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.
---------------------
- -------------------------------
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.
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."