SUPPORT AND CONVERSION AGREEMENT
This Support and Conversion Agreement (this Agreement) is entered into as of the 11th day of March, 2020 among Delcath Systems, Inc. (the Company), Rosalind Master Fund L.P. and Rosalind Opportunities Fund I L.P. (collectively, Rosalind) and the executives of the Company listed on the signature page hereto (each, an Executive and, collectively, the Executives).
WHEREAS, the Company has advised Rosalind and the Executives that the Company has filed with the Securities and Exchange Commission a registration statement on Form S-1 (File No. 333-235904) relating to a proposed public offering of securities of the Company (the Offering) to occur simultaneously with the listing of the Companys common stock, par value $0.01 per share (the Common Stock), onto the Nasdaq Capital Market (Nasdaq); and
WHEREAS, the Offering is contingent upon Nasdaq approval of the listing of the Common Stock (the Nasdaq Approval); and
WHEREAS, pursuant to Nasdaqs Listing Rules, the continued listing of the Common Stock on Nasdaq will be contingent on the Companys ability to meet Nasdaqs continued listing criteria (the Continued Listing Requirements), including, without limitation, the requirement that the Company maintain stockholders equity of at least $2,500,000 (the Minimum Stockholders Equity Requirement); and
WHEREAS, the Company has previously issued to Rosalind 8% Senior Secured Promissory Notes dated July 15, 2019, as subsequently amended by a Note Amending Agreement, dated July 15, 2019 (as so amended, collectively, the Notes), in the aggregate principal amount of $2,000,000 pursuant to the terms of the Note Purchase Agreement, dated June 6, 2019, between Rosalind and the Company; and
WHEREAS, pursuant to their terms, the principal amount of the Notes and any accrued and unpaid interest thereon are convertible, at Rosalinds option, into shares of the Companys Series E Preferred Stock (Preferred Shares) at a conversion price (the Conversion Price) of $1,500 per Preferred Share (the Conversion); and
WHEREAS, each Executive is entitled to receive from the Company the amount set forth opposite such Executives name on Schedule I hereto as a performance bonus for the year ended December 31, 2019 (which amount is net of all required income tax and other withholdings) (each, an Incentive Bonus and, collectively, the Incentive Bonuses); and
WHEREAS, the Company is indebted to each Executive for back pay and other bonus amounts in the amount set forth opposite such Executives name on Schedule I hereto (which amount is net of all required income tax and other withholdings) (each, a Back Pay Amount and, collectively, the Back Pay Amounts); and
WHEREAS, Rosalind and each Executive hereby acknowledges that the listing of the Common Stock on Nasdaq will provide significant benefits to each of them and that the ability of the Company to meet the Continued Listing Requirements will provide significant benefits to each of them.