Item 1.01 — Entry into a Material Definitive Agreement.
On December 9, 2020, Delcath Systems, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”) with Canaccord Genuity LLC and Roth Capital Partners, LLC (the “Underwriters”), pursuant to which the Company agreed to issue and sell to the Underwriters 1,460,027 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), plus up to 219,004 shares of Common Stock pursuant to an option to purchase additional shares (together, the “Shares”), at a price to the public of $13.25 per share (the “Offering”). The Underwriters exercised their option to purchase additional shares in full on December 9, 2020. The Offering closed on December 11, 2020. Gross proceeds from the Offering of 1,679,031 Shares were approximately $22.1 million, before deducting the underwriting discounts and commissions and other estimated Offering expenses. Under the terms of the Underwriting Agreement, the Company paid underwriting discounts and commissions of $0.795 per share (for a price to the Underwriters of $12.455 per share). After the closing of the Offering, the number of shares of Common Stock outstanding was 5,948,864.
Under the terms of the Underwriting Agreement, the Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). The Underwriting Agreement contains customary representations, warranties, covenants, obligations of the parties and termination provisions.
In addition, in connection with the Offering, the Company’s directors and officers entered into a customary 90-day lock-up agreement with the Underwriters. The foregoing description of the Underwriting Agreement and the lock-up agreement is qualified in its entirety by reference to the Underwriting Agreement (including the form of lock-up agreement which is attached as Exhibit B to the Underwriting Agreement), a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K and incorporated herein by reference.
The Offering is being made pursuant to a prospectus supplement dated December 9, 2020 and an accompanying prospectus dated December 21, 2018, pursuant to the Company’s effective shelf registration statement on Form S-3 filed with the U.S. Securities and Exchange Commission and declared effective on December 21, 2018.
The legal opinion of McCarter & English, LLP relating to the legality of the issuance and sale of the Shares in the Offering is attached hereto as Exhibit 5.1 and is incorporated herein by reference.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any Shares, nor shall there be any offer, solicitation or sale of Shares in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
Item 8.01 — Other Events.
On December 9, 2020, the Company issued a press release announcing the pricing of the Offering and on December 11, 2020, the Company issued a press release announcing the exercise of the Underwriters’ option to purchase additional shares in the Offering and the closing of the transaction, copies of which are attached hereto as Exhibits 99.1 and 99.2, respectively.
