Exhibit 5.1
February 7, 2020
Delcath Systems, Inc.
1633 Broadway, Suite 22C
New York, New York 10019
Ladies and Gentlemen:
We have acted as counsel for Delcath Systems, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on FormS-1 (FileNo. 333-235904) (the “Registration Statement”), including a related prospectus filed with the Registration Statement (the “Prospectus”), with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the offer and sale of a proposed maximum aggregate offering price of $28,750,000 of (i) shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”), including Shares that may be sold by the Company pursuant to the exercise of an over-allotment option granted to the Underwriters (as defined below), and(ii) pre-funded warrants to purchase shares of Common Stock (each a“Pre-Funded Warrant,” and each share of Common Stock underlying aPre-Funded Warrant, a“Pre-Funded Warrant Share”). The Shares and thePre-Funded Warrants are to be sold by the Company pursuant to an underwriting agreement (the “Underwriting Agreement”) to be entered into between the Company and the several underwriters named therein (the “Underwriters”). This opinion is being rendered in connection with the filing of the Registration Statement with the Commission.
In connection with this opinion, we have examined originals or copies (certified or otherwise identified to our satisfaction) of (i) the Company’s Amended and Restated Certificate of Incorporation, as amended and corrected, as filed as Exhibits 3.1, 3.2, 3.3, and 3.4 to the Registration Statement, each as currently in effect, (ii) the Company’s Amended and RestatedBy-laws, filed as Exhibit 3.5 to the Registration Statement, as currently in effect, (iii) the Registration Statement and related Prospectus, (iv) the form of Underwriting Agreement filed as Exhibit 1.1 to the Registration Statement, (v) the form ofPre-Funded Warrant filed as Exhibit 4.7 to the Registration Statement, and (vi) such corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials or of officers and representatives of the Company, as we have deemed relevant and necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies, and the authenticity of the originals of such latter documents. We have further assumed that the Underwriting Agreement and thePre-Funded Warrants will be executed and delivered by the Company and, with respect to the Underwriting Agreement, the representative of the Underwriters in the form such documents are filed as exhibits to the Registration Statement. As to certain questions of fact material to this opinion, we have relied upon certificates or comparable documents of officers and representatives of the Company and have not sought to independently verify such facts.
Based on the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that (i) the Shares have been duly authorized and, when issued and paid for in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid andnon-assessable, (ii) when thePre-Funded Warrants are duly executed and delivered by the Company and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, suchPre-Funded Warrants will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency or other similar laws affecting creditors’ rights and to general equitable principles, and (iii) thePre-Funded Warrant Shares have been duly authorized and, when issued upon the due exercise of thePre-Funded Warrants, will be validly issued, fully paid andnon-assessable.
The opinion expressed herein is limited to the General Corporation Law of the State of Delaware (including reported judicial decisions interpreting the General Corporation Law of the State of Delaware) and, with respect to the enforceability of thePre-Funded Warrants, the laws of the State of New York, and we express no opinion as to the effect on the matters covered by this letter of the laws of any other jurisdiction.
