**Exhibit 4.4**

 

**Exhibit H**

 

**SECOND AMENDMENT TO RIGHTS AGREEMENT**

 

**THIS SECOND AMENDMENT TO RIGHTS AGREEMENT**(this “Amendment”) is entered into as of March 31, 2006 by and between Aksys,Ltd., a Delaware corporation (the “Company”),and Computershare Trust Company, N.A. (formerly EquiServe Trust Company, N.A.)(“Computershare”). Capitalized terms used herein but not otherwise definedshall have the meaning given to such terms in the Rights Agreement (definedbelow).

 

**RECITALS**

 

A.    TheCompany is a party to a Rights Agreement, dated as of October 28, 1996, asamended (the “Rights Agreement”),between the Company and Computershare, as successor Rights Agent to EquiServeTrust Company, N.A.

 

B.    OnFebruary 23, 2004, the Company entered into an amendment to the RightsAgreement (the “First Amendment to Rights Agreement”) in connection with thatcertain Settlement Agreement and Mutual Release, dated as of February 23, 2004(the “Settlement Agreement”), by and among the Company, Durus Life SciencesMaster Fund Ltd., a Cayman Islands company (“Durus”), Artal Long BiotechPortfolio LLC, a Delaware limited liability company, Scott Sacane, aConnecticut resident, Durus Capital Management, LLC, a Delaware limitedliability company, and Durus Capital Management (N.A.), LLC, a Delaware limitedliability company.

 

C.    TheBoard of Directors of the Company (the “Board”) has determined that it is inthe best interests of the Company and its shareholders to enter into, and theCompany proposes to enter into, that certain Securities Purchase Agreement,dated as of March 31, 2006 (as the same may be amended from time to time, the “PurchaseAgreement”), between the Company and Durus and other potential investors (Durusand such other potential investors hereinafter referred to collectively as the “Investors”),and in order to induce the Investors to enter into the Purchase Agreement, theCompany wishes to further amend the Rights Agreement as provided herein.

 

D.    TheBoard has resolved to redeem all of the outstanding Rights under (and as definedin) the Rights Agreement, as contemplated by Section 23 of the RightsAgreement, which resolution is effective upon execution and delivery of thisAmendment and irrevocable, and, upon the effectiveness thereof, all rights toexercise outstanding Rights will terminate and the only right of holders ofoutstanding Rights will be to receive the Redemption Price (as defined in theRights Agreement).

 

E.     TheCompany has the authority to amend the Rights Agreement and has directed theRights Agent to join in this Amendment.

 

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**NOW THEREFORE**, inconsideration of the foregoing and other good and valuable consideration, thereceipt and sufficiency of which is hereby acknowledged, the parties agree asfollows:

 

1.     CompanyFindings. In entering into this Amendment, the Board has determined that todate there has not occurred any Stock Acquisition Date or Distribution Date,and has made such other determinations as it deems necessary or advisable.

 

2.     ExemptPerson.

 

a.     Paragraphs (vii)and (viii) of Section 1(q) of the Rights Agreement are hereby modified andamended to read in their entirety as follows:

 

“(vii)  each of Durus, Scott Sacane, a Connecticut resident, DurusCapital Management, LLC, a Delaware limited liability company, Durus CapitalManagement (N.A.), LLC, a Delaware limited liability company, Perseus, LLC.,Artal and any Investor (collectively, the “Designated Persons”), and anyAffiliate or Associate of any thereof (and any other Person that sharesbeneficial ownership of Common Stock with any of the foregoing or any otherPerson that acquires beneficial ownership of Common Stock from any of theforegoing);

 

(viii)  any nationally recognized underwriter(s) or brokerdealer(s) that acquire shares of Common Stock from any Person described in theforegoing clause (vii) as part of a distribution by such Person of suchshares of Common Stock (that is, for the purpose of re-sale to investors) orotherwise; and”

 

b.     Paragraph(ix) of Section 1(q) of the Rights Agreement is hereby modified and amended toread in its entirety as follows:

 

“(ix) any holder of a proxy granted pursuant to Section 6(d)of the Settlement Agreement and Mutual Release, dated as of February 23,2004, by and among the Company and certain of the Designated Persons (the “SettlementAgreement”).”

 

c.     Newparagraph (x), as follows, is hereby added to the definition of ExemptPerson in Section 1(q) of the Rights Agreement:

 

“(x) any Person that is or becomes a party to the Purchase Agreement orotherwise acquires Securities or is or becomes a Beneficial Owner of Securitiesas contemplated in the Purchase Agreement and the other Transaction Documents.”

 

3.     AdditionalAmendments.

 

a.     AcquiringPerson. Section 1(a) ofthe Rights Agreement is hereby amended by adding as the final paragraph thereofthe following:

 

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“Notwithstanding the foregoing, neither Durus Life Sciences Master FundLtd., a Cayman Islands company (“Durus”), Artal Long Biotech PortfolioLLC, a Delaware limited liability company (“Artal”), any Investor, ashereinafter defined, nor any Affiliate or Associate of any of them, shallbecome an “Acquiring Person” as a result of the approval, execution or deliveryof, or the announcement or consummation of the transactions contemplated by,(i) that certain Securities Purchase Agreement, dated as of March 31, 2006(as the same may be amended from time to time, the “Purchase Agreement”),by and between the Company and Durus and other potential investors as providedtherein (Durus and such other potential investors sometimes hereinafterreferred to individually as an “Investor” and collectively as the “Investors”),or any amendment thereof, or (ii) the other Transaction Documents ascontemplated and defined in the Purchase Agreement (as the same may be amendedfrom time to time, the “Transaction Documents”), or any amendment of anythereof.”

 

b.     DistributionDate. Section 1(l) of the Rights Agreement is hereby amended byadding as the final sentence thereof the following:

 

“Notwithstanding anything in this Agreementto the contrary, no Distribution Date shall be deemed to have occurred as aresult of (i) the approval, execution or delivery of the PurchaseAgreement and the other Transaction Documents, including the approval,execution and delivery of any amendments to any thereof, (ii) the sale andpurchase of the Securities (as defined in the Purchase Agreement, the “Securities”)as contemplated by the Purchase Agreement and the other Transaction Documents,(iii)  the announcement of the entering into and/or the consummation ofthe transactions contemplated by the Purchase Agreement and the otherTransaction Documents or (iv) the consummation of any of the transactionscontemplated by the Purchase Agreement and the other Transaction Documents.”

 

c.     Stock Acquisition Date. Section 1(bb) of the Rights Agreementis hereby amended by adding as the final sentence thereof the following:

 

“Notwithstanding anything in this Agreement to the contrary, no StockAcquisition Date shall be deemed to have occurred as a result of (i) the approval, execution or deliveryof the Purchase Agreement and the other Transaction Documents, including theapproval, execution and delivery of any amendments to any thereof, (ii) thesale and purchase of the Securities as contemplated by the Purchase Agreementand the other Transaction Documents, (iii) the announcement of theentering into and/or the consummation of the transactions contemplated by thePurchase Agreement and the other Transaction Documents or (iv) theconsummation of any of the transactions contemplated by the Purchase Agreementand the other Transaction Documents.”

 

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d.     Adjustmentsto Purchase Price, Number of Shares or Number of Rights. Section 11(a)(ii) of the RightsAgreement is hereby amended by adding as the final sentence thereof thefollowing:

 

“Notwithstanding the foregoing, this Section 11(a)(ii) shallnot be deemed to apply to any of the following: (i) the approval, executionor delivery of the Purchase Agreement and the other Transaction Documents,including the approval, execution and delivery of any amendments to any thereof,(ii) the sale and purchase of the Securities as contemplated by thePurchase Agreement and the other Transaction Documents, (iii)  theannouncement of the entering into and/or the consummation of the transactionscontemplated by the Purchase Agreement and the other Transaction Documents or(iv) the consummation of any of the transactions contemplated by thePurchase Agreement and the other Transaction Documents.”

 

4.     Effectiveness.This Amendment shall be deemed effective immediately prior to, the executionand delivery of the Purchase Agreement. Except as expressly provided herein, allof the terms, conditions, obligations, covenants or agreements contained in theRights Agreement, as amended, shall continue in full force and effect.

 

5.     GoverningLaw. This Amendment shall be governed by and construed in accordance withthe laws of the State of Delaware.

 

6.     Counterparts.This Amendment may be executed in one or more counterparts, each of which shalltogether constitute one and the same document.

 

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**IN WITNESS WHEREOF**,the parties have caused this Amendment to be duly executed as of the dateindicated above.

 

**AKSYS, LTD**

 
| By:    | /s/ Laurence P. Birch |   |
|--------|-----------------------|--------|
|   |                  |
| Title: | CEO                   |   |
|        |                       |        |  |

 

 

**COMPUTERSHARE TRUSTCOMPANY, N.A.**

 
| By:    | /s/ Peter Sablich |   |
|--------|-------------------|--------|
|   |              |
| Title: | Managing Director |   |
|        |                   |        |  |

 

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