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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
November 14, 1996
_________________
EPITOPE, INC.
(Exact name of Registrant as specified in charter)
Oregon
(State or other jurisdiction of incorporation)
1-10492
(Commission File No.)
93-0779127
(IRS Employer Identification No.)
8505 S.W. Creekside Place
Beaverton, Oregon 97008
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(503) 641-6115
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Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits. The exhibits filed herewith are listed in the
exhibit index following the signature page of this report.
Item 9. Sales of Equity Securities Pursuant to Regulation S.
On November 14, 1996, Epitope, Inc. (the "Company") accepted
exchange notices from foreign holders of Agritope 4% Convertible Notes due
1997 (the "Notes") in the principal amount of $3,380,000. The Notes will be
exchanged for 250,367 shares of the Company's common stock, no par value
("Common Stock"), at an exchange price of $13.50 per share. The shares will
be issued in accordance with Regulation S promulgated under the Securities Act
of 1933, as amended ("Regulation S"). The closing sales price of the Common
Stock on the American Stock Exchange on November 14, 1996, was $13.75 per
share.
The Notes were issued by Agritope, Inc., a wholly owned subsidiary
of the Company, in June 1992, to certain foreign institutional and other
qualifying foreign investors. By their terms, the Notes were exchangeable for
Common Stock at the option of the holders at an exchange price of $19.53 per
share. At November 1, 1996, $3,620,000 in principal amount of Notes were
outstanding. The Notes are payable in full on June 30, 1997.
The Company was recently contacted by certain of the Note holders
which offered to exchange the Notes at a reduced exchange price based on
current market prices of the Common Stock. The Company allowed all Note
holders wishing to do so to elect to exchange Notes for Common Stock at a
price of $13.50 per share, by November 14, 1996. Holders which did not elect
to exchange Notes by that date continue to have the right to exchange them at
an exchange price of $19.53 per share, or to receive payments of interest and
principal in accordance with the terms of the Notes.
American Equities Overseas, Inc., acting through American Equities
Overseas (UK) Ltd. ("American Equities"), acted as exchange agent in
connection with the transaction. The Company has agreed to pay American
Equities a fee of two percent of the principal amount of Notes exchanged.
The Common Stock to be issued to the exchanging Note holders will
be issued, and communications with the Note holders have been conducted, in
accordance with Rule 903 of Regulation S. The exchanges involve only offshore
transactions without any directed selling efforts being made in the United
States. The Company is a reporting issuer and implemented the offering
restrictions required by Regulation S, including without limitation a written
agreement with American Equities regarding the transaction. None of the Note
holders are U.S. persons, as defined in Regulation S. Because Common Stock
will be issued directly to Note holders, no distributor as described in Rule
903(2)(iv) was involved in the transaction.
The Common Stock to be issued upon exchange of Notes has been
registered for resale in the United States.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
EPITOPE, INC.
Dated: November 27, 1996 By:
Gilbert N. Miller
Executive Vice President and Chief
Financial Officer
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EXHIBIT INDEX
1. Agreement between Epitope, Inc., and American Equities Overseas, Inc.,
acting through American Equities (UK) Ltd., dated November 18, 1996.
4. Form of Exchange Notice to be attached to Notes being exchanged.
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EXHIBIT 1
[AMERICAN EQUITIES LETTERHEAD]
November 18, 1996
Epitope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
Attention: Adolph J. Ferro, Ph.D., President
Subject: Exchange of Agritope 4% Convertible Notes due
1997; Exchange Agent Agreement and Offering
Restrictions
Gentlemen:
This will confirm the terms on which American Equities Overseas
Inc. acting through American Equities Overseas (UK) Ltd. ("American Equities")
has agreed to serve as exchange agent in connection with the exchange of
Agritope 4% Convertible Notes due 1997 ("Agritope Notes") for common stock, no
par value ("Common Stock"), of Epitope, Inc. ("Epitope"), at a reduced
exchange price.
Exchange Agent Fee
In consideration for its services as exchange agent, American
Equities will receive a fee equal to two percent of the principal amount of
Agritope Notes exchanged at the reduced exchange price.
United States Legal Matters
American Equities understands that the Common Stock to be issued
upon exchange of Agritope Notes ("Exchange Shares") will be issued to holders
outside the United States in reliance on Regulation S promulgated under the
United States Securities Act of 1933, as amended ("1933 Act"). This will
confirm American Equities' agreement that all offers and sales of Exchange
Shares shall be made only: (i) in accordance with the provisions of Rule 903
or Rule 904 of Regulation S; (ii) pursuant to registration under the 1933 Act;
or (iii) pursuant to an available exemption from the registration requirements
of the 1933 Act.
American Equities understands that under Rule 903 of Regulation S:
Exchange Shares may be offered and sold only in offshore transactions, as
defined in Regulation S; no directed selling efforts, as defined in Regulation
S, may be made in the United States; Exchange Shares may not be offered or
sold to or for the account of a U.S. person, as defined in Regulation S; the
holder of each Agritope Note to be exchanged must certify that it is not a
U.S. person and is not acquiring the Exchange Shares for the account of a U.S.
person; each such holder must agree to resell the Exchange Shares only in
accordance with the provisions of Regulation S, pursuant to registration under
the 1933 Act, or pursuant to an available exemption from registration; and, if
Exchange Shares are sold to a distributor, dealer, or person receiving
remuneration for selling the Exchange Shares, a confirmation must be sent to
the purchaser stating that the purchaser is subject to the foregoing
restrictions and others stated in Regulation S.
This will confirm that no Exchange Shares will be issued to a
distributor, dealer, or person receiving remuneration for selling the Exchange
Shares.
American Equities understands that any offering materials, other
than press releases, provided to holders of Agritope Notes must include
statements to the effect that the Exchange Shares have not been registered
under the Securities Act and may not be offered or sold in the United States
or to U.S. persons unless the Exchange Shares are registered under the
Securities Act or an exemption from the registration requirements of the
Securities Act is available. American Equities represents and warrants that
such holders have received the two press releases of Epitope dated November 7,
1996, and the form of exchange notice approved by Epitope, and have not been
provided with any other offering materials.
United Kingdom Legal Matters
American Equities represents and agrees that:
1. It has not offered or sold and will not offer or sell in the
United Kingdom, by means of any document, any Exchange Shares other than to
persons whose ordinary business it is to buy or sell shares or debentures,
whether as principal or agent or in circumstances which do not constitute an
offer to the public within the meaning of the Companies Act 1985;
2. It has complied and will comply with all applicable provisions
of the Financial Services Act 1986 ("FSA") with respect to anything done by it
in relation to the Exchange Shares in, from, or otherwise involving the United
Kingdom;
3. It has only issued or passed on and will only issue or pass on
to any person in the United Kingdom any document received by it in connection
with the issue of the Exchange Shares if that person is of a kind described in
Article 9(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1988 ("Article 9(3)"); and
4. American Equities Overseas (UK) Ltd. is an authorized person
("Authorized Person") under the FSA and is not an overseas person ("Overseas
Person") under the FSA, but is a person of a kind described in Article 9(3).
American Equities Overseas Inc. is not an Authorized Person, but is an
Overseas Person.
French Legal Matters
American Equities hereby represents and agrees that it has not
offered or sold, and will not offer or sell, to any person in France, by means
of any document, oral presentation, or other medium, any Exchange Shares
otherwise than (i) in strict compliance with the following laws and
regulations of the French Republic, namely Article 72 of Law No. 66-537 of 24
July 1966, Law No. 72-6 of 3 January 1972, Regulation No. 88-04 and 92-02 of
the Commission des Operations de Bourse and Decree No. 89-938 of 29 December
1989, as subsequently amended or superseded (collectively, the "Regulations"),
and (ii) in circumstances which do not constitute an offer to the public
("appel public a l'epargne") or financial canvassing ("demarchage financier")
within the meaning of the Regulations.
American Equities shall indemnify Epitope against all losses,
liabilities, costs, or demands which it may incur or which may be made against
it in relation to any breach or alleged breach of the obligations of American
Equities hereunder.
Very truly yours,
AMERICAN EQUITIES OVERSEAS
INC., acting through AMERICAN
EQUITIES OVERSEAS (UK) LTD.
By Michel de Beaumont
Title Holder of Power of Attorney
American Equities Overseas Inc.
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EXHIBIT 4
FORM OF EXCHANGE NOTICE
Agritope, Inc.
8505 S.W. Creekside Place
Beaverton, Oregon 97008
Attention: President
Pursuant to Section 3 of the Note Purchase Agreement ("Purchase
Agreement") dated as of June 10, 1992, among Agritope, Inc., Epitope, Inc.,
and the Investors described therein, the undersigned hereby gives notice of
its election to exchange the principal amount of the Notes (as defined in the
Purchase Agreement) set forth below for shares of Epitope Common Stock equal
to the principal amount of Notes divided by the lower of (1) $14 or (2) the
average of the daily high and low sales prices of Epitope, Inc. common stock
as reported by the American Stock Exchange for the five-day trading period
ending November 14, 1996, provided that in no event shall such average price
be less than $13.50. The undersigned acknowledges that the Epitope Common
Stock, the payment in lieu of any fractional share, and the payment for any
accrued but unpaid interest on the Notes will be sent to the undersigned at
its record address for notices under the Purchase Agreement.
In connection with such exchange, the undersigned hereby:
(1) Certifies that it is not a U.S. person (as defined in
Attachment 1 hereto) and is not acquiring the Epitope Common Stock for
the account or benefit of any U.S. person;
(2) Agrees to resell the Epitope Common Stock to be acquired
pursuant to the exchange only in accordance with the provisions of
Regulation S under the United States Securities Act of 1933 ("1933 Act"),
pursuant to registration under the 1933 Act, or pursuant to an available
exemption from registration; and
(3) Agrees not to offer, sell, transfer, pledge, or otherwise
dispose of such Epitope Common Stock in the United States or to U.S.
persons (as defined in Attachment 1 hereto) unless the transaction is
registered under the 1933 Act and applicable state securities laws.
Dated , 199 .
------------------ --
U.S. $
- ------------------------------- -------------------------------
Signature of Investor Principal amount of
Note certificates
surrendered
Note Nos.
---------------------
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- -------------------------------
Name of Investor (Print)
U.S.$
- -------------------------------- -------------------------
- --------------------------------
Principal amount to be
- -------------------------------- exchanged
Investor Address
U.S.$
-------------------------
Principal amount not being
exchanged, for which a new
Note certificate is to be
issued.
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ATTACHMENT 1
to
Form of Exchange Notice
Set forth below is the text of Rule 902(o) promulgated under the
1933 Act, which defines "U.S. person" as used in this Form of Exchange Notice.
(o) U.S. Person.
(1) "U.S. person" means:
(i) Any natural person resident in the United States;
(ii) Any partnership or corporation organized or incorporated
under the laws of the United States;
(iii) Any estate of which any executor or administrator is a
U.S. person;
(iv) Any trust of which any trustee is a U.S. person;
(v) Any agency or branch of a foreign entity located in the
United States;
(vi) Any nondiscretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary for the
benefit or account of a U.S. person;
(vii) Any discretionary account or similar account (other
than an estate or trust) held by a dealer or other fiduciary
organized, incorporated, or (if an individual) resident in the
United States; and
(viii) Any partnership or corporation if: (A) organized or
incorporated under the laws of any foreign jurisdiction; and
(B) formed by a U.S. person principally for the purpose of investing
in securities not registered under the 1933 Act, unless it is
organized or incorporated, and owned, by accredited investors (as
defined in Rule 501(a)) who are not natural persons, estates or
trusts.
(2) Notwithstanding paragraph (o)(1) of this rule, any
discretionary account or similar account (other than an estate or trust) held
for the benefit or account of a non-U.S. person by a dealer or other
professional fiduciary organized, incorporated, or (if an individual) resident
in the United States shall not be deemed a "U.S. person."
(3) Notwithstanding paragraph (o)(1), any estate of which any
professional fiduciary acting as executor or administrator is a U.S. person
shall not be deemed a U.S. person if:
(i) An executor or administrator of the estate who is not a
U.S. person has sole or shared investment discretion with respect to
the assets of the estate; and
(ii) The estate is governed by foreign law.
(4) Notwithstanding paragraph (o)(1), any trust of which any
professional fiduciary acting as trustee is a U.S. person shall not be deemed
a U.S. person if a trustee who is not a U.S. person has sole or shared
investment discretion with respect to the trust assets, and no beneficiary of
the trust (and no settlor if the trust is revocable) is a U.S. person.
(5) Notwithstanding paragraph (o)(1), an employee benefit plan
established and administered in accordance with the law of a country other
than the United States and customary practices and documentation of such
country shall not be deemed a U.S. person.
(6) Notwithstanding paragraph (o)(1), any agency or branch of a
U.S. person located outside the United States shall not be deemed a
"U.S. person" if:
(i) The agency or branch operates for valid business reasons;
and
(ii) The agency or branch is engaged in the business of
insurance or banking and is subject to substantive insurance or
banking regulation, respectively, in the jurisdiction where located.
(7) The International Monetary Fund, the International Bank for
Reconstruction and Development, the Inter-American Development Bank, the Asian
Development Bank, the African Development Bank, the United Nations, and their
agencies, affiliates and pension plans, and any other similar international
organizations, their agencies, affiliates and pension plans shall not be
deemed "U.S. persons."
