As filed with the Securities and Exchange Commission on March 18, 2003.
Registration No. 333-101661
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 2
to
Form SB-2
Registration Statement
under
the Securities Act of 1933
DELCATH SYSTEMS, INC.
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(Exact name of Registrant as specified in its charter)
Delaware 3841 06-1245881
--------- ---- ----------
(State or Other Jurisdiction (Primary Standard (I. R. S. Employer
of Incorporation or Industrial Classification Identification No.)
Organization) Code Number)
1100 Summer Street
Stamford, Connecticut 06905
(203) 323-8668
(Address, including zip code, and telephone number, including area code,
of registrant's executive offices)
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M. S. KOLY
President and Chief Executive Officer
Delcath Systems, Inc.
1100 Summer Street
Stamford, Connecticut 06905
(203) 323-8668
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of all communications, including communications sent to the agent
for service of process, should be sent to:
Paul G. Hughes Brian C. Daughney
Cummings & Lockwood LLC Goldstein & DiGioia, LLP
Four Stamford Plaza 45 Broadway, 11th Floor
107 Elm Street New York, NY 10006
Stamford, CT 06902 212-599-3322
203-351-4207
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: as soon as
practicable after the registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment file pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434 under
the Securities Act, please check the following box. / /
Proposed maximum
Title of each class of aggregate offering Amount of
securities to be registered price (1) registration fee
Units, consisting of 5 shares of $3,450,000 $318 (8)
common stock, par value $.01
per share, and 5 warrants each
to purchase 1 share of common
stock (2)
Common Stock, $0.01 par value (3)
Warrants to purchase shares of
common stock (4)
Shares of common stock underlying
the warrants included in the
units (5)(6)
Underwriters warrants to purchase
units (7) Units, consisting of
5 shares of common stock and 5
warrants each to purchase 1
share of common stock (5)
Common stock, $0.01 par value (3)
Warrants to purchase shares of
common stock (4) Units
issuable upon exercise of the
underwriters warrants (7)
Shares of common stock underlying
the warrants issuable upon
exercise of the warrants
underlying the underwriters
warrants (5)
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(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457 under the Securities Act.
(2) Includes units issuable upon exercise of underwriters' over-allotment
option.
(3) Consists of shares of common stock included in the units registered hereby.
(4) Consists of warrants included in the units registered hereby. The warrants
are offered as a component of the units for no additional consideration.
(5) Pursuant to Rule 416 under the Securities Act, this Registration Statement
also registers (i) any additional shares of common stock that become
issuable upon exercise of the warrants and (ii) any additional units that
become exercisable upon the exercise of the underwriters warrants to
purchase units, in each by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without receipt of
consideration which results in an increase in the number of the outstanding
shares of common stock.
(6) Includes shares issuable pursuant to the exercise of the underwriters
overallotment option.
(7) No registration fee required pursuant to Rule 457(g) under the Securities
Act.
(8) The registration fee was previously paid when the Registration Statement
was originally filed.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement on Form SB-2
(Registration No. 333-101661) (the "Registration Statement") of Delcath Systems,
Inc. (the "Company") is being filed solely for the purpose of filing Exhibit
23.1 to the Registration Statement which was inadvertently not included with
Amendment No. 1 to the Registration Statement that was filed on March 17, 2003.
PART II
Item 27. Exhibits
Exhibit No. Description
1 Form of Underwriting Agreement (incorporated by reference to
Exhibit 1 to Amendment No. 1 to Registrant's Registration
Statement on Form SB-2 (Registration No. 333-101661)).
3.1 Amended and Restated Certificate of Incorporation of Delcath
Systems, Inc. (incorporated by reference to Exhibit 3.1 to
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2002 (File No. 001-16133)).
3.2 Amended and Restated By-Laws of Delcath Systems, Inc.
(incorporated by reference to Exhibit 3.2 to Amendment No. 1
to Registrant's Registration Statement on Form SB-2
(Registration No. 333-39470)).
4.1 Form of Underwriter's Unit Warrant Agreement (incorporated
by reference to Exhibit 4.1 to Amendment No. 1 to
Registrant's Registration Statement on Form SB-2
(Registration No. 333-101661)).
4.2 Specimen 2003 Warrant (incorporated by reference to Exhibit
4.2 to Amendment No. 1 to Registrant's Registration
Statement on Form SB-2 (Registration No. 333-101661)).
4.3 Warrant Agreement, dated January 5, 2001, by and between
Delcath Systems, Inc. and Euroland Marketing Solutions, Ltd.
(incorporated by reference to Exhibit 4.5 to the
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2000 (Commission File No. 001-16133)).
4.4 Warrant No. W-2 to purchase up to 150,000 units granted to
Euroland Marketing Services, Ltd. (incorporated by reference
to Exhibit 4.6 to the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 2000 (Commission File
No. 001-16133)).
4.5 Rights Agreement, dated October 30, 2001, by and between
Delcath Systems, Inc. and American Stock Transfer & Trust
Company, as Rights Agent (incorporated by reference to
Exhibit 4.7 to Registrant's Form 8-A dated November 12, 2001
(Commission File No. 001-16133)).
4.6 Form of Warrant Agreement by and between Delcath Systems,
Inc. and Whale Securities Co., L.P. (incorporated by
reference to Exhibit 4.2 to Amendment No. 5 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
4.7 Form of Warrant Agreement by and between American Stock
Transfer & Trust Company, as warrant agent, Whale Securities
Co., L.P. and Delcath Systems, Inc. (incorporated by
reference to Exhibit 4.3 to Amendment No. 5 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
4.8 Form of Warrant Agent Agreement by and between Delcath
Systems, Inc. and American Stock Transfer & Trust Company,
as warrant agent with respect to the 2003 Warrants
(incorporated by reference to Exhibit 4.8 to Amendment No. 1
to Registrant's Registration Statement on Form SB-2
(Registration No. 333-101661)).
5 Opinion of Cummings & Lockwood LLC (to be filed by
amendment)
10.1 1992 Incentive Stock Option Plan (incorporated by reference
to Exhibit 10.1 to Registrant's Registration Statement on
Form SB-2 (Registration No. 333-39470)).
II-1
10.2 1992 Non-Incentive Stock Option Plan (incorporated by
reference to Exhibit 10.2 to Registrant's Registration
Statement on Form SB-2 (Registration No. 333-39470)).
10.3 2000 Stock Option Plan (incorporated by reference to Exhibit
10.3 to Registrant's Registration Statement on Form SB-2
(Registration No. 333-39470)).
10.4 2001 Stock Option Plan (incorporated by reference to Exhibit
10.12 to Amendment No. 1 to Registrant's Annual Report on
Form 10-KSB for the year ended December 31, 2001 (Commission
File No. 001-16133)).
10.5 Employment Agreement, dated April 30, 1996, between Delcath
Systems, Inc. and M.S. Koly, as amended on April 30, 1999
(incorporated by reference to Exhibit 10.4 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
10.6 Employment Agreement, dated April 30, 1996, between Delcath
Systems, Inc. and Samuel Herschkowitz, M.D., as amended on
April 30, 2000 (incorporated by reference to Exhibit 10.4 to
Registrant's Registration Statement on Form SB-2
(Registration No. 333-39470)).
10.7 Distributorship Agreement, dated as of December 27, 1996, by
and between Delcath Systems, Inc. and Nissho Corporation
(incorporated by reference to Exhibit 10.6 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
10.8 Consulting Services Agreement, between Delcath Systems, Inc.
and Euroland Marketing Solutions, Ltd. (incorporated by
reference to Exhibit 10.9 to the Registrant's Annual Report
on Form 10-KSB for the year ended December 31, 2000
(Commission File No. 001-16133)).
10.9 Amendment to Key Employment Agreement, dated October 30,
2001, by and between Delcath Systems, Inc. and M. S. Koly
(incorporated by reference to Exhibit 10.10 to Registrant's
Quarterly Report on Form 10-Q for the period ended September
30, 2001 (Commission File No. 001-16133)).
10.10 Amendment to Key Employment Agreement, dated October 30,
2001, by and between Delcath Systems, Inc. and Samuel
Herschkowitz (incorporated by reference to Exhibit 10.11 to
Registrant's Quarterly Report on Form 10-Q for the period
ended September 30, 2001 (Commission File No. 001-16133)).
23.1 Consent of Eisner LLP.
23.2 Consent of Cummings & Lockwood LLC (to be contained in
Exhibit 5 hereto).
24 Powers of Attorney (incorporated by reference to Exhibit 24
to the Registrant's Registration Statement on Form SB-2
(Registration No. 333-101661)).
II-2
SIGNATURES
In accordance with 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 of filing on Form SB-2 and authorized this amendment to its
registration statement to be signed on its behalf by the undersigned, in City of
Stamford, State of Connecticut on March 18, 2003.
DELCATH SYSTEMS, INC.
By: /s/ M. S. Koly
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M.S. Koly, President
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title )
--------- ----- )
)
M.S. KOLY Chief Executive Officer )
(Principal Executive )
Officer and Director )
)
THOMAS S. GROGAN Chief Financial Officer )
(Principal Financial )
and Accounting Officer )
)
SAMUEL HERSCHOWITZ, M.D. Chairman and Director )
) By /s/ M. S. Koly
) --------------
MARK A. CORIGLIANO Director ) M. S. Koly
) Attorney-in-fact
DANIEL ISDANER Director )
) Date: March 18, 2003
VICTOR NEVINS Director )
II-3
EXHIBIT INDEX
Exhibit No. Description
1 Form of Underwriting Agreement (incorporated by reference to
Exhibit 1 to Amendment No. 1 to Registrant's Registration
Statement on Form SB-2 (Registration No. 333-101661)).
3.1 Amended and Restated Certificate of Incorporation of Delcath
Systems, Inc. (incorporated by reference to Exhibit 3.1 to
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2002 (File No. 001-16133)).
3.2 Amended and Restated By-Laws of Delcath Systems, Inc.
(incorporated by reference to Exhibit 3.2 to Amendment No. 1
to Registrant's Registration Statement on Form SB-2
(Registration No. 333-39470)).
4.1 Form of Underwriter's Unit Warrant Agreement (incorporated
by reference to Exhibit 4.1 to Amendment No. 1 to
Registrant's Registration Statement on Form SB-2
(Registration No. 333-101661)).
4.2 Specimen 2003 Warrant (incorporated by reference to Exhibit
4.2 to Amendment No. 1 to Registrant's Registration
Statement on Form SB-2 (Registration No. 333-101661)).
4.3 Warrant Agreement, dated January 5, 2001, by and between
Delcath Systems, Inc. and Euroland Marketing Solutions, Ltd.
(incorporated by reference to Exhibit 4.5 to the
Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2000 (Commission File No. 001-16133)).
4.4 Warrant No. W-2 to purchase up to 150,000 units granted to
Euroland Marketing Services, Ltd. (incorporated by reference
to Exhibit 4.6 to the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 2000 (Commission File
No. 001-16133)).
4.5 Rights Agreement, dated October 30, 2001, by and between
Delcath Systems, Inc. and American Stock Transfer & Trust
Company, as Rights Agent (incorporated by reference to
Exhibit 4.7 to Registrant's Form 8-A dated November 12, 2001
(Commission File No. 001-16133)).
4.6 Form of Warrant Agreement by and between Delcath Systems,
Inc. and Whale Securities Co., L.P. (incorporated by
reference to Exhibit 4.2 to Amendment No. 5 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
4.7 Form of Warrant Agreement by and between American Stock
Transfer & Trust Company, as warrant agent, Whale Securities
Co., L.P. and Delcath Systems, Inc. (incorporated by
reference to Exhibit 4.3 to Amendment No. 5 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
4.8 Form of Warrant Agent Agreement by and between Delcath
Systems, Inc. and American Stock Transfer & Trust Company,
as warrant agent with respect to the 2003 Warrants
(incorporated by reference to Exhibit 4.8 to Amendment No. 1
to Registrant's Registration Statement on Form SB-2
(Registration No. 333-101661)).
5 Opinion of Cummings & Lockwood LLC (to be filed by
amendment)
10.1 1992 Incentive Stock Option Plan (incorporated by reference
to Exhibit 10.1 to Registrant's Registration Statement on
Form SB-2 (Registration No. 333-39470)).
10.2 1992 Non-Incentive Stock Option Plan (incorporated by
reference to Exhibit 10.2 to Registrant's Registration
Statement on Form SB-2 (Registration No. 333-39470)).
Exhibit No. Description
10.3 2000 Stock Option Plan (incorporated by reference to Exhibit
10.3 to Registrant's Registration Statement on Form SB-2
(Registration No. 333-39470)).
10.4 2001 Stock Option Plan (incorporated by reference to Exhibit
10.12 to Amendment No. 1 to Registrant's Annual Report on
Form 10-KSB for the year ended December 31, 2001 (Commission
File No. 001-16133)).
10.5 Employment Agreement, dated April 30, 1996, between Delcath
Systems, Inc. and M.S. Koly, as amended on April 30, 1999
(incorporated by reference to Exhibit 10.4 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
10.6 Employment Agreement, dated April 30, 1996, between Delcath
Systems, Inc. and Samuel Herschkowitz, M.D., as amended on
April 30, 2000 (incorporated by reference to Exhibit 10.4 to
Registrant's Registration Statement on Form SB-2
(Registration No. 333-39470)).
10.7 Distributorship Agreement, dated as of December 27, 1996, by
and between Delcath Systems, Inc. and Nissho Corporation
(incorporated by reference to Exhibit 10.6 to Registrant's
Registration Statement on Form SB-2 (Registration No.
333-39470)).
10.8 Consulting Services Agreement, between Delcath Systems, Inc.
and Euroland Marketing Solutions, Ltd. (incorporated by
reference to Exhibit 10.9 to the Registrant's Annual Report
on Form 10-KSB for the year ended December 31, 2000
(Commission File No. 001-16133)).
10.9 Amendment to Key Employment Agreement, dated October 30,
2001, by and between Delcath Systems, Inc. and M. S. Koly
(incorporated by reference to Exhibit 10.10 to Registrant's
Quarterly Report on Form 10-Q for the period ended September
30, 2001 (Commission File No. 001-16133)).
10.10 Amendment to Key Employment Agreement, dated October 30,
2001, by and between Delcath Systems, Inc. and Samuel
Herschkowitz (incorporated by reference to Exhibit 10.11 to
Registrant's Quarterly Report on Form 10-Q for the period
ended September 30, 2001 (Commission File No. 001-16133)).
23.1 Consent of Eisner LLP.
23.2 Consent of Cummings & Lockwood LLC (to be contained in
Exhibit 5 hereto).
24 Powers of Attorney (incorporated by reference to Exhibit 24
to the Registrant's Registration Statement on Form SB-2
(Registration No. 333-101661)).
EXHIBIT 23.1
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Consent of Independent Auditors
We consent to the inclusion of our report dated February 6, 2003 with
respect to our audits of the financial statements included herein and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ EISNER LLP
Eisner LLP
New York, NY
March 17, 2003