Exhibit 5.1
[LETTERHEAD OF
CONYERS DILL & PEARMAN]
4 June
2008
XOMA Ltd.
2910 Seventh Street
Berkeley,
CA 94710
U.S.A.
Dear
Sirs
XOMA
Ltd. (the “Company”)
We have
acted as special legal counsel in Bermuda to the Company in connection with a
registration statement on form S-8 filed with the United States Securities and
Exchange Commission (the “Commission”) on 4 June 2008 (the “Registration
Statement”, which term does not include any other document or agreement whether
or not specifically referred to therein or attached as an exhibit or schedule
thereto) relating to the registration under the United States Securities Act of
1933, as amended, (the “Securities Act”) of 16,600,000 common shares, par value
US$0.0005 per share of the Company (the “Common Shares”), issuable pursuant to
the Company’s 1981 Share Option Plan (as amended and restated through 31 October
2007), Restricted Share Plan (as amended and restated through 21 May 2006), a
Non-Qualified Share Option Agreement, with a grant date of 3 August 2007,
between the Company and Steven B. Engle (the “2007 CEO Share Option Plan”) and
1992 Directors Share Option Plan (as amended and restated through 19 May 2004)
(collectively, the “Plans”, which term does not include any other document or
agreement whether or not specifically referred to therein or attached as an
exhibit or schedule thereto).
For the
purposes of giving this opinion, we have examined copies of the Registration
Statement and the Plans. We have also reviewed the memorandum of
continuance and the bye-laws of the Company, each certified by the Secretary of
the Company on 4 June 2008, copies of minutes of meetings of the members of the
Company held on 31 January 2000, 30 May 2001, 21 May 2003, 19 May 2004, 19 May
2005 and 23 May 2006 and resolutions passed at meetings of the board of
directors of the Company held on 24 February 1999, 26 February 2003, 31 July
2003, 25 February 2004, 8 December 2004, 28 February 2006, 2 August 2007, 31
August 2007 and 20 February 2008, each certified by the Secretary of the Company
on 4 June 2008 (together, the “Minutes”) and such other documents and made such
enquires 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) of all
documents 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 and/or filed 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 accuracy and completeness of all factual representations made in the
Registration Statement, the Plans and other documents reviewed by us, (d) that
the resolutions contained in the Minutes were passed at
one or more duly convened, constituted
and quorate meetings, or by unanimous written resolutions, remain in full force and effect and
have not been rescinded or amended, (e) that the Minutes contain all resolutions
amending or affecting the Plans, (f) that the amendments to the Plans outlined
in the notice dated 9 April 2008 of the Company’s annual general meeting on 13
May 2008 were all approved by the Company’s shareholders, (g) 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, (h) that the Plans
are governed by the laws of the State of California and are valid and binding
under such laws in accordance with their respective terms; (i) that there is no
provision of any award agreement or option agreement which would have any
implication in relation to the opinions expressed herein; (j) that, upon the
issue of any Common Shares, the Company will receive consideration (other than
in the form of a promissory note) for the full issue price thereof, which shall
be equal to at least the par value thereof, (k) that on the date of issuance of
any of the Common Shares the Company will have sufficient authorised but
unissued common shares, (l) that on the date of issuance of any award or option
under any of the Plans and on the date of exercise of any such option, the
Company will be able to pay its liabilities as they become due, (m) that the
Company’s shares will be listed on an appointed stock exchange, as defined in
the Companies Act 1981, and the consent to the issue and free transfer of Common
Shares given by the Bermuda Monetary Authority dated 8 February 2000 will not
have been revoked or amended at the time of issuance of any Common
Shares.
“Non-assessability”
is not a legal concept under Bermuda law, but when we describe the Common Shares
herein as being “non-assessable” we mean, subject to any contrary provision in
any agreement between the Company and any one of its members holding any of the
Common Shares (but only with respect to such member), that no further sums are
payable with respect to the issue of such shares and no member shall be bound by
an alteration in the Company’s memorandum of continuance or bye-laws after the
date upon which it became a member if and so far as the alteration requires such
member to take or subscribe for additional Common Shares or in any way increases
its liability to contribute to the share capital of, or otherwise pay money to,
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 the purposes of the filing of the Registration
Statement and the issuance of the Common Shares by the Company pursuant to the
Plans and is not to be relied upon in respect of any other matter.
On the
basis of, and subject to, the foregoing, we are of the opinion that, when issued
and paid for in accordance with the terms of the Plans, the Common Shares will
be validly issued, fully paid and non-assessable.
We
consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving such consent, we do not hereby admit that we are
experts within the meaning of Section 11 of the Securities Act or that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission promulgated
thereunder.
Yours
faithfully,
CONYERS
DILL & PEARMAN
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