As filed with the Securities and Exchange Commission on August 26, 2005.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
Amendment No. 2
to
Schedule TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
--------------------
DELCATH SYSTEMS, INC.
(Name of Subject Company (issuer) and Filing Person (offeror))
--------------------
Redeemable Common Stock Purchase Warrants Issued in 2000
(Title of Class of Securities)
--------------------
24661P112
(CUSIP Number of Class of Securities)
--------------------
M. S. Koly
President and Chief Executive Officer
Delcath Systems, Inc.
1100 Summer Street
3rd Floor
Stamford, Connecticut 06905
(203) 323-8668
(Name, address and telephone number of person authorized to receive notices and
communications on behalf of filing person)
--------------------
Copies
to:
Paul G. Hughes
Murtha Cullina LLP
Two Whitney Avenue
P. O. Box 704
New Haven, Connecticut 06503-0704
(203) 772-7726
CALCULATION OF FILING FEE
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Transaction Valuation* Amount of Filing Fee
$324,000 $ 64.80
- --------------------------------------------------------------------------------
* Calculated solely for purposes of determining the filing fee under Rule
0-11(a)(4) based on the last sale of the Redeemable Common Stock Purchase
Warrants issued by the filing person in 2000 on July 7, 2005 of $0.27 per
warrant.
|X| Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $64.80
Form or Registration No.: Schedule TO-I (File No. 5-60851)
Filing party: Delcath Systems, Inc.
Date filed: July 13, 2005
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
|_| third party tender offer subject to Rule 14d-1.
|X| issuer tender offer subject to Rule 13e-4.
|_| going-private transaction subject to Rule 13e-3.
|_| amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: |_|
- --------------------------------------------------------------------------------
This Amendment No. 2 to the Issuer Tender Offer Statement on Schedule TO
(this "Amendment No. 2 to the Schedule TO") relates to an offer by Delcath
Systems, Inc., a Delaware corporation (the "Company"), to exchange any or all of
the Company's 1,200,000 outstanding Redeemable Common Stock Purchase Warrants
that it issued in connection with its initial public offering in 2000 (the "2000
Warrants") for the Company's 2005 Redeemable Common Stock Purchase Warrants -
Series A (the "Exchange Warrants") upon the terms and subject to the conditions
contained in the Offer to Exchange dated July 13, 2005 (the "Offer to Exchange")
and the related Letter of Transmittal (collectively, the "Exchange Offer") which
are filed as exhibits to this Schedule TO. The Company has extended the
Expiration Date of the Exchange Offer to 5:00 p.m., New York time, on September
9, 2005. Terms used herein that are defined in the Offer to Exchange are used
herein as so defined.
This Amendment No 2 to the Schedule TO is being filed in satisfaction of
the reporting requirements of Rule 13e-4(c)(2) promulgated under the Securities
Exchange Act of 1934, as amended.
Item 1. Summary Term Sheet.
The information under the caption "Summary of the Exchange Offer" in the
Exchange Offer includes the information required by Item 1001 of Regulation M-A
and is incorporated herein by reference. Terms used herein which are defined in
the Exchange Offer are used herein as defined in the Exchange Offer.
Item 2. Subject Company Information
The information required by Item 1002(a) of Regulation M-A is contained on
the cover page of the Offer to Exchange and is incorporated herein by reference.
The information required by Item 1002(c) of Regulation M-A is contained in
the Offer to Exchange under the caption "Market Values of the 2000 Warrants" and
is incorporated herein by reference.
Item 3. Identity and Background of Filing Person
The information required by Item 1003(a) of Regulation M-A is contained on
the cover page of the Offer to Exchange or under the caption "Interests of
Certain Persons in the Exchange Offer" in the Offer to Exchange and is
incorporated herein by reference.
There is no other person who may be deemed to control the Company, and
there is no other corporation or other person ultimately in control of the
Company.
Item 4. Terms of the Transaction
The information required by Item 1004(a) of Regulation M-A contained in the
Offer to Exchange on the cover page and under the captions "Summary of the
Exchange Offer," "The Exchange Offer" and "Federal Income Tax Consequences of
the Exchange Offer" is incorporated herein by reference with the following
modifications:
The last sentence under "MARKET FOR THE EXCHANGE WARRANTS" in the "SUMMARY"
section of the Offer to Exchange is hereby replaced by the following:
The Company has filed an application to list the Exchange
Warrants on the Nasdaq SmallCap Market. The Company has no
reason to believe that the Exchange Warrants will not
qualify for such listing.
1
The first sentence of the fifth paragraph under "THE EXCHANGE OFFER -
Procedure for Tendering 2000 Warrants" in the Offer to Exchange is hereby
modified to read in its entirety as follows:
The Exchange Warrants will be issued and mailed
promptly after the Expiration to those holders of 2000
Warrants who have taken the steps necessary to accept the
Exchange Offer by the Expiration Date.
The sixth paragraph under "THE EXCHANGE OFFER - Procedure for Tendering
2000 Warrants" in the Offer to Exchange is hereby amended to read in its
entirety as follows:
Notwithstanding any other provision of the Exchange
Offer, we will not be required to accept for exchange, or to
issue Exchange Warrants for, any 2000 Warrants and may
terminate the Exchange Offer if at any time before the
acceptance of those 2000 Warrants for exchange or the
exchange of the Exchange Warrants for outstanding 2000
Warrants, it is determined that the Exchange Offer violates
any applicable law or applicable interpretation thereof by
any federal or state regulatory agency. If a condition to
the Exchange Offer is not satisfied but the Company
determines to proceed with the Exchange Offer, such
determination will constitute a waiver by the Company of
such condition.
The section in the Offer to Exchange captioned "FEDERAL INCOME TAX
CONSEQUENCES OF THE EXCHANGE OFFER" is hereby amended to read in its entirety as
follows:
FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE OFFER
The following is a summary of the material U.S. federal income tax
consequences relating to:
o the exchange of 2000 Warrants for Exchange Warrants; and
o the ownership, disposition, redemption and expiration of the
Exchange Warrants.
This summary is based on provisions of the U.S. Internal Revenue Code of
1986, as amended (the "Code"), Treasury regulations promulgated under the Code,
and administrative rulings, and judicial interpretations of the Code, all as in
effect on the date of the Exchange Offer and all of which are subject to change,
possibly retroactively. This summary is limited to U.S. Holders (as defined
below) that are entitled to exchange 2000 Warrants for the Exchange Warrants
pursuant to the Exchange Offer. This summary does not address all aspects of
U.S. federal income taxation that may be important to you in light of your
individual circumstances, such as, for example, if you are an investor subject
to special tax rules (e.g., if you are a bank, thrift, real estate investment
trust, regulated investment company, insurance company, dealer in securities or
currencies, a person who acquired the 2000 Warrants as compensation, an
expatriate or a tax-exempt investor) or if you would hold the 2000 Warrant or
Exchange Warrant or would hold a share of Common Stock acquired as a result of
an exercise of the Exchange Warrant as a position in a "straddle," as part of a
"synthetic security" or "hedge," as part of a "conversion transaction" or other
integrated investment, or as other than a capital asset. In addition, this
summary does not address any aspect of state, local or foreign taxation.
For purposes of this summary, a "U.S. Holder" means a beneficial owner of
the 2000 Warrants or Exchange Warrants or shares of Common Stock received upon
exercise of Exchange Warrants, as the case may be, who is the owner of record
thereof and is for U.S. federal income tax purposes:
o an individual who is a citizen or resident of the United States;
2
o a corporation, or other entity taxable as a corporation that is
created or organized in the United States or under the laws of
the United States or any state thereof (including the District of
Columbia);
o an estate the income of which is includible in gross income for
U.S. federal income tax purposes regardless of its source; or
o a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust and one
or more United States persons have the authority to control all
substantial decisions of such trust.
If a partnership (including any entity treated as a partnership for U.S.
federal income tax purposes) holds the 2000 Warrants or Exchange Warrants, the
U.S. federal income tax treatment of a partner in such partnership will
generally depend upon the status of the partner and the activities of the
partnership.
No ruling has been sought from the United States Internal Revenue Service
(the "IRS") with respect to any of the tax consequences discussed below. The IRS
could challenge some or all of the tax consequences described below or a court
could sustain such a challenge.
Because the tax characterization and treatment of the exchange of 2000
Warrants for Exchange Warrants is unclear, you are urged to consult with your
own tax advisor regarding how you should characterize and treat the exchange of
2000 Warrants for Exchange Warrants under federal tax laws applicable to you.
You are advised to consult with your own tax advisor regarding the particular
tax consequences to you of the offer to exchange 2000 Warrants for Exchange
Warrants and the ownership, disposition, redemption and expiration of the
Exchange Warrants in light of your particular tax situation and under state,
local and foreign tax laws applicable to you.
Exchange of 2000 Warrants for Exchange Warrants
The tax treatment of a U.S. Holder's exchange of a 2000 Warrant for an
Exchange Warrant is unclear. Although amendments to the Code and regulations
promulgated under the Code now allow warrants to be exchanged tax-free in
connection with corporate reorganizations, there has been no court decision, IRS
regulation or other authoritative interpretation or guidance issued on whether
an exchange of warrants may qualify as a tax-free reorganization known as a
recapitalization. Generally, a recapitalization is a reshuffling of a capital
structure within the framework of an existing corporation. Based upon informal
conversations with IRS representatives, it appears likely the IRS would take the
position that an exchange of warrants does not qualify as a tax-free
reorganization known as a recapitalization because the exchange lacks the
requisite concurrent transfer, exchange, or issuance of equity in the
Corporation. Furthermore, even if the exchange of warrants could qualify as a
tax-free reorganization, the exchange would be tax-free only to the extent the
value of the warrant received does not exceed the value of the warrant
surrendered. The tax consequences of the receipt of the excess value would
depend upon whether it is received for services rendered, property exchanged, as
a distribution to a person in the person's capacity as a shareholder, or for
some other reason.
Based upon informal conversations with IRS representatives, it appears
likely the IRS would take the position that an exchange of warrants is a taxable
event for federal income tax purposes. However, if the IRS were to take this
position, it is not certain the IRS would prevail. Under the Code and
regulations promulgated under the Code, the exchange of warrants is now treated
like the exchange of securities for purposes of the corporate reorganization
provisions and case law has held that the exchange of securities in the nature
of debt may qualify as a tax-free reorganization known as a recapitalization.
The exchange could be treated as a tax-free recapitalization to the extent
the fair market value of the Exchange Warrant does not exceed the fair market
value of the 2000 Warrant (the "Equivalent Value"). To
3
the extent the fair market value of the Exchange Warrant exceeds the 2000
Warrant (the "Excess Value"), the Excess Value could be treated as if it were
exchanged for a portion of the 2000 Warrant that has no fair market value in a
tax-free or taxable exchange, or, if the U.S. Holder of a 2000 Warrant is a
shareholder of the Company, as if it were distributed to the shareholder.
Alternatively, the entire exchange could be treated as a taxable sale or
exchange. There may be other characterizations of the exchange that the IRS
could assert.
If the exchange of the Equivalent Value portion of the Exchange Warrant for
the 2000 Warrant is treated as a tax-free recapitalization, the U.S. Holder will
not recognize taxable income for U.S. federal income tax purposes as a result of
such exchange; the tax basis of the U.S. Holder in the Equivalent Value portion
of the Exchange Warrant will be the same as the U.S. Holder's tax basis in the
2000 Warrant that is allocated to the Equivalent Value portion of the Exchange
Warrant; and the holding period of the U.S. Holder in the Equivalent Value
portion of the Exchange Warrant will include the holding period of the U.S.
Holder in the 2000 Warrant. The tax basis of the U.S. Holder in the 2000 Warrant
that is allocated to the Equivalent Value portion of the Exchange Warrant will
be the portion of the U.S. Holder's tax basis that is equal to the percentage
that the Equivalent Value is of the fair market value of the Exchange Warrant.
If the exchange of the Equivalent Value portion of the Exchange Warrant for
the 2000 Warrant is treated as a tax-free recapitalization, and the Excess Value
portion of the Exchange Warrant is treated as if it were exchanged for a portion
of the 2000 Warrant that has no fair market value, the exchange attributable to
the Excess Value may not be considered a part of the tax-free recapitalization,
but could be considered part of the plan of reorganization. In that event, the
U.S. Holder will not recognize taxable income for U.S. federal income tax
purposes as a result of the exchange attributable to the Excess Value portion of
the Exchange Warrant; the tax basis of the U.S. Holder in the Excess Value
portion of the Exchange Warrant will be the same as the U.S. Holder's tax basis
in the 2000 Warrant that is allocated to the Excess Value portion of the
Exchange Warrant; and the holding period of the U.S. Holder in the Excess Value
portion of the Exchange Warrant will include the holding period of the U.S.
Holder in the 2000 Warrant. The tax basis of the U.S. Holder in the 2000 Warrant
that is allocated to the Excess Value portion of the Exchange Warrant will be
the portion of the U.S. Holder's tax basis that is equal to the percentage that
the Excess Value is of the fair market value of the Exchange Warrant
(hereinafter called the "Basis in the 2000 Warrant Allocated to the Excess
Value").
If the exchange of the Equivalent Value portion of the Exchange Warrant for
the 2000 Warrant is treated as a tax-free recapitalization, and the Excess Value
portion of the Exchange Warrant is treated as if it were exchanged for a portion
of the 2000 Warrant that has no fair market value, the exchange attributable to
the Excess Value portion of the Exchange Warrant may not be considered a part of
the tax-free recapitalization or the plan of reorganization. In that event, the
exchange attributable to the Excess Value portion of the Exchange Warrant will
be a taxable event for U.S. federal income tax purposes; the U.S Holder will
have capital gain or loss in an amount equal to the difference between the
Excess Value and Basis in the 2000 Warrant Allocated to the Excess Value; the
capital gain or loss will be long term if the U.S. Holder's holding period in
the 2000 Warrant exceeds one year at the time of the exchange; and the holding
period of the U.S. Holder in the Excess Value portion of the Exchange Warrant
will begin on the day after the taxable exchange.
If the exchange of the Equivalent Value portion of the Exchange Warrant for
the 2000 Warrant is treated as a tax-free recapitalization and the U.S Holder of
the 2000 Warrant is a shareholder of the Company, then the Excess Value portion
of the Exchange Warrant could be treated as if it were distributed to the U.S.
Holder that is a shareholder of the Company. In that event, the amount of the
distribution will not be includible in the U.S. Holder's gross income for U.S.
federal income tax purposes; the U.S. Holder's tax basis in the stock of the
Company will be allocated between the U.S. Holder's stock and the Excess Value
portion of the Exchange Warrant in proportion to their fair market values on the
date of distribution, except
4
that the tax basis in the Excess Value portion of the Exchange Warrant will be
zero if the Excess Value is less than 15% of the fair market value of the stock
in respect of which it is issued; and the U.S. Holder's holding period in the
Excess Value portion of the Exchange Warrant will include the U.S. Holder's
holding period in the stock. However, under certain circumstances the
distribution of the Excess Value portion of the Exchange Warrant to the U.S.
Holder that is a shareholder of the Company will be treated as a distribution of
property (with a fair market value equal to the Excess Value) to which Code
Section 301 applies. For example, the distribution of the Excess Value portion
of the Exchange Warrant to the U.S. Holder that is a shareholder of the Company
will be treated as a distribution of property to which Code Section 301 applies
if the distribution (or series of distributions of which such distribution is
one) has the result of an increase in the proportionate interest of the U.S.
Holder in the assets or earnings and profits of the Company and the receipt by
another shareholder (or holder of a warrant) of money or property in a
distribution subject to Code Section 301 or 356(a)(2) (generally, a distribution
of cash or property made by the Company to a shareholder with respect to stock,
or cash or property received in otherwise tax-free exchanges that have the
effect of a dividend), even if the receipt of the Excess Value portion of the
Exchange Warrant on the one hand, and cash or property on the other hand, are
unrelated, independent, not part of a plan, or separated by up to 36 months (and
possibly longer if part of a plan). Because there are no current or accumulated
earnings and profits of the Company, if the distribution of the Excess Value
portion of the Exchange Warrant is treated as a distribution of property to
which Code Section 301 applies, the U.S. Holder will have a return of the U.S.
Holder's tax basis in the stock of the Company to the extent of the Excess
Value; capital gain (that will be long-term capital gain if the U.S. Holder has
held the stock for more than one year) to the extent the Excess Value exceeds
the U.S. Holder's tax basis in the stock of the Company; a tax basis in the
Excess Value portion of the Exchange Warrant that is equal to the Excess Value;
and a holding period in the Excess Value portion of the Exchange Warrant that
commences on the day after the distribution.
Alternatively, the exchange of the 2000 Warrant for the Exchange Warrant
could be treated as a taxable event for U.S. federal income tax purposes. In
that event, the U.S. Holder will recognize taxable gain or loss for U.S. federal
income tax purposes; such taxable gain or loss will be equal to the difference
between the fair market value of the Exchange Warrant on the date of the
exchange of the Exchange Warrant and the U.S. Holder's tax basis in its 2000
Warrant; the U.S. Holder's tax basis in the Exchange Warrant will be equal to
the fair market value of the Exchange Warrant on the date of the exchange; and
the U.S. Holder's holding period in the Exchange Warrant will commence on the
day after the exchange. Any gain or loss recognized by the U.S. Holder generally
will be long-term capital gain or loss if the U.S. Holder has held the 2000
Warrant for more than one year. The deductibility of capital losses is subject
to limitations.
Ownership, disposition, redemption and expiration of Exchange Warrants
The U.S. Holder generally will recognize gain or loss on the sale, exchange
or redemption of an Exchange Warrant, measured by the difference between the
amount realized from the sale, exchange or redemption of the Exchange Warrant,
and the tax basis of the Exchange Warrant. Any gain or loss generally will be
capital gain or loss and will be long-term if the U.S. Holder's holding period
of the Exchange Warrant exceeds one year at the time of the sale or exchange.
The U.S. Holder generally will not recognize taxable income on receipt of
shares of Common Stock upon the exercise of the Exchange Warrants, except to the
extent cash is received in lieu of a fractional share of Common Stock. Such U.S.
Holder's tax basis in the shares of Common Stock so acquired will be equal to
the sum of the tax basis and exercise price of the Exchange Warrants so
exercised, less the portion of such tax basis, if any, allocable to any
fractional share of Common Stock for which cash is received. The holding period
of a share of Common Stock so acquired generally will begin with the date on
which the Exchange Warrant is exercised.
Any U.S. Holder who receives cash in lieu of acquiring a fractional share
of Common Stock upon the exercise of the Exchange Warrants generally will
recognize gain or loss in an amount equal to the
5
difference between the amount of cash received and the U.S. Holder's allocable
tax basis in the fractional interest for which cash was received. Any gain or
loss generally will be capital gain or loss and will be long-term if the U.S.
Holder's holding period in the Exchange Warrant exceeds one year at the time of
the receipt of cash.
If the U.S. Holder's Exchange Warrants have not been previously redeemed
and expire in accordance with their terms without payment, the U.S. Holder will
recognize a loss equal to the amount of the tax basis of the Exchange Warrants.
Such expiration will be deemed a sale or exchange as of the expiration date and
the loss, if any, will be a capital loss. Such capital loss will be a long-term
capital loss if the U.S. Holder's holding period in the Exchange Warrant or
exceeds one year at the time of expiration.
Adjustments to the Exercise Price
Some adjustments to the exercise price of the Exchange Warrants may result
in a deemed distribution taxable to U.S. Holders of Exchange Warrants if the
adjustments have the effect of increasing the U.S. Holder's proportionate
interest in the earnings and profits or assets of the Company.
The information required by Item 1004(b) of Regulation M-A is contained
under the caption "Interests of Certain Persons in the Exchange Offer" in the
Offer to Exchange and is incorporated herein by reference.
Item 5. Past Contacts, Transactions, Negotiations and Agreements
Not applicable.
Item 6. Purposes of the Transaction and Plans or Proposals
The information required by Item 1006(a) of Regulation M-A is included in
the Offer to Exchange under the caption "Summary of the Exchange Offer" and "The
Exchange Offer" and is incorporated herein by reference.
There are no plans, proposals or negotiations that relate to or would
result in any of the transactions or changed enumerated in Item 1006(c) of
Regulation M-A.
Item 7. Source and Amount of Funds or Other Consideration
No funds, borrowed or otherwise, will be expended in connection with the
Exchange Offer other than funds to pay expenses incurred by the Company which
will be paid from the Company's working capital. The following is an estimate of
the expenses incurred or to be incurred by the Company in connection with the
Exchange Offer:
Filing fee $ 65
Legal 75,000
Printing and reproduction 1,000
Miscellaneous 435
All such expenses will be paid by the Company.
6
Item 8. Interest in Securities of the Subject Company
(a) The information required by Item 1008(a) of Regulation M-A is contained
under the caption "Interests of Certain Persons in the Exchange Offer" in the
Offer to Exchange and is incorporated herein by reference.
(b) None.
Item 9. Persons/Assets, Retained, Employed Compensated or Used
(a) No person has been employed or retained or will be compensated to make
solicitations or recommendations in connection with the Exchange Offer.
(b) The executive officers of the Company will provide certain ministerial
services in connection with the preparation and distribution of the Offer to
Exchange and the issuance of Exchange Warrants for any 2000 Warrants that are
exchanged in accordance with the terms of the Exchange Offer. No executive
officer will receive additional compensation for providing such services.
Item 10. Financial Statements
(a) The Company hereby incorporates by reference the financial
statements included in its Annual Report on Form 10-KSB for the year ended
December 31, 2004 (Commission File No. 001-16133)) and the financial statements
included in its Quarterly Report on Form 10-QSB for the quarter ended June 30,
2005 (Commission File No. 001-16133).
(b) Pro forma financial information is not included herein because of
the nature of the Exchange Offer.
(c) The following summary financial information specified in Rule
1-02(bb) of Regulation S-X is provided:
December 31, 2004 June 30, 2005
Current assets ..................... $ 7,338,166 $ 5,979,886
Furniture and fixtures, net ........ 13,606 10,576
Current liabilities................. 564,626 430,328
Cumulative from
inception (August
Year Ended Year Ended 5, 1988) to
December 31, 2004 December 31, 2003 December 31, 2004
Total costs and expenses............ $ 3,366,548 $ 2,306,352 $22,387,090
Net loss ........................... (3,266,332) (2,250,411) (21,471,943)
Basic and diluted loss per share.... (0.28) (0.30)
7
Cumulative From
Inception
Three Months Three Months Six Months Six Months (August 5,
Ended June 30, Ended June 30, Ended June 30, Ended June 30, 1988) to
2005 2004 2005 2004 June 30, 2005
Total costs and
expenses.......... $ 674,951 $ 862,978 $ 1,641,570 $ 1,579,462 $ 24,028,660
Net loss ......... (625,084) (826,625) (1,540,411) (1,536,159) (23,012,354)
Basic and diluted
loss per share ... (0.04) (0.07) (0.10) (0.14)
As of June 30, 2005, the book value per share of the Company's Common Stock
was $0.39.
Item 11. Additional Information
None.
Item 12. Exhibits
Exhibit No. Description
---------- -----------
(a)(1)(i) Cover letter and Offer to Exchange dated July 13, 2005
(incorporated by reference to Exhibit (a)(1)(i) to the Company's
Schedule TO (File No. 5-60851)).
(a)(1)(ii) Form of Letter of Transmittal (incorporated by reference to
Exhibit (a)(1)(ii) to the Company's Schedule TO (File No.
5-60851)).
(a)(1)(iii) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated by reference to
Exhibit (a)(1)(iii) to the Company's Schedule TO (File No.
5-60851)).
(a)(1)(iv) Form of Letter to Clients (incorporated by reference to Exhibit
(a)(1)(iv) to the Company's Schedule TO (File No. 5-60851)).
(a)(1)(v) Form of Notice of Guaranteed Delivery (incorporated by reference
to Exhibit (a)(1)(v) to the Company's Schedule TO (File No.
5-60851)).
(a)(1)(vi) Notice of Extension of Offer to Exchange dated August 15, 2005
(incorporated by reference to Exhibit (a)(1)(vi) to Amendment
No. 1 to the Company's Schedule TO (File No. 5-60851)).
(a)(1)(vii) Notice of Extension of Offer to Exchange dated August 25, 2005.
Item 13. Information Required by Schedule 13E-3.
Not applicable.
8
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 2 to the Schedule TO is
true, complete and correct.
Delcath Systems, Inc.
By: /s/ M. S. Koly
--------------------------------
President and Chief Executive
Officer
Date: August 26, 2005
EXHIBIT INDEX
Exhibit No. Description
---------- -----------
(a)(1)(i) Cover letter and Offer to Exchange dated July 13, 2005
(incorporated by reference to Exhibit (a)(1)(i) to the Company's
Schedule TO (File No. 5-60851)).
(a)(1)(ii) Form of Letter of Transmittal (incorporated by reference to
Exhibit (a)(1)(ii) to the Company's Schedule TO (File No.
5-60851)).
(a)(1)(iii) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated by reference to
Exhibit (a)(1)(iii) to the Company's Schedule TO (File No.
5-60851)).
(a)(1)(iv) Form of Letter to Clients (incorporated by reference to Exhibit
(a)(1)(iv) to the Company's Schedule TO (File No. 5-60851)).
(a)(1)(v) Form of Notice of Guaranteed Delivery (incorporated by reference
to Exhibit (a)(1)(v) to the Company's Schedule TO (File No.
5-60851)).
(a)(1)(vi) Notice of Extension of Offer to Exchange dated August 15, 2005
(incorporated by reference to Exhibit (a)(1)(vi) to Amendment
No. 1 to the Company's Schedule TO (File No. 5-60851)).
(a)(1)(vii) Notice of Extension of Offer to Exchange dated August 25, 2005.
DELCATH SYSTEMS, INC.
1100 SUMMER STREET
3rd Floor
Stamford, Connecticut 06905
NOTICE OF EXTENSION
OF
OFFER TO EXCHANGE
ITS
2005 REDEEMABLE COMMON STOCK PURCHASE WARRANTS - SERIES A
FOR ALL OF ITS OUTSTANDING
COMMON STOCK PURCHASE WARRANTS ISSUED IN 2000
August 26, 2005
NOTICE IS HEREBY GIVEN that DELCATH SYSTEMS, INC., a Delaware corporation
(the "Company") has exercised its right unilaterally to extend its offer to
exchange (the "Exchange Offer") any or all of the 1,200,000 outstanding
Redeemable Common Stock Purchase Warrants issued by it in 2000 (the "2000
Warrants") for an equal number of 2005 Redeemable Common Stock Purchase Warrants
- - Series A.
As extended, the Exchange Offer will expire at 5:00 P.M., New York time, on
September 9, 2005, unless the Company, in its sole discretion, extends it (such
date, as extended if applicable, the "Expiration Date").
Reference is made to the Company's Offer to Exchange dated July 13, 2005,
and to the Schedule TO filed with the Securities and Exchange Commission on that
date and the amendments thereto, for a more complete description of the terms
and conditions of the Exchange Offer. Any holder of 2000 Warrants who wishes to
obtain additional copies of the Offer to Exchange and related documents should
contact the Company at 1100 Summer Street, Stamford, Connecticut 06905;
telephone: (203) 323-8668.
Any beneficial owner of 2000 Warrants who holds such 2000 Warrants in
street name and who wishes to exchange 2000 Warrants for Exchange Warrants
should contact his bank, broker or other intermediary for information about
participating in the Exchange Offer. Use of the Notice of Guaranteed Delivery
procedure will be permitted with respect to the Exchange Offer as extended.
An investment in the Exchange Warrants involves various risks. Please see
"RISK FACTORS - Risks Related to an Investment in the Exchange Warrants" in the
Offer to Exchange.
If you have any questions concerning the exchange offer or if you need
assistance in completing the Letter of Transmittal, please contact American
Stock Transfer & Trust Company at (800) 937-5449 or the undersigned at (203)
323-8668.
Very truly yours,
DELCATH SYSTEMS, INC.
By: M. S. KOLY
--------------------------------
M. S. Koly
President and Chief Executive Officer