EX-5.1 3 a11-4795_1ex5d1.htm EX-5.1

Exhibit 5.1

 

Homburger AG

Weinbergstrasse 56 | 58

CH-8006 Zürich

Postfach 194 | CH-8042 Zürich

Telefon +41 43 222 10 00

Fax +41 43 222 15 00

lawyers@homburger.ch

 

 

To:

ABB Ltd

Affolternstrasse 44

P.O.Box 8131

8050 Zurich

 

January 31, 2011

 

ABB Ltd — Registration Statement on Form S-8 | Merger Agreement

 

Ladies and Gentlemen:

 

We have acted as special Swiss counsel to ABB Ltd, a company limited by shares incorporated under the laws of Switzerland (the Company), in connection with the Registration Statement on Form S-8 (the Registration Statement) to be filed with the United States Securities and Exchange Commission (the SEC) on the date hereof under the Securities Act of 1933, as amended (the Act), with respect to the registration of up to 1,173,023 registered shares of CHF 1.03 par value each of the Company that may be delivered pursuant to the plans covered by the Registration Statement (the Plans) assumed by the Company under the agreement and plan of merger by and among ABB Ltd, Brock Acquisition Corporation and Baldor Electric Company dated as of November 29, 2010 (the Merger Agreement). As such counsel, we have been requested to give our opinion as to certain legal matters under Swiss law.

 

Capitalized terms used herein shall have the meaning attributed to them in the Documents unless otherwise defined herein.

 

I.          Basis of Opinion

 

This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. In the absence of explicit statutory law, we base our

 


 

opinion solely on our independent professional judgment. This opinion is also confined to the matters stated herein and is not to be read as extending, by implication or otherwise, to any document referred to in the Documents (other than listed below) or any other matter.

 

For purposes of this opinion we have not conducted any due diligence or similar investigation as to factual circumstances, which are or may be referred to in the documents below, and we express no opinion as to the accuracy of representations and warranties of facts set out in such documents or the factual background assumed therein.

 

For the purpose of giving this opinion, we have only examined originals or copies of the following documents (collectively the Documents):

 

(i)        A copy of the Registration Statement, dated January 31, 2011;

 

(ii)       a copy of the Articles of Association (Statuten) of the Company in their version of December 20, 2010 (the Articles); and

 

(iii)      an electronic copy of an excerpt from the Commercial Register of the Canton of Zurich, Switzerland, for the Company, dated January 31, 2011 (the Excerpt).

 

No documents have been reviewed by us in connection with this opinion other than those listed above. Accordingly, we shall limit our opinion to the Documents and their legal implications under Swiss law.

 

In this opinion, Swiss legal concepts are expressed in English terms and not in their original language. These concepts may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions.

 

II.         Assumptions

 

In rendering the opinion below, we have assumed the following:

 

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(a)       all copies, fax copies or electronic versions of the documents produced to us conform to the respective original documents and the originals of such documents were executed in the manner and by the individuals appearing on the respective copies;

 

(b)       all signatures appearing on all original documents or copies thereof which we have examined are genuine;

 

(c)       the assumption of the Plans by the Company under the Merger Agreement is effective;

 

(d)       the filing of the Registration Statement with the SEC has been authorized by all necessary actions under all applicable laws;

 

(e)       the Registration Statement has been filed with the SEC; we have not investigated or verified the truth or accuracy of the information contained in the Registration Statement, nor have we been responsible for ensuring that no material information has been omitted from it;

 

(f)        if and when registered shares of the Company are to be delivered pursuant to the Plans, the Company will hold a sufficient number of shares in treasury and/or have the required authority under Swiss law and the Articles to issue new registered shares to the holders of the rights pursuant to the Plans;

 

(g)       any new registered shares issued by the Company (or any American Depository Shares representing such registered shares) will be listed on the New York Stock Exchange as required under applicable laws and regulations;

 

(h)       all authorizations, approvals, consents, licenses, exemptions and other requirements for the filing of the Registration Statement or for any other activities carried on in view of, or in connection with, the performance of the obligations expressed to be undertaken by the Company in the Registration Statement have been duly obtained and are and will remain in full force and effect, and any related conditions to which the parties thereto are subject have been satisfied; and

 

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(i)        the Excerpt and the Articles of Association are correct, complete and up-to-date.

 

III.       Opinion

 

Based on the foregoing and subject to the qualifications set out below, we are of the opinion that as of the date hereof:

 

1.         The Company is a corporation (Aktiengesellschaft) duly incorporated and validly existing under the laws of Switzerland.

 

2.          The Company’s share capital registered in the Commercial Register of the Canton of Zurich amounts to CHF 2,378,045,525.92, divided into 2,308,782,064registered shares with a par value of CHF 1.03 each. Such registered shares, if and when delivered pursuant to the Plans, will have been validly issued, fully paid and are non-assessable.

 

3.          Any new registered shares of the Company, if and when all  applicable requirements and limitations under Swiss law, the Articles and the Plans as regards the issuance authorization, the creation, the payment of the issuance price, the registration in the competent commercial register, the exercise of rights, and the issuance of any such registered shares have been complied with, will, if and when issued by the Company and delivered pursuant to the Plans, have been validly issued, fully paid and non-assessable.

 

IV.       Qualifications

 

The above opinions are subject to the following qualifications:

 

(a)        The lawyers of our firm are members of the Zurich bar and do not hold themselves out to be experts in any laws other than the laws of Switzerland. Accordingly, we are opining herein as to Swiss law only and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction.

 

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(b)        The exercise of voting rights and rights related thereto with respect to any registered shares of the Company is only permissible after registration in the Company’s share register as a shareholder with voting rights in accordance with the provisions of, and subject to the limitations provided in, the Articles.

 

(c)        We note that, under Swiss law, new registered shares issued out of the conditional share capital of the Company cannot be paid-in by way of a contribution in kind.

 

(d)        We further note that the current authorized share capital of the Company (i) does not authorize the board of directors of the Company to withdraw the preemptive rights of shareholders for purposes of issuing new shares in connection with equity compensation plans, such as the Plans, and (ii) will expire on May 5, 2011.

 

(e)        Any issuance of new registered shares out of the conditional share capital of the Company (i) has not been allocated to the Plans yet by the board of directors of the Company, (ii) must be confirmed by the auditor of the Company, and (iii) amended Articles of Association of the Company reflecting the issuance of such registered shares from the conditional share capital, together with said confirmation by the Company’s auditor, must be filed with the competent commercial register no later than three months after the end of the Company’s fiscal year.

 

(f)         Any resolution of a general meeting of shareholders of the Company authorizing the issuance of new registered shares may be challenged by a shareholder in court within two months after the relevant general meeting of shareholders.

 

(g)        The Company may at any time in the future, subject to the approval of the general meeting of shareholders and compliance with all other requirements under Swiss law and the Articles, cancel any of its own registered shares and/or reduce the par value of any of such registered shares through repayment of a value equal to the reduction in par value.

 

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(h)        We express no opinion as to any commercial, accounting, tax, calculating, auditing or other non-legal matter.

 

*   *   *

 

We have issued this opinion as of the date hereof and we assume no obligation to advise you of any changes that are made or brought to our attention hereafter.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.

 

This opinion is furnished by us, as special Swiss counsel to the Company, in connection with the filing of the Registration Statement, and except as provided in the immediately preceding paragraph, it may not (in full or in part) be used, copied, circulated or relied upon by any party or for any purpose without our written consent.

 

This opinion is governed by and shall be construed in accordance with the laws of Switzerland.

 

Sincerely yours,

HOMBURGER AG

 

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