UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 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): June 12, 2023
Delcath Systems, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 001-16133 | 06-1245881 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
1633 Broadway, Suite 22C New York, New York | 10019 | |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (212) 489-2100
(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 pursuant to Section 12 (b) of the Act:
Title of Each Class | Trading | Name of Each Exchange on Which Registered | ||
Common Stock, $0.01 par value | DCTH | The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
At the 2023 Annual Meeting of Stockholders (the “Annual Meeting”), the stockholders of Delcath Systems, Inc. (the “Company”) approved an amendment to the Company’s 2020 Omnibus Equity Incentive Plan (the “2020 EIP”) to increase by 2,650,000 the number of shares of the Company’s common stock, $0.01 par value (the “Common Stock”) available under thereunder.
A more detailed summary of the material features of the 2020 EIP, as amended, including the terms of stock option grants thereunder, is set forth in the Company’s definitive proxy statement for the Annual Meeting filed with the Securities and Exchange Commission on May 1, 2023 (the “2023 Proxy Statement”). That summary and the foregoing description are qualified in their entirety by reference to the text of the 2020 EIP, as amended, which is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
At the Annual Meeting, the stockholders of the Company approved an amendment to the Company’s Amended and Restated Certificate of Incorporation to increase the authorized number of shares of Common Stock from 40,000,000 shares to 80,000,000 shares. The increase in the authorized number of shares of the Common Stock was effected pursuant to a Certificate of Amendment of the Amended and Restated Certificate of Incorporation (the “Certificate of Amendment”) filed with the Secretary of State of the State of Delaware on June 12, 2023 and was effective as of such date. The foregoing description is qualified in its entirety by the Certificate of Amendment, which is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.07 | Submission of Matters to a Vote of Security Holders |
At the Annual Meeting held on June 12, 2023, the Company’s stockholders voted on seven proposals, each of which is described in more detail in the Company’s 2023 Proxy Statement. Of the 10,620,462 shares of the Company’s common stock outstanding as of the record date, 9,469,018 shares, or approximately 89.16%, were present or represented by proxy at the Annual Meeting.
The following is a brief description of each matter voted upon and the certified results, including the number of votes cast for and against each matter and, if applicable, the number of votes withheld, abstentions and broker non-votes with respect to each such matter.
Proposal 1. Stockholders elected each of the following nominees to serve as Class II directors on the Company’s Board of Directors (the “Board”) until the Company’s 2026 Annual Meeting of Stockholders or until his successor has been duly elected and qualified. The voting results for such nominees were as follows:
Director Name | Votes For | Votes Withheld | Broker Non- | |||
Elizabeth Czerepak | 8,101,307 | 76,310 | 1,291,401 | |||
John R. Sylvester | 7,710,270 | 467,347 | 1,291,401 |
Proposal 2. Stockholders approved the amendment of the Company’s Amended and Restated Certificate of Incorporation to increase the total number of shares of its Common Stock authorized for issuance from 40,000,000 shares to 80,000,000 shares. The voting results were as follows:
Votes For | Votes Against | Abstentions | Broker Non- | |||
7,360,753 | 219,073 | 207 | 1,291,401 |
Proposal 3. Stockholders approved the amendment to the Company’s 2020 Omnibus Equity Incentive Plan to increase by 2,650,000 the number of shares of Common Stock available under thereunder. The voting results were as follows:
Votes For | Votes Against | Abstentions | Broker Non- | |||
7,414,836 | 761,118 | 1,663 | 1,291,401 |
Proposal 4. Stockholders approved the potential issuance in excess of 19.99% of the Company’s outstanding Common Stock upon the conversion of the Company’s Series F-1 Convertible Preferred Stock, par value $0.01 per share, Series F-2 Convertible Preferred Stock, par value $0.01 per share, Series F-3 Convertible Preferred Stock, par value $0.01 per share and Series F-4 Convertible Preferred Stock, par value $0.01 per share (collectively, the “Series F Preferred Stock”) at less than the “minimum price” under Nasdaq Listing Rule 5635, if required pursuant to the terms of the Certificate of Designation of Preferences, Rights and Limitations of Series F Convertible Voting Preferred Stock governing the Series F Preferred Stock. The voting results were as follows:
Votes For | Votes Against | Abstentions | Broker Non- | |||
7,334,219 | 262,520 | 141,151 | 1,291,401 |
Proposal 5. Stockholders ratified the selection by the Audit Committee of the Board of Marcum, LLP as the Company’s independent registered public accounting firm for its fiscal year ending December 31, 2023. The voting results were as follows:
Votes For | Votes Against | Abstentions | Broker Non- | |||
9,378,757 | 28,040 | 62,221 | N/A |
Proposal 6. Stockholders approved a non-binding advisory vote on the compensation of the Company’s named executive officers. The voting results were as follows:
Votes For | Votes Against | Abstentions | Broker Non- | |||
7,785,313 | 390,068 | 2,236 | 1,291,401 |
Proposal 7. Stockholders approved a non-binding advisory vote on the preferred frequency of holding future advisory votes on compensation of the Company’s named executive officers. The voting results were as follows:
One Year | Two Years | Three Years | Abstain | |||
8,070,450 | 33,623 | 40,093 | 33,451 |
In light of the vote of the stockholders on this proposal and consistent with the Board’s recommendation, the Company will continue to include a non-binding stockholder advisory vote to approve the compensation of its named executive officers in its proxy materials every year. The Company will hold such annual advisory votes until the next required vote on the frequency of stockholder votes on named executive officer compensation. The Company is required to hold votes on the frequency of holding future non-binding advisory votes on executive compensation every six calendar years.
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
Exhibit No. | Description | |
3.1 | Certificate of Amendment of the Amended and Restated Certificate of Incorporation | |
10.1 | 2020 Omnibus Equity Incentive Plan, as amended | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
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 hereunto duly authorized.
DELCATH SYSTEMS, INC. | ||||||
Date: June 13, 2023 | By: | /s/ Gerard Michel | ||||
Gerard Michel | ||||||
Chief Executive Officer |