As filed with the Securities and Exchange Commission on January 30, 1998
Registration Nos. 33-77286, 333-00586 and 333-31217
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-3
REGISTRATION STATEMENTS
Under
The Securities Act of 1933
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APHTON CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware 95-3640931
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(State of Incorporation) (I.R.S. Employer Identification No.
80 S.W. 8th Street
Miami, Florida 33130-3047
(Address, including zip code, of Registrant's principal executive offices)
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The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
(302) 658-7581
(Name, address, and telephone number, including area code, of agent for service)
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Copies to:
Timothy B. Goodell, Esq.
White & Case
1155 Avenue of the Americas
New York, New York 10036
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to those certain Registration
Statements on Form S-3 (File Nos. 33-77286, 333-00586 and 333-31217) (the
"Registration Statements") is being filed pursuant to Rule 414 under the
Securities Act of 1933, as amended (the "1933 Act"), by Aphton Corporation, a
Delaware corporation ("Aphton Delaware" or the "Company"), which is the
successor to Aphton Corporation, a California corporation ("Aphton California"),
following a statutory merger effective on January 29, 1998 (the "Merger") for
the purpose of changing Aphton California's state of incorporation. Prior to the
Merger, Aphton Delaware had no assets or liabilities other than nominal assets
or liabilities. In connection with the Merger, Aphton Delaware succeeded by
operation of law to all of the assets and liabilities of Aphton California. The
Merger was approved by the shareholders of Aphton California at a meeting for
which proxies were solicited pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "1934 Act").
Except as modified by this Amendment, Aphton Delaware, by virtue of
this Amendment, expressly adopts the Registration Statements as its own
registration statements for all purposes of the 1933 Act and the 1934 Act.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits the Company to indemnify its directors, officers, employees and agents
(each an "Insider") against liability for each such Insider's acts taken in his
or her capacity as an Insider in a civil action, suit or proceeding if such
actions were taken in good faith and in a manner which the Insider believed to
be in or not opposed to the best interests of the Company, and in a criminal
action, suit or proceeding, if the Insider had no reasonable cause to believe
his or her conduct was unlawful, including under certain circumstances, suits by
or in the right of the Company for any expenses, including attorneys' fees, and
for any liabilities which the Insider may have incurred in consequence of such
action, suit or proceeding under conditions stated in said Section 145. The
Company's Certificate of Incorporation and By-Laws provide that the Company
shall indemnify its directors and officers to the fullest extent authorized by
the DGCL; provided, that the Company may modify the extent of such
indemnification by individual contracts with its directors and executive
officers, and, provided further, that the Company will not be required to
indemnify any director or executive officer in connection with a proceeding
initiated by such person, with certain exceptions.
As permitted by Section 102(b)(7) of the DGCL, Article NINTH of the
Company's Certificate of Incorporation provides that a director of the Company
will not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL,
as amended, which concerns unlawful payments of dividends, stock purchases or
redemption, or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's Certificate of Incorporation permits the Company to
secure insurance on behalf of any director, officer, employee or other agent for
any liability arising out of his or her actions in such capacity, regardless of
whether the Company would have the power to indemnify such person against such
liability under the DGCL.
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ITEM 16. EXHIBITS.
Exhibit
Number Document
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 Exhibit 2.1 to
the Company's Current Report on Form 8-K dated January 30, 1998.
3.1 Certificate of Incorporation of the Company. Incorporated by reference
to Exhibit 3.1 to the Company's Current Report on Form 8-K dated
January 30, 1998.
3.2 By-laws of the Company. Incorporated by reference to Exhibit 3.2 to
the Company's Current Report on Form 8-K dated January 30, 1998.
23.1 Independent Auditor's Consent.
24.1 Power of Attorney.*
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*Previously filed.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to the Form S-3 Registration Statements to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Miami, State of Florida, on this 30th day of January, 1998.
APHTON CORPORATION
By:/s/ Frederick W. Jacobs
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Frederick W. Jacobs
Treasurer and Chief Accounting Officer
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EXHIBIT INDEX
Exhibit
Number Document
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 Exhibit 2.1 to
the Company's Current Report on Form 8-K dated January 30, 1998.
3.1 Certificate of Incorporation of the Company. Incorporated by reference
to Exhibit 3.1 to the Company's Current Report on Form 8-K dated
January 30, 1998.
3.2 By-laws of the Company. Incorporated by reference to Exhibit 3.2 to
the Company's Current Report on Form 8-K dated January 30, 1998.
23.1 Independent Auditor's Consent.
24.1 Power of Attorney.*
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**Previously filed.
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the continued incorporation by reference in the
registration statements of Aphton Corporation on Forms S-3 (File Nos. 33-77286,
333-00586, and 33-31217) of our reports on our audits of the financial
statements of Aphton Corporation, which reports are included in Annual Report on
Form 10-K incorporated by reference in those registration statements, which are
being amended by the post-effective amendment to be filed on or about January
30, 1998.
COOPERS & LYBRAND L.L.P.
/s/ Coopers & Lybrand L.L.P.
Honolulu, Hawaii
January 30, 1998
