SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14a INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement [ ] Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-12
DELCATH SYSTEMS, INC.
--------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
--------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
------------------------------------------------------------------------
(5) Total fee paid:
------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the
Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
------------------------------------------------------------------------
(2) Form, Schedule or Registration Statement no.:
------------------------------------------------------------------------
(3) Filing Party:
------------------------------------------------------------------------
(4) Date Filed:
------------------------------------------------------------------------
---------------------------------
DELCATH SYSTEMS, INC.
1100 SUMMER STREET
STAMFORD, CONNECTICUT 06905
(203) 323-8668
---------------------------------
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 14, 2005
Notice is hereby given that an Annual Meeting of Stockholders of Delcath
Systems, Inc., a Delaware corporation, will be held on Tuesday, June 14, 2005 at
11:00 a.m. (Eastern Time) at the Holiday Inn Select, 700 Main Street, Stamford,
Connecticut, for the following purposes:
1. To elect two Class II directors to serve until the 2008 Annual
Meeting of Stockholders and until their successors are duly elected
and qualified; and
2. To transact such other business as may properly come before the
meeting or any adjournment thereof.
Only stockholders of record of our Common Stock, $0.01 par value per
share, at the close of business on Thursday, April 14, 2005 will be entitled to
notice of, and to vote at, the Annual Meeting of Stockholders or any adjournment
thereof.
A copy of our Annual Report to Stockholders for the year ended December
31, 2004, which contains financial statements and other information of interest
to stockholders, accompanies this Notice and the enclosed Proxy Statement.
All stockholders are cordially invited to attend the Annual Meeting of
Stockholders. Only record or beneficial owners of Delcath's Common Stock as of
the Record Date may attend the Annual Meeting in person. When you arrive at the
Annual Meeting, you must present photo identification, such as a driver's
license. Beneficial owners must also provide evidence of stock holdings as of
the Record Date, such as a recent brokerage account or bank statement.
Whether or not you expect to attend the Annual Meeting of Stockholders,
please complete, sign, date, and return the enclosed proxy card in the enclosed
envelope in order to ensure representation of your shares. It will help in our
preparations for the meeting if you would check the box on the form of proxy if
you plan on attending the annual meeting.
By Order of the Board of Directors
/s/ M. S. Koly
-------------------------------------
M. S. KOLY
President and Chief Executive Officer
Stamford, Connecticut
April 29, 2005
---------------------------------
DELCATH SYSTEMS, INC.
1100 SUMMER STREET
STAMFORD, CONNECTICUT 06905
(203) 323-8668
---------------------------------
PROXY STATEMENT
---------------------------------
Proxies in the form enclosed with this Proxy Statement are being solicited
by the Board of Directors of Delcath Systems, Inc., a Delaware corporation, for
use at the 2005 Annual Meeting of Stockholders of Delcath to be held at 11:00
a.m. (Eastern Time) on Tuesday, June 14, 2005, at the Holiday Inn Select, 700
Main Street, Stamford, Connecticut, and at any adjournment thereof.
Only stockholders of record as of the close of business on April 14, 2005
(the "Record Date") of our Common Stock, $0.01 par value per share (the "Common
Stock") will be entitled to notice of, and to vote at, the meeting. As of the
Record Date, 15,483,445 shares of Common Stock were issued and outstanding.
Holders of Common Stock are entitled to one vote per share held by them.
Stockholders may vote in person or by proxy. Granting a proxy does not in any
way affect a stockholder's right to attend the Annual Meeting and vote in
person. Any stockholder giving a proxy has the right to revoke that proxy by (i)
filing a later-dated proxy or a written notice of revocation with us at the
address set forth above at any time before the original proxy is exercised or
(ii) voting in person at the meeting.
Each of M. S. Koly and Samuel Herschkowitz, M.D. are named as attorneys in
the proxy. Mr. Koly is our President, Chief Executive Officer and Treasurer and
is also a member of our Board of Directors. Dr. Herschkowitz is our Chief
Technical Officer and is also the Chairman of our Board of Directors. Mr. Koly
or Dr. Herschkowitz will vote all shares represented by properly executed
proxies returned in time to be counted at the Annual Meeting, as described below
under "Voting Procedures." Any stockholder granting a proxy has the right to
withhold authority to vote for the nominees to the Board of Directors or either
of them. Where a vote has been specified in the proxy with respect to the
matters identified in the Notice of the Annual Meeting, including the election
of directors, the shares represented by the proxy will be voted in accordance
with those voting specifications. Shares represented by proxies will be voted
FOR each proposal identified in the Notice of Annual Meeting if no voting
instructions are indicated.
The stockholders will consider and vote upon a proposal to elect two Class
II directors to serve until the 2008 Annual Meeting of Stockholders.
Stockholders will also consider and act upon such other business as may properly
come before the meeting.
A copy of our Annual Report to Stockholders for the year ended December
31, 2004, which contains financial statements and other information of interest
to stockholders, will first be mailed to stockholders along with these proxy
materials on or about May 5, 2005.
VOTING PROCEDURES
Mr. Koly or Dr. Herschkowitz will vote all shares represented by properly
executed proxies returned in time to be counted at the meeting. The presence, in
person or by proxy, of at least a majority of the issued and
outstanding shares of Common Stock entitled to vote at the meeting is necessary
to establish a quorum for the transaction of business. Shares represented by
proxies pursuant to which votes have been withheld for the nominees for
directors, or which contain one or more abstentions, as well as broker non-vote
shares (i.e., shares held in street name which cannot be voted by a broker on
specific matters in the absence of instructions from the beneficial owner of the
shares) are counted as present for purposes of determining the presence or
absence of a quorum for the meeting.
All properly executed proxies delivered pursuant to this solicitation and
not revoked will be voted at the meeting as specified in such proxies. As noted
above, proxies will be voted FOR each proposal identified in the Notice of
Annual Meeting and will be voted in the discretion of the proxy holder on any
other matters that properly come before the meeting, if no voting instructions
are indicated.
The directors will be elected by a plurality of the votes cast, in person
or by proxy, at the meeting. The nominees receiving the highest number of
affirmative votes of the shares voting on the election of directors will be
elected as directors. Only shares that are voted in favor of a particular
nominee will be counted toward that nominee's achievement of a plurality. Shares
present at the meeting that are not voted for a particular nominee or shares
present by proxy where the stockholder properly withheld authority to vote for
such nominee will not be counted toward that nominee's achievement of a
plurality.
For all other matters that may be submitted to stockholders at the
meeting, the affirmative vote of a majority of shares present (in person or
represented by proxy) and voting on that matter will be required for approval.
Shares abstaining and broker non-votes, since they are not voting on a matter,
will not have the same effect as votes against the matter.
Votes at the meeting will be tabulated by one or more inspectors of
election appointed by the President and Chief Executive Officer.
ELECTION OF DIRECTORS
(PROXY ITEM 1)
Delcath's Board of Directors is divided into three classes of directors
serving staggered three-year terms. As a result, approximately one-third of the
Board of Directors will be elected each year. These provisions, together with
the provisions of our Certificate of Incorporation and by-laws, allow only the
Board of Directors to fill vacancies on or increase the size of the Board of
Directors and would prevent a stockholder from removing incumbent directors and
filling such vacancies with its own nominees in order to gain control of the
Board of Directors. The staggering of the election of our directors may have the
effect of delaying, deferring or discouraging a change of control. Delcath's
by-laws provide that its Board of Directors will consist of not fewer than three
members. The Board of Directors has fixed the current number of directors at
five.
A plurality of the votes cast by the holders of Common Stock present or
represented by proxy and entitled to vote at the meeting is required for the
election of a nominee. Proxies cannot be voted for a greater number of persons
than the number of nominees named or for persons other than the named nominees.
Delcath's Board of Directors has nominated the following persons for
election as Class II directors of Delcath at the Annual Meeting. The nominee are
currently members of Delcath's Board of Directors. The nominees and the year
each first joined the Board of Directors are:
2
YEAR FIRST JOINED
-----------------
NOMINEE AGE BOARD CURRENT POSITIONS
------- --- ----- -----------------
DR. HERSCHKOWITZ 55 1988 Chairman of the Board, Chief Technical
Officer and Secretary
MR. KOLY 64 1988 Director, President, Chief Executive
Officer and Treasurer
BACKGROUND OF NOMINEES FOR THE BOARD OF DIRECTORS
SAMUEL HERSCHKOWITZ, M.D., 55, has been Chairman of the Board of Delcath
since 1998 and Delcath's Chief Technical Officer since 1991. His term expires at
the 2005 Annual Meeting. Dr. Herschkowitz is board certified in psychiatry and
neurology. He is a professor at New York University Medical Center and has held
academic positions at Beth Israel Hospital, Mount Sinai Medical School and
Downstate Medical Center.
M. S. KOLY, 64, has been President, Chief Executive Officer and Treasurer
of Delcath since 1998 and has served as a Director since 1988. His term expires
at the 2005 Annual Meeting.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR THE
ELECTION OF THE NOMINEES AS DIRECTORS OF DELCATH.
The following individuals are currently directors of Delcath whose terms
of office do not expire this year and who consequently are not nominees for
re-election at the Meeting:
MARK A. CORIGLIANO, 41, was appointed a Class III director of Delcath in
2001. His term expires at the 2006 Annual Meeting. Since 1991, Mr. Corigliano
has been Managing Director of Coast Cypress Associates, a company that designs
and implements microcomputer systems. Since 1993, he has served as Officer and
Manager of Special Projects for DC Associates, a restaurant management
organization located in New York City. Mr. Corigliano also serves as Treasurer
of Rolls Royce Owners' Club, a non-profit organization with 8,500 members
worldwide.
DANIEL ISDANER, 40, was appointed a Class I director of Delcath in 2001.
His current term expires at the 2007 Annual Meeting. Since 1994, Mr. Isdaner has
been the owner and director of Camp Mataponi, Inc., a children's summer camp
located in Naples, Maine. He also serves as a director of Anchor Commercial Bank
and on the Board of Directors of the American Camping Association-New England
Division.
VICTOR NEVINS, 83, was appointed a Class III director of Delcath in 2001.
His term expires at the 2006 Annual Meeting. Since 1957, Mr. Nevins has been
Chief Executive Officer of Max Abramson Enterprises, a medium size conglomerate
headquartered in Flushing, New York. He also is a licensed real estate broker
and, since 1962, has been the owner of Victor Nevins Realty. He currently is a
Director and past President of the Flushing Chamber of Commerce and a Director
of the Flushing Merchants Association.
3
The following table provides information concerning the executive officers of
Delcath.
NAME AGE OFFICE CURRENTLY HELD
M. S. Koly 64 President, Chief Executive Officer and
Treasurer
Paul M. Feinstein 57 Chief Financial Officer
A brief description of the business experience of Mr. Koly is set forth
above. The following is a brief description of the business experience of Mr.
Feinstein:
PAUL M. FEINSTEIN. Paul M. Feinstein joined the company as Chief Financial
Officer in October, 2003. From 1991-2002 he was Vice President/Finance for the
New York Road Runners in New York, New York. From 1988-1990 he was the
Controller of Mechanical Plastics, Inc. Prior to that he held senior financial
positions with Holmes Protection Services, Jewelers Protection Services and
Parade Publications and was with Coopers & Lybrand, the international accounting
services firm that is now a part of PricewaterhouseCoopers. He is licensed to
practice law in New York State. He holds a B.B.A. from Pace College, an LL.M. in
Taxation from NYU School of Law and graduated from Albany Law School of Union
University.
BOARD AND COMMITTEE MEETINGS AND FUNCTIONS
ATTENDANCE
The Board of Directors met eight times during year ended December 31,
2004. During 2004, each of the directors attended at least 75% of the aggregate
of (i) the total number of meetings of the Board of Directors and (ii) the total
number of meetings held by all committees of the Board of Directors on which he
served.
It is the Company's policy that, absent unusual or unforeseen
circumstances, all of the directors are expected to attend annual meetings of
stockholders. All of the directors attended the Company's 2004 Annual Meeting of
Stockholders.
COMPENSATION
The Compensation and Stock Option Committee of the Board of Directors
reviews the salaries and benefits of all officers and stock option grants to all
employees, consultants, directors and other individuals compensated by the
Company. The Compensation and Stock Option Committee is empowered by the Board
of Directors to act independently. The Compensation and Stock Option Committee
also administers the Company's stock option and other employee benefits plans.
Currently, the members of the Compensation and Stock Option Committee are Daniel
Isdaner and Mark A. Corigliano, each of whom is independent, as "independence"
is defined in Rule 4200(a)(15) of the National Association of Securities
Dealers. During 2004, the Compensation and Stock Option Committee met four
times.
AUDIT
The Audit Committee of the Board of Directors, whose members are Mark A.
Corigliano, Daniel Isdaner and Victor Nevins, provides assistance to the Board
in fulfilling its oversight responsibilities with respect to the Company's
financial statements, the Company's system of internal accounting and financial
controls and the independent audit of the Company's financial statements. During
2004, the Audit Committee met two times.
Functions of the Audit Committee include:
- the selection, evaluation and, where appropriate, replacement of the
Company's outside auditors;
4
- an annual review and evaluation of the qualifications, performance
and independence of the Company's outside auditors;
- the approval of all auditing services and permitted non-audit
services provided by the Company's outside auditors;
- the receipt of an annual communication from the Company's outside
auditors as required by Independence Standards Board Standard No. 1;
- the review of the adequacy and effectiveness of the Company's
accounting and internal controls over financial reporting;
- the review and discussion with management and the outside auditors
of the Company's financial statements to be filed with the
Securities and Exchange Commission; and
- the preparation of a report for inclusion in the Company's annual
proxy statement.
All members of the Audit Committee must satisfy the independence and
experience requirements of the Nasdaq Stock Market, Inc. and be free of any
relationship which, in the opinion of the Board, would interfere with the
exercise of his or her independent judgment.
A copy of the Audit Committee Charter as currently in effect was attached
as Appendix A to the proxy statement distributed in connection with the
Company's 2004 Annual Meeting of Stockholders.
The Board has determined that at least one member of the Audit Committee
is an audit committee financial expert (as defined in applicable rules of the
Securities and Exchange Commission) based on such member's understanding of
generally accepted accounting principles and financial statements, ability to
assess the application of such principles in connection with accounting for
estimates, accruals and reserves, experience in preparing, analyzing and
evaluating financial statements, understanding of internal control over
financial reporting and understanding of audit committee functions. The Board
has determined that Mark A. Corigliano is an audit committee financial expert.
NOMINATING
The Company does not have a separate nominating committee; the functions
of selecting the nominees of the Board for election as directors is a function
of the Board of Directors. The Board has determined that, in light of the
Company's size, the number of its directors and the nature of its business, a
separate nominating committee is not needed and that such procedures are
appropriate. The Board believes that the specialized knowledge of the Company's
President and Chief Executive Officer and its Chief Technical Officer (both of
whom are also directors of the Company) enable them to provide substantial
assistance to the Board in evaluating the qualifications of potential candidates
for election as directors. The Board has, however, adopted a policy that no
nominee for election as a director will be chosen by the Board unless the
selection of such nominee is approved by a vote which includes the vote of a
majority of the directors who are independent (as independence is defined in the
rules of the National Association of Securities Dealers).
RECOMMENDATIONS BY STOCKHOLDERS OF DIRECTOR NOMINEES
The Board of Directors will consider any recommendation by a stockholder
of a candidate for nomination as a director. If a stockholder wants to recommend
a candidate for the Board to consider nominating for election as a director, the
stockholder may submit the name of the proposed nominee, together with the
reasons why the stockholder believes the election of the candidate would be
beneficial to the Company and its stockholders and the information about the
nominee that would be required in a proxy statement requesting proxies to vote
in favor of the candidate.
The stockholder's submission must be accompanied by the written consent of
the candidate to being nominated by the Board and the candidate's agreement to
serve if nominated and elected.
5
Any such submission should be directed to the Company's Board of Directors
at its principal office, 1100 Summer Street, Stamford, Connecticut 06905. Copies
of any recommendation received in accordance with these procedures will be
distributed to each of the Company's directors. One or more of the Company's
directors may contact the proposed candidate to request additional information.
At the request of any director, the candidacy of the proposed nominee will
be considered by the full Board. The Company will not, however, be obligated to
notify a stockholder who has recommended a candidate for election as a director
of the reasons for any action the Board may or may not take with respect to such
recommendation.
STOCKHOLDER COMMUNICATIONS WITH THE BOARD OF DIRECTORS
The Board of the Company welcomes questions, comments and observations
from stockholders concerning the policies and operation of the Board and about
the general business and operation of the Company.
Any stockholder wishing to communicate with the Board or with any
specified director should address his or her communication to the Board of
Directors or to the particular director(s) and send it to the Company's
principal office at 1100 Summer Street, Stamford, Connecticut 06905. Unless
otherwise requested by a stockholder in a separate written request accompanying
the communication, stockholder communications to the Board or to specified
director(s) will be initially reviewed by the Company's Chief Executive Officer
or Chief Financial Officer. Communications that the reviewing officer determines
relate to the Company's ordinary course of business will be responded to by the
officer or his designee. Communications that the Chief Executive Officer or
Chief Financial Officer determines do not relate to the Company's ordinary
course of business or that he otherwise believes are appropriate for review by
the directors will be forwarded to each of the directors. Actions, if any, to be
taken in response to any stockholder communication will be in the discretion of
the Board. At the request of the Board, the Chief Executive Officer will
summarize any stockholder communications that are not forwarded on the basis
that such communications relate to the ordinary course of the Company's
business.
The process for stockholder communication with the Board of Directors or
with specified director(s) has been approved by the Company's Board, including
by a majority of the Company's independent directors.
REPORT OF THE AUDIT COMMITTEE
The Audit Committee, at the direction of the Board of Directors, has
prepared the following report for inclusion in this Proxy Statement. The Audit
Committee is comprised of Mark A. Corigliano, Victor Nevins and Daniel Isdaner,
three non-employee directors who are "independent" within the meaning of Rule
4200(a)(15) of the National Association of Securities Dealers ("NASD") listing
standards. The Audit Committee has the responsibility for reviewing the
Company's accounting practices, internal accounting controls and financial
results and is responsible for the engagement of the Company's independent
auditors. The Audit Committee met two times in 2004 and has reviewed and
discussed the audited financial statements with the Company's management.
The Audit Committee has discussed with the independent auditors the
matters required to be discussed by SAS 61 (Codification of Statements on
Auditing Standards, AU Section 380), as may be modified or supplemented.
The Audit Committee has received the written disclosures and the letter
from the independent auditors required by Independence Standards Board Standard
No. 1 (Independence Discussions with Audit Committees), as may be modified or
supplemented, and has discussed with the independent auditors the independent
auditors' independence.
Based on the review and discussions referred to in the foregoing three
paragraphs, the Audit Committee recommended to the Board of Directors that the
audited financial statements be included in the Company's
6
Annual Report on Form 10-KSB for the year ended December 31, 2004 for filing
with the Securities and Exchange Commission.
MARK A. CORIGLIANO
VICTOR NEVINS
DANIEL ISDANER
Dated: April 29, 2005
THE REPORT OF THE AUDIT COMMITTEE SHALL NOT BE DEEMED INCORPORATED BY REFERENCE
INTO ANY FILING UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES EXCHANGE ACT
OF 1934, EXCEPT TO THE EXTENT THAT DELCATH SPECIFICALLY INCORPORATES IT BY
REFERENCE, AND SHALL NOT OTHERWISE BE DEEMED TO BE FILED UNDER SUCH ACTS.
COMPENSATION AND OTHER INFORMATION CONCERNING DIRECTORS AND OFFICERS
EXECUTIVE COMPENSATION
The following table sets forth, for the years ended December 31, 2004,
2003 and 2002, certain compensation paid by the Company, including salary,
bonuses and certain other compensation, to its Chief Executive Officer (the
"Named Executive Officer"). There were no other executive officers whose annual
compensation (including bonuses) for the year ended December 31, 2004 exceeded
$100,000.
SUMMARY COMPENSATION TABLE
LONG-TERM
COMPENSATION
AWARDS
------------
ANNUAL COMPENSATION SECURITIES
NAME AND PRINCIPAL ------------------- UNDERLYING ALL OTHER
POSITION YEAR SALARY($) BONUS($) OPTIONS(#) COMPENSATION
M. S. KOLY, President, 2004 227,742 0 0 0
Chief Executive Officer and 2003 229,500 15,000(2) 120,000 0
Treasurer.(1) 2002 187,500 0 100,000 0
(1) During 2004, $61,720 was paid by the Company to an entity affiliated with
Mr. Koly for consulting services.
(2) Bonuses were declared payable in January 2004.
OPTION GRANTS IN LAST FISCAL YEAR
No options were granted to the Named Executive Officers during 2004.
AGGREGATE OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR-END OPTION VALUES
The following table sets forth information with respect to the Named
Executive Officer concerning the exercise of options during the year ended
December 31, 2004 and unexercised options held as of the end of 2004.
7
NUMBER OF VALUE OF
SECURITIES UNEXERCISED
UNDERLYING IN-THE-MONEY
UNEXERCISED OPTIONS AT
SHARES OPTIONS AT FY- FY-END ($)(1)
RECEIVED VALUE REALIZED END EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE ($) UNEXERCISABLE UNEXERCISABLE
M. S. Koly 0 0 362,000/60,000 589,800/118,800
-------------------
(1) Calculated based on the fair market value of $3.01 per share at the close of
trading on December 31, 2004 as reported by The Wall Street Journal, minus
the exercise price of the option.
DIRECTOR COMPENSATION
Directors who are employees of Delcath do not currently receive any
compensation for serving on the Board of Directors. Non-employee directors
receive $750 for each meeting of the Board of Directors attended in person and
$300 for each meeting of the Board of Directors participated in telephonically,
and they are reimbursed for their expenses. For services in 2004, each of
Messrs. Corigliano, Isdaner and Nevins received a bonus of $5,000 that was paid
in 2005.
No options were granted to the non-employee directors during 2004.
KEY EMPLOYEE AGREEMENTS
On October 1, 2003, Delcath amended and restated the employment agreement
with M. S. Koly. Mr. Koly's amended employment agreement provides for a base
salary of $275,000, subject to upward adjustment in the discretion of the
Compensation Committee of the Board of Directors. The agreement has an initial
term ending on September 30, 2006. Thereafter, the term automatically renews for
successive one-year periods unless the Company or Mr. Koly, as the case may be,
gives notice of non-renewal. During 2004, the Compensation Committee approved
increasing Mr. Koly's base salary to $300,000 per year and extended the term of
his employment to September 30, 2008.
In the event of termination by the Company without cause, whether or not
due to a change in control (as defined in the employment agreement), Mr. Koly is
entitled to a lump sum severance payment equal to twice the sum of his then
effective base salary, the average of his bonuses for the three years preceding
termination and the annual cost of his fringe benefits (other than stock options
and similar benefits).
At the election of Mr. Koly, the Company will also be obligated to pay him
the excess of the aggregate fair market of shares subject to options held by him
over the aggregate exercise price of such options. Termination payments to him
would be reduced to the extent such payments would be subject to an excise tax
as "excess parachute payments" under applicable federal tax law.
CHANGE OF CONTROL PAYMENTS
In 2003, the Compensation and Stock Option Committee approved payments to
its directors (including officers who are also directors) in the case of a
hostile takeover of the Company. The payment would, in each case, be determined
by multiplying the excess of the price per share paid in the takeover
transaction over $0.98 (the fair market value per share on December 11, 2003)
multiplied by a number of shares (that would be subject to adjustment in the
event of stock dividends, stock splits or recapitalizations). Such numbers are
500,000 in the case of Mr. Koly and 300,000 each in the case of Dr.
Herschkowitz, Mr. Corigliano, Mr. Isdaner and Mr.
8
Nevins. In the event of a hostile takeover, each non-employee director would
also receive a $100,000 cash payment in recognition of past service. See also,
"Key Employee Agreements," above.
SECURITY OWNERSHIP BY MANAGEMENT AND PRINCIPAL STOCKHOLDERS
The following table sets forth, as of the Record Date, certain information
regarding the ownership of Delcath's voting securities by (i) each director (or
nominee for director) of Delcath, (ii) each Named Executive Officer and (iii)
all directors and executive officers as a group. To the Company's knowledge, no
person or group beneficially owns more than 5% of the Company's outstanding
common stock. Each of the stockholders named below has a business address c/o
Delcath Systems, Inc., 1100 Summer Street, Stamford, Connecticut 06905.
DIRECTORS, SHARES PERCENTAGE OF
EXECUTIVE OFFICERS BENEFICIALLY COMMON SHARES
AND 5% STOCKHOLDERS (1): OWNED (2) OUTSTANDING (3)
M. S. Koly (4) 1,330,656 8.4%
Venkol Trust 892,649 5.8%
Samuel Herschkowitz, M.D. (5) 165,300 1.1%
Mark A. Corigliano (6) 110,500 0.7%
Daniel Isdaner (7) 113,000 0.7%
Victor Nevins (8) 117,600 0.8%
All directors and executive officers as a group 1,837,056 11.4%
(six persons) (9)
(1)Except as otherwise noted in the footnotes to this table, each person or
entity named in the table has sole voting and investment power with respect
to all shares owned, based on the information provided to us by the persons
or entities named in the table.
(2)Shares of Common Stock subject to options or warrants exercisable within 60
days of the Record Date are deemed outstanding for computing the percentage
owned by the person or entity holding such options or warrants.
(3)Percentage of beneficial ownership is calculated on the basis of the amount
of outstanding securities (Common Stock) at the Record Date (15,483,445
common shares) plus, for each person or entity, any securities that person or
entity has the right to acquire within 60 days pursuant to stock options or
other rights.
(4)Mr. Koly is a director of Delcath. Includes 76,007 shares held by Mr. Koly
and 892,649 shares held by a trust of which Mr. Koly has a pecuniary interest
in approximately 63,000. The figure above also includes the vested portion
(362,000 shares) of stock options to purchase shares of the Common Stock. Mr.
Koly is the trustee of this trust and is deemed the beneficial owner of its
shares because of his voting power.
(5)Dr. Herschkowitz is the Chairman of the Board of Directors of Delcath. The
figure above represents 60,000 shares owned directly by him. The figure above
also includes the vested portion (105,300 shares) of stock options to
purchase shares of Common Stock. The figure above excludes approximately
63,000 shares held by the trust referred to in Note 4 in which Dr.
Herschkowitz has a pecuniary interest.
(6)Mr. Corigliano is a director of Delcath. The figure above represents 41,500
shares owned directly by him, and 1,500 shares issuable upon exercise of
warrants. The figure above also includes the vested portion (67,500 shares)
of stock options to purchase shares of Common Stock.
9
(7)Mr. Isdaner is a director of Delcath. The figure above represents 38,000
shares directly owned by him or jointly with his wife, and 7,500 shares
issuable upon exercise of warrants. The figure above also includes the vested
portion (67,500 shares) of stock options to purchase shares of Common Stock.
(8)Mr. Nevins is a director of Delcath. The figure above represents 46,100
shares owned directly by him, and 4,000 shares issuable upon exercise of
warrants. The above figure also includes 1,000 shares owned directly by his
wife, and 1,000 shares issuable upon exercise of warrants owned by her. The
figure above also includes the vested portion (67,500 shares) of stock
options to purchase shares of Common Stock.
(9)The number of shares beneficially owned by all directors and executive
officers as a group includes 669,800 shares of Common Stock issuable within
60 days of the Record Date upon exercise of stock options granted to
directors and executive officers pursuant to our various stock option plans
and 14,000 shares of Common Stock issuable upon exercise of warrants.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
directors, officers, and persons who are beneficial owners of more than ten
percent of the Company's Common Stock to file with the Securities and Exchange
Commission (the "Commission") reports of their ownership of the Company's
securities and of changes in that ownership. To the Company's knowledge, based
upon a review of copies of reports filed with the Commission with respect to the
fiscal year ended December 31, 2004, and except as noted below, all reports
required to be filed under Section 16(a) by the Company's directors and officers
and persons who were beneficial owners of more than ten percent of the Company's
Common Stock were timely filed.
Dr. Herschkowitz was late in filing one report relating to one transaction
that occurred in 2004.
INDEPENDENT AUDITORS
Eisner LLP, ("Eisner") New York, New York, has audited the Company's
financial statements for the years ended December 31, 2003 and 2004.
On April 25, 2005, Eisner LLP was dismissed as the independent registered
public accounting firm for Delcath. The decision to change accountants was
approved by the Audit Committee of the Company's Board of Directors.
The reports of Eisner on the balance sheets of the Company as of December
31, 2003 and 2004 and the related statements of operations, stockholders' equity
and cash flows for each of the years in the two-year period ended December 31,
2004 and for the period from August 5, 1988 (inception) to December 31, 2004 did
not contain any adverse opinion or disclaimer of opinion, nor were they modified
as to uncertainty, audit scope or accounting principles.
In connection with the audits of the periods described above, and the
subsequent interim period through April 25, 2005, except for a reportable
condition with respect to the Company's internal controls regarding identifying
the Company's awards of stock options which awards were described in the
Company's Form 8-K reports dated March 22, 2005 and April 5, 2005, there were no
disagreements between the Company and Eisner on any matter of accounting
principles or practices, financial statement disclosure or auditing scope or
procedure, which disagreements, if not resolved to Eisner's satisfaction, would
have caused Eisner to make reference to the subject matter of the
disagreement(s) in connection with its reports.
The Company has requested Eisner to furnish a letter addressed to the
Securities and Exchange Commission stating whether it agrees with the statements
made by the Company in response to Item 304(a) of Regulation S-K. The Company
has requested that Eisner provide the letter as promptly as possible so that the
Company can file it with the Commission.
10
On April 27, 2005, the Company retained Carlin, Charron & Rosen, LLP
("CCR") to act as its independent registered public accounting firm. A
representative of CCR is expected to be in attendance at the Annual Meeting, to
have an opportunity to make a statement if the representative desires to do so
and to be available to respond to appropriate questions.
AUDIT FEES
AUDIT FEES. Eisner LLP billed Delcath $65,500 and $75,500, respectively,
for professional services rendered for the audit of Delcath's annual financial
statements for each of 2003 and 2004, and the reviews of the financial
statements included in Delcath's Quarterly Reports on Form 10-QSB filed for the
first three quarters of 2003 and 2004.
AUDIT RELATED FEES. During the years 2003 and 2004, Eisner LLP did not
provide audit related services to the Company.
TAX FEES. During 2003 and 2004, Eisner LLP did not provide tax services to
the Company.
ALL OTHER FEES. Eisner LLP billed Delcath $19,775 for 2003 and $20,200 in
2004 for other fees. These fees were for professional services rendered in
connection with registration statements we filed with the Securities and
Exchange Commission and subsequent amendments thereto.
STOCKHOLDER PROPOSALS
It is contemplated that the next Annual Meeting of Stockholders will be
held on or about June 13, 2006. To be eligible for inclusion in the proxy
statement to be furnished to all stockholders entitled to vote at the 2006
Annual Meeting of Stockholders, proposals must be addressed to the Secretary of
Delcath and must be received at Delcath's principal executive offices not later
than January 5, 2006. In order to avoid controversy as to the date on which a
proposal was received by Delcath, it is suggested that any stockholder who
wishes to submit a proposal submit such proposal by Certified Mail, Return
Receipt Requested.
If any stockholder proposes to make any proposal at the 2006 Annual
Meeting of Stockholders which proposal will not be included in Delcath's proxy
statement for such meeting, such proposal must be received by March 20, 2006 to
be considered timely for purposes of Rule 14a-4(c) under the Securities Exchange
Act of 1934. The form of proxy distributed by the Board of Directors for such
meeting will confer discretionary authority to vote on any such proposal not
received by such date. If any such proposal is received by such date, the proxy
statement for the meeting will provide advice on the nature of the matter and
how Delcath intends to exercise its discretion to vote on each such matter if it
is presented at that meeting.
EXPENSES AND SOLICITATION
The costs of printing and mailing proxies will be borne by Delcath. In
addition to soliciting stockholders by mail or through its regular employees,
Delcath may request banks, brokers and other custodians, nominees and
fiduciaries to solicit their customers who have stock of Delcath registered in
the name of a nominee and, if so, will reimburse such banks, brokers and other
custodians, nominees and fiduciaries for their reasonable out-of-pocket costs.
Solicitation by officers and employees of Delcath may also be made of some
stockholders following the original solicitation.
11
OTHER BUSINESS
The Board of Directors knows of no other items that are likely to be
brought before the meeting except those that are set forth in the foregoing
Notice of Annual Meeting of Stockholders. If any other matters properly come
before the meeting, the persons designated on the enclosed proxy will vote in
accordance with their judgment on such matters.
By Order of the Board of Directors
/s/ M. S. Koly
M. S. KOLY,
President and Chief Executive Officer
12
ANNUAL MEETING OF STOCKHOLDERS OF
DELCATH SYSTEMS, INC.
JUNE 14, 2005
PLEASE MARK, DATE, SIGN AND MAIL
YOUR PROXY CARD IN THE
ENVELOPE PROVIDED AS SOON
AS POSSIBLE
Please detach and mail in the envelope provided
THE BOARD OF DIRECTORS RECOMMENDS A VOTE "FOR" THE ELECTION OF THE DIRECTORS.
MARK, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK
YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE [X]
--------------------------------------------------------------------------------
1. Election of Directors.
[ ] FOR ALL NOMINEES [ ] M.S. Koly
[ ] Samuel Herschkowitz
[ ] WITHHOLD AUTHORITY
FOR ALL NOMINEES as Class II Directors
[ ] FOR ALL EXCEPT
(See Instruction below)
INSTRUCTION: To withhold authority to vote for any individual
nominee(s), mark "FOR ALL EXCEPT" and fill in the box next to each
nominee you wish you withhold.
To change the address on your account, please check the box at right
and indicate your new address in the space above. Please note that [ ]
changes to the registered name(s) on the account may be submitted via
this method.
THIS PROXY,WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED. IF NO DIRECTION
IS MADE, THE PROXY SHALL BE VOTED FOR THE ELECTION OF THE LISTED NOMINEES AS
DIRECTORS, AND, IN THE CASE OF OTHER MATTERS THAT LEGALLY COME BEFORE THE
MEETING, AS SAID ATTORNEY(S) MAY DEEM ADVISABLE.
PLEASE CHECK HERE IF YOU PLAN TO ATTEND THE ANNUAL MEETING OF
STOCKHOLDERS ON TUESDAY, JUNE 14, 2005 AT 11:00 A.M. AT THE HOLIDAY [ ]
INN SELECT, 700 MAIN STREET, STAMFORD, CONNECTICUT.
Signature of Stockholder _______________________ Date: _____________ Signature
of Stockholder ________________________ Date: _______________
NOTE: This proxy must be signed exactly as the name appears hereon. When
shares are held jointly, each holder should sign. When signing as
executor, administrator, attorney, trustee or guardian, please give
full title as such. If the signer is a corporation, please sign full
corporate name by a duly authorized officer, giving full title as such.
If signer is a partnership, please sign in partnership name by an
authorized person.
13
DELCATH SYSTEMS, INC.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 14, 2005
Revoking all prior proxies, the undersigned, a stockholder of DELCATH
SYSTEMS, INC. (the "Company"), hereby appoints Samuel Herschkowitz, M.D. and M
.S. Koly, or either of them, as attorneys and agents of the undersigned, with
full power of substitution, to vote all of the shares of the Company's Common
Stock, par value $0.01 per share ("Common Stock") owned by the undersigned at
the Annual Meeting of the Stockholders of the Company to be held on June 14,
2005 at the HOLIDAY INN SELECT, 700 MAIN STREET, STAMFORD, CONNECTICUT, AT 11:00
a.m. local time, and at any adjournment thereof, as fully and effectively as the
undersigned could do if personally present and voting, hereby approving,
ratifying, and confirming all that said attorney and agent or his substitute may
lawfully do in place of the undersigned as indicated on the reverse.
IMPORTANT: SIGNATURE REQUIRED ON THE REVERSE SIDE
14