EXHIBIT
5.1
2
February 2010
XOMA
Ltd.
Clarendon
House
2
Church Street
Hamilton
HM 11
Bermuda
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DIRECT
LINE: E-MAIL: OUR REF: YOUR REF:
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(441)
278-7871
paul.nystrom@conyersdillandpearman.com
PN/cml/386632/316975corpdocs.
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Dear
Sirs
XOMA
Ltd. (the “Company”)
We have
acted as special legal counsel in Bermuda to the Company in connection with the
sale of up to 60,900,000 common shares (the “Common Shares”) pursuant to the
sale of 42,000,000 units (each unit consisting of one common share of the
Company, par value US$0.0005 per share and one warrant to purchase 0.45 of a
common share of the Company) pursuant to a registration statement on form S-3
filed with the U.S. Securities and Exchange Commission (the “Commission”) on 26
December 2007 (as amended by Amendment No. 1 thereto filed with the Commission
on 20 May 2008) (such registration statement as so amended herein after referred
to as the “Shelf 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 shelf registration
under the U.S. Securities Act of 1933, as amended, (the “Securities Act”) of
common shares, preference shares, senior debt securities, subordinated debt
securities and warrants of the Company and a supplemental prospectus forming
part of the Shelf Registration Statement dated and filed with the Commission on
2 February 2010 (the “Prospectus Supplement”, together with the Shelf
Registration Statement, the “Registration Statement”).
For the
purposes of giving this opinion, we have examined a PDF copy of the Registration
Statement.
We have
also reviewed the memorandum of continuance and the bye-laws of the Company
(together, the “Constitutional Documents”), each certified by the Secretary of
the Company on 2 February 2010, certified resolutions passed at meetings of the
Company’s directors held on 12 December 2007, 14 May 2009 and 9 December 2009
and certified resolutions passed at meetings of the Company’s shareholders held
on 19 May 2005 and 21 May 2009, (together, the “Resolutions”) 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 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
and the other documents reviewed by us; (d) that the resolutions contained in
the Resolutions were passed at duly convened, consti-
tuted and
quorate meetings and remain in full force and effect and have not been rescinded
or amended; (e) that the Constitutional Documents will not be amended in any
manner that would affect the opinions expressed herein, (f) 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; (g) the Company
will have sufficient authorised but unissued capital to effect the issue of any
of the Common Shares at the time of issuance; (h) that at all material times the
Company's shares will be listed on an appointed stock exchange, as defined in
the Companies Act 1981, as amended, and the consent to the issue and free
transfer of the Common Shares given by the Bermuda Monetary Authority as of 8
February 2000 will not have been revoked or amended at the time of issuance of
any Common Shares; (i) that, upon issue of the Common Shares, the Company will
receive consideration for the full issue price thereof which shall be equal to
at least the par value thereof; (j) that the Company will comply, to the extent
applicable, with the requirements of Part III of the Companies Act entitled
“Prospectus and Public Offers”; (k) the capacity, power and authority of each of
the parties, other than the Company, to enter into and perform its respective
obligations under any and all documents entered into by such parties in
connection with the issuance of the Common Shares; and (l) that none of the
parties to any and all documents entered into by such parties in connection with
the issuance of the Common Shares, carries on business from premises in Bermuda,
at which it employs staff and pays salaries and other expenses.
“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 Constitutional Documents 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 as described in
the Registration Statement 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:
1.
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The
Company has been duly continued to Bermuda and is existing under the laws
of Bermuda in good standing (meaning solely that it has not failed to make
any filing with any Bermuda governmental authority, or to pay any Bermuda
government fee or tax, which would make it liable to be struck off the
Register of Companies and thereby cease to exist under the laws of
Bermuda).
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2.
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When
issued and paid for as contemplated by the Registration Statement, the
Common Shares will be validly issued, fully paid and non-assessable and
will constitute valid and binding obligations of the Company in accordance
with the terms thereof.
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We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement and to the references to our firm under the caption “Legal Matters” in
the prospectus forming a part of 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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