EXHIBIT 5.2
Transocean Ltd. Turmstrasse 30 CH-6312 Steinhausen
| Homburger AG Prime Tower Hardstrasse 201 CH–8005 Zurich
T +41 43 222 10 00 F +41 43 222 15 00 lawyers@homburger.ch |
February 6, 2018 OSD |
Transocean Ltd.
Ladies and Gentlemen
We have acted and are acting as special Swiss counsel to Transocean Ltd., a company limited by shares (Aktiengesellschaft) incorporated under the laws of Switzerland (the Company), in connection with the Registration Statement on Form S–3 (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 (i) registered shares of CHF 0.10 par value each of the Company (the Registered Shares), (ii) warrants (the Warrants) to purchase Registered Shares, Debt Securities (as defined below) or other securities to be sold by the Company or Transocean Inc., a Cayman Islands exempted company (Transocean Inc.), (iii) debt securities of Transocean Inc. (the Debt Securities), (iv) purchase contracts for the purchase or sale of Registered Shares, Debt Securities or securities of third parties, including any of the Company's affiliates, a basket of such securities, an index or indices of such securities or any combination thereof (the Purchase Contracts), (v) rights to purchase Registered Shares or Debt Securities (the Rights), (vi) units comprised of one or more of the other securities described in (i) to (v) (inclusive) in any combination (the Units) and (vii) guarantees by the Company of the Debt Securities (the Guarantee) from time to time pursuant to Rule 415 under the Act (the securities pursuant to (i) to (vii) collectively the Securities). 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 (as defined below) unless otherwise defined herein.
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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. Such laws and the interpretation thereof are subject to change. 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 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, and we express no opinion as to the accuracy of representations and warranties of facts set out in the 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) an electronic copy of the Registration Statement, including the prospectus contained therein;
(ii) an electronic copy of the Articles of Association (Statuten) of the Company in the form as deposited with the Commercial Register of the Canton of Zug, Switzerland, on January 30, 2018 (the Articles);
(iii) an electronic copy of the organizational regulations (Organisationsreglement) of the Company, dated as of November 18, 2016 (the Organizational Regulations);
(iv) an electronic copy of the register of uncertificated securities (Wertrechtebuch) of the Company as of January 30, 2018, dated as of January 30, 2018 (the Uncertificated Securities Register);
(v) an electronic copy of the minutes of meetings of the Board of Directors of the Company, dated as of May 12, 2017, August 11, 2017 and November 16/17, 2017, and an electronic copy of the resolutions adopted by the Company's transaction committee, dated as of June 23, 2017, regarding, among other things, the authorization of the Registration Statement and the actions to be taken in connection therewith (the Resolutions);
(vi) a copy of a certified excerpt of the journal entry (Tagebuchauszug) from the Commercial Register of the Canton of Zug, Switzerland, dated January 30, 2018, relating to the Company (the Excerpt); and
(vii) a certificate provided by the secretary of the Company's Board of Directors, dated as of February 1, 2018 relating to the Resolutions (the Certificate).
No documents have been reviewed by us in connection with this opinion other than the Documents. Accordingly, we shall limit our opinion to the Documents and their legal implications under Swiss law.
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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. With respect to Documents governed by laws other than the laws of Switzerland, for purposes of this opinion we have relied on the plain meaning of the words and expressions contained therein without regard to the import they may have under the relevant governing law.
II. Assumptions
In rendering the opinion below, we have assumed the following:
(a) all documents produced to us as originals are authentic and complete, and all documents produced to us as copies (including, without limitation, fax and electronic copies) conform to the original;
(b) all documents produced to us as originals and the originals of all documents produced to us as copies (including the Certificate) were duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such documents;
(c) the Registration Statement has been filed by the Company with the SEC;
(d) the Company is solvent at all relevant times;
(e) all authorizations, approvals, consents, licenses, exemptions and other requirements for the filing of 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;
(f) the exercise notice with respect to Registered Shares issued out of the Company's conditional share capital will be duly delivered in accordance with Swiss law and all other applicable requirements; and
(g) to the extent the Company issues Registered Shares out of the conditional share capital of the Company, the performance of the contribution in money shall be made at a banking institution subject to the Federal Law of November 8, 1934, Relating to Banks and Savings Banks, as amended, and in accordance with the applicable provisions of the Swiss Code of Obligations, or, in case of performance of the contributions by way of set-off, in accordance with the applicable provisions of the Swiss Code of Obligations.
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:
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1. The Company is a corporation (Aktiengesellschaft) duly incorporated and validly existing under the laws of Switzerland with all requisite corporate power and authority to enter into, to perform and to conduct its business as described in the Articles.
2. The Company’s share capital registered in the Commercial Register of the Canton of Zug amounts to CHF 46,173,149.40, divided into 461,731,494 Registered Shares with a par value of CHF 0.10 each. Such Registered Shares have been validly issued, fully paid and are non-assessable.
3. New Registered Shares, if and when (i) the nominal amount for such Registered Shares has been fully paid-in (liberiert), (ii) any such Registered Shares have been duly authorized by the Board of Directors of the Company and, if required, the general meeting of shareholders of the Company, (iii) any such Registered Shares have been registered in the competent commercial register in Switzerland, and (iv) all other requirements under Swiss law and the Articles in connection with the creation and issuance of any such Registered Shares have been complied with, will, if and when issued by the Company, be validly issued, fully paid and non-assessable.
4. Warrants, if and when (i) any such Warrants have been duly authorized by the Board of Directors of the Company and, if required, the general meeting of shareholders of the Company, and (ii) all other requirements under Swiss and any other law applicable to such Warrants and the Articles in connection with the creation and issuance of such Warrants have been complied with, will, if and when issued by the Company, be duly authorized and validly issued.
5. Purchase Contracts, if and when (i) any such Purchase Contracts have been duly authorized by the Board of Directors of the Company and, if required, the general meeting of shareholders of the Company and (ii) all other requirements under Swiss and any other law applicable to such Purchase Contracts and the Articles in connection with the creation and issuance of such Purchase Contracts have been complied with, will, if and when issued by the Company, be duly authorized and validly issued.
6. Rights, if and when (i) any such Rights have been duly authorized by the Board of Directors of the Company and, if required, the general meeting of shareholders of the Company and (ii) all other requirements under Swiss and any other law applicable to such Rights and the Articles in connection with the creation and issuance of such Rights have been complied with, will, if and when issued by the Company, be duly authorized and validly issued.
7. Units, if and when (i) any such Units have been duly authorized by the Board of Directors of the Company and, if required, the general meeting of shareholders of the Company and (ii) all other requirements under Swiss and any other law applicable to such Units and the Articles in connection with the creation and issuance of such Units have been complied with, will, if and when issued by the Company, be duly authorized and validly issued.
8. Guarantees by the Company, if and when (i) the issue and the amount of any such Guarantees by the Company have been duly authorized by the Board of Directors of the Company, or, to the extent lawfully delegated, by a committee thereof or by officers authorized by the Board of Directors or such committee, and (ii) all other requirements under Swiss and any other law
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applicable to such Guarantees and the Articles in connection with any such Guarantees have been complied with, will, if and when issued by the Company, be duly authorized and validly issued.
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.
(b) Any newly issued Registered Shares will have to be registered with the competent commercial register to be validly issued, except that in relation to Registered Shares issued out of the conditional share capital of the Company registration in the competent commercial register is not a pre-condition to the issuance of such Registered Shares.
(c) Any issuance of the Registered Shares out of the Company's conditional share capital must be confirmed by the auditor of the Company, and amended Articles of the Company reflecting the issuance of Registered Shares from the Company's 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.
(d) The exercise of voting rights and rights related thereto with respect to any Registered Shares 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.
(e) Any Registered Shares to be issued by the Company will not be fully fungible and will not rank pari passu with the existing and outstanding Registered Shares until such Registered Shares have been duly entered into the Company’s register of uncertificated securities (Wertrechtebuch) and all steps have been taken in order for such Registered Shares to constitute intermediated securities (Bucheffekten) in accordance with the Swiss Federal Act on Intermediated Securities.
(f) We express no opinion as to any commercial, accounting, finance, tax, calculating, auditing or other non-legal matter.
(g) 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.
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.
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We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm under the heading "Legal Matters" in the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder.
This opinion is governed by and shall be construed in accordance with the laws of Switzerland.
Sincerely yours,
/s/ HOMBURGER AG |
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HOMBURGER AG |
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