SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
APHTON CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-3640931
(State of Incorporation or Organization) (I.R.S. Employer Identification no.)
80 S.W. 8th Street, Miami, Florida 33130-3047
(Address of Principal Executive Offices) (Zip Code)
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If this form relates to the registration If this form relates to the registration
of a class of securities pursuant to of a class of securities pursuant to
Section 12(b) of the Exchange Act and Section 12(g) of the Exchange Act and
is effective pursuant to General is effective pursuant to General
Instruction A.(c), please check the Instruction A.(d), please check the
following box. ( ) following box. (x)
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Securities Act registration statement file number to which this form relates:
33-72286, 333-00586, 333-31217
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
_____________________________ ______________________________
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.001 per share
(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
The authorized capital stock of Aphton Corporation, a Delaware
corporation (the "Company"), consists of 30,000,000 shares of Common Stock, par
value $.001 per share (the "Common Stock"), and 2,000,000 shares of Preferred
Stock, par value $.001 per share (the "Preferred Stock"). This Registration
Statement registers only the Common Stock.
Common Stock
The holders of the Company's Common Stock are entitled to one vote for
each share held of record on all matters submitted to a vote of stockholders.
Subject to preferences that may be applicable to any outstanding Preferred
Stock, holders of Common Stock are entitled to receive ratably such dividends as
may be declared by the Board of Directors out of funds legally available
therefor. In the event of a liquidation, dissolution or winding up of the
Company, holders of Common Stock are entitled to share ratably in all assets
remaining after payment of liabilities, subject to prior rights of shares of
Preferred Stock, if any, then outstanding. Holders of Common Stock have no
preemptive rights or conversion rights or other subscription rights. There are
no redemption or sinking fund provisions available to the Common Stock. All
outstanding shares of Common Stock are fully paid and non-assessable.
Certain Provisions of the Certificate of Incorporation and Bylaws
The Company's Certificate of Incorporation contains provisions
establishing a classified Board of Directors removable only for cause. Section
141 of the Delaware General Corporation Law permits a maximum of three classes
of directors, with members of one class to be elected each year for a maximum
term of three years. In addition, under Delaware law, a director on a classified
board of directors can be removed from office during his term by stockholders
only for cause. The provisions in the Certificate of Incorporation establishing
a classified Board of Directors, together with other provisions in the
Certificate and Bylaws of the Company relating to the inability of stockholders
to act by written consent or call special meetings of stockholders, will, unless
directors are removed for cause, have the result that at least two annual
meetings of stockholders will be required for a majority of stockholders to make
a change in control of the Board of Directors. Classification of the Board of
Directors is also expected to contribute to the continuity and stability of
leadership and policy. A significant effect of a classified Board of Directors
may be to deter hostile takeover attempts because an acquiror would experience
delay in replacing a majority of the directors.
Pursuant to the Company's Certificate of Incorporation, the Board of
Directors has the authority to issue up to 2,000,000 shares of Preferred Stock
in one or more series and to determine the powers, preferences and rights and
the qualifications, limitations or restrictions thereon, and to fix the number
of shares constituting any series and the designation of such series, without
any further vote or action by the Company's stockholders. The issuance of
Preferred Stock may have the effect of delaying, deferring or preventing a
change in control of the Company without further action by the stockholders and
may adversely affect the voting power and other rights of the holders of Common
Stock. At present, there are no shares of Preferred Stock outstanding.
Under Delaware law, a special meeting of stockholders may be called by
the Board of Directors or by any other person authorized to do so in the
certificate of incorporation or the bylaws. The Certificate of Incorporation and
the Bylaws of the Company provide that such a meeting may only be called by the
Board of Directors, the Chairman of the Board of Directors or the President and
do not enable stockholders to call a special meeting.
Under Delaware law, stockholders may execute an action by written
consent in lieu of a stockholder meeting. Delaware law permits a corporation to
eliminate such action by written consent in its charter. The Certificate of
Incorporation of the Company eliminates action by written consent of
stockholders.
Elimination of stockholder action by written consent may lengthen the
amount of time required to take stockholder actions because certain actions by
written consent are not subject to the minimum notice requirement of a
stockholders' meeting. The elimination of stockholder action by written consent
may deter hostile takeover attempts because of the lengthened stockholder
approval process. Without the ability to act by written consent, a holder or
group of holders controlling a majority in interest of the Company's capital
stock will not be able to amend the Company's Bylaws or remove directors
pursuant to written consent. Any such holder or group of holders would have to
wait until a stockholders' meeting was held to take any such action. The
Company's Certificate of Incorporation and Bylaws do not enable stockholders to
call a special meeting of stockholders as described above. Consequently, any
stockholder action could only be taken at the Company's annual meeting of
stockholders. Moreover, together with the classified board provisions, the
prohibitions on stockholder action by written consent and on the ability to call
special meetings of stockholders make it difficult to replace the Company's
Board of Directors in fewer than two annual meetings of stockholders. The
Company believes this provision, like the other provisions included in the
Certificate of Incorporation and Bylaws, enhance the Board of Directors' ability
to fully consider and effectively negotiate in the context of a hostile takeover
attempt.
The Company's Bylaws provide that for director nominations or
stockholder proposals to be properly brought before the meeting, the stockholder
must have delivered timely and proper notice to the Secretary of the
corporation. To be timely, notice must be delivered not less than 90 nor more
than 120 days prior to the stockholders' meeting; provided, that if less than
100 days' notice or other public disclosure of the date of the meeting is given
or made to stockholders, to be timely notice by the stockholders must be
received no later than the close of business on the tenth day following the
earlier of the day on which notice of the date of the meeting was mailed or
other public disclosure was made. Additionally, to be in proper form the notice
must set forth certain information including the following: a description of the
proposal or nominee; identification of the stockholder proponent and shares
owned; with respect to nomination for director, a description of arrangements
between the nominee and the stockholder proponent as well as certain information
about the nominee; and such information regarding the nominee or stockholder
proposal as would be required pursuant to Regulation 14A under the Securities
Exchange Act of 1934. These notice requirements help ensure that stockholders
are aware of all proposals to be voted on at the meeting and have the
opportunity to consider each proposal in advance of the meeting.
The Company's Certificate of Incorporation also contains supermajority
voting requirements for amendments to certain provisions of such Certificate and
the Company's Bylaws. The Certificate of Incorporation provides that the
affirmative vote of eighty percent (80%) of the outstanding shares entitled to
vote would be required for amendment of the following provisions of such
Certificate: (i) the classified board provisions described above; (ii) the right
of the directors to fill vacancies on the Board of Directors (subject to the
rights of holders of any series of Preferred Stock); (iii) the elimination of
the right of stockholders to call a special stockholders meeting; and (iv) the
provisions requiring such a supermajority vote.
Certain Provisions of Delaware Law
The Company is subject to Section 203 of the Delaware General
Corporation Law ("Section 203"). In general, Section 203 prohibits a publicly
held Delaware corporation from engaging in various "business combination"
transactions with any "interested stockholder" for a period of three years after
the date of the transaction in which the person became an "interested
stockholder," unless (i) prior to such date, the Board of Directors of the
corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder, (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owned at least 85% of the
voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding those shares owned by (a) persons who are directors and also
officers and (b) employee stock plans in which employee participants do not have
the right to determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer, or (iii) on or subsequent to
such date the business combination is approved by the board of directors and
authorized at an annual or special meeting of stockholders by the affirmative
vote of at least 66 2/3% of the outstanding voting stock which is not owned by
the interested stockholder. Section 203 defines business combination broadly to
include: mergers or sales, stock issuances, transactions that would result in
disproportionate benefit to the interested stockholder and similar arrangements.
In general, Section 203 defines an interested stockholder as any entity or
person who, together with affiliates and associates, beneficially owns 15% or
more of the outstanding voting stock of a corporation. The statute could
prohibit or delay mergers or other takeover or change in control attempts with
respect to the Company and, accordingly, may discourage attempts to acquire the
Company.
Item 2. Exhibits
2.1 Agreement and Plan of Merger of Aphton Corporation, a Delaware
corporation and Aphton Corporation, a California corporation,
dated as of January 29, 1998. Incorporated by reference to
Item 2.1 of the Company's Current Report on Form 8-K filed on
January 30, 1998.
3.1 Certificate of Incorporation of the Company. Incorporated by
reference to Item 3.1 of the Company's Current Report on Form
8-K filed on January 30, 1998.
3.2 Bylaws of the Company. Incorporated by reference to Item 3.2
of the Company's Current Report on Form 8-K filed on January
30, 1998.
4.1 Specimen Common Stock Certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
APHTON CORPORATION
Date: January 30, 1998 By: /s/ Frederick W. Jacobs
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Frederick W. Jacobs
Treasurer and Chief Accounting Officer
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EXHIBIT INDEX
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Exhibit No. Description Page No.
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2.1 Agreement and Plan of Merger of Aphton Corporation, a Delaware
corporation and Aphton Corporation, a California corporation,
dated as of January 29, 1998. Incorporated by reference to
Item 2.1 of the Company's Current Report on Form 8-K filed on
January 30, 1998.
3.1 Certificate of Incorporation of the Company. Incorporated by
reference to Item 3.1 of the Company's Current Report on Form
8-K filed on January 30, 1998.
3.2 Bylaws of the Company. Incorporated by reference to Item 3.2
of the Company's Current Report on Form 8-K filed on January
30, 1998.
4.1 Specimen Common Stock Certificate. 7
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EXHIBIT 4.1
SPECIMEN COMMON STOCK CERTIFICATE
[Front of Certificate]
COMMON STOCK COMMON STOCK
NUMBER SHARES
LU 2901 APHTON CORPORATION
INCORPORATED UNDER THE LAWS SEE REVERSE FOR
OF THE STATE OF DELAWARE CERTAIN DEFINITIONS
CUSIP 03759P 10 1
This Certifies that
is the record holder of
FULLY PAID AND NON-ASSESSABLE SHARES
OF COMMON STOCK, $.001 PAR VALUE, OF
APHTON CORPORATION
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this Certificate properly
endorsed. This Certificate is not valid until countersigned and registered by
the Transfer Agent and Registrar.
IN WITNESS WHEREOF the Corporation has caused this Certificate to be
signed in facsimile by its duly authorized officers and a facsimile of its
corporate seal.
Dated:
ASSISTANT SECRETARY CHAIRMAN OF THE BOARD OF DIRECTORS
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[Back of Certificate]
The Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional, or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Such requests shall be made to the Corporation's Secretary at the
principal office of the Corporation.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, OR
DESTROYED THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE
ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- _______ Custodian __________
(Cust) (Minor)
under Uniform Gift to Minors
Act_______________________
(State)
UNIF TRF MIN ACT -- _______ Custodian (until age ___)
(Cust)
_____ under Uniform Transfers
(Minor)
to Minors Act _____________
(State)
Additional abbreviations may also be used though not in the above
list.
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FOR VALUE RECEIVED, ___________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________________
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING ZIP CODE, OF ASSIGNEE)
______________________________________________________________________________
Shares of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint _________________________ Attorney to
transfer the said stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated _________________________
X_____________________________________________
X_____________________________________________
NOTICE: THE SIGNATURES TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By______________________________
THE SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE
17Ad-15.
