Exhibit 10.1
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (the "Agreement") is made as of the second day of July, 2017,
by and between, Delcath Systems, Inc., a Delaware corporation (the "Company")
and the investor signatory hereto (the "Investor").
WHEREAS, reference is hereby made to that certain Securities Purchase Agreement,
dated June 6, 2016, by and among the Company, the Investor and certain other
buyers signatory thereto (the "Securities Purchase Agreement"), pursuant to
which the Investor and such other buyers acquired (i) certain senior secured
convertible notes (the "Notes"), convertible into shares of the Company's common
stock, par value $0.01 per share (the "Common Stock") and (ii) warrants to
acquire shares of the Common Stock. Capitalized terms not defined herein shall
have the meaning as set forth in the Securities Purchase Agreement.
WHEREAS, as of the date hereof the Investor holds such aggregate principal
amount of a Note as set forth on the signature page of the Investor hereto (the
"Investor Note").
WHEREAS, the Company has authorized a new series of preferred stock of the
Company designated as Series A Preferred Stock, $0.01 par value, the terms of
which are set forth in the certificate of designations for such series of
Preferred Stock (the "Certificate of Designations") in the form attached hereto
as Exhibit A (together with any preferred shares issued in replacement thereof
in accordance with the terms thereof, the "Series A Preferred Stock").
WHEREAS, subject to the terms and conditions set forth herein, the Company and
the Investor desire to exchange (the "Exchange") such aggregate principal amount
of the Investor Note as set forth on the signature page of the investor hereto
(the "Exchange Note") for such aggregate number of shares of Series A Preferred
Stock (the "New Preferred Shares") as set forth on the signature page of the
Investor attached hereto, with the remaining aggregate principal amount of the
Investor Note (the "Remaining Note") remaining with the Investor after the
Closing Date.
WHEREAS, the Exchange is being made in reliance upon the exemption from
registration provided by Rule 3(a)(9) of the Securities Act of 1933, as amended
(the "1933 Act").
WHEREAS, concurrently herewith, the Company is entering into agreements with
holders of Notes (each, an "Other Investor" and together with the Investor, the
"Investors", and such agreements, each an "Other Agreement") substantially in
the form of this Agreement (other than with respect to the identity of the
Investor, any provision regarding the reimbursement of legal fees and
proportional changes reflecting the different holdings of such Other Investors
and provisions to document that each such other Investor receives consideration
thereunder in proportional economic value as provided to the Investor
hereunder).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and in consideration of the promises and the
mutual agreements, representations and warranties, provisions and covenants
contained herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
1.
Exchange. On the date hereof (or such other date and time as is