BOARD APPOINTMENT AGREEMENT
This Board Appointment Agreement (this Agreement) is entered into as of April 8, 2020 by and between Delcath Systems, Inc. (the Company), on the one hand, and Rosalind Master Fund L.P. and Rosalind Opportunities Fund I L.P. (collectively, Rosalind), on the other hand.
WHEREAS, the Company has filed a registration statement on Form S-1 (file no. 333-235904) (as amended, the Registration Statement) pursuant to which the Company intends to complete a firm commitment underwritten public offering of at least $20 million of securities of the Company, which public offering is to occur concurrently with the listing of the Companys common stock on the Nasdaq Capital Market (the Financing);
WHEREAS, Rosalind has advised the Company that it is willing to participate in the Financing in an amount not less than Four Million Dollars ($4,000,000) (the Participation Condition) conditioned upon the Company providing Rosalind with the rights provided for herein; and
WHEREAS, in reasonable reliance on Rosalinds intent to participate in the Financing and to satisfy the Participation Condition, the Company is willing to provide Rosalind with the rights provided for herein;
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereby agree as follows:
1. Rosalind and the Company agree as follows:
a. In the event that either (x) the Financing is consummated on or prior to April 30, 2020 (the Closing Deadline) and Rosalind satisfies the Participation Condition, or (y) the Financing is not consummated on or prior to the Closing Deadline, other than as a result of a failure by Rosalind to satisfy the Participation Condition, Rosalind may (at its sole option), by notice in writing to the Secretary of the Company, nominate up to two directors (the Rosalind Nominees) for election to the Companys Board of Directors (the Board) reasonably satisfactory to the Board; provided, however, that each of Gil Aharon and Steven Salamon are hereby conclusively presumed to be satisfactory to the Board and independent directors. Any Rosalind Nominee must meet all applicable requirements for treatment as independent directors under applicable rules and regulations of the Securities and Exchange Commission (the SEC) and the Nasdaq Stock Market (Nasdaq); provided that the Board shall not determine that a Rosalind Nominee does not meet such independence requirements solely as a result of such Rosalind Nominees affiliation with Rosalind.
b. In the event Rosalind exercises its right to nominate Rosalind Nominee(s) for election to the Board as provided by paragraph 1(a), subject to compliance with the requirements of the Delaware General Corporation Law and the Companys Amended and Restated Certificate of Incorporation, as amended as of the date hereof, Rosalind (at its sole