PRICE GUARANTY AGREEMENT
PRICE GUARANTY AGREEMENT dated September 18, 1998 (the "Closing Date"), by
and between Xxxxxxxxx Xxxxxxxx III, Xxxxxxx X. Xxx, Xxxxxx X. Xxxxxxxxxxx,
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxxx ("Sellers"), and
AgriBioTech, Inc., a Nevada corporation ("ABT").
R E C I T A L S:
A. Las Vegas Fertilizer Co., Inc. ("Buyer") has agreed to purchase from the
Sellers an aggregate of 901,032 shares of the Common Stock of Garden West
Distributors, Inc., an Arizona Corporation (the "Company"), pursuant to a Stock
Purchase Agreement dated September 18, 1998 (the "Stock Purchase Agreement")
among the Sellers, the Company, the Buyer and ABT.
B. Pursuant to Section 3(a) of the Stock Purchase Agreement, ABT will
transfer to the Sellers 122,150 shares of the common stock of ABT (the "ABT
Shares").
C. Pursuant to Section 3(c) of the Stock Purchase Agreement, Sellers and
the Shareholder have entered into a Lock-Up Agreement (the "Lock-Up Agreement")
pursuant to which they have agreed that Sellers will shall not sell, transfer or
otherwise dispose of the ABT Shares except as specified in the Lock-Up Agreement
and, pursuant to Section 3(c) of the Stock Purchase Agreement, ABT has agreed to
enter into this Price Guaranty Agreement with Sellers.
Accordingly, in consideration of the foregoing recitals and the mutual
covenants contained in this Agreement, the parties hereto hereby agree as
follows:
(1) ABT agrees to pay to Sellers any deficiency realized in the Net
Proceeds from sales by Sellers of the ABT Shares in accordance with the terms of
the Lock-Up Agreement provided all of the ABT Shares are sold by June 30, 2000
and copies of sale confirmations and other documentation has been provided to
ABT by Sellers as required by the Lockup Agreement. As used herein, "Net
Proceeds" means the remainder of subtracting customary sales commission and
applicable stock transfer and sales taxes from the gross sales price of the ABT
Shares sold pursuant to the Lockup Agreement.
(2) (a) The Net Proceeds shall be determined within 15 days following June
30, 2000:
(b) Subject to the provisions of the Stock Purchase Agreement and the
Lock-Up Agreement, to the extent that the Net Proceeds of sales
of ABT Shares pursuant to the Lock-Up Agreement are less then
$2,137,625, ABT will pay to the Sellers cash in an amount equal
to any such deficiencies within 15 business days after June 30,
2000.
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(c) To the extent that the Net Proceeds of sales of ABT Shares
pursuant to the Lock-Up Agreement exceed $2,137,625, Sellers will
pay to ABT within 15 business days following June 30, 2000 an
amount equal to such surplus of Net Proceeds.
(d) Sellers shall prepare and deliver to ABT within 15 days after
June 30, 2000 a cumulative statement, supported by documentation
reflecting all sales of ABT Shares by Sellers pursuant to the
Lock-Up Agreement.
(e) In the event that the Sellers offer, sell, transfer or otherwise
dispose of the ABT Shares in violation of the Lock-Up Agreement,
without the prior written consent of ABT, (i) ABT's obligations
hereunder will immediately terminate, and (ii) all proceeds in
excess of $12.50 per share from the sale of all ABT Shares,
whether such proceeds derive from sales made prior to, concurrent
with or subsequent to such event of default, shall be paid to
ABT.
(3) Subject to Section 6, this Agreement shall inure to the benefit of and
be binding upon ABT, its successors and assigns, and Sellers.
(4) Should any provision of this Agreement, for any reason whatsoever, be
declared invalid, illegal, or incapable of being enforced in whole or in part,
such decision shall not affect the validity of the remaining provisions, which
will remain in full force and effect as if this Agreement had been executed with
the invalid portion thereof deleted.
(5) This Agreement shall be governed by, construed and enforced in
accordance with the laws of the State of Nevada without giving to the choice of
law rates thereof.
(6) This Agreement and all rights hereunder are personal to the parties and
shall not be assignable, and any purported assignment in violation thereof shall
be null and void.
(7) (a) All notices, requests, consents, and demands by the parties
hereunder shall be delivered by hand, sent by facsimile transmission confirmed
by a "hardcopy" sent by mail or overnight courier, recognized national overnight
courier or by deposit in the United States Mail, postage prepaid, by registered
or certified mail, return receipt requested, addressed to the party to be
notified at the address set forth below:
(i) if to the Sellers to:
with a copy to:
Xxxxx & Xxxxxxxx S.C.
Suite 600 Exchange Building
000 Xxxxx Xxxxxx, Xxxxx
XxXxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
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(ii) if to the Buyer or ABT to:
AgriBioTech, Inc.
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, CEO
Telecopier No.: (000) 000-0000
with a copy to:
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) Notices given by mail shall be deemed effective on the earlier of
the date shown on the proof of receipt of such mail or, unless
the recipient proves that the notice was received later or not
received, three (3) days after the date of mailing thereof. Other
notices shall be deemed given on the date of receipt. Any party
hereto may change the address specified herein by written notice
to the other parties hereto.
(8) In the event that ABT fails to make a payment to Sellers required to be
made by it hereunder within 30 days after receipt of written notice from Sellers
demanding such payment and Sellers have fully complied with its obligations
hereunder and under the Stock Purchase Agreement and the Lock-Up Agreement, ABT
shall be in default under this Agreement with respect to such payment. Upon such
default by ABT, Sellers may pursue all remedies to which they are entitled.
(9) The failure of either party to insist upon the strict performance of
any of the terms, conditions and provisions of this Agreement shall not be
construed as a waiver or relinquishment of future compliance therewith, and such
provisions, terms and conditions shall remain in full force and effect. No
waiver of any term or any condition of this Agreement on the part of either
party shall be effective for any purpose whatsoever unless such waiver is in
writing and signed by such party.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first written above.
/s/ Xxxxxxxxx Xxxxxxxx III /s/ Xxxxxxx X. Xxx
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Xxxxxxxxx Xxxxxxxx III Xxxxxxx X. Xxx
/s/ Xxxxxx X. Xxxxxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxxx
AGRIBIOTECH, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Xxxxxxxx X. Xxxxxxxxx
Vice President
