DELCATH SYSTEMS, INC.
AND
ROAN/XXXXXX ASSOCIATES, LP
UNDERWRITER'S UNIT OPTION AGREEMENT
Dated as of __________, 2003
1
UNDERWRITER'S UNIT WARRANT AGREEMENT dated as of ________, 2003 between
DELCATH SYSTEMS, INC., a Delaware corporation (the "Company") and ROAN/XXXXXX
ASSOCIATES, LP, a New York limited partnership (hereinafter referred to as the
"Representative").
W I T N E S S E T H :
-------------------
WHEREAS, pursuant to the terms of an Underwriting Agreement dated as of
_______, 2003 (the "Underwriting Agreement") between the Representative as
representative of the underwriters names on Schedule I therein (the
"Underwriters"), the Underwriters have severally agreed to purchase, in a public
offering under the Securities Act of 1933, as amended (the "Act") on a "firm
commitment" basis (the "Public Offering"), _________ units (the "Public Units")
at a public offering price of $___ per Public Unit, each Public Unit consisting
of five (5) shares of the Company's common stock, par value $.01 per share (the
"Common Stock") ( each share of Common Stock constituting part of a Public Unit,
referred to as the "Public Shares"), and five (5) Redeemable Common Stock
Purchase Warrants each to purchase one (1) share of Common Stock ("Public
Warrant"); and
WHEREAS, as additional consideration to the Representative for its
services pursuant to the Underwriting Agreement, the Company has agreed to issue
to the Representative a warrant ("Representative's Unit Warrant) to purchase up
to an aggregate of ________ Units (the "Representative's Units") with an
exercise price equal to $_______ [165% of the Public Unit offering price], each
consisting of five shares of Common Stock ("Representative's Shares") and five
warrants, each to purchase one share of Common Stock ("Representative's
Warrants"), having the same terms as the Public Warrants except that the
exercise price of the Representative's Warrants shall be exercisable at
$________ [165% of the public offering price of the Public Warrants]; and
NOW, THEREFORE, in consideration of the premises, the payment by the
Representative to the Company of an aggregate of ______ Dollars ($____)[$.001
per Representative Unit], the agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
x. XXXXX. The Holder is hereby granted the right to purchase, at any
time from ______, 2004 [one year from the Effective Date] until 5:00 P.M., New
York time, on ____, 2008 [ five
1
years from the Effective Date], up to an aggregate of _________ Representative's
Units at an initial exercise price (subject to adjustment as provided in Section
8 hereof) of 165% of the public offering price of the Public Units).
2. REPRESENTATIVE'S UNIT WARRANT CERTIFICATES. The Representative's
warrant certificates (the "Representative's Warrant Certificates") delivered and
to be delivered pursuant to this Agreement shall be in the form set forth in
Exhibit A, attached hereto and made a part hereof, with such appropriate
insertions, omissions, substitutions, and other variations as required or
permitted by this Agreement.
3. EXERCISE OF REPRESENTATIVE'S REPRESENTATIVE'S WARRANTS. The
Representative's Unit Warrants initially are exercisable at an aggregate initial
exercise price (subject to adjustment as provided in Section 8 hereof) per
Representative's Unit, as set forth in Section 6 hereof payable by certified or
official bank check in New York Clearing House funds, subject to adjustment as
provided in Section 8 hereof. Upon surrender at the Company's principal offices
(presently located at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000), of an
Representative's Unit Warrant with the annexed Form of Election to Purchase duly
executed, together with payment of the Purchase Price (as hereinafter defined)
for the number of Representative's Units purchased, the registered holder of an
Representative's Unit Warrant ("Holder" or "Holders") shall be entitled to
receive a certificate or certificates for the Represetnative's Units so
purchased. The shares of Common Stock and the Representative's Warrants
comprising the Representative's Units shall consist of the same shares of Common
Stock and Public Warrants as being sold to the public in the Public Offering,
shall contain the same terms and conditions and rights; provided, however, the
Representantive's Warrant obtained upon exercise of the Representative's Unit
Warrant shall have an exercise price of 165% of the Public Warrants. The
purchase rights represented by each Representative's Unit Warrant are
exercisable at the option of the Holder thereof, in whole or in part. In the
case of the purchase of less than all the Representative's Units purchasable
under any Representative's Unit Warrant, the Company shall cancel the
Representative's Unit Warrant upon the surrender thereof and shall execute and
deliver a new Representative's Unit Warrant of like tenor for the balance of the
Representative's Units purchasable thereunder.
4. ISSUANCE OF CERTIFICATES. Upon the exercise of the Representative's
Unit Warrant, the issuance of certificates for the Representative's Warrants and
Representative's Shares or other securities, properties or rights underlying
such Representative's Unit Warrant, shall be made (and in any event within five
(5) business days thereafter) without charge to the Holder thereof
2
including, without limitation, any tax which may be payable in respect of the
issuance thereof, and such certificates shall (subject to the provisions of
Sections 5 and 7 hereof) be issued in the name of, or in such names as may be
directed by, the Holder thereof; provided, however, that the Company shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any such certificates in a name other
than that of the Representative and the Company shall not be required to issue
or deliver such certificates unless or until the person or persons requesting
the issuance thereof shall have paid to the Company the amount of such tax or
shall have established to the satisfaction of the Company that such tax has been
paid.
The Representative's Unit Warrants and the certificates representing
the Representative's Warrants and Representative's Shares issuable upon exercise
of the Representative's Unit Purchase Warrant shall be executed on behalf of the
Company in the same manner as the certificates for the Public Shares and Public
Warrants. The Representative's Unit Warrants shall be dated the date of the
execution by the Company upon initial issuance, division, exchange, substitution
or transfer. The certificates representing the Representative's Shares and
Representative's Warrants issuable upon exercise of the Representative's Unit
Warrants shall be identical in form and substance to the Public Shares and
Public Warrants, including the terms of redemption for the Warrants sold to the
public; provided, however, the exercise price of the Representative's Warrants
shall be $______ [165% of the exercise price of the Public Warrants].
5. RESTRICTION ON TRANSFER OF REPRESENTATIVE'S UNIT WARRANT. The Holder
of a Representative's Unit Warrant, by its acceptance thereof, covenants and
agrees that the Representative's Unit Warrant is being acquired as an investment
and not with a view to the distribution thereof; and that the Representative's
Unit Warrant may not be sold, transferred, assigned, hypothecated or otherwise
disposed of, in whole or in part, for a period of one year from the effective
date of the Public Offering except to officers or partners (not directors) of
the Representative and members of the selling group in the Public Offering
and/or their officers or partners as required in compliance with NASD Rule
2710(c)(7)(A).
6. EXERCISE PRICE.
6.1 INITIAL AND ADJUSTED EXERCISE PRICE. Except as otherwise provided
in Section 8 hereof, the initial exercise price of each Representative's Unit
Warrant shall be $___ [165% of the Public Unit offering price] per
Representative's Unit. The exercise price of the Representative's Warrant and
the number of Representative's Shares to be received upon exercise
3
of the Representative's Unit Warrant shall be subject to adjustment as provided
in Section 8 hereof.
7. REGISTRATION RIGHTS.
7.1 DEMAND REGISTRATION UNDER THE SECURITIES ACT OF 1933.
At any time commencing after _________, 2004 [one (1) year from the
Effective Date] through and including ___________, 2008 [five (5) years from the
Effective Date], the Holders of the Representative's Unit Purchase Warrant,
Representative's Shares and Representative's Shares, representing a "Majority"
of the shares of Common Stock issuable upon the exercise of the Units (assuming
the exercise of all of the Representative's Unit Warrant) shall have the right
(which right is in addition to the registration rights under Section 7.2
hereof), exercisable by written notice to the Company, to have the Company
prepare and file with the Commission, on one occasion, a registration statement
and such other documents, including a prospectus, as may be necessary in the
opinion of both counsel for the Company and counsel for the Representative and
Holders, in order to comply with the provisions of the Act, so as to permit a
public offering and sale of their respective Representative's Shares and
Representative's Warrants during a period equal to the longer of: (i) nine (9)
months or (ii) the unexpired term of the Representative's Warrants by such
Holders and any other Holders of the Representative's Unit Warrant who shall
notify the Company within ten (10) days after receiving notice from the Company
of such request.
7.2 PIGGYBACK REGISTRATION. If, at any time commencing after ______,
2004 [one year from the Effective Date], through and including ________, 2008
[five (5) years from the Effective Date], the Company proposes to register any
of its securities under the Act (other than in connection with a merger or
similar transaction with a filing on a Form S-4 or pursuant to Form S-8 or
similar form) it will give written notice by registered or certified mail, at
least thirty (30) days prior to the filing of each such registration statement,
to the Representative and to all other Holders of the Representative's Unit
Warrant, Representative's Units, Representative's Warrants or Representative's
Shares underlying the Representative's Units, of its intention to do so. If any
of the Representatives or other Holders of the Representative's Unit Warrant,
Representative's Units, Representative's Warrants or Representative's Shares
underlying the Representative's Unit Warrant, notify the Company within twenty
(20) days after receipt of any such notice of its or their desire to include any
such securities in such proposed registration statement, the Company shall
afford each of the Representative and such Holders of the
4
Representative's Unit Warrant, Representative's Units, Representative's Warrant
or Representative's Shares, the opportunity to have any of such securities
registered under such registration statement.
Notwithstanding the provisions of this Section 7.2, the Company shall
have the right at any time after it shall have given written notice pursuant to
this Section 7.2 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statement, or to withdraw the same after the filing but prior to
the Effective Date thereof.
7.3. NOTICE TO BE DELIVERED. The Company covenants and agrees to give
written notice of any registration request under Section 7.1 by any Holder or
Holders to all other registered Holders of the Representative's Unit Warrant,
Representative's Units, Representative's Warrants and Representative's Shares
within ten (10) days from the date of the receipt of any such registration
request.
7.4 COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION. In
connection with any registration under Section 7.1 or 7.2 hereof, the Company
covenants and agrees as follows:
(a) The Company shall use its best efforts to file a registration
statement within forty-five (45) days of receipt of any demand therefor in
accordance with Section 7.1, shall use its best efforts to have any registration
statement declared effective at the earliest practicable time, and shall furnish
each Holder desiring to sell the Representative's Shares and Representative's
Warrants and the shares underlying the Representative's Warrants such number of
prospectuses as shall reasonably be requested. Notwithstanding the foregoing
sentence, the Company shall be entitled to postpone the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to this Section 7.4(a) if (i) the Company is under contract or other
binding legal obligation for a material acquisition, reorganization or
divestiture, or (ii) the Company is publically committed to a self-tender or
exchange offer and the filing of a registration statement would cause a
violation of Rule 10b-6 under the Securities Exchange Act of 1934. In the event
of such postponement, the Company shall be required to file the registration
statement pursuant to this Section 7.4(a) upon the earlier of (i) the
consummation or termination, as applicable, of the event requiring such
postponement or (ii) 90 days after the receipt of the initial demand for such
registration.
(b) The Company shall pay all costs (excluding fees and expenses of
Holder(s) counsel and any underwriting or selling commissions), fees and
expenses in connection with all
5
registration statements filed pursuant to Sections 7.1 and 7.2 hereof including,
without limitation, the Company's legal and accounting fees, printing expenses,
and blue sky fees and expenses. The Holder(s) whose securities are included in
any regsitraion statement filed by the Company will pay all costs, fees and
expenses in connection with any registration statement filed pursuant to Section
7.1 or 7.2. If the Company shall fail to comply with the provisions of Section
7.4, the Company shall, in addition to any other equitable or other relief
available to the Holder(s), be liable for any or all actual damages (which may
include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in
qualifying or registering the Representative's Warrants, Representative's Shares
and underlying shares of Common Stock included in a registration statement for
offering and sale under the securities or blue sky laws of such states as
reasonably are requested by the Holder(s), provided that the Company shall not
be obligated to execute or file any general consent to service of process or to
qualify as a foreign corporation to do business under the laws of any such
jurisdiction.
(d) The Company shall indemnify the Holder(s) of the Representative's
Unit Warrant, Representative's Warrants and Representative's Shares to be sold
pursuant to any registration statement and each person, if any, who controls
such Holders within the meaning of Section 15 of the Act or Section 20(a) of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss,
claim, damage, expense or liability (including all expenses reasonably incurred
in investigating, preparing or defending against any claim whatsoever) to which
any of them may become subject under the Act, the Exchange Act or otherwise,
arising from such registration statement but only to the same extent and with
the same effect as the provisions pursuant to which the Company has agreed to
indemnify the Underwriters contained in Section 7 of the Underwriting Agreement.
(e) The Holder(s) of the Representative's Unit Warrant,
Representative's Units, Representative's Shares and Representative's Warrants
and shares of Common Stock underlying the Representative's Warrant to be sold
pursuant to a registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and directors
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage or expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such Holders, or their
6
successors or assigns, for specific inclusion in such registration statement to
the same extent and with the same effect as the provisions contained in Section
7 of the Underwriting Agreement pursuant to which the Underwriters have agreed
to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring
the Holder(s) to exercise their Representative's Unit Warrant or the
Representative's Warrants prior to the initial filing of any registration
statement or the effectiveness thereof.
(g) The Company shall as soon as practicable after the Effective Date
of the registration statement filed pursuant to this Section 7, and in any event
within 15 months thereafter, have made "generally available to its security
holders" (within the meaning of Rule 158 under the Act) an earnings statement
(which need not be audited) complying with Section 11(a) of the Act and covering
a period of at least 12 consecutive months beginning after the Effective Date of
such registration statement.
(h) In connection with a demand registration pursuant to Section 7.1,
the Company shall enter into an underwriting agreement with the managing
Representative(s) selected for such underwriting, if any, by Holders holding a
Majority of the Representative's Unit Warrants, Representative's Units,
Representative's Shares and Representative's Warrants requested to be included
in such underwriting. Such underwriting agreement shall be satisfactory in form
and substance to the Company, each Holder and such managing Representatives, and
shall contain such representations, warranties and covenants by the Company and
such other terms as are customarily contained in agreements of that type used by
the managing Representative(s).
The Holders shall be parties to any underwriting agreement relating to
an underwritten sale of their Representative's Shares and Representative's
Warrants and shares of Common Stock Shares underlying the Representative's
Warrants and may, at their option, require that any or all the representations,
warranties and covenants of the Company to or for the benefit of such
Representative(s) shall also be made to and for the benefit of such Holders.
Such Holders shall not be required to make any representations or warranties to
or agreements with the Company or the Representative(s) except as they may
relate to such Holders, their intended methods of distribution, and except for
matters related to disclosures with respect to such Holders, contained or
required to be contained, in such registration statement under the Act and the
rules and regulations thereunder.
(i) For purposes of this Agreement, the term "Majority" in reference to
the Holders of Representative's Warrants and Representative's Shares and shares
underlying the
7
Representative's Warrants, shall mean in excess of fifty percent (50%) of the
then outstanding Warrants and Representative's Shares that (i) are not held by
the Company, an affiliate, officer, creditor, employee or agent thereof or any
of their respective affiliates, members of their families, persons acting as
nominees or in conjunction therewith or (ii) have not been resold to the public
pursuant to Rule 144 under the Act or a registration statement filed with the
Commission under the Act.
8. ADJUSTMENTS TO EXERCISE PRICE AND NUMBER OF SECURITIES.
8.1 ADJUSTMENTS TO REPRESENTATIVE'S WARRANTS. The Exercise Price of the
Representative's Warrants and number of securities issuable with respect to the
Representative's Warrants shall be adjusted on the same terms and conditions,
and at the same time, as any adjustments in the Exercise Price and number of
shares issuable with respect to the Public Warrants required by the terms of the
Public Warrants.
8.2 ADJUSTMENT TO NUMBER OF REPRESENTATIVE'S SHARES. The number of
Representative's Shares to be received upon exercise of the Representative's
Unit Warrants shall be subject to adjustment as follows:
(a) In the event that the number of outstanding shares of Common Stock
is increased by a stock dividend payable in Common Stock or by a subdivision of
the outstanding Common Stock, then, from and after the effective time of such
increase by reason of such dividend or subdivision, the number of shares of
Common Stock issuable upon the exercise of each Representative's Unit Warrant
shall be increased in proportion to such increase in outstanding shares. In the
event that the number of shares of Common Stock outstanding is decreased by a
combination of the outstanding Common Stock, then, from and after the effective
time of such decrease by reason of such combination, the number of shares of
Common Stock issuable upon the exercise of each Representative's Unit Warrant
shall be decreased in proportion to such decrease in the outstanding shares of
Common Stock.
(b) In case of any reorganization or reclassification of the
outstanding Common Stock (other than a change in par value, or from par value to
no par value, or as a result of a subdivision or combination), or in case of any
consolidation of the Company with, or merger of the Company into, another
corporation (other than a consolidation or merger in which the Company is the
continuing corporation and which does not result in any reclassification of the
outstanding Common Stock), or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Holder of each
8
Representative's Unit Warrant then outstanding shall thereafter have the right
to purchase the kind and amount of shares of Common Stock and other securities
and property receivable upon such reorganization, reclassification,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock which the Holder of such Representative's Unit Warrant shall then
be entitled to purchase; such adjustments shall apply with respect to all such
changes occurring between the date of this Agreement and the date of exercise of
such Representative's Unit Warrant.
(c) Subject to the provisions of this Section 8, in case the Company
shall, at any time prior to the exercise of the Warrants, make any distribution
of its assets to holders its Common Stock as a liquidating or a partial
liquidating dividend, then the holder of Warrants who exercises its Warrants
after the record date for the determination of those holders of Common Stock
entitled to such distribution of assets as a liquidating or partial liquidating
dividend shall be entitled to receive for the Warrant Exercise Price per
Warrant, in addition to each share of Common Stock, the amount of such
distribution or, at the option of the Company, a sum equal to the value of any
such assets at the time of such distribution as determined by the Board of
Directors of the Company in good faith) which would have been payable to such
holder had such holder been the holder of record of the Common Stock receivable
upon exercise of its Warrant on the record date for the determination of those
entitled to such distribution.
(d) In case of the dissolution, liquidation or winding up of the
Company, all rights under this Representative's Unit Warrants shall terminate on
a date fixed by the Company, such date to be no earlier than ten (10) days prior
to the effectiveness of such dissolution, liquidation or winding up and not
later than five (5) days prior to such effectiveness. Notice of such termination
of purchase rights shall be given to the last registered holder of the
Representative's Unit Warrants, as the same shall appear on the books of the
Company maintained by the Warrant Agent, by registered mail at least thirty (30)
days prior to such termination date.
(e) In case the Company shall, at any time prior to the expiration of
the Representative's Unit Warrants and prior to the exercise thereof, offer to
the holders of its Common Stock any rights to subscribe for additional shares of
any class of the Company, then the Company shall give written notice thereof to
the registered holders of the Representative's Unit Warrants not less than
thirty (30) days prior to the date on which the books of the Company are closed
or a record date is fixed for the determination of the stockholders entitled to
such subscription rights. Such notice shall specify the date as to which the
books shall be closed or the
9
record date fixed with respect to such offer of subscription and the right of
the holders of the Representative's Unit Warrants to participate in such offer
of subscription shall terminate if the Representative's Unit Warrant shall not
be exercised on or before the date of such closing of the books or such record
date.
(f) Any adjustment pursuant to the aforesaid provisions of this Section
8 shall be made on the basis of the number of shares of Common Stock which the
holder thereof would have been entitled to acquire upon the exercise of the
Representative's Unit Warrant immediately prior to the event giving rise to such
adjustment.
9. EXCHANGE AND REPLACEMENT OF REPRESENTATIVE'S UNIT WARRANTS. Each
Representative's Unit Warrant is exchangeable without expense, upon the
surrender thereof by the registered Holder at the principal executive office of
the Company, for a new Representative's Unit Warrant of like tenor and date
representing in the aggregate the right to purchase the same number of
Representative's shares and Representative's Warrants as provided in the
original Representative's Unit Warrant in such denominations as shall be
designated by the Holder thereof at the time of such surrender.
Upon receipt by the Company of evidence reasonably satisfactory to it
of the loss, theft, destruction or mutilation of any Representative's Unit
Warrant, and, in case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it, and reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
the Representative's Unit Warrant, if mutilated, the Company will make and
deliver a new Representative's Unit Warrant of like tenor, in lieu thereof.
10. ELIMINATION OF FRACTIONAL INTERESTS. The Company shall not be
required to issue certificates representing fractions of Representative's Shares
upon the exercise of the Representative's Unit Warrant, nor shall it be required
to issue scrip or pay cash in lieu of fractional interests, it being the intent
of the parties that all fractional interests shall be eliminated by rounding any
fraction up to the nearest whole number of shares of Common Stock or other
securities, properties or rights.
11. RESERVATION AND LISTING OF SECURITIES. The Company shall at all
times reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issuance upon the exercise of the Representative's
Unit Warrant and Representative's Warrants, such number of shares of Common
Stock or other securities, properties or rights as shall be issuable upon the
exercise thereof. The Company covenants and agrees that, upon exercise of the
10
Representative's Unit Warrant and/or the Representative's Warants and payment of
the Exercise Price therefor, all Representative's Shares and other securities
issuable upon such exercise shall be duly and validly issued, fully paid,
non-assessable and not subject to the preemptive rights of any stockholder. As
long as the Representative's Unit Warrant and/or Representative's Warrants shall
be outstanding, the Company shall use its best efforts to cause all
Representative's Shares and Representative's Shares issuable upon the exercise
of the Representative's Warrants to be listed (subject to official notice of
issuance) on all securities exchanges on which the Common Stock may then be
listed and/or quoted on the Nasdaq Stock Market.
12. NOTICES TO REPRESENTATIVE'S UNIT WARRANT HOLDERS. Nothing contained
in this Agreement shall be construed as conferring upon the Holders the right to
vote or to consent or to receive notice as a stockholder in respect of any
meetings of stockholders for the election of directors or any other matter, or
any rights whatsoever as a stockholder of the Company. If, however, at any time
prior to the expiration of the Representative's Unit Warrant or Representative's
Warrants and their exercise, any of the following events shall occur:
(a) the Company shall take a record of the holders of its
shares of Common Stock for the purpose of entitling them to receive a
dividend or distribution payable otherwise than in cash, or a cash
dividend or distribution payable otherwise than out of current or
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company; or
(b) the Company shall offer to all the holders of its Common
Stock any additional shares of capital stock of the Company or
securities convertible into or exchangeable for shares of capital stock
of the Company, or any option, right or warrant to subscribe therefor;
or
(c) a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation or merger) or a sale of
all or substantially all of its property, assets and business as an
entirety shall be proposed;
then, in any one or more of such events the Company shall give written notice of
such event at least fifteen (15) days prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution, convertible or
exchangeable securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice shall specify
such record date or the date of closing the transfer books, as the case may be.
Failure to give such notice or any defect
11
therein shall not affect the validity of any action taken in connection with the
declaration or payment of any such dividend, distribution or the issuance of any
convertible or exchangeable securities, or subscription rights, options or
warrants, or any proposed dissolution, liquidation, winding up or sale.
13. NOTICES
All notices requests, consents and other communications hereunder shall
be in writing and shall be deemed to have been duly made when delivered, or
mailed by registered or certified mail, return receipt requested:
(a) If to the registered Holder of the Representative's Unit
Warrant, to the address of such Holder as shown on the books of the
Company; or
(b) If to the Company, to the address set forth in Section 3
hereof or to such other address as the Company may designate by notice
to the Holders.
14. SUPPLEMENTS AND AMENDMENTS. The Company and the Representative may
from time to time supplement or amend this Agreement without the approval of any
holders of Representative's Unit Warrants (other than the Representative) in
order to cure any ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any provisions herein or to
make any other provisions in regard to matters or questions arising hereunder
which the Company and the Representative may deem necessary or desirable and
which the Company and the Representative deem shall not adversely affect the
interests of the Holders of Representative's Unit Warrants.
15. SUCCESSORS. All the covenants and provisions of this Agreement
shall be binding upon and inure to the benefit of the Company, the Holders and
their respective successors and assigns hereunder.
16. TERMINATION. This Agreement shall terminate at the close of
business on _________, 2008. Notwithstanding the foregoing, the indemnification
provisions of Section 7 shall survive such termination until the close of
business on ____, 2011.
17. GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) This Agreement and each Representative's Unit Warrant issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be construed in accordance with the laws of
such State without giving effect to the rules of said State governing the
conflicts of laws.
12
(b) The Company, the Representative and the Holders hereby agree that
any action, proceeding or claim against it arising out of, or relating in any
way to, this Agreement shall be brought and enforced in the courts of the State
of New York or of the United States of America for the Southern District of New
York, and irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company, the Representative and the Holders hereby irrevocably
waive any objection to such exclusive jurisdiction or inconvenient forum. Any
such process or summons to be served upon any of the Company, the Representative
and the Holders (at the option of the party bringing such action, proceeding or
claim) may be served by transmitting a copy thereof, by registered or certified
mail, return receipt requested, postage prepaid, addressed to it at the address
determined in accordance withSection 13 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the party so served in any
action, proceeding or claim. The Company, the Representative and the Holders
agree that the prevailing party(ies) in any such action or proceeding shall be
entitled to recover from the other party(ies) all of its/their reasonable legal
costs and expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
18. ENTIRE AGREEMENT; MODIFICATION. This Agreement (including the
Underwriting Agreement to the extent portions thereof are referred to herein)
contains the entire understanding between the parties hereto with respect to the
subject matter hereof and, except as provided in Section 14 hereof, may not be
modified or amended except by a writing duly signed by the party against whom
enforcement of the modification or amendment is sought. Any terms not otherwise
defined herein shall have the meaning ascribed to such term in the Underwriting
Agreement.
19. SEVERABILITY. If any provision of this Agreement shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other provision of this Agreement.
20. CAPTIONS. The caption headings of the Sections of this Agreement
are for convenience of reference only and are not intended, nor should they be
construed as, a part of this Agreement and shall be given no substantive effect.
21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company and the
Representative and any other registered Holder(s) of the Representative's Unit
Warrants or Representative's Shares or the Representative's Warrants any legal
or equitable right, remedy or claim under this Agreement;
13
and this Agreement shall be for the sole and exclusive benefit of the Company
and the Representative and any other Holder(s) of the Representative's Unit
Warrants or Representative's Shares or Representative's Warrants.
22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
Remainder of page intentionally left blank. Signature page follows.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
[SEAL] DELCATH SYSTEMS, INC.
By:__________________________________
Name:
Title:
Attest:
Secretary
Agreed and accepted as of the date
first above written
ROAN/XXXXXX ASSOCIATES, L.P.,
as Representative of the Underwriters
By: XXXXXX/XXXXXXX SECURITIES CORP.,
General Partner
By:__________________________________
Name: Xxxxx Xxxxxx
Title: President
15
EXHIBIT A
[FORM OF REPRESENTATIVE'S UNIT WARRANT CERTIFICATE]
THE REPRESENTATIVE'S UNIT WARRANT REPRESENTED BY THIS CERTIFICATE AND THE OTHER
SECURITIES ISSUABLE UPON EXERCISE THEREOF MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, (ii) TO THE EXTENT APPLICABLE, RULE 144 UNDER SUCH ACT (OR ANY SIMILAR
RULE UNDER SUCH ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (iii) AN
OPINION OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
FOR THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
THE TRANSFER OR EXCHANGE OF THE REPRESENTATIVE'S UNIT PURCHASE WARRANT
REPRESENTED BY THIS CERTIFICATE IS RESTRICTED IN ACCORDANCE WITH THE
REPRESENTATIVE'S WARRANT AGREEMENT FOR UNITS REFERRED TO HEREIN.
EXERCISABLE ON OR BEFORE
5:00 P.M., NEW YORK TIME, ____, 2008
No. DS-UW-1 _______ Representative's Unit Warrant
Representative's Unit Warrant
This Representative's Unit Warrant certifies that ROAN/XXXXXX
ASSOCIATES, L.P., or registered assigns, is the registered holder of ________
Representative's Unit Purchase Warrants to purchase initially, at any time from
______, 2003 until 5:00 p.m. New York time on _______, 2008 ("Expiration Date"),
up to ______ Representative's Units (the "Units") of Delcath Systems, Inc., a
Delaware corporation (the "Company"), at an initial exercise price, subject to
adjustment in certain events (the "Exercise Price"), of $____ [165% of the
public offering price of the Units] upon surrender of this Representative's Unit
Warrant and payment of the Exercise Price at an office or agency of the Company,
but subject to the conditions set forth herein and in the Representative's Unit
Warrant Agreementdated as of ______, 2002 between the Company and Roan/Xxxxxx
Associates, L.P. (the "Representative's Warrant Agreement"). Payment of the
Exercise Price shall be made by certified or official bank check in New York
Clearing House funds payable to the order of the Company.
No Representative's Unit Warrant may be exercised after 5:00 p.m., New
York time, on the Expiration Date, at which time all Representative's Unit
Warrants evidenced hereby, unless exercised prior thereto, shall thereafter be
void.
1
The Representative's Unit Warrant evidenced by this Representative's
Unit Purchase Warrant Certificate are part of a duly authorized issue of Units
pursuant to the Representative's Warrant Agreement, which Representative's
Warrant Agreement is hereby incorporated by reference herein and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Company and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Representative's Unit Warrant.
The Representative's Warrant Agreement provides that upon the
occurrence of certain events the exercise prices and/or number of the Company's
securities issuable thereupon may, subject to certain conditions, be adjusted.
In such event, the Company will, at the request of the holder, issue a new
Representative's Unit Warrant Certificate evidencing the adjustment in the
exercise price and the number and/or type of securities issuable upon the
exercise of the Representative's Unit Warrant; provided, however, that the
failure of the Company to issue such new Representative's Unit Warrants shall
not in any way change, alter or otherwise impair, the rights of the holder as
set forth in the Representative's Warrant Agreement.
Upon due presentment for registration of transfer of this
Representative's Unit Warrant at an office or agency of the Company, a new
Representative's Unit Warrant or Representative's Unit Warrants of like tenor
and evidencing in the aggregate a like number of Representative's Unit Warrants
shall be issued to the transferee(s) in exchange for this Representative's Unit
Warrant, subject to the limitations provided herein and in the Representative's
Warrant Agreement, without any charge except for any tax or other governmental
charge imposed in connection with such transfer.
Upon the exercise of less than all of the Representative's Unit
Warrants evidenced by this Certificate, the Company shall forthwith issue to the
holder hereof a new Representative's Unit Warrant Certificate representing such
number of unexercised Representative's Unit Warrants.
The Company may deem and treat the registered holder(s) hereof as the
absolute owner(s) of this Representative's Unit Warrant (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of any exercise hereof, and of any distribution to the holder(s) hereof, and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
All terms used in this Representative's Unit Purchase Warrant which are
defined in the Representative's Warrant Agreement shall have the meanings
assigned to them in the Representative's Warrant Agreement.
2
IN WITNESS WHEREOF, the Company has caused this Representative's Unit
Warrant to be duly executed under its corporate seal.
Dated as of _____, 2003
DELCATH SYSTEMS, INC.
[SEAL] By:__________________________________
Name:
Title:
Attest:
Secretary
3
[FORM OF ELECTION TO PURCHASE]
The undersigned hereby irrevocably elects to exercise the right,
represented by this Representative's Unit Warrant, to purchase ______ Units and
herewith tenders in payment for such securities a certified or official bank
check payable in New York Clearing House Funds to the order of Delcath Systems,
Inc. in the amount of $_____, all in accordance with the terms hereof. The
undersigned requests that a certificate for such securities be registered in the
name of _________________ whose address is _________________________ and that
such Certificate be delivered to _________________ whose address is
_________________________.
Dated:
Signature __________________________________
(Signature must conform in all respects to
name of holder as specified on the face of
the Representative's Unit Purchase Warrant.)
Insert Social Security or Other
Identifying Number of Holder)
4
