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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
Schedule TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
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DELCATH SYSTEMS, INC.
(Name of Subject Company (issuer) and Filing Person (offeror))
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Redeemable Common Stock Purchase Warrants Issued in 2000
(Title of Class of Securities)
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24661P112
(CUSIP Number of Class of Securities)
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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)
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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
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* 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: |_|
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This Amendment No. 1 to the Issuer Tender Offer Statement on Schedule TO
(this "Amendment No. 1 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 the date hereof (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 from 5:00 p.m., New York
time, on August 15, 2005 to 5:00 p.m., New York time, on August 22, 2005.
This Amendment No 1 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.
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.
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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.
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
The Company believes that the information described in Item 1010(a) and (b)
of Regulation M-A is not material in connection with the Exchange Offer and is,
therefore, as provided in Item 10 of Schedule TO, not required herein or in the
Offer to Exchange.
Item 11. Additional Information
None.
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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-I (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-I (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-I (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-I (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-I (File No.
5-60851)).
(a)(1)(vi) Notice of Extension of Offer to Exchange dated August 15, 2005.
Item 13. Information Required by Schedule 13E-3.
Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment No. 1 to the Schedule TO is
true, complete and correct.
DELCATH SYSTEMS, INC.
By: /s/ M. S. KOLY
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M. S. Koly
President and Chief Executive
Officer
Date: August 18, 2005
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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-I (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-I (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-I (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-I (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-I (File No.
5-60851)).
(a)(1)(vi) Notice of Extension of Offer to Exchange dated August 15, 2005.