As filed with the Securities and Exchange Commission on August 20, 2003
Registration No. 333-107929
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
To
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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XOMA Ltd.
(Exact name of registrant as specified in its charter)
Bermuda 52-2154066
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2910 Seventh Street
Berkeley, California 94710
(510) 204-7200
(Address, including ZIP code, and telephone number, including
area code, of registrant's principal executive offices)
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CHRISTOPHER J. MARGOLIN, ESQ.
XOMA Ltd.
2910 Seventh Street
Berkeley, California 94710
(510) 204-7292
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
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Copy to:
GEOFFREY E. LIEBMANN, ESQ.
CAHILL GORDON & REINDEL
80 Pine Street
New York, New York 10005
(212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit
Number Page
----- ----
1.1 Form of equity underwriting agreement (1)
3.1 Memorandum of Continuance of XOMA Ltd. (Exhibit 3.4) (2)
3.2 Bye-Laws of XOMA Ltd. (as amended) (Exhibit 3.2) (2)
4.1 Shareholder Rights Agreement dated as of February 26, 2003 by and between
XOMA Ltd. and Mellon Investor Services LLC as Rights Agent (Exhibit 4.1)
(2)
4.2 Form of Resolution Regarding Preferences and Rights of Series A Preference
Shares (Exhibit 4.2) (2)
4.3 Form of Resolution Regarding Preferences and Rights of Series B Preference
Shares (Exhibit 4.3) (3)
4.4 Form of Common Stock Purchase Warrant (Incyte Warrants) (Exhibit 2) (4)
4.5 Form of Common Share Purchase Warrant (January and March 1999 Warrants)
(Exhibit 5) (5)
4.6 Form of Common Share Purchase Warrant (July 1999 Warrants) (Exhibit 4) (6)
4.7 Form of Common Share Purchase Warrant (2000 Warrants) (Exhibit 4) (7)
5.1 Opinion of Conyers Dill & Pearman
23.1 Consent of Ernst & Young LLP, Independent Auditors*
23.3 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
24.1 Power of Attorney*
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* Previously filed.
(1) To be filed by amendment or as an exhibit to a report pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act.
II-1
(2) Incorporated by reference to the referenced exhibit to XOMA's Annual Report
on Form 10-K for the fiscal year ended December 31, 2002 (File No.
0-14710).
(3) Incorporated by reference to the referenced exhibit to XOMA's Registration
Statement on Form S-4 filed November 27, 1998, as amended (File No.
333-68045).
(4) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated July 9, 1998 filed July 16, 1998 (File No.
0-14710).
(5) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated January 28, 1999 filed January 29, 1999, as
amended (File No. 0-14710).
(6) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated July 23, 1999 filed July 26, 1999 (File No.
0-14710).
(7) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated February 11, 2000 filed February 14, 2000 (File
No. 0-14710).
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Berkeley, State of California, on August 20, 2003.
XOMA LTD.
By: /s/ John L. Castello
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Name: John L. Castello
Title: Chairman of the Board,
President and Chief
Executive Officer
II-3
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Chairman of the Board, President and Chief August 20, 2003
/s/ John L. Castello Executive Officer (Principal Executive
---------------------- Officer)
John L. Castello
* Chief Scientific and Medical Officer and August 20, 2003
---------------------- Director
Patrick J. Scannon
* Vice President, Finance and Chief Financial August 20, 2003
---------------------- Officer (Principal Financial and Accounting
Peter B. Davis Officer)
* Director August 20, 2003
----------------------
James G. Andress
* Director August 20, 2003
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William K. Bowes, Jr.
* Director August 20, 2003
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Arthur Kornberg
* Director August 20, 2003
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Steven C. Mendell
*
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W. Denman Van Ness Director August 20, 2003
*
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Patrick J. Zenner Director August 20, 2003
* By: /s/ Christopher J. Margolin
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Christopher J. Margolin,
Attorney-in-Fact
II-4
EXHIBIT INDEX
Exhibit
Number Page
------ ----
1.1 Form of equity underwriting agreement (1)
3.1 Memorandum of Continuance of XOMA Ltd. (Exhibit 3.4) (2)
3.2 Bye-Laws of XOMA Ltd. (as amended) (Exhibit 3.2) (2)
4.1 Shareholder Rights Agreement dated as of February 26, 2003 by and between
XOMA Ltd. and Mellon Investor Services LLC as Rights Agent (Exhibit 4.1)
(2)
4.2 Form of Resolution Regarding Preferences and Rights of Series A Preference
Shares (Exhibit 4.2) (2)
4.3 Form of Resolution Regarding Preferences and Rights of Series B Preference
Shares (Exhibit 4.3) (3)
4.4 Form of Common Stock Purchase Warrant (Incyte Warrants) (Exhibit 2) (4)
4.5 Form of Common Share Purchase Warrant (January and March 1999 Warrants)
(Exhibit 5) (5)
4.6 Form of Common Share Purchase Warrant (July 1999 Warrants) (Exhibit 4) (6)
4.7 Form of Common Share Purchase Warrant (2000 Warrants) (Exhibit 4) (7)
5.1 Opinion of Conyers Dill & Pearman
23.1 Consent of Ernst & Young LLP, Independent Auditors*
23.3 Consent of Conyers Dill & Pearman (included in Exhibit 5.1)
24.1 Power of Attorney*
--------------------
* Previously filed.
(1) To be filed by amendment or as an exhibit to a report pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act.
(2) Incorporated by reference to the referenced exhibit to XOMA's Annual Report
on Form 10-K for the fiscal year ended December 31, 2002 (File No.
0-14710).
(3) Incorporated by reference to the referenced exhibit to XOMA's Registration
Statement on Form S-4 filed November 27, 1998, as amended (File No.
333-68045).
(4) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated July 9, 1998 filed July 16, 1998 (File No.
0-14710).
(5) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated January 28, 1999 filed January 29, 1999, as
amended (File No. 0-14710).
(6) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated July 23, 1999 filed July 26, 1999 (File No.
0-14710).
(7) Incorporated by reference to the referenced exhibit to XOMA's Current
Report on Form 8-K dated February 11, 2000 filed February 14, 2000 (File
No. 0-14710).
EXHIBIT 5.1
20 August 2003
XOMA Ltd.
2910 Seventh Street
Berkeley
California 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-3 (Registration No. 333-107929) filed
with the U.S. Securities and Exchange Commission (the "Commission") on 13 August
2003 (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 shelf registration
under the U.S. Securities Act of 1933, as amended, (the "Securities Act") of
common shares, par value US$0.0005 per share ("Common Shares").
For the purposes of giving this opinion, we have examined a copy of the
Registration Statement. We have also reviewed the memorandum of continuance and
the bye-laws of the Company, each certified by the Secretary of the Company on
20 August 2003, copies of minutes of a meeting of the members of the Company
held on 31 January 2000 (the "Minutes") 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 other documents reviewed by us, (d) that the resolutions in the Minutes
remain in full force and effect and have not been, and will not be, rescinded or
amended, (e) that the Company will issue the Common Shares in furtherance of its
objects as set out in its memorandum of continuance, (f) that the memorandum of
continuance and bye-laws of the Company will not be amended in any manner that
would affect the opinions set forth herein, (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 Company
will have sufficient authorised capital to effect the issue of any Common Shares
at the time of issuance, (i) 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 the Common Shares given by the Bermuda
Monetary Authority on 8 February 2000 will not have been revoked or amended at
the time of issuance of any Common Shares, (j) that all necessary corporate
action will be taken to authorise and approve any issuance of Common Shares, the
terms of the offering thereof and related matters, and that the applicable
definitive purchase, underwriting or similar agreement, will be duly approved,
executed and delivered by or on behalf of the Company and all other parties
thereto, (k) that the issuance and sale of and payment for the Common Shares
will be in accordance with the applicable purchase, underwriting or similar
agreement duly approved by the board of directors of the Company and the
Registration Statement (including the prospectus set forth therein and any
applicable supplement thereto), (l) that the Company will receive consideration
for the full issue price for the Common Shares, which shall be equal to at least
the par value thereof, (m) that the Company will comply, to the extent
applicable, with the requirements of Part III of the Companies Act 1981 entitled
"Prospectuses and Public Offers". (n) the capacity, power and authority of all
parties other than the Company to enter into and perform its obligations under
any and all documents entered into by such parties in connection with the
issuance of the Common Shares, and the due execution and delivery thereof by
each party thereto, (o) that none of the parties to such documents will have
carried on or will carry on activities, other than the performance of its
obligations under such documents, which would constitute the carrying on of
investment business in or from within Bermuda and that none of the parties to
such documents, other than the Company, will perform its obligations under such
documents in or from within Bermuda.
The obligations of the Company in connection with any Common Shares and any
agreement or document relating thereto (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 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 purpose set out above 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) The Company is duly incorporated and existing under the laws of Bermuda.
(2) Upon the due issuance of Common Shares and payment of the consideration
therefor, such Common Shares will be validly issued, fully paid and
non-assessable (which term means when used herein 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 to the references to our firm under the headings
"Risk Factors" and "Legal Opinion" in the Registration Statement. In giving such
consent, we do not hereby admit 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