SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934
(AMENDMENT NO. )
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|X| Soliciting Material Pursuant to ss.240.14a-12
DELCATH SYSTEMS, INC.
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(Name of Registrant as Specified In Its Charter)
LADDCAP VALUE PARTNERS LP
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Registrant)
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LADDCAP VALUE PARTNERS LP
650 FIFTH AVENUE, SUITE 600
NEW YORK, NEW YORK 10019
(212) 259-2070
May 25, 2006
Dear Fellow Delcath Stockholders:
We are Delcath Systems, Inc.'s largest stockholder, owning more than
2,000,000 shares, which represents over 10% of the outstanding stock. We own
more Delcath shares than all of Delcath's directors and officers combined.
For more than a year, we have been trying to engage in a meaningful
dialogue with Delcath's board and management to explore various ways that we can
work with Delcath in enhancing value for all stockholders. To our surprise,
Delcath's Board and its President, Mr. M.S. Koly, have effectively rejected our
efforts.
Because of Delcath's and Mr. Koly's refusal to engage in a meaningful
dialogue, we felt that we were left with no choice but to publicly state our
opinions concerning Delcath via alternate means (the cost of which will be borne
exclusively by us) and to solicit WITHHOLD votes against Mark Corigliano and
Victor Nevins, the directors currently standing for reelection at Delcath's
annual meeting. Additionally, we are soliciting SUPPORT FOR our stockholder
proposal that Delcath retain a nationally recognized investment banking and/or
merger advisory firm.
To assist you in understanding our position, outlined in this letter
are some of the events and facts that have led us to question the direction that
Delcath is taking and the people who are leading it.
LACK OF RELEVANT EXPERIENCE BY THE NOMINEES FOR DELCATH'S BOARD
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According to Delcath, it is
a development stage company.... [whose] objectives are to
establish the use of the Delcath system as the standard
technique for delivering chemotherapy agents to the liver and
to expand the Delcath technology so that it may be used in the
treatment of other liver diseases and of [other] cancers.
As a development stage public company, we believe that Delcath should
have independent board members who have experience with development stage public
companies and/or the medical device industry that are able to provide expertise,
guidance and oversight. In our opinion, a review of the credentials of Messrs.
Corigliano and Nevins, as published by Delcath in its proxy statement, both of
whom were nominated for reelection by Delcath's existing board of directors to
serve until 2009, supports our contention:
Mark A. Corigliano, 42, ..... has been Managing Director of Coast
Cypress Associates, a company that designs and implements microcomputer
systems. Since 1993, he has served as Officer and Manager of Special
Projects for DC Associates, a restaurant management organization
located in New York City. Mr. Corigliano also serves as Treasurer of
Rolls Royce Owners' Club, a non-profit organization with 8,500 members
worldwide.
Victor Nevins, 84, ..... has been Chief Executive Officer of Max
Abramson Enterprises, a medium size conglomerate headquartered in
Flushing, New York. He also is a licensed real estate broker and, since
1962, has been the owner of Victor Nevins Realty. He currently is a
Director and past President of the Flushing Chamber of Commerce and a
Director of the Flushing Merchants Association.
Messrs. Corigliano and Nevins have experience in microcomputers, restaurant
management, and real estate, hardly the credentials that we believe are needed
to enhance the value of Delcath. Underscoring the need for independent board
members who have experience with development stage public companies and/or the
medical device industry, the three-year terms for Messrs. Corigliano and Nevins
will likely coincide with a critical period in Delcath's development.
WE ARE GOING TO WITHHOLD OUR VOTE FOR THE REELECTION OF MARK CORIGLIANO
AND VICTOR NEVINS, THE TWO DIRECTORS WHO ARE STANDING FOR REELECTION FOR TERMS
THROUGH 2009 AT DELCATH'S ANNUAL MEETING, AND WE RECOMMEND ALL LIKE MINDED
STOCKHOLDERS DO THE SAME. ON THE LAST PAGE OF THIS LETTER, PLEASE FIND IMPORTANT
INFORMATION CONCERNING VOTING PROCEDURES FOR YOUR DELCATH SHARES.
LACK OF EFFECTIVE OVERSIGHT BY DELCATH'S BOARD - KOLY'S ROLLS-ROYCE LITIGATION
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Delcath and its President, Mr. Koly, are co-plaintiffs in a lawsuit
pending in the United States District Court for the District of Connecticut
(Case No.: 305 CV 1281 (JCH)). According to the complaint, Mr. Koly, Mr.
Corigliano, and the defendant are all members of the Rolls-Royce Owners Club,
and certain libelous and slanderous statements were made in connection with
internal Rolls-Royce club operations. Mr. Koly, in the complaint, as amended,
states that his "BUSINESS AND PROFESSIONAL REPUTATION HAS BEEN SEVER[E]LY AND
PERMANENTLY INJURED, AND [THAT HE] HAS SUFFERED HUMILIATION, ANXIETY, AND MENTAL
ANGUISH."
Additionally, Mr. Koly in the complaint states that "DELCATH HAS LOST
STANDING IN THE COMMUNITY, WHICH HAS DAMAGED DELCATH'S ABILITY TO SECURE FUTURE
INVESTORS AND INVESTMENT CAPITAL." We believe that the lawsuit and the
statements in the complaint concerning Mr. Koly's current incapacity and the
impact of Mr. Koly's and Mr. Corigliano's personal membership in the Rolls-Royce
Owners Club upon Delcath are troubling.
-2-
We think that all Delcath stockholders should be concerned that Delcath
is being lead by a person, who by his own statements in the complaint, says that
his, "business and professional reputation has been sever[e]ly and permanently
injured" and who continues to suffer from "extreme mental anguish." While we
certainly do not wish any ill-will towards Mr. Koly, in light of his
self-proclaimed diminished capacity, we think that he should either voluntarily
step aside or the board should re-evaluate his current capacity to serve and
take appropriate action.
Additionally, we are troubled that Mr. Koly's and Mr. Corigliano's
personal activities, being members in a luxury car enthusiasts club, have so
negatively affected Delcath in that Delcath's ability to "secure future
investors and investment capital" has been negatively impacted.
Moreover, the Rolls-Royce litigation concerns us as a stockholder
because:
o Delcath has not disclosed the litigation to its stockholders. Mr. Koly
has stated that Delcath's ability to secure future investment capital
has been damaged, yet neither Mr. Koly nor Delcath's board has caused
this material information to be disclosed to Delcath's stockholders.
o We are concerned that Delcath's treasury may be funding what ostensibly
appears to be a personal lawsuit by Mr. Koly. We believe that the board
should disclose to the stockholders the costs of this lawsuit and the
arrangement between Mr. Koly and Delcath, if any, to fund the
prosecution of the Rolls-Royce litigation.
In our opinion, this litigation is an example of the board's lack of
effective independent oversight of Delcath. We believe that Delcath's board has
not properly served the interests of Delcath's stockholders by allowing Mr.
Koly's Rolls-Royce litigation to continue without so much as disclosure to
Delcath's stockholders.
It might also be of interest to you that Delcath recently refused to
provide any information to us about this lawsuit, claiming that such request was
"part of [Laddcap's] ongoing efforts to harass Delcath." We question Delcath's
motives in refusing to furnish the requested information about Delcath and its
use of resources in light of the statements made in the complaint.
WE ARE GOING TO WITHHOLD OUR VOTE FOR THE REELECTION OF MARK CORIGLIANO
AND VICTOR NEVINS, THE TWO DIRECTORS WHO ARE STANDING FOR REELECTION FOR TERMS
THROUGH 2009 AT DELCATH'S ANNUAL MEETING, AND WE RECOMMEND ALL LIKE MINDED
STOCKHOLDERS DO THE SAME. ON THE LAST PAGE OF THIS LETTER, PLEASE FIND IMPORTANT
INFORMATION CONCERNING VOTING PROCEDURES FOR YOUR DELCATH SHARES.
-3-
LACK OF EFFECTIVE OVERSIGHT BY DELCATH'S BOARD - THE $5,000 BONUS PAYMENTS
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According to Delcath's current proxy, each of the "independent"
directors, Messrs. Corigliano, Isdaner and Nevins "received a bonus of $5,000
that was paid in 2004" for unspecified "services." This $5,000 cash bonus was IN
ADDITION to the fees and expense reimbursements to which Messrs. Corigliano,
Isdaner and Nevins were entitled.
We think that the payment of cash bonuses to "independent" directors
for unspecified "services" is extremely unusual especially in light of the fact
that Messrs. Corigliano, Isdaner and Nevins have already been compensated for
the services they have rendered to Delcath. Moreover, we believe that the
payment of cash bonuses to "independent" directors in the same year that Delcath
LOST over $3,000,000 is troubling and inappropriate.
WE ARE GOING TO WITHHOLD OUR VOTE FOR THE REELECTION OF MARK CORIGLIANO
AND VICTOR NEVINS, THE TWO DIRECTORS WHO ARE STANDING FOR REELECTION FOR TERMS
THROUGH 2009 AT DELCATH'S ANNUAL MEETING, AND WE RECOMMEND ALL LIKE MINDED
STOCKHOLDERS DO THE SAME. ON THE LAST PAGE OF THIS LETTER, PLEASE FIND IMPORTANT
INFORMATION CONCERNING VOTING PROCEDURES FOR YOUR DELCATH SHARES.
SUPPORT FOR STOCKHOLDER PROPOSAL
--------------------------------
We are soliciting support for our stockholder proposal, which
recommends to Delcath's board that it retain a nationally recognized investment
banking and/or merger advisory firm.
We believe that Delcath's board lacks any material independent
experience regarding development stage public companies and/or the medical
device industry. As stated above, the two directors standing for reelection this
upcoming annual meeting have zero discernable or stated experience with
development stage public companies or with the medical device industry.
Unfortunately, the third independent director, Daniel Isdaner, also has a lack
of stated experience in these areas. As published by Delcath in its proxy
statement:
Daniel Isdaner, 41, ..... is the current owner and director of Camp
Mataponi, Inc., a children's residential summer camp located in Naples,
Maine. Camp Mataponi is responsible for 350 children and 150 employees.
In addition to Camp Mataponi, Mr. Isdaner serves as one of the
directors of Anchor Commercial Bank located in Juno Beach, Florida
where he is involved with the audit, compliance and loan committees.
[Anchor Commercial Bank is a private retail bank in Florida with one
branch].
We think it is appropriate that Delcath avail itself of true expertise.
We submitted a stockholder proposal that asked Delcath to do just that. However,
as with our requests to participate in a dialogue with management, Delcath has
rejected the proposal. We think that gaining the perspective of qualified
financial and medical device industry professionals would provide Delcath's
directors with information and options that it otherwise would not be provided.
In our view, Delcath can only benefit from such advice.
-4-
Moreover, the stockholder proposal does not compel the board to sell or
merge Delcath now or at any time in the future. In contrast, approval of the
stockholder proposal merely allows Delcath and the board to be provided with
expert advice from one of the many highly regarded investment banking firms with
expertise with development stage public companies and/or the medical device
industry. In our experience, the cost/benefit ratio of retaining such a firm
will manifest itself in many ways including more favorable capital raising
opportunities, more visibility with research analysts, and more visibility
within the medical device industry.
WE ARE GOING TO VOTE FOR PROPOSAL # 2 AND URGE ALL LIKE MINDED
STOCKHOLDERS TO DO THE SAME. ON THE LAST PAGE OF THIS LETTER, PLEASE FIND
IMPORTANT INFORMATION CONCERNING VOTING PROCEDURES FOR YOUR DELCATH SHARES.
In connection with our solicitation, we expect to file a preliminary
proxy statement with the Securities and Exchange Commission ("SEC"). INVESTORS
AND SECURITY HOLDERS ARE URGED TO READ THE PRELIMINARY PROXY STATEMENT BECAUSE
IT WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be
able to obtain a free copy of the preliminary proxy statement when it becomes
available with the SEC at the SEC's website at www.sec.gov. The preliminary
proxy statement when it becomes available may also be obtained free of charge
from our offices at the address set forth above.
Laddcap Value Partners LP ("Laddcap"), its affiliates their respective
partners, members, officers and employees and Robert Ladd (collectively, the
"Laddcap Participants") may be deemed to be participants in the solicitation of
Delcath's stockholders. Information about the Laddcap Participants is set forth
in a Schedule 13D, as amended which has been filed with the SEC. Information
about Delcath and its directors and executive officers, and their ownership of
Delcath securities, is set forth in the proxy statement for the 2006 Annual
Meeting of Shareholders of Delcath, which was filed with the SEC on April 24,
2006.
Sincerely,
LADDCAP VALUE PARTNERS LP
By: /s/ Robert Ladd
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Robert Ladd, in his capacity as the managing member of
Laddcap Value Associates LLC, the general partner of
Laddcap Value Partners LP
-5-
YOUR VOTE IS VERY IMPORTANT!
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o Please vote to WITHHOLD your votes from Delcath's two nominees, Mark
Corigliano and Victor Nevins on Delcath's proxy card today.
o Please vote FOR Proposal #2 on Delcath's proxy card today.
o Even if you have previously voted on Delcath's proxy card, you still
have every right to change your vote. But you must act quickly. Please
remember - only your LATEST DATED PROXY will determine how your shares
are to be voted at the Annual Meeting.
o If any of your shares are held in the name of a bank, broker or other
nominee, please contact the party responsible for your account and
instruct them to vote WITHHOLD on the Delcath's two nominees and to
vote FOR Proposal #2 on the Delcath's proxy card ASAP.
o If you have a copy of the Voting Instruction Form that was sent to you
by your bank or broker, you can change your vote by calling the
toll-free number on that form or by using the Internet instructions
also located on the Voting Instruction Form.
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If you have questions or need assistance in voting your shares, please
call:
The Altman Group, Inc.
Toll Free: (800) 581-5375
Banks and Brokerage Firms please call: (201) 806-7300