EXECUTION COPY
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of November 27, 2005 by
and between Delcath Systems, Inc., a Delaware corporation (the "Company"), the
purchasers (each a "Purchaser" and collectively, the "Purchasers") listed on
Exhibit A to Common Stock Purchase Agreement dated as of the date hereof between
the Company and the Purchasers (the "Stock Purchase Agreement") and Vertical
Ventures LLC ("Vertical Ventures", together with the Purchasers, the
"Stockholders" and each individually a "Stockholder").
The parties hereto agree as follows:
1. Voting of Shares. Each of the Stockholders hereby agrees that, during
the term of this Agreement, such Stockholder will vote all shares of the
Company's Common Stock, par value $0.01 (the "Common Stock"), owned by such
Stockholder on the date such vote is taken (whether now owned or hereafter
acquired) in favor of all proposals made by the Board of Directors or management
of the Company or in the manner recommended by the Board of Directors or
management of the Company on all other proposals. Such vote may be cast directly
by such Stockholder or by proxy named by such Stockholder.
2. Consents of Stockholders. In the event that any proposal is submitted to
the stockholders of the Company otherwise than at a meeting of the stockholders
of the Company, each of the Stockholders hereby agrees that (a) such Stockholder
will execute a consent as a stockholder of the Company voting on such proposal
in the manner recommended by the Board of Directors or management of the Company
or (b) such Stockholder will refrain from submitting a consent of such proposal
if abstention is recommended by the Board of Directors or management of the
Company.
3. Term. This Agreement shall remain in effect from the date hereof through
the date of the Annual Meeting of stockholders of the Company to be held in
2006.
4. Specific Performance; Consent to Jurisdiction; Venue.
(a) The Company and the Stockholders acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement are
not performed in accordance with their specific terms or are otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof, this being in addition
to any other remedy to which any of them may be entitled by law or equity.
(b) The parties agree that venue for any dispute arising under this
Agreement will lie exclusively in the state or federal courts located in New
York County, New York, and the parties irrevocably waive any right to raise
forum non conveniens or any other
argument that New York is not the proper venue. The parties irrevocably consent
to personal jurisdiction in the state and federal courts of the state of New
York. The Company and each Purchaser consent to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address in effect for notices to it under the Stock Purchase Agreement and agree
that such service shall constitute good and sufficient service of process and
notice thereof. Vertical Ventures consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to Vertical Ventures at the
address in effect for Iroquois Master Fund Ltd. under the Stock Purchase
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing in this Section 4(b) shall affect
or limit any right to serve process in any other manner permitted by law. The
Company and the Stockholders hereby agree that the prevailing party in any suit,
action or proceeding arising out of or relating to this Agreement shall be
entitled to reimbursement for reasonable legal fees from the non-prevailing
party.
5. Entire Agreement; Amendment. This Agreement contains the entire
understanding and agreement of the parties with respect to the matters covered
hereby and, except as specifically set forth herein, neither the Company nor any
Stockholder make any representation, warranty, covenant or undertaking with
respect to such matters, and they supersede all prior understandings and
agreements with respect to said subject matter, all of which are merged herein.
Following the closing of the transactions contemplated by the Stock Purchase
Agreement, no provision of this Agreement may be waived or amended other than by
a written instrument signed by the Company and the Stockholders holding at least
a majority of all shares then held by the Stockholders. Any amendment or waiver
effected in accordance with this Section 5 shall be binding upon each
Stockholder and the Company.
6. Waivers. No waiver by any party of any default with respect to any
provision or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any other provision or requirement hereof,
nor shall any delay or omission of any party to exercise any right hereunder in
any manner impair the exercise of any such right accruing to it thereafter.
7. Headings. The section headings in this Agreement are for convenience
only and shall not constitute a part of this Agreement for any other purpose and
shall not be deemed to limit or affect any of the provisions hereof.
8. No Third Party Beneficiaries. This Agreement is intended for the benefit
of the parties hereto and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
9. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other parties hereto, it being understood that all
parties need not sign the same counterpart.
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10. Severability. The provisions of this Agreement are severable and, in
the event that any court of competent jurisdiction shall determine that any one
or more of the provisions or part of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement and this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of such provision, had never been contained herein, so that
such provisions would be valid, legal and enforceable to the maximum extent
possible.
11. Further Assurances. From and after the date of this Agreement, upon the
request of the Stockholders or the Company, the Company and each Stockholder
shall execute and deliver such instruments, documents and other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
DELCATH SYSTEMS, INC.
By: /s/ X. X. XXXX
--------------------------------------
Name: X. X. Xxxx
Title: President and Chief
Executive Officer
PURCHASER
By:
--------------------------------------
Name
Title
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
DELCATH SYSTEMS, INC.
By:
--------------------------------------
Name: X. X. Xxxx
Title: President and Chief
Executive Officer
PURCHASER
IROQUOIS MASTER FUND LTD.
By: /s/ XXXXXX XXXXXXXXX
--------------------------------------
Name Xxxxxx Xxxxxxxxx
Title Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
DELCATH SYSTEMS, INC.
By:
--------------------------------------
Name: X. X. Xxxx
Title: President and Chief
Executive Officer
PURCHASER
OMICRON MASTER TRUST
By: /s/ XXXXX XXXXXXXXX
--------------------------------------
Name Xxxxx Xxxxxxxxx
Title Managing Partner
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the date first above
written.
DELCATH SYSTEMS, INC.
By:
--------------------------------------
Name: X. X. Xxxx
Title: President and Chief
Executive Officer
PURCHASER
CRANSHIRE CAPITAL, LP
By: /s/ XXXXXXXX X. XXXXX
--------------------------------------
Name Xxxxxxxx X. Xxxxx
Title President - Downsview Capital
The General Partner
VERTICAL VENTURES LLC
By: /s/ XXXXXX XXXXXXXXX
--------------------------------------
Name Xxxxxx Xxxxxxxxx
Title Partner
