Exhibit 10.1
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT (the "Agreement") is made as of the 15th day of November,
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 Notes.
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"), including (a) such aggregate principal amount of the Investor
Note as set forth on the signature page of the Investor hereto that does not
include Restricted Principal as of the date hereof and all accrued and unpaid
interest under the Investor Note (such portion of the Investor Note, the
"Unrestricted Investor Note") and such aggregate principal amount of the
Investor Note as set forth on the signature page of the Investor hereto that
solely consists of Restricted Principal as of the date hereof (such portion of
the Investor Note, the "Restricted Investor Note").
WHEREAS, the Company has authorized a new series of senior secured convertible
notes of the Company, in the aggregate original principal amount as set forth on
the signature page of the Investor hereto, in the form attached hereto as
Exhibit A (the "Exchange Notes"), which Exchange Notes shall be convertible into
shares of Common Stock (as defined below) in accordance with the terms of the
Exchange Notes.
WHEREAS, subject to the terms and conditions set forth herein, the Company and
the Investor desire to exchange (the "Exchange") the Unrestricted Investor Note
for (a) such aggregate principal amount of the Exchange Note as set forth on the
signature page of the investor hereto (the "New Note", and the shares of Common
Stock issuable pursuant to the terms of the New Note, including, without
limitation, upon conversion or otherwise, collectively, the "New Conversion
Shares") and (b) a warrant, in the form attached hereto as Exhibit B, to
purchase such aggregate number of shares of Common Stock as set forth on the
signature page of the Investor hereto (the "New Warrant", as exercised, the "New
Warrant Shares"). The New Conversion Shares and the New Warrant Shares are
collectively referred to herein as the "New Underlying Securities" and, together
with the New Note and the New Warrant, the "New Securities".
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