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Exhibit 5
[LOGO]
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
Facsimile: (312) 861-2200
August 28, 2000
Aksys, Ltd.
Two Marriott Drive
Lincolnshire, Illinois 60069
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
959,678 shares of its Common Stock, par value $.01 per share (the "Shares"),
pursuant to a Registration Statement on Form S-3. All of the Shares to be
registered pursuant to the Registration Statement are being offered by selling
stockholders.
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including (i) the corporate and organizational documents of the
Company, including the Restated Certificate of Incorporation of the Company, and
(ii) minutes and records of the corporate proceedings of the Company with
respect to the issuance and sale of the Shares.
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. We have not independently established or
verified any facts relevant to the opinion expressed herein, but have relied
upon statements and representations of officers and other representatives of the
Company and others.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that the Shares have been duly authorized, validly issued and are fully paid and
nonassessable.
Our opinion expressed above is subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency,
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Aksys, Ltd.
August 28, 2000
Page 2
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 General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission (the "Commission") as Exhibit 5 to the Registration
Statement. We also consent to the reference to our firm under the heading
"Legal Matters" in 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 Securities Act of 1933, as amended, 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.
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 General Corporation
Law of the State of Delaware 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 purposes.
Sincerely,
/s/ KIRKLAND & ELLIS
Kirkland & Ellis
