UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 24, 2019

 

 

DELCATH SYSTEMS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   001-16133   06-1245881

(State or other jurisdiction of

incorporation or organization)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

1633 Broadway, Suite 22C, New York, New York 10019

(Address of principal executive offices) (Zip Code)

(212) 489-2100

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading symbol(s)

 

Name of each exchange on which registered

Common Stock, $.01 par value   DCTH   OTC QB

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

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 13(a) of the Exchange Act.   ☐

 

 

 

Item 3.02

Unregistered Sales of Equity Securities and Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Effective December 24, 2019, Delcath Systems, Inc. (the “Company”) implemented a 1-for-700 reverse stock split of the Company’s issued and outstanding shares of common stock, par value $0.01 per share (the “Common Stock”) (the “Reverse Split”). The Reverse Split was effected by the filing of a Certificate of Amendment (the “Certificate of Amendment”) to the Company’s Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware. The Certificate of Amendment did not change the number of shares of Common Stock authorized for issuance by the Company, the par value of the Common Stock, or any other terms of the Common Stock. The foregoing description of the Certificate of Amendment is a summary only, is not intended to be complete and is qualified in its entirety by reference to the full text of the Certificate of Amendment, which is filed as Exhibit 3.1 to this Current Report on Form 8-K.

Pursuant to a reset formula included in the terms of the Company’s Series E Convertible Preferred Stock and Series E-1 Convertible Preferred Stock (collectively, the “Preferred Stock”), as a result of the Reverse Split the conversion price of the Preferred Stock was reduced from $42.00 per share (after giving effect to the Reverse Split) to $25.36 per share and an additional 648,673 shares of Common Stock became issuable upon the conversion of the outstanding Preferred Stock. Accordingly, after giving effect to this adjustment, a total of 1,637,208 shares of Common Stock are issuable upon the conversion of the outstanding shares of Preferred Stock.

Pursuant to a similar reset formula included in the terms of the Company’s warrants issued in connection with the sale of the Preferred Stock (the “2019 Warrants”), as a result of the Reverse Split the exercise price of the 2019 Warrants was reduced from $42.00 per share (after giving effect to the Reverse Split) to $25.36 per share. As a result of such reset formula, the number of shares of Common Stock issuable upon the exercise of the outstanding 2019 Warrants also was proportionately increased by 657,547 shares. Accordingly, after giving effect to these adjustments, a total of 1,659,539 shares of Common Stock are issuable upon the exercise of the outstanding 2019 Warrants.

 

Item 9.01

Financial Statements and Exhibits.

(d)    Exhibits

 

Exhibit

  

Description

3.1    Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company effective December 24, 2019.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized.

 

    DELCATH SYSTEMS, INC.
Date: December 30, 2019         By:   /s/ Barbra Keck
     

 

   

Name:

Title:

 

Barbra Keck

Chief Financial Officer

 

Exhibit 3.1

 

 

Delaware

The First State

  Page 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “DELCATH SYSTEMS, INC.”, FILED IN THIS OFFICE ON THE EIGHTEENTH DAY OF DECEMBER, A.D. 2019, AT 4:38 O`CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE EFFECTIVE DATE OF THE AFORESAID CERTIFICATE OF AMENDMENT IS THE TWENTY-FOURTH DAY OF DECEMBER, A.D. 2019 AT 8:30 O’CLOCK A.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

 

   LOGO   

LOGO

 

     Jeffrey W. Bullock, Secretary of State

 

2168713   8100

SR# 20198733534

 

  

 

Authentication: 204256889

Date: 12-19-19

You may verify this certificate online at corp.delaware.gov/authver.shtml

State of Delaware

Secretary of State

Division of Corporations

Delivered 04:38 PM 12/18/2019

FILED 04:38 PM 12/18/2019

SR 20198733534 - File Number 2168713

    
 

 

Amendment to the

Amended and Restated Certificate of Incorporation

of

Delcath Systems, Inc.

 

Pursuant to Section 242 of the General

Corporation Law of the State of Delaware

  

DELCATH SYSTEMS, INC., a Delaware corporation (hereinafter called the “Corporation”), does hereby certify as follows:

FIRST: Upon the filing and effectiveness (the “Effective Time”) pursuant to the General Corporation Law of the State of Delaware (the “DGCL”) of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation, the Corporation’s Amended and Restated Certificate of Incorporation shall be amended by adding the following paragraph at the end of Article FOURTH:

“Each seven hundred (700) shares of the Corporation’s Common Stock, par value $0.01 per share (“Common Stock”), issued and outstanding or held by the Corporation in treasury stock immediately prior to the Effective Time shall automatically be combined into one (1) validly issued, fully paid and non-assessable share of Common Stock without any further action by the Corporation or the holder thereof, subject to the treatment of fractional interests as described below. Notwithstanding the immediately preceding sentence, no fractional shares will be issued in connection with the reverse stock split. Stockholders of record who otherwise would be entitled to receive fractional shares, will be entitled to rounding up of their fractional share to the nearest whole share. No stockholders will receive cash in lieu of fractional shares. Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the adjustment for fractional shares as described above.”

SECOND: The foregoing amendment was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.

THIRD: This Certificate of Amendment shall become effective as of December 24, 2019 at 8:30 a.m., New York City time.

IN WITNESS WHEREOF, DELCATH SYSTEMS, INC. has caused this certificate to be duly executed in its corporate name on December 18, 2019.

 

DELCATH SYSTEMS, INC.

By:

 

 

LOGO

 

  Barbra Keck, Chief Financial Officer