EXHIBIT 5.3
HARNEYS
British Virgin Islands and Anguillan lawyers
Associated offices Harney Westwood & Riegels
Craigmuir Chambers
London PO Box 71
Tel: +44 (0) 20 7440 8790 Road Town, Tortola
Fax: +44 (0) 20 7440 8791 British Virgin Islands
Tel: +1 284 494 2233
Anguilla Fax: +1 284 494 3547
Tel: +1 264 498 5000 www.harneys.com
Fax: +1 264 498 5001
Your Ref
2 September 2005 Our Ref RW/034994.0002
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.
all c/o STATS ChipPAC Ltd.
10 Ang Mo Kio Street 65
#05-17/20 Techpoint
Singapore 569059
Dear Sirs
STATS HOLDINGS LIMITED, STATS CHIPPAC (BVI) LIMITED AND CHIPPAC INTERNATIONAL
COMPANY LIMITED
1. We are lawyers qualified to practise in the British Virgin Islands and
have acted as special counsel in the British Virgin Islands to STATS
Holdings Limited, a company incorporated under the laws of the British
Virgin Islands ("HOLDINGS"), STATS ChipPAC (BVI) Limited, a company
incorporated under the laws of the British Virgin Islands ("SCL") and
ChipPAC International Company Limited, a company incorporated under the
laws of the British Virgin Islands ("CICL" and together with Holdings and
SCL, the "BVI GUARANTORS") in connection with:
(a) an indenture dated as of 19 July 2005 (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 7.5% senior notes due 19 July 2010 (the
"NOTES");
A list of partners is available for inspection at our offices.
(b) a subsidiary guarantee agreement dated as of 19 July 2005 (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
Notes, and including the notation wording in respect of the
guarantee therein stipulated which is to be endorsed upon each of
the Notes;
(c) a draft form of prospectus sent to us on 2 September 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 Notes issued in an aggregate principal
amount of US$150,000,000 (the "EXISTING NOTES") to exchange the
Existing Notes for new Notes in an aggregate principal amount of
US$150,000,000 (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 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 issued by the BVI Guarantors and
the other Guarantors with respect to the Exchange Notes and endorsed
upon each of the Exchange Notes upon the consummation of the
Exchange Offer as set forth in the Registration Statement.
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) copies of each of the Indenture and the Original Guarantee, both as
executed by all of the parties thereto;
(b) a copy of the proposed final version of the Registration Statement;
(c) a copy of the Prospectus;
(d) a copy of the agreed form of the Exchange Note Subsidiary Guarantee;
(e) (i) a copy of the Memorandum and Articles of Association and
Certificate of Incorporation obtained from the British Virgin
Islands Registry of Corporate Affairs for (i) Holdings on 20
June 2005, (ii) SCL on 21 June 2005 and (iii) CICL on 21 June
2005;
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(ii) (A) a copy of the unanimous written resolutions of the
directors of Holdings dated 12 July 2005 approving the
entry into by Holdings, and authorising the execution
and performance 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) a copy of the unanimous written resolutions of the
directors of SCL dated 12 July 2005 approving the entry
into by SCL, and authorising the execution and
performance 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) a copy of the unanimous written resolutions of the
directors of CICL dated 12 July 2005 approving the entry
into by CICL, and authorising the execution and
performance 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(e)(ii)(A), (B) and (C) together the "DIRECTORS'
RESOLUTIONS");
(iii) (A) an original registered agent's certificate dated 8 July
2005 identifying the directors and sole shareholder of
Holdings, issued by Offshore Incorporations Limited,
Holdings' registered agent;
(B) an original registered agent's certificate dated 8 July
2005 identifying the directors, officers and sole
shareholder of SCL, issued by HWR Services Limited,
SCL's registered agent;
(C) an original registered agent's certificate dated 8 July
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) together the "REGISTERED
AGENTS' CERTIFICATES");
(iv) the public records on file and available for inspection at the
Registry of Corporate Affairs, Road Town, Tortola, British
Virgin Islands for (i) Holdings on 20 June 2005, (ii) SCL on
21 June 2005 and (iii) CICL on 21 June 2005;
(v) the records of proceedings on file with, and available for
inspection at the High Court of Justice, British Virgin
Islands for (i) Holdings on 20 June 2005, (ii) SCL on 21 June
2005 and (iii) CICL on 21 June 2005; and
(vi) an original Certificate of Good Standing for each of Holdings,
SCL and CICL each dated 28 June 2005 issued by the Registrar
of Companies, Road Town, Tortola, British Virgin Islands.
3. For the purposes of this opinion we have assumed without further enquiry:
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(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 Agents' 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 Documents have 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;
(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 in the United States of America ("NEW YORK") by
which law they are expressed to be governed;
(g) that all the obligations under the Documents and the Indenture of
each party to them other than the BVI Guarantors are legal, valid,
binding and enforceable in accordance with their terms on that
party;
(h) that no director of any of the BVI Guarantors has a financial
interest in or other relationship to a party to the transaction
contemplated by Indenture, the Documents or the Prospectus or if an
interest does exist, that shareholder approval or ratification will
be obtained; and
(i) 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 validly existing in good standing under the laws of
the British Virgin Islands. Each one 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
perform its obligations under the Documents and each of the BVI
Guarantors has taken all necessary action to authorise its entry
into the Documents and the filing of the Registration Statement in
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accordance 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, once executed 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 each of the BVI Guarantors of 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 each of the BVI Guarantors 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 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.
(l) Any final and conclusive monetary judgment for a definite sum
obtained against each of the BVI Guarantors in the Courts of New
York in respect of the Documents would
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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 Courts of New York 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 Courts of New York 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 Courts of New York;
(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) The BVI Guarantors are not 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 performance of their respective
obligations under the Documents by each of the BVI Guarantors
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, delivery and
performance of the Documents nor is it necessary for the execution,
delivery, performance and enforcement of the Documents that the
Trustee be authorised or qualified to carry on business in the
British Virgin Islands.
(o) The choice of the law of New York as the proper law of the Documents
would be upheld as a valid choice of law by the courts of the
British Virgin Islands and applied by such courts in proceedings in
relation to the Documents as the proper law thereof and the
submission by each of the BVI Guarantors to the jurisdiction of the
courts of New York and the nomination by each of the BVI Guarantors
of an agent in New York to accept service of process in respect of
proceedings before such courts are valid.
(p) It is not necessary in order to ensure the legality, validity,
enforceability or admissibility in evidence in proceedings of the
obligations of each of the BVI Guarantors or the rights of the
Trustee under the Documents that they or any other document be
notarised, filed, registered or recorded in the British Virgin
Islands.
(q) The obligations of each of the BVI Guarantors under the Documents
constitute direct obligations that rank at least pari passu with all
its other unsecured obligations.
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(r) No court proceedings pending against any of the BVI Guarantors are
revealed from our searches of the British Virgin Islands High Court
Registry referred to at paragraph 2(e)(v).
(s) 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 winding up any of the BVI
Guarantors and no current notice of appointment of a receiver over
any of the BVI Guarantors or any of its assets appears on the
records maintained in respect of any of the BVI Guarantors at the
Registry of Corporate Affairs, but it should be noted that failure
to file notice of appointment of a receiver does not invalidate the
receivership but merely gives rise to penalties on the part of the
receiver.
(t) Service of process in the British Virgin Islands on each of the BVI
Guarantors must be effected by leaving at the Registered Office of
the relevant BVI Guarantor the relevant document to be served. On
the basis of our search of the British Virgin Islands Registry of
Corporate Affairs referred to at paragraph 2(e)(iv) the registered
office of each of SCL and CICL is Craigmuir Chambers, P.O. Box 71,
Road Town, Tortola, British Virgin Islands and the registered office
of Holdings is Offshore Incorporations Centre, P.O. Box 957, 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 the British Virgin
Islands.
(e) The courts in the British Virgin Islands will determine in their
discretion whether or not an illegal or unenforceable provision may
be severed.
(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.
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(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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