OF THE BOARD
AGRIBIOTECH, INC.
120 CORPORATE PARK DRIVE
HENDERSON, NEVADA 89014
(702)566-2440
(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 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 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, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
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. [_]
---------------
EXPLANATORY NOTE
This Registration Statement on Form S-3 of AgriBioTech, Inc. is being filed
to register 4,287,291 shares of common stock (the "Common Stock") and
$143,750,000 principal amount of notes (the "Notes"). This Registration
Statement will be amended by two separate Prospectus Supplements. The first
Prospectus Supplement (the "Common Stock Prospectus Supplement") is presently
contemplated to include up to 4,500,000 shares of Common Stock (including
887,709 shares previously registered as described below) to be sold by the
Registrant in a public offering, which may or may not be underwritten, plus an
over-allotment option of 675,000 shares. The second Prospectus Supplement (the
"Debt Prospectus Supplement") is presently contemplated to consist of up to
$125,000,000 principal amount of Debt Securities to be sold in a public
offering, which may or may not be underwritten, plus an over-allotment option
of $18,750,000 of Debt Securities. Notwithstanding the foregoing, the
Registrant reserves the right to allocate between Debt Securities and Common
Stock under this Universal Shelf Registration at the time Prospectus
Supplements are filed.
The shares relating to footnotes (2) and (6) are included in the Common
Stock Prospectus.
The shares relating to footnotes (7) and (8) are included in the Debt
Prospectus.
---------------
Pursuant to Rule 429 under the Securities Act, the Prospectus included as
part of this Registration Statement shall be deemed to relate to 887,709
shares of Common Stock that were registered in the Registrant's Registration
Statement on Form S-3 (No. 333-47637), as last amended on August 14, 1998.
Upon effectiveness of this Registration Statement, the Registrant shall
withdraw such shares from such Registration Statement.
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<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value...... 887,709 Shs.(2) $ 13.4375(3) $ 11,928,590 $ 3,518.93(4)
Common Stock, $.001 par value...... 3,612,291 Shs.(2) $ 15.5625(5) $ 56,216,279 $16,583.80
Common Stock, $.001 par value...... 675,000 Shs.(6) $ 15.5625(5) $ 10,504,688 $ 3,098.88
Notes.............................. 125,000 Notes(7) $1,000.00 $125,000,000 $36,875.00
Debt Securities.................... 18,750 Notes(8) $1,000.00 $ 18,750,000 $ 5,531.25
Total.............................. $222,399,557 $65,607.87(9)
- ---------------------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 promulgated under the Securities Act of 1933, as
amended.
(2) Issuable pursuant to the Common Stock Prospectus by the Registrant in
registered original equity issuances.
(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 the Nasdaq National Market of $13 7/16 per
share on March 4, 1998.
(4) This amount was paid when the shares were first registered on March 10,
1998.
(5) 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 the Nasdaq National Market of $15.5625 per
share on August 4, 1998.
(6) Issuable pursuant to the exercise of an over-allotment option that may be
granted to any underwriters of the equity issuances referred to in Note
(2).
(7) Issuable pursuant to the Debt Prospectus in a registered debt offering.
(8) Issuable pursuant to an over-allotment option that may be granted by the
Registrant to any underwriters of the debt offering referred to in
Note (7).
(9) Of this amount: (a) $3,518.93 was paid when an aggregate of 7,000,000
shares, including these 887,709 shares, were registered with the
Commission (as defined in the Common Stock Prospectus) on March 10, 1998,
as described in Note (4) above; and (b) $62,088.94 is being paid with this
Registration Statement.
-ii-
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, AUGUST 14, 1998
AGRIBIOTECH, INC.
PROSPECTUS
$125,000,000 OF DEBT SECURITIES AND
4,500,000 SHARES OF COMMON STOCK
-----------
This Prospectus relates to the public offering by AgriBioTech, Inc., a Nevada
corporation ("ABT" or the "Company"), of its unsecured debt securities which
may be issued from time to time in one or more series (the "Debt Securities")
and shares of its Common Stock, par value $0.001 per share (the "Common
Stock"). The Company reserves the right to allocate between Debt Securities and
Common Stock under this Universal Shelf Registration at the time supplements
are filed to this Prospectus (each, a "Prospectus Supplement"). The first
Prospectus Supplement (the "Common Stock Prospectus Supplement") is presently
contemplated to include up to 4,500,000 shares of Common Stock to be sold by
the Company. The second Prospectus Supplement (the "Debt Prospectus
Supplement") is presently contemplated to include up to $125,000,000 principal
amount of Debt Securities. This Prospectus also relates to options to purchase
up to 15% of the Debt Securities and/or Common Stock which may be granted to
any underwriters solely to cover over-allotments. The Debt Securities and the
Common Stock are collectively referred to herein as the "Securities."
In the case of Debt Securities, the specific title, the aggregate principal
amount, the purchase price, the maturity, the rate (or method of calculation)
and time of payment of interest, if any, the right of the Company, if any, to
defer payment of interest on the Debt Securities and the maximum length of such
deferral period, any redemption or sinking fund provisions, any conversion
provisions, any subordination terms, any covenants and any other specific term
of the Debt Securities will be set forth in a Prospectus Supplement. In the
case of Common Stock, the specific number of shares, the issuance price per
share, and whether the shares are issuable upon conversion of warrants, options
or other derivative securities will be set forth in a Prospectus Supplement.
The Prospectus Supplement will also disclose whether the Securities will be
listed on a national securities exchange and if they are not to be listed, the
possible effects thereof on their marketability. If so specified in the
Prospectus Supplement, Securities may be issued, in whole or in part, in book-
entry form. The Risk Factors applicable to any specific offering of the
Securities will be contained in the Prospectus Supplement.
Securities may be sold directly, through agents from time to time, through
underwriters and/or dealers or through a combination of such methods. If any
agent of the Company or any underwriter is involved in the sale of the
Securities, the name of such agent or underwriter and any applicable commission
or discount will be set forth in the Prospectus Supplement. See "Plan of
Distribution."
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
-----------
The Common Stock is traded on the Nasdaq under the symbol "ABTX." On August
13, 1998, the closing sale price of the Common Stock as reported on the Nasdaq
National Market was $17.50 per share.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES 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 AUGUST 14, 1998
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). In accordance with the
Exchange Act, the Company files reports and other information with the
Securities and Exchange Commission (the "Commission"). You may inspect and
copy reports, proxy statements and other information filed by the Company 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. You may also obtain copies of such material at
prescribed rates, by writing to the Commission, Public Reference Room, 450
Fifth Street, N.W., Washington, D.C. 20549 or on the Commission's Worldwide
Web site at http://www.sec.gov.
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, you
should refer to the Registration Statement and the exhibits thereto or
incorporated by reference therein. Information concerning the Company may be
found on the Company's Web site at http://www.agribiotech.com. You may inspect
the Registration Statement, including such exhibits, 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. You may also obtain copies of these documents, at prescribed rates, by
writing to the Commission's Public Reference Room at the address set forth
above.
2
<PAGE>
INFORMATION INCORPORATED BY REFERENCE
The Company has filed the following documents with the Commission, all of
which are incorporated by reference into and made a part of this Prospectus:
(i) the Company's Annual Report on Form 10-KSB (as amended on October 24,
1997, February 17, 1998 and August 11, 1998) for the fiscal year ended June
30, 1997 ("Form 10-KSB");
(ii) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1996 (as amended on July 12, 1996), September 30, 1997 (as
amended on February 17, 1998 and August 11, 1998), December 31, 1997 (as
amended on February 17, 1998 and August 11, 1998) and March 31, 1998 (as
amended on August 11, 1998) ("Forms 10-Q");
(iii) the Company's Current Reports on Form 8-K for October 30, 1996 (as
amended on January 13, 1997, February 17, 1998 and August 11, 1998), May
15, 1997 (as amended on July 29, 1997, February 17, 1998 and August 11,
1998), June 18, 1997, August 22, 1997 (as amended on September 26, 1997,
February 17, 1998 and August 11, 1998), October 22, 1997, December 1, 1997,
January 6, 1998 (as amended on March 10, 1998, March 30, 1998 and August
11, 1998), January 9, 1998 (as amended on March 10, 1998, March 30, 1998
and August 11, 1998), January 26, 1998 (as amended on March 30, 1998 and
August 11, 1998), March 31, 1998, April 8, 1998, May 22, 1998, June 23,
1998 and August 11, 1998 ("Forms 8-K");
(iv) 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;
(v) the Company's Proxy Statement dated January 20, 1998 for its Annual
Meeting held on February 23, 1998; and
(vi) all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date of this Prospectus
and prior to the filing of a post-effective amendment that indicates that
all the securities offered hereby have been sold or that deregisters all
the securities remaining unsold.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein may be modified or superseded for purposes of
this Prospectus by a statement contained in this Prospectus or in any other
document that is filed after the date of this Prospectus that also is or is
deemed to be incorporated by reference herein. Any statement that is so
modified or superseded shall not be deemed to constitute a part of this
Prospectus, except as modified or superseded.
Copies of all documents that are incorporated by reference herein (not
including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents or into this
Prospectus) will be provided without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon a written or oral
request to AgriBioTech, Inc., Attention: Secretary, 120 Corporate Park Drive,
Henderson, NV 89014; telephone number (702) 566-2440.
3
<PAGE>
THE COMPANY
ABT is the largest agricultural seed company in the United States that
specializes in developing, processing, packaging and distributing varieties of
forage and cool-season turfgrass seeds. Since January 1, 1995, the Company has
completed 29 acquisitions (the "Acquisitions") and has executed agreements to
acquire two additional companies (the "Pending Acquisitions"). The Company has
grown from net sales of $29,000 in fiscal 1994 to pro forma net sales of
approximately $407 million for the 12-month period ended June 30, 1997,
including completed Acquisitions and the Pending Acquisitions. The Company's
vertically integrated forage and cool-season turfgrass seed operations include
traditional genetic breeding and research and development programs, seed
processing plants that clean, condition and package seed grown under contract
for ABT, and national and international sales and distribution networks. The
Company's headquarters are located at 120 Corporate Park Drive, Henderson,
Nevada 89014; telephone no. (702) 566-2440.
USE OF PROCEEDS
The primary purpose of this Offering is to provide the Company with
additional capital to fund its growth. The Company intends to use the net
proceeds of this Offering to repay any amount then outstanding under the
Company's Revolving Credit Facility. As of August 13, 1998, the Company had
borrowed approximately $53 million under the Revolving Credit Facility, which
matures on June 23, 2001 and is used primarily for working capital purposes.
The borrowings under the Revolving Credit Facility bear interest at a variable
rate of interest which averaged 8.4% per annum at August 13, 1998. The Company
has $100 million of borrowing availability, under the Revolving Credit
Facility, subject to a borrowing base computation and compliance with certain
financial covenants. The Company also intends to repay its $15 million of
borrowings under its Bridge Facility, if it has not been repaid, and which was
borrowed to fund certain acquisitions. Borrowings under the Bridge Facility
mature on January 4, 1999 and bear interest at a variable rate currently equal
to 9.125% per annum.
The Company will allocate a portion of the net proceeds to fund any Pending
Acquisitions. Approximately $15 million will be used by the Company to enhance
the Company's research and development efforts in the forage and turfgrass
sector. The Company may also use up to $4 million of the net proceeds to
improve and upgrade the Company's management information systems to
accommodate its rapid growth, and to also remediate computer issues associated
with the Year 2000. The balance, if any, of the net proceeds from this
Offering will be used for working capital purposes, including, but not limited
to, up to approximately $2 million to fund the construction of a proposed seed
cleaning facility in Wyoming.
Pending the Company's use of the net proceeds for each of the items
described above, other than repayment of indebtedness, the Company reserves
the right to reduce the balance due under the Company's Revolving Credit
Facility and then draw down upon such line of credit when it requires the
funds for the above uses or to invest any unused proceeds in short-term
marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was computed by dividing
earnings by fixed charges. For this purpose, earnings consist of earnings from
continuing operations, before income taxes and fixed charges of the Company
and its subsidiaries. Fixed charges consist of the Company's and its
subsidiaries' interest expense and the portion of rent expense representative
of an interest factor. For the years ended September 30, 1993 and 1994, the
nine months ended June 30, 1995, the years ended June 30, 1996 and 1997, and
the nine months ended March 31, 1997, earnings were inadequate to cover fixed
charges by approximately $0.2 million, $0.9 million, $1.4 million, $3.3
million, $2.7 million, and $1.2 million, respectively. The ratio of earnings
to fixed charges for the nine months ended March 31, 1998 was 1.4x.
4
<PAGE>
SELECTED FINANCIAL DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The selected financial data in the following table should be read in
conjunction with the Company's Financial Statements and the notes thereto,
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and other financial information incorporated by reference herein.
The historical selected financial data presented below under the captions
"Statement of Operations Data" and "Balance Sheet Data" for, and as of the end
of each of the years ended June 30, 1997 and 1996, the nine-month period ended
June 30, 1995, and each of the years ended September 30, 1994 and 1993 are
derived from the consolidated financial statements of ABT and subsidiaries,
which financial statements have been audited by KMPG Peat Marwick LLP,
independent certified public accountants. The consolidated financial
statements as of June 30, 1997 and 1996 and for the years then ended, and the
nine-month period ended June 30, 1995, and the report thereon, are
incorporated by reference in this Prospectus. The selected financial data
presented below for and as of the end of the nine month periods ended March
31, 1998 and 1997 are derived from the unaudited consolidated financial
statements of the Company incorporated by reference in this Prospectus. In the
opinion of the management, the unaudited consolidated financial statements for
the interim periods include all adjustments (consisting of normal recurring
accruals) necessary for a fair presentation of the results for such periods.
The results of operations for the nine month period ended March 31, 1998 are
not necessarily indicative of the results to be expected for the full year.
See "Management's Discussion and Analysis or Plan of Operations--Seasonality
of Business and Quarterly Comparisons" and "Business--Acquisition Program" in
the Company's Form 10-KSB for information that affects a comparison of the
Company's quarterly results of operations.
STATEMENT OF OPERATIONS DATA:
<TABLE>
<CAPTION>
NINE
NINE MONTHS YEARS ENDED MONTHS YEAR ENDED
ENDED MARCH 31, JUNE 30, ENDED SEPTEMBER 30,
----------------- ---------------- JUNE 30, --------------
1998 1997 1997 1996 1995(1) 1994 1993
-------- ------- ------- ------- -------- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales............... $139,695 $41,165 $65,904 $25,962 $ 4,754 $ 29 $ 12
Cost of sales........... 109,209 31,006 49,527 19,236 3,398 12 3
-------- ------- ------- ------- ------- ------ ------
Gross profit............ 30,486 10,159 16,377 6,726 1,356 17 9
Operating expenses...... 27,442 10,814 17,972 9,637 2,779 915 171
-------- ------- ------- ------- ------- ------ ------
Earnings (loss) from
operations............. 3,044 (655) (1,595) (2,911) (1,423) (898) (162)
Total other income
(expense).............. (1,634) (534) (1,119) (413) 16 8 (30)
-------- ------- ------- ------- ------- ------ ------
Earnings (loss) before
income taxes........... 1,410 (1,189) (2,714) (3,324) (1,407) (890) (192)
Income tax expense
(benefit).............. (2,907) -- -- -- -- -- --
-------- ------- ------- ------- ------- ------ ------
Net earnings (loss)..... 4,317 (1,189) (2,714) (3,324) (1,407) (890) (192)
Discount and imputed
dividends on preferred
stock.................. 80 3,203 3,233 2,318 -- -- --
-------- ------- ------- ------- ------- ------ ------
Net earnings (loss)
attributable to common
stock.................. $ 4,237 $(4,392) $(5,947) $(5,642) $(1,407) $ (890) $ (192)
======== ======= ======= ======= ======= ====== ======
Shares of common stock
used in computing
(loss) per common share
(in thousands):
Basic.................. 28,044 13,301 15,549 7,459 5,485 3,911 1,205
Diluted................ 32,374 13,301 15,549 7,459 5,485 3,911 1,205
======== ======= ======= ======= ======= ====== ======
Net earnings (loss) per
common share:
Basic.................. $ 0.15 $ (0.33) $ (0.38) $ (0.76) $ (0.26) $(0.23) $(0.16)
Diluted................ $ 0.13 $ (0.33) $ (0.38) $ (0.76) $ (0.26) $(0.23) $(0.16)
======== ======= ======= ======= ======= ====== ======
</TABLE>
(Footnote on following page)
5
<PAGE>
BALANCE SHEET DATA:
<TABLE>
<CAPTION>
JUNE 30, SEPTEMBER 30,
MARCH 31, ----------------------- -------------
1998 1997 1996 1995(1) 1994 1993
--------- ------- ------- ------- ------ ------
<S> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents..... $ 2,967 $ 2,554 $ 2,522 $1,423 $ 441 $ 14
Total assets.................. 258,770 95,113 26,184 8,014 765 309
Long-term obligations,
excluding current
installments................. 8,433 2,668 1,055 148 106 213
Total liabilities............. 107,880 50,125 12,161 1,681 261 384
Working capital............... 24,263 7,555 6,461 3,792 375 (158)
Stockholders' equity.......... 150,891 44,988 14,022 6,333 504 (75)
</TABLE>
- --------
(1) The Company changed its fiscal year end to June 30th effective in 1995.
ACQUISITIONS, DESCRIPTION OF OTHER INDEBTEDNESS,
RECENT DEVELOPMENTS AND WEB SITE DISCLOSURES
ACQUISITIONS
Since the Company commenced its acquisition program in January 1995, it has
acquired all or part of 29 seed companies and has signed agreements to acquire
two aditional seed businesses, all as described in the tables below.
<TABLE>
<CAPTION>
APPROXIMATE
REVENUE FOR
LAST YEAR APPROXIMATE
PRIOR TO PURCHASE
AGRIBIOTECH EFFECTIVE ACQUISITION PRICE
ACQUISITIONS(1) DATE (IN MILLIONS) (IN MILLIONS) DESCRIPTION OF BUSINESS
--------------- --------- ------------- ------------- ------------------------
<C> <C> <C> <C> <S>
Seed Resource............... Jan 95 $ 1.6 $ 1.1 Distribution, production
and research in Texas of
proprietary sorghum,
sudan grass, ryes &
millets in the U.S.,
Mexico and Europe.
Scott Seed Company.......... Mar 95 $ 5.5 $ 1.5 Distribution of
proprietary alfalfa
varieties, clover
varieties, pasture
mixes, turfgrass
varieties and corn
hybrids in Kentucky and
Southern Indiana.
Hobart Seed Company......... Apr 95 $ 3.3 $ 1.7 Distribution of alfalfa,
field seeds and lawn and
garden supplies in Okla-
homa, Texas and Kansas.
Sphar Seed Company.......... July 95 $ 2.1 $ 0.3 Markets proprietary al-
falfa varieties, clover
varieties, pasture mix-
es, turfgrass varieties
and corn hybrids
throughout Kentucky and
Southern Indiana.
Halsey Seed Company......... July 95 $ 1.2 $ 1.1 Distribution of alfalfa,
field seeds and turf
seeds in New York and
New England.
Arnold Thomas Seed Service.. Oct 95 $ 2.3 $ 0.9 Production and seed
cleaning facilities in
Washington with access
to grass, clover and
alfalfa seed production
areas in the Northwest.
Clark Seeds................. Oct 95 $ 4.1 $ 2.2 Distribution, production
and seed cleaning facil-
ities in Idaho and Ore-
gon.
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
APPROXIMATE
REVENUE FOR
LAST YEAR APPROXIMATE
PRIOR TO PURCHASE
AGRIBIOTECH EFFECTIVE ACQUISITION PRICE
ACQUISITIONS(1) DATE (IN MILLIONS) (IN MILLIONS) DESCRIPTION OF BUSINESS
--------------- --------- ------------- ------------- ------------------------
<C> <C> <C> <C> <S>
Doug Conlee Seed............. Jan 96 $ 1.0 $ 0.6 Distribution of forages,
proprietary sorghum and
sudan grass germplasm
from Texas.
Beachley-Hardy Seed.......... Feb 96 $ 9.7 $ 4.1 Distribution of proprie-
tary forage and
turfgrass products,
Roundup-ready soybeans
and high-oil corn in the
Northeast.
Michigan Hybrid Seed......... Jun 96 Nil Nil Distribution of proprie-
tary alfalfa varieties
and hybrid seed corn in
Michigan.
W-L Research and Germain's... Sept 96 $22.2 $16.2 W-L is a leading alfalfa
research company. See
"Description of
Business--Research and
Development" in the Form
10-KSB. This company has
a strong base of
franchised distributors
in the U.S. and several
foreign countries.
Germain's is one of the
oldest, best recognized
regional seed companies
in the Western U.S. with
more people serving more
Western States than any
other forage or
turfgrass seed company.
The 127-year-old company
markets hybrid corn,
alfalfa, turfgrass,
clover, pasture grass
and clover crop seed in
the Western U.S. &
Mexico.
E.F. Burlingham & Sons(2).... Apr 97 $35.6 $ 9.6 Distribution, production
and research in Oregon
of turfgrass seed with
many varieties scoring
as leading performers in
official national turf
evaluation tests.
Sexauer Seed................. Apr 97 $10.3 $ 3.2 Distribution and produc-
tion of forages in South
Dakota with 106 years of
history.
Olsen Fennell Seeds.......... Jun 97 $28.6 $15.2 Distribution and
production in Oregon
with good germplasm in
turf seeds and non-
alfalfa forages.
LaCrosse Seed................ Jul 97 $ 9.4 $ 7.0 Distribution of alfalfa,
field seeds and
turfgrass seeds in the
upper Midwest.
Lofts Seed(3)................ Jan 98 $74.7 $33.1 Distribution, production
and research company,
based in North Carolina.
Lofts Seed is a premier
turfgrass seed company
with national and
international sales.
Seed Corporation of America.. Jan 98 $39.8 $ 9.2 Distribution of forage
and turfgrass seed
nationwide.
Discount Farm Center......... Feb 98 $ 5.9 $ 3.1 Distribution of forage
small grains, other for-
ages and birdseed in the
Midwest.
Kinder Seed.................. Feb 98 $ 3.1 $ 3.5 Distribution of forages
and turfgrasses in the
Northeast.
Las Vegas Fertilizer......... Jan 98 $16.0 $12.4 Distribution of
turfgrass to golf
courses and lawn and
garden products to home
improvement centers,
mass merchandisers and
nurseries in Nevada,
California, Utah, Idaho
and Wyoming.
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
APPROXIMATE
REVENUE FOR
LAST YEAR APPROXIMATE
PRIOR TO PURCHASE
AGRIBIOTECH EFFECTIVE ACQUISITION PRICE
ACQUISITIONS(1) DATE (IN MILLIONS) (IN MILLIONS) DESCRIPTION OF BUSINESS
--------------- --------- ------------- ------------- ------------------------
<C> <C> <C> <C> <S>
Ohio Seed Company.......... Mar 98 $ 9.3 $ 3.8 Distribution of forages
and turfgrasses in Ohio
and Michigan.
Van Dyke Seed.............. Jan 98 $10.5 $ 8.2 Distribution and produc-
tion of forage crops in
Oregon.
Zajac Performance Seed..... Jan 98 $ 8.5 $ 6.6 Distribution and
production of private
label proprietary
turfgrass varieties to
independent wholesale
distributors in New
Jersey and Oregon.
Peterson Seed Company...... May 98 $11.8 $ 6.3 Distribution of alfalfa,
clovers, turf mixes and
other forages.
W-D Seed Growers Idaho..... June 98 $14.2 $12.1 Production and seed
cleaning facilities in
Idaho and Nevada.
Fine Lawn Research......... July 98 $ 5.1 $ 2.7 A leading production
company; owns several
proprietary turf
varieties that exhibit
outstanding performance.
Distribution of
proprietary rye grass
and turf type tall
fescue to professional
users.
Geo. W. Hill of Indiana.... July 98 $ 4.9 $ 1.5 Distribution of alfalfa,
clovers and turf mixes
to farmers, homeowners
and landscapers; will
significantly strengthen
ABT's midwest
distribution base.
Geo. W. Hill & Co.......... July 98 $20.8 $ 6.3 Distribution of turf
mixes, perennial rye
grass, turf type tall
fescue to homeowners and
landscapers; also lawn
and garden supplies,
fertilizers and
chemicals to retail
stores and nurseries.
Arrowhead Enterprises, Inc.
(d/b/a J&M Seed Company).. August 98 $ 9.2 $ 3.4 Distribution of alfalfa,
clovers, turf mixes,
other forages, and
reclamation seed
products. The Company
believes this to be an
excellent complement to
the existing
distribution base in
Kentucky and West
Virginia.
</TABLE>
- --------
(1) Other than as described in notes (2) and (3) below, during the last five
years none of the Company's significant acquisitions has been involved in
a significant corporate transaction including, but not limited to (a) any
bankruptcy, receivership or similar proceedings or (b) any material
reclassification, merger, consolidation, or purchase or sale of a
significant amount of assets not in the ordinary course of business.
(2) In May 1994, Douglas Pope and Greg McCarthy, the principal shareholders of
E.F. Burlingham, who sold such company to ABT, purchased the Company from
George Burlingham.
(3) Includes Lofts Seed Inc. and Budd Seed, Inc., which are companies under
common control. The stockholders of Budd Seed, Inc. acquired Lofts Seed
Inc. on June 28, 1996.
8
<PAGE>
The following two seed business acquisitions are pending, and are both
expected to be completed in August 1998.
<TABLE>
<CAPTION>
APPROXIMATE
REVENUE FOR
LAST YEAR APPROXIMATE
ANTICIPATED PRIOR TO PURCHASE
AGRIBIOTECH EFFECTIVE ACQUISITION PRICE
ACQUISITIONS DATE (IN MILLIONS) (IN MILLIONS) DESCRIPTION OF BUSINESS
------------ ----------- ------------- ------------- ------------------------
<C> <C> <C> <C> <S>
Willamette Seed Company.. August 98 $41.8 $13.6(1) Production and
distribution of
turfgrass seed to
wholesale distributors
in the U.S. and
internationally; also
distribution of
fertilizer to farmers.
Oseco.................... August 98 $ 9.4 $ 4.5(1) Distribution of alfalfa,
turf mixes, bluegrass,
ryegrass, forage grasses
and clovers to farmer
dealers, elevators,
nurseries and
landscapers. Also owns a
production facility for
cleaning, processing of
alfalfa and a seed
coating plant.
</TABLE>
- --------
(1) Estimated based on signed agreements.
DESCRIPTION OF OTHER INDEBTEDNESS
Revolving Credit Facility
The Company entered into a Revolving Credit Facility (the "Revolving Credit
Facility") pursuant to a Loan and Security Agreement dated as of June 23,
1998, with BankAmerica Business Credit, Inc. ("BABC"), as agent, and Deutsche
Financial Services Corporation ("DFSC") as administrative agent and certain
financial institutions, as lenders, including BABC and DFSC. Under the
Revolving Credit Facility, the Company has a maximum borrowing availability of
up to $100 million (subject to a borrowing base computation and compliance
with certain financial covenants), and may borrow, repay and reborrow
revolving loans and request BABC as agent to cause letters of credit to be
issued for the account of the Company. The Revolving Credit Facility expires
on June 23, 2001. As of August 13, 1998, the Company had borrowed
approximately $53 million. The proceeds of the Revolving Credit Facility are
used for working capital and other general corporate purposes.
The Company may elect to borrow revolving loans under the Revolving Credit
Facility as "LIBOR Loans" or "Base Rate Loans." Base Rate Loans are loans that
bear interest at a variable rate equal to the "reference rate" of Bank of
America National Trust and Savings and Association (the "Bank") plus 1.125%
and LIBOR Loans bear interest at a variable rate of interest equal to the
applicable "London Interbank Offered Rate" of the Bank plus 2.375% for a one,
two or three month interest period, as selected by the Company. The variable
rate of interest averaged 8.4% per annum at August 13, 1998.
The Revolving Credit Facility is secured by collateral consisting of
substantially all the assets (excluding fixed assets and real property) of the
Company and its subsidiaries whether now owned or existing or hereafter
acquired in which a security interest may lawfully be granted, including,
without limitation, accounts receivable, inventory, intellectual property, the
proceeds therefrom and all of the capital stock of the Company's subsidiaries.
Each of the Company's domestic subsidiaries is a co-borrower under the
Revolving Credit Facility and new acquisitions are required to become co-
borrowers by signing a joinder agreement. The terms of the Revolving Credit
Facility contain operating and financial covenants, including, without
limitation, requirements to maintain minimum ratios of cash flow to debt
service and a maximum ratio of total debt to equity. Standard & Poor's
assigned its single "B" rating to the Revolving Credit Facility and a single
"B" corporate credit rating to the Company.
Bridge Facility
The Company has entered into a bridge loan facility (the "Bridge Facility")
pursuant to a Bridge Loan Agreement dated as of July 3, 1998 with Deutsche
Bank AG, New York Branch, which provided the Company
9
<PAGE>
with $15 million of unsecured bridge financing in connection with certain
pending acquisitions. The Bridge Facility matures on January 4, 1999 and
consists of Base Rate Loans and Euro-Dollar Rate Loans. The interest rate is
3.5% above the Base Rate or the Euro-Dollar Rate prior to September 7, 1998,
5.5% per annum above such rates from then to November 7, 1998 and 7.5% above
such rates thereafter, and currently bears interest at a variable rate equal
to 9.125% per annum.
Long-Term Debt
The Company currently has approximately $10.6 million of long-term debt
secured by real estate and equipment. Such debt is repayable over periods of
up to 10 years and bears interest at rates ranging from 7.3% to 10.0% per
annum.
RECENT DEVELOPMENTS
Biotechnology Alliances
The Company's first biotechnology alliance, announced in March 1998, is its
agreement to fund research by the Samuel Roberts Noble Foundation ("Noble") to
use transformed plants to develop alfalfa with improved digestibility
utilizing genes developed by Noble, a not-for-profit research institute
located in Oklahoma. Digestibility is one of the major measures of hay quality
and an important determinant of the price per ton.
On July 24, 1998, the Company announced it had signed a letter of intent
with Global Agro, Inc. ("Global Agro") to enter into a biotechnology license
agreement and an equity stake agreement. As an equity owner in Global Agro,
the Company will have worldwide rights, exclusive in certain crops, to
technology at Global Agro, including rights to technology from The Salk
Institute for Biological Studies. Global Agro has an agreement with The Salk
Institute which will permit the Company to commercialize and license specific
proprietary technologies developed by The Salk Institute's Plant Biology
Laboratory. The Salk Institute is an equity owner of Global Agro. The
Company's worldwide exclusive technology rights are for all turfgrass species
and for all forage grasses and certain legumes.
On July 27, 1998, the Company announced that it had signed a letter of
intent with FFR Cooperative ("FFR") to form a long-term, worldwide research
alliance to develop and commercialize improved proprietary seed products. FFR
was founded approximately 40 years ago by several regional farmer owned
cooperatives to breed genetically improved varieties of a number of crop
species. FFR has a well established breeding program and germplasm base in a
number of important forage species, including orchard grass, red clover, tall
fescue and timothy and has breeding programs in alfalfa, corn, soybeans, and
wheat. Under the agreement, the Company will market under private label new
genetically improved varieties of orchard grass, red clover, tall fescue and
timothy developed by FFR through the Company's worldwide distribution system.
FFR members and affiliates will be the only other distributors of FFR
varieties in those species. The agreement also provides for the Company to
introduce genes into the forage germplasm using biotechnology tools and to
market such improved products through the distribution system of the regional
cooperative owners of FFR. See "Web Site Disclosures" below.
WEB SITE DISCLOSURES
In the following paragraphs, the Company is disclosing information discussed
in the Company's Web Site, including forward-looking information, that is not
otherwise set forth in this Prospectus or incorporated by reference herein.
Forward-looking and other statements in this section, as well as elsewhere in
this Prospectus, reflect the good faith judgment of the Company's management,
and were solely based on facts and factors known by the Company at the time
such statements were made. Except where otherwise indicated, the following
statements in this section have not been updated since they were made.
Forward-looking statements are inherently subject to risks and uncertainties,
and actual results and outcomes may differ materially from the results and
outcomes discussed in the forward-looking statements. The risks and
uncertainties that could cause or contribute to such differences in results
and outcome include without limitation, the Company's historical lack of
profitability, need to manage its growth, intense competition in the seed
industry, seasonality of quarterly results, as well as those factors discussed
under "Risk Factors" and elsewhere in this Prospectus and in any documents
that are incorporated into this Prospectus by reference.
10
<PAGE>
AgriBioTech Mission Statement. "To become the premier forage and turfgrass
seed company in the world, while also providing a full service seed product
line. AgriBioTech, Inc. is committed to providing superior, value added seed
varieties and superior service. The ultimate goal is to achieve a 45% market
share in forage and turf seed by the year 2000 with annual revenues exceeding
$500 million."
Chairman's Update--March 4, 1998. "Building "Franchise Value' will continue
to be management's primary focus for the foreseeable future. The AgriBioTech
vision has been to build a strong platform consisting of industry leading
germplasm, industrial leading market share through an established distribution
base, all managed by world-class experienced personnel who excel in developing
and marketing value-added propriety products. I have always believed that the
successful assembly of such a platform would make AgriBioTech the partner of
choice for biotechnology developers wishing to participate in the forage and
turfgrass seed sector. I am pleased to report that our platform is
exceptionally strong and it appears we will achieve all the goals we had set
for December 31, 2000 by December 31, 1998--two years ahead of schedule!"
"Recent appreciation in the share prices and resulting market capitalization
of DEKALB and Delta Pine within our peer group are due, in my opinion, to the
"scarcity' of seed companies with large seed revenues, distribution base and
exceptional germplasm. There are only a few companies that have these
characteristics and we are one of them. Our revenues are substantially larger
than the revenues of Delta Pine and almost equal to DEKALB's. Our germplasm
base is exceptional! Consequently, I believe that AgriBioTech is grossly
under-valued. Based on the market prices of AgriBioTech in relation to our
peer group, compared to my current perception of the relative "Franchise
Value' of AgriBioTech and our peer group, as CEO, I will not authorize
AgriBioTech to file an underwritten public offering of its Common Stock while
our share price is below $20 per share."
"We expect to have several biotechnology agreements by June 30, 1998. Each
of which will contribute to "Franchise Value' and maximizing shareholder
value." This quote was subsequently qualified in the Chairman's Update dated
June 22, 1998, as follows--"Biotechnology/Gene Access: ABT continues to
negotiate with a large number of parties for gene access. Negotiations are
proceeding well. As you know, I have indicated to shareholders that we
expected to enter into a second agreement before June 30. This remains a
possibility, but we will not hasten the process simply to meet my June 30
prognostication. Shareholders can rest assured that ABT is the "partner of
choice' for a number of genes, from a variety of sources." As disclosed under
"Recent Developments" above, and as set forth under "Company News" in the
Company's Web Site, on July 27, 1998, the Company announced that it had signed
a letter of intent with FFR Cooperative to form a long-term worldwide research
alliance to develop and commercialize improved proprietary seed products. In
its July 27, 1998 press release the Company stated that: "AgriBioTech
management estimates that AgriBioTech's forage grass market share coupled with
those who distribute FFR's products exceeds 55% in the United States."
A graph from the Company's 1996 Annual Report to Shareholders was reproduced
in response to shareholder questions on the time frame for gross margin
increase through product shifts and implementation of classic consolidation
efficiencies. The graph showed nominal profitability during the first two
years with the curve starting to increase in year three, further increasing in
year four, and then significantly increasing in year five.
Furthermore, it was pointed out that significant integration could not begin
until the Company achieved a minimum critical mass, first achieved in calendar
1998, as illustrated in the chart below. The following chart illustrated the
Company's growth based on dates relative to the Company's annual meeting dates
using estimates and approximations of ABT's relative size from acquisitions
(completed and pending) to those dates:
<TABLE>
<CAPTION>
PROJECTED
1/1/95 2/2/95 2/2/96 2/2/97 2/2/98 2/2/99
------ ------ ------ ------ ------ ---------
<S> <C> <C> <C> <C> <C> <C>
NUMBER OF COMPANIES (Acquired or
Pending)......................... 0 2 8 11 24 ^30
NUMBER OF EMPLOYEES............... 5 50 165 200 730 ^900
ANNUALIZED REVENUE $(MILLION)..... 0 10 31 64 372 >500
STOCK PRICE $..................... 0 2.50 2.48 3.18 14.50 ?
</TABLE>
11
<PAGE>
April 1, 1998 Chairman's Update. Following the Company's entering into its
first biotechnology alliance in March 1998 with the Samuel Roberts Noble
Foundation ("Noble") to use transformed plants to develop alfalfa with
improved digestibility utilizing genes developed by Noble, the following two
statements were made under the subheading "Biotechnology/Gene Access":
"Shareholders should evaluate each of our biotechnology agreements
(including specific genes) on their contribution to our Franchise Value. Each
gene and agreement contributes to our Franchise Value in two ways: the amount
of potential increase in profit to our end user customers and the Company due
to value created in the market (e.g., additional profit per acre X number of
acres); and, cost to the Company to gain access to a gene or technology, as
measured by development expense and royalties owed during marketing."...
"Digestibility is one of the major measures of hay quality and an important
determinant of price per ton. Small increases in digestibility result in large
increases in the value of the hay crop. A 1% increase in digestibility would
significantly increase the value of hay as a feed for milk or meat production.
Such an increase applied to the entire hay crop in the U.S. would translate
into a $500 million increase in the value of hay harvested at the end user
level. Given the four year harvest life of varieties, this translates into
$2.0 billion of extra hay value." [See "Recent Developments" above.]
"Negotiations for additional acquisitions continue as we seek to reach an
annualized revenue base of $500 million by December 31, 1998, two full years
ahead of our original schedule."
The following statement was made under the subheading "Equity Funding"--"The
$30.5 million equity placement helped us achieve the following important
goals: . . . Broadened our shareholder base with quality investors who
understand the seed industry and consequently are likely to be long-term
holders of seed stocks."
June 22, 1998 Chairman's Update. Monsanto (MTC) Acquisition of DEKALB (DKB)
and Delta & Pine Land (DLP). "The May 11, 1998 announcement of the acquisition
of DEKALB Genetics Corporation and Delta & Pine Land by Monsanto at a purchase
price of over 7 times revenues was an excellent validation of AgriBioTech's
management strategy. Our "Franchise Value' focus is to make ABT a mirror image
of Pioneer and Delta & Pine Land (industry leading market share, industry
leading germplasm and research, and world class value added/operations
personnel). These two acquisitions, coupled with previous investments by
Dupont (DD) in Pioneer (PHB) and Dow (DOW) in Mycogen (MYCO) are certainly
positive developments for AgriBioTech. Shareholders should recognize that ABT
management has achieved only a portion of our "Franchise Value' goals.
Consequently, shareholders should not expect a valuation today of 7 times
revenue. However, it is reasonable to expect valuation multiples greater than
today's 2.5 times revenue multiple. The "Franchise Value' tasks which need to
be accomplished in the short term can best be accomplished by current
management. Consequently, it is most likely that an initial equity investment
(if any) by one of the larger life science companies would be a minority
ownership investment at this time."
Monsanto/Research Seeds Alfalfa Agreement--"Roundup Ready(R) alfalfa will be
an important value added trait, but there are a number of other genes which
will contribute more value to the end user, such as ABT's digestibility work
with The Noble Foundation. ABT is focusing initial resource commitments on
traits with maximum economic value and for which we can negotiate "freedom to
operate' through commercialization, not just "freedom to operate' through
research and development."
Financial Information. Human Assets. The Company announced that on January
1, 1998 two key positions were filled, that of President and Chief Operating
Officer and Vice President, Director of Research. The respective biographies
of Kent Schulze, President, and Dr. Thomas B. Rice, Vice President, appear in
the Company's Proxy Statement dated January 20, 1998. See "Information
Incorporated by Reference."
This section includes the following biographies of various other employees
which also appear in the Company's 1997 Annual Report to Shareholders, none of
whom, except Dr. Rice, are executive officers of the Company.
12
<PAGE>
"Dr. Thomas B. Rice, Vice President, Director of Research, who will join the
Company January 1, 1998 was formerly with DEKALB Genetics Corporation, where
he served 10 years as Director of Research and subsequently as President and
Chief Operating Officer of DEKALB Plant Genetics, a subsidiary. Tom was the
architect of DEKALB'S highly successful biotechnology effort, starting at
Pfizer in 1976 where he initiated, managed and directed the plant
biotechnology effort. This program later became DEKALB's highly productive
effort as a result of a joint venture with Pfizer. Tom's program developed the
first genetically engineered corn and received the first product patents for
corn, covering insect resistance (Bt), herbicide tolerance and improved
nutritional quality. During his seed industry career, Tom has had direct
management experience in the areas of international subsidiaries, strategic
alliances, breeding and biotechnology R&D, intellectual property rights,
strategic planning and technology transfer. He will lead ABT's R&D and
biotechnology efforts to optimize the Company's planning and investments in
this critical area and in exploring the possibilities associated with
licensing in and/or collaborating in the development of biotechnology traits,
products and processes. Tom received a Ph.D. in genetics from Yale University
in 1973, and was a Post-Doctoral fellow of Brookhaven National Laboratory and
a Research Associate at Michigan State University before joining Pfizer.
Keith Sandberg, National Sales Director, was formerly Area Manager for the
Central and Southern Regions of Cargill Hybrid Seeds, a division of Cargill,
Inc., the largest privately owned company in the U.S. Keith was responsible
for the sales and commercial development activities to support Cargill's corn,
alfalfa and sorghum product lines. From 1987 to 1993, Keith was responsible
for Sales, Sales Administration and Technical Services, Central and Southern
Regions, for Cargill, based in Aurora, Illinois. Keith managed all sales and
agronomy activities for Cargill's seed products in the Central and Southern
regions, and had primary responsibilities for managing the integration of the
seed brands PAG, Paymaster and Cargill. From 1981 to 1987, Keith managed North
American Sales for the Paymaster Brand and had product line responsibility for
Cargill's corn business in Canada.
Bruce J. Ceranske, General Manager of W-L Research, was formally a District
Sales Manager for all or parts of Wisconsin, Minnesota, Michigan and Iowa, for
Cargill Hybrid Seeds based in Waupaca, Wisconsin since 1989. In addition,
Bruce was selected to Cargill Hybrid Seeds Corn Business Management Team and
Forage Management Team, which selected corn and alfalfa germplasm for
production, and commercialization. Currently, Bruce is managing W-L Research,
based in Evansville, Wisconsin. W-L Research is a world leading alfalfa
research company with varieties marketed globally.
Keith Flynn, Forage Business Unit Director, holds a BS degree in Plant
Breeding & Genetics from the University of Reading, England. Keith was
formerly Vice President of Alfalfa, Wheat and International (1994 to 1997) for
Agripro Seeds, a wholly owned subsidiary of Helena Chemical Co. Keith directed
three profitable business units with research, production, sales and marketing
as direct reporting functions. From 1972 to 1994, Agripro Seeds and its
predecessors were owned by Shell Oil and The Royal Dutch Shell Group. Keith
held increasingly important positions in sales, marketing, product management
and general management. He has extensive knowledge of both national and
international seed business and brings 25 years of broad seed experience to
ABT.
Doug Elkins, Western Regional Sales Manager joined Germain's Seeds in 1978
as a Washington State Sales Representative. He was promoted to Sales Manager
in 1980, to Division Manager in 1987 and to Chief Executive Officer in 1992.
Prior to joining Germain's, Doug was employed at Ferry Morse Seed Company and
Helena Chemical. He has 24 year of experience in the seed business and served
as President of the Pacific Seed Association and currently serves as President
of the California Seed Association and holds a position on the California Seed
Advisory Board. As the Western Regional Sales Manager he has the primary
responsibility and oversight of sales and marketing for the western region of
ABT which includes Germain's Seeds and Hobart Seed Co.
Greg S. Fennell started in the seed business as a shipping coordinator in
1979, became active in seed sales in 1980 and in 1986 co-founded Olsen Fennell
Seeds, Inc. with James E. Olsen. They developed Olsen Fennell into an industry
leading turf and forage seed company with revenues in excess of $35 million.
Greg's primary
13
<PAGE>
responsibility at Olsen Fennell is income production where he dedicates most
of his time to distributor sales and the creation and implementation of
marketing plans for proprietary turf and forage grasses. He is responsible for
international sales, and concentrates much of his domestic marketing efforts
in the Midwestern and Southern states. Greg graduated from the University of
Oregon with a major in Business Management.
Greg McCarthy's career in the seed business began in 1976 as an agronomist
and field representative for E.F. Burlingham & Sons. Greg is experienced in
various aspects of seed management procurement and international sales. Greg
and Doug Pope purchased Burlingham in 1994 and have guided the company into
becoming an industry leading turf and grass seed research, production and
distribution company with net sales in excess of $36 million. Greg is
responsible for directing Burlingham's research and development department. He
also is responsible for the procurement and purchasing of seed, including the
program for production of proprietary seed varieties and maintaining
relationships with seed growers. Greg graduated from Oregon State University
with a major in Agronomic Crop Science.
James E. Olsen started in the seed business in 1983 as a sales trainee at DM
Combs, Co., and in 1986, co-founded Olsen Fennell Seeds, Inc. with Greg
Fennell. They developed Olsen Fennell into an industry leading turfgrass and
forage seed company with revenues in excess of $35 million. James is
responsible for oversight of all production contracts, grower relations and
breeding work for Olsen Fennell Seeds. He also has responsibilities for
domestic sales on proprietary products for both turfgrass and forage seeds. He
graduated from Willamette University with a major in Philosophy.
Michael Peterson, Ph.D., Director of Research, W-L Research, Inc., joined W-
L Research, Inc. in 1982. His responsibilities include the coordination of all
alfalfa breeding and product development activities at the four W-L alfalfa
research stations. He is also responsible for technical product support for
the W-L Research franchise and private label sales as well as coordination of
all W-L contract and joint venture projects. He attended the University of
California at Davis where he received a Bachelor of Science degree in Agronomy
in 1978. Mike also attended the University of Minnesota where he received his
Masters of Science and a Doctoral degree in Plant Breeding in 1982.
Doug Pope started in the seed business in 1983 when he joined E. F.
Burlingham & Sons. Prior to that he was an Account Executive for the Bell
Telephone System. Doug and Greg McCarthy purchased Burlingham in 1994 and led
it into becoming an industry leading turf and grass seed research, production
and distribution company with revenues in excess of $36 million. Doug is the
Chief Operating Officer of Burlingham and is responsible for domestic sales
which includes program and product development for Burlingham's customer base.
Doug oversee's the daily functioning of Burlingham including shipping and
warehousing. Doug graduated from Penn State University with a major in
finance.
1997 Annual Report to Shareholders
Dear Fellow Shareholders Letter
"In 1995, we set out to consolidate two important seed sectors and gain 45
percent market share by the year 2000; we are 12 to 18 months ahead of our
target schedule for achieving this goal. The annualized revenues from our
completed acquisitions mean that today we are approximately double the size in
market share of the second leading company. When pending acquisitions are
closed, the Company's market share position will be roughly 3.5 times that of
the largest competitive forage and cool season turfgrass seed company."
"To date, the Company has maintained historical revenues while increasing
same store sales by roughly 7 percent as a result of our consolidation
strategy."
"In Fiscal 1998, we expect to achieve full-year profitability because our
Company now has a strong platform of research and development through
traditional genetic breeding programs, seed processing plants, and national
and international distribution and sales networks for most forage and cool-
season turfgrass species."
14
<PAGE>
"We have strong management. We are number one in market share, and we have
an industry-leading germplasm position. We expect continued growth in sales,
assets and equity in 1998."
"Respected and knowledgeable analysts predict that the agricultural
biotechnology market will grow to $12 to $14 billion a year within seven to
eight years."
Industry And Strategy Review
"Recently, however, margins in the industry have begun to expand as
increasingly larger and more sophisticated farmers and other users have moved
away from public varieties toward higher yielding proprietary varieties.
Proprietary varieties have desirable attributes such as improved nutritional
quality and disease and insect resistance. Additionally, protection of
intellectual property in the seed industry (variety rights) has recently been
firmly established by federal legislation (1994) and an important and
favorable U.S. Supreme Court ruling for seed companies (1995).
Prior to the launch of ABT's acquisition plan in 1995, no seed company
achieved the necessary size and scope of operations in the forage and
turfgrass seed sectors to develop higher yielding and better performing
proprietary varieties for national markets. The leading U.S. and global seed
companies and industry players--Pioneer Hi-Bred International, Inc., DEKALB
Genetics Corporation, Novartis AG, Delta and Pine Land Company, Monsanto Co.,
and The Dow Chemical Company--have focused on and invested in other important
seed sectors like corn, cotton and vegetables. The leaders in these sectors
have used investment in traditional seed breeding R&D and vertical integration
to generate annual returns on equity in the 20 percent range, and because of
their leadership positions are now realizing sizable additional returns and
profits due to the commercialization of higher-value biotechnology-based seed
products."
Biotechnology and Biotechnology Access
"The impact of biotechnology on the value of agricultural crops can be
great. The soybean crop in the U.S. is a present day example of what can
happen when value-added, biotechnology produced seeds are developed and
marketed. Prior to the introduction of Roundup Ready(R) soybean seed in the
U.S. (seed genetically engineered to be tolerant to a specific, efficacious
and cost-effective herbicide) farmers spent between $800 and $900 million on
soybean seed in the U.S. In 1998, 20-25 percent, of all U.S. soybean acres are
expected to be planted with these seeds generating increased value for seed
companies and the technology's owner of $200 to 250 million."
Functional Planning, Vertical Integration and Efficiencies
"Market share at the acquired companies has been maintained. In fact, sales
and revenues growth have been realized at certain, key combined operations.
Improved customer service and a superior product offering, among other things,
accounts for this and is indicative of what the Company intends to achieve and
improve upon with other acquired businesses.
Management believes that these planning, integration and optimization
efforts are typical of others to come as the Company grows and builds upon its
acquisition program success. Operationally, Management's plans are to increase
the profitability of both the Company and its customers by implementing the
[following strategies]."
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and the trustee named in the applicable Prospectus
Supplement as trustee (the "Trustee"). The statements under this caption are
brief summaries of certain provisions contained in the Indenture, do not
purport to be complete and are qualified in their entirety by reference to the
Indenture, a copy of which will be filed as an exhibit to and incorporated in
the Registration Statement. Terms used but not defined under this caption have
the meanings given to them in the Indenture.
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of any Debt Securities
and the extent, if any, to which such general provisions do not apply to such
Debt Securities will be described in the Prospectus Supplement relating to
such Debt Securities.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder, and the Indenture provides that Debt Securities of any
series may be issued thereunder up to the aggregate principal amount which may
be authorized from time to time by the Company's board of directors ("Board of
Directors").
Debt Securities of a series may be issuable in registered form with or
without coupons ("Registered Securities"), in bearer form with or without
coupons attached ("Bearer Securities") or in the form of one or more global
securities in registered or bearer form (each a "Global Security"). Bearer
Securities, if any, will be offered only to non-United States persons and to
offices located outside the United States of certain United States financial
institutions. Reference is made to the Prospectus Supplement for a description
of the following terms, where applicable, of each series of Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of such
Debt Securities; (2) the limit, if any, on the aggregate principal amount or
aggregate initial public offering price of such Debt Securities; (3) the
priority of payment of such Debt Securities; (4) the price or prices (which
may be expressed as a percentage of the aggregate principal amount thereof) at
which the Debt Securities will be issued; (5) the date or dates on which the
principal of the Debt Securities will be payable; (6) the rate or rates (which
may be fixed or variable) per annum at which such Debt Securities will bear
interest, if any, or the method of determining the same; (7) the date or dates
from which such interest, if any, on the Debt Securities will accrue, the date
or dates on which such interest, if any, will be payable, the date or dates on
which payment of such interest, if any, will commence and the date, if any,
specified in the Debt Security as the "Regular Record Date" for such interest
payment dates; (8) the extent to which any of the Debt Securities will be
issuable in temporary or permanent global form, and the manner in which any
interest payable on a temporary or permanent global Debt Security will be
paid; (9) each office or agency where, subject to the terms of the applicable
Indenture, the Debt Securities may be presented for registration of transfer
or exchange; (10) the place or places where the principal of (and premium, if
any) and interest, if any, on the Debt Securities will be payable; (11) the
date or dates, if any, after which such Debt Securities may be redeemed or
purchased in whole or in part, at the option of the Company, or may be
required to be purchased or redeemed at the option of the holder, and the
redemption or repayment price or prices thereof; (12) the denomination or
denominations in which such Debt Securities are authorized to be issued; (13)
any index used to determine the amount of payments of principal of, premium,
if any, and interest on the Debt Securities; (14) whether any of the Debt
Securities are to be issuable as Bearer Securities and/or Registered
Securities, and if issuable as Bearer Securities, any limitations on issuance
of such Bearer Securities and any provisions regarding the transfer or
exchange of such Bearer Securities (including exchange for registered Debt
Securities of the same series); (15) the payment of any additional amounts
with respect to the Debt Securities; (16) information with respect to book-
entry procedures not currently set forth in the Indenture; (17) any additional
covenants or Events of Default not currently set forth in the Indenture; (18)
whether any of the Debt Securities will be convertible or exchangeable into
debt or equity securities and, if so, the terms and conditions upon which such
conversion or exchange will be effected; (19) whether and how any Subsidiary
of the Company may be designated a Restricted or Unrestricted Subsidiary; (20)
the extent to which any of the Debt Securities will be secured obligations of
the Company; (21) whether payment of any of the Debt Securities will be
guaranteed by the Company's subsidiaries, and (22) any other terms of such
Debt Securities.
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EVENTS OF DEFAULT, WAIVERS, ETC.
An Event of Default with respect to Debt Securities of any series is defined
in the Indenture as (i) default in the payment of the principal of or premium,
if any, on any Debt Security of such series when due, (ii) default in the
payment of interest upon any Debt Security of such series when due and the
continuance of such default for a period of 30 days, (iii) default in the
observance or performance of any other covenant or agreement of the Company or
any Guarantor in the Debt Securities of such series or the Indenture and
continuance of such default for 60 days after written notice, (iv) certain
events of bankruptcy, insolvency or reorganization of the Company or any
Guarantor or (v) any other Event of Default provided with respect to Debt
Securities of any series.
If any Event of Default (other than certain events of bankruptcy, insolvency
or reorganization) with respect to any series of Debt Securities for which
there are Debt Securities outstanding under the Indenture occurs and is
continuing, either the applicable Trustee or the holders of not less than 25%
in aggregate principal amount of the Debt Securities of such series may
declare the principal amount of all Debt Securities of that series to be
immediately due and payable. If any Event of Default arising from certain
events of bankruptcy, insolvency or reorganization of the Company or any
Guarantor occurs, the principal amount of all Debt Securities of that series
shall be ipso facto immediately due and payable. The holders of a majority in
aggregate principal amount of the Debt Securities of any series outstanding
under the Indenture may waive the consequences of an Event of Default
resulting in acceleration of such Debt Securities, but only if all Events of
Default have been remedied and all payments due (other than those due as a
result of acceleration) have been made. If an Event of Default occurs and is
continuing, the Trustee may in its discretion, or at the written request of
holders of not less than a majority in aggregate principal amount of the Debt
Securities of any series outstanding under the Indenture and upon reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request and subject to certain other conditions set forth
in the Indenture, proceed to protect the rights of the holders of all the Debt
Securities of such series. If the Trustee fails within 60 days after its
receipt of such a written request and offer of indemnity to institute any such
proceeding, any holder of a Debt Security who has previously given notice to
the Trustee of a continuing Event of Default may institute such a proceeding.
The holders of a majority in aggregate principal amount of Debt Securities of
any series outstanding under the Indenture may waive any past default under
the Indenture with respect to such series except a default in the payment of
principal of, premium, if any, or interest on the Debt Securities of such
series and except for the waiver of a covenant or provision that, pursuant to
the Indenture, cannot be modified or amended without the consent of holders of
all such Debt Securities then outstanding.
The Indenture provides that in the event of an Event of Default specified in
clause (i) or (ii) of the first paragraph under "Events of Default, Waivers,
Etc.," the Company will, upon demand of the applicable Trustee, pay to it, for
the benefit of the holder of any such Debt Security, the whole amount then due
and payable on such Debt Security for principal, premium, if any, and
interest. The Indenture further provides that if the Company fails to pay such
amount forthwith upon such demand, the applicable Trustee may, among other
things, institute a judicial proceeding for the collection thereof.
The Indenture also provide that notwithstanding any other provision of the
Indenture, each holder of any Debt Security of any series will have the right
to institute suit for the enforcement of any payment of principal of, premium,
if any, and interest on such Debt Security when due and that such right may
not be impaired without the consent of such holder.
The Company is required to file annually with the Trustee a written
statement of officers as to the existence or non-existence of defaults under
the Indenture or the Debt Securities.
GUARANTEE
The Indenture provides that one or more guarantors (the "Guarantors") may
guaranty the performance and punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Company
under the Debt Securities of any series and the Indenture (a "Guarantee"). The
liability of any Guarantor under a Guarantee is independent of and not in
consideration of or contingent upon the liability of the Company or any other
party obligated under the Debt Securities or the Indenture, and a separate
action or actions may be brought or prosecuted against any such Guarantor,
whether or not any action is brought or prosecuted against the Company or any
other party obligated under the Debt Securities or the Indenture or whether
the
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Company or any other party obligated under the Debt Securities or the
Indenture is joined in any such action or actions. Such Guarantee, however,
will be limited to an amount not to exceed the maximum amount that can be
Guaranteed by such Guarantor without rendering the Guarantee, as it relates to
such Guarantor, voidable under Section 548 of the Federal Bankruptcy Code or
any applicable provisions of comparable state law.
The Guarantee of any Guarantor is a continuing guaranty and will remain in
full force and effect until payment in full of all of the guaranteed
obligations.
REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities will be issued only as Registered Securities. If Bearer Securities
are issued, the United States Federal income tax consequences and other
special considerations, procedures and limitations applicable to such Bearer
Securities will be described in the Prospectus Supplement relating thereto.
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities issued as Registered Securities will be without coupons. Debt
Securities issued as Bearer Securities will have interest coupons attached,
unless issued as zero coupon securities.
Registered Securities (other than a Global Security) may be presented for
transfer (with the form of transfer endorsed thereon duly executed) or
exchanged for other Debt Securities of the same series at the office of the
security registrar appointed by the Company (the "Security Registrar")
specified according to the terms of the applicable Indenture. The Company has
agreed in the Indenture that, with respect to Registered Securities having the
City of New York as a place of payment, the Company will appoint a Security
Registrar or a co-security registrar, as may be appropriate (the "Co-Security
Registrar"), located in the City of New York for such transfer or exchange.
Unless otherwise provided in the applicable Prospectus Supplement, such
transfer or exchange shall be made without service charge, but the Company may
require payment of any taxes or other governmental charges as described in the
applicable Indenture. Provisions relating to the exchange of Bearer Securities
for other Debt Securities of the same series (including, if applicable,
Registered Securities) will be described in the applicable Prospectus
Supplement. In no event, however, will Registered Securities be exchangeable
for Bearer Securities.
GLOBAL SECURITIES
Debt Securities of a series may be issued in whole or in part in the form of
one or more Global Securities that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such series. Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for the individual Debt Securities represented
thereby, a Global Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee to a successor Depositary or
any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities and certain limitations and restrictions relating to a series
of Debt Securities in the form of one or more Global Securities will be
described in the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such Depositary. Such accounts shall be designated by the
underwriters or agents with respect to such Debt Securities. Ownership of
beneficial interests in a Global Security will be limited to persons that have
accounts with the applicable Depositary ("participants") or persons that may
hold interests through participants. Ownership of
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beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the applicable Depositary or its nominee (with respect to interests of
participants) and the records of participants (with respect to interests of
persons other than participants). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have any of
the individual Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to receive
physical delivery of any such Debt Securities of such series in definitive
form and will not be considered the owners or holders thereof under the
Indenture governing such Debt Securities.
Payments of principal of, premium, if any, and interest on individual Debt
Securities represented by a Global Security registered in the name of a
Depositary or its nominee will be made to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security representing
such Debt Securities. None of the Company, the Trustee for such Debt
Securities, any person authorized by the Company to pay the principal of,
premium, if any, or interest on any Debt Securities or any coupons
appertaining thereto on behalf of the Company ("Paying Agent"), and the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of the Global Security for such Debt
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Subject to certain restrictions relating to Bearer Securities, the Company
expects that the Depositary for a series of Debt Securities or its nominee,
upon receipt of any payment of principal, premium or interest in respect of a
permanent Global Security representing any of such Debt Securities, will
credit participants' accounts immediately with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security for such Debt Securities as shown on the records of
such Depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in "street name." Such payments will
be the responsibility of such participants. With respect to owners of
beneficial interests in a temporary Global Security representing Bearer
Securities, receipt by such beneficial owners of payments of principal,
premium or interest in respect thereof will be subject to additional
restrictions.
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, the Company will issue individual
Debt Securities of such series in definitive form in exchange for the Global
Security representing such series of Debt Securities. In addition, the Company
may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities,
determine not to have any Debt Securities of a series represented by one or
more Global Securities and, in such event, will issue individual Debt
Securities of such series in definitive form in exchange for the Global
Security or Securities representing such series of Debt Securities. Further,
if the Company so specifies with respect to the Debt Securities of a series,
an owner of a beneficial interest in a Global Security representing Debt
Securities of such series may, on terms acceptable to the Company, the Trustee
and the Depositary for such Global Security, receive Debt Securities of such
series in definitive form in exchange for such beneficial interests, subject
to any limitations described in the Prospectus Supplement relating to such
Debt Securities. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery in definitive form of
Debt Securities of the series represented by such Global Security equal in
principal amount to such beneficial interest and to have such Debt Securities
registered in its name (if the Debt Securities of such series are issuable as
Registered Securities). Debt Securities of such series so issued in definitive
form will be issued (i) as Registered Securities in denominations,
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unless otherwise specified by the Company, of $1,000 and integral multiples
thereof if the Debt Securities of such series are issuable as Registered
Securities, (ii) as Bearer Securities in the denomination, unless otherwise
specified by the Company, of $5,000 if the Debt Securities of such series are
issuable as Bearer Securities or (iii) as either Registered or Bearer
Securities, if the Debt Securities of such series are issuable in either form.
Certain restrictions may apply, however, on the issuance of a Bearer Security
in definitive form in exchange for an interest in a Global Security.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium, if any, on Registered Securities will be made at
the office of such Paying Agent or Paying Agents as the Company may designate
from time to time. At the option of the Company, payment of any interest may
be made by check mailed or electronic funds transfer to the address of the
person entitled thereto as such address shall appear in the applicable
security register kept by the Company ("Security Register"). Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any installment
of interest on Registered Securities will be made to the person in whose name
such Debt Security is registered at the close of business on the Regular
Record Date for such payment.
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and any interest on Bearer Securities will
be payable, subject to any applicable laws and regulations, at the offices of
such Paying Agents outside the United States as the Company may designate from
time to time or, at the option of the holder, by check mailed to any address
outside the United States or by transfer to an account maintained by the payee
with a bank located outside the United States. Unless otherwise indicated in
an applicable Prospectus Supplement, payment of interest on Bearer Securities
will be made only against surrender of the coupon relating to such interest
payment date. No payment with respect to any Bearer Security will be made at
any office or agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account maintained with
a bank located in the United States.
CONSOLIDATION, MERGER OR SALE OF ASSETS
The Indenture provides that neither the Company nor any Guarantor may,
without the consent of the holders of the Debt Securities outstanding under
the Indenture, consolidate with, merge into or transfer all or substantially
all of the property and assets of any division or line of business to any
single person, unless (i) any such successor assumes the Company's or such
Guarantor's obligations on the applicable Debt Securities and under the
Indenture, (ii) after giving effect thereto, no Event of Default shall have
happened and be continuing and (iii) the Company has delivered to the Trustee
an officers' certificate and an opinion of counsel each stating that such
consolidation, merger, conveyance or transfer and the supplemental indenture
pursuant to which the successor assumes the Company's or such Guarantor's
obligations on the applicable Debt Securities comply with Article 10 of the
Indenture and that all conditions precedent therein provided for relating to
such transaction have been complied with. Accordingly, unless otherwise
specified in an applicable Prospectus Supplement, any such consolidation,
merger or transfer of assets substantially as an entirety that meets the
conditions described above would not create any Event of Default which would
entitle holders of the Debt Securities, or the Trustee on their behalf, to
take any of the actions described above under "Events of Default, Waivers,
Etc." Additionally, upon any such consolidation or merger, or any such
conveyance or transfer of the properties and assets of the Company or any
Guarantor substantially as an entirety, the successor person formed by such
consolidation or into which the Company or such Guarantor is merged or to
which such conveyance or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or such Guarantor
under the Indenture with the same effect as if such successor person had been
named as the Company or such Guarantor. In the event of any such conveyance or
transfer, the Company as the predecessor corporation and such Guarantor shall
be relieved of all obligations and covenants under the Indenture and may be
dissolved, wound up and liquidated at any time thereafter.
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LEVERAGED AND OTHER TRANSACTIONS
The Indenture contains no provisions which would afford holders of the Debt
Securities protection in the event of a highly leveraged or other transaction
involving the Company which could adversely affect the holders of Debt
Securities. Provisions, if any, applicable to any such transaction will be
described in an applicable Prospectus Supplement.
MODIFICATION OF THE INDENTURE; WAIVER OF COVENANTS
The Indenture provides that, with the consent of the holders of not less
than a majority in aggregate principal amount of the outstanding Debt
Securities of each affected series, modifications and alterations of the
Indenture may be made which affect the rights of the holders of such Debt
Securities, except that no such modification or alteration may be made without
the consent of the holder of each Debt Security so affected which would, among
other things, (i) change the maturity of the principal of, or of any
installment of interest (or premium, if any) on, any Debt Security issued
pursuant to the Indenture, or reduce the principal amount thereof or any
premium thereon or the rate of interest thereon, or change the method of
calculation of interest or the currency of payment of principal or interest
(or premium, if any) on, or reduce the minimum rate of interest thereon, or
impair the right to institute suit for the enforcement of any such payment on
or with respect to any such Debt Security or (ii) reduce the above-stated
percentage in principal amount of outstanding Debt Securities required to
modify or alter the Indenture.
The Indenture also provides that, without the consent of any holder of Debt
Securities, the Company, when authorized by a resolution of its Board of
Directors, and the Trustee, at any time and from time to time, may enter into
one or more supplemental Indenture to the Indenture to (i) evidence the
succession of another corporation or person to the Company or any Guarantor,
as the case may be, in the Indenture and in the Debt Securities, (ii) evidence
and provide for a successor Trustee, (iii) add to the covenants of the Company
or any Guarantor for the benefit of the holders of Debt Securities of all or
any series or to surrender any right or power conferred upon the Company or
any Guarantor in the Indenture, (iv) cure any ambiguity, correct or supplement
any provision which may be inconsistent or make any other provisions with
respect to matters or questions arising under the Indenture, provided the
interests of the holders of Debt Securities of any series are not adversely
affected, (v) add any additional Events of Default, (vi) make certain changes
with respect to Bearer Securities which do not adversely affect the interests
of the holders of Debt Securities of any series, (vii) add to, change or
eliminate any provision of the Indenture; provided that such addition, change
or elimination (a) becomes effective only when there is no Debt Security
outstanding of a series created prior to the execution of such supplemental
indenture which is adversely affected or (b) does not apply to any outstanding
Debt Securities, (viii) establish the form or terms of Debt Securities of any
series as permitted under the Indenture, (ix) evidence any changes to
corporate Trustee eligibility authorized by the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), or (x) add to or change or eliminate
any provision of the Indenture as necessary to comply with the Trust Indenture
Act provided such action does not adversely affect the interests of the
holders of Debt Securities of any series.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
REGARDING THE TRUSTEE
The Indenture contains certain limitations on the right of the Trustee, if
and when the Trustee becomes a creditor of the Company (or any other obligor
upon the Debt Securities), regarding the collection of such claims against the
Company (or any such other obligor). Except as provided in the following
sentence, the Indenture does not prohibit the Trustee from serving as trustee
under any other indenture to which the Company may be a party from time to
time or from engaging in other transactions with the Company. If the Trustee
acquires any conflicting interest and there is a default with respect to any
series of Debt Securities, it must eliminate such conflict or resign.
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DESCRIPTION OF CAPITAL STOCK
Authorized
The authorized capital stock of the Company consists of 75,000,000 shares of
Common Stock, $.001 par value, and 10,000,000 shares of Preferred Stock, $.001
par value.
Common Stock
The Company is authorized to issue 75,000,000 shares of Common Stock, $.001
par value per share, of which 37,424,477 shares were issued and outstanding as
of August 7, 1998. All of the outstanding shares of Common Stock and those
issuable upon completion of this offering, 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 5,022,975 (13.4%) of the shares
outstanding and 7,412,975 shares (18.6%) after giving full effect to the
exercise of their respective options exercisable within the succeeding 60 days
of August 7, 1998.
Preferred Stock
The Company is authorized to issue 10,000,000 shares of Preferred Stock,
$.001 par value per share. As of the date hereof, the Company had no shares of
Preferred Stock issued and outstanding.
The Preferred Stock may be divided by the Company's Board of Directors from
time to time into one or more series. The Board of Directors is authorized to
determine the rights, preferences, privileges and restrictions, including the
dividend rights, conversion rights, voting rights, terms of redemption
(including sinking fund provisions, if any) and liquidation preferences, of
any series of Preferred Stock and to fix the number of shares of any such
series without any further vote or action by stockholders. The Company has no
present plans, proposals, commitments or arrangements to issue any additional
shares of Preferred Stock. 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 stockholder
approval, to issue Preferred Stock with dividend, liquidation, conversion,
voting or other rights that could adversely affect the voting power or other
rights of the holders of the Common Stock. Although the Preferred Stock may be
used for any lawful purpose, the Company has agreed not to use it as an anti-
takeover device that could be utilized as a method of discouraging, delaying
or preventing a change in control of the Company without the approval of the
Company's stockholders.
Warrants
On May 4, 1998 and May 13, 1998, the Company issued 241,600 and 344,900
redeemable Warrants to purchase shares of its Common Stock. The Warrants were
issued to certain qualified institutional buyers and investors in Private
Placements of units. Each unit was sold for $29.00 and consisted of two shares
of Common Stock and one Warrant. The Warrants are exercisable at a price of
$17.50 per share for three years commencing on their respective dates of
issuance. The Warrants are subject to redemption at $.01 per Warrant on five
prior business days' notice if the closing sale price of the Company's Common
Stock exceeds $25.00 per share for 15 consecutive trading days and the Company
notifies the holder it intends to force a mandatory conversion of the Warrants
and the Holder fails to exercise the Warrant. The shares of Common Stock
issuable upon exercise of the Warrants have been registered as part of another
Registration Statement.
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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 Company may sell the Securities from time to time in one or more series
to one or more underwriters for public offering and sale by them or may sell
the Securities to investors directly or through agents. Any such underwriter
or agent involved in the offer and sale of the Securities will be named in the
applicable Prospectus Supplement. The Company has reserved the right to sell
the Securities directly to investors on its own behalf in those jurisdictions
where and in such manner as it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Company also may, from time to time, authorize dealers, acting as the
Company's agents, to offer and sell the Securities upon the terms and
conditions as are set forth in the applicable Prospectus Supplement. In
connection with the sale of the Securities, underwriters may receive
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters may sell the Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may
be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities.
No Securities may be sold without delivery of the applicable Prospectus
Supplement describing the method and terms of each offering of any such
Securities.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon by Snow Becker
Krauss P.C., 605 Third Avenue, New York, New York 10158. Snow Becker Krauss
P.C. owns 43,823 shares of the Company's Common Stock and individual members
of the firm own additional shares of Common Stock.
23
<PAGE>
EXPERTS
The consolidated financial statements of AgriBioTech, Inc. as of June 30,
1997 and 1996 and for the years then ended 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, and
upon the authority of said firm as experts in accounting and auditing. The
report of KPMG Peat Marwick LLP refers to the retroactive effect of a change
in accounting for convertible preferred stock.
The financial statements of Beachley Hardy Seed Company as of December 31,
1995 and 1994 and for the years then ended, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein and
upon the authority of said firm as experts in accounting and auditing.
The combined financial statements of Germain's Inc. and W-L Research, Inc.
as of September 30, 1995 and 1994 and for the years then ended have been
incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by
reference herein and upon the authority of said firm as experts in accounting
and auditing.
The consolidated financial statements of E.F. Burlingham & Sons as of
December 31, 1996 and for the year then ended, have been incorporated by
reference herein in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein and
upon the authority of said firm as experts in accounting and auditing.
The financial statements of Olsen Fennell Seeds, Inc. as of December 31,
1996 and for the year then ended have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The combined financial statements of Seed Corporation of America, Inc. and
Green Seed Company Limited Partnership as of December 31, 1997 and 1996 and
for the years then ended have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The financial statements of Lofts Seed, Inc. as of November 30, 1997 and
December 31, 1996 and for the eleven-month period ended November 30, 1997 and
the six-month period ended December 31, 1996 have been incorporated by
reference herein in reliance upon the report of Cannon & Company, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
The financial statements of Lofts Seeds, Inc. as of June 30, 1996 and 1995
and for the years then ended have been incorporated by reference herein in
reliance upon the report of Amper, Politziner & Mattia, independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
The financial statements of Budd Seed, Inc. as of November 30, 1997 and
December 31, 1996 and 1995 and for the eleven-month period ended November 30,
1997 and the years ended December 31, 1996 and 1995 have been incorporated by
reference herein in reliance upon the report of Cannon & Company, independent
certified public accountants, incorporated by reference herein and upon the
authority of said firm as experts in accounting and auditing.
The financial statement of Willamette Seed Co. as of June 30, 1997 and 1996
and for the years then ended have been incorporated by reference herein in
reliance on the report of Price, Koontz & Davies, P.C., independent certified
public accountants, incorporated by reference herein and upon the authority of
said firm as experts in accounting and auditing.
24
<PAGE>
The financial statements of Van Dyke Seed Company, Inc. as of December 31,
1997 and for the year then ended, have been incorporated by reference herein
in reliance upon the report of Jones & Roth P.C., 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 Zajac Performance Seeds, Inc. et al. as
of December 31, 1997 and for the year then ended, have been incorporated by
reference herein in reliance upon the report of Ludwig Bulmer Seifert & Lane,
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 Ramy Commercial Properties, Inc.
and Subsidiary as of June 30, 1997 and 1996, and for the years then ended,
have been incorporated by reference herein in reliance upon the report of
Hawkins, Ash, Baptie & Company, 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 Oseco Inc. as of June 30, 1997 and
for the year then ended, have been incorporated by reference herein in
reliance upon the report of KPMG, chartered accountants, incorporated by
reference herein and upon the authority of said firm as experts in accounting
and auditing.
25
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR ANY OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, OR ANY PROSPECTUS SUPPLEMENT,
AND IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT
DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF
THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Information Incorporated by Reference..................................... 3
The Company............................................................... 4
Use of Proceeds........................................................... 4
Ratio of Earnings to Fixed Charges........................................ 4
Selected Financial Data................................................... 5
Acquisitions, Description of Other Indebtedness, Recent Developments and
Web Site Disclosures..................................................... 6
Description of Debt Securities............................................ 16
Description of Capital Stock.............................................. 22
Plan of Distribution...................................................... 23
Legal Matters............................................................. 23
Experts................................................................... 24
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
AGRIBIOTECH, INC.
$125,000,000 OF DEBT SECURITIES
AND 4,500,000 SHARES OF COMMON STOCK
---------------
PROSPECTUS
---------------
AUGUST 14, 1998
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered shall be borne by the Registrant and are estimated
as follows:
<TABLE>
<S> <C>
SEC Filing Fee.................................................. $ 65,607.06
Printing and Engraving Expenses................................. 10,000.00
Legal Fees and Expenses......................................... 20,000.00
Accounting Fees and Expenses.................................... 20,000.00
Registrar and Transfer Agent's Fee.............................. 5,000.00
Miscellaneous................................................... 9,392.94
-----------
Total:........................................................ $130,000.00
===========
</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: Advancement of Expenses
1. Any discretionary indemnification under section 5 of this act, unless
ordered by a court or advanced pursuant to subsection 5, may 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 action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, 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
action, suit or proceeding cannot be obtained, by independent legal counsel
in a written opinion.
2. 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 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.
II-1
<PAGE>
3. 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 section 5 of
this act or for the advancement of expenses made pursuant to subsection 2,
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.
Indemnification of Officers, Directors, Employees and Agents.
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 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.
II-2
<PAGE>
Section 78.752: Insurance and Other Financial Arrangement Against Liability
of Directors, Officers, Employees and Agents.
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 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 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
II-3
<PAGE>
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 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
----------- -----------
<C> <S>
1.1 Underwriting Agreement for Common Stock(1)
1.2 Underwriting Agreement for Debt Securities(1)
5.1 Securities opinion of Snow Becker Krauss P.C.
10.1 Indenture
12.1 Statement regarding Computation of Ratio of Earnings to Fixed
Charges
*23.1 Consent of KPMG Peat Marwick LLP
*23.2 Consent of Cannon & Company
*23.3 Consent of Price, Koontz & Davies, P.C.
*23.4 Consent of Amper, Politziner & Mattia
*23.5 Consent of KPMG, chartered accountants
*23.6 Consent of Jones & Roth, P.C.
*23.7 Consent of Ludwig Bulmer Seifert & Lane
*23.8 Consent of Hawkins, Ash, Baptie & Company, LLP
23.9 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 of the initial filing of the
Registration Statement)
25.1 Statement of Eligibility of Trustee(1)
</TABLE>
- --------
* Filed with this Amendment No. 1 to the Registration Statement.
(1) To be filed by Amendment.
II-4
<PAGE>
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment shall be deemed a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To file a post-effective amendment to remove from registration any of
the securities being registered that remain unsold at the end of the
offering.
(4) For the purpose of determining any liability under the Securities
Act, to treat each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement as a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the issuer pursuant to the foregoing provisions, or otherwise,
the issuer has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the issuer of expenses incurred or paid by a director,
officer or controlling person of the 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
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 Securities Act and will be governed by
the final adjudication of such issue.
II-5
<PAGE>
(6) For determining any liability under the Securities 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 issuer under Rule 424(b)(1), or (4) or 497(h)
under the Securities Act as part of this registration statement as of the
time the Commission declared it effective.
(7) For determining any liability under the Securities 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.
(8) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Act.
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 Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Henderson, State of Nevada, on August 13, 1998.
Agribiotech, Inc.
By: /s/ Johnny R. Thomas
-----------------------------------
Johnny R. Thomas, Chairman of the
Board
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
on August 13, 1998 and in the capacities indicated.
/s/ Johnny R. Thomas Chairman of the Board
- ----------------------------------- (Principal Executive
Johnny R. Thomas Officer and Director)
President and Director
*
- -----------------------------------
Kent Schulze
Vice President and
* Treasurer (Principal
- ----------------------------------- Financial and Accounting
Henry A. Ingalls Officer)
Vice President and Director
*
- -----------------------------------
Scott J. Loomis
Vice President, Secretary
* and Director
- -----------------------------------
John C. Francis
Director
*
- -----------------------------------
James W. Hopkins
Director
*
- -----------------------------------
Richard P. Budd
- --------
* The undersigned, by signing his name hereto, does hereby sign this
Registration Statement on behalf of the above-indicated officers and
directors of the Registrant pursuant to powers of attorney signed by such
officers and directors.
/s/ Johnny R. Thomas
- -----------------------------------
Johnny R. Thomas as Attorney-in-
fact
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Cannon & Company
23.3 Consent of Price, Koontz & Davies, P.C.
23.4 Consent of Amper, Politziner & Mattia
23.5 Consent of KPMG, chartered accountants
23.6 Consent of Jones & Roth, P.C.
23.7 Consent of Ludwig Bulmer Seifert & Lane
23.8 Consent of Hawkins, Ash, Baptie & Company, LLP
23.9 Consent of Snow Becker Krauss P.C. is included in Exhibit 5.1 to
this Registration Statement.
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors AgriBioTech, Inc.
We consent to the use of our reports related to the consolidated financial
statements of AgriBioTech, Inc., the financial statements of Beachley-Hardy
Seed Company, the combined financial statements of Germain's Inc. and W-L
Research, Inc., the consolidated financial statements of E.F. Burlingham &
Sons, the financial statements of Olsen Fennell Seeds, Inc. and the combined
financial statements of Seed Corporation of America and Green Seed Company
Limited Partnership incorporated by reference herein and to the references to
our firm under the headings, "Selected Financial Data" and "Experts" in the
Prospectus.
Our report on the AgriBioTech, Inc. consolidated financial statements dated
September 26, 1997, except as to note 2(k) and the twelfth paragraph of note
7, which are as of February 10, 1998, refers to the retroactive effect of a
change in accounting for convertible preferred stock.
KPMG Peat Marwick LLP
Albuquerque, New Mexico
August 13, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the financial
statements of Lofts Seed, Inc. and Budd Seed, Inc. herein and to the reference
to our firm under the heading "Experts" in the prospectus.
Cannon & Company
Winston-Salem, North Carolina
August 13, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the financial
statements of Williamette Seed Co. herein and to the reference to our firm
under the heading "Experts" in the Prospectus.
Price, Koontz & Davies, P.C.
Albany, Oregon
August 13, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation of our report dated September 26, 1996 on
the financial statements of Lofts Seed, Inc. as of June 30, 1996 and 1995 and
for the years ended June 30, 1996 and 1995, which is included in this
Registration Statement of AgriBioTech, Inc. and to the reference to our firm
under the caption "Experts" in the Registration Statement.
Amper, Politziner & Mattia, P.A.
Edison, New Jersey
August 13, 1998
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
The Directors of Oseco Inc.
We consent to the incorporation by reference in the registration statement
on Form S-3, of AgriBioTech, Inc. of our report dated September 12, 1997
(except for note 10 which is as of June 12, 1998), with respect to the
consolidated balance sheet of Osceo Inc. as of June 30, 1997 and the
consolidated statements of income and retained earnings and changes in cash
resources for the year then ended, and to the reference to our firm under the
heading "Experts" in the Prospectus.
KPMG, Chartered Accountants
Mississauga, Canada
August 13, 1998
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the December 31, 1997
financial statements of Van Dyke Seed Company, Inc. herein and to the
reference to our firm under the heading "Experts" in the Prospectus.
Jones & Roth, P.C.
Hillsboro, Oregon
August 13, 1998
<PAGE>
EXHIBIT 23.7
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the combined
financial statements of Zajac Performance Seeds, Inc., et al herein and to the
reference to our firm under the heading "Experts" in the Prospectus.
Ludwig Bulmer Seifert & Lane
Hackensack, New Jersey
August 13, 1998
<PAGE>
EXHIBIT 23.8
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AgriBioTech, Inc.
We hereby consent to the use of our reports related to the consolidated
financial statements of Ramy Commercial Properties, Inc. and Subsidiary herein
and to the reference to our firm under the heading "Experts" in the
Prospectus.
Hawkins, Ash, Baptie & Company, LLP
LaCrosse, Wisconsin
August 13, 1998
