As filed with the Securities and Exchange Commission on December 14, 2018
Registration No. 333-227970
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2 to
Form S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Delcath Systems, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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3841
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06-1245881
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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1633 Broadway
Suite 22C
New York, New
York 10019
(212) 489-2100
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Jennifer K. Simpson
President and
Chief
Executive Officer
Delcath Systems, Inc.
1633 Broadway
Suite 22C
New York, New York 10019
(212) 489-2100
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Jolie Kahn, Esq.
Wexler, Burkhart, Hirschberg & Unger
377 Oak Street
Garden
City, NY 11530
(516) 222-2230
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective and to be sold.
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, 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 of 1933, please 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 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 post-effective amendment filed pursuant to Rule 462(d) 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. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, a
smaller reporting company or an 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. (Check One):
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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. ☐
CALCULATION OF REGISTRATION FEE
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Title of each class of
securities to be registered
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Amount to be
registered/proposed
maximum offering price
per unit/proposed
maximum aggregate
offering price
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Amount of
registration fee
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Common Stock
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(1)(2)
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Preferred Stock
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(1)(2)
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Senior Debt Securities
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(1)
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Depositary Shares
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(1)
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Warrants
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(1)
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Units
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(1)
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Total
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$100,000,000 (3)
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$12,120 (4)
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(1)
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Such indeterminate amount or number of senior debt securities, shares of preferred stock, shares of common
stock, and warrants to purchase any combination of the foregoing securities, as may from time to time be issued at indeterminate prices, with an aggregate initial offering price not to exceed $8.68, which is calculated pursuant to general
instruction 1.B.1. to
Form S-3, based
upon the last closing sale price of a share of our common stock on the OTCQB on September 19, 2018 multiplied by 8,973,623 shares of common stock
beneficially owned by nonaffiliates as of October 17, 2018. If any senior debt securities are issued at an original issue discount, then the issue price, and not the principal amount of such senior debt securities shall be used for purposes of
calculating the aggregate initial offering price of all securities issued. Securities registered hereunder may be sold separately, together or as units with other securities registered hereunder. The securities also include such indeterminate number
of shares of preferred stock, shares of common stock or principal amounts of senior debt securities as may be issued upon conversion or exchange for senior debt securities that provide for conversion or exchange, upon exercise of warrants to
purchase preferred stock, common stock or senior debt securities, upon conversion of shares of preferred stock or pursuant to the anti-dilution provisions of any such securities. Includes, but is not limited to, offerings which are underwritten on a
firm commitment basis or otherwise, and offerings for which a placement agency agreement exists.
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(2)
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Includes rights to acquire common stock or preferred stock of the Company under any shareholder rights plan
then in effect, if applicable under the terms of any such plan.
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(3)
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Estimated solely for the purpose of calculating the registration fee. No separate consideration will be
received for shares of common stock that are issued upon conversion of senior debt securities, depositary shares or preferred stock or upon exercise of common stock warrants registered hereunder. The aggregate maximum offering price of all
securities issued pursuant to this registration statement will not exceed $100,000,000.
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(4)
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The registration fee has been calculated in accordance with Rule 457(o) under the Securities Act of
1933, as amended. Fee previously paid with initial filing of this registration statement on Form S-3.
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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 Commission, acting pursuant to said Section 8(a), may determine.