EXHIBIT 5.1
Opinion of Conyers Dill & Pearman
17 December, 1999
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 2,768,865 common shares par value US$.0005
per share (the "Common Shares"), of the Company, issued pursuant to Section 3 of
the several subscription agreements, each dated as of January 28, 1999
(collectively, the "Subscription Agreements"), between the Company and the
buyers named therein.
For the purposes of giving this opinion, we have examined the following
documents:
(i) a copy of the form of the Subscription Agreements as executed:
(b) by and between the Company and Advantage Fund II Ltd.;
(c) by and between the Company and Koch Investment Group Limited;
(ii) a copy of the Registration Statement (excluding the exhibits thereto and
documents incorporated therein by reference).
The documents listed in item (i) 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 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 29 January 1999,
minutes of a meeting of its directors held on 26 January 1999 (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.
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 is able to pay its liabilities as they fall
due and the realisable value of the Company's assets is 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 under the laws of the State of
New York (the "Foreign Laws") of the Documents 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 Common Shares have been duly authorised in accordance with the
Company's memorandum of continuance and bye-laws.
2. When issued and paid for as contemplated by the Subscription Agreements,
the Common 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).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to our firm under the section "Legal
Opinion" in the Registration Statement.
Yours faithfully
CONYERS DILL & PEARMAN
/s/ Conyers Dill & Pearman