SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934
(AMENDMENT NO. )
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(as permitted by Rule 14a-6(e)(2))
|_| Definitive Proxy Statement
|_| Definitive Additional Materials
|_| Soliciting Material Pursuant to ss.240.14a-12
DELCATH SYSTEMS, INC.
(Name of Registrant as Specified In Its Charter)
ROBERT LADD
LADDCAP VALUE ASSOCIATES LLC
LADDCAP VALUE PARTNERS LP
(Name(s) of Person(s) Filing Proxy Statement, if other than the Registrant)
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LADDCAP VALUE PARTNERS LP
650 FIFTH AVENUE, SUITE 600
NEW YORK, NY 10019
(212) 259-2070
Dear Fellow Delcath Stockholders:
Laddcap Value Partners LP ("LADDCAP") is the largest stockholder of
Delcath Systems, Inc. ("DELCATH" or the "COMPANY"), owning 2,163,527 or over 11%
of the Company's outstanding shares. We own more Delcath shares than all of
Delcath's officers and directors combined. We believe that Delcath has
significant inherent value that has been inadequately exploited by the current
Board of Directors and management. We are eager to advance the Company's
technology with a higher degree of urgency by ensuring that the Board of
Directors and management has access to all available skills and resources. Our
proposed changes are intended to increase the likelihood of maximum value
realization for the benefit of all Delcath stockholders in the near and
long-term.
We are asking for your written consent to remove all directors from
Delcath's board and, upon such removal, to replace them with our nominees. As
many of you are aware, we recently challenged the re-election of Mark Corigliano
and Victor Nevins to the Company's board because we did not believe that they
had the necessary experience to guide Delcath in the future and because we
questioned the current board's independence and oversight of management. Based
on the voting information disclosed by Delcath from the annual meeting, it
appears that over 56% of the shares actually voted by Delcath stockholders were
voted to withhold support for Messrs. Corigliano and Nevins. This significant
showing by fellow stockholders does not include any shares voted by brokers on
behalf of their clients who did not respond. In addition, nearly 60% of the
votes cast were in favor of Laddcap's proposal that Delcath retain an investment
banker, despite the opposition from Delcath.
We strongly believe that the vote at the annual meeting reflected
stockholders' desire for change and for a cessation of business as usual. As
succinctly stated at the meeting by an institutional stockholder, "when is this
company going to grow up?" Based on many conversations with stockholders around
the time of the annual meeting, it appears to us that many stockholders feel
that the great promise of the Company's device is potentially being compromised
by a lack of urgency on the part of a board that we view as inexperienced, and
by shortcomings in corporate governance and management oversight.
Shortly after the annual meeting, we approached Delcath with a simple
proposition: remove Mark Corigliano, Victor Nevins and Daniel Isdaner as
directors and replace them with three independent directors with professional
experience from which Delcath can draw as it looks toward FDA approval of its
delivery system. Unfortunately, our simple proposal was rejected and in its
place Delcath announced plans to expand the board to include two additional
unnamed directors. We did not agree with this proposed change as we believe that
adding two additional directors to the board will not change the oversight of
management and will not provide the substantive change that we believe is
necessary.
The public disclosure by Delcath of the proposed board expansion
occurred on June 27, 2006, when it issued a press release. On July 10, 2006, two
weeks later, Laddcap withdrew its request for a special meeting of Delcath's
stockholders. These two events are entirely unrelated. In connection with
Laddcap's withdrawal of its request for a special meeting, each of Delcath and
Laddcap retained any and all of their rights against the other.
In light of the Company's actions and in light of what we believe is
the prevailing desire of stockholders for substantive change, we believe that it
is necessary and appropriate to bring the issue to you, our fellow stockholders,
as soon as possible. Delcath is your company and the choice is now yours to
make.
We are asking your consent to:
1. remove without cause M.S. Koly, Samuel Herschkowitz,
M.D., Mark A. Corigliano, Daniel Isdaner and Victor
Nevins as directors of the Company and any other
person or persons (other than the persons elected
pursuant to this proposed action by written consent)
elected or appointed to the Board of Directors (the
"BOARD") of the Company prior to the effectiveness of
these Proposals; and
2. elect the following five persons as directors of the
Company to fill the vacancies resulting from Proposal
1: Jonathan A. Foltz, Michael Karpf, M.D., Robert B.
Ladd, Paul William Frederick Nicholls and Fred S.
Zeidman (the "UNAFFILIATED SLATE"); and
3. repeal each of the provisions of the Company's Bylaws
or amendments of the Bylaws that are adopted after
December 31, 2005 and before the effectiveness of the
foregoing two Proposals.
In an effort to increase both short-term and long-term stockholder
value, we are proposing the Unaffiliated Slate, which we believe would bring to
the Company diverse experiences from the medical, financial, and regulatory
fields. We believe that the experiences of the Unaffiliated Slate stand in
contrast to Delcath's existing Board. A biographical summary of each member of
the Unaffiliated Slate is included for your review in the Preliminary Consent
Solicitation Statement.
If elected, among other things, the Unaffiliated Slate anticipates
reviewing Delcath's corporate governance practices against current best
practices. This review would include consideration of (i) rescinding Delcath's
poison pill (which was never approved by Delcath's stockholders), (ii)
eliminating the staggered terms of Delcath's directors, and (iii) adopting
majority voting for directors. In addition, the Unaffiliated Slate will avail
itself of specialists in the field of executive compensation to set appropriate
guidelines for cash and stock compensation for senior management and directors.
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With respect to the business operations of Delcath, if elected, during
the balance of fiscal year 2006 the Unaffiliated Slate anticipates Delcath: (i)
with the support of the National Cancer Institute (NCI), seeking to establish at
least two additional sites for Delcath's ongoing Phase III trial using
melphalan; (ii) seeking opportunities to enhance its working relationship with
the NCI by funding new initiatives using Delcath's device; (iii) reviewing
whether continuing to devote resources to the doxorubucin Phase III trials
undermines the melphalan Phase III trial treating the same patient population;
(iv) establishing a collaboration with a filter expert to improve and customize
the filters for use within the Delcath system, as well as for future filter
variations to address alternative uses of Delcath's device; (v) testing the
feasibility of using its device in the treatment of Hepatitis C; and (vi)
retaining a nationally recognized investment banking firm with expertise in the
medical device industry.
For 2007, the Unaffiliated Slate anticipates Delcath also trying to (i)
add at least one additional Phase III site to speed trial completion; (ii)
expand testing to at least one new organ or body region; and (iii) establish a
presence for Delcath within at least one major cancer conference.
Through the attached Preliminary Consent Solicitation Statement,
Laddcap is providing all holders of Delcath's shares as of July 27, 2006 (the
"RECORD DATE") with an opportunity to remove and, subject to the qualifications
set forth on page 14 under the heading "CONSENT PROCEDURES", replace the members
of the Board with the Unaffiliated Slate upon such removal. All Delcath
stockholders, who hold shares as of the Record Date, are being asked to express
their written CONSENT to the three proposals by marking, signing, and dating the
enclosed BLUE Consent Card and returning it in the enclosed, postage-paid
envelope, to The Altman Group, Inc. at 1200 Wall Street West, 3rd Floor,
Lyndhurst, NJ 07071.
LADDCAP CAN ONLY IMPLEMENT ITS PLAN WITH YOUR HELP
LADDCAP URGES YOU TO TAKE ADVANTAGE OF THIS OPPORTUNITY TO CHANGE THE
COMPOSITION OF THE BOARD. LADDCAP BELIEVES THIS CHANGE WILL BENEFIT ALL
STOCKHOLDERS. IF WE FAIL IN THIS EFFORT, WE MAY NOT INITIATE ANOTHER OPPORTUNITY
TO BRING NEW LEADERSHIP TO DELCATH.
PLEASE CONSENT WITH RESPECT TO ALL SHARES FOR WHICH YOU WERE ENTITLED
TO GIVE CONSENT AS OF THE RECORD DATE, AS SET FORTH ON YOUR BLUE CONSENT CARD,
IN FAVOR OF EACH PROPOSAL AS DESCRIBED IN THE ACCOMPANYING PRELIMINARY CONSENT
SOLICITATION STATEMENT.
If you have any questions regarding the procedures concerning the
enclosed Consent Card, or if you have any questions, kindly contact either
Robert Ladd at (212) 259-2070 or The Altman Group, Inc. at (800) 581-5375 (Banks
and Brokerage Firms please call (201) 806-7300). The Altman Group, Inc. is
assisting Laddcap with its effort to solicit written consents.
Thank you for your support,
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LADDCAP VALUE PARTNERS LP
/S/ Robert B. Ladd
By: ___________________________________
Robert B. Ladd, in his capacity as the managing member of
Laddcap Value Associates LLC, the general partner of
Laddcap Value Partners LP
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IMPORTANT
PLEASE READ THIS CAREFULLY
1. If you hold your shares in your own name, please sign, date
and mail the enclosed BLUE Consent Card to The Altman Group in
the postage-paid envelope provided to 1200 Wall Street West,
3rd Floor, Lyndhurst, NJ 07071.
2. If your shares are held in the name of a brokerage firm, bank
nominee or other institution, only it can execute a written
consent representing your shares and only on receipt of your
specific instructions. Accordingly, you should contact the
person responsible for your account and give instructions for
a BLUE Consent Card to be signed representing your shares. We
urge you to confirm in writing your instructions to the person
responsible for your account and provide a copy of those
instructions to us in care of The Altman Group, Inc. so that
we will be aware of all instructions given and can attempt to
ensure that those instructions are followed.
If you have any questions or require any assistance in executing your
written consent, please call:
THE ALTMAN GROUP, INC.
1200 Wall Street West, 3rd Floor, Lyndhurst, NJ 07071
(800) 581-5375
Banks and Brokers Call Collect: (201) 806-7300
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PRELIMINARY COPY
DATED August 1, 2006
LADDCAP VALUE PARTNERS LP
650 FIFTH AVENUE, SUITE 600
NEW YORK, NY 10019
(212) 259-2070
--------------------------------
PRELIMINARY CONSENT SOLICITATION STATEMENT
OF
LADDCAP VALUE PARTNERS LP
--------------------------------
TO REMOVE WITHOUT CAUSE ALL EXISTING DIRECTORS OF DELCATH'S
CURRENT BOARD OF DIRECTORS,
AND
TO ELECT, SUBJECT TO THE QUALIFICATIONS SET FORTH ON PAGE 14 UNDER THE HEADING
"CONSENT PROCEDURES", FIVE NEW DIRECTORS TO FILL THE
VACANCIES CAUSED BY THE REMOVAL OF THE EXISTING DIRECTORS,
AND
TO REPEAL ANY CHANGES TO THE BYLAWS THAT THE CURRENT BOARD OF
DIRECTORS MAY MAKE
To Fellow Stockholders of Delcath Systems, Inc.:
Laddcap Value Partners LP ("LADDCAP") is the beneficial owner
of over 11% of the issued and outstanding shares of common stock of Delcath
Systems, Inc., a Delaware corporation ("DELCATH" or the "Company").
Laddcap believes that the time has come to remove and replace
the current Board of Directors (the "CURRENT BOARD") with the slate of
experienced nominees who are all independent of the Company's management (the
"UNAFFILIATED SLATE"). Laddcap is furnishing this Preliminary Consent
Solicitation Statement in connection with its solicitation of written consents
from the holders of common stock, par value $0.01 per share (the "Shares") of
the Company, entitled to give consent as of July 27, 2006 (the "RECORD DATE"),
to act on the following proposals (each individually, a "PROPOSAL" and
collectively, the "PROPOSALS") without a meeting of stockholders, pursuant to
Section 228(a) of the General Corporation Law of the State of Delaware:
1. to remove without cause M.S. Koly, Samuel Herschkowitz, M.D.,
Mark A. Corigliano, Daniel Isdaner and Victor Nevins as
directors of the Company and
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any other person or persons (other than the persons elected
pursuant to this proposed action by written consent) elected
or appointed to the Board of Directors (the "BOARD") of the
Company prior to the effectiveness of these Proposals; and
2. elect the following five persons as directors of the Company
to fill the vacancies resulting from Proposal 1: Jonathan A.
Foltz, Michael Karpf, M.D., Robert B. Ladd, Paul William
Frederick Nicholls and Fred S. Zeidman; and
3. repeal each of the provisions of the Company's Bylaws or
amendments of the Bylaws that are adopted after December 31,
2005 and before the effectiveness of the foregoing two
Proposals.
Each Proposal will be effective, subject to the qualifications
set forth on page 14 under the heading "CONSENT PROCEDURES", without further
action when we deliver to the Company consents from the holders of a majority of
the issued and outstanding Shares. Laddcap beneficially owns an aggregate of
2,163,527 Shares as of the Record Date and intends to consent in favor of each
of the Proposals.
The purpose of this consent solicitation is to remove the
Current Board and thereupon install five new directors on the Board who we
believe will (i) implement new strategies to maximize short-term and long-term
stockholder value, (ii) uphold the highest standards of corporate governance and
(iii) provide greater oversight of the Company's management.
THIS CONSENT SOLICITATION IS BEING MADE BY LADDCAP AND NOT BY
OR ON BEHALF OF THE COMPANY. LADDCAP IS ASKING THE STOCKHOLDERS OF THE COMPANY
TO ACT BY WRITTEN CONSENT WITH RESPECT TO THESE PROPOSALS ON THE ACCOMPANYING
BLUE CONSENT CARD.
A consent solicitation is a process that allows a company's
stockholders to act by submitting written consents to any proposed stockholder
action in lieu of voting in person or by proxy at an annual or special meeting
of stockholders. A written consent solicitation requires the majority vote of
all stock outstanding of the Company. Laddcap does not believe that the Current
Board is acting in your best interests, and is therefore asking all of Delcath's
stockholders to express their consent to the Proposals set forth above by
marking, signing and dating the enclosed BLUE Consent Card and returning it in
the enclosed, postage-paid envelope, to The Altman Group, Inc., as set forth in
the Preliminary Consent Solicitation Statement at 1200 Wall Street West, 3rd
Floor, Lyndhurst, NJ 07071.
This Preliminary Consent Solicitation Statement, the enclosed
letter to stockholders and the BLUE Consent Card are first being furnished to
stockholders on or about August [__], 2006.
Approval of the Proposals requires the written consent of the
holders of a majority of the outstanding Shares as of July 27, 2006, the Record
Date. Stockholders of record as of the close of business on the Record Date will
be entitled to one vote for each Share for which they are entitled to give
consent. Laddcap has set September 15, 2006 as the goal for the submission
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of written consents; however, the last day for the submission of written
consents to the Company under Delaware law is September 25, 2006. Based on the
most recent publicly available information filed by the Company with the
Securities and Exchange Commission, as of the Record Date, there were 19,541,674
Shares issued and outstanding.
WE URGE YOU TO ACT AS SOON AS POSSIBLE TO ENSURE THAT YOUR
CONSENT WILL COUNT.
If you have any questions regarding the procedures by which
you can submit your written consent, or if you have any questions, kindly
contact The Altman Group, Inc. at (800) 581-5375 (Banks and Brokerage Firms
please call (201) 806-7300). The Altman Group, Inc. is assisting Laddcap with
its effort to solicit written consents.
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REASONS FOR THE SOLICITATION
We are Delcath's largest stockholder, owning 2,163,527 Shares,
which represents over 11% of the outstanding Shares. We have been a Delcath
stockholder since 2004.
For more than a year, we have been trying to engage in a
meaningful dialogue with Delcath's Board and management to explore various ways
that we can work with Delcath in enhancing value for all stockholders. To our
surprise, Delcath's Board and its President, Mr. M.S. Koly, effectively rejected
our efforts.
Because of Delcath's and Mr. Koly's refusal to engage in a
meaningful dialogue, we felt that we were left with no choice but to state
publicly our frustrations concerning Delcath via a proxy solicitation, the cost
of which was borne exclusively by us. In connection with Delcath's most recent
annual meeting that was held on June 13, 2006, we mounted a proxy campaign to:
1. solicit withhold votes against Mark Corigliano and Victor
Nevins, the directors that were standing for re-election
at the annual meeting; and
2. support a stockholder proposal recommending that Delcath's
Board retain a nationally recognized investment banking
and/or merger advisory firm.
Based on the results of our proxy campaign and our
observations of fellow Delcath stockholders at the annual meeting, we believe
that there is real displeasure by Delcath's stockholders with the Current Board.
Based on the voting information disclosed by Delcath from the annual meeting, it
appears that of the Shares that were voted by stockholders or for which
stockholders instructed their brokers how to vote, over 56% of the Shares were
voted to withhold their votes for Messrs. Corigliano and Nevins. In addition, on
our proposal that the Company retain an investment bank, nearly 60% of the votes
cast were in favor of the proposal.
At the annual meeting, which Robert Ladd attended,
stockholders asked many direct questions of Mr. Koly and stockholders expressed
concern with the composition of the Current Board and the Company's management.
Mr. Ladd called Mr. Koly the morning after the annual meeting to propose a
solution that he believed would benefit all Delcath stockholders and which would
address concerns that other stockholders expressed publicly at the annual
meeting. Mr. Ladd's basic proposal was simple: that the three current
independent directors resign from Delcath's Board. These three directors would
then be replaced by three, mutually agreeable, new independent directors, each
of whom would have relevant experience. Mr. Ladd believed that three new
independent directors, to replace the current independent directors (none of
whom have any demonstrable experience regarding public companies and/or the
medical device industry), would assist Delcath in achieving its potential.
Mr. Ladd and Mr. Koly exchanged phone calls for approximately
a week discussing the proposal and various modifications proposed by Mr. Koly.
Mr. Ladd considered Mr. Koly's counter-proposals, but ultimately concluded that
Mr. Koly's proposals were cosmetic and lacking in substance. Mr. Koly then
stated that his preferred course of action was approved by the Current Board and
that Delcath would not agree to have new independent directors replace any of
Delcath's current directors. Rather the Current Board, two of whom over half of
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Delcath's stockholders essentially gave a vote of non-confidence to at the
annual meeting, would at some point in the future, nominate and elect two
additional independent directors.
Mr. Ladd believes that Delcath's plan to have the Current
Board nominate two new directors, a minority of the total Board, will not serve
the interests of Delcath's stockholders. Moreover, Mr. Ladd believes the recent
changes proposed by Mr. Koly are cosmetic changes and will not materially change
the Delcath Board's ability to exercise true independent control over Delcath's
management or to set a strategic direction for Delcath that seeks to increase
stockholder value.
Because of Mr. Koly's actions, Mr. Ladd feels that it will
serve the best interests of all Delcath stockholders if an entirely new Board is
appointed to replace the Current Board. It should be noted, that Mr. Ladd, by
virtue of this consent solicitation, is not seeking to change the current
management of Delcath. If this consent solicitation is successful, at least
immediately after the completion of the consent solicitation, Mr. Koly would
remain as the President and CEO of Delcath and Dr. Herschkowitz would remain
Delcath's Chief Technical Officer, although they would not remain as members of
the Board. The new Board would have the authority and duty to manage the affairs
of Delcath as it deems to be in the best interests of Delcath and its
stockholders.
To assist you in understanding our position, outlined below
are some of the events and circumstances that led Laddcap to take this action:
o We believe that Delcath's Board lacks the types of
professional experiences from which Delcath's management can
draw as it looks toward FDA approval of its delivery system. A
review of Delcath's public filings reveals that Delcath's
current independent directors' experience relates to
microcomputers, restaurant management, real estate and
children's residential summer camps.
o Laddcap and stockholders representing nearly 60% of Delcath's
outstanding Shares who voted at the annual meeting apparently
think it is appropriate that Delcath avail itself of true
expertise. Our stockholder proposal, which was approved
overwhelmingly by the stockholders at the annual meeting,
asked Delcath to do just that by retaining a
nationally-recognized investment banking firm with expertise
in the medical device industry.
o Delcath and its President, Mr. Koly, are co-plaintiffs in a
lawsuit pending in the United States District Court for the
District of Connecticut (Case No.: 305 CV 1281 (JCH)).
According to the complaint, Mr. Koly, Mr. Corigliano (a
Delcath director), and the defendant are all members of the
Rolls-Royce Owners Club, and certain libelous and slanderous
statements were made in connection with internal Rolls-Royce
club operations.
The Rolls-Royce litigation concerns us because Delcath has not
publicly disclosed the effect of the litigation to its
stockholders despite the allegation that Delcath's ability to
secure future investment capital has been damaged.
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We are also concerned that Delcath's treasury may be funding
what ostensibly appears to be a personal lawsuit by Mr. Koly,
an example of the Current Board's lack of effective
independent oversight of Delcath, in our opinion.
o In 2005, the Compensation Committee of the Current Board
awarded a total of 940,000 stock options to the members of the
Current Board. The members of the Compensation Committee,
comprised of two independent directors, awarded themselves
140,000 options each, while Mr. Koly received 400,000 options.
Non-director employees of the Company received only a total of
17,500 stock options.
We believe that our interests are aligned with yours - to see
enhancement in the value of Delcath for all stockholders. We hope that you will
join Laddcap in questioning the people who are leading our Company and in
demanding accountability from them. Please support our efforts by consenting
with respect to all Shares for which you were entitled to give consent as of the
Record Date, as set forth on the BLUE Consent Card, in favor of each Proposal.
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THE PROPOSALS
We are asking Delcath stockholders to consent to three
Proposals.
The first Proposal removes without cause all of the existing
directors including, M.S. Koly, Samuel Herschkowitz, M.D., Mark A. Corigliano,
Daniel Isdaner and Victor Nevins or any other person or persons (other than the
persons elected pursuant to this proposed action by written consent) elected or
appointed to the Board prior to the effectiveness of these Proposals. Delcath's
certificate of incorporation explicitly allows directors to be removed by
stockholders without cause.
WE URGE YOU TO CONSENT TO REMOVE ALL OF THE CURRENT DIRECTORS
The second Proposal elects five new persons as directors of the Company
to fill the vacancies resulting from Proposal 1 upon such removal. These new
directors are Jonathan A. Foltz, Michael Karpf, M.D., Robert B. Ladd, Paul
William Frederick Nicholls and Fred S. Zeidman. Please see the next section with
the heading "NOMINEES" for information on these nominees.
WE URGE YOU TO CONSENT TO THE ELECTION OF EACH OF THE NOMINEES
The third Proposal repeals each of the provisions of the
Company's Bylaws or amendments of the Bylaws that are adopted after December 31,
2005 and before the effectiveness of the foregoing two Proposals. Delcath's
Bylaws can be amended by the current Board. In light of this consent
solicitation, should the current Board undertake to amend Delcath's Bylaws to
thwart the will of the stockholders as expressed by this consent solicitation or
for some other reason, this Proposal will simply restore Delcath's Bylaws as
they existed before any changes that the current Board may make.
WE URGE YOU TO CONSENT TO REPEAL ANY BYLAWS OR BYLAW AMENDMENTS
THAT THE CURRENT BOARD MAY MAKE AFTER DECEMBER 31, 2005
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THE NOMINEES
Set forth below are the name, business address, present
principal occupation and employment and material occupations, positions,
offices, or employment for the past five years of each Nominee. This information
has been furnished to Laddcap by each individual Nominee. Each Nominee has
agreed to serve as a director of the Company if duly elected, and has consented
to being named herein. Each person listed below is a citizen of the United
States of America.
NAME AND BUSINESS ADDRESS AGE PRINCIPAL OCCUPATION FOR PAST FIVE YEARS AND DIRECTORSHIPS
------------------------- --- ----------------------------------------------------------
From September 2001 to the present, Mr. Foltz has been an independent
consultant / strategic advisor to high-tech companies and medical device
companies, including Delcath Systems, Inc. From 1992 until 2001, he was the
full-time Director of Operations of Delcath. Additionally, from June 2002
Jonathan A. Foltz to the present, Mr. Foltz has served as the President and co-founder of OS
125 Main Street, 4th Floor 45 Technology, LLC, a medical device company developing a catheter for use in
Westport, CT 06880 gynecology procedures. Mr. Foltz earned a B.S. in Finance and Computer
Science from Lehigh University and an M.B.A. from the University of
Connecticut. Mr. Foltz has also earned a CFA designation.
Since October, 2003 to the present, Dr. Karpf has served as the Executive
Vice President for Health Affairs for the University of Kentucky College
of Medicine and Chandler Medical Center. From January 1996 to October
Michael Karpf, M.D. 2003, he served as the Vice Provost for hospitals at the UCLA Medical
c/o UK Chandler Medical Center Center. Dr. Karpf received both his undergraduate and medical degrees
University of Kentucky 61 from the University of Pennsylvania. After an internship in Medicine at
Rose Street Johns Hopkins Hospital, he served as a Research Associate in the
Lexington, KY 40536 Laboratory of Immunology at the National Institutes of Health. He
returned to the University of Pennsylvania to complete his medical residency,
fellowship in Hematology and Oncology and a Chief Residency in Internal
Medicine.
Since January 2003 to the present, Mr. Ladd has served as the founder and
managing member of Laddcap Value Associates LLC, the general partner of
Robert B. Ladd Laddcap Value Partners LP. From 1992 to November 2002, Mr. Ladd served as
c/o Laddcap Value Associates, LLC a Managing Director for Neuberger Berman. Mr. Ladd graduated from the
650 Fifth Avenue, Suite 600 48 University of Pennsylvania's Wharton School with a B.S. in Economics in
New York, NY 10019 1980. He received his MBA from Northwestern University's Kellogg School
of Management in 1983. Mr. Ladd has also earned a CFA designation.
Mr. Nicholls is currently President/CEO of Team Continuum Inc, a 501(c)(3)
organization, dedicated to helping people living with cancer. Since September
2000, Mr. Nicholls has been a self-employed Business Development Director
Paul William Frederick Nicholls consulting with a number of large international organizations,
c/o Team Continuum Inc. 58 particularly in the Biotech industry. Prior to 2000, Mr. Nicholls was a
460 West 49th Street Business Development Director with the global advertising agency Ogilvy
New York, NY 10019 and Mather, specializing in cause related marketing and sponsorships. He
was educated at Tonbridge School in England; Mr.Nicholls went on to Graduate
from Maidstone College of Art and Design, gaining his FTC with honors.
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Since July 2004, Mr. Zeidman has been a Senior Director of Governmental
Affairs of Greenberg Traurig, LLP. Mr. Zeidman served as Seitel Inc.'s
interim president and chief executive officer from October 2004 until
Fred S. Zeidman December 2004. He also served as interim chief executive officer of
c/o Greenberg Traurig LLP Seitel Inc. from November 2002 to December 2002. Mr. Zeidman also
1000 Louisiana Street 60 currently serves as Chairman of the Board of Seitel, Inc. and Corporate
Suite 1800 Strategies, Inc. and serves as a director of Prosperity Bank and JL
Houston, TX 77002 French Automotive Castings, Inc., and as Chairman of the United States
Holocaust Memorial Council in Washington, D.C. Mr. Zeidman graduated from
Washington University and received an M.B.A. from New York University.
CONSENT PROCEDURES
Delcath is a Delaware corporation and is, therefore, subject
to the General Corporation Law of the State of Delaware (the "DELAWARE GCL").
Section 228(a) of the Delaware GCL provides that, unless otherwise provided in
the certificate of incorporation of a corporation, any action required to be or
that may be taken at a meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if written consents, setting forth the
action so taken, are signed and delivered to the corporation by the holders of
outstanding shares having not less than the minimum number of votes that would
be necessary to take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Delcath's certificate of incorporation does
not prohibit stockholder action by written consent.
Section 141(k) of the Delaware GCL provides that, unless
otherwise set forth in a corporation's certificate of incorporation, directors
elected to a classified (staggered) board may be removed only with cause.
Although Delcath has a staggered board, its certificate of incorporation
provides that directors may be removed with or without cause, making Laddcap's
solicitation to remove all of Delcath's directors possible.
Delcath's certificate of incorporation and By-laws also provide that
only directors then in office may fill vacancies on the Board. In the event that
Proposal 1 in Laddcap's consent solicitation becomes effective, all directors
will be removed and there will be no director in office who could elect
directors to fill vacancies. In the event a corporation has no directors in
office, Section 223(a) of the Delaware GCL empowers stockholders to call a
special meeting of stockholders in accordance with the corporation's certificate
of incorporation or bylaws or apply to the Delaware Court of Chancery to order
the holding of a meeting of stockholders for an election. Accordingly, since
Delcath's stockholders could call a special meeting of stockholders in
accordance with Delcath's Bylaws (or alternatively to request that the Delaware
Court of Chancery order the holding of one) and elect directors at such a
meeting, Laddcap believes that Proposal 2, electing the new directors by written
consent rather than electing the directors as they would be permitted to do at a
meeting of Delcath's stockholders, will be effective to elect the new directors.
In the event that a Court determines otherwise, however, Laddcap would likely
act promptly to attempt to call a special meeting of Delcath's stockholders in
accordance with
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Delcath's Bylaws, or apply to the Delaware Court of Chancery to order such a
meeting, to elect its slate of directors.
THE EFFECTIVENESS OF PROPOSAL 1 (THE REMOVAL OF DELCATH'S
DIRECTORS) IS NOT CONDITIONED ON THE APPROVAL OR VALIDITY OF PROPOSALS 2 OR 3;
THE EFFECTIVENESS OF PROPOSAL 2 (THE ELECTION OF LADDCAP'S SLATE OF DIRECTORS)
IS CONDITIONED ON THE APPROVAL OF PROPOSAL 1, BUT NOT CONDITIONED ON THE
APPROVAL OR VALIDITY OF PROPOSAL 3; AND THE EFFECTIVENESS OF PROPOSAL 3 (THE
REPEAL OF THE POST-DECEMBER 31, 2005 CHANGES TO DELCATH'S BYLAWS) IS NOT
CONDITIONED ON THE APPROVAL OR VALIDITY OF PROPOSALS 1 OR 2.
Subject to the foregoing, the Proposals will become effective
when Laddcap submits to Delcath properly completed, signed, dated, unrevoked and
effective BLUE Consent Cards (or other forms of written consent) indicating
consent to the Proposals, signed by the holders of record on the Record Date of
a majority of the Shares outstanding as of the Record Date. Under Section 228(c)
of the Delaware GCL, such consents must be delivered within 60 days of the
earliest dated consent delivered to Delcath, which was July 27, 2006.
Accordingly, this consent solicitation must be completed by September 25, 2006.
However, Laddcap has established September 15, 2006 as the goal for the
submission of written consents to Delcath. If the Proposals are adopted pursuant
to this consent solicitation, prompt notice will be given pursuant to Section
228(e) of the Delaware GCL to stockholders who have not executed and returned a
BLUE Consent Card (or other forms of written consent).
Because the Proposals will become effective only if executed
written consents representing a majority of the Shares outstanding as of the
Record Date are returned by holders of record on the Record Date, the following
actions will have the same effect as withholding consent to the Proposals: (a)
failing to execute and return a BLUE Consent Card or (b) executing and returning
a written consent marked "CONSENT WITHHELD" or "ABSTAIN" as to any Proposal. If
returned BLUE Consent Cards are executed and dated but not marked with respect
to any Proposal, the stockholder returning such card will be deemed to have
consented to such Proposal. A broker non-vote will have the same effect as a
vote against the Proposals.
PROCEDURAL INSTRUCTIONS
If a stockholder is a record holder of Shares as of the close
of business on the Record Date, such stockholder may elect to consent, withhold
consent or abstain with respect to a Proposal by marking the "CONSENT",
"WITHHOLD CONSENT" or "ABSTAIN" box, as applicable, underneath the Proposal on
the accompanying BLUE Consent Card and signing, dating and returning it promptly
in the enclosed postage-paid envelope.
UNDER THE DELAWARE GCL, ONLY STOCKHOLDERS OF RECORD ON THE
RECORD DATE ARE ELIGIBLE TO GIVE THEIR CONSENT TO THE PROPOSALS. THEREFORE, EACH
STOCKHOLDER IS URGED TO GRANT ITS CONSENT PURSUANT TO THE ENCLOSED BLUE CONSENT
CARD WITH RESPECT TO ALL SHARES HELD AS OF THE RECORD DATE.
-15-
IN ADDITION, ANY STOCKHOLDER OWNING SHARES BENEFICIALLY (BUT
NOT OF RECORD), SUCH AS A PERSON WHOSE OWNERSHIP OF SHARES IS THROUGH A BROKER,
BANK OR OTHER FINANCIAL INSTITUTION, SHOULD CONTACT THAT BROKER, BANK OR
FINANCIAL INSTITUTION WITH INSTRUCTIONS TO EXECUTE THE BLUE CONSENT CARD ON SUCH
STOCKHOLDER'S BEHALF OR TO HAVE THE BROKER, BANK OR FINANCIAL INSTITUTION'S
NOMINEE EXECUTE THE CONSENT. EACH STOCKHOLDER IS URGED TO ENSURE THAT THE RECORD
HOLDER OF SUCH STOCKHOLDER'S SHARES MARKS, SIGNS, DATES AND RETURNS THE ENCLOSED
BLUE CONSENT CARD AS SOON AS POSSIBLE. EACH STOCKHOLDER IS FURTHER URGED TO
CONFIRM IN WRITING ANY INSTRUCTIONS GIVEN AND PROVIDE A COPY OF SUCH
INSTRUCTIONS TO THE ALTMAN GROUP, SO THAT THE ALTMAN GROUP MAY ALSO ATTEMPT TO
ENSURE THAT SUCH INSTRUCTIONS ARE FOLLOWED.
REVOCATION OF CONSENTS
Executed written consents may be revoked at any time, provided
that a written, dated revocation that clearly identifies the consent being
revoked is executed and delivered to The Altman Group, Inc. at 1200 Wall Street
West, 3rd Floor, Lyndhurst, NJ 07071 prior to the time that the Proposals become
effective. A revocation may be in any written form validly signed by the record
holder as of the Record Date as long as it clearly states that the written
consent previously given is no longer effective. It is requested that a copy of
any revocation sent to Laddcap also be given to The Altman Group, Inc. at the
above address so that Laddcap may more accurately determine if and when written
consent to each Proposal has been received from the holders of record on the
Record Date of a majority of the Shares then outstanding.
LADDCAP URGES YOU NOT TO SIGN ANY REVOCATION OF CONSENT CARD
THAT MAY BE SENT TO YOU BY DELCATH. IF YOU HAVE DONE SO, YOU MAY REVOKE THAT
REVOCATION OF CONSENT BY DELIVERING A LATER DATED BLUE CONSENT CARD TO THE
ALTMAN GROUP AT 1200 WALL STREET WEST, 3RD FLOOR, LYNDHURST, NJ 07071.
SOLICITATION OF CONSENTS
The solicitation of written consents pursuant to this consent
solicitation is being made by Laddcap. Consents may be solicited by mail, by
facsimile, by telephone, by telegraph, by other electronic means, in person and
by advertisements.
Laddcap has retained The Altman Group, Inc. for advisory
services in connection with this solicitation, for which The Altman Group will
receive a fee not to exceed $40,000, together with reimbursement of its
reasonable out-of-pocket expenses. In addition, under certain circumstances, The
Altman Group may receive additional amounts. Laddcap will solicit written
consents from individuals, brokers, banks, bank nominees and other institutional
holders. Laddcap has requested banks, brokerage houses and other custodians,
nominees and fiduciaries to forward all solicitation materials to the beneficial
owners of the Shares they hold of record. Laddcap will reimburse these record
holders for their reasonable out-of-pocket expenses in so
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doing. It is anticipated that The Altman Group will employ approximately 15
persons in connection with its services to Laddcap.
DELCATH EMPLOYMENT AGREEMENTS AND CHANGE OF CONTROL PAYMENTS
As set forth in Delcath's Notice of Annual Meeting of
Stockholders on Schedule 14A, as filed with the Securities and Exchange
Commission on April 24, 2006, on October 1, 2003, Delcath amended and restated
the employment agreement with M. S. Koly, Delcath's President and CEO. 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. 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). If this consent solicitation is
successful, a change of control will have occurred (as defined in the employment
agreement) and it may entitle Mr. Koly to the severance payments as set forth
above, should Mr. Koly seek to enforce this provision of his employment
agreement.
Moreover, at Mr. Koly's election, the Company will also be
obligated to pay him the excess of the aggregate fair market value of shares
subject to options held by him over the aggregate exercise price of such
options. Termination payments would be reduced to the extent such payments would
be subject to an excise tax as "excess parachute payments" under applicable
federal tax law.
Additionally, as reported by the Company in its Notice of
Annual Meeting of Stockholders on Schedule 14A, as filed with the Securities and
Exchange Commission on April 24, 2006, in 2003, Delcath's 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.
Nevins. In the event of a hostile takeover, each non-employee director other
than Dr. Herschkowitz would also receive a $100,000 cash payment in recognition
of past service. Based upon the information set forth in Delcath's Notice of
Annual Meeting of Stockholders on Schedule 14A, as filed with the Securities and
Exchange Commission on April 24, 2006, Laddcap believes that, should the
directors be removed as a result of this consent solicitation, the
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directors would not be entitled to the payments as set forth in this paragraph
because the directors would have been removed without cause, and not because of
a hostile takeover. However, there can be no guarantee that the directors who
are removed from their office as a result of a successful consent solicitation
will not seek these payments from the Company.
SOLICITATION EXPENSES
The expenses of preparing, printing and distributing this
Preliminary Consent Solicitation Statement and the cost of soliciting will be
borne by Laddcap. Such expenses are estimated to be approximately $200,000 of
which approximately $20,000 have been incurred to date. If it is successful,
Laddcap may seek reimbursement from Delcath for expenses incurred in connection
with its consent solicitation. If such reimbursement is sought, Laddcap will
submit the request for a vote of Delcath's Board.
In addition to the use of the mails, solicitation may be made
by means of facsimile, by telephone, by telegraph, by other electronic means, in
person and by advertisements, to or with, stockholders or their personal
representatives by certain of Laddcap's participants, none of whom will be
specifically compensated for such services. Additionally, the Laddcap
participants may use various Internet sites to communicate with Delcath
stockholders. Copies of soliciting materials will be furnished to banks,
brokerage houses and other custodians, nominees and fiduciaries for forwarding
to the beneficial owners of Shares for whom they hold Shares, and Laddcap will
reimburse them for their reasonable out-of-pocket expenses in connection
therewith.
PARTICIPANT INFORMATION
Under applicable rules and regulations of the Securities and
Exchange Commission, Laddcap, Laddcap Value Associates LLC ("ASSOCIATES"),
Robert B. Ladd, and each of Laddcap's nominees is deemed to be a "participant"
in Laddcap's consent solicitation. Robert B. Ladd is the managing member of
Associates, the general partner of Laddcap, and he possesses the sole power to
vote and the sole power to dispose of the Shares held by Laddcap.
In connection with the participants, Laddcap furnishes the
following information. Laddcap is a Delaware limited partnership, Associates is
a Delaware limited liability company and together with Robert B. Ladd have a
business address at 650 Fifth Avenue, Suite 600, New York, New York 10019. As of
July 27, 2006, Laddcap is the beneficial owner of 2,163,527 Shares. Information
about transactions by Laddcap in Delcath's Shares during the past two years can
be found in Appendix A to this Preliminary Consent Solicitation Statement.
Jonathan A. Foltz, a nominee, furnishes the following
information. Mr. Foltz is a natural person with a business address of 125 Main
Street, 4th Floor, Westport, CT 06880. As of July 27, 2006, Mr. Foltz is the
beneficial owner of 20,200 Shares and 10,000 non-incentive stock options to
acquire Shares (the "OPTIONS"). Since Mr. Foltz is no longer providing services
to Delcath, the Options will expire and accordingly are worthless. Information
about transactions by Mr. Foltz in Delcath's Shares during the past two years
can be found in Appendix B to this Preliminary Consent Solicitation Statement.
From September 2001 to August 2002, Mr. Foltz had a written consulting agreement
with Delcath under which he provided services such as
-18-
preparing public filings, managing investor relations and developing business
development strategy. Since August 2002, Mr. Foltz has continued to provide
consulting services to Delcath on as-needed, per diem basis. During the fiscal
year ended December 31, 2005 and from the period of January 1, 2006 to July 15,
2006, Mr. Foltz was paid $97,350 and $42,250 respectively for these consulting
services. Moreover, Delcath owes Mr. Foltz $3,250 for accrued but unpaid
consulting fees. As of July 27, 2006, Mr. Foltz is no longer providing these
consulting services to Delcath. Mr. Foltz's brother is an attorney with
Buttermore and Foltz, which provides legal services to the Company. Buttermore
and Foltz may receive more than five percent of its income from Delcath. Mr.
Foltz is unaware of the amount of income that Buttermore and Foltz or his
brother may receive from Delcath for providing legal services to the Company.
Except as disclosed in this Preliminary Consent Solicitation
Statement (including the appendices hereto), neither Laddcap nor any of the
other participants, nor any of their respective affiliates or associates,
directly or indirectly: (i) has had any relationship with the Company in any
capacity other than as a stockholder; (ii) has any agreement, arrangement or
understanding with respect to any future employment by the Company or its
affiliates; (iii) has any agreement, arrangement or understanding with respect
to future transactions to which the Company or any of its affiliates will or may
be a party, or have any material interest, direct or indirect, in any
transaction that has occurred since January 1, 2005 or any currently proposed
transaction, or series of similar transactions, which the Company or any of its
affiliates was or is to be a party and in which the amount involved exceeds
$60,000; (iv) is, and was not within the past year, party to any contract,
arrangement or understandings with any person with respect to any securities of
the Company including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loans or guarantees of profit,
division of losses or profits or the giving or withholding of proxies; or (v) is
a party adverse to the Company or any of its subsidiaries or has a material
interest adverse to the Company or any of its subsidiaries in any material legal
proceeding.
THE ALTMAN GROUP, INC.
1200 Wall Street West, 3rd Floor, Lyndhurst, NJ 07071
(800) 581-5375
Banks and Brokers Call Collect: (201) 806-7300
LADDCAP VALUE PARTNERS LP
650 Fifth Avenue, Suite 600
New York, NY 10019
(212) 259-2070
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APPENDIX A
RECENT TRANSACTIONS INVOLVING SECURITIES OF DELCATH
BY LADDCAP
--------------------------------------------------------------------------------
PURCHASE OR SALE NUMBER OF SHARES DATE
--------------------------------------------------------------------------------
purchase 20,000 12/30/04
purchase 5,000 1/6/05
purchase 30,000 1/20/05
purchase 10,000 1/25/05
purchase 30,000 1/28/05
purchase 30,330 1/31/05
purchase 7,170 2/1/05
purchase 3,000 2/2/05
purchase 1,800 2/3/05
purchase 23,000 2/4/05
purchase 5,000 2/9/05
purchase 4,700 2/11/05
purchase 5,000 2/18/05
purchase 4,100 2/25/05
purchase 30,300 3/7/05
sale 1,000 3/7/05
purchase 13,600 3/8/05
purchase 12,300 3/9/05
purchase 38,700 3/10/05
purchase 3,000 3/11/05
purchase 7,000 3/14/05
purchase 2,600 3/16/05
purchase 2,000 3/21/05
purchase 2,400 3/23/05
purchase 5,000 4/1/05
purchase 1,000 4/29/05
purchase 7,400 5/6/05
sale 6,000 5/6/05
purchase 2,600 5/9/05
purchase 50,000 5/11/05
sale 60,000 5/11/05
purchase 76,000 5/12/05
purchase 32,600 5/13/05
purchase 14,400 5/16/05
purchase 8,000 5/17/05
purchase 3,400 5/18/05
purchase 10,600 5/25/05
purchase 10,000 6/1/05
purchase 5,000 6/2/05
purchase 4,950 6/7/05
--------------------------------------------------------------------------------
-20-
--------------------------------------------------------------------------------
PURCHASE OR SALE NUMBER OF SHARES DATE
--------------------------------------------------------------------------------
purchase 3,100 6/8/05
purchase 17,150 6/10/05
purchase 4,800 6/13/05
purchase 16,500 6/14/05
purchase 13,500 6/15/05
sale 3,000 6/16/05
sale 3,400 6/17/05
purchase 9,000 6/21/05
purchase 24,000 6/23/05
sale 1,000 6/24/05
purchase 2,920 6/27/05
sale 4,400 6/27/05
purchase 5,820 6/30/05
purchase 10,060 7/8/05
purchase 100 7/12/05
purchase 47,876 7/19/05
purchase 2,024 7/20/05
purchase 12,400 7/21/05
purchase 8,100 7/26/05
purchase 9,380 7/27/05
purchase 28,770 7/28/05
purchase 13,491 7/29/05
purchase 16,441 8/1/05
purchase 500 8/3/05
purchase 12,430 8/4/05
purchase 18,100 8/10/05
purchase 6,625 8/11/05
purchase 40,502 8/12/05
purchase 21,100 8/15/05
purchase 10,000 8/16/05
purchase 6,000 8/18/05
purchase 19,353 8/22/05
purchase 5,408 8/25/05
purchase 14,640 10/7/05
purchase 43,200 10/10/05
purchase 27,303 10/11/05
purchase 7,800 10/13/05
purchase 8,500 10/14/05
purchase 19,148 10/18/05
purchase 42,900 10/19/05
purchase 44,140 10/20/05
purchase 9,000 10/25/05
purchase 29,000 10/31/05
purchase 51,053 11/1/05
purchase 8,416 11/2/05
purchase 26,794 11/3/05
-21-
--------------------------------------------------------------------------------
PURCHASE OR SALE NUMBER OF SHARES DATE
--------------------------------------------------------------------------------
purchase 3,477 11/4/05
purchase 4,100 11/7/05
purchase 7,200 11/8/05
purchase 52,040 11/9/05
purchase 12,000 11/10/05
purchase 45,000 11/11/05
purchase 11,240 11/21/05
purchase 30,150 11/23/05
purchase 7,100 11/25/05
purchase 6,000 11/28/05
purchase 18,125 11/30/05
purchase 9,100 12/1/05
purchase 24,200 12/2/05
purchase 1,000 12/5/05
purchase 58,500 12/12/05
purchase 41,210 12/13/05
purchase 37,167 12/14/05
purchase 4,500 12/20/05
purchase 3,000 12/21/05
purchase 16,420 12/22/05
purchase 24,615 12/23/05
purchase 3,300 12/27/05
purchase 82,374 12/28/05
purchase 64,389 12/30/05
purchase 27,512 1/6/06
purchase 79,467 1/9/06
sale 79,467 1/9/06
purchase 12,435 1/11/06
sale 15,000 1/24/06
purchase 800 1/25/06
sale 17,448 1/27/06
sale 22,150 1/30/06
purchase 27,200 2/1/06
purchase 58,500 2/2/06
sale 34,450 2/7/06
sale 11,000 2/8/06
sale 14,900 2/15/06
purchase 46,049 2/16/06
sale 9,249 2/17/06
purchase 103,500 2/22/06
sale 30,000 3/14/06
purchase 36,000 3/15/06
sale 48,500 3/15/06
purchase 10,000 3/16/06
purchase 11,475 3/17/06
purchase 7,525 3/20/06
purchase 1,000 3/23/06
-22-
--------------------------------------------------------------------------------
PURCHASE OR SALE NUMBER OF SHARES DATE
--------------------------------------------------------------------------------
purchase 3,200 3/29/06
sale 12,100 3/29/06
purchase 1,400 3/30/06
purchase 31,600 4/3/06
purchase 25,000 4/4/06
purchase 10,000 4/5/06
purchase 5,000 4/6/06
purchase 22,000 4/17/06
purchase 6,891 4/21/06
purchase 27,300 4/28/06
purchase 23,548 5/10/06
purchase 23,700 5/19/06
purchase 41,700 6/9/06
purchase 27,000 6/13/06
purchase 17,800 6/28/06
purchase 10,000 6/30/06
purchase 17,488 7/11/06
purchase 16,000 7/13/06
--------------------------------------------------------------------------------
-23-
APPENDIX B
RECENT TRANSACTIONS INVOLVING SECURITIES OF DELCATH
BY JONATHAN A. FOLTZ
--------------------------------------------------------------------------------
PURCHASE OR SALE NUMBER OF SHARES DATE
--------------------------------------------------------------------------------
sale* 1,000 10/27/04
sale* 1,000 10/27/04
sale* 1,000 10/27/04
sale* 1,000 10/27/04
purchase** 5,000 11/1/04
sale 1,000 12/3/04
purchase*** 2,000 12/16/04
sale 1,000 1/20/05
purchase**** 2,500 9/6/05
purchase*** 2,000 11/21/05
sold 1,000 5/9/06
sold 600 5/12/06
purchase*** 6,000 6/19/06
--------------------------------------------------------------------------------
* Sale of Delcath 2003 Warrant
** Exercise of warrant
*** Exercise of stock option
**** Grant of common shares
-24-
[FORM OF CONSENT CARD]
[PRELIMINARY COPY - SUBJECT TO COMPLETION]
CONSENT OF STOCKHOLDER OF DELCATH SYSTEMS, INC. TO ACTION WITHOUT A MEETING:
THIS CONSENT IS SOLICITED BY LADDCAP VALUE PARTNERS LP
Unless otherwise indicated below, the undersigned, a
stockholder of record of Delcath Systems, Inc. (the "COMPANY") on July 27, 2006
(the "RECORD DATE"), hereby consents pursuant to Section 228(a) of the General
Corporation Law of the State of Delaware with respect to all shares of common
stock of the Company, $0.01 par value per share (the "SHARES") held by the
undersigned to the taking of the actions set forth below without a meeting of
the stockholders of the Company. By executing this consent card, the undersigned
hereby revokes any and all prior consents and hereby affirms that, as of the
Record Date, the undersigned had the power to deliver a consent for the number
of Shares represented by this consent.
IF NO BOX IS MARKED FOR A PROPOSAL, THE UNDERSIGNED WILL BE
DEEMED TO CONSENT TO SUCH PROPOSAL, EXCEPT THAT THE UNDERSIGNED WILL NOT BE
DEEMED TO CONSENT TO THE REMOVAL OF ANY CURRENT DIRECTOR OR TO THE ELECTION OF
ANY NOMINEE WHOSE NAME IS WRITTEN IN THE SPACE PROVIDED.
LADDCAP VALUE PARTNERS LP RECOMMENDS THAT YOU CONSENT TO
PROPOSALS 1-3.
FAILURE TO EXECUTE AND RETURN THIS CONSENT CARD WILL HAVE THE
EFFECT OF A VOTE AGAINST THE ACTIONS DESCRIBED BELOW.
SIGNED BUT UNMARKED CONSENT CARDS WILL BE DEEMED TO GIVE
CONSENT TO THE ACTIONS SET FORTH BELOW.
1. The removal without cause of M.S. Koly, Samuel Herschkowitz, M.D.,
Mark A. Corigliano, Daniel Isdaner and Victor Nevins as directors
of the Company and any other person or persons (other than the
persons elected pursuant to this proposed action by written
consent) elected or appointed to the Board of Directors of the
Company prior to the effectiveness of these Proposals.
[ ] [ ] [ ]
Consent Withhold Consent Abstain
INSTRUCTION: TO CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO
THE REMOVAL OF THE FIVE DIRECTORS, CHECK THE APPROPRIATE BOX ABOVE. IF YOU WISH
TO CONSENT TO THE REMOVAL OF CERTAIN OF THE ABOVE-NAMED PERSONS, BUT NOT ALL OF
THEM, CHECK THE "CONSENT" BOX ABOVE AND WRITE THE NAME OF EACH SUCH PERSON YOU
DO NOT WISH REMOVED IN THE FOLLOWING SPACE:
--------------------------------------------------------------------------------
2. The election of the following five persons as directors of the
Company to fill the vacancies resulting from Proposal 1: Jonathan
A. Foltz, Michael Karpf, M.D., Robert B. Ladd, Paul William
Frederick Nicholls and Fred S. Zeidman.
[ ] [ ] [ ]
Consent Withhold Consent Abstain
-25-
INSTRUCTION: TO CONSENT, WITHHOLD CONSENT OR ABSTAIN FROM CONSENTING TO
THE ELECTION OF ALL THE ABOVE-NAMED PERSONS, CHECK THE APPROPRIATE BOX ABOVE. IF
YOU WISH TO CONSENT TO THE ELECTION OF CERTAIN OF THE ABOVE-NAMED PERSONS, BUT
NOT ALL OF THEM, CHECK THE "CONSENT" BOX ABOVE AND WRITE THE NAME OF EACH SUCH
PERSON YOU DO NOT WISH ELECTED IN THE FOLLOWING SPACE:
--------------------------------------------------------------------------------
3. The repeal of each provision of the Company's Bylaws or amendments
of the Bylaws that are adopted after December 31, 2005 and before
the effectiveness of the foregoing two Proposals.
[ ] [ ] [ ]
Consent Withhold Consent Abstain
IN THE ABSENCE OF WITHHOLDING OR ABSTAINING BEING INDICATED ABOVE, THE
UNDERSIGNED HEREBY CONSENTS TO EACH ACTION LISTED ABOVE.
IN ORDER FOR YOUR CONSENT TO BE VALID, IT MUST BE DATED.
Date: , 2006
------------------------------------------
Signature:
------------------------------------------
Signature:
(if held jointly)
------------------------------------------
Title(s):
------------------------------------------
Please sign exactly as name appears on stock certificates or on label affixed
hereto. When shares are held by joint tenants, both should sign. In case of
joint owners, EACH joint owner should sign. When signing as attorney, executor,
administrator, trustee, guardian, corporate officer, etc., give full title as
such.
THE EFFECTIVENESS OF PROPOSAL 1 (THE REMOVAL OF DELCATH'S DIRECTORS) IS NOT
CONDITIONED ON THE APPROVAL OR VALIDITY OF PROPOSALS 2 OR 3; THE EFFECTIVENESS
OF PROPOSAL 2 (THE ELECTION OF LADDCAP'S SLATE OF DIRECTORS) IS CONDITIONED ON
THE APPROVAL OF PROPOSAL 1, BUT NOT CONDITIONED ON THE APPROVAL OR VALIDITY OF
PROPOSAL 3; AND THE EFFECTIVENESS OF PROPOSAL 3 (THE REPEAL OF THE POST-DECEMBER
31, 2005 CHANGES TO DELCATH'S BYLAWS) IS NOT CONDITIONED ON THE APPROVAL OR
VALIDITY OF PROPOSALS 1 OR 2.
THIS SOLICITATION IS BEING MADE BY LADDCAP VALUE PARTNERS LP AND NOT ON BEHALF
OF THE COMPANY.
PLEASE SIGN, DATE AND MAIL YOUR CONSENT PROMPTLY IN THE POSTAGE-PAID ENVELOPE
ENCLOSED.
If you have any questions about this Consent Card or any other questions, The
Altman Group, Inc. will be pleased to assist you.
THE ALTMAN GROUP, INC.
1200 Wall Street West, 3rd Floor, Lyndhurst, NJ 07071
(800) 581-5375
Banks and Brokers Call Collect: (201) 806-7300
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