<PAGE>
As filed with the Securities and Exchange Commission on May 31, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AKSYS, LTD.
(Exact name of registrant as specified in its charter)
Delaware 36-3890205
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1113 S. Milwaukee Ave, Suite 300 60048
Libertyville, Illinois 60048 (Zip Code)
(Address of Principal Executive Offices)
AKSYS, LTD.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
LAWRENCE H. N. KINET
Chairman and Chief Executive Officer
Aksys, Ltd.
1113 S. Milwaukee Ave, Suite 300
Libertyville, Illinois 60048
(Name and address of agent for service)
(847) 247-6050
(Telephone number, including area code, of agent for service)
Copy to:
Mark Tresnowski
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed maximum Amount of
Title of securities to Amount to be aggregate offering price registration fee
be registered registered (1) (1)
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<S> <C> <C> <C>
Common Stock, par 200,000
value $0.01 per share shares $3,550,000.00 $1,224.14
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</TABLE>
(1) The aggregate offering price and the amount of the registration fee have
been computed in accordance with Rule 457(h) based on the average of the
high and low prices of the shares reported in the consolidated reporting
system on May 31, 1996.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"). Such documents need not be filed with the Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by Aksys, Ltd. (the "Corporation") with
the Securities and Exchange Commission (the "Commission") are incorporated
herein by reference:
(a) The Prospectus of the Corporation, dated May 16, 1996, filed with the
Commission on May 17, 1996 pursuant to Rule 424(b) of the Securities Act
relating to the public offering of 3,565,000 shares of the Common Stock of the
Corporation, par value $0.01 per share (the "Common Stock"); and
(b) Description of Common Stock contained in the Registration Statement of
the Corporation on Form 8-A filed with the Commission April 24, 1996.
All reports and other documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware,
as amended, permits indemnification of directors, officers, employees and agents
of corporations under certain conditions and subject to certain limitations. The
Restated Certificate of Incorporation, as amended, and the Amended and Restated
Bylaws of the Corporation provide for the indemnification of directors,
officers, employees and agents of the Corporation to the fullest extent
permitted by Section 145.
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<PAGE>
The Corporation has obtained insurance policies under which its
directors and officers are insured, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of certain actions, suits or proceedings and certain liabilities which
might be imposed as a result of certain actions, suits or proceedings, to which
they are parties by reason of being or having been such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
(a) The Corporation hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Corporation
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
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<PAGE>
(b) The Corporation hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Corporation's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the foregoing provisions, or otherwise, the Corporation
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Corporation of expenses incurred or
paid by a director, officer or controlling person of the Corporation in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Corporation will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Libertyville, State of Illinois, on May 31, 1996.
AKSYS, LTD.
By: /s/ Lawrence H.N. Kinet
-------------------------------------
Lawrence H.N. Kinet
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities indicated on May 31, 1996.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
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<S> <C>
/s/ LAWRENCE H.N. KINET Chairman, Chief Executive Officer and Director
- -------------------------------
Lawrence H.N. Kinet
/s/ RODNEY S. KENLEY President, Chief Operating Officer and Director
- -------------------------------
Rodney S. Kenley
/s/ DENNIS N. CAVENDER Vice President, Chief Financial Officer
- -------------------------------
Dennis N. Cavender
* Director
- -------------------------------
Peter H. McNerney
* Director
- -------------------------------
Larry G. Gerdes
* Director
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W. Dekle Rountree, Jr.
/s/ BERNARD R. TRESNOWSKI Director
- -------------------------------
Bernard R. Tresnowski
*By: /s/ LAWRENCE H.N. KINET
--------------------------
Lawrence H.N. Kinet
Attorney-in-fact
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description of Document Numbered Page
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<C> <S> <C>
4.1 Restated Certificate of Incorporation of the
Corporation, incorporated by reference to the
Corporation's Registration Statement on Form S-1
(Registration No. 333-2492) (the "Registration
Statement"), Exhibit 3.1
4.2 Amended and Restated Bylaws of the Corporation,
incorporated by reference to the Registration
Statement, Exhibit 3.2
4.3 Employee Stock Purchase Plan
5 Opinion of Kirkland & Ellis
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Kirkland & Ellis (included in Exhibit 5)
99 Power of Attorney (included in Part II of the
Registration Statement)
</TABLE>
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<PAGE>
EXHIBIT 4.3
AKSYS, LTD.
EMPLOYEE STOCK PURCHASE PLAN
SECTION I
PURPOSE
1.1 Purpose. The purpose of the Aksys, Ltd. Employee Stock Purchase Plan
(the "Plan") is to enable and encourage employees of the Company to
acquire an ownership interest in the Company through the purchase of
Common Stock of the Company, thereby permitting such employees to share
in the growth in value of the Company. The Company believes that it is in
its best interests for employees to have greater proprietary interests in
the Company, since the Company believes such interests strengthen the
incentives to increase stock value and promote greater interest in the
success of the Company. The Plan is intended to qualify as an "employee
stock purchase plan" under Section 423 of the Internal Revenue Code.
1.2 Effectiveness of the Plan. The Plan will be effective upon the
consummation of the Initial Public Offering. The Plan will remain in
effect until such time as it is terminated by the Board of the Company in
accordance with the terms of Section IX hereof.
SECTION II
DEFINITIONS
Unless the context indicates otherwise, the following terms have the
meanings set forth below.
2.1 "Board" means the Board of Directors of the Company.
2.2 "Cash Account" shall have the meaning set forth in Section 5.5.
2.3 "Code" means the Internal Revenue Code of 1986, as amended.
2.4 "Committee" means the Compensation Committee of the Board.
2.5 "Common Stock" means the shares of Common Stock, $0.01 par value per
share, of the Company, or any other class of capital shares which the
Company may authorize and issue
<PAGE>
from time to time, and as may be made subject to this Plan in the sole
discretion of the Board.
2.6 "Company" means collectively Aksys, Ltd., any successor entity in a
merger or consolidation and any subsidiary corporation, as defined in
Section 424(f) of the Code, which elects to participate in the Plan with
the approval of the Board.
2.7 "Compensation" means a Participant's total cash compensation, including
base pay, overtime pay, commissions and cash bonuses paid during the Plan
Period through the Company's payroll system.
2.8 "Discount to Market" means a percentage discount to the Fair Market Value
of the Plan Shares for purposes of calculating the Purchase Price
pursuant to Section 5.4 hereof which the Committee may authorize in its
sole discretion from time to time. The Discount To Market shall not
exceed 15% and shall be 15% unless and until subsequently reduced by the
Committee.
2.9 "Fair Market Value" as of a certain date shall equal the average of the
high and low trading prices of the Common Stock on the principal
securities exchange on which shares of Common Stock are then listed (or,
if such date is not a trading day on such exchange, the last trading day
immediately preceding such date), unless otherwise determined by the
Committee in its sole discretion. In making such other fair market value
determination, the Committee may use any of the reasonable valuation
methods defined in Treasury Regulation Section 1.421-7(e)(2).
2.10 "Initial Public Offering" means initial public offering of the shares of
Common Stock of the Company registered under the Securities Act of 1933,
as amended.
2.11 "Participant" means an employee of the Company who elects to participate
in the Plan in accordance with the provisions of the Plan. All
Participants shall have the same rights and privileges except as
otherwise permitted by Section 423 of the Code and the Plan.
2.12 "Plan Period" shall have the meaning set forth in Section 5.1.
2.13 "Plan Shares" shall have the meaning set forth in Section 4.1.
2.14 "Purchase Date" shall have the meaning set forth in Section 5.4.
2.15 "Purchase Price" shall have the meaning set forth in Section 5.4.
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<PAGE>
SECTION III
ADMINISTRATION OF THE PLAN
3.1 Authority of the Committee. The Plan shall be administered by the
Committee. The Committee is authorized by the Board to administer and
control the operation of the Plan and shall have the power, among other
things, to: (a) subject to Section 5.2 and Section VII hereof, determine
eligibility for participation in the Plan, (b) subject to Section V
hereof, prescribe the terms and conditions under which Plan Shares may be
purchased under the Plan, (c) interpret the Plan and adopt, amend and
rescind rules and regulations for the administration and application of
the Plan and (d) to make all other determinations and to take all other
actions necessary or advisable for the implementation and administration
of the Plan. The Committee, in its sole discretion and on such terms and
conditions as it may provide, may delegate its duties in order to
facilitate the purchase and transfer of Plan Shares and to provide for
the day-to-day administration of the Plan. The Committee shall control
the general administration of the Plan with all powers necessary to
enable it to carry out such duties.
3.2 Decisions Binding. All determinations and decisions made by the
Committee shall be final, conclusive and binding on all persons and shall
be given the maximum deference permitted by law.
SECTION IV
SHARES ISSUABLE UNDER THE PLAN
4.1 Shares Subject to Plan. The Company shall reserve 200,000 shares of
Common Stock (the "Plan Shares") for issuance to and purchase by
Participants, subject to adjustment pursuant to Section 4.2 hereof. Plan
Shares may be Common Stock now or hereafter authorized but unissued,
Common Stock already authorized, issued and owned or purchased by the
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<PAGE>
Company or any combination thereof. If and to the extent that any right
to purchase Plan Shares shall not be exercised by any Participant for any
reason or if such right to purchase shall terminate as provided herein,
Plan Shares that have been allocated to such Participant under the Plan
shall again become available for allocation to Participants as provided
herein.
4.2 Change in Capitalization. In the event of a change in the capitalization
of the Company due to a share split, share dividend, recapitalization,
merger, consolidation, combination or similar event, the aggregate number
of Plan Shares and the terms of any existing offering shall be adjusted
by the Committee to reflect such change.
SECTION V
PARTICIPATION AND PLAN OPERATION
5.1 Plan Period. The Plan shall operate on a calendar year basis, with each
Plan Period beginning on January 1 of each year and ending on December 31
of such year; provided that the first Plan Period shall begin on May 22,
1996 and shall end on December 31, 1996.
5.2 Eligible Employees. Subject to Section VII and other than employees whose
customary employment is for not more than 5 months in any calendar year
or whose customary employment is 20 hours or less per week, each employee
of the Company shall be eligible to participate in the Plan.
5.3 Enrollment in the Plan.
(a) An employee may elect to participate in a Plan Period by filing with
the office or offices designated by the Committee an enrollment form
authorizing payroll deductions.
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<PAGE>
(b) Each Participant shall designate on the enrollment form the
percentage of Compensation which he or she elects to have withheld
for the purchase of Plan Shares, which percentage shall be either
2%, 5%, 10%, 15% or 20%.
(c) Payroll deductions shall commence on the first payday on or
following the first day of the applicable Plan Period or as soon
thereafter as is practicable and shall continue to the end of such
Plan Period, subject to contribution changes permitted under the
Plan.
(d) In addition to changes made before initial enrollment for a Plan
Period, a Participant may make the following changes during a Plan
Period in his or her Plan participation in accordance with rules and
procedures prescribed by the Committee from time to time, provided
that changes shall be limited to one change during each Plan Period:
(i) re-enroll in the Plan if not currently enrolled;
(ii) increase the rate of Plan contributions; and
(iii) decrease the rate of Plan contributions.
(e) A Participant may cease Plan contributions at any time during a Plan
Period in accordance with rules and procedures prescribed by the
Committee from time to time.
(f) A Participant may increase or decrease the rate of payroll deduction
for any subsequent Plan Period by filing, at the appropriate office,
a new authorization for payroll deductions not less than ten
business days prior to the first day for such subsequent Plan
Period.
(g) A Participant shall automatically participate in each successive
Plan Period until the time of such Participant's withdrawal from the
Plan. A Participant shall not be
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<PAGE>
required to file any additional enrollment forms for any such
successive Plan Period in order to continue participation in the
Plan.
(h) By enrolling in the Plan, a Participant shall be deemed to elect to
purchase the maximum number of Plan Shares (including the right to
fractional shares) that can be purchased with the amount in such
Participant's Cash Account as of the Purchase Date; provided,
however, that in addition to the limitations on Common Stock
ownership and other limitations set forth herein, the maximum number
of Plan Shares which may be purchased by a Participant during the
Plan Period shall equal a number of shares determined by (a)
dividing 20% of the total cash compensation estimated to be earned
by a Participant (through the Company's payroll system) in such Plan
Period by (b) the Fair Market Value of the Common Stock less the
Discount To Market as of the first day of such Plan Period;
provided, further, that the Committee may in its discretion adjust
such formula or otherwise set a maximum number of Plan Shares that
may be purchased by Participants.
5.4 Purchase Price. Unless otherwise specified by the Committee with respect
to a certain Plan Period, the purchase price for each Plan Share to be
purchased under the Plan in respect of each Plan Period (the "Purchase
Price") shall be the lesser of (i) the Fair Market Value of the Common
Stock less the Discount To Market as of the first day of such Plan Period
and (ii) the Fair Market Value of the Common Stock less the Discount To
Market as of the last day of such Plan Period (the "Purchase Date").
5.5 Purchase of Plan Shares and Plan Account Administration.
(a) The Company will maintain a cash account ("Cash Account") and a
share account ("Share Account") in the name of and for the benefit
of each Participant for bookkeeping purposes only. On each payday
the amount deducted from each Participant's Compensation will be
credited to such Participant's Cash Account.
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<PAGE>
(b) As of the Purchase Date with respect to each Plan Period, the number
of Plan Shares purchased by a Participant during a Plan Period will
be determined by converting a Participant's Cash Account balance at
each Purchase Date into Plan Shares, based upon the Purchase Price
for the Plan Period, subject to the annual limitation set by the
Committee on the number of Plan Shares that may be purchased by any
Participant, the limitations set forth in Section VII hereof and the
limitation on the aggregate number of shares of Common Stock subject
to the Plan set forth in Section 4.1 hereof. In the event purchases
by Participants at a particular Purchase Date would exceed the
aggregate amount of Plan Shares, pro rata allocations will be made
among Participants based on the outstanding amount in each
Participant's Cash Account.
(c) As soon as practicable after the Purchase Date, the Committee will
allocate full Plan Shares and fractional Plan Shares to the Share
Accounts of Participants. Cash Accounts will be charged with the
cost to Participants of the respective Plan Shares so allocated. If
a Participant's Cash Account has a positive balance at the end of
the Plan Period after being reduced by the total purchase price for
the Plan Shares issued to such Participant (which could occur as a
result of the purchase limitations contained in this Plan), such
Participant shall receive the balance in cash.
(d) Cash dividends attributable to Plan Shares allocated to a
Participant's Share Account as of the record date for which such
cash dividend is declared will be credited to a Participant's Cash
Account as of the dividend payment date and applied to Plan Share
purchases and allocations on the next Purchase Date. Share dividends
or share splits attributable to Plan Shares allocated to a
Participant's Share Account as of the record date for which such
dividend or split is declared will be credited to a Participant's
Share Account as of the effective date of such split. All other
distributions attributable to Plan Shares allocated to a
Participant's Share Account will be distributed to such Participant
pro rata in a manner to be determined by the
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<PAGE>
Committee, consistent with the terms hereof (provided that such
manner treats all holders of Plan Shares equally with respect to
such distribution).
(e) The Plan Shares (including fractional shares) purchased on behalf of
a Participant shall initially be registered in the name of a nominee
selected by or on behalf of the Company (the "Nominee"). All rights
accruing to an owner of record of such Plan Shares, including,
without limitation, the rights set forth in Section 5.5(d) above,
shall belong to the Participant for whose account such Plan Shares
are held; provided, that no person shall have any right to sell,
assign, mortgage, pledge, hypothecate or otherwise encumber any of
the Plan Shares while such shares are allocated to a Participant's
Share Account.
(f) Notwithstanding the foregoing, a Participant may elect, as of the
first day of any calendar quarter, to have some or all of the non-
fractional Plan Shares held in the Share Account of such Participant
(and registered in the name of the Nominee) registered in the name
of such Participant or a nominee of such Participant by giving
written notification of such election to the Company or the Nominee,
specifying the number of full shares to be registered in the name of
such Participant or a nominee of such Participant. In addition, a
Participant may request once during any Plan Period (other than in
connection with the above described calendar quarter election) to
have some or all of the non-fractional Plan Shares held in the Share
Account of such Participant (and registered in the name of the
Nominee) registered in the name of such Participant or a nominee of
such Participant by giving written notification of such election to
the Company or the Nominee, specifying the number of full shares to
be registered in the name of such Participant or a nominee of such
Participant. In each such case, the number of full shares of Common
Stock held by the Nominee on behalf of such Participant and so
specified in the Participant's notice shall be transferred to and
registered in the name of such Participant or a nominee of such
Participant as soon as administratively practicable. Cash shall be
paid to a
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<PAGE>
Participant in lieu of issuing a fractional share if all shares in a
Participant's Share Account are elected to be registered in the name
of the Participant or a nominee of the Participant.
(g) Upon termination of employment for any reason, the Plan Shares held
by the Nominee on behalf of such Participant shall be transferred to
and registered in the name of such Participant or a nominee of such
Participant as soon as administratively practicable. Any fractional
shares remaining shall be paid in cash.
5.6 Impact of Cessation of Contributions. In the event that a Participant
elects to cease elected contributions during a Plan Period (and while an
employee of the Company) all remaining contributions credited to the
Participant's Cash Account during the Plan Period and not yet used to
purchase Plan Shares will be applied toward the purchase of shares at the
next Purchase Date. However, a Participant may elect to receive payment
of the Cash Account balance in cash, without interest payment, by
delivering written notice of such election to the Company. Such cash
payment will be made as soon as administratively practical following this
election.
5.7 Termination of Employment. In the event of termination of employment for
any reason, (i) the Plan Shares contained in a Participant's Share
Account will automatically be distributed to the Participant (or the
estate, beneficiary or legal representative of the Participant) and (ii)
the cash in such Participant's Cash Account will be distributed to the
Participant (or the estate, beneficiary or legal representative of the
Participant) with no interest payment as soon as administratively
possible.
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<PAGE>
SECTION VI
RIGHTS NOT TRANSFERABLE
The rights and interests of any Participant in the Plan shall not be
transferable other than by will or the applicable laws of descent and
distribution. Any right to purchase Plan Shares shall be exercisable only
during the lifetime of such Participant, and then only by such Participant.
SECTION VII
LIMITATIONS ON SHARE OWNERSHIP
7.1 Voting Power or Value Limitation. Notwithstanding any provision herein to
the contrary, no Participant shall have a right to purchase Plan Shares
if such Participant would, immediately after electing to purchase such
shares, own Common Stock possessing 5% or more of the total combined
voting power or value of all classes of capital shares of the Company or
of any of its Subsidiaries, as defined by Section 424(f) of the Code. For
purposes of this Section, ownership of Common Stock shall be determined
by the attribution rules of Section 424(d) of the Code and Participants
shall be considered to own any Common Stock which they have a right to
purchase under the Plan or under any outstanding options.
7.2 Calendar Year Purchase Limitation. No Participant may purchase in excess
of $25,000 of Fair Market Value of Plan Shares (determined at the time or
times such rights are granted) for each calendar year for which such
rights are outstanding at any time.
SECTION VIII
MISCELLANEOUS PROVISIONS
8.1 Continued Employment. Nothing in the Plan shall be construed to give any
Participant the right to be retained in the employ of the Company or a
Subsidiary or to affect the right of the
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<PAGE>
Company or any Subsidiary or a Participant to terminate such employment
at any time with or without cause.
8.2 Rights as Stockholder. A Participant shall have no rights, including
voting rights, as a stockholder with respect to any Plan Shares which he
or she may have a right to purchase under the Plan until the date such
shares are registered in the name of such Participant or a nominee of
such Participant or in the name of the Nominee on behalf of such
Participant.
8.3 Rights to Purchase Shares. Each right to purchase Plan Shares under the
Plan shall be subject to the requirement that if at any time the
Committee shall determine that the listing, registration or qualification
of such right to purchase or the Plan Shares subject thereto upon any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable
as a condition of, or in connection with, such right to purchase or the
issue of Plan Shares pursuant thereto, then, anything in the Plan to the
contrary notwithstanding, no such right to purchase may be exercised in
whole or in part, and no Plan Shares shall be issued, unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free from any conditions not reasonably acceptable
to the Committee. The Committee is authorized upon the advice of counsel
to make such amendments to the Plan as may be necessary or desirable to
facilitate obtaining an effective registration statement with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, covering Plan Shares issued pursuant hereto.
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<PAGE>
SECTION IX
AMENDMENT OR TERMINATION OF THE PLAN
9.1 Amendment. The Board may, at any time and from time to time, amend,
modify or suspend the Plan, but no such amendment, modification or
suspension without the approval of the shareholders shall:
(a) increase the maximum number (determined as provided in the Plan) of
Plan Shares, other than as provided in Section 4.2 hereof;
(b) permit the issuance of any Plan Shares at a Purchase Price less than
that provided in the Plan as approved by the shareholders; or
(c) cause the Plan to fail to meet the requirements of an "employee
stock purchase plan" under Section 423 of the Code.
9.2 Termination. This Plan shall terminate upon the adoption of a resolution
of the Board terminating the Plan. No termination of the Plan shall
materially alter or impair the right of any Participant to receive the
amounts in his or her Cash Account and Share Account without his or her
consent. In the event of a termination of the Plan, (i) the Plan Shares
contained in a Participant's Share Account will automatically be
distributed to the Participant and (ii) the cash in such Participant's
Cash Account will automatically be distributed to the Participant with no
interest payment. All other distributions to Participants or actions
necessitated by such termination shall be allocated among all
Participants, pro rata according to the amounts in their Cash Accounts
and Share Accounts, in a manner to be determined by the Committee,
consistent with the terms hereof, provided such manner treats all
Participants equally with respect to such distribution.
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Exhiit 5
[KIRKLAND & ELLIS LETTERHEAD]
To Call Writer Direct:
312 861-2000
May 31, 1996
Aksys, Ltd.
1113 S. Milwaukee Avenue, Suite 300
Libertyville, Illinois 60048
Re: Aksys, Ltd. Registration Statement on Form S-8
Employee Stock Purchase Plan
Ladies and Gentlemen:
We are acting as special counsel to Aksys, Ltd., a Delaware corporation
(the "Company"), in connection with the proposed registration by the Company of
200,000 shares (the "Shares") of its Common Stock, par value $0.01 per share
(the "Common Stock"), pursuant to a Registration Statement on Form S-8, filed
with the Securities and Exchange Commission (the "Commission") on May 31, 1996
under the Securities Act of 1933, as amended (the "Act") (such Registration
Statement, as amended or supplemented, is hereinafter referred to as the
"Registration Statement"). The Shares are to be issued and sold by the Company
to employees of the Company pursuant to the Aksys, Ltd. Employee Stock Purchase
Plan (the "Stock Purchase Plan").
In that connection, we have examined such corporate proceedings, documents,
records and matters of law as we have deemed necessary to enable us to render
this opinion.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of
all documents submitted to us as copies. We have also assumed the legal capacity
of all natural persons, the genuineness of the signatures of persons signing all
documents in connection with which this opinion is rendered, the authority of
such persons signing on behalf of the parties thereto other than the Company and
the due authorization, execution and delivery of all documents by the parties
thereto other than the Company. As to any facts material to the opinions
expressed herein, we have relied upon the statements and representations of
officers and other representations of the Company and others.
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Aksys, Ltd.
May 31, 1996
Page 2
Our opinion expressed below is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies and (iv) any laws except the internal laws of the State of
Illinois, the General Corporation Law of the State of Delaware and the federal
law of the United States of America.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we hereby advise you
that in our opinion the Shares are duly authorized and, when (i) the
Registration Statement becomes effective under the Act and (ii) the Shares have
been duly executed and delivered on behalf of the Company and issued in
accordance with the terms of the Stock Purchase Plan upon receipt of the
consideration to be paid therefor, the Shares will be validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance and sale of the Shares.
<PAGE>
Aksys, Ltd.
May 31, 1996
Page 3
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the States of Illinois or Delaware or the federal law of the United
States be changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
/s/ KIRKLAND & ELLIS
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Aksys, Ltd.:
We consent to incorporation by reference in the registration statement on
Form S-8 of Aksys, Ltd. of our report dated February 15, 1996, except for note
10 which is as of April 23, 1996, relating to the balance sheets of Aksys, Ltd.
as of December 31, 1995, and 1994, and the related statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1995, and for the period from January 18, 1991
(inception) through December 31, 1995, which report appears in the Prospectus of
Aksys, Ltd., dated May 16, 1996.
/s/ KPMG Peat Marwick LLP
Chicago, Illinois
May 31, 1996
