<PAGE>
Registration No. 333-15705
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 5
to
FORM S-4
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EPITOPE, INC.
(Exact name of registrant as specified in its charter)
Oregon 3841 93-0779127
(State of incorporation) (Primary Standard Industrial (IRS employer
Classification Code Number identification
number)
8505 S.W. Creekside Place, Beaverton, Oregon 97008
(503) 641-6115
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
Adolph J. Ferro, Ph.D., PRESIDENT AND CHIEF EXECUTIVE OFFICER
Epitope, Inc.
8505 S.W. Creekside Place, Beaverton, Oregon 97008
(503) 641-6115
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Erich W. Merrill, Jr. Charles W. Mulaney, Jr.
Miller, Nash, Wiener, Hager & Carlsen LLP Rodd M. Schreiber
111 S.W. Fifth Avenue Skadden, Arps, Slate,
Portland, Oregon 97204-3699 Meagher & Flom (Illinois)
(503) 224-5858 333 W. Wacker Drive
Chicago, Illinois 60606
(312) 407-0700
Approximate date of commencement of proposed sale to the public: As soon as
possible after approval by shareholders.
If the securities being registered on this form are being offered in connection
with the formation of a holding company and there is compliance with General
Instruction G, check the following box. [ ]
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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS/PROXY STATEMENT
Item 21. Exhibits and Financial Statement Schedules.
(a) The exhibits to the Registration Statement required by Item 601 to
Regulation S-K are listed in the index to exhibits following the signature page
of this Registration Statement.
(b) All schedules are omitted because of the absence of the conditions
under which they are required or because the required information is included in
the financial statements or related notes.
(c) Not applicable.
Part II - 1
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this amendment to this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of Beaverton,
state of Oregon, on March 17, 1997.
EPITOPE, INC.
By /s/ GILBERT N. MILLER
Gilbert N. Miller,
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to this Registration Statement has been signed on March 17, 1997, by
the following persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
- ----------- -------
<S> <C>
*ADOLPH J. FERRO, PH.D. President, Chief Executive Officer
Adolph J. Ferro, Ph.D. and Director
(Principal Executive Officer)
/s/ GILBERT N. MILLER Executive Vice President,
Gilbert N. Miller Chief Financial Officer and Treasurer
(Principal Financial Officer)
*MARK V. ALLRED Controller
Mark V. Allred (Principal Accounting Officer)
*W. CHARLES ARMSTRONG Director
W. Charles Armstrong
*RICHARD K. DONAHUE Director
Richard K. Donahue
*ANDREW S. GOLDSTEIN Director
Andrew S. Goldstein
*MARGARET H. JORDAN Director
Margaret H. Jordan
*R. DOUGLAS NORBY Director
R. Douglas Norby
*MICHAEL J. PAXTON Director
Michael J. Paxton
Part II - 2
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*ROGER L. PRINGLE Director
Roger L. Pringle
*G. PATRICK SHEAFFER Director
G. Patrick Sheaffer
*By /s/ GILBERT N. MILLER
Gilbert N. Miller
(Attorney-in-Fact)
</TABLE>
Part II - 3
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
2 Acquisition and Merger Agreement among Epitope, Inc., Thamscoe,
Inc., Andrew and Williamson Sales, Co., and the shareholders of
Andrew and Williamson Sales, Co., dated as of November 6, 1996.
Incorporated by reference to Exhibit 2 to the Company's Current
Report on Form 8-K dated November 6, 1996.
3.1 Restated Articles of Incorporation, as amended, of the Registrant.
Incorporated by reference to Exhibit 3.1 to the Registrant's Current
Report on Form 8-K dated May 29, 1991.
3.2 Restated Bylaws of the Registrant. Incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 1996 (the "1996 10-K").
4.1 Restated Articles of Incorporation, as amended, of the Registrant.
Incorporated by reference to Exhibit 3.1 to the Registrant's Current
Report on Form 8-K dated May 29, 1991.
4.2 Article V of Restated Articles of Incorporation as proposed to be
amended. Included in Part I as Annex II to the Prospectus/Proxy
Statement included in this Registration Statement.
4.3 Note Purchase Agreement dated June 10, 1992, among Agritope, Inc.,
the Registrant, and certain investors. Copies of the agreements with
individual investors shall be filed with the Commission upon request
pursuant to Item 601, Instruction 2. Incorporated by reference to
Exhibit 4.2 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarterly period ended June 30, 1992.
5 Opinion of Miller, Nash, Wiener, Hager & Carlsen LLP regarding
legality of the Agritope Common Stock.*
8 Opinion of Miller, Nash, Wiener, Hager & Carlsen LLP regarding tax
matters.*
10.1 Incentive Stock Option Plan of Registrant, as amended. Incorporated
by reference to Exhibit 10.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended September 30, 1994 (the "1994
10-K").
10.2 Amended and Restated Epitope, Inc., 1991 Stock Award Plan ("1991
Plan"). Incorporated by reference to Exhibit 10.2 to the 1994 10-K.
10.3 Agritope, Inc., 1992 Stock Award Plan. Incorporated by reference to
Exhibit 10.3 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 1992 (the "1992 10-K").
10.4 Form of Nonqualified Stock Option Agreement issued to certain
officers and directors of Registrant pursuant to Agritope, Inc.,
1992 Stock Award Plan. Incorporated by reference to Exhibit 10.4 to
the 1992 10-K.
10.5 Lease dated July 17, 1990, among Registrant, Koll Woodside
Associates, a California general partnership, and Petula Associates,
Ltd., an Iowa corporation. Incorporated by reference to Exhibit 10.5
to the 1994 10-K.
Index - 1
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10.6 Fourth Amendment dated May 20, 1994, to Lease dated July 17, 1990,
among Registrant, Koll Woodside Associates, a California general
partnership, and Petula Associates, Ltd., an Iowa corporation.
Incorporated by reference to Exhibit 10.1 to the Registrant's
Quarterly Report on Form 10-Q for the fiscal quarterly period ended
June 30, 1994 ("June 1994 10-Q").
10.7 Business Park Lease dated May 5, 1994, among Registrant, Koll
Woodside Associates, a California general partnership, and Petula
Associates, Ltd., an Iowa corporation. Incorporated by reference to
Exhibit 10.2 to the June 1994 10-Q.
10.8 Business Park Lease dated as of December 16, 1994, among Registrant,
Petula Associates, Ltd., an Iowa corporation, and Koll Portland
Associates, a California general partnership. Incorporated by
reference to Exhibit 10.1 to the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarterly period ended December 31, 1994.
10.9 Lease Agreement dated as of October 15, 1993, between Kathryne L.
Brown and Agrimax Floral Products, Inc. Incorporated by reference to
Exhibit 10.1 to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarterly period ended December 31, 1993 ("December 1993
10-Q").
10.10 Office/Warehouse Lease dated as of August 25, 1994, between Tonka
Bay Associates as agent for M Corp. of Illinois and Agrimax Floral
Products, Inc. Incorporated by reference to Exhibit 10.10 to the
1994 10-K.
10.11 Lease dated as of December 12, 1996, between Williamson and Andrew
and Andrew and Williamson Sales, Co. Incorporated by reference to
Exhibit 10.12 to the 1996 10-K.
10.12 Agreement dated December 9, 1987, between Registrant and Adolph
Ferro, Ph.D. Incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-1 (No. 33-18722) (the
"1988 S-1").
10.13 Amendment to Agreement of December 9, 1987, between Registrant and
Adolph J. Ferro, Ph.D. Incorporated by reference to Exhibit 10.14 to
the 1996 10-K.
10.14 Distribution Agreement dated as of April 1, 1994, between Registrant
and Organon Teknika Corporation. Incorporated by reference to
Exhibit 10.3 to the June 1994 10-Q.
10.15 Supply Agreement dated as of April 1, 1994, between Registrant and
Organon Teknika Corporation. Incorporated by reference to Exhibit
10.4 to the June 1994 10-Q.
10.16 Superior Tomato Associates, L.L.C. Operating Agreement dated as of
February 19, 1996, among Sunseeds Company, Andrew and Williamson
Sales, Co., and Agritope, Inc. Incorporated by reference to Exhibit
10.18 to the 1996 10-K.
10.17 Development and Marketing Agreement dated as of February 19, 1996,
among Superior Tomato Associates, L.L.C., Agritope, Inc., Sunseeds
Company, and Andrew and Williamson Sales, Co. Incorporated by
reference to Exhibit 10.19 to the 1996 10-K.
10.18 Form of Indemnification Agreement for directors and officers.*
10.19 Amended and Restated Employment Agreement dated January 8, 1991,
between Andrew S. Goldstein and Registrant. Incorporated by
reference to Exhibit 10.28 to the Registrant's Annual Report on Form
10-K for the year ended September 30, 1991 (the "1991 10-K").
10.20 Amended and Restated Employment Agreement dated January 9, 1991,
between Adolph J. Ferro, Ph.D., and Registrant. Incorporated by
reference to Exhibit 10.29 to the 1991 10-K.
Index - 2
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10.21 Employment Agreement dated January 28, 1990, between Gilbert N.
Miller and Registrant. Incorporated by reference to Exhibit 10.19 to
the 1994 10-K.
10.22 Employment Agreement dated July 1, 1990, between John H. Fitchen,
M.D. and Registrant. Incorporated by reference to Exhibit 10.20 to
the 1994 10-K.
10.23 Employment Agreement dated July 15, 1995, between Byron A. Allen,
Jr., and Registrant. Incorporated by reference to Exhibit 10.23 to
the Registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 1995.
10.24 Employment Agreement dated May 31, 1995, between Joseph A. Bouckaert
and Vinifera, Inc.*
10.25 Employment Agreement dated August 17, 1992, between Richard K.
Bestwick, Ph.D., and Agritope, Inc.*
10.26 Employment Agreement dated December 12, 1996, between Fred L.
Williamson and Andrew and Williamson Sales, Co. Incorporated by
reference to Exhibit 10.28 to the 1996 10-K.
10.27 Credit Agreement dated August 5, 1996, between Wells Fargo Bank,
National Association and Andrew and Williamson Sales, Co.
Incorporated by reference to Exhibit 10.29 to the 1996 10-K.
10.28 Development, License and Supply Agreement between Registrant and
SmithKline Beecham plc dated February 24, 1995, as amended. Portions
of this agreement have been granted confidential treatment.
Incorporated by reference to Exhibit 10.1 to Amendment No. 2 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarterly
period ended June 30, 1995.
21 The Registrant's subsidiaries are Agritope, Inc., an Oregon
corporation, Vinifera, Inc., an Oregon corporation, Andrew and
Williamson Sales, Co., a California corporation, and Agrimax Floral
Products, Inc., a Minnesota corporation. The Registrant also owns a
67 percent interest in Strategic Tomato Associates, L.L.C., a
Delaware limited liability company, and a 60 percent interest in
Epitope KK, a Japanese limited liability company.
23.1 Consent of Price Waterhouse LLP.*
23.2 Consent of Boros and Farrington.
23.3 Consents of Miller, Nash, Wiener, Hager & Carlsen LLP. Included in
Exhibits 5 and 8.
24 Powers of Attorney.*
99 Form of proxy.*
Other exhibits listed in Item 601 of Regulation S-K are not applicable.
*Previously filed.
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the use in the Prospectus constituting part of amendment
No. 4 to the Registration Statement on Form S-4 of Epitope, Inc., to our report
dated November 6, 1996, relating to the financial statements of Andrew and
Williamson Sales, Co., which are referenced in such Form S-4 and to the
references to us under the headings "Experts" and "Independent Accountants."
We also consent to the incorporation by reference in the Prospectus constituting
part of the Registration Statements on Form S-3 (Numbers 33-68510, 33-67618,
33-57246, 33-52920, 33-42841, 33-39166, and 33-32673), Form S-8 (Numbers
33-63106, 33-63220, 33-63218, 33-41712, 33-13416, 33-21545, 33-82788, and
33-60789), and Form S-4 (Number 333-15705) of Epitope, Inc. of our report dated
November 6, 1996.
Boros & Farrington
February 25, 1997
