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
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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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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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
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.