WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT, dated as of April __, 2020 (Agreement), between Delcath Systems, Inc., a Delaware corporation (the Company), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company (the Warrant Agent).
W I T N E S S E T H
WHEREAS, pursuant to a registered offering by the Company of shares (the Shares) of common stock, par value $0.01 per share (the Common Stock), Pre-Funded Warrants (the Pre-Funded Warrants) to purchase Common Stock and Series F Warrants (the Warrants) to purchase shares of Common Stock, pursuant to an effective registration statement on Form S-1 (File No. 333-235904) (the Registration Statement), the Company wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants (the Holders, which term shall include a Holders transferees, successors and assigns and Holder shall include, if the Warrants are held in street name, a Participant (as defined below) or a designee appointed by such Participant) to purchase an aggregate of up to _______ shares of Common Stock upon the terms and subject to the conditions hereinafter set forth (the Offering);
WHEREAS, the Shares, the Pre-Funded Warrants, and Warrants to be issued in connection with the Offering shall be immediately separable and will be issued separately, but will be purchased together in the Offering; and
WHEREAS, the Company wishes the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the authentication, issuance, registration, transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agents capacity as the Companys transfer agent, the delivery of the Warrant Shares (as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the following terms have the meanings indicated:
(a) Business Day means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which the New York Stock Exchange is authorized or required by law or other governmental action to close.
(b) Close of Business on any given date means 5:00 p.m., New York City time, on such date; provided, however, that if such date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.
(c) Person means an individual, corporation, association, partnership, limited liability company, joint venture, trust, unincorporated organization, government or political subdivision thereof or governmental agency or other entity.
(d) Warrant Certificate means a certificate issued to a Holder, representing such number of Warrant Shares as is indicated therein.
(e) Warrant Shares means the shares of Common Stock underlying the Warrants and issuable upon exercise of the Warrants.