Exhibit 1
Agreement
This Agreement (the "Agreement") is entered into as of April 11, 2003 by
Durus Capital Management, LLC ("Durus"), Xxxxx Xxxxxx ("Sacane, and together
with Durus and any other persons or entities with which he may constitute a
group, the "Sacane Group") and Aksys, Ltd., a Delaware corporation (the
"Company").
WHEREAS, the Sacane Group is currently the beneficial owner of 5,238,248
shares of the Company's Common Stock, which represents about 19.5% of the shares
outstanding.
WHEREAS, Xx. Xxxxxx is the managing member of Durus and holds voting power
and dispositive power over any shares of Common Stock beneficially owned by
Durus.
WHEREAS, the Company's Rights Agreement provides that any person or group
which is the beneficial owner of 15% or more of the outstanding Common Stock
shall be deemed to be an Acquiring Person (as defined in the Rights Agreement),
unless the so-called "inadvertent acquisition" exception is applicable.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth in this Agreement, the parties hereby agree as follows:
1. For so long as the Sacane Group is in compliance with the terms of this
Agreement, the Sacane Group shall not be deemed an Acquiring Person under
the Company's Rights Agreement.
(a) As soon as practicable, and in any event no later than the second
anniversary of the date of this Agreement, Sacane shall take any and
all actions necessary to cause the beneficial ownership of the
Sacane Group to be less than 15%, whether such percentage reduction
in beneficial ownership occurs through divestments of Common Stock
by the Sacane Group or otherwise.
(b) The Sacane Group shall refrain from acquiring any additional shares
of Common Stock until such time as its percentage beneficial
ownership shall be less than 15% (and thereafter the beneficial
ownership of the Sacane Group shall not exceed 15% without the prior
written consent of the Company's board of directors, which consent
may be granted or withheld in the board's sole discretion).
(c) Sacane and Durus represent and warrant that (1) the first and second
recitals of this Agreement are true and correct, (2) the Sacane
Group crossed the 15% beneficial ownership threshold under the
Rights Agreement inadvertently, and (3) the shares of Common Stock
beneficially owned by the Sacane Group are and will be held in the
ordinary course of business and are not and will not be held for the
purpose of or with the effect of changing or influencing the control
of the Company.
2. This Agreement may be executed in one or more counterparts. Facsimile
signatures to this Agreement shall be treated in all manner and respects
as an original contract with the same binding legal effect as if it were
an original signed version delivered in person. This Agreement shall be
governed by and construed in accordance with the internal laws of the
State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
AKSYS, LTD.
/s/ Xxxxxxx X. Xxx
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Xxxxxxx X. Xxx
Chief Executive Officer
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
DURUS CAPITAL MANAGEMENT, LLC
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Managing Partner and
Authorized Signatory
