Exhibit 4.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement"), dated as of August
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28, 1998 is entered into by and between ________________________________________
_______________________________________________________________________ with an
address at _____________________________________________________ (the
"Purchaser") and AgriBioTech, Inc., a Nevada corporation with an address at 120
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Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxx 00000 (the "Company").
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The Company has privately offered for sale, and the Purchaser has agreed to
purchase ______________ (______) Common Stock Purchase Warrants (the "Warrants")
of the Company on the terms and conditions herein provided. In connection
herewith, the Company and the Purchaser hereby agree as follows:
1. Purchase and Sale of Warrants. Upon the basis of the representations and
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warranties and subject to the terms and conditions set forth herein, the Company
agrees to issue and sell the Warrants to the Purchaser on the Closing Date (as
herein defined) at $2.00 per Warrant, or an aggregate purchase price of $_______
(the "Purchase Price") and, upon the basis of the representations and warranties
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and subject to the terms and conditions set forth herein, the Purchaser agrees
to purchase the Warrants from the Company on the Closing Date at the Purchase
Price.
2. Closing. The closing of the purchase and sale of the Warrants shall take
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place at 10:00 a.m., New York City Time, on August 31, 1998 as coordinated by
Snow Xxxxxx Xxxxxx P.C., the Company's counsel, or on such other date or at such
other time and place as the Company and the Purchaser may agree upon (such time
and date of the closing being referred to herein as the "Closing Date"). Upon
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payment of the Purchase Price in full in immediately available funds by or on
behalf of the Purchaser to the Company by wire transfer to an account specified
by the Company to the Purchaser prior to the Closing Date, the Company will
promptly cause its Warrant Agent to deliver to the Purchaser on the Closing Date
certificates representing the Warrants in such denominations and registered in
such names as the Purchaser shall request.
3. Registration.
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(a) Within 30 days after the Closing Date, the Company will file a
new registration statement on Form S-3 (including all exhibits
thereto and all information and documents incorporated by reference
therein, the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), to effect a continuous
offering of the shares of Common Stock underlying the Warrants (the
"Warrant Shares") and any other securities of the Company
(collectively, the "Shares"), held by the Purchaser (and by holders
of such other shares of Common Stock as the
Company may determine in its discretion) pursuant to Rule 415 under
the Securities Act of 1933, as amended (the "Act"), providing for
sales of shares thereunder to be effected through normal broker
transactions, through market makers in the Common Stock, in
privately negotiated transactions or any combination thereof. The
Company will use its commercially reasonable best efforts to cause
the Registration Statement to be declared effective by the
Commission within 90 days after the Closing Date to remain effective
under the Act for a period through the second anniversary of the
Closing Date, (or the earlier of the date when all of the Shares
have been sold or withdrawn from registration by the Purchaser) (the
"Registration Period") provided that such two-year period will be
extended by the aggregate number of days during which the Purchaser
is prevented from selling Shares as a result of Section 3(b) or 3(c)
below, subject to the restrictions imposed on the Purchaser from
selling Shares during the Registration Period under this Section
3(a) or under Section 3(b) or 3(c) below. From the Closing Date
through the Registration Period, the Purchaser will not sell any
Shares pursuant to the Registration Statement unless, at the time of
sale, the Registration Statement (and the most recently filed post-
effective amendment thereto, if any) has been declared effective by
the Commission and no stop orders are in force or pending with
respect thereto, if Purchaser has been so advised by the Company.
(b) During the Registration Period if the Company shall notify the
Purchaser's counsel in writing that in its discretionary judgment
(i) due to a change in circumstances, a pending transaction or
otherwise, the Registration Statement as then in effect may contain
an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in
which they were made and (ii) the public disclosure required to
correct such potential material misstatement or omission would be
injurious or detrimental to the Company (financially or otherwise),
then the Purchaser will refrain from selling any Shares pursuant to
the Registration Statement or otherwise for the period of time, not
to exceed 45 days in each instance, requested by the Company. The
Company will use its commercially reasonable efforts to minimize the
time period during which the Purchaser is required to refrain from
selling Shares under this paragraph and will advise the Purchaser
promptly when such restrictions are no longer in effect.
(c) If, during the Registration Period, the Company advises the
Purchaser's counsel on a confidential basis that it intends to
commence an underwritten public offering of its Common Stock on its
own behalf then
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(in addition to any other restrictions on sale of the Shares under
this Agreement or the federal laws then applicable to the Purchaser)
the Purchaser will refrain from selling Shares pursuant to the
Registration Statement or otherwise for a period of time beginning
ten business days before the anticipated effective date with the
Commission of the Company's underwritten public offering (as
disclosed by the Company or its underwriters to the Purchaser) and
ending 90 days after such effective date. The limitations on sale of
this Section 3.(c). shall only be applicable to the first such
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underwritten public offering undertaken by the Company.
(d) During the Registration Period, if Purchaser desires to sell any
Shares pursuant to the Registration Statement, the Purchaser shall
advise the Chief Executive Officer of the Company in writing at
least three business days prior to the filing of the Registration
Statement of the name of the person or entity for whose account the
Shares will be offered and sold, the number of shares of Common
Stock owned by such selling person or entity prior to the
consummation of the proposed offering, the number of Shares to be
offered for such selling person's or entity's account and the number
of shares of Common Stock and (if one percent or more) the
percentage of the class to be owned by such selling person or entity
after completion of the offering, as well as any other related
information required under the Act or the rules and regulations
thereunder so as to enable such offer and sale to be made pursuant
to the Registration Statement and sales of such Shares by the
Purchaser must be made by Purchaser in accordance with the
Registration Statement, as supplemented or amended. The Company will
then promptly prepare any required supplement to the prospectus
constituting a part of the Registration Statement containing the
information described above and any other required information which
will be furnished to the relevant holder, for use in connection with
any such offer and sale. The Purchaser will otherwise promptly
furnish to the Company, at the Company's reasonable request, such
other information as is required in connection with the preparation
of the Registration Statement and any supplement required with
respect to the prospectus constituting a part thereof and will
cooperate fully with the reasonable requests of the Company, any
underwriter or any broker-dealer in respect of such sale.
(e) Promptly after the Closing Date, the Company shall take all
requisite action to list the Warrant Shares for trading on The
Nasdaq National Market and shall take such other action it deems
appropriate under the Act and any applicable state securities laws
to claim an exemption from the registration requirements thereof for
the issuance of the Warrant Shares hereunder.
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(f) the Company has not provided and will not provide the Purchaser,
except upon the Purchaser's request, with any notice or information
from the Company hereunder respecting any contemplated or pending
underwritten public offering of Common Stock or of any
circumstances, pending transactions or other matters which may cause
the Registration Statement as then in effect to contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they
were made, and in such event until advised by the Company, the
Purchaser shall strictly maintain the confidentiality of such
information and shall make no public disclosures or comments with
respect thereto, and shall not otherwise trade in any securities of
the Company until such offering is effected or information is
otherwise publicly disclosed by the Company, but in any event for
not longer than 30 days in the aggregate from when disclosed to the
Purchaser.
(g) The Company will bear all reasonable and customary expenses
arising or incurred by it in connection with any registration under
the Act of the Shares hereunder, including without limitation,
registration fees, printing expenses and the Company's accounting
and legal fees and expenses; provided that the Purchaser will bear
the expense of any underwriting or brokerage fees, discounts or
commissions applicable to its sale of the Warrant Shares and the
fees and expenses of any separate legal counsel or accounting firm
engaged by the Purchaser.
(h) The Company agrees to indemnify and hold harmless the Purchaser,
each person, if any, who controls the Purchaser within the meaning
of Section 15 of the Act and each officer, director, employee and
agent of the Purchaser and of any such controlling person against
any and all liabilities, claims, damages or expenses and will
reimburse the Purchaser for its reasonable legal and other expenses
(including the reasonable cost of any investigation and preparation,
and including the reasonable fees and expenses of counsel) incurred,
arising out of (i) a misstatement of a material fact or omission to
state a material fact required to be stated in or necessary to make
the statements therein not misleading in light of the circumstances
in which they were made in the Registration Statement described in
Section 3(a) above, or any final Prospectus contained in such
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Registration Statement, as supplemental or amended, as the case may
be, unless the Purchaser was notified by the Company to refrain from
selling any Shares pursuant to the Registration Statement as set
forth in Section 3(b) above; or (ii) the Registration
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Statement or Prospectus, as supplemented or amended, not being in
compliance with the Federal and applicable State securities laws, in
all material respects.
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The Company agrees that if any indemnification sought pursuant to
this Section 3(h) were for any reason not to be available to the
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Purchaser or insufficient to hold it harmless as and to the extent
contemplated by this Section, then the Company shall contribute to
the amount paid or payable by such Purchaser in respect of losses,
claims, damages and liabilities in such proportion as is appropriate
to reflect the relative faults of such parties as well as any other
equitable considerations.
4. Representations and Warranties of the Company. The Company represents and
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warrants, as of the date hereof and as of the Closing Date, as follows:
(a) no consent, approval, authorization or order of any court,
governmental agency or body or arbitrator having jurisdiction over
the Company or any of the Company's affiliates is required for the
execution of this Agreement or the sale of the Warrants to the
Purchaser;
(b) neither the sale of the Warrants nor the performance of the
Company's other obligations pursuant to this Agreement will violate,
conflict with, result in a breach of, or constitute a default (or an
event that, with the giving of notice or the lapse of time or both,
would constitute a default) under (i) the Certificates of
Incorporation or bylaws of the Company; (ii) any decree, judgment,
order or determination of any court, governmental agency or body, or
arbitrator having jurisdiction over the Company or any of the
Company's properties or assets; (iii) any law, treaty, rule or
regulation applicable to the Company (other than the federal
securities laws, representations and warranties with respect to
which are made by the Company solely in paragraphs (e) through (h)
of this Section 4), or the requirements of the Nasdaq Stock Market);
or (iv) the terms of any bond, debenture, note or other evidence of
indebtedness, or any agreement, stock option or similar plan by
which the Company is bound or to which any property of the Company
is subject, in any event above, which violation, conflict or breach
would have a material adverse effect on the Company;
(c) the Company has taken all corporate action required to authorize
the execution and delivery of this Agreement and the performance of
its obligations hereunder;
(d) the Company has duly authorized the issuance of the Warrants
and, when issued and delivered to and paid for by the Purchaser in
accordance with the terms hereof, the Warrants will be duly and
validly issued, fully paid and non-assessable; the Shares underlying
the Warrants when issued
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and paid for will also be duly and validly issued, fully paid and
non-assessable and the issuance of the Warrant Shares to the
Purchaser will not be subject to any preemptive or similar rights;
(e) based in substantial part on Purchaser's representations and
warranties below and the provisions in Paragraph 5, the sale of the
Warrants by the Company to Purchaser hereunder is not part of a plan
or scheme to evade the registration requirements of the Act;
(f) neither the Company or, to its knowledge, any person acting on
behalf of the Company has offered or sold any of the Warrants by any
form of general solicitation or general advertising;
(g) the Company has offered the Warrants for sale only to
"accredited investors," as such term is defined in Rule 501(a) under
the Act, who by reason or their business and financial experience
have such knowledge, sophistication and experience in business and
financial matters as to be capable of evaluating the merits and
risks of the investment in the Warrants.
(h) the Company's Prospectus dated August 14, 1998, included in the
Company's Registration Statement on Form S-3 (Registration No. 333-
61127 attached hereto as Exhibit "A"); the Company's Annual Report
on Form 10-KSB (as amended) for its Fiscal Year Ended June 30, 1997;
the Company's proxy statement dated January 20, 1998 for its Annual
Meeting held on February 23, 1998; the Company's Quarterly Reports
on Form 10-Q for the fiscal quarters ended March 31, 1996 (as
amended), September 30, 1997 (as amended), December 31, 1997 (as
amended) and March 31, 1998 (as amended); the Company's Current
Reports on Form 8-K for October 30, 1996 (as amended), May 15, 1997
(as amended), June 18, 1997, August 22, 1997 (as amended), October
22, 1997, December 1, 1997, January 6, 1998 (as amended), January 9,
1998 (as amended), January 26, 1998 (as amended), March 31, 1998,
April 8, 1998, May 26, 1998, June 23, 1998 and August 11, 1998
(collectively, the "Disclosure Documents") have been delivered to
Purchaser and, as of the date of each such respective document
included therein and when considered together and with this
Agreement (and any similar agreements being executed by the
Company), such "Disclosure Documents" do not contain any untrue
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statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances in which they
were made with respect to the Company;
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(i) the Company's Financial Statements for the year ended June 30,
1997, as amended, included in the Disclosure Documents comply in all
material respects with the applicable requirements of the Securities
Exchange Act of 1934, as amended, and have been prepared, and fairly
present in all material respects the consolidated financial
condition, results of operations and cash flows of the Company and
its subsidiaries at the respective dates and for the respective
periods indicated, in accordance with generally accepted accounting
principles consistently applied throughout such periods (except as
noted therein) and will not be restated any time within the 120-day
period following the Closing Date, if ever except for a change in
the law or generally accepted accounting principles ("GAAP");
(j) except as set forth in the Disclosure Documents or pursuant to
this Agreement (or any similar agreements being executed by the
Company) since March 31, 1998 (i) the Company has not incurred any
material liabilities, direct or contingent except in the ordinary
course of business and additional borrowings and increases under the
revolving lines of credit of the Company and its subsidiaries, those
liabilities incurred in connection with the acquisitions consummated
by the Company since March 31, 1998, and borrowings under a
revolving credit facility (the Loan and Security Agreement dated
June 23, 1998, as amended) with BankAmerica Business Credit Inc., as
agent, and Deutsche Services Finances Corporation as administrative
agent and a bridge loan obtained from Deutsche Bank A.G. New York
Branch on July 3, 1998, and (ii) there has been no material adverse
change in the properties, business, results of operations or
financial condition of the Company; and
(k) as of August 7, 1998 (and without giving effect to the sale of
Shares of Common Stock hereunder), the Company had a total of
37,424,477 shares of Common Stock issued and outstanding;
approximately 7,630,000 shares of Common Stock were reserved for
issuance pursuant to existing stock options under the Company's
current stock option plans or outside of the plans and approximately
an additional 3,743,000 shares were issuable upon exercise of
options available for future grant; 400,000 shares of Common Stock
were reserved for issuance upon grant of Shares under the Bonus
Plan, and 586,500 shares were reserved for issuance pursuant to
exercise of outstanding Warrants.
5. Representations and Warranties of the Purchaser. The Purchaser represents
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and warrants that:
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(a) the purchase of the Warrants by the Purchaser is not part of a
plan or scheme to evade the registration requirements of the Act;
(b) the Purchaser is an "accredited investor," as such term is
defined in Rule 501(a) under the Act, who by reason of its business
and financial experience has such knowledge, sophistication and
experience in business and financial matters as to be fully capable
of evaluating the merits and risks of an investment in the Warrants
and, having had access to or having been furnished prior to the
Closing Date with all such information as it has considered
necessary (including, without limitation, the Disclosure Documents),
has concluded that it fully understands and is able to bear to those
risks;
(c) the Purchaser is purchasing the Warrants for its own account or
an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified
institutional buyer" (as defined in Rule 144A promulgated under the
Securities Act ("QIB") although the sale of the Warrants is not
being made pursuant to Rule 144A), or an institutional accredited
investor (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act);
(d) the Purchaser understands that the Warrants and underlying
Warrant Shares constitute "restricted securities" within the meaning
of Rule 144 under the Act and may not be sold, pledged or otherwise
disposed of unless they are subsequently registered under the Act
and applicable state securities laws or unless an exemption from
registration thereunder is available and that a restrictive transfer
legend will be placed on the certificates for the Warrants and
underlying Warrant Shares and stop transfer orders with respect
thereto will be provided to the Company's transfer agent for the
Company's Common Stock and Warrants with substantially the following
legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), OR ANY APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE
OFFERED OR SOLD UNLESS THE SECURITIES ARE REGISTERED UNDER THE ACT OR ANY
APPLICABLE STATE SECURITIES LAWS, OR AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS IS AVAILABLE.
(e) in making any subsequent offering or sales of the Warrants and
underlying Warrant Shares the Purchaser will be acting only for
itself and
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not as part of a sale or planned distribution in violation of the
Act or any applicable state securities laws;
(f) the Warrants were not offered to the Purchaser by any form of
general solicitation or general advertising;
(g) the Purchaser understands that no federal or state or other
governmental agency has passed upon or made any recommendation or
endorsement with respect to the Warrants;
(h) the Purchaser is purchasing the Warrants or underlying Warrant
Shares not with a view to, or for sale in connection with, any
distribution of such securities in violation of the Act or any
applicable state securities laws;
(i) the Purchaser shall not resell or otherwise transfer such
Warrants or underlying Warrant Shares within two years after the
original issuance of such securities except (i) to the Company or any
subsidiary thereof, (ii) pursuant to an exemption from registration
provided by Rule 144 promulgated under the Securities Act (if
available) or any other exemption available, or (iii) pursuant to an
effective registration statement under the Securities Act;
(j) no consent, approval, authorization or order of any court,
government agency or body or arbitrator having jurisdiction over the
Purchaser or any of the Purchaser's affiliates is required for the
execution of this Agreement, or the performance of the Purchaser's
obligations hereunder, including, without limitation, the purchase of
the Warrants by the Purchaser; and
(k) the Purchaser has or, prior to the Closing Date, will have taken
all corporate action required to authorize the execution and delivery
of this Agreement and the performance of its obligation hereunder.
6. Conditions of Closing. The obligations of each party hereunder shall be
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subject to (a) the accuracy in all material respects of the representations and
warranties of the other party hereto as of the date hereof and as of the Closing
Date, as if such representations and warranties had been made again on and as of
the Closing Date and (b) the performance in all material respects by the other
party of its obligations hereunder which must be performed prior to the Closing
Date.
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7. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the Purchaser,
each person, if any, who controls the Purchaser within the meaning of
Section 15 of the Act and each officer, director, employee and agent
of the Purchaser and of any such controlling person against any and
all liabilities, claims, damages or expenses whatsoever, as incurred
arising out of any representation, warranty, covenant or undertaking
by the Company contained in this Agreement, and the Company will
reimburse the Purchaser for its reasonable legal and other expenses
(including the reasonable cost of any investigation and preparation,
and including the reasonable fees and expenses of counsel) incurred in
connection therewith.
(b) The Purchaser agrees to indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of
Section 15 of the Act and each officer, director, employee and agent
of the Company and of any such controlling person against any and all
losses, liabilities, claims, damages or expenses whatsoever, as
incurred arising out of or resulting from any breach or alleged breach
or other violation or alleged violation of any representation,
warranty, covenant or undertaking by the Purchaser contained in this
Agreement, and the Purchaser will reimburse the Company for its
reasonable legal and other expenses (including the reasonable cost of
any investigation and preparation, and including the reasonable fees
and expenses of counsel) incurred in connection therewith.
8. Survival of Representations and Warranties. The respective agreements,
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representations, warranties, indemnities and other statements made by or on
behalf of each party hereto pursuant to this Agreement, as of the date they were
made, shall survive until the termination of the Registration Period.
9. Miscellaneous.
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(a) This Agreement may he executed in one or more counterparts and
such counterparts shall constitute but one and the same agreement and
authorized signatures may be evidenced to the other party by
facsimile copies thereof; provided that the originally signed
signature page of any party is provided to the other party within two
business days after original execution.
(b) This Agreement shall inure to the benefit of and be binding upon
the parties hereto. This Agreement shall not be assignable by any
party hereto without the prior written consent of the other party
hereto and no
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other person shall have any right or obligation hereunder. Without
limiting the foregoing, the rights of Purchaser set forth in
Paragraph 2 shall not be transferable to subsequent purchasers of the
Warrants. Any assignment contrary to the terms hereof shall be null
and void and of no force or effect.
(c) This Agreement obtains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any prior
agreements or understandings, whether written or oral, between the
parties respecting such subject matter.
10. Governing Law. This Agreement shall be governed by the internal laws of
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the State of Nevada.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first set forth above.
AGRIBIOTECH, INC.
By:
_________________________________________
Xxxxxx X. Xxxxxx, Chief Executive Officer
____________________________________
By: __________________________
Name: ________________________
Title: _______________________
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