SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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):
December 24, 1997
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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 97008
Beaverton, Oregon (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code:
(503) 641-6115
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Item 5. Other Events
On December 24 and December 29, 1997, Epitope, Inc. ("the
Company"), issued press releases announcing that the record date for the
spin-off of Agritope, Inc., would be December 26, 1997 (the "Record Date"), and
providing other information regarding the spin-off. Copies of the press releases
are attached to this form as exhibits.
Pursuant to resolutions adopted by the Board of Directors of the
Company, the Company also issued a dividend distribution of one Right for each
outstanding share of common stock, no par value (the "Common Stock"), of the
Company to the shareholders of record at the close of business on the Record
Date. Each Right entitles the registered holder to purchase from the Company
1/1,000 of a share of Series A Junior Participating Cumulative Preferred Stock,
no par value (the "Preferred Shares"), at a price of $60 per share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement dated December 15, 1997 (the "Rights
Agreement"), between the Company and ChaseMellon Shareholder Services, L.L.C.,
as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate certificates
evidencing Rights ("Right Certificates") will be distributed. Until the earlier
of the close of business on (i) the tenth day after a public announcement that a
person or group of affiliated or associated persons (other than the Company or
its employee benefit plans) (an "Acquiring Person"), acquired, or obtained the
right to acquire, beneficial ownership of 15 percent or more of the outstanding
shares of Common Stock and (ii) the tenth business day (or such later date as
may be determined by the Board of Directors) after the commencement of (or the
announcement of an intention to make) a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by a person or
group of 15 percent or more of the outstanding shares of Common Stock, the
Rights will be evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock certificates. The
earlier of the dates described in clauses (i) and (ii) above is referred to as
the "Distribution Date."
Until the Distribution Date, the Rights will be transferred with
and only with the Common Stock. As long as the Rights are attached to the Common
Stock, the Company will issue one Right with each share of Common Stock that
becomes outstanding so that all outstanding shares will have attached Rights.
Until the Distribution Date (or the earlier redemption or expiration of the
Rights), (i) Common Stock certificates issued after the Record Date upon
transfer or new issuance of Common Stock will contain a legend incorporating the
Rights Agreement by reference and (ii) the surrender for transfer of any
certificates evidencing Common Stock will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate. As soon
as practicable following the Distribution Date, Right Certificates will be
mailed to holders of record of
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the Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire (i) at the close of business on December 26, 2007, (ii) upon
exchange by the Company for Common Stock as described below, or (iii) upon
redemption by the Company as described below, whichever is earliest.
In the event that any person becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right (except as provided
below) will thereafter have the right to receive upon exercise that number of
shares of Common Stock of the Company having a market value of two times the
exercise price of the Right. No such adjustment to the Rights will be made,
however, if a person becomes an Acquiring Person pursuant to a tender or
exchange offer for all outstanding Common Stock at a price and on terms that are
fair to and otherwise in the best interests of the Company and its shareholders,
as determined by a majority of the Board of Directors in the manner described in
the Rights Agreement (a "Qualifying Offer").
In the event that, after any person becomes an Acquiring Person,
the Company is acquired in a merger or other business combination transaction
(other than a transaction made pursuant to a Qualifying Offer and meeting
certain other requirements described in the Rights Agreement), or more than 50
percent of its assets or earning power is sold, proper provision shall be made
so that each holder of a Right (except as provided below) will thereafter have
the right to receive, upon the exercise at the then current exercise price of
the Right, that number of shares of common stock of the acquiring or surviving
company having a market value of two times the exercise price of the Right.
Following the occurrence of any of the events described in the
preceding two paragraphs (other than those events relating to Qualifying
Offers), any Rights that are or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person shall
immediately become null and void.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution.
The Company is not required to issue fractional Preferred Shares
other than fractions in multiples of 1/1,000 of a share. In lieu of fractional
Preferred Shares, an adjustment in cash may be made based on the market price of
the Preferred Shares on the last trading date prior to the date of exercise.
At any time prior to the tenth day following the first public
announcement of the existence of an Acquiring Person, the Company may redeem the
Rights in whole, but
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not in part, at a price of $.01 per Right (the "Redemption Price"). Immediately
upon the action of the Board of Directors ordering the redemption of the Rights
(or at such time and date thereafter as the Board of Directors may specify), the
right to exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
At any time after a person becomes an Acquiring Person and prior
to the acquisition by such Acquiring Person of 50 percent or more of the
outstanding shares of Common Stock, the Company may exchange the Rights (other
than Rights beneficially owned by such Acquiring Person which became null and
void), in whole or in part, for Common Stock at the rate of one share per Right,
subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without limitation,
the right to vote or to receive dividends.
Prior to the time a person becomes an Acquiring Person, the
provisions of the Rights Agreement may be amended in any manner. Thereafter,
with certain exceptions, the provisions of the Rights Agreement may be amended
in order to cure any ambiguity, defect or inconsistency, to make changes which
do not adversely affect the interests of holders of Rights (excluding the
interest of any Acquiring Person), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no amendment to adjust the
time period governing redemption shall be made at such time as the Rights are
not redeemable.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group of persons that attempts to
acquire the Company, other than in a transaction approved by the Board of
Directors of the Company at a time when the Rights are redeemable. The Rights
should not interfere with any acquisition, merger or other business combination
approved by the Board of Directors at a time when the Rights are redeemable.
The Rights Agreement and the Restated Articles of Incorporation,
as amended, setting forth the terms of the Preferred Shares are filed as
exhibits to this report and are incorporated herein by reference. The foregoing
description of the Rights does not purport to be complete and is qualified in
its entirety by reference to the Rights Agreement and the Restated Articles of
Incorporation, as amended.
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<PAGE>
Item 7. Financial Statements, Proforma Financial Information, and
Exhibits
(c) Exhibits.
The exhibits filed herewith are listed in the exhibit index
following the signature page of this report.
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<PAGE>
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: December 29, 1997 By: /s/ Charles E. Bergeron
Charles E. Bergeron
Vice President of Operations
<PAGE>
EXHIBIT INDEX
3 Restated Articles of Incorporation, as amended, of Epitope, Inc.
Incorporated by reference to Exhibit 3 to Epitope, Inc.'s
Registration Statement on Form 8-A filed December 26, 1997 (File
No. 000-15337) (the "Form 8-A").
4 Rights Agreement dated as of December 15, 1997, between Epitope,
Inc., and ChaseMellon Shareholder Services, L.L.C. Incorporated
by reference to Exhibit 4.1 to the Form 8-A.
99.1 Description of Capital Stock of Epitope, Inc.
99.2 Press release issued December 24, 1997.
99.3 Press release issued December 29, 1997.
DESCRIPTION OF CAPITAL STOCK OF EPITOPE, INC.
The articles of incorporation (the "Articles") of Epitope, Inc.
("Epitope") authorize the issuance of up to 30 million shares of common stock,
no par value ("Epitope Common"), and 1 million shares of preferred stock, no par
value ("Epitope Preferred"), issuable in series. The following description of
Epitope's capital stock is qualified in all respects by reference to the
Articles.
EPITOPE COMMON
The holders of Epitope Common are entitled to one vote per share on all
matters on which shareholders are entitled to vote. Holders of Epitope Common
are entitled to receive dividends when and as declared by the Board of Directors
of Epitope (the "Epitope Board") out of any funds lawfully available therefor
and, in the event of liquidation or distribution of assets, are entitled to
participate ratably in the distribution of such assets remaining after payment
of liabilities, in each case subject to any preferential rights granted to any
series of Epitope Preferred that may then be outstanding. Holders of Epitope
Common do not have cumulative voting rights with respect to any matter.
EPITOPE PREFERRED
The Articles authorize the Epitope Board, without further shareholder
authorization, to issue Epitope Preferred in one or more series and to fix the
preferences, limitations, and relative rights of the Preferred Stock or of any
series thereof, including dividend rights and preferences, conversion rights,
voting rights, redemption rights, and rights on liquidation, including
preferences over Epitope Common, all of which could adversely affect the rights
of holders of Epitope Common. The issuance of a series of Epitope Preferred
under certain circumstances could have the effect of delaying or preventing a
change of control of Epitope, could adversely affect the rights of the holders
of Epitope Common, may discourage offers for Epitope Common at a premium over
market price and may adversely affect the market price of, and the voting and
other rights of the holders of, Epitope Common.
The Epitope Board has designated a series of 30,000 shares of Epitope
Preferred as Series A Junior Participating Cumulative Preferred Stock, no par
value ("Series A Preferred Stock"). Each 1/1000 of a share of Series A Preferred
Stock has dividend, liquidation and voting rights substantially equivalent to
that of one share of Epitope Common, except that Series A Preferred Stock is
entitled, after issuance, to a minimum quarterly dividend of $1 per share and to
a minimum liquidation preference of $1 per share.
The Epitope Board has adopted a Shareholder Rights Plan, as described
below, which enables holders of Epitope Common, under certain circumstances, to
purchase fractional shares of Series A Preferred Stock. See "Shareholder Rights
Plan," below. No Epitope
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Preferred is currently outstanding, and Epitope has no present plans to issue
any shares of Epitope Preferred.
PREEMPTIVE RIGHTS
The Articles provide that no shareholder shall have any preemptive
right to acquire additional shares of Epitope, whether of shares originally
authorized or other shares which may subsequently be authorized.
SHAREHOLDER RIGHTS PLAN
In December 1997, Epitope entered into a shareholder rights agreement
(the "Rights Agreement"). Under the Rights Agreement, each share of Epitope
Common shall initially have attached to it one preferred stock purchase right (a
"Right").
Each Right represents the right to purchase, if and when the Rights are
exercisable, 1/1,000 of a share of Series A Junior Participating Cumulative
Preferred Stock at an exercise price of $60. The exercise price and the number
of shares issuable upon exercise of the Rights are subject to adjustment in
certain cases to prevent dilution. The Rights are evidenced by the Epitope
Common certificates and are not exercisable, or transferable apart from the
Epitope Common, until the earlier of the close of business on (i) the tenth day
after a public announcement that a person or group of affiliated or associated
persons (other than Epitope or its employee benefit plans) (an "Acquiring
Person"), acquired, or obtained the right to acquire, beneficial ownership of 15
percent or more of the outstanding shares of Epitope Common and (ii) the tenth
business day (or such later date as may be determined by the Epitope Board)
after the commencement of (or the announcement of an intention to make) a tender
offer or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15 percent or more of the outstanding shares
of Epitope Common (the earlier of the dates described in clauses (i) and (ii)
above is referred to as the "Distribution Date"). In the event any person
becomes an Acquiring Person, each of the Rights (other than Rights held by the
Acquiring Person and certain of its transferees, all of which will be voided)
entitles the holder to acquire Epitope Common having a value equal to twice the
Right's exercise price.
In the event Epitope is acquired in a merger or other business
combination transaction (including one in which Epitope is the surviving
corporation), each Right will entitle its holder to purchase, at the then
current exercise price of the Right, that number of shares of common stock of
the surviving company which at the time of such transaction would have a market
value of two times the exercise price of the Right. The Rights do not have any
voting rights and are redeemable, at the option of Epitope, at a price of $0.01
per Right at any time prior to the tenth day following the first public
announcement of the existence of an Acquiring Person.
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The Rights expire on December 26, 2007. So long as the Rights are not
separately transferable, Epitope will issue one Right with each new share of
Epitope Common issued.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire Epitope on
terms not approved by the
Epitope Board. The Rights should not interfere with any merger or other business
combination approved by the Epitope Board because the Rights may be redeemed by
Epitope until the tenth business day following the first public announcement
that a person or group has become an Acquiring Person.
OTHER ANTI-TAKEOVER MEASURES
Epitope's bylaws (the "Bylaws") and Articles contain certain provisions
that may have the effect of delaying, deferring or preventing a change in
control of Epitope. Such provisions, explained in more detail below, include
requirements for: (i) a classified board of directors; (ii) removal of directors
only by supermajority shareholder vote; and (iii) advance notice with respect to
nominations of directors other than by or at the direction of the Epitope Board.
Classified Board of Directors. The Articles provide that the Epitope
Board will be divided into three classes (Class I, Class II and Class III) with
each class containing as nearly as possible one-third of the total number of
directors and the members of each class serving for staggered three-year terms.
At each annual meeting of Epitope shareholders, the number of directors equal to
the number of the class whose term expires at the time of such meeting will be
elected to hold office until the third succeeding annual meeting of Epitope
shareholders.
Removal of Directors. Directors of Epitope may be removed only by the
vote of at least 90 percent of the votes then entitled to be cast for the
election of directors.
Nominations of Directors by Shareholders. The Bylaws require that, in
addition to other applicable requirements, a shareholder generally may nominate
a person for election to the Epitope Board at a meeting only if written notice
of such shareholder's intent to make such nomination has been given to Epitope
not later than (a) with respect to an election to be held at an annual meeting
of shareholders, 60 days in advance of the date of the previous year's annual
meeting of shareholders, and (b) with respect to an election to be held at a
special meeting of shareholders for the election of directors, the close of
business on the seventh day following the date on which notice of such meeting
is first given to shareholders. Moreover, in order to be valid, any such notice
must be in proper written form as more specifically described in the Bylaws.
Amendment of Articles. The Articles require the affirmative vote of at
least 90 percent of the votes then entitled to be cast for election of directors
to amend certain provisions of the Articles including certain of the
anti-takeover measures described above.
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OREGON ANTI-TAKEOVER STATUTES
Epitope is subject to certain provisions of the Oregon Business
Corporation Act that govern business combinations between corporations and
interested shareholders (the "Business Combination Act"). The Business
Combination Act generally provides that, if a person or entity acquires 15
percent or more of the voting stock of an Oregon corporation (an "Interested
Shareholder"), the corporation and the Interested Shareholder, or any affiliated
entity of the Interested Shareholder, may not engage in certain business
combination transactions for three years following the date the person became an
Interested Shareholder. Business combination transactions for this purpose
include: (a) a merger or plan of share exchange; (b) any sale, lease, mortgage
or other disposition of 10 percent or more of the assets of the corporation; and
(c) certain transactions that result in the issuance of capital stock to the
Interested Shareholder. These restrictions do not apply if: (i) the Interested
Shareholder, as a result of the transaction in which such person became an
Interested Shareholder, owns at least 85 percent of the outstanding voting stock
of the corporation (disregarding shares owned by directors who are also officers
and shares owned by certain employee benefit plans); (ii) the board of directors
approves the share acquisition or business combination before the Interested
Shareholder acquires 15 percent or more of the corporation's outstanding voting
stock; or (iii) the board of directors and the holders of at least two-thirds of
the outstanding voting stock of the corporation (disregarding shares owned by
the Interested Shareholder) approve the transaction after the Interested
Shareholder acquires 15 percent or more of the corporation's voting stock.
Epitope is also subject to the Oregon Control Share Act (the "Control
Share Act"). The Control Share Act generally provides that a person (the
"Acquiror") who acquires voting stock of an Oregon corporation in a transaction
which results in the Acquiror holding more than 20 percent, 33-1/3 percent or 50
percent of the total voting power of the corporation (a "Control Share
Acquisition") cannot vote the shares it acquires in the Control Share
Acquisition ("Control Shares") unless voting rights are accorded to the Control
Shares by: (a) a majority of each voting group entitled to vote; and (b) the
holders of a majority of the outstanding voting shares, excluding the Control
Shares held by the Acquiror and shares held by the corporation's officers and
inside directors. The term "Acquiror" is broadly defined to include persons
acting as a group.
The Acquiror may, but is not required to, submit to the corporation an
"Acquiring Person Statement" setting forth certain information about the
Acquiror and its plans with respect to the corporation. The Acquiror may also
request that the corporation call a special meeting of shareholders to determine
whether the voting rights will be restored to the Control Shares. If the
Acquiror does not request a special meeting of shareholders, the issue of voting
rights of Control Shares will be considered at the next annual or special
meeting of shareholders that is held more than 60 days after the date of the
Control Share Acquisition. If the Acquiror's Control Shares are accorded voting
rights and represent a majority or more of all voting power, shareholders who do
not vote in favor of the restoration of such voting rights will have the right
to receive the appraised "fair value" of their shares, which may not be less
than the highest price paid per share by the Acquiror for the Control Shares.
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Record Date Set for Agritope Spin-Off
BEAVERTON, Ore., Dec. 24 /PRNewswire/ -- Epitope, Inc. (Nasdaq: EPTO)
today announced that it has set December 26, 1997, as the record date on which
its shareholders will be eligible to receive a distribution of common stock of
Agritope, Inc. For every five shares of common stock of Epitope, Inc. held, as
of the close of business on December 26, 1997, shareholders will receive one
share of common stock of Agritope. Epitope shareholders will not have to pay for
any shares of Agritope stock received in the distribution or take any other
action to receive shares. In connection with the spin-off, Agritope will issue
1.56 million shares of capital stock to certain foreign investors for $10.9
million ($7 per share).
"We believe that the spin-off of Agritope is the best way for Epitope's
shareholders to realize the value in both the agricultural and medical product
businesses by creating two separate and independent public companies. The
spin-off will allow management of each company to focus on the unique challenges
of each industry, without distractions from the other business," said John W.
Morgan, president and chief executive officer of Epitope. "We are pleased that
outside investors and a strategic partner, who recognize the value of Agritope,
have agreed to provide the capital needed to support Agritope's operation as a
separate business."
Agritope has filed a registration statement with the Securities and
Exchange Commission with respect to the shares to be distributed in the
spin-off. An information statement/prospectus will be furnished to each
shareholder of record as of the close of business on December 26, 1997.
Epitope expects to deliver the information statement/prospectus and the
Agritope shares on or about January 8, 1998.
Epitope currently has 13,454,330 shares outstanding. Accordingly,
Epitope expects to distribute 2,690,866 Agritope shares to its shareholders.
Upon completion of the distribution, Agritope will cease to be a subsidiary of
Epitope and will operate as an independent public company. Agritope shares will
trade on the SmallCap tier of the Nasdaq Stock Market under the symbol AGTO.
On December 31, 1997, Agritope will issue 1,343,704 shares of Agritope
common stock at a price of $7 per share to certain foreign investors for an
aggregate sales price of $9.4 million. In early January 1998, Agritope will also
issue, for an aggregate sales price of $1.5 million ($7 per share) 214,285
shares of its preferred stock to Vilmorin & Cie., a majority owned subsidiary of
Groupe Limagrain Holdings, Chappes, France. Vilmorin also holds an option to
purchase up to additional 785,715 shares of Agritope preferred stock, also at a
price of $7 per share. The option expires January 15, 1998. The preferred stock
is convertible into common stock on a share-for-share basis. Other than the
right to elect a director and preemptive rights, the preferred stock has rights
substantially equivalent to those applicable to common stock.
(more)
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Under terms of a related research and development agreement, Vilmorin
will provide proprietary seed varieties for use by Agritope in projects to be
funded by Vilmorin, in which both Agritope and Vilmorin technology may be
applied. Vilmorin will also have a right of first refusal to fund research
projects involving the genetic modification of specified vegetables and flowers.
Founded in 1743, Vilmorin specializes in the worldwide breeding,
production and distribution of vegetable and flower seeds to the home garden and
professional markets. It is the largest company in the world serving the home
garden market and the second largest in the world serving the professional
vegetable seed market. Vilmorin's U.S. subsidiary, Harris Moran Seed Company of
Modesto, California and Agritope have been working together for several years to
develop cantaloupe with a longer shelf life.
Epitope is an Oregon company that develops and markets medical
diagnostic products. Agritope is an Oregon-based agricultural biotechnology
company specializing in the development of new fruit and vegetable varieties.
Agritope is also the majority owner of Vinifera, Inc., which offers grapevine
plant propagation and disease screening and elimination programs.
A registration statement relating to the securities to be issued to
Epitope shareholders has been declared effective by the Securities and Exchange
Commission. These securities may not be sold nor may offers to buy be accepted
prior to the time the registration statement becomes effective. This press
release shall not constitute an offer to sell or the solicitation of an offer to
buy nor shall there be any sale of these securities in any state in which such
offer, solicitation, or sale would be unlawful prior to registration or
qualification under the securities laws of any such state. Shares of Agritope
stock to be sold to Vilmorin and other foreign investors have not been
registered under the Securities Act of 1933, as amended, and may not be offered
or sold in the United States absent registration or an applicable exemption from
registration requirements.
SOURCE Epitope, Inc.
-0- 12/24/97
/CONTACT: Mary Hagen of Epitope, 503-614-6115; or Matt Kramer of
Agritope, 503-670-7702/
/Company News On-Call: http://www.prnewswire.com or fax, 800-758-5804,
ext. 285632/
(EPTO AGTO)
FOR IMMEDIATE RELEASE Contact: Mary Hagen
503.641.6115
Matt Kramer
503.670.7702
EX-DIVIDEND DATE CLARIFIED FOR AGRITOPE SPIN-OFF
BEAVERTON, Ore., December 29, 1997 -- Epitope, Inc. (Nasdaq: EPTO)
today announced that it has been informed by the Nasdaq Stock Market that
Epitope common stock will commence trading ex-dividend on January 8, 1998. The
ex-dividend date was previously reported incorrectly as December 23, 1997 by
certain industry sources.
On January 7, 1998, the company will distribute a previously announced dividend
of one share of common stock of Agritope, Inc. for every five shares of Epitope
common stock held of record at the close of business on December 26, 1997.
From the record date through the close of business on January 7, 1998, Epitope
common stock will trade with a due bill, entitling purchasers to receive the
dividend of Agritope common stock.
Epitope is an Oregon company that develops and markets medical diagnostic
products. Agritope is an Oregon-based agricultural biotechnology company
specializing in the development of new fruit and vegetable varieties.
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