UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES OF SMALL BUSINESS ISSUERS
Under Section 12(b) or (g) of The Securities Exchange Act of 1934
Delcath Systems, Inc.
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(Name of Small Business Issuer in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
06-1245881
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(I.R.S. Employer Identification No.)
06905
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(ZipCode)
Issuer's telephone number: (203) 323-8668
Securities to be registered pursuant to Section 12(b) of the Act.
Title of each class
None
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Name of each exchange on which registered
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Securities to be registered pursuant to Section 12(g) of the Act.
2005 Redeemable Common Stock Purchase Warrants - Series A
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(Title of Class)
PART I
Item 1. Description of Business
The information required by Item 101 of Regulation S-B is incorporated
herein by reference to Part I, Item 1 of the Annual Report on Form 10-KSB of
Delcath Systems, Inc. (the "Company") for the year ended December 31, 2004 (File
No. 001-16133) (the "2004 10-KSB").
Item 2. Management's Discussion and Analysis or Plan of Operations
The information required by Item 103 of Regulation S-B is incorporated
herein by reference to Part II, Item 6 of the 2004 10-KSB.
Item 3. Description of Property
The information required by Item 102 of Regulation S-B is incorporated
herein by reference to Part I, Item 2 of the 2004 10-KSB.
Item 4. Security Ownership of Certain Beneficial Owners and Management
The information required by Item 403 of Regulation S-B is incorporated
herein by reference to the information appearing under the caption "Security
Ownership by Management and Principal Stockholders" in the Company's definitive
Proxy Statement dated April 29, 2005 distributed in connection with its 2005
Annual Meeting of Stockholders (Commission File No. 001-16133) (the "2005 Proxy
Statement").
Item 5. Directors and Executive Officers, Promoters and Control Persons
The information required by Item 401 of Regulation S-B is incorporated
herein by reference to the information appearing under the caption "Election of
Directors - Background of Nominees for the Board of Directors" in the 2005 Proxy
Statement.
Item. 6. Executive Compensation
The information required by Item 402 of Regulation S-B is incorporated
herein by reference to the information appearing under the caption "Compensation
and Other Information Concerning Directors and Officers" in the 2005 Proxy
Statement.
Item 7. Certain Relationships and Related Transactions
The information required by Item 404 of Regulation S-B is incorporated
herein by reference to the information appearing in note (1) to the table under
the caption
2
"Compensation and Other Information Concerning Directors and Officers - Summary
Compensation Table" in the 2005 Proxy Statement.
Item 8. Description of Securities
(a) Not applicable.
(b) Not applicable
(c) The information required by Item 202(c) with respect to the Company's
2005 Redeemable Common Stock Purchase Warrants - Series A is incorporated herein
by reference to the information contained under the caption "Description of the
Company's Capital Stock and Other Securities - Description of the Exchange
Warrants" in the Company's Offer to Exchange dated July 13, 2005 filed as
Exhibit (a)(1)(i) to the Company's Schedule TO-I (Commission File No. 5-60851)).
PART II
Item 1. Market Price of and Dividends on the Registrant's Common Equity and
Related Stockholder Matters
The information required by Item 201 of Regulation S-B is incorporated
herein by reference to Part II, Item 5 of the 2004 10-KSB.
Item 2. Legal Proceedings
The information required by Item 103 of Regulation S-B is incorporated
herein by reference to Part I, Item 3 of the 2004 10-KSB.
Item 3. Changes in and Disagreements with Accountants
The information required by Item 102 of Regulation S-B is incorporated
herein by reference to the Company's Current Report on Form 8-K dated April 25,
2005, as amended by an amendment thereto filed on May 2, 2005 (Commission File
No. 001-16133).
Item 4. Recent Sales of Unregistered Securities
The information required by Item 701 of Regulation S-B is incorporated
herein by reference to the following:
1. Item 3.02 of the Company's Current Report on Form 8-K dated September
9, 2005 (Commission File No. 001-16133);
2. Part II, Item 2 of the Company's Quarterly Report on Form 10-QSB for
the quarter ended June 30, 2005 (Commission File No. 001-16133);
3
3. Items 1.01 and 3.02 of the Company's Current Report on Form 8-K dated
November 24, 2004 (Commission File No. 001-16133);
4. Part II, Item 2 of the Company's Quarterly Report on Form 10-QSB for
the quarter ended September 30, 2004 (Commission File No. 001-16133);
5. Part II, Item 2 of the Company's Quarterly Report on Form 10-QSB for
the quarter ended June 30, 2004 (Commission File No. 001-16133); and
6. Part II, Item 2 of the Company's Quarterly Report on Form 10-QSB for
the quarter ended March 31, 2004 (Commission File No. 001-16133).
Item 5. Indemnification of Directors and Officers
The information required by Item 702 of Regulation S-B is incorporated
herein by reference to Item 15 of the Company's Registration Statement on Form
S-3 (No. 333-127629) filed on August 17, 2005.
PART F/S
The information required by Item 301 of Regulation S-B is incorporated
herein by reference to Part II, Item 7 of the Company's Annual Report on Form
10-KSB for the year ended December 31, 2005 (Commission File No. 001-16133) and
to Part I, Item 1 of the Company's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2005 (Commission File No. 001-16133).
PART III
Item 1. Index to Exhibits
Exhibit No. Description
3.1 Amended and Restated Certificate of Incorporation of Delcath
Systems, Inc., as amended to June 30, 2005. (incorporated by
reference to Exhibit 3(i) to Registrant's Quarterly Report on
Form 10-QSB for the quarter ended June 30, 2005 (Commission 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
Exhibit No. Description
4.1 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)).
4.2 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)).
4.3 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 Registrant's Registration
Statement on Form SB-2 (Registration No. 333-39470)).
4.4 Form of Warrant to Purchase Shares of Common Stock issued
pursuant to the Common Stock Purchase Agreement dated as of March
19, 2004 (incorporated by reference to Exhibit 4 to Registrant's
Current Report on Form 8-K dated March 19, 2004 (Commission File
No,. 001-16133)).
4.5 Form of Series A Warrant to Purchase Shares of Common Stock dated
as of November 24, 2004 (incorporated by reference to Exhibit 4.1
to Registrant's Current Report on Form 8-K dated November 24,
2004 (Commission File No. 001-16133)).
4.6 Form of Series B Warrant to Purchase Shares of Common Stock dated
as of November 24, 2004 (incorporated by reference to Exhibit 4.2
to Registrant's Current Report on Form 8-K dated November 24,
2004 (Commission File No. 001-16133)).
4.7 Form of Series C Warrant to Purchase Shares of Common Stock dated
as of November 24, 2004 (incorporated by reference to Exhibit 4.3
to Registrant's Current Report on Form 8-K dated November 24,
2004 (Commission File No. 001-16133)).
4.8 Form of Series D Warrant to Purchase Shares of Common Stock dated
as of December 7, 2004 (incorporated by reference to Exhibit 4.10
to Registrant's Registration Statement on Form S-3 (Registration
No. 333-121681)).
5
Exhibit No. Description
4.9 Warrant Agreement dated as of July 22, 2005 between the
Registrant and American Stock Transfer & Trust Company, as
warrant agent, together with the form of 2005 Redeemable Common
Stock Purchase Warrants - Series A (incorporated by reference to
Exhibit 4 to Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2005 (Commission File No. 001-16133)).
10.1 1992 Incentive Stock Option Plan (incorporated by reference to
Exhibit 10.1 to Registrant's Registration Statement on Form SB-2
(Registration Number 333-39470)).
10.2 2000 Stock Option Plan (incorporated by reference to Exhibit 10.3
to Registrant's Registration Statement on Form SB-2 (Registration
No. 333-39470)).
10.3 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)).
10.4 2004 Stock Incentive Plan (incorporated by reference to Appendix
B to Registrant's definitive Proxy Statement dated April 29, 2004
(Commission File No. 001-16133)).
10.5 Employment Agreement, as amended by Amendment No. 1 thereto,
between the Registrant and M. S. Koly (incorporated by reference
to Exhibit 10.1 to Registrant's Quarterly Report on Form 10-QSB
for the quarter ended June 30, 2005 (Commission File No.
001-16133)).
10.6 Employment Agreement, effective as of October 1, 2003, by and
among Delcath Systems, Inc. and Samuel Herschkowitz (incorporated
by reference to Exhibit 10.6 to Registrant's Annual Report on
Form 10-KSB for the year ended December 31, 2003 (Commission File
No. 001-16133)).
10.7 Common Stock Purchase Agreement dated as of March 19, 2004 by and
among Delcath Systems, Inc. and the Purchasers Listed on Exhibit
A thereto (incorporated by reference to Exhibit 10.1 to
Registrant's Current Report on Form 8-K dated March 19, 2004
(Commission File No. 001-16133)).
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Exhibit No. Description
10.8 Registration Rights Agreement dated as of March 19, 2004 by and
among Delcath Systems, Inc. and the Purchasers Listed on Schedule
I thereto (incorporated by reference to Exhibit 10.2 to
Registrant's Current Report on Form 8-K dated March 19, 2004
(Commission File No. 001-16133)).
10.9 Common Stock Purchase Agreement dated as of November 24, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Exhibit A thereto (incorporated by reference to Exhibit 10.1 to
Registrant's Current Report on Form 8-K dated November 24, 2004
(Commission File No. 001-16133)).
10.10 Registration Rights Agreement dated as of November 24, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Schedule I thereto (incorporated by reference to Exhibit 10.2 to
Registrant's Current Report on Form 8-K dated November 24, 2004
(Commission File No. 001-16133)).
10.11 Common Stock Purchase Agreement dated as of December 7, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Exhibit A thereto (incorporated by reference to Exhibit 10.5 to
Registrant's Registration Statement on Form S-3 (Registration No.
333-121681)).
10.12 Registration Rights Agreement dated as of December 7, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Schedule I thereto (incorporated by reference to Exhibit 10.6 to
Registrant's Registration Statement on Form S-3 (Registration No.
333-121681)).
10.13 Form of Incentive Stock Option Agreement under the Registrant's
2004 Stock Incentive Plan (incorporated by reference to Exhibit
10.2 to Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2005 (Commission File No. 001-16133)).
10.14 Form of Nonqualified Stock Option Agreement under the
Registrant's 2004 Stock Incentive Plan (incorporated by reference
to Exhibit 10.3 to Registrant's Quarterly Report on Form 10-QSB
for the quarter ended June 30, 2005 (Commission File No.
001-16133)).
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Exhibit No. Description
10.15 Form of Stock Grant Agreement under the Registrant's 2004 Stock
Incentive Plan (incorporated by reference to Exhibit 10.4 to
Registrant's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 2005 (Commission File No. 001-16133)).
14 Code of Business Conduct (incorporated by reference to Exhibit 14
to Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2003 (Commission File No. 001-16133)).
16 Letter of Eisner LLP (incorporated by reference to Exhibit 16 to
Amendment No. 1 to Registrant's Current Report on Form 8-K dated
April 25, 2005 (Commission File No. 001-16133)).
Item 2. Description of Exhibits
Not applicable.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
DELCATH SYSTEMS, INC.
By: /s/ M. S. KOLY
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M. S. Koly
President and Chief Executive
Officer
October 4, 2005
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EXHIBIT INDEX
Exhibit No. Description
3.1 Amended and Restated Certificate of Incorporation of Delcath
Systems, Inc., as amended to June 30, 2005. (incorporated by
reference to Exhibit 3(i) to Registrant's Quarterly Report on
Form 10-QSB for the quarter ended June 30, 2005 (Commission 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 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)).
4.2 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)).
4.3 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 Registrant's Registration
Statement on Form SB-2 (Registration No. 333-39470)).
4.4 Form of Warrant to Purchase Shares of Common Stock issued
pursuant to the Common Stock Purchase Agreement dated as of March
19, 2004 (incorporated by reference to Exhibit 4 to Registrant's
Current Report on Form 8-K dated March 19, 2004 (Commission File
No,. 001-16133)).
4.5 Form of Series A Warrant to Purchase Shares of Common Stock dated
as of November 24, 2004 (incorporated by reference to Exhibit 4.1
to Registrant's Current Report on Form 8-K dated November 24,
2004 (Commission File No. 001-16133)).
Exhibit No. Description
4.6 Form of Series B Warrant to Purchase Shares of Common Stock dated
as of November 24, 2004 (incorporated by reference to Exhibit 4.2
to Registrant's Current Report on Form 8-K dated November 24,
2004 (Commission File No. 001-16133)).
4.7 Form of Series C Warrant to Purchase Shares of Common Stock dated
as of November 24, 2004 (incorporated by reference to Exhibit 4.3
to Registrant's Current Report on Form 8-K dated November 24,
2004 (Commission File No. 001-16133)).
4.8 Form of Series D Warrant to Purchase Shares of Common Stock dated
as of December 7, 2004 (incorporated by reference to Exhibit 4.10
to Registrant's Registration Statement on Form S-3 (Registration
No. 333-121681)).
4.9 Warrant Agreement dated as of July 22, 2005 between the
Registrant and American Stock Transfer & Trust Company, as
warrant agent, together with the form of 2005 Redeemable Common
Stock Purchase Warrants - Series A (incorporated by reference to
Exhibit 4 to Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2005 (Commission File No. 001-16133)).
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 2000 Stock Option Plan (incorporated by reference to Exhibit 10.3
to Registrant's Registration Statement on Form SB-2 (Registration
No. 333-39470)).
10.3 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)).
10.4 2004 Stock Incentive Plan (incorporated by reference to Appendix
B to Registrant's definitive Proxy Statement dated April 29, 2004
(Commission File No. 001-16133)).
10.5 Employment Agreement, as amended by Amendment No. 1 thereto,
between the Registrant and M. S. Koly (incorporated by reference
to Exhibit 10.1 to Registrant's Quarterly Report on Form 10-QSB
for the quarter ended June 30, 2005 (Commission File No.
001-16133)).
Exhibit No. Description
10.6 Employment Agreement, effective as of October 1, 2003, by and
among Delcath Systems, Inc. and Samuel Herschkowitz (incorporated
by reference to Exhibit 10.6 to Registrant's Annual Report on
Form 10-KSB for the year ended December 31, 2003 (Commission File
No. 001-16133)).
10.7 Common Stock Purchase Agreement dated as of March 19, 2004 by and
among Delcath Systems, Inc. and the Purchasers Listed on Exhibit
A thereto (incorporated by reference to Exhibit 10.1 to
Registrant's Current Report on Form 8-K dated March 19, 2004
(Commission File No. 001-16133)).
10.8 Registration Rights Agreement dated as of March 19, 2004 by and
among Delcath Systems, Inc. and the Purchasers Listed on Schedule
I thereto (incorporated by reference to Exhibit 10.2 to
Registrant's Current Report on Form 8-K dated March 19, 2004
(Commission File No. 001-16133)).
10.9 Common Stock Purchase Agreement dated as of November 24, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Exhibit A thereto (incorporated by reference to Exhibit 10.1 to
Registrant's Current Report on Form 8-K dated November 24, 2004
(Commission File No. 001-16133)).
10.10 Registration Rights Agreement dated as of November 24, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Schedule I thereto (incorporated by reference to Exhibit 10.2 to
Registrant's Current Report on Form 8-K dated November 24, 2004
(Commission File No. 001-16133)).
10.11 Common Stock Purchase Agreement dated as of December 7, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Exhibit A thereto (incorporated by reference to Exhibit 10.5 to
Registrant's Registration Statement on Form S-3 (Registration No.
333-121681)).
10.12 Registration Rights Agreement dated as of December 7, 2004 by
and among Delcath Systems, Inc. and the Purchasers Listed on
Schedule I thereto (incorporated by reference to Exhibit 10.6 to
Registrant's Registration Statement on Form S-3 (Registration No.
333-121681)).
Exhibit No. Description
10.13 Form of Incentive Stock Option Agreement under the Registrant's
2004 Stock Incentive Plan (incorporated by reference to Exhibit
10.2 to Registrant's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 2005 (Commission File No. 001-16133)).
10.14 Form of Nonqualified Stock Option Agreement under the
Registrant's 2004 Stock Incentive Plan (incorporated by reference
to Exhibit 10.3 to Registrant's Quarterly Report on Form 10-QSB
for the quarter ended June 30, 2005 (Commission File No.
001-16133)).
10.15 Form of Stock Grant Agreement under the Registrant's 2004 Stock
Incentive Plan (incorporated by reference to Exhibit 10.4 to
Registrant's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 2005 (Commission File No. 001-16133)).
14 Code of Business Conduct (incorporated by reference to Exhibit 14
to Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 2003 (Commission File No. 001-16133)).
16 Letter of Eisner LLP (incorporated by reference to Exhibit 16 to
Amendment No. 1 to Registrant's Current Report on Form 8-K dated
April 25, 2005 (Commission File No. 001-16133)).