Schedule 13D Amendment No. 12
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
SCHEDULE
13D
Under
the Securities Exchange Act of 1934
(Amendment
No. 12)*
DELCATH SYSTEMS,
INC.
(Name
of
Issuer)
Common
Stock, $0.01 par value per share
(Title
of
Class of Securities)
24661P104
(CUSIP
Number)
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with
a copy to:
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Mr.
Robert Ladd
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Todd
S. Garber, Esq.
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Laddcap
Value Advisors LLC
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Lowey
Dannenberg Bemporad & Selinger, P.C.
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650
Fifth Avenue, Suite 600
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One
North Lexington Avenue
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New
York, New York 10019
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White
Plains, New York 10601
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(212)
259-2070
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(914)
997-0500
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(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications)
October
8, 2006
(Date
of
Event which Requires Filing of this Statement)
If
the
filing person has previously filed a statement on Schedule 13G to report the
acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box. o
Note:
Schedules filed in paper format shall include a signed original and five copies
of the schedule, including all exhibits. See Rule 13d-7 for other parties to
whom copies are to be sent.
*
The
remainder of this cover page shall be filled out for a reporting person’s
initial filing on this form with respect to the subject class of securities,
and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The
information required on the remainder of this cover page shall not be deemed
to
be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934
(“Act”) or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act (however, see the
Notes).
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1.
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NAME
OF REPORTING PERSON
I.R.S.
IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY)
Robert Ladd
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2.
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CHECK
THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
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3.
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SEC
USE ONLY
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4.
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SOURCE
OF FUNDS
WC
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5.
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CHECK
BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS
2(D)
OR 2(E)
Not
Applicable
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6.
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CITIZENSHIP
OR PLACE OF ORGANIZATION
United
States
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NUMBER
OF
SHARES BENEFICIALLY OWNED BY EACH
REPORTING
PERSON
WITH
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7.
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2,390,498*
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8.
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0*
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9.
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SOLE
DISPOSITIVE POWER
2,390,498*
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10.
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0*
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11.
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AGGREGATE
AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
2,390,498*
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12.
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CHECK
BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES
o
Not
Applicable
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13.
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PERCENT
OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.0%*
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14.
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IN
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*Laddcap
Value Partners LP, a Delaware limited partnership (“Laddcap”), is the beneficial
holder of 2,390,498 shares (the “Shares”) of the common stock, par value $0.01
per share (“Common Stock”), of Delcath Systems, Inc. (the “Company”). Robert
Ladd possesses the sole power to vote and the sole power to direct the
disposition of the shares. On October 8, 2006 Robert Ladd on behalf of Laddcap
(collectively “Ladd”) entered into an agreement with the Company (the
“Settlement Agreement”) under which Laddcap has the immediate right to receive
up to 100,000 additional shares of Common Stock. See Settlement Agreement
filed
as Exhibit 10 hereto. Prior to October 8, 2006, Ladd owned 2,290,498 shares
of
common stock. Thus, as of October 8, 2006, for the purposes of Reg. Section
240.13d-3, Ladd is deemed to beneficially own 2,390,498 shares of Common
Stock,
or 12.0% of the total shares of Common Stock deemed issued and outstanding
as of
that date.
Item
4.
Purpose
of Transaction.
Item
4 is
hereby amended and restated in its entirety as follows:
Ladd
acquired and holds the Shares reported in this Schedule 13D for investment
purposes. Mr. Ladd intends to evaluate the performance of the Shares as an
investment of Laddcap in the ordinary course of business. Laddcap pursues
an
investment objective that seeks capital appreciation. In pursuing this
investment objective, Mr. Ladd analyzes the operations, capital structure
and
markets of companies in which Laddcap invests, including the Company, on
a
continuous basis through analysis of documentation and discussions with
knowledgeable industry and market observers and with representatives of such
companies. Pursuant to the terms of the Settlement Agreement, Ladd cannot
engage
in certain activities whose goal would be to change control of the Company.
Prior to the Settlement Agreement, Ladd had engaged in a consent solicitation
of
the Company’s stockholders seeking to replace the Company’s directors with
Laddcap’s nominees (the “Consent Solicitation”). The Consent Solicitation was
withdrawn by Ladd pursuant to the terms of the Settlement
Agreement.
Pursuant
to the Settlement Agreement, Mr. Ladd became a director of the Company,
effective October 11, 2006.
Ladd
intends to continuously assess, the Company's business, financial condition,
results of operations and prospects, general economic conditions, the securities
markets in general and those for the Shares in particular, other developments
and other investment opportunities. Depending on such assessments, Ladd may,
among other things, acquire additional securities of the Company, or dispose
of
the Shares it currently holds. Pursuant to the Settlement Agreement, Ladd
cannot
own more than 14.9% of the Company’s outstanding shares of common stock without
the consent of the Company’s Board of Directors.
Item
5.
Interest
in Securities of the Issuer.
Item
5 is
hereby amended and restated in its entirety as follows:
Based
upon information set forth in Delcath’s Preliminary Schedule 14A filed with the
Securities and Exchange Commission on August 21, 2006, there were 19,889,039
shares of Common Stock issued and outstanding as of July 27, 2006. On October
8,
2006 Robert Ladd on behalf of Laddcap Value Partners LP entered into a
settlement agreement with Delcath under which Laddcap has the immediate right
to
receive up to 100,000 additional shares of common stock as reimbursement
for
Laddcap’s expenses related to its Consent Solicitation. See Settlement Agreement
filed as Exhibit 10 hereto. Thus, as of October 8, 2006 for the purposes
of Reg.
Section 240.13d-3, Mr. Ladd is deemed to beneficially own 2,390,498 shares,
or
12.0% of the shares deemed issued and outstanding as of that date.
The
following table details all transactions in shares of Common Stock or securities
convertible into, exercisable for, or exchangeable for shares of Common Stock
by
Ladd or any other person or entity controlled by Ladd or any person or entity
for which Ladd possesses voting or investment control over the securities
thereof since the date of event that required the filing by Ladd of Amendment
No. 11 to the Schedule 13D with respect to the Company:
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Date
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Number
of shares
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Transaction
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Price
per Share
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October
8, 2006
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100,000
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purchase
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$3.061
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September
5, 2006
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10,000
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purchase
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4.35
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September
5, 2006
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4,000
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purchase
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4.30
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September
5, 2006
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4,000
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purchase
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4.28
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Item
6. Contracts,
Arrangements, Understandings or Relationships With Respect to Securities
of the
Issuer
Item
6 is hereby amended and restated in its entirety as follows:
On
October 8, 2006 Ladd entered into the Settlement Agreement. Under the Settlement
Agreement, for a period of five years, neither Ladd nor any of its
representatives will (and Ladd and they will not assist, encourage or
participate with others to), directly or indirectly, without the prior
approval
of a majority of the Board of Directors (not including Mr. Ladd):
(a)
acquire,
announce an intention to acquire, offer, seek or propose to acquire, or
agree
to
acquire, directly or indirectly, by purchase, gift, tender or exchange
offer, or
otherwise, beneficial
or record ownership of any common shares or any other voting securities
of
Delcath, including
any rights, warrants, options or other securities convertible into or
exchangeable for common
shares or any other voting securities of Delcath from Delcath or third
parties;
except that Ladd may purchase additional shares of Common Stock directly
from
the Company up to an amount that will not make Ladd’s ownership of the Company’s
Common Stock exceed 14.9% of the total shares of the Company’s Common Stock
outstanding;
(b)
form,
join or in any way participate in a “group” within the meaning of Section
13(d)(3) of the Exchange Act with respect to the common shares or any other
voting securities
of Delcath or otherwise act in concert with any Person in respect of any
such
securities;
(c)
arrange,
or in any way participate in, any financing for the purchase by any individual,
corporation, partnership, limited liability company, limited liability
partnership, syndicate,
person, trust, association, organization or other entity, including any
successor, by merger
or
otherwise, of any of the foregoing (collectively, “Persons” and each, a
“Person”) of common
shares or any other voting securities or assets or businesses of Delcath
or any
of its affiliates;
(d)
join
in
or in any way participate in any pooling agreement, voting trust or other
arrangement
or agreement with respect to the voting of any of Delcath’s voting
securities;
(e)
make,
seek to propose or participate in making a proposal to Delcath or any third
party
(by
public announcement, submission to Delcath or a third party or otherwise)
in
respect of any
extraordinary corporate transaction involving Delcath, its voting securities
or
any of its affiliates,
including a merger, reorganization, recapitalization, extraordinary dividend,
dissolution,
restructuring, liquidation, sale or transfer of assets other than in the
ordinary course of
Delcath’s business, or the acquisition or purchase by Laddcap or any other
Person of all or any
portion of the assets or capital stock of Delcath, whether by merger,
consolidation, tender or exchange
offer or otherwise;
____________________________
1
See Settlement Agreement filed as Exhibit 10
hereto.
(f)
(i) solicit
proxies or consents for the voting of any voting or other securities of
Delcath
or otherwise become a “participant,” directly or indirectly, in any
“solicitation” of
“proxies”
or consents to vote, or become a “participant” in any “election contest”
involving Delcath
or Delcath’s securities (all terms used herein and defined in Regulation 14A
under the Exchange
Act having the meanings assigned to them therein), (ii) call or seek to call,
directly or indirectly,
any special meeting of stockholders of Delcath for any reason whatsoever,
(iii)
seek, request,
or take any action to obtain or retain, directly or indirectly, any list
of
holders of any voting
or
other securities of Delcath or to obtain or retain, directly or indirectly,
the
books and records
of Delcath or its affiliates, (iv) seek to advise or influence any Person
with
respect to the voting
of
any securities of Delcath, (v) initiate, propose or otherwise “solicit” Delcath
stockholders
for the approval of shareholder proposals, whether made pursuant to Rule
14a-8
or Rule
14a-4 under the Exchange Act, or otherwise, (vi) otherwise communicate with
Delcath’s stockholders
or others pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, (vii)
participate in,
or
take any action pursuant to, any “shareholder access” proposal which may be
adopted by the
Securities and Exchange Commission whether in accordance with previously
proposed Rule 14a-11
or
otherwise, (vii) otherwise engage in any course of conduct with the purpose
of
causing stockholders
of Delcath to vote contrary to the recommendation of the Board on any matter
presented
to Delcath’s stockholders for their vote or challenging the policies of Delcath
or (viii) otherwise
act, alone or in concert with others, to seek to control or influence the
management, the
Board, policies or affairs of Delcath;
(g)
except
as
specifically and expressly set forth in this Agreement, seek any change
in
the
composition or classification of the Board or management of Delcath, including
any plans or
proposals to change the number or term of directors, vote against any candidate
for the Board nominated
for election or re-election by the Nominating Committee (or any successor
committee)
of the then-existing Board, or fill any vacancies on the Board;
(h)
seek
to
change the determination or direction of the basic business decisions of
Delcath,
the present capitalization or dividend policy of Delcath, Delcath’s Amended and
Restated Certificate of Incorporation (the “Charter”) or Bylaws or Delcath’s
business or corporate structure or otherwise take any action inconsistent
with
the ownership of common shares “solely for the purpose of
investment”;
(i)
(i) make
or
disclose any statement regarding any intent, purpose, plan or proposal
with
respect to the Board, Delcath, its management, policies or affairs or any
of its
securities or assets
or
this Agreement that is inconsistent with the provisions of this Agreement,
including, but not
limited to, a request (by submission to Delcath, public announcement or
otherwise) in any form
that
the prohibitions set forth in this Agreement be waived or that Delcath take
any
action which
would permit Laddcap to take any of the actions prohibited by this Agreement,
(ii) otherwise
seek in any fashion a waiver, amendment or modification of this Agreement
or
make any
statement (to Delcath or a third party or by public announcement) relating
to
Laddcap’s willingness
to pursue any such prohibited action conditioned upon waiver of this Agreement
or (iii)
take any action that could require Delcath to make any public disclosure
relating to any such intent,
purpose, plan, proposal or condition; and
(j)
(i) initiate,
solicit, advise, assist, facilitate, finance, or encourage or otherwise
participate
in the taking of any of the foregoing actions by any other Person, (ii) make
any
investments
in any third party that engages, or offers or proposes to engage, in any
of the
foregoing, or (iii) otherwise enter into any discussions, negotiations,
arrangements or understandings with, any third party with respect to any
of the
foregoing actions.
Furthermore,
at any annual meeting, special meeting or consent solicitation in lieu of
such
meeting Laddcap is required to vote any and all shares of Common Stock then
owned by it in favor of all director candidates nominated by the Nominating
Committee of the Board of Delcath, or any successor committee. See Settlement
Agreement filed as Exhibit 10 hereto.
Notwithstanding
the above-referenced restrictions, nothing shall prevent Ladd from selling
shares of Common Stock, or limit Mr. Ladd during his service as a director
of
Delcath from discussing, proposing, or voting for any of the above actions
on a
confidential basis with or to the Board, from having such actions recorded
in
the minutes of the Board of Directors, and from otherwise acting as a director
and complying in good faith with his fiduciary duty as a director of
Delcath.
Signature
After
reasonable inquiry and to the best of my knowledge and belief, I certify
that
the information set forth in this statement is true, complete and
correct.
October
17,
2006
/s/
Robert
Ladd
___________________________________________
Robert
Ladd, in his
capacity as the managing member of
Laddcap
Value
Associates LLC, the general partner of
Laddcap
Value
Partners LP
Attention:
Intentional misstatements or omissions of fact constitute Federal criminal
violations (See 18 U.S.C. 1001).
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