Exhibit 10.27
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
Scott Sacane 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
