EXHIBIT 5.1
BLAKE DAWSON WALDRON
Level 32
LAWYERS Exchange Plaza
2 The Esplanade
Perth WA 6000
www.bdw.com
Tel + 61 8 9366 8000
Fax + 61 8 9366 8111
DX 169 Perth
PO Box 7438
Cloisters Square
Perth WA 6850
Australia
PARTNER
Roger Davies
Telephone (08) 9366 8022
CONTACT
Alan Gibson
pSivida Limited Telephone (08) 9366 8722
Level 12, BGC Centre
28 The Esplanade
PERTH WA 6000 OUR REFERENCE
DRD:AJG:09 1395 3581
28 June 2006
Dear Sirs
REGISTRATION STATEMENT OF FORM F-3 (PRIVATE PLACEMENT)
We have acted as Australian legal advisers to pSivida Limited (COMPANY) in
connection with the Company's registration statement on Form F-3 (REGISTRATION
STATEMENT), originally filed on March 28, 2006 with the Securities and Exchange
Commission under the U.S. Securities Act of 1933 as amended (SECURITIES ACT).
The Registration Statement relates to the sale by the selling shareholders
listed in it of up to 7,315,000 ordinary shares of the Company represented by
731,500 American Depositary Shares issued under a private placement of American
Depositary Shares and warrants (ISSUE). We are furnishing this opinion as
exhibit 5.1 to the Registration Statement, subject to the final paragraph of
this opinion.
1. DEFINITIONS
In this opinion:
(a) ACN means Australian Company Number.
(b) ASIC means the Australian Securities and Investments
Commission.
(c) ASX means Australian Stock Exchange Limited ACN 008 624 691.
(d) COMPANY means pSivida Limited, registered in Western
Australia, ACN 009 232 026.
(e) CORPORATIONS ACT means the Corporations Act 2001 (Cth).
(f) RELEVANT JURISDICTION means the State of Western Australia,
Australia.
PERTH
SYDNEY
MELBOURNE
BRISBANE
CANBERRA
LONDON
PORT MORESBY
JAKARTA
SHANGHAI
BLAKE DAWSON WALDRON 28 June 2006
pSivida Limited Page 2
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(g) RELEVANT LAWS means the laws of the Relevant Jurisdiction and
the federal laws of Australia as they apply in the Relevant
Jurisdiction.
(h) SELLING SHAREHOLDERS has the same meaning as in the
Registration Statement.
(i) SUB-COMMITTEE means the sub-committee of the Company's board
in relation to the merger with CDS, established by the board
of directors of the Company at their meeting held on 13 July
2005.
In this opinion, headings are for convenience only and do not affect
interpretation and references to paragraphs are to paragraphs of this
opinion.
2. DOCUMENTS REVIEWED
For the purposes of giving this opinion, we have examined the
following documents:
(a) a search of the ASIC database in respect of the Company on 28
June 2006 which shows that the Company is registered;
(b) the current constitution of the Company;
(c) minutes of the meetings of the board of directors of the
Company held on 13 July 2005;
(d) minutes of the meeting of the Sub-Committee held on 19 August
2005; and
(e) the Registration Statement.
3. SCOPE
This opinion relates only to the Relevant Laws in force at 9.00 am
(Western Australian time) on the date of this opinion.
This opinion is given on the basis that it will be construed in
accordance with the Relevant Laws.
4. OPINION
Subject to the assumptions and qualifications set out below, we are of
the following opinion:
(a) the Company has been duly incorporated and is registered as a
public company limited by shares under the Corporations Act;
(b) the ordinary shares underlying the American Depository Shares
to be sold by the Selling Shareholders are legally issued and
allotted and fully paid.
BLAKE DAWSON WALDRON 28 June 2006
pSivida Limited Page 3
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5. ASSUMPTIONS
For the purposes of this opinion, we have assumed that:
(a) if we have reviewed a draft of a document rather than a signed
or executed copy, the document will be executed in the form of
that draft; and
(b) the minutes referred to in paragraphs 2(c) and 2(d) accurately
reflect the business transacted at those meetings;
(c) no party has contravened or will contravene Chapter 2E
(Related party transactions) of the Corporations Act or ASX
Listing Rule 10 (Transactions with persons in a position of
influence) in connection with the Issue;
(d) no party has contravened or will contravene section 260A
(Financial assistance for acquiring shares) of the
Corporations Act in connection with the Issue;
(e) the Company was solvent at the time of and immediately after
the Issue and is solvent at the date of this opinion;
(f) the meetings of the Company's board of directors and the
Sub-Committee to approve the issue of the shares and warrants
(and in the case of the board, the appointment of the
Sub-Committee) were properly convened and:
(i) the resolutions set out in the minutes referred to in
paragraphs 2(c) and 2(d) above were properly passed as
valid decisions of the board of directors of the Company
and the Sub-Committee (as the case may be) and have not
been subsequently revoked, cancelled or varied; and
(ii) the directors of the Company have properly performed
their duties and all provisions relating to the
declaration of interest and voting were duly observed;
(g) where any obligation in connection with the Issue is to be
performed in any jurisdiction other than the Relevant
Jurisdiction, its performance will not be illegal or
unenforceable under the laws of that jurisdiction;
We have not investigated whether the assumptions in this paragraph 5
are correct.
None of the assumptions is limited by reference to any other
assumption.
6. QUALIFICATIONS
Our opinion is subject to the following qualifications.
BLAKE DAWSON WALDRON 28 June 2006
pSivida Limited Page 4
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6.1 SEARCHES
We have not made any independent investigations or searches, other than
requests to ASIC for the company search referred to in paragraph 2(a)
(the information disclosed in the search results rely on information
lodged by the Company, and the search results may not be complete,
accurate or up to date).
6.2 GENERAL QUALIFICATIONS
(a) We have relied, as to certain matters of fact, on information
provided by officers of the Company.
(b) This opinion only relates to the laws of the Relevant
Jurisdiction. We express no opinion on laws other than the
Relevant Laws.
None of the qualifications is limited by reference to any other
qualification.
7. CONSENT
We hereby consent to the use of this opinion in, and the filing hereof,
as an exhibit to the Registration Statement and to the reference to our
firm under the heading "Legal Matters" and elsewhere in the prospectus
included in the Registration Statement. In giving such consent, we do
not thereby admit that we come within the category of persons whose
consent is required under Section 7 of the U.S. Securities Act of 1933,
as amended, or the Rules and Regulations of the Commission thereunder.
Yours faithfully
/s/ Blake Dawson Waldron