HOMBURGER
Exhibit 5.3
To:
UBS AG
Bahnhofstrasse 45
CH-8098 Zurich
Switzerland
March 24, 2006
309713 | ZOD | 000018
UBS AG - Registration Statement for Debt Securities and Warrants
Ladies and Gentlemen:
We have acted as Swiss Counsel to UBS AG, a corporation organized under
the laws of Switzerland (the Company) in connection with the registration
under the Securities Act of 1933 (the Act) of an unspecified aggregate
initial offering price or number of debt securities, warrants and trust
preferred securities (collectively with the subordinated guarantees
referred to below, the Securities) on Form F-3 (the Registration
Statement). In connection with the registration of the trust preferred
securities the Company has also registered subordinated guarantees of the
Company with respect to the corresponding company preferred securities to
be issued by UBS Preferred Funding Company LLC V, UBS Preferred Funding
Company LLC VI, UBS Preferred Funding Company LLC VII and UBS Preferred
Funding Company LLC VIII and UBS Preferred Funding Company IX, the terms
of which are established by the UBS AG Subordinated Guarantee Agreements
(the Subordinated Guarantee Agreements).
Capitalized terms used herein shall have the meaning attributed to them in
the Registration Statement unless otherwise defined herein.
UBS AG - Registration Statement for Debt Securities and Warrants 2|7
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 as currently applied by the Swiss
courts. In the absence of explicit statutory law or established case law,
we base our opinion solely on our independent professional judgement. This
opinion is also confined to the matters stated herein and is not to be
read as extending, by implication or otherwise, to any agreement or
document referred to in the Registration Statement (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) copy of the Registration Statement dated as of March 27, 2006;
(ii) copies of the form of the Subordinated Guarantee Agreements,
attached to the Registration Statement;
(iii) a copy of the articles of incorporation (Statuten) of the Company,
dated as of February 13, 2006;
(iv) a certified excerpt from the Register of Commerce for the Company
dated as of March 22, 2006; (the Excerpt);
(v) a copy of the resolution of the Group Executive Board of the
Company, dated as of March 8, 2006;
(vi) a copy of the resolution of the Group Treasurer of the Company,
dated as of February 24, 2006 (together with the resolution of the
Group Executive Board, the Resolutions);
UBS AG - Registration Statement for Debt Securities and Warrants 3|7
(vii) the organizational regulations (Organisationsreglement) of the
Company dated February 9, 2006 including the annexes "Authority" and
"Corporate Centre Delegation of Authority" (the Internal
Regulations).
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 above Documents and their legal implications on the Form F-3 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
For the purpose of this opinion, we have assumed the following:
(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) all factual information contained in, or material statements (except
as to Swiss law) given in connection with, the Documents is true and
accurate;
(d) the Registration Statement will be valid, binding and enforceable
under New York law, and the choice of New York law provided in the
Registration Document is valid under New York law;
(e) as far as any obligation under or in connection with the
Registration Statement is required to be performed in any
jurisdiction outside of Switzerland, its performance will not be
illegal or unenforceable by virtue of the laws of such jurisdiction;
UBS AG - Registration Statement for Debt Securities and Warrants 4|7
(f) except as expressly opined upon herein, all representations and
warranties made by the Company in the Registration Statement are
true and accurate;
(g) the Excerpt, the Articles and Internal Regulations are correct,
complete and up-to-date; and
(h) the Resolutions (i) have been duly resolved in meetings duly
convened and otherwise in the manner set forth therein, and (ii)
have not been rescinded or amended and are in full force and effect.
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. All corporate action by the Company related to the Securities,
including the authorization of the issuance of the Securities and of
the execution of any documents in connection therewith, was duly
authorized in conformity with the Company's Articles of Association
and Internal Regulations as a matter of Swiss law.
2. When (i) the Registration Statement has become effective under the
Act, (ii) the terms of the debt securities and of their issuance and
sale have been duly established in conformity with the indenture
relating to the debt securities so as not to violate Swiss law, and
(iii) the debt securities have been duly executed and authenticated
in accordance with such indenture and issued and sold as
contemplated in the Registration Statement and assuming the validity
of the debt securities under the New York law, the debt securities
will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity under Swiss law.
UBS AG - Registration Statement for Debt Securities and Warrants 5|7
3. When (i) the Registration Statement has become effective under the
Act, (ii) the terms of the warrants and of their issuance and sale
have been duly established in conformity with such indenture so as
not to violate Swiss law, and (iii) the warrants have been duly
executed and authenticated in accordance with such indenture and
issued and sold as contemplated in the Registration Statement and
assuming the validity of the warrants under the New York law, the
warrants will constitute valid and legally binding obligations of
the Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity under Swiss law.
4. With respect to the warrants to be issued under a warrant agreement
as described in the prospectus forming a part of the Registration
Statement, when (i) the Registration Statement has become effective
under the Act, (ii) the warrant agreement under which such warrants
are to be issued has been duly authorized, executed and delivered in
such form as will not violate Swiss law, (iii) the terms of such
warrants and of their issuance and sale have been duly established
in conformity with such warrant agreement so as not to violate Swiss
law, and (iv) such warrants have been duly executed and
authenticated in accordance with such warrant agreement and issued
and sold as contemplated in the Registration Statement and assuming
the validity of the warrants under New York law, such warrants will
constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganisation, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general principles
of equity under Swiss law.
5. The Subordinated Guarantee Agreements have been duly authorized by
the Company.
IV. Qualifications
The above opinions are subject to the following qualifications:
UBS AG - Registration Statement for Debt Securities and Warrants 6|7
(a) We are members of the Zurich bar and do not hold ourselves 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.
(b) Claims may become barred under statutes of limitation or
prescription, or may be or become subject to available defences such
as set-off, counterclaim, misrepresentation, material error,
frustration, overreacting, duress or fraud. Further, limitations may
apply with respect to any indemnification and contribution
undertakings by the Swiss Obligors if a court considers any act of
the indemnified person as wilful or negligent, and an obligation to
pay an amount may be unenforceable if the amount is held to
constitute an excessive penalty (such as exemplary or punitive
damages).
(c) The Registration Statement, the Subordinated Guarantee Agreements
and some other Exhibits to the Registration Statement provide for
the obligation of the Company to pay additional amounts to the
extent withholding tax is imposed on any payments under such
agreements and securities. Such obligations may - if the payments
were classified by the Swiss federal tax administration as made by
an entity resident or situated in Switzerland for Swiss taxation
purposes - violate Article 14 of the Swiss Federal Withholding Tax
Act of October 13, 1965 which stipulates that (i) Swiss withholding
tax (Verrechnungssteuer) to be withheld from any payment must be
charged to the recipient of the payment, and (ii) contradictory
agreements are null and void as to this issue.
(d) We express no opinion as to the accuracy or completeness of the
information set out in the Registration Statement or of the
representations and warranties set out in the Registration
Statement.
(e) Further, we express no opinion as to banking or insurance regulatory
matters or as to any commercial, accounting,
UBS AG - Registration Statement for Debt Securities and Warrants 7|7
calculating, auditing or other non-legal matter. Also, we express no
opinion as to tax matters.
* * *
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 and to the references to us under the heading
"Validity of the Securities" in each Prospectus contained in 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 counsel to the Company, in connection
with the filing of the registration of the Securities, and, except as
provided in the immediately preceding paragraph, is not to be used,
circulated, quoted or otherwise referred to for any other purpose without
our express written permission, or relied upon by any other person.
This opinion is governed by and shall be construed in accordance with the
laws of Switzerland.
Sincerely yours,
HOMBURGER
/s/ Dr. Daniel Daeniker
Dr. Daniel Daeniker