787 SEVENTH AVENUE
NEW YORK, NY 10019
(212) 839 5300
(212) 839 5599 FAX
BRUSSELS
CHICAGO
DALLAS
FRANKFURT
HONG KONG
LONDON
LOS ANGELES
NEW YORK
SHANGHAI
SINGAPORE
TOKYO
WASHINGTON, DC
FOUNDED 1866
EXHIBITS (5) & (23)
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SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 (212) 839 5300 (212) 839 5599 FAX |
BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT |
GENEVA HONG KONG LONDON LOS ANGELES NEW YORK |
SAN FRANCISCO SHANGHAI SINGAPORE TOKYO WASHINGTON, DC | ||||
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FOUNDED 1866 |
July 5, 2007
Merrill Lynch & Co., Inc.
4 World Financial Center
New York, New York 10080
Ladies and Gentlemen:
As your counsel, we have examined a copy of the Restated Certificate of Incorporation, as amended, of Merrill Lynch & Co., Inc. (hereinafter called the “Company”), certified by the Secretary of State of the State of Delaware. We are familiar with the corporate proceedings held in connection with the proposed issuance and sale by the Company to the Underwriter named in the Terms Agreement referred to below, pursuant to an Underwriting Agreement dated March 31, 2006 (the “Underwriting Agreement”), between the Company and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (“MLPF&S”), as supplemented by the Terms Agreement dated June 28, 2007 (the “Terms Agreement”) between the Company and MLPF&S (the “Underwriter”), of the Company’s PROtected Covered Call EnhancED Income NoteSSM Linked to the Select 30 PROCEEDS Index, Series 5, due July 5, 2012 (the “Securities”) in an amount equal to $104,700,000 aggregate principal amount of the Securities. We have also examined a copy of the Indenture between the Company and The Bank of New York as successor Trustee, dated as of April 1, 1983, as amended (the “Indenture”), and the Company’s
Registration Statement on Form S-3 (File No. 333-122639) relating to the Securities (the “Registration Statement”).
Based upon the foregoing and upon such further investigation as we deemed relevant in the premises, we are of the opinion that:
1. The Company has been duly incorporated under the laws of the State of Delaware.
2. The Securities have been duly and validly authorized by the Company and when the Securities have been duly executed and authenticated in accordance with the terms of the Indenture and delivered against payment therefor as set forth in the Underwriting Agreement, as supplemented by the Terms Agreement, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforcement thereof may be limited by bankruptcy, moratorium, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law).
We consent to the filing of this opinion as an exhibit to the Registration Statement and as an exhibit to the Current Report of the Company on Form 8-K dated July 5, 2007.
Very truly yours,
/s/ Sidley Austin LLP