Exhibit 5.1
October 7, 2015
Delcath Systems, Inc.
1301 Avenue of the Americas, 43rd Floor
New York, NY 10019
Re:Delcath Systems, Inc. Shelf Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Delcath Systems, Inc., a Delaware corporation (the “Company”), in connection with its filing of a Registration Statement on Form S-3 under the Securities Act of 1933, as amended (the “Act”), with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”). The Registration Statement relates to the offer and sale by the Company pursuant to Rule 415 under the Act from time to time, in one or more offerings, as set forth in the prospectus contained in the Registration Statement (the “Prospectus”) and as shall be set forth in one or more supplements to the Prospectus (each, a “Prospectus Supplement”), of up to $77,406,789 of securities (the “Securities”), which may include any or all of the following: (i) shares of the Company’s common stock, $0.01 par value per share (“Common Stock”); (ii) shares of the Company’s preferred stock, $0.01 par value per share (“Preferred Stock”), which may be issued in one or more series; (iii) senior debt securities or subordinated debt securities (“Debt Securities”) which may be issued in one or more distinct series under one or more indentures relating to the Debt Securities (each an “Indenture”), proposed to be entered into between the Company and the trustee to be named therein (the “Trustee”); (iv) warrants (“Warrants”) to purchase shares of Common Stock or Preferred Stock which may be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into between the Company and warrant agents to be named therein (each, a “Warrant Agent” and, collectively, “Warrant Agents”); (v) stock purchase contracts of the Company (“Stock Purchase Contracts”), obligating the holders thereof to purchase from or sell to the Company, and the Company to sell to or purchase from such holders, shares of Common Stock or Preferred Stock, at a future date or dates, which may be issued under one or more purchase contract agreements (each, a “Purchase Contract Agreement”) proposed to be entered into by the Company and a purchase contract agent or agents to be named therein (each, a “Purchase Contract Agent”) and (vi) such indeterminate number of shares of Common Stock or Preferred Stock and amount of Debt Securities, as may be issued upon conversion, exchange or exercise of any Preferred Stock, Debt Securities, Warrants or the settlement of any Stock Purchase Contracts, including such shares of Common Stock or Preferred Stock as may be issued pursuant to anti-dilution adjustments, in amounts, at prices and on terms to be determined at the time of offering (collectively, “Indeterminate Securities”).
This opinion letter is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of (i) the Amended and Restated Certificate of Incorporation of the Company, as amended (the “Certificate of Incorporation”), and the Amended and Restated By-laws of the Company (the “By-laws”), (ii) certain resolutions of the Company’s Board of Directors relating to the Registration Statement, (iii) the form of Indenture between the Company and the Trustee, filed as an exhibit to the Company’s Registration Statement on Form S-3 (Registration No. 333-165677), filed on March 24, 2010 and incorporated by reference in the Registration Statement, and (iv) such other documents, records and other instruments as we have deemed appropriate for purposes of the opinions set forth herein.
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents submitted to us as copies. With respect to matters of fact relevant to our opinions as set forth below, we have relied upon certificates of officers of the Company, representations made by the Company in documents examined by us and representations of officers of the Company. We have also obtained and relied upon such certificates and assurances from public officials as we have deemed necessary for the purposes of our opinions set forth below.
For the purpose of the opinions set forth below, we have also assumed, without independent investigation or verification, that:
• | the issuance, sale, number or amount, as the case may be, and terms of the Securities to be offered from time to time will be duly authorized and established, in accordance with the Certificate of Incorporation, the By-laws, the authorizing resolutions of the Board of Directors of the Company and the General Corporations Law of the State of Delaware (the “DGCL”) (each, a “Corporate Action”), and will not conflict with or constitute a breach of the terms of any agreement or instrument to which the Company is subject; |
• | prior to the issuance of shares of one or more series of Preferred Stock, the designations, relative rights, preferences and limitations relating to each such series of Preferred Stock not fixed in the Certificate of Incorporation will have been fixed by the Board of Directors by appropriate Corporate Action; |
• | the Indenture, to be governed by the laws of the State of New York, will be duly executed and delivered by the Company and the Trustee; the Indenture will be qualified under the Trust Indenture Act of 1939, as amended; that the Trustee has the requisite organizational and legal power and authority to perform its obligations under the Indenture; and that the Indenture will constitute a legal, valid and binding obligation of the Trustee; |
• | any Warrants will be issued under one or more Warrant Agreements, to be governed by the laws of the State of New York, between the Company and the Warrant Agent, and the execution, delivery and performance of the applicable Warrant Agreement will be duly authorized by Corporate Action, and will not conflict with or constitute a breach of the terms of any agreement or instrument to which the Company is subject; |
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• | to the extent that the obligations of the Company under any Warrant Agreement may depend upon such matters, each of the parties thereto, other than the Company, will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and will be duly qualified to engage in the activities contemplated by such Warrant Agreement; that such Warrant Agreement will have been duly authorized, executed and delivered by such party and will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; that such party will be in compliance, generally and with respect to acting as a party with respect to its obligations under such Warrant Agreement, with all applicable laws and regulations; and that such party will have the requisite organizational and legal power and authority to perform its obligations under such Warrant Agreement; |
• | any Stock Purchase Contracts will be issued under one or more Purchase Contract Agreements, to be governed by the laws of the State of New York, between the Company and a Purchase Contract Agent, and the execution, delivery and performance of the applicable Purchase Contract Agreement will be duly authorized by Corporate Action, and will not conflict with or constitute a breach of the terms of any agreement or instrument to which the Company is subject; |
• | to the extent that the obligations of the Company under any Purchase Contract Agreement may be dependent upon such matters, we assume for purposes of this opinion letter that the Purchase Contract Agent with respect to such Purchase Contract Agreement will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that such Purchase Contract Agent will be duly qualified to engage in the activities contemplated by such Purchase Contract Agreement; that such Purchase Contract Agreement will have been duly authorized, executed and delivered by such Purchase Contract Agent and will constitute the legal, valid and binding obligation of such Purchase Contract Agent, enforceable against such Purchase Contract Agent in accordance with its terms; that such Purchase Contract Agent will be in compliance, generally and with respect to acting as a Purchase Contract Agent under such Purchase Contract Agreement, with all applicable laws and regulations; and that such Purchase Contract Agent will have the requisite organizational and legal power and authority to perform its obligations under such Purchase Contract Agreement; |
• | the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective and such effectiveness shall not have been terminated or rescinded and will comply with all applicable federal and state laws at the time the Securities are offered and issued as contemplated by the Registration Statement; |
• | a Prospectus Supplement will have been prepared, delivered (including through compliance with Rule 172 of the General Rules and Regulations promulgated under the Act) and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws at the time the Securities are offered and issued as contemplated by the Registration Statement; |
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• | all Securities will be issued and sold in compliance with applicable federal and state securities laws; and |
• | a definitive purchase, underwriting or similar agreement (each, a “Definitive Agreement”) with respect to any Securities offered or issued will have been duly authorized and validly executed and delivered by the Company and the other parties thereto. |
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof:
1. | Upon due authorization by Corporate Action of the issuance and sale of shares of Common Stock, including any Indeterminate Securities constituting Common Stock (“Offered Common Stock”), and upon issuance and delivery of such shares of Offered Common Stock against payment of consideration for such shares (in an amount at least equal to the aggregate par value of such shares of Offered Common Stock) in accordance with the terms and provisions of the applicable Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement, and, if applicable, upon the conversion, exchange or exercise of any other Securities in accordance with their respective terms, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement (which shall, in each case, provide for payment of consideration that shall be at least equal to the aggregate par value of such shares of Offered Common Stock), such shares of Offered Common Stock will be validly issued, fully paid and nonassessable. |
2. | Upon due authorization by Corporate Action of the issuance and sale of shares of a series of Preferred Stock, including any Indeterminate Securities constituting Preferred Stock (“Offered Preferred Stock”), and upon issuance and delivery of such shares of Offered Preferred Stock against payment of consideration for such shares (in an amount at least equal to the aggregate par value of such shares of Offered Preferred Stock) in accordance with the terms and provisions of applicable Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement, and, if applicable, upon the conversion, exchange or exercise of any other Securities in accordance with their respective terms, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement (which shall, in either case, provide for payment of consideration at least equal to the aggregate par value of such shares of Offered Preferred Stock), such shares of such series of Offered Preferred Stock will be validly issued, fully paid and nonassessable. |
3. | When the specific terms of a particular issuance of Debt Securities, including any Indeterminate Securities constituting Debt Securities (“Offered Debt Securities”), have been duly authorized by Corporate Action and are in accordance with the terms of the Indenture, and such Offered Debt Securities have been duly executed, authenticated, completed, issued and delivered, against payment of consideration for such Offered Debt Securities, in accordance with the terms and provisions of the Indenture and the |
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applicable Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement, and, if applicable, upon the conversion, exchange or exercise of any other Securities in accordance with their respective terms, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement, such Offered Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms under the laws of the State of New York, and will be entitled to the benefits of the Indenture. |
4. | When a Warrant Agreement providing for the specific terms of a particular issuance of Warrants, including any Indeterminate Securities constituting Warrants (“Offered Warrants”), has been duly authorized by Corporate Action and has been duly executed and delivered by the Company and the Warrant Agent named in such Warrant Agreement, and such Offered Warrants, conforming to the requirements of such Warrant Agreement, have been duly countersigned or authenticated, as required, by such Warrant Agent and duly executed and delivered by the Company against payment of consideration for such Offered Warrants in accordance with the terms and provisions of such Warrant Agreement and the applicable Definitive Agreements, the terms of the Corporate Action and as contemplated by the Registration Statement and the applicable Prospectus Supplement, such Offered Warrants will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms under the laws of the State of New York. |
5. | When the Stock Purchase Contracts, including any Indeterminate Securities constituting Stock Purchase Contracts (“Offered Stock Purchase Contracts”), have been duly authorized by Corporate Action and duly executed and delivered against payment of consideration for such Offered Stock Purchase Contracts in accordance with the applicable Definitive Agreements, the Offered Stock Purchase Contracts will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms under the laws of the State of New York. |
The opinions set forth above are subject to the effects of (i) bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting enforcement of creditors’ rights or remedies generally, (ii) general principles of equity (whether such principles are considered in a proceeding at law or equity), including the discretion of the court before which any proceeding may be brought, concepts of good faith, reasonableness and fair dealing and standards of materiality, and (iii) limitations on enforceability to the extent that acceleration of indebtedness under any Debt Security may impair collectability of that portion, if any, of the principal amount thereof that might be determined to be unearned interest thereon.
We render the foregoing opinion as members of the bar of the State of New York and express no opinion as to laws other than the DGCL, the laws of the State of New York and the federal laws of the United States of America. Although the Securities may be issued from time to time on a delayed or continuous basis, the opinions expressed herein are limited to the laws, including rules and regulations, as in effect on the date hereof.
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We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to us under the caption “Legal Matters” in the Prospectus. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Act or the rules or regulations of the Commission thereunder.
Very truly yours,
/s/ Morgan, Lewis & Bockius LLP
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