EXHIBIT 5.1
[Letterhead of Conyers Dill & Pearman]
14 February 2000
XOMA Ltd.
2910 Seventh Street
Berkeley, California 94710
USA
Dear Sirs
XOMA Ltd.
We have acted as special legal counsel in Bermuda to XOMA Ltd. (the "Company")
in connection with the. Registration Statement on Form S-3 (the "Registration
Statement") filed with the U.S. Securities and Exchange Commission (the
"Commission") relating to the registration under the U.S. Securities Act of
1933, as amended, of an aggregate of 6,395,000 common shares par value US$.0005
per share, including 6,145,000 common shares issued pursuant to a subscription
agreement dated as of 8 February 2000 (the "Subscription Agreement") between the
Company and the investors named in Schedule A thereto (the "Shares") and 250,000
common shares (the "Warrant Shares") to be issued upon exercise of the Warrants
(as defined below).
For the purposes of giving this opinion, we have examined the following
documents:
(i) a copy of the Subscription Agreement;
(ii) a copy of the Common Share Purchase Warrants dated 11 February, 2000 issued
by the Company to each of Arnhold and S. Bleichroeder, Inc. and Sutro & Co.
Incorporated (the "Warrants");
(iii) a copy of the Registration Statement (excluding the exhibits thereto and
documents incorporated by reference).
The documents listed in items (i) through (iii) above are herein sometimes
collectively referred to as the "Documents" (which term does not include any
other instrument or agreement whether or not specifically referred to therein or
attached as an exhibit or schedule thereto).
We have also reviewed the memorandum of continuance and the bye-laws of the
Company, each certified by the Secretary of the Company on 9 February 2000, a
copy of certain resolutions of the Board of Direction of the Company approved on
21 January 2000 and 8 February 2000 and certain resolutions of the members of
the Company approved on 31 January 2000, each certified by the Secretary of the
Company on 9 February 2000 as being a true copy thereof (the "Minutes"), the
Company's 1998 Annual Report on Form 10-K filed with the Commission and such
other documents and made such enquiries as to questions of law as we have deemed
necessary in order to render the opinion set forth below.
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We have assumed (a) the genuineness and authenticity of all signatures and the
conformity to the originals of all copies (whether or not certified) examined by
us and the authenticity and completeness of the originals from which such copies
were taken, (b) that where a document has been examined by us in draft form, it
will be or has been executed in the form of that draft, and where a number of
drafts of a document have been examined by us all changes thereto have been
marked or otherwise drawn to our attention, (c) the capacity, power and
authority of each of the parties to the Documents, other than the Company, to
enter into and perform its respective obligations under the Documents, (d) the
due execution and delivery of the Documents by each of the parties thereto,
except the Company, (e) the accuracy and completeness of all factual
representations made in the Documents and other documents reviewed by us, (f)
that the resolutions contained in the Minutes remain in full force and effect
and have not been rescinded or amended, (g) that there are reasonable grounds
for believing that prior to and immediately following the Company's entering
into of the Documents, the Company was able to pay its liabilities as they fall
due and the realisable value of the Company's assets were not less that the
aggregate of its liabilities, issued share capital and share premium accounts,
(h) that there is no provision of the law of any jurisdiction, other than
Bermuda, which would have any implication in relation to the opinions expressed
herein, and (i) the validity and binding effect of the Documents under the laws
expressed to govern the same (the "Foreign Laws") in accordance with their
respective terms.
The obligations of the Company under the Documents (a) will be subject to the
laws from time to time in effect relating to bankruptcy, insolvency,
liquidation, possessory liens, rights of set off, reorganisation, amalgamation,
moratorium or any other laws or legal procedures, whether of a similar nature or
otherwise, generally affecting the rights of creditors, (b) will be subject to
statutory limitation of the time within which proceedings may be brought, (c)
will be subject to general principles of equity and, as such, specific
performance and injunctive relief, being equitable remedies, may not be
available and (d) may not be given effect to by a Bermuda court if and to the
extent they constitute the payment of an amount which is in the nature of a
penalty and not in the nature of liquidated damages. Notwithstanding any
contractual submission to the jurisdiction of specific courts, a Bermuda court
has inherent discretion to stay or allow proceedings in the Bermuda courts.
We express no opinion as to the enforceability of any provision of the Documents
which provides for the payment of a specified rate of interest on the amount of
a judgment after the date of judgment or which purports to fetter the statutory
powers of the Company.
We have made no investigation of and express no opinion in relation to the laws
of any jurisdiction other than Bermuda. This opinion is to be governed by and
construed in accordance with the laws of Bermuda and is limited to and is given
on the basis of the current law and practice in Bermuda. This opinion is issued
solely for your benefit and is not to be relied upon by any other person, firm
or entity or in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
1. The Shares and the Warrant Shares have been duly authorised in accordance
with the Company's memorandum of continuance and bye-laws.
2. When issued and paid for in accordance with the terms of the Subscription
Agreement and the Warrants, as applicable, the Shares and the Warrant
Shares will be validly issued, fully paid and non-assessable (meaning that
no further sums are required to be paid by the holders thereof in
connection with the issue of such shares).
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We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the headings "Risk
Factors" and "Legal Opinions" in the Registration Statement.
Yours faithfully
CONYERS DILL & PEARMAN
/s/ CONYERS DILL & PEARMAN