As
filed
with the United States Securities and Exchange Commission on September 28,
2007.
Registration
No. 333-146079
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
Amendment
No. 1 to
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
_____________________
AEROGROW
INTERNATIONAL, INC.
(Exact
Name of Registrant as Specified in its Charter)
|
Nevada
|
46-0510865
|
|
(State
or Other Jurisdiction of Incorporation or Organization)
|
(I.R.S.
Employer
Identification
Number)
|
|
6075
Longbow Dr., Suite 200
Boulder,
Colorado
(303)
444-7755
(Address,
including Zip Code, and Telephone Number, including Area Code,
of
Registrant's Principal Executive Offices)
|
W.
Michael Bissonnette
AeroGrow
International, Inc.
6075
Longbow Dr., Suite 200
Boulder,
Colorado
(303)
444-7755
(Name,
Address, including Zip Code, and Telephone Number, including Area
Code, of
Agent for Service)
|
Copies
to:
|
Brian
Lane, Esq.
Gibson,
Dunn & Crutcher LLP
1050
Connecticut Avenue, NW
Washington,
D.C. 20036
|
______________________
Approximate
Date of Commencement of Proposed Sale to the Public:
From
time
to time after the effective date of this Registration Statement.
If
the
only securities being registered on this form are being offered pursuant
to
dividend or interest reinvestment plans, please check the following box.
o
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, other
than securities offered only in connection with dividend or interest
reinvestment plans, 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, please check the following box and list
the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
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. o
If
delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. o
______________________
The
Registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a),
may
determine.
Subject
to completion, dated September 28, 2007
|
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these
securities and it is not a solicitation of an offer to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
|
2,380,056
Shares of Common Stock
AEROGROW
INTERNATIONAL, INC.
——————————
This
prospectus covers up to 2,380,056 shares of common stock of AeroGrow
International, Inc. (“AeroGrow”) that may be offered for resale, or otherwise
disposed for the account of, the selling securityholders set forth under
the
heading “Selling Securityholders” beginning on page 8. The shares of common
stock issued and outstanding may be offered at any time. The shares of common
stock underlying the outstanding common stock purchase warrants may only
be
offered for resale after being issued by AeroGrow to the selling securityholders
upon exercise.
On
June
13, 2007, our common stock began trading on the NASDAQ Capital Market using
the
trading symbol "AERO." The closing price of our common stock on
September 13, 2007 was $8.42.
AeroGrow
will not receive any proceeds from the sale or other disposition of the shares
or interests therein by the selling securityholders. To the extent that any
of
the common stock purchase warrants are exercised, we will receive the exercise
price paid for the shares of common stock purchased thereunder.
Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning
on page 2 of this prospectus.
Neither
the United States Securities and Exchange Commission, or the SEC, nor any
state
securities commission has approved or disapproved these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
The
date
of this prospectus
is ,
2007
Safe
Harbor Statement under the Private Securities Litigation Reform Act of
1995
In
addition to historical information, this prospectus contains “forward-looking”
statements within the meaning of Section 27A of the Securities Act of 1933,
as
amended, or the Securities Act, and Section 21E of the Securities Exchange
Act
of 1934, as amended, or the Exchange Act, including statements that include
the
words “may,” “will,” “believes,” “expects,” “anticipates,” or other similar
expressions. These forward-looking statements may include, among others,
statements concerning the expectations of AeroGrow regarding its business,
growth prospects, revenue trends, operating costs, working capital requirements,
competition, results of operations, and other statements of expectations,
beliefs, future plans and strategies, anticipated events or trends, and similar
expressions concerning matters that are not historical facts. The
forward-looking statements in this prospectus involve known and unknown risks,
uncertainties, and other factors that could cause actual results, performance,
or achievements to differ materially from those expressed or implied by the
forward-looking statements contained herein.
Each
forward-looking statement should be read in context with, and with an
understanding of, the various disclosures concerning our business made elsewhere
in this prospectus, as well as other public reports filed by us with the
SEC.
Investors should not place undue reliance on any forward-looking statement
as a
prediction of actual results of developments. Except as required by applicable
law or regulation, we undertake no obligation to update or revise any
forward-looking statement contained in this prospectus.
This
summary highlights information contained elsewhere in this prospectus. You
should read this entire prospectus carefully before making an investment
decision, including the “Risk Factors” section beginning on page 3, and the
documents and information incorporated by reference into this
prospectus. In this prospectus, we refer to AeroGrow International,
Inc. as “AeroGrow,” the “Company,” “we,” “our,” and “us.”
AeroGrow
International
AeroGrow
was formed as a Nevada corporation on March 25, 2002. We are in the
business of developing, marketing, distributing, and selling advanced indoor
aeroponic garden systems designed and priced to appeal to the gardening,
cooking
and small kitchen appliance, healthy eating, and home and office décor markets
worldwide. Our principal activities since our formation through March
2006 consisted of product research and development, market research, business
planning, and raising the capital necessary to fund these
activities. We have been issued seven trademarks, one of which has
been registered (AeroGarden®), and have an additional 28 trademark applications
pending (25 in the United States and 3 internationally). We have 19
patent applications pending in the United States. To date, we have
completed the development and commenced sales of multiple proprietary growing
systems for both domestic and international distribution as well as
22 proprietary seed kits and various accessory
products.
During
2005 we completed development of our initial kitchen garden systems and related
“bio-grow” seed pods. We contracted with a third-party manufacturer
who commenced production activities in December 2005 and a second manufacturer
who began production in the first quarter of calendar 2007. As of
June 30, 2007, we have manufactured and taken delivery of over 170,000
AeroGarden® kitchen garden units from our two manufacturers. In March 2006, we
commenced initial marking of our products and began sales
activities. We have expanded our marketing efforts to encompass
retail, home shopping, catalogue, international, and direct to consumer sales
channels.
Our
principal products are “kitchen garden” indoor growing systems and proprietary
seed kits that allow consumers, with or without gardening experience, the
ability to grow many varieties of herbs, flowers and vegetables including
cherry
tomatoes, cilantro, chives, basil, dill, oregano, mint, flowers, chili peppers
and salad greens throughout the year. Our kitchen garden systems are
designed to be simple, consistently successful, and affordable. We
believe that the design and features of our kitchen garden systems made them
the
first of their kind on the consumer market. We reached this conclusion on
the
basis of standard methods of market research, including focus groups and
potential customer interview techniques, review of potentially competitive
products offered at all ranges of functionality and price, and testing of
products that may be considered competitive in function although not necessarily
competitive in market orientation.
We
believe that our products will allow almost anyone, from consumers who have
no
gardening experience, to professional gardeners, to produce year-round harvests
of a variety of herbs, vegetables, and flowers, which are provided in our
seed
kits, regardless of season, weather, or lack of natural light. We believe
that
our kitchen garden systems’ unique and attractive designs make them appropriate
for use in almost any location, including kitchens, bathrooms, living areas,
and
offices.
Our
kitchen garden systems retail at approximately $149 to $169 with variations
based on the channel of distribution in which they are sold and the accessory
components included with the unit.
Until
March 2006, when we commenced sales of our aeroponic garden systems, we were
a
Development Stage Enterprise in accordance with Statement of Financial
Accounting Standards No. 7, “Accounting and Reporting by Development Stage
Enterprises,” and we did not generate any revenues. Through March 1, 2006, we
funded our operations primarily through the private sale of equity securities.
Since commencing sales of our products, we have begun to increase our reliance
on revenues generated from such sales for funding our operations. We
had an accumulated deficit of $31,814,893 through June 30, 2007. We
expect to incur substantial additional expenses and losses in the further
implementation of our business plan. Because we are in the early stages of
implementing our business plan, we cannot predict now if we will ever be
profitable.
Our
principal office is located at 6075 Longbow Drive, Boulder, Colorado 80301.
Our
telephone number is (303) 444-7755 and our fax number is (303) 444-0406.
We
maintain a website at www.aerogrow.com. Information on our website is not
part
of this prospectus.
You
should consider the following risk factors, in addition to the other information
presented in this prospectus and the documents incorporated by reference
in this
prospectus, in evaluating us, our business, and an investment in our common
stock. Any of the following risks, as well as other risks and uncertainties,
could seriously harm our business and financial results and cause the value
of
our common stock to decline, which in turn could cause you to lose all or
part
of your investment.
RISKS
RELATED TO OPERATIONS
Because
we have a limited operating history, we may not be able to successfully manage
our business or achieve profitability.
We
have a
limited operating history upon which you can base your evaluation of our
prospects and the potential value of our common stock. In 2006, we began
to
produce our garden systems and seed kits and we are still in the process
of
ramping up our production and sales. We are confronted with the risks inherent
in a start-up company, including difficulties and delays in connection with
the
production and sales of our kitchen garden systems, reliance on a small number
of products and manufacturers, operational difficulties, and under-estimation
of
production and administrative costs. If we cannot successfully manage our
business, we may not be able to generate future profits and may not be able
to
support our operations. We expect to incur substantial additional expenses
and
losses in the further implementation of our business plan. We may not
be able to improve operations and therefore may not become
profitable. Because we are in the early stages of implementing our
business plan, we cannot predict now if we will ever be profitable.
We
have incurred substantial losses since inception and may never achieve
profitability.
Since
we
commenced operations in 2002, through June 30, 2007, we have incurred
substantial operating losses. For the three months ended June 30, 2007, we
had a
net loss of $2,022,730; for the three months ended June 30, 2006, we had
a net
loss of $2,122,889. For the year ended March 31, 2007, we had a net
loss of $10,386,451; for the transition period of the three months ended
March
31, 2006, we had a net loss of $7,543,343; and for the 12 months ended December
31, 2005, we had a net loss of $7,717,577. Since inception, our losses from
operations have resulted in an accumulated deficit of $31,814,893 as of June
30,
2007. We expect that our operating expenses will outpace revenues for the
near
future and result in continued losses. The success of our business will depend
on our ability to expand sales and distribution of our AeroGarden™ kitchen
garden systems to consumers and develop new product extensions and
applications.
We
are
subject to many of the risks common to developing enterprises, including
undercapitalization, cash shortages, limitations with respect to financial
and
other resources, and lack of revenues to be self-sustaining. There is no
assurance that we will ever attain profitability, which may lead to the loss
of
your entire investment.
If
our kitchen garden systems fail to perform properly, our business could suffer
with increased costs and reduced income.
Although
we internally tested our products in our laboratories and with users for
over
three years, our products may fail to meet consumer expectations. We have
limited experience with returns and warranty claims for our products. We
may be
required to replace or repair products or refund the purchase price to
consumers. Failure of our products to meet expectations could:
·
damage
our
reputation;
·
decrease
sales;
·
incur
costs
related to returns and repairs;
·
delay
market
acceptance of our products;
·
result
in
unpaid accounts receivable; and
·
divert
our
resources to remedy the malfunctions.
The
occurrence of any of these events would have an adverse impact on our results
of
operations.
We
will likely need additional capital to fund our growth.
We
anticipate that we have sufficient capital to satisfy our requirements for
the
next 12 months. However, we will likely require additional capital to support
our growth and cover operational expenses as we expand our marketing and
product
development. It is possible that none of our remaining outstanding warrants
will
be exercised and we will therefore not receive any proceeds therefrom. We
may
need to issue equity, debt, or securities convertible into equity, all of
which
could dilute the current stock ownership in AeroGrow. If we cannot obtain
additional financing on acceptable terms, we may not have sufficient capital
to
operate our business as planned and would have to modify our business plan
or
curtail some or all of our operations.
Our
intellectual property and proprietary rights are only filed in the United
States, give us only limited protection, and can be expensive to
defend.
Our
ability to produce and sell kitchen garden systems exclusively depends in
part
on securing patent protection for the components of our systems, maintaining
various trademarks, and protecting our operational trade secrets. To protect
our
proprietary technology, we rely on a combination of patents pending (and
if
granted, patents), trade secrets, and non-disclosure agreements, each of
which
affords only limited protection. We own the rights to 19 United States patent
applications. However, these patent applications may not result in issued
patents and even issued patents may be challenged. We are selling our kitchen
garden systems prior to receiving issued patents relating to our patent
applications. All of our intellectual property rights may be challenged,
invalidated, or circumvented. Claims for infringement may be asserted or
prosecuted against us in the future and we may not be able to protect our
patents, if any are obtained, and intellectual property rights against others.
Our former employees or consultants may violate their non-disclosure agreements,
leading to a loss of proprietary intellectual property. We also could incur
substantial costs to assert our intellectual property or proprietary rights
against others.
Our
current or future manufacturers could fail to fulfill our orders for kitchen
garden systems, which would disrupt our business, increase our costs, and
could
potentially cause us to lose our market.
We
currently depend on two contract manufacturers in China to produce our kitchen
garden systems. These manufacturers could fail to produce the kitchen garden
system to our specifications or in a workmanlike manner and may not deliver
the
systems on a timely basis. Our manufacturers must also obtain inventories
of the
necessary parts and tools for production. We own the tools and dies used
by our
manufacturers. Our manufacturers operate in China and may be subject to business
risks that fall outside our control, including but not limited to, political,
currency, and regulatory risks, each of which may affect the manufacturer’s
ability to fulfill our orders for kitchen garden systems. Any change in
manufacturers could disrupt our ability to fulfill orders for kitchen garden
systems. Any change in manufacturers could disrupt our business due to delays
in
finding a new manufacturer, providing specifications, and testing initial
production.
If
we are unable to assimilate our new managers and recruit and retain key
personnel necessary to operate our business, our ability to successfully
manage
our business and develop and market our products may be
harmed.
Several
of our executive officers have recently joined us and therefore have limited
experience in managing our company. In addition, to expand our business we
will
also need to attract, retain, and motivate highly skilled design, development,
management, accounting, sales, merchandising, marketing, and customer service
personnel. We plan to hire additional personnel in all areas of our business.
Competition for many of these types of personnel is intense. As a result,
we may
be unable to successfully attract or retain qualified personnel. Additionally,
any of our officers or employees can terminate their employment with us at
any
time. The loss of any key employee, or our inability to attract or retain
other
qualified employees, could harm our business and results of
operations.
We
rely on third parties for a significant portion of our manufacturing, warehouse,
distribution, order processing, and fulfillment operations. If these parties
are
unwilling to continue providing services to us, or are unable to adequately
perform such services for us on a cost effective basis, our business could
be
materially harmed.
We
engage
third parties to perform many critical functions. For example, we have
outsourced our manufacturing, warehouse, distribution, order processing,
and
fulfillment operations. Any disruption in our relationship with any of our
vendors could cause significant disruption in our business and we may not
be
able to locate another party that can provide comparable services in a timely
manner or on acceptable commercial terms. In addition, no assurance can be
made
that these relationships will be adequate to support our business as we follow
our business plan.
RISKS
RELATED TO THE RELEVANT MARKET FOR OUR PRODUCT
Our
future depends on the financial success of our kitchen garden systems. Since
we
are introducing entirely new products without comparable sales history, we
do
not know if our kitchen garden systems and seed kits will generate wide
acceptance by consumers.
We
have
introduced our kitchen garden systems and seed kits as new products to consumer
markets unfamiliar with their use and benefits. In addition, we currently
have,
and only contemplate having, one product line, indoor garden systems. We
cannot
be certain that our products will generate widespread acceptance. If consumers
do not purchase our products in sufficient numbers, we will not be profitable
and you may lose all of your investment. Investors must consider our prospects
in light of the risks, expenses, and challenges of attempting to introduce
new
products with unknown consumer acceptance.
Our
marketing strategies may not be successful, which would adversely affect
our
future revenues and profitability.
Our
revenues and future depend on the successful marketing of our kitchen garden
systems. We cannot give assurance that consumers will continue to be interested
in purchasing our products. We plan to use direct marketing to sell our products
via television commercials, infomercials, magazine and newspaper advertising,
and the Internet. Our infomercials and commercials may not generate sufficient
income to continue to air them. If our marketing strategies fail to attract
customers, our product sales will not produce future revenues sufficient
to meet
our operating expenses or fund our future operations. If this occurs, our
business may fail and investors may lose their entire investment.
We
may face significant competition, and if we are unable to compete effectively,
our sales may be adversely affected.
We
believe that our simplified and complete kitchen garden systems offer
significant benefits over traditional hydroponic industry products. We
recognize, however, that there are companies that are better funded and with
greater experience in producing hydroponic products in commercial markets,
including, but not limited to, companies such as General Hydroponics and
American Hydroponics. These companies could potentially decide to
focus on the consumer market with competing products. We could also face
competition from gardening wholesalers and large and profitable soil-based
gardening companies, including, but not limited to, the Burpee Seed Company
and
Gardener’s Supply Company, should they decide to produce a competitive product.
In addition, other consumer products companies could develop products to
compete
with our products. These companies may use hydroponic technologies, and may
have
better consumer acceptance. If any such competing products are
successful, their success may adversely impact us.
RISKS
RELATED TO OUR CAPITALIZATION
If
an exemption from registration on which we have relied for any of our past
offerings of common stock or warrants are challenged legally, our principals
may
have to spend time defending claims, and we would then risk paying expenses
for
defense, rescission, and/or regulatory sanctions.
To
raise
working capital, we offered common stock and warrants in private transactions
that we believed to be exempt from registration under the Securities Act
and
state securities laws. In 2004 we conducted a state-registered offering in
Colorado of common stock and warrants, intended to be exempt from registration
under the Securities Act as an intrastate offering. However, because we are
incorporated in Nevada, the offering did not satisfy all of the requirements
for
an intrastate offering. This could result in investors or regulators asserting
that the Colorado offering and/or private offerings following the Colorado
offering (if the private offerings were integrated with the Colorado offering)
violated the Securities Act. There can be no assurance that investors or
regulators will not be successful in asserting a claim that these transactions
should not be integrated. In the event that one or more investors seeks
rescission, with resulting return of investment funds and interest at a market
rate, or that state or federal regulators seeks sanctions against us or our
principals, we would spend time and financial resources to pay expenses for
defense, rescission awards, or regulatory sanctions. The use of funds would
reduce the capital available to implement our full plan of operation. No
assurance can be given regarding the outcome of any such actions.
There
may be substantial sales of our common stock by existing securityholders
which
could cause the price of our stock to fall.
Future
sales of substantial amounts of our common stock in the public market or
the
perception that such sales might occur, could cause the market price of our
common stock to decline and could impair the value of your investment in
our
common stock and our ability to raise equity capital in the
future. As of September 13, 2007, we had 12,009,681 shares of common
stock outstanding, of which 6,087,091 shares may be sold without
restriction. (See the following risk factor for discussion of
7,797,382 additional shares that are subject to issuance pursuant to outstanding
warrants, options and convertible debt.) Of the remaining 5,922,590
shares subject to restrictions, 2,016,204 will become tradable, subject to
securities laws, on December 22, 2007, and 2,016,203 will become tradable,
subject to securities laws, on June 22, 2008, in each case once lockup
restrictions covering the shares expire; however, these lockup restrictions
may
be released prior to these dates pursuant to an agreement with Keating
Securities if both AeroGrow and Keating Securities consent to the
release. An additional 1,378,426 shares are beneficially owned by
directors and officers and are subject to foregoing lockup as well as an
additional lockup which will expire 60 days from the effective date of this
registration statement. The remaining 511,757 shares are restricted shares
for
which we are obligated to file a registration statement but have not yet
filed
such registration statement.
The
sales
of our common stock by securityholders, or even the appearance that such
holders
may make such sales, may limit the market for our common stock or depress
any
trading market volume and price before other investors are able to sell the
common stock. Moreover, a number of shareholders have held their
investment for a substantial period of time and may desire to sell their
shares,
which could drive down the price of our common stock.
Our
outstanding warrants, options and convertible notes, and additional future
obligations to issue our securities to various parties, may dilute the value
of
your investment and may adversely affect our ability to raise additional
capital.
As
of
June 30, 2007, we were committed to issue up to 7,001,454 additional shares
of
common stock under the terms of outstanding convertible notes, warrants,
options
and other arrangements:
|
·
|
828,858
shares of common stock are issuable upon exercise of outstanding
warrants
and options issued prior to June 30, 2005 at exercise prices ranging
from
$0.005 to $15.00 per share;
|
|
·
|
2,038,000
shares of common stock are issuable upon exercise of outstanding
warrants
issued to investors in our February 2006 private placement offering
(the
“2006 Offering”) at an exercise price of $6.25 per
share;
|
|
·
|
1,166,760
shares of common stock are issuable upon exercise of outstanding
warrants
issued to investors in our March 2007 private placement offering,
or the
2007 Offering, at an exercise price of $7.50 per
share;
|
|
·
|
575,000
shares of common stock are issuable upon exercise of outstanding
warrants
held by the initial holders of the convertible notes at an exercise
price
of $5.00 per share;
|
|
·
|
584,000
shares of common stock are issuable upon exercise of outstanding
warrants
issued to holders that elected to convert notes in the principal
amount of
$2,970,000 at an exercise price of $6.00 per
share;
|
|
·
|
60,000
shares of common stock are issuable upon exercise of outstanding
warrants
issued in 2005 to Keating Securities or its designees in connection
with
the convertible notes offering at an exercise price of $6.00 per
share;
|
|
·
|
214,800
shares of common stock are issuable upon exercise of outstanding
warrants
issued to designees of Keating Securities in the 2006 Offering
at an
exercise price of $6.25;
|
|
·
|
83,340
shares of common stock are issuable upon exercise of outstanding
warrants
issued to designees of Keating Securities in the 2007 Offering
at an
exercise price of $8.25;
|
|
·
|
80,000
shares of common stock are issuable upon exercise of outstanding
warrants
issued to designees of Keating Securities in the 2007 Offering
at an
exercise price of $8.00; and
|
|
·
|
1,333,888
shares of common stock are issuable upon exercise of outstanding
options
issued pursuant to our 2005 Equity Compensation Plan at exercise
prices
ranging from $0.01 to $5.90.
|
Additionally,
1,246,696 shares of common stock to be registered by this prospectus are
issuable upon exercise of warrants at exercise prices ranging from $7.50
to
$8.25 per share.
We
have
historically issued shares of our common stock or granted stock options to
employees, consultants and vendors as a means to conserve cash, and we may
continue to grant additional shares of stock and issue stock options in the
future. As of June 30, 2007, 33,386 shares of common stock remain available
for
issuance under our 2005 Equity Compensation Plan.
For
the
length of time these notes, warrants, and options are outstanding, the holders
will have an opportunity to profit from a rise in the market price of our
common
stock without assuming the risks of ownership. This may adversely affect
the
terms upon which we can obtain additional capital. The holders of such
derivative securities would likely exercise or convert them at a time when
we
would be able to obtain equity capital on terms more favorable than the exercise
or conversion prices provided by the notes, warrants or options.
Further,
future sales of substantial amounts of these shares, or the perception that
such
sales might occur, could cause the market price of our common stock to decline
and could impair the value of your investment in our common stock and our
ability to raise equity capital in the future.
The
market price of the shares may fluctuate greatly. Investors in AeroGrow bear
the
risk that they will not recover their investment.
Our
common stock began trading on the NASDAQ on June 13, 2007. From January 7,
2007,
to June 12, 2007, our common stock traded on the OTC BB under the symbol
"AGWI.OB." Our current trading symbol is "AERO." No
assurance can be made that an active market will develop on the
NASDAQ. Currently, trading in our common stock on NASDAQ is limited,
and the per share price is likely to be influenced by the price at which
and the
amount of shares the selling securityholders are attempting to sell at any
time
with the possible effect of limiting the trading price or lowering the price
to
their offering price. Shares such as ours are also subject to the activities
of
persons engaged in short selling securities, which generally has the effect
of
driving the price down. Also, the common stock of emerging growth companies
is
typically subject to high price and volume volatility. Therefore, the price
of
our common stock may fluctuate widely. A full and stable trading market for
our
common stock may never develop in which event any holder of such shares may
not
be able to sell at the time he elects or at all.
All
of
the shares of common stock covered by this prospectus may be sold or otherwise
disposed of for the account of the selling securityholders. We will
not receive any of the proceeds from the sale or other disposition of the
shares
or interests therein by the selling securityholders.
This
prospectus also covers the sale of shares of common stock issuable upon exercise
of the 2007 March Offering Warrants (as defined under "Selling Securityholders")
and 2007 September Offering Warrants (as defined under "Selling
Securityholders"). Assuming no adjustments to the exercise price for
anti-dilution protection, we estimate that we will receive approximately
$9.8 million in gross proceeds in the event that all of the 2007 March
Offering Warrants and 2007 September Offering Warrants (collectively, the
“Warrants”) are exercised, assuming that the cashless exercise provisions of any
such Warrants are not utilized. Any proceeds received from the
exercise of the Warrants will be used for general corporate
purposes.
Despite
the existence of the Warrants, it is possible that none will be exercised
and
the Company will therefore not receive any proceeds therefrom. The
Warrants will be exercised only if the price of the common stock justifies
the
exercise prior to their expiration.
General
Our
articles of incorporation provide that we are authorized to issue up to
75,000,000 shares of common stock, par value $0.001 per share, and 20,000,000
shares of preferred stock, par value $0.001 per share. As of
September 13, 2007, we had 12,009,681 shares of common stock outstanding
and no shares of preferred stock outstanding. Nevada law allows our
board of directors to issue shares of common stock and preferred stock up
to the
total amount of authorized shares without obtaining the prior approval of
shareholders.
The
following description of our common stock and preferred stock, summarizes
the
material provisions of each and is qualified in its entirety by the provisions
of our articles of incorporation and bylaws.
Common
Stock
Holders
of our outstanding common stock have the following rights and privileges
in
general:
|
·
|
the
right to one vote for each share held of record on all matters
submitted
to a vote of the securityholders, including the election of
directors;
|
|
·
|
no
cumulative voting rights, which means that holders of a majority
of shares
outstanding can elect all of our
directors;
|
|
·
|
the
right to receive ratably dividends when, if and as may be declared
by our
board of directors out of funds legally available for such purposes,
subject to the senior rights, if any, of any holders of preferred
stock
then outstanding;
|
|
·
|
the
right to share ratably in the net assets legally available for
distribution to common securityholders after the payment of our
liabilities on our liquidation, dissolution and winding-up;
and
|
|
·
|
no
preemptive or conversion rights or other subscription rights, and
no
redemption privileges.
|
All
outstanding shares of our common stock are fully paid and
nonassessable.
Registration
Rights
We
have
agreed to register, on a registration statement to be filed by us, or the
Registration Statement, (i) 333,360 shares of common stock issued to
investors in a private offering completed on March 28, 2007, or the 2007
March
Offering, (ii) the 366,696 shares of common stock underlying warrants
issued to investors and the placement agent in the 2007 March Offering,
(iii) 800,000 shares of common stock issued to investors in a private
offering completed on September 4, 2007, or the 2007 September Offering,
and
(iv) 880,000 shares of common stock underlying warrants issued to investors
and the placement agent in the 2007 September Offering. This
Prospectus is part of the Registration Statement.
Dividend
Policy
We
have
not declared or paid any cash dividends on our common stock. We
intend to retain any future earnings to finance the growth and development
of
our business, and therefore do not anticipate paying any cash dividends on
the
common stock in the future. Our board of directors will determine any
future payment of cash dividends depending on the financial condition, results
of operations, capital requirements, general business condition and other
relevant factors.
Transfer
Agent and Registrar
We
have
appointed Corporate Stock Transfer, Denver, Colorado, as our registrar and
transfer agent of our common stock. The mailing address of Corporate
Stock Transfer is 3200 Cherry Creek South Drive, Denver, Colorado
80209-3246.
Director
Liability and Indemnification
Under
Nevada law and our bylaws, we are required to indemnify our officers, directors,
employees and agents in certain situations. In some instances, a
court must approve indemnification. As permitted by Nevada statutes,
the articles of incorporation eliminate in certain circumstances the monetary
liability of our directors for a breach of their fiduciary
duties. These provisions do not eliminate a director’s liability
for:
|
·
|
a
willful failure to deal fairly with us or our shareholders in connection
with a matter in which the director has a material conflict of
interest;
|
|
·
|
a
violation of criminal law unless the director had reasonable cause
to
believe that his or her conduct was lawful or no reasonable cause
to
believe that his or her conduct was
unlawful;
|
|
·
|
a
transaction from which the director derived an improper personal
profit;
and
|
As
to
indemnification for liabilities arising under the Securities Act for directors,
officers or persons controlling the company, we have been informed that,
in the
opinion of the SEC, such indemnification is against public policy and therefore
unenforceable.
Shareholder
Action
Under
our
bylaws, the affirmative vote of the holders of a majority of the shares of
common stock represented at a meeting at which a quorum is present is sufficient
to authorize, ratify or consent to any action required by the common
shareholders, except as otherwise provided by the Nevada General Corporation
Law. Under the Nevada General Corporation Law and our bylaws, our
shareholders may also take actions by written consent without holding a
meeting. The written consent must be signed by the holders of at
least a majority of the voting power, except that if a different proportion
of
voting power is required for a specific action, then that
proportion. If this occurs, we are required to provide prompt notice
of any corporate action taken without a meeting to our shareholders who did
not
consent in writing to the action.
Antitakeover
Provisions
Our
articles of incorporation and the Nevada General Corporation Law include
a
number of provisions that may have the effect of encouraging persons considering
unsolicited tender offers or other unilateral takeover proposals to negotiate
with our board of directors rather than pursue non-negotiated takeover
attempts. We believe that the benefits of these provisions outweigh
the potential disadvantages of discouraging these proposals because, among
other
things, negotiation of the proposals might result in an improvement of their
terms.
In
March
2007, we completed the 2007 March Offering in which we sold an aggregate
of
333,360 shares of common stock and warrants to purchase 333,360 shares of
common
stock at an exercise price of $7.50 per share (“2007 March Offering Investor
Warrants”) in the form of units consisting of one share of common stock and one
warrant per unit. In addition, we issued warrants to purchase 33,336
shares of common stock at an exercise price of $8.25 per share to the placement
agent (the “2007 March Offering Agent Warrants,” and together with the 2007
March Offering Investor Warrants, the “2007 March Offering Warrants”) of the
2007 March Offering.
In
September 2007, we completed the 2007 September Offering in which we sold
an
aggregate of 800,000 shares of common stock and warrants to purchase 800,000
shares of common stock at an exercise price of $8.00 per share (“2007 September
Offering Investor Warrants”) in the form of units consisting of one share of
common stock and one warrant per unit. In addition, we issued
warrants to purchase 80,000 shares of common stock at an exercise price of
$8.25
per share to the placement agent (the “2007 September Offering Agent Warrants,”
and together with the 2007 September Offering Investor Warrants, the “2007
September Offering Warrants”).
The
following table presents certain information known to us as of
September 13, 2007 relating to the people who are selling common stock
pursuant to this offering. During the past three years, none of the
selling securityholders held any position or office with
us. Beneficial ownership of the common stock by the selling
securityholders, which term includes their transferees, pledgees, donees
and
successors, after the offering will depend on the number of shares of common
stock sold by each selling securityholder.
|
Name
of Selling Securityholder(1)
|
Beneficial
Ownership of
Common
Stock Before Offering
|
Maximum
Number
of
Shares to
be
Sold
|
Beneficial
Ownership
of Common Stock
After
Offering
|
|
Number
|
Percentage(2)
|
|
Number
|
Percentage(2)
|
|
Alpha
Capital Anstalt(3)
|
80,000
|
*
|
80,000
|
--
|
--
|
|
Jeff
L. Andrews(1)
|
90,926
|
*
|
15,500
|
75,426
|
*
|
|
Margie
L. Blackwell(1)
|
38,671
|
*
|
15,500
|
23,171
|
*
|
|
Justin
K. Davis(1)
|
15,000
|
*
|
5,000
|
10,000
|
*
|
|
Diamond
Opportunity Fund, LLC
|
137,619
|
1.1%
|
80,000
|
57,659
|
*
|
|
Enable
Growth Partners LP(4)
|
1,362,000
|
10.7%
|
1,216,000
|
146,000
|
1.2%
|
|
Enable
Opportunity Partners LP(4)
|
56,000
|
*
|
32,000
|
24,000
|
*
|
|
Brett
W. Green(1)
|
12,500
|
*
|
5,000
|
7,500
|
*
|
|
Green
Drake Capital Corp(1)
|
4,238
|
*
|
1,200
|
3,038
|
*
|
|
Steve
Henricks(1)
|
22,959
|
*
|
2,000
|
20,959
|
*
|
|
Timothy
J. Keating(1)
|
172,243
|
1.4%
|
16,000
|
156,243
|
1.3%
|
|
Lazarus
Investment Partners, LLLP
|
660,000
|
5.4%
|
160,000
|
500,000
|
4.1%
|
|
Ranjit
P. Mankekar(1)
|
22,430
|
*
|
10,000
|
12,430
|
*
|
|
Pierce
Diversified Strategy Master Fund LLC, Ena(4)
|
62,000
|
*
|
32,000
|
30,000
|
*
|
|
Kyle
L. Rogers(1)
|
53,243
|
*
|
15,500
|
37,743
|
*
|
|
William
Smith(1)
|
3,336
|
*
|
3,336
|
--
|
--
|
|
Luca
Toscani(1)
|
105,522
|
*
|
21,500
|
84,022
|
*
|
|
Trigan
Investments, L.P.(5)
|
466,704
|
3.8%
|
466,704
|
--
|
--
|
|
Trigan
Investments, L.P. II(5)
|
200,016
|
1.6%
|
200,016
|
--
|
--
|
|
WMS
Enterprises, LLC(1)
|
2,800
|
*
|
2,800
|
--
|
--
|
|
*
|
Represents
less than 1% of the number of shares of our common stock
outstanding.
|
|
(1)
|
The
selling securityholders identified have indicated that they are,
or are
affiliates of, registered broker-dealers. These selling
securityholders have represented that they acquired their securities
in
the ordinary course of business and, at the time of the acquisition
of the
securities, had no agreements or understandings, directly or indirectly,
with any person to distribute the securities. To the extent
that we become aware that any such selling securityholders did
not acquire
their securities in the ordinary course of business or did have
such an
agreement or understanding, we will file a post-effective amendment
to
registration statement of which this prospectus is a part to designate
such person as an “underwriter” within the meaning of the Securities Act
of 1933.
|
|
(2)
|
Calculated
based on Rule 13d-3 of the Securities Exchange Act of 1934, based on
12,009,681 shares outstanding as of September 13, 2007. In
calculating these percentages for each securityholder, we also
treated as
outstanding that number of shares of common stock issuable upon
exercise
of the Warrants held by such securityholder. However, we did
not assume the exercise of any other securityholder’s warrants or
options. Unless otherwise noted, none of these selling
securityholders would beneficially own 1% or more of the outstanding
shares of our common stock following the sale of securities in
the
offering.
|
|
(3)
|
Konrad
Ackerman has voting and investment power with respect to the shares
beneficially owned by Alpha Capital
Anstalt.
|
|
(4)
|
Mitch
Levine has voting and investment power with respect to the shares
beneficially owned by Enable Growth Partners LP, Enable Opportunity
Partners LP, and Pierce Diversified Strategy Master Fund LLC,
Ena.
|
|
(5)
|
Doug
Granat and Lawrence Obermann have shared voting and investment
power with
respect to the shares beneficially owned by Trigan Investments,
L.P. and
Trigan Investments, L.P. II.
|
We
are registering the shares of common
stock previously issued in the 2007 March Offering and 2007 September Offering
and the shares of common stock issuable upon exercise of the Warrants to
permit
the resale of these shares of common stock by the holders of the common stock
and warrants from time to time after the date of this prospectus. We
will not receive any of the proceeds from the sale by the selling
securityholders of the shares of common stock. We will bear all fees
and expenses incident to our obligation to register the shares of common
stock.
The
selling securityholders may sell
all or a portion of the shares of common stock beneficially owned by them
and
offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the shares of common stock are sold
through underwriters or broker-dealers, the selling securityholders will
be
responsible for underwriting discounts or commissions or agent's
commissions. The shares of common stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
the
sale, at varying prices determined at the time of sale, or at negotiated
prices. These sales may be effected in transactions, which may
involve crosses or block transactions,
|
·
|
on
any national securities exchange or quotation service on which
the
securities may be listed or quoted at the time of
sale;
|
|
·
|
in
the over-the-counter market;
|
|
·
|
in
transactions otherwise than on these exchanges or systems or in
the
over-the-counter market;
|
|
·
|
through
the writing of options, whether such options are listed on an options
exchange or otherwise;
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal
to
facilitate the transaction;
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer
for its
account;
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
·
|
privately
negotiated transactions;
|
|
·
|
sales
pursuant to Rule 144;
|
|
·
|
broker-dealers
may agree with the selling securityholders to sell a specified
number of
such shares at a stipulated price per
share;
|
|
·
|
a
combination of any such methods of sale;
and
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
If
the selling securityholders effect
such transactions by selling shares of common stock to or through underwriters,
broker-dealers or agents, such underwriters, broker-dealers or agents may
receive commissions in the form of discounts, concessions or commissions
from
the selling securityholders or commissions from purchasers of the shares
of
common stock for whom they may act as agent or to whom they may sell as
principal (which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those customary
in
the types of transactions involved). In connection with sales of the
shares of common stock or otherwise, the selling securityholders may enter
into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in positions
they
assume. The selling securityholders may also sell shares of common
stock short and deliver shares of common stock covered by this prospectus
to
close out short positions and to return borrowed shares in connection with
such
short sales. The selling securityholders may also loan or pledge
shares of common stock to broker-dealers that in turn may sell such
shares.
The
selling securityholders may pledge
or grant a security interest in some or all of the Warrants or shares of
common
stock owned by them and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell the shares
of
common stock from time to time pursuant to this prospectus or any amendment
to
this prospectus under Rule 424(b)(3) or other applicable provision of the
Securities Act, amending, if necessary, the list of selling securityholders
to
include the pledgee, transferee, or other successors in interest as selling
securityholders under this prospectus. The selling securityholders
also may transfer and donate their shares of common stock in other circumstances
in which case the transferees, donees, pledgees, or other successors in interest
will be the selling beneficial owners for purposes of this
prospectus.
The
selling securityholders and any
broker-dealer participating in the distribution of the shares of common stock
may be deemed to be “underwriters” within the meaning of the Securities Act, and
any commission paid, or any discounts or concessions allowed to, any such
broker-dealer may be deemed to be underwriting commissions or discounts under
the Securities Act. At the time a particular offering of the shares
of common stock is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares of common
stock
being offered and the terms of the offering, including the name or names
of any
broker-dealers or agents, any discounts, commissions, and other terms
constituting compensation from the selling securityholders and any discounts,
commissions, or concessions allowed or reallowed or paid to
broker-dealers.
Under
the securities laws of some
states, the shares of common stock may be sold in such states only through
registered or licensed brokers or dealers. In addition, in some
states the shares of common stock may not be sold unless such shares have
been
registered or qualified for sale in such state or an exemption from registration
or qualification is available and is complied with.
There
can be no assurance that any
selling securityholder will sell any or all of the shares of common stock
registered pursuant to the registration statement, of which this prospectus
forms a part.
The
selling securityholders and any
other person participating in such distribution will be subject to applicable
provisions of the Securities Exchange Act, and the rules and regulations
thereunder, including, without limitation, Regulation M of the Exchange Act,
which may limit the timing of purchases and sales of any of the shares of
common
stock by the selling securityholders and any other participating
person. Regulation M may also restrict the ability of any person
engaged in the distribution of the shares of common stock to engage in
market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to engage
in
market-making activities with respect to the shares of common
stock.
We
will pay all expenses of the
registration of the shares of common stock pursuant to the registration rights
agreement, estimated to be $50,000 in total, including, without limitation,
SEC
filing fees and expenses of compliance with state securities or “blue sky” laws;
provided, however, that a selling securityholder will pay all underwriting
discounts and selling commissions, if any. We will indemnify the
selling securityholders against liabilities, including some liabilities under
the Securities Act, in accordance with the registration rights agreements,
or
the selling securityholders will be entitled to contribution. We may
be indemnified by the selling securityholders against civil liabilities,
including liabilities under the Securities Act, that may arise from any written
information furnished to us by the selling securityholder specifically for
use
in this prospectus, in accordance with the related registration rights
agreements, or we may be entitled to contribution.
Once
sold under the registration
statement, of which this prospectus forms a part, the shares of common stock
will be freely tradable in the hands of persons other than our
affiliates.
The
validity of the shares of common stock offered through this prospectus
will be
passed upon for us by Kranitz & Philipp. Richard Kranitz, one of
our directors and one of our securityholders, is a member of the law firm
of
Kranitz & Philipp.
EXPERTS
Gordon,
Hughes & Banks, LLP, Greenwood Village, Colorado, an independent registered
public accounting firm, has audited the balance sheets of AeroGrow as of
March
31, 2007 and 2006, and the related statements of operations, changes in
stockholders’ equity (deficit) and cash flows for the year ended March 31, 2007,
the three months ended March 31, 2006 and the year ended December 31, 2005,
as
incorporated by reference to the Company’s Annual Report on Form 10-KSB for the
year ended March 31, 2007.
WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual reports, quarterly reports, special reports, and other information,
including a registration statement on Form S-3 of which this prospectus forms
a
part, with the SEC. As permitted by the rules and regulations of the
SEC, this prospectus does not contain all of the information included in
the
registration statement and in the exhibits thereto. The statements
contained in this prospectus as to the contents of any contract or other
document referenced herein are not necessarily complete, and in each instance,
if the contract or document was filed as an exhibit, reference is hereby
made to
the copy of the contract or other document filed as an exhibit to the
registration statement and each statement is qualified in all respects by
the
reference. Our SEC filings and the registration statement, including
exhibits and schedules filed with it, are available to the public over the
Internet at the SEC’s web site at http://www.sec.gov. You may also
read and copy any document that we file with the SEC at the SEC’s public
reference room located at 100 F Street, N.E. Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information
on the operation of the public reference room.
We
will
provide without charge to you, upon written or oral request, a copy of any
information incorporated by reference in this prospectus, excluding exhibits
to
information incorporated by reference unless those exhibits are themselves
specifically incorporated by reference.
Any
requests for copies of information, reports, or other filings with the SEC
should be directed to AeroGrow International, Inc. at 6075 Longbow Dr. Suite
200, Boulder, Colorado, 80301, telephone (303) 444–7755. We
maintain a website at www.aerogrow.com. Information
contained on our website is not incorporated by reference into this prospectus
and you should not consider information contained on our website to be part
of
this prospectus.
INCORPORATION
BY REFERENCE
We
incorporate by reference into this prospectus the following documents we
have
filed with the SEC, which means that we can disclose important information
to
you by referring you to those filings:
|
·
|
our
Annual Report on Form 10-KSB for the year ended March 31, 2007,
filed on
June 29, 2007;
|
|
·
|
the
description of our common stock contained in our registration statement
on
Form 8-A/A, filed on June 12,
2007;
|
|
·
|
our
Quarterly Report on Form 10-Q for the period ended June 30, 2007,
filed on
August 14, 2007;
|
|
·
|
our
Current Report on Form 8-K, filed on April 19,
2007;
|
|
·
|
our
Current Report on Form 8-K, filed on June 4, 2007;
and
|
|
·
|
our
Current Report on Form 8-K, filed on September 5,
2007.
|
We
also
incorporate by reference each of the documents that we file with the SEC
(excluding those filings made under Items 2.02 or 7.01 of Form 8-K and
corresponding information furnished under Item 9.01 of Form 8-K or included
as
an exhibit) under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act
on or
after the date of this prospectus until all of the securities covered by
this
prospectus are sold by the selling securityholders. Any statements
made in such documents will automatically update and supersede the information
contained in this prospectus, and any statements made in this prospectus
update
and supersede the information contained in past SEC filings incorporated
by
reference into this prospectus.
PART
II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item
14 – Other Expenses of Issuance and Distribution
The
following is an itemization of all
expenses (subject to future contingencies) incurred or to be incurred by
the
Registrant, in connection with the registration of the securities being offered.
The selling shareholders will not pay any of the following
expenses.
|
Registration
Fee
|
|
$ |
569.16
|
|
Legal
Fees and Expenses*
|
|
$ |
40,000.00
|
|
Accounting
Fees and Expenses*
|
|
$ |
5,500.00
|
|
Transfer
Agent’s Fees*
|
|
$ |
1,000.00
|
|
Printing
Expenses*
|
|
$ |
1,000.00
|
|
Miscellaneous*
|
|
$ |
1,930.84
|
|
Total*
|
|
$ |
50,000.00
|
Item
15 – Indemnification of Directors and Officers
Nevada
Revised Statutes Section 78.7502 generally provides that a corporation may
indemnify its directors, officers, employees, or agents against all expenses,
including counsel fees, actually and reasonably incurred by or imposed upon
him
in connection with any proceeding to which he may be made a party, or in
which
he may be threatened to be a party, by reason of being or having been a
director, officer, employee, or agent of the corporation, or is or was serving
at its request as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, or any
settlement thereof, whether or not he is a director, officer, employee, or
agent
at the time such expenses are incurred, if he is not liable under Section
78.138
or 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.
Our
bylaws provide for the indemnification of our directors, officers, employees,
or
agents who are successful on the merits or otherwise in defense on any action
or
suit. Such indemnification shall include, expenses, including attorney’s fees
actually or reasonably incurred by him. Our articles of incorporation eliminate
the personal liability of directors to AeroGrow or any securityholders for
damages for a breach of fiduciary duty, except for acts or omissions involving
intentional misconduct, fraud, or a knowing violation of law, or the payment
of
dividends in violation of Section 78.300 of the Nevada Revised Statutes.
We have
not purchased insurance against costs which may be incurred by us pursuant
to
these indemnification provisions, nor do we insure our officers or directors
against liabilities incurred by them in the discharge of their functions
as such
officers and directors of AeroGrow.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers, and controlling persons pursuant to the
foregoing indemnification provisions, we have been advised that in the opinion
of the SEC, such indemnification is against public policy as expressed in
the
Securities Act and is therefore unenforceable.
|
|
4.1
|
Form
of 2007 March Offering Investor Warrant (incorporated by reference
to
Exhibit 4.1 of our Current Report on Form 8-K, filed March 16,
2007)
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4.2
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Form
of 2007 March Offering Agent Warrant (incorporated by reference
to
Exhibit 4.2 of our Current Report on Form 8-K, filed March 16,
2007)
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4.3*
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Registration
Rights Agreement, dated as of March 28, 2007, by and between AeroGrow
International, Inc. and the other parties
thereto
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4.4
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Form
of 2007 September Offering Investor Warrant (incorporated by reference
to
Exhibit 4.1 of our Current Report on Form 8-K, filed
September 5, 2007)
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4.5
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Form
of 2007 September Offering Investor Warrant (incorporated by reference
to
Exhibit 4.2 of our Current Report on Form 8-K, filed
September 5, 2007)
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4.6
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Registration
Rights Agreement, dated as of September 4, 2007, by and between
AeroGrow
International, Inc. and the other parties thereto (incorporated
by
reference to Exhibit 10.1 of our Current Report on Form 8-K, filed
September 5, 2007)
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5.1*
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Opinion
of Kranitz & Philipp, as to the legality of the securities being
registered
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23.1*
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Consent
of Kranitz & Philipp (included in Exhibit
5.1)
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23.2**
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Consent
of Gordon, Hughes & Banks, LLP
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24.1*
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Power
of Attorney (included on signature
page)
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__________________________
*
Previously filed
**
Filed herewith
Rider
A
a. The
undersigned registrant hereby undertakes:
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not
apply if
the information required to be included in a post-effective amendment
by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b)
that is part of the registration statement.
2. That,
for the purpose of determining any liability under the Securities Act
of 1933,
each such post-effective amendment shall be deemed to be 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.
4. That,
for the purpose of determining liability under the Securities Act of
1933 to any
purchaser, each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance
on
Rule 430A, shall be deemed to be part of and included in the registration
statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration
statement
or made in a document incorporated or deemed incorporated by reference
into the
registration statement or prospectus that is part of the registration
statement
will, as to a purchaser with a time of contract of sale prior to such
first use,
supersede or modify any statement that was made in the registration statement
or
prospectus that was part of the registration statement or made in any
such
document immediately prior to such date of first use.
5. That,
for the purpose of determining liability of the registrant under the
Securities
Act of 1933 to any purchaser in the initial distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities
of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser,
if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller
to the
purchaser and will be considered to offer or sell such securities to
such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf
of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering
containing
material information about the undersigned registrant or its securities
provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
b. The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 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 the registration statement
shall be
deemed to be 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.
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 No. 1 to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boulder, State of Colorado, on September 28,
2007.
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AEROGROW
INTERNATIONAL, INC.
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By:
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/s/
W. Michael Bissonnette
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W.
Michael Bissonnette
Chief
Executive Officer and President
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In
accordance with the requirements of the Securities Act of 1933, this Amendment
No. 1 to the registration statement has been signed by the following persons
in
the capacities and on the dates stated.
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Signature
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Title
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Date
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/s/
W. Michael Bissonnette
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President
and Chairman of
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September 28,
2007
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W.
Michael Bissonnette
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the
Board (Principal Executive Officer)
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/s/
Mitchell Rubin
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Treasurer
(Principal Financial
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September 28,
2007
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Mitchell
Rubin
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Officer
and Accounting Officer)
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*
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Director
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September 28,
2007
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Richard
A. Kranitz
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Director
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September 28,
2007
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Dennis
Channer
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Director
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September 28,
2007
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Jack
J. Walker
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Director
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September 28,
2007
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Kenneth
Leung
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*/s/
W. Michael Bissonnette
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W.
Michael Bissonnette
Attorney-in-Fact
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