As Filed with the Securities and Exchange Commission on October 21, 2004
Registration No. 333-______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------------------
FORM S-8
REGISTRATION STATEMENT
THE SECURITIES ACT OF 1933
--------------------------------------------------
DELCATH SYSTEMS, INC.
-----------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 06-1245881
-------------------------------------- ----------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 Summer Street
Stamford, Connecticut 06905
-------------------------------------- -------------------
(Address of Principal Executive (Zip Code)
Offices)
2000 Stock Option Plan
2001 Stock Option Plan
2004 Stock Incentive Plan
-------------------------
(Full title of the plans)
M. S. Koly
President and Chief Executive Officer
Delcath Systems, Inc.
1100 Summer Street
3rd Floor
Stamford, Connecticut 06905
---------------------------
(Name and address of agent for service)
(203) 323-8668
(Telephone number, including area code of agent for service)
Copy to:
Paul G. Hughes
Murtha Cullina LLP
Two Whitney Avenue, P.O. Box 704
New Haven, Connecticut 06503-0704
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1)(2) Per Share Price (3) Registration Fee
- ----------------------------------------------------------------------------------------------------------
Common Stock, $0.01
par value 4,077,300 shares (3) $7,092,289 $899
==========================================================================================================
(1) Includes an indeterminate number of shares of Common Stock, par value $0.01
of Delcath Systems, Inc. that may be issuable by reason of stock splits,
stock dividends or similar transactions. In addition, pursuant to Rule
416(c) under the Securities Act of 1933, this Registration Statement also
covers an indeterminate number of interests to be offered or sold pursuant
to the employee benefit plans described herein.
(2) Includes an aggregate of 1,077,300 shares that may be sold under the 2000
Stock Option Plan, and the 2001 Stock Option Plan; and 3,000,000 shares
which may be offered or sold under the 2004 Stock Incentive Plan.
(3) For shares that may be sold under the 2000 Stock Option Plan and the 2001
Stock Option Plan, the offering price is based on the exercise price of the
outstanding options of $1,302,289. For shares which may be offered or sold
under the 2004 Stock Incentive Plan, estimated in accordance with Rule
457(h)(1) under the Securities Act of 1933, as amended, solely for the
purpose of calculating the registration fee; the price used is the closing
price of the Common Stock of $1.93 on October 20, 2004, as reported by
the Nasdaq SmallCap Market.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with the Note to Part I of the Registration Statement on Form
S-8, the document(s) containing the information specified in Part I of the
Registration Statement on Form S-8 is not being filed with the Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the SEC pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference:
(a) the Company's Annual Report on Form 10-KSB for the year ended December
31, 2003, filed on March 30, 2004;
(b) the Company's definitive Proxy Statement dated April 29, 2004
distributed in connection with the Company's Annual Meeting of Shareholders held
on June 15, 2004;
(c) the Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2004, filed on May 17, 2004;
(d) the Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2004, filed on August 12, 2004;
(e) the Company's Current Report on Form 8-K dated September 30, 2004; and
(f) the description of the Company's common stock contained under the
caption "Description of Our Capital Stock and Other Securities - Units" in the
Prospectus included in the Company's Registration Statement on Form SB-2 (No.
333-101661), declared effective on May 15, 2003.
All documents that the Company files with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date
hereof and prior to the filing of a post-effective amendment to this
registration statement that indicates that all the common stock offered has been
sold, or which deregisters all common stock then remaining unsold hereunder,
shall be incorporated by reference into this registration statement and to be a
part hereof (and of the prospectus(es)) from the date of filing of such
documents. Any statement contained in the prospectus(es) will be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained in any subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
Item 8. Exhibits.
Exhibit Description
No.
3.1 Amended and Restated Certificate of Incorporation of the Company, as
amended to June 16, 2004 (incorporated by reference to Exhibit 3(i) to the
Company's Quarterly Report on Form 10-QSB for the quarter ended June 30,
2004)
3.2 Amended and Restated By-laws of the Company (incorporated by reference to
Exhibit 3.2 to Amendment No. 1 to the Company's Registration Statement on
Form SB-2 (Registration No. 333-39470))
II-1
4.1 Warrant Agreement, dated as of January 5, 2001, by and between Delcath
Systems, Inc. and Euroland Marketing Solutions, Ltd. (incorporated by
reference to Exhibit 4.5 to the Company's Annual Report on Form 10-KSB for
the year ended December 31, 2000 (Commission File No. 001-16133))
4.2 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
Company's Annual Report on Form 10-KSB for the year ended December 31, 2000
(Commission File No. 001-16133))
4.3 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 the Company's Form 8-A dated
November 12, 2001 (Commission File No. 001-16133))
4.4 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 the Company's Registration Statement on Form SB-2 (Registration
No. 333-39470))
4.5 Form of Warrant Agent Agreement by and among Delcath Systems, Inc., Whale
Securities Co., L.P., and American Stock Transfer & Trust Company, as
warrant agent (incorporated by reference to Exhibit 4.3 to Amendment No. 5
to the Company's Registration Statement on Form SB-2 (Registration No.
333-39470))
4.6 Form of Underwriter's Unit Warrant Agreement between Delcath Systems, Inc.
and Roan/Meyers Associates L.P. (incorporated by reference to Exhibit 4.1
to Amendment No. 1 to the Company's Registration Statement on Form SB-2
(Registration No. 333-101661)).
4.7 Specimen 2003 Warrant (incorporated by reference to Exhibit 4.2 to
Amendment No. 1 to the Company's Registration Statement on Form SB-2
(Registration No. 333-101661))
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. 3 to the Company's Registration Statement on Form SB-2 (Registration
No. 333-101661))
5.1 Opinion of Murtha Cullina LLP
23.1 Consent of Eisner LLP
23.2 Consent of Murtha Cullina LLP (included in Exhibit 5.1)
24 Power of attorney of certain officers and directors of the Company
99.1 2000 Stock Option Plan (incorporated by reference to Exhibit 10.3 to the
Company's Registration Statement on Form SB-2 (Registration No. 333-39470))
II-2
99.2 2001 Stock Option Plan (incorporated by reference to Exhibit 10.12 to
Amendment No. 1 to the Company's Annual Report on Form 10-KSB for the year
ended December 31, 2001 (Commission File No. 001-16133))
99.3 2004 Stock Incentive Plan (incorporated by reference to Exhibit B to the
Company's definitive Proxy Statement dated April 29, 2004 (Commission File
No. 001-16133))
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered hereby which remain unsold at the termination
of the offering.
(b) The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director or officer
or controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being
II-3
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut on October 21, 2004.
Delcath Systems, Inc.
By: /s/ M. S Koly
----------------------------------
Name: M. S Koly
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Name Title
- ---- -----
M. S. Koly President and Chief Executive)
Officer and Director )
(Principal Executive Officer )
)
Paul M. Feinstein Chief Financial Officer )
(Principal Financial Officer)) By: /s/ M. S. Koly
) --------------
Samuel Herschkowitz Chairman and Director ) Attorney-in-Fact
)
Mark A.Corigliano Director ) Dated: October 21, 2004
)
Daniel Isdaner Director )
)
Victor Nevins Director )
II-5
EXHIBIT INDEX
Exhibit Description
No.
3.1 Amended and Restated Certificate of Incorporation of the Company, as
amended to June 16, 2004 (incorporated by reference to Exhibit 3(i) to the
Company's Quarterly Report on Form 10-QSB for the quarter ended June 30,
2004)
3.2 Amended and Restated By-laws of the Company (incorporated by reference to
Exhibit 3.2 to Amendment No. 1 to the Company's Registration Statement on
Form SB-2 (Registration No. 333-39470))
4.1 Warrant Agreement, dated as of January 5, 2001, by and between Delcath
Systems, Inc. and Euroland Marketing Solutions, Ltd. (incorporated by
reference to Exhibit 4.5 to the Company's Annual Report on Form 10-KSB for
the year ended December 31, 2000 (Commission File No. 001-16133))
4.2 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
Company's Annual Report on Form 10-KSB for the year ended December 31, 2000
(Commission File No. 001-16133))
4.3 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 the Company's Form 8-A dated
November 12, 2001 (Commission File No. 001-16133))
4.4 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 the Company's Registration Statement on Form SB-2 (Registration
No. 333-39470))
4.5 Form of Warrant Agent Agreement by and among Delcath Systems, Inc., Whale
Securities Co., L.P., and American Stock Transfer & Trust Company, as
warrant agent (incorporated by reference to Exhibit 4.3 to Amendment No. 5
to the Company's Registration Statement on Form SB-2 (Registration No.
333-39470))
4.6 Form of Underwriter's Unit Warrant Agreement between Delcath Systems, Inc.
and Roan/Meyers Associates L.P. (incorporated by reference to Exhibit 4.1
to Amendment No. 1 to the Company's Registration Statement on Form SB-2
(Registration No. 333-101661)).
4.7 Specimen 2003 Warrant (incorporated by reference to Exhibit 4.2 to
Amendment No. 1 to the Company's Registration Statement on Form SB-2
(Registration No. 333-101661))
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. 3 to the Company's Registration Statement on Form SB-2 (Registration
No. 333-101661))
5.1 Opinion of Murtha Cullina LLP
23.1 Consent of Eisner LLP
23.2 Consent of Murtha Cullina LLP (included in Exhibit 5.1)
24 Power of attorney of certain officers and directors of the Company
99.1 2000 Stock Option Plan (incorporated by reference to Exhibit 10.3 to the
Company's Registration Statement on Form SB-2 (Registration No. 333-39470))
99.2 2001 Stock Option Plan (incorporated by reference to Exhibit 10.12 to
Amendment No. 1 to the Company's Annual Report on Form 10-KSB for the year
ended December 31, 2001 (Commission File No. 001-16133))
99.3 2004 Stock Incentive Plan (incorporated by reference to Exhibit B to the
Company's definitive Proxy Statement dated April 29, 2004 (Commission File
No. 001-16133))
EXHIBIT 5
[LETTERHEAD OF MURTHA CULLINA LLP]
PAUL G. HUGHES
(203) 772-7726 DIRECT TELEPHONE
(860) 240-5726 DIRECT FACSIMILE
PHUGHES@MURTHALAW.COM
October 21, 2004
The Board of Directors
Delcath Systems, Inc.
1100 Summer Street
Stamford, Connecticut 06905
Re: Registration Statement on Form S-8
Dear Sirs:
We have acted as special counsel to Delcath Systems, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 being filed on the date hereof (the "Registration Statement"), for the
offering by it of up to 4,251,542 shares (the "Shares") of its Common Stock, par
value $0.01 (the "Common Stock") issuable upon exercise of awards that have been
granted pursuant to its 2000 Stock Option Plan or its 2001 Stock Option Plan or
that may be granted pursuant its 2004 Stock Incentive Plan (individually, a
"Plan" and, collectively, the "Plans").
We have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction of the following documents: (a) the
Amended and Restated Certificate of Incorporation of the Company, as amended, in
the form filed as Exhibit 3.1 to the Company's Quarterly Report on Form 10-QSB
for the quarter ended June 30, 2004 (file No. 001-16133); (b) the Amended and
Restated Bylaws of the Company in the form filed as Exhibit 3.2 to Amendment No.
1 to the Company's Registration Statement on Form SB-2 (No. 333-39470); (c) a
Certificate dated the date hereof of the Company's President and Chief Executive
Officer as to certain matter of fact; (d) the Plans; and (e) such other
documents as we have considered necessary to the rendering of the opinions
expressed below.
In our examination of the foregoing, we have assumed that: (a) the
statements made therein are accurate and complete; (b) the signatures on
documents and instruments submitted to us as originals are authentic; and (c)
documents submitted to us as certified, conformed or photostatic copies of
original documents conform with the originals thereof and the originals thereof
are authentic. We have also assumed that each award granted or that may be
granted under the Plans was or will be granted in accordance with the respective
Plan under which it was or will be granted.
The Board of Directors
Delcath Systems, Inc.
October 21, 2004
Page 2
In rendering the opinion set forth below, we have also assumed that, upon
issuance of the Shares upon exercise of awards under the Plans, the total number
of shares of Common Stock issued and outstanding will not exceed the total
number of shares of Common Stock that the Company is then authorized to issue.
Based upon the foregoing and assuming that the purchase price of the Shares
issued pursuant to the Plans will be not less than the par value of the Shares,
we are of the opinion that the Shares will, upon issuance in accordance with the
provisions of the respective Plan subsequent to the exercise of awards granted
under such Plan, be legally issued, fully paid and nonassessable.
The foregoing opinion is limited to the General Corporation Law of the
State of Delaware, and we do not express any opinion herein concerning any other
law. We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for filing as an exhibit to the
Registration Statement and, accordingly, may not be relied upon by or quoted in
any manner or delivered to any other person or entity without, in each instance,
our prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm appearing under the caption
"Legality" in the Prospectuses forming part of the Registration Statement. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
MURTHA CULLINA LLP
By /s/ PAUL G. HUGHES
--------------------------
Paul G. Hughes
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated February 11, 2004 (March 22, 2004 with respect to
Note 6) on our audits of the financial statements of Delcath Systems, Inc. (the
"Company") as of December 31, 2003 and for each of the years in the two-year
period ended December 31, 2003 and for the period from August 5, 1988
(inception) to December 31, 2003.
/s/ EISNER LLP
- --------------------
Eisner LLP
New York, NY
October 20, 2004
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned officers and directors of Delcath Systems, Inc., a
Delaware corporation (the "Company"), hereby severally constitute and appoint M.
S. Koly and Paul M. Feinstein, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, and with full powers
of substitution and resubstitution, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 relating to
the offer of shares of the Company's common stock, par value $0.01, pursuant to
the Company's 1992 Incentive Stock Option Plan, its 1992 Non-Incentive Stock
Option Plan, its 2000 Stock Option Plan, its 2001 Stock Option Plan and its 2004
Stock Incentive Plan, and any and all pre-effective and post-effective
amendments to said Registration Statement, and generally to do all such things
in our names and on our behalf in our capacities as officers and directors to
enable the Company to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our
attorneys, or either of them, or their substitute or substitutes, to said
Registration Statement and any and all amendments thereto.
Signature Title Date
--------- ----- ----
/s/ M. S. KOLY President and Chief Executive October 21, 2004
- ----------------------- Officer (Principal Executive
M. S. Koly Officer) and Director
/s/ PAUL M. FEINSTEIN Chief Financial Officer October 21, 2004
- ----------------------- (Principal Financial
Paul M. Feinstein and Accounting Officer)
/s/ SAMUEL HERSCHKOWITZ Chairman and Director October 21, 2004
- -----------------------
Samuel Herschkowitz, M.D.
/s/ MARK A. CORIGLIANO Director October 21, 2004
- -----------------------
Mark A. Corigliano
/s/ DANIEL ISDANER Director October 21, 2004
- -----------------------
Daniel Isdaner
/s/ VICTOR NEVINS Director October 21, 2004
- -----------------------
Victor Nevins