[Letterhead
of Conyers Dill & Pearman]
19 May
2008
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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441-299-4933
david.cooke@conyersdillandpearman.com
DWPC/mra/31393/249569corpdocs.
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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 a
registration statement on form S-3 filed with the U.S. Securities and Exchange
Commission (the “Commission”) on 26 December 2007 (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 each
(“Common Shares”), preference shares, par value US$0.05 each (“Preference
Shares” and, together with Common Shares, “Equity Securities”, which term
includes any Common Shares or Preference Shares to be issued pursuant to the
conversion, exchange or exercise of any other Securities), senior debt
securities (“Senior Debt Securities”), subordinated debt securities
(“Subordinated Debt Securities” and, together with Senior Debt Securities, “Debt
Securities”) and warrants (“Warrants”) of the Company (collectively, the
“Securities”).
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 (together, the “Constitutional Documents”), each certified by the
Secretary of the Company on 19 May 2008, a copy of minutes of a meeting of the
members of the Company held on 19 May 2005 and an extract certified by the
Secretary of the Company on 19 May 2008 from minutes of a meeting of the board
of directors of the Company (the “Board”) held on 12 December 2007 (together,
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 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, and will not be, rescinded or amended,
(e) that the Company will issue the Securities in furtherance of its objects as
set out in its memorandum of continuance, (f) that the Constitutional Documents
will not be amended in any manner that would affect the opinions expressed
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 of the Equity Securities at the time of issuance,
whether as a principal issue or on the conversion, exchange or exercise of any
Securities, (i) that the Company's shares will be listed on an appointed stock
exchange, as defined in the Companies Act 1981, as amended (the “Companies
Act”), and the consent to the issue and free transfer of the Securities 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 Securities, (j) that the form and
terms of any and all Securities (including, without limitation, the designation,
powers, preferences, rights, qualifications, limitations and restrictions of
Preference Shares) or other securities (or other obligations, rights,
currencies, commodities or other subject matter) comprising the same or subject
thereto (in the case of the Warrants), the issuance and sale thereof by the
Company, and the Company’s incurrence and performance of its obligations
thereunder or in respect thereof (including, without limitation, its obligations
under any related agreement, indenture or supplement thereto) in accordance with
the terms thereof will not violate the Constitutional Documents nor any
applicable law, regulation, order or decree in Bermuda, (k) that all necessary
corporate action will be taken to authorise and approve any issuance of
Securities (including, if Preference Shares are to be issued, all necessary
corporate action to establish one or more series of Preference Shares and fix
the designation, powers, preferences, rights, qualifications, limitations and
restrictions thereof), the terms of the offering thereof and related matters,
and that the applicable definitive purchase, underwriting or similar agreement
and, if Debt Securities are to be issued, the applicable indenture and any
applicable supplements thereto, will be duly approved, executed and delivered by
or on behalf of the Company and all other parties thereto, (l) that the
applicable purchase, underwriting or similar agreement, any Debt Security, any
indenture and any supplement thereto and any other agreement or other document
relating to any Security will be valid and binding in accordance with its terms
pursuant to its governing law; (m) that the issuance and sale of and payment for
the Securities will be in accordance with the applicable purchase, underwriting
or similar agreement duly approved by the Board, the Registration Statement
(including the prospectus set forth therein and any applicable supplement
thereto) and, if Debt Securities are to be issued, the applicable indenture and
any applicable supplements thereto, (n) that, upon the issue of any Equity
Securities, the Company will receive consideration for the full issue price
thereof which shall be equal to at least the par value thereof, (o)
that the Company will comply, to the extent applicable, with the requirements of
Part III of the Companies Act entitled “Prospectuses and Public Offers”; (p) the
capacity, power and authority of all parties other than the Company to enter
into and perform their obligations under any and all documents entered into by
such parties in connection with the issuance of the Securities, and the due
execution and delivery thereof by each party thereto, (q) that none of the
parties to such documents carries on business from premises in Bermuda, at which
it employs staff and pays salaries and other expenses.
The
obligations of the Company in connection with any Security and any indenture or
other 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, (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, and (e) may not
be given effect by a Bermuda court to the extent that they are to be performed
in a jurisdiction outside Bermuda and such performance would be illegal under
the laws of that jurisdiction. 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.
“Non-assessability”
is not a legal concept under Bermuda law, but when we describe the Common Shares
and/or Preference 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 and Preference 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 Preference 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 Securities 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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Upon
the due issuance of Common Shares and/or Preference Shares and payment of
the consideration therefor, such Common Shares and/or Preference Shares
will be validly issued, fully paid and
non-assessable.
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3.
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Upon
the due issuance of: (a) Senior Debt Securities of any series; (b)
Subordinated Debt Securities of any series; and/or (c) Warrants, and
payment of the consideration therefor, such Securities will be validly
issued.
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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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