Exhibit 10
AMENDMENT TO
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Amendment to Settlement Agreement and Mutual Release (this
"Amendment") is entered into as of March 31, 2006 by and among AKSYS, LTD., a
Delaware corporation (the "Company"), DURUS LIFE SCIENCES MASTER FUND LTD., a
Cayman Islands company ("Durus"), and ARTAL LONG BIOTECH PORTFOLIO LLC, a
Delaware limited liability company ("Artal"). Durus and Artal are collectively
referred to herein as the "Investors," and each is individually referred to
herein as an "Investor."
A. The Company, Durus, Durus Capital Management, LLC, Durus Capital
Management (N.A.), LLC, Artal and Xxxxx Xxxxxx are parties to that certain
Settlement Agreement and Mutual Release, dated as of February 23, 2004 (the
"Settlement Agreement").
B. Under the terms of the Settlement Agreement, the parties agreed to
certain matters related to, among other things, the acquisition, ownership,
trading or disposition of shares of the Company's common stock by the Investors.
C. In connection with the execution and delivery of the Securities Purchase
Agreement, dated as of March 31, 2006, by and between the Company and Durus (the
"Purchase Agreement") and the execution and delivery of the Transaction
Documents (as defined in the Purchase Agreement), the Company and the Investors
have agreed to amend the Settlement Agreement as provided herein as to
themselves only in accordance with Section 17(b) of the Settlement Agreement.
D. Capitalized terms used but not defined herein shall have the meanings
ascribed to such terms in the Settlement Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Investors
hereby agree as follows:
1. Amendment to Settlement Agreement. Effective immediately upon execution
of this Amendment, as between the Company, on the one hand, and each of the
Investors and their respective Affiliates and Associates, on the other hand, the
following sections of the Settlement Agreement are hereby terminated and deemed
to be deleted in their entirety and are and shall be of no further force and
effect: Sections 3, 5, 6, 7, 11(c), 11(d), 12, 13 and 27(a).
2. Termination of Irrevocable Proxy. The Company hereby consents to the
termination of the irrevocable proxies provided by the Investors to any and all
Voting Designees pursuant to Section 16 of the Settlement Agreement, including
Xxxxxxxxx Shareholder Communications, Inc., and the Company hereby authorizes
the Investors to provide written notice to such Voting Designees of the
Company's consent to such termination.
3. Full Force and Effect. Except as expressly modified by this Amendment,
all terms, conditions and provisions of the Settlement Agreement shall remain in
full force
and effect. In the event of any inconsistency or conflict between the Settlement
Agreement and this Amendment, the terms, conditions and provisions of this
Amendment shall govern and control.
4. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. A facsimile, telecopy or
other reproduction of this Amendment may be executed by any party hereto and
delivered by such party by facsimile or other electronic transmission, and such
execution and delivery shall be considered valid, binding and effective for all
purposes.
5. Further Assurance. The parties hereto further agree to do and perform,
or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto may reasonably request in order to effect
the foregoing.
6. Entire Agreement. The Settlement Agreement, the Purchase Agreement, the
Mutual Release, the amendment to the Rights Agreement (referenced in Section
2.8.2 of the Purchase Agreement) and this Amendment constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous representations, discussions, proposals,
negotiations, conditions and agreements, whether oral or written, and all
communications between the parties relating to the subject matter of the
Settlement Agreement, the Investor Rights Agreement and this Amendment,
including any limitations on the Investors' and their respective Affiliates' and
Associates' right to vote or take any other action with respect to the shares of
capital stock of the Company held by them.
6. Governing Law. This Amendment shall be governed by and construed in
accordance with the law of the State of Delaware, without giving effect to the
conflicts or choice of law provisions thereof.
[Signature page follows]
IN WITNESS WHEREOF, the Investors and the Company have executed this
Amendment to Settlement Agreement as of the date first above written.
AKSYS, LTD.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: CEO
DURUS LIFE SCIENCES MASTER FUND LTD.
By: /s/ Xxxxxx X. Lake
------------------------------------
Name: Xxxxxx X. Lake
Title: Director
ARTAL LONG BIOTECH PORTFOLIO LLC
By: Artal Alternative Treasury Management
Its: Managing Member
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Managing Director
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