Delcath Systems, Inc S-3/A, filed May 8, 2024
Delcath Systems, Inc. (DCTH)
As filed with the Securities and Exchange Commission on May 8, 2024
Registration No. 333-278989
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
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 incorporation or organization) |
(I.R.S. Employer Identification No.) |
566 Queensbury Avenue,
Queensbury, NY 12804
(212) 489-2100
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Gerard Michel
Chief Executive Officer
Delcath Systems, Inc.
566 Queensbury Avenue,
Queensbury, NY 12804
(212) 489-2100 (Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Ryan S. Sansom
Christina Roupas
Cooley LLP
500 Boylston Street
Boston, Massachusetts 02116
(617) 937-2300
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by the selling securityholders.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Smaller reporting company | ☒ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
The Registrant is filing this Amendment No. 1 (this “Amendment”) to its Registration Statement on Form S-3 (File No. 333-278989) (the “Registration Statement”) as an exhibits-only filing to include the initial Loan and Security Agreement, dated August 6, 2021, between Delcath Systems, Inc., as borrower, and Avenue Venture Opportunities Fund, L.P., as lender, in the exhibits table. Accordingly, this Amendment consists only of the facing page, this explanatory note, Item 16 of Part II of the Registration Statement, the signature page and the filed exhibits.
Except as described above, no other changes have been made to the Registration Statement, and accordingly the prospectus included in Part I of the Registration Statement, and all items of Part II, other than Item 16, have been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 16. | Exhibits. |
II-1
| Exhibit |
Exhibit Description |
Schedule / Form |
File Number |
Exhibit | File Date | |||||
| 10.3 | Loan and Security Agreement, dated August 6, 2021, between Delcath Systems Inc. as borrow and Avenue Venture Opportunities Fund, L.P., as lender | From 8-K | 001-16133 | 10.1 | August 11, 2021 | |||||
| 10.4 | First Amendment to Loan Documents issued by the Company to Avenue Venture Opportunities Fund, L.P., dated March 31, 2023. | From 10-Q | 001-16133 | 10.3 | May 22, 2023 | |||||
| 23.1 | Consent of Marcum LLP, independent registered public accounting firm | Form S-3 | 333-278989 | 23.1 | April 29, 2024 | |||||
| 23.2 | Consent of Cooley LLP (included in Exhibit 5.1) | Form S-3 | 333-278989 | 5.1 | April 29, 2024 | |||||
| 24.1 | Power of Attorney | Form S-3 | 333-278989 | Signature Page |
April 29, 2024 | |||||
| 107 | Filing Fee Table | Form S-3 | 333-278989 | 107 | April 29, 2024 | |||||
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York, on May 8, 2024.
| DELCATH SYSTEMS, INC. | ||
| By: | /s/ Gerard Michel | |
| Gerard Michel | ||
| Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ Gerard Michel Gerard Michel |
Chief Executive Officer and Director (Principal Executive Officer) |
May 8, 2024 | ||
| /s/ Sandra Pennell Sandra Pennell |
Principal Financial and Accounting Office |
May 8, 2024 | ||
| /s/ * John R. Sylvester |
Chairman of the Board |
May 8, 2024 | ||
| /s/ * Elizabeth Czerepak |
Director |
May 8, 2024 | ||
| /s/* Steven Salamon |
Director |
May 8, 2024 | ||
| /s/ * Roger G. Stoll, Ph D |
Director |
May 8, 2024 | ||
| /s/ * Gil Aharon |
Director |
May 8, 2024 | ||
| *By: | /s/ Gerard Michel | |
| Gerard Michel | ||
| Attorney-in-Fact | ||
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