[LETTERHEAD OF MURTHA CULLINA LLP]
March 8, 2004
The Board of Directors
Delcath Systems, Inc.
1100 Summer Street
Stamford, Connecticut 06905
Re: Registration Statement on Form S-3 (No. 333-121681)
Dear Sirs:
We have acted as special counsel to Delcath Systems, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-3 (No. 333-121681), as filed on the date hereof (the "Registration
Statement"), for the public reoffer by certain selling stockholders of up to
3,397,909 shares (the "Secondary Shares") of Common Stock. The Secondary Shares
consist of (i) 1,306,487 shares issued in connection with private placements to
accredited investors in November and December 2004 (the "2004 Shares"); (ii)
2,019,925 shares (the "2004 Warrant Shares") issuable upon exercise of the
Company's outstanding Series A, Series B, Series C or Series D Redeemable Common
Stock Purchase Warrants issued to such investors in 2004 (the "2004 Warrants");
and (iii) 71,497 shares (the "Placement Agent Warrant Shares") issuable upon
exercise of outstanding warrants issued to the placement agent in connection
with the November 2004 private placement to accredited investors (the "Placement
Agent Warrants").
We have examined originals or copies, certified or otherwise identified to
our satisfaction of the following documents: (a) the Amended and Restated
Certificate of Incorporation of the Company, as amended, in the form filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 2004 (file No. 001-16133); (b) the Amended and Restated Bylaws of
the Company in the form filed as Exhibit 3.2 to Amendment No. 1 to the Company's
Registration Statement on Form SB-2 (No. 333-39470); (c) the resolution adopted
by the Board of Directors of the Company at a meeting held on November 5, 2004;
and (d) such other documents as we have considered necessary to the rendering of
the opinions expressed below.
In our examination of the foregoing, we have assumed that: (a) the factual
statements made therein are accurate and complete; (b) the signatures on
documents and instruments
The Board of Directors
Delcath Systems, Inc.
March 8, 2004
Page 2
submitted to us as originals are authentic; and (c) documents submitted to us as
certified, conformed or photostatic copies of original documents conform with
the originals thereof and the originals thereof are authentic.
Based upon the foregoing, we are of the opinion that:
1. The 2004 Shares have been duly authorized and validly issued and
are fully paid and nonassessable.
2. The 2004 Warrant Shares, when issued upon exercise of the 2004
Warrants in accordance with their terms, will be duly authorized,
validly issued, fully paid and nonassessable.
3. The Placement Agent Warrant Shares, when issued upon exercise of
the Placement Agent Warrants in accordance with their terms, will
be duly authorized, validly issued, fully paid and nonassessable.
The foregoing opinions are limited to the General Corporation Law of the
State of Delaware, and we do not express any opinion herein concerning any other
law. We assume no obligation to supplement this opinion, and we disclaim any
obligation to advise you of facts, circumstances, events or developments which
hereafter may be brought to our attention and which may alter, affect or modify
the opinions expressed herein.
This opinion is being furnished to you for filing as an exhibit to the
Registration Statement and, accordingly, may not be relied upon by or quoted in
any manner or delivered to any person or entity other than the Company and its
stockholders without, in each instance, our prior written consent.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and to the reference to our firm appearing under the caption "Legal
Matters" in the Prospectus forming part of the Registration Statement. In giving
this consent, we do not admit that we are
The Board of Directors
Delcath Systems, Inc.
March 8, 2004
Page 3
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
MURTHA CULLINA LLP
By /s/ PAUL G. HUGHES
---------------------------
Paul G. Hughes