Exhibit 5.3
[HARNEY WESTWOOD & RIEGELS LETTERHEAD]
22 March 2005
STATS ChipPAC Ltd.
STATS ChipPAC, Inc.
STATS ChipPAC Test Services, Inc.
STATS Holdings Limited
ChipPAC International Company Limited
STATS ChipPAC (Barbados) Ltd.
ChipPAC Luxembourg S.a.R.L.
ChipPAC Liquidity Management Hungary
Limited Liability Company
STATS ChipPAC (BVI) Limited
STATS ChipPAC Malaysia Sdn. Bhd.
STATS ChipPAC Korea Ltd.
all c/o STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
Dear Sirs,
STATS HOLDINGS LIMITED ("HOLDINGS")
STATS CHIPPAC (BVI) LIMITED ("SCL")
CHIPPAC INTERNATIONAL COMPANY LIMITED ("CICL")
(TOGETHER, THE "BVI GUARANTORS")
1. We are lawyers qualified to practise in the British Virgin Islands and have
been asked to advise in connection with:
(a) an indenture dated 18 November 2004 (the "INDENTURE") entered into
between (1) STATS ChipPAC Ltd. as issuer and (2) U.S. Bank National
Association as trustee (the "TRUSTEE"), expressed to be governed by
the laws of the State of New York, and which provides for the issuance
by the Issuer of 6 3/4% senior notes due 15 November 2011 in
A list of partners is available for inspection at our office. BVI Legal Opinion
an aggregate principal amount of US$215,000,000 (the "EXISTING
NOTES"), and where such Existing Notes are to be issued in the
relevant forms specified therein;
(b) a subsidiary guarantee agreement dated 18 November 2004 (the "ORIGINAL
GUARANTEE") entered into between the Issuer, certain subsidiaries of
the Issuer, including each of the BVI Guarantors, as guarantors (the
"GUARANTORS"), and the Trustee with respect to the Existing Notes, and
including the notation wording in respect of the guarantee therein
stipulated which is to be endorsed upon each of the Existing Notes;
(c) a draft form of prospectus sent to us on 22 March 2005 (the
"PROSPECTUS") prepared by the Issuer and the Guarantors and which sets
forth information concerning the Issuer and the Guarantors and an
offer to the holders of any Existing Notes to exchange the Existing
Notes for new 6 3/4% senior notes due 15 November 2011 in an aggregate
principal amount of US$215,000,000 (the "EXCHANGE NOTES") and where
the form and terms of the Exchange Notes will be identical in all
material respects to the form and terms of the Existing Notes, and
will similarly be governed by the terms of the Indenture, except that
the Exchange Notes will be registered under the Securities Act 1933 of
the United States of America (the "SECURITIES ACT");
(d) a Form F-4 registration statement under the Securities Act (the
"REGISTRATION STATEMENT") with respect to the offer to exchange the
Existing Notes for the Exchange Notes (the "EXCHANGE OFFER") which we
understand is to be dated 22 March 2005 and then filed in accordance
with the Securities Act in the names of the Issuer and also in the
names of each of the BVI Guarantors and the other Guarantors; and
(e) a proposed form of exchange note subsidiary guarantee (the "EXCHANGE
NOTE SUBSIDIARY GUARANTEE") to be entered into between the Issuer, the
BVI Guarantors and the other Guarantors and the Trustee with respect
to the Exchange Notes upon the consummation of the Exchange Offer as
set forth in the Registration Statement, and including the notation
wording in respect of the guarantee therein provided which is to be
endorsed upon each of the Exchange Notes.
The Original Guarantee and the Exchange Note Subsidiary Guarantee are in
this opinion together referred to as the "DOCUMENTS".
2. For the purpose of this opinion, we have examined the following documents:
(a) electronic copies of each of the Indenture and the Original Guarantee,
both as executed by all of the parties thereto;
(b) an electronic copy of the proposed final version of the Registration
Statement;
(c) an electronic copy of the Prospectus;
(d) an electronic copy of the agreed form of the Exchange Note Subsidiary
Guarantee;
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(e) (i) copies of the respective Memoranda and Articles of Association
and Certificates of Incorporation of each of the BVI Guarantors
obtained from the British Virgin Islands Registry of Corporate
Affairs on 16 November 2004;
(ii) (A) an electronic copy of the unanimous written resolutions of
the directors of Holdings dated 18 November 2004 approving
the entry into by Holdings, and authorising the execution
by Holdings, of the Original Guarantee, the Registration
Statement and the Exchange Note Subsidiary Guarantee, and
approving and authorising the publication of the
Prospectus;
(B) an electronic copy of the unanimous written resolutions of
the directors of SCL dated 18 November 2004 approving the
entry into by SCL, and authorising the execution by SCL,
of the Original Guarantee, the Registration Statement and
the Exchange Note Subsidiary Guarantee, and approving and
authorising the publication of the Prospectus;
(C) an electronic copy of the unanimous written resolutions of
the directors of CICL dated 18 November 2004 approving the
entry into by CICL, and authorising the execution by CICL,
of the Original Guarantee, the Registration Statement and
the Exchange Note Subsidiary Guarantee, and approving and
authorising the publication of the Prospectus;
(items 2(f)(ii)(A), (B) and (C) are together hereinafter
referred to as the "DIRECTORS' RESOLUTIONS");
(iii) (A) original registered agents' certificates dated 16 November
2004 and 16 March 2005 identifying the directors and sole
shareholder of Holdings, issued by Offshore Incorporations
Limited, Holdings's registered agent;
(B) original registered agents' certificates dated 16 November
2004 and 16 March 2005 identifying the directors, officers
and sole shareholder of SCL, issued by HWR Services
Limited, SCL's registered agent;
(C) original registered agents' certificates dated 16 November
2004 and 16 March 2005 identifying the directors, officers
and sole shareholder of CICL, issued by HWR Services
Limited, CICL's registered agent;
(items 2(e)(iii)(A), (B) and (C) are together hereinafter
referred to as the "REGISTERED AGENT'S CERTIFICATES");
(iv) the public records of each of the BVI Guarantors on file and
available for inspection at the Registry of Corporate Affairs,
Road Town, Tortola, British Virgin Islands on 16 March 2005;
and
(v) the records of proceedings on file with and available for
inspection at the High Court of Justice, British Virgin Islands
on 16 March 2005.
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3. For the purposes of this opinion we have assumed without further enquiry:
(a) the authenticity of all documents submitted to us as originals, the
conformity with the originals thereof of all documents submitted to us
as copies or drafts, and the authenticity of such originals;
(b) the genuineness of all signatures and seals;
(c) the accuracy and completeness (i) of all information revealed by the
Registered Agent's Certificates and our searches of the British Virgin
Islands Registry of Corporate Affairs and the British Virgin Islands
High Court Registry referred to at paragraphs 2(e)(iv) and (v),
respectively, (and, in particular, that our searches of the British
Virgin Islands Registry of Corporate Affairs did not fail to disclose
any information which had been delivered for filing, but which did not
appear on the respective files for the BVI Guarantors at the Registry
as at the date of our searches) and (ii) of all corporate minutes,
resolutions and other records which we have seen, and in all cases
that no changes have occurred since our review thereof;
(d) the accuracy of any and all representations of fact expressed in or
implied by the documents we have examined;
(e) that the Exchange Note Subsidiary Guarantee has been duly executed by
each of the BVI Guarantors in the form of the agreed form of such
document examined by us for the purposes of this opinion and dated as
of the date of this opinion;
(f) that the Documents and the Indenture constitute (or will constitute
when executed and delivered) valid, legally binding and enforceable
obligations of each of the BVI Guarantors under the laws of the State
of New York by which laws each such document is expressed to be
governed;
(g) that no director of any of the BVI Guarantors has a financial interest
in or other relationship to a party to the transactions contemplated
by the Indenture, the Documents or the Prospectus, or if an interest
does exist that shareholder approval or ratification will be obtained;
and
(h) that the Directors' Resolutions remain in full force and effect.
4. Based on the foregoing, and subject to the qualifications expressed below,
our opinion is as follows:
(a) Each of the BVI Guarantors is a company duly incorporated with limited
liability under the International Business Companies Act (Cap 291) and
is validly existing in good standing under the laws of the British
Virgin Islands. Each of them is a separate legal entity and is subject
to suit in its own name.
(b) Each of the BVI Guarantors has full capacity to enter into and to
perform its obligations under the Documents, and each of them has
taken all necessary action to authorise its entry into of the
Documents, and the filing of the Registration Statement in accordance
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with the Securities Act, and the publication of the Prospectus, and
the exercise of its rights and the performance of its obligations
under the Documents.
(c) The Original Guarantee has been duly executed for and on behalf of
each of the BVI Guarantors.
(d) The Original Guarantee and (after the same has been duly executed for
and on behalf of each of the BVI Guarantors in accordance with the
Directors' Resolutions) the Exchange Note Subsidiary Guarantee will be
treated by the courts of the British Virgin Islands as the legally
binding, valid and enforceable obligations of each of the BVI
Guarantors.
(e) No consents or authorisations of any government or official
authorities of or in the British Virgin Islands are necessary for the
entry into and performance by the BVI Guarantors of, and for the
exercise of their respective rights pursuant to, the Documents, or for
the filing of the Registration Statement in accordance with the
Securities Act, or for the publication of the Prospectus.
(f) The execution and delivery of the Documents by each of the BVI
Guarantors and the performance of their respective obligations and the
exercise of their respective rights thereunder, and the filing of the
Registration Statement in accordance with the Securities Act, and the
publication of the Prospectus, do not and will not conflict with:
(i) any law of the British Virgin Islands; or
(ii) the Memorandum and Articles of Association of the relevant BVI
Guarantor.
(g) No stamp duties or similar documentary taxes imposed by or in the
British Virgin Islands are payable in respect of the Documents.
(h) There is no applicable usury or interest limitation law in the British
Virgin Islands which would restrict the recovery of payments or the
performance by any of the BVI Guarantors of any of their respective
obligations under the Documents.
(i) None of the BVI Guarantors will be required by any laws of the British
Virgin Islands to make any deduction or withholding from any payment
that it may make under the Documents, and neither the execution nor
the delivery by the BVI Guarantors of any of the Documents is subject
to any tax imposed on the BVI Guarantors by the British Virgin
Islands.
(j) There are no government controls or exchange controls in relation to
the observance by any of the BVI Guarantors of their respective
obligations under the Documents.
(k) Any monetary judgment in a court of the British Virgin Islands in
respect of a claim brought in connection with the Documents is likely
to be expressed in the currency in which such claim is made, since
such courts have power to grant a monetary judgment expressed
otherwise than in the currency of the British Virgin Islands, but they
may not necessarily do so.
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(l) Any final and conclusive monetary judgment for a definite sum obtained
against any of the BVI Guarantors in any United States federal or New
York state court sitting in The City of New York (each a "SPECIFIED
COURT") in respect of the Documents would be treated by the courts of
the British Virgin Islands as a cause of action in itself so that no
retrial of the issues would be necessary provided that:
(i) the relevant Specified Court had jurisdiction in the matter and
the relevant BVI Guarantor either submitted to such
jurisdiction or was resident or carrying on business within
such jurisdiction and was duly served with process;
(ii) the judgment given by the relevant Specified Court was not in
respect of penalties, taxes, fines or similar fiscal or revenue
obligations of the relevant BVI Guarantor;
(iii) in obtaining judgment there was no fraud on the part of the
person in whose favour judgment was given or on the part of the
relevant Specified Court;
(iv) recognition or enforcement of the judgment in the British
Virgin Islands would not be contrary to public policy; and
(v) the proceedings pursuant to which judgment was obtained were
not contrary to natural justice.
(m) None of the BVI Guarantors are entitled to immunity from suit or
enforcement of a judgment on the ground of sovereignty or otherwise in
the courts of the British Virgin Islands in respect of proceedings
against them in relation to the Documents, and the execution of the
Documents and the performance of their respective obligations
thereunder constitute private and commercial acts.
(n) Under the laws of the British Virgin Islands, the Trustee will not be
deemed to be resident, domiciled or carrying on any commercial
activity in the British Virgin Islands or subject to any tax in the
British Virgin Islands by reason only of the execution and performance
of the Original Guarantee and the Exchange Note Subsidiary Guarantee,
nor is it necessary for the execution, performance and enforcement of
any of the Documents that the Trustee be authorised or qualified to
carry on business in the British Virgin Islands.
(o) It is not necessary in order to ensure the legality, validity,
enforceability or admissibility in evidence in proceedings of the
obligations of any of the BVI Guarantors or the rights of the Trustee
under the Documents that they or any of them or any other document be
notarised, filed, registered or recorded in the British Virgin
Islands.
(p) The obligations of each of the BVI Guarantors under the Documents
constitute direct obligations that rank at least pari passu with all
of their respective other unsecured obligations.
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(q) No court proceedings pending against any of the BVI Guarantors are
indicated by our searches of the British Virgin Islands High Court
Registry referred to at paragraph 2(e)(v).
(r) On the basis of our searches of the British Virgin Islands Registry of
Corporate Affairs and the British Virgin Islands High Court Registry
referred to at paragraphs 2(e)(iv) and (v), respectively, no currently
valid order or resolution for the winding up of any of the BVI
Guarantors and no current notice of appointment of a receiver over any
of the BVI Guarantors or any of their respective assets appears on the
records maintained in respect of the BVI Guarantors at the Registry of
Corporate Affairs, but it should be noted that, while a receiver is
obliged to file notice of his appointment with the British Virgin
Islands Registry of Corporate Affairs, failure to file such notice
does not invalidate the receivership but merely gives rise to
penalties on the part of the receiver.
(s) Service of process in the British Virgin Islands on each of the BVI
Guarantors may be effected by leaving at the registered office of the
relevant BVI Guarantor the relevant document to be served. On the
basis of our searches of the British Virgin Islands Registry of
Corporate Affairs referred to at paragraph 2(e)(iv), the registered
office of the Holdings is at Offshore Incorporations Centre, P.O. Box
957, Road Town, Tortola, British Virgin Islands and the registered
office of each of SCL and CICL is at Craigmuir Chambers, P.O. Box 71,
Road Town, Tortola, British Virgin Islands.
5. This opinion is confined to and given on the basis of the laws of the
British Virgin Islands as they are in force at the date of this opinion. We
have made no investigation of, and express no opinion on, the laws of any
other jurisdiction.
6. The opinions set out above are subject to the following qualifications:
(a) Rights and obligations may be limited by bankruptcy, insolvency,
liquidation, arrangement and other similar laws of the British Virgin
Islands of general application affecting the rights of creditors.
(b) Claims under the Documents may become barred under the laws relating
to limitation of actions in the British Virgin Islands or may be or
become subject to defences of set-off or counterclaim.
(c) Equitable remedies such as injunctions and orders for specific
performance are discretionary and will not normally be available where
damages are considered an adequate remedy.
(d) Where obligations are to be performed in a jurisdiction outside the
British Virgin Islands they may not be enforceable under the laws of
the British Virgin Islands to the extent that such performance would
be contrary to public policy under the laws of that jurisdiction.
(e) The courts in the British Virgin Islands will determine in their
discretion whether or not an illegal or unenforceable provision may be
severed.
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(f) The courts of the British Virgin Islands may refuse to give effect to
a provision in respect of the cost of unsuccessful litigation brought
before those courts or where the courts themselves have made an order
for costs.
(g) The term enforceable means that a document is of a type and form
enforced by the British Virgin Islands courts. It does not mean that
each obligation will be enforced in accordance with its terms. Certain
rights and obligations may be qualified by non-conclusivity of
certificates, doctrines of good faith and fair conduct, the
availability of equitable remedies and other matters but in our view
this qualification would not defeat your legitimate expectations in
any material respect.
7. This opinion is rendered for your benefit and the benefit of your legal
counsel in connection with the transactions contemplated by the Documents
only. It may not be disclosed to or relied on by any other party for any
other purpose without our prior written consent in each case, but provided
that we hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Yours faithfully
HARNEY WESTWOOD & RIEGELS
/s/ HARNEY WESTWOOD & RIEGELS
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