AMENDMENT TO REGISTRATION RIGHTS AGREEMENTS
This Amendment (the Amendment), dated as of September 30, 2019, is made to those certain Registration Rights Agreements (the Registration Rights Agreements), dated as of July 11, 2019 (effective as of July 15, 2019), and August 15, 2019 between Delcath Systems, Inc. (the Company) and the purchasers signatories thereto. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Registration Rights Agreements.
WHEREAS, pursuant to Section 2(d)(iv) of the Registration Rights Agreements, the Company will incur certain penalties if a Registration Statement registering for resale all of the Registrable Securities is not declared effective by the Commission by the Effectiveness Date of the Initial Registration Statement; and
WHEREAS, the Effectiveness Date is defined as the 75th calendar day following the date of the July Registration Rights Agreement (or, in the event of a full review by the Commission, the 120th calendar day following the date of the July Registration Rights Agreement); and
WHEREAS, on August 21, 2019, the Company filed the Initial Registration Statement with the Commission; and
WHEREAS, on September 11, 2019, the Company received a comment letter from the Commission which stated in relevant part that We have limited our review of your registration statement to those issues we have addressed in our comments. Notwithstanding this statement, one of the Commissions comments questioned the Companys entire authority to register the Registrable Securities using the Initial Registration Statement, and the Holders ability to utilize it for the purpose of re-selling the Registrable Securities. The Company spent significant time and resources preparing a response to this comment and, on September 25, 2019, filed an amendment to the Initial Registration Statement and a cover letter containing the Companys response to this and the other comments of the Commission; and
WHEREAS, although the Commission phrased its review of the Initial Registration Statement as being limited to certain issues, the Company believes that due to the significance and scope of their main comment, the Company had to incur the same level of effort to respond to this comment as would have been required had the Commission undertaken a full review, which would have given the Company a period of 120 days to achieve effectiveness without incurring penalties; and
WHEREAS, pursuant to Section 6(f) of the Registration Rights Agreements, the Registration Rights Agreements may be amended by the written consent of the Company and Holders of at least a majority in interest of the Registrable Securities; and
WHEREAS, the Company and Holders of at least a majority in interest of the Registrable Securities desire to amend the definition of Effectiveness Date in the Registration Rights Agreements in order to give the Company 120 days following the date of the July Registration Rights Agreement to achieve effectiveness without incurring penalties.