AS THEREAFTER DELIVERED TO THE PURCHASERS OF THE REGISTRABLE SECURITIES
BEING SOLD THEREUNDER, SUCH PROSPECTUS SHALL NOT INCLUDE AN UNTRUE STATEMENT OF
A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO BE STATED THEREIN
OR NECESSARY TO MAKE THE STATEMENTS THEREIN IN THE LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE NOT MISLEADING (AND SHALL FURNISH TO EACH
STOCKHOLDER, PERMITTED TRANSFEREE AND UNDERWRITER, IF ANY, A REASONABLE NUMBER
OF COPIES OF SUCH PROSPECTUS SO SUPPLEMENTED OR AMENDED).
IF THE NOTIFICATION
RELATES TO AN EVENT DESCRIBED IN CLAUSE (III) OF THIS SUBSECTION, AKSYS SHALL
USE REASONABLE BEST EFFORTS TO PREVENT THE ENTRY OF SUCH STOP ORDER.
THE
PARTIES UNDERSTAND AND AGREE THAT, EXCEPT AS SPECIFICALLY SET FORTH HEREIN,
WITHOUT THE PRIOR CONSENT OF A STOCKHOLDER OR PERMITTED TRANSFEREE, AKSYS SHALL
NOT, DIRECTLY OR INDIRECTLY, PROVIDE SUCH PERSON WITH MATERIAL NON-PUBLIC
INFORMATION RELATING TO AKSYS UNLESS THE FAILURE TO INCLUDE SUCH INFORMATION IN
A SHELF REGISTRATION WOULD RESULT IN SUCH SHELF REGISTRATION CONTAINING ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTING TO STATE A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY TO MAKE THE STATEMENTS THEREIN NOT
MISLEADING;
(F)
MAKE AVAILABLE FOR INSPECTION BY EACH STOCKHOLDER, PERMITTED
TRANSFEREE AND UNDERWRITER, IF ANY, AND ANY ATTORNEY, ACCOUNTANT OR OTHER AGENT
RETAINED BY ANY SUCH PERSON (EACH, AN "INSPECTOR"), ALL FINANCIAL AND OTHER
RECORDS, PERTINENT CORPORATE DOCUMENTS AND PROPERTIES OF AKSYS AND ANY
SUBSIDIARIES THEREOF AS MAY BE IN EXISTENCE AT SUCH TIME (COLLECTIVELY, THE
"RECORDS") AS SHALL BE REASONABLY NECESSARY TO ENABLE SUCH PERSON TO EXERCISE
ITS DUE DILIGENCE RESPONSIBILITIES AND TO CONDUCT A REASONABLE INVESTIGATION
WITHIN THE MEANING OF THE SECURITIES ACT, AND CAUSE AKSYS' AND ANY SUBSIDIARIES'
OFFICERS, DIRECTORS, EMPLOYEES AND INDEPENDENT PUBLIC ACCOUNTANTS TO SUPPLY ALL
INFORMATION REASONABLY REQUESTED BY ANY SUCH INSPECTOR IN CONNECTION WITH SUCH
SHELF REGISTRATION.
EACH STOCKHOLDER AND PERMITTED TRANSFEREE, IF ANY,
ACKNOWLEDGES THAT, IF IN POSSESSION OF MATERIAL NON-PUBLIC INFORMATION WITH
RESPECT TO AKSYS, IT MAY BE RESTRICTED FROM PURCHASING OR SELLING SECURITIES OF
AKSYS.
EACH STOCKHOLDER AND PERMITTED TRANSFEREE, IF ANY, AGREES THAT IT WILL,
UPON LEARNING THAT DISCLOSURE OF CONFIDENTIAL RECORDS IS SOUGHT FROM IT IN A
COURT OF COMPETENT JURISDICTION, USE REASONABLE BEST EFFORTS TO GIVE NOTICE TO
AKSYS IN ORDER TO ALLOW AKSYS, AT ITS EXPENSE, TO UNDERTAKE APPROPRIATE ACTION
TO PREVENT DISCLOSURE OF SUCH CONFIDENTIAL RECORDS;
5
(G)
OBTAIN AN OPINION FROM AKSYS' COUNSEL AND A "COLD COMFORT" LETTER
FROM AKSYS' INDEPENDENT PUBLIC ACCOUNTANTS WHO HAVE CERTIFIED AKSYS' FINANCIAL
STATEMENTS INCLUDED OR INCORPORATED BY REFERENCE IN SUCH SHELF REGISTRATION, IN
EACH CASE DATED THE EFFECTIVE DATE OF SUCH SHELF REGISTRATION (AND IF SUCH
REGISTRATION INVOLVES AN UNDERWRITTEN OFFERING, DATED THE DATE OF THE CLOSING
UNDER THE UNDERWRITING AGREEMENT), TOGETHER WITH ANY UPDATES THERETO, IN
CUSTOMARY FORM AND COVERING SUCH MATTERS AS ARE CUSTOMARILY COVERED BY SUCH
OPINIONS AND "COLD COMFORT" LETTERS DELIVERED TO UNDERWRITERS IN UNDERWRITTEN
PUBLIC OFFERINGS, WHICH OPINION AND LETTER SHALL BE REASONABLY SATISFACTORY TO
THE MASTER FUND, ARTAL AND