UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No.1 to
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ASE Industrial Holding Co., Ltd.
(As successor in interest to Advanced
Semiconductor Engineering, Inc.)
(Exact name of registrant as specified in its charter)
|
Republic of China (State or other jurisdiction of incorporation or organization) |
N/A (I.R.S. Employer Identification No.) | |
|
26 Chin Third Road Nantze Export Processing Zone Nantze, Kaohsiung, Taiwan Republic of China (Address of Principal Executive Offices) |
ASE Industrial Holding Co., Ltd. 2010
Employee Stock Option Plan (as amended)
(Full title of the plan)
C T Corporation System
111 Eighth Avenue
New York, New York 10011
(212) 590-9070
(Name, address and telephone number of agent for service)
Copy to:
James C. Lin, Esq.
Davis Polk & Wardwell LLP
c/o 18th Floor, The Hong Kong Club Building
3A Chater Road
Hong Kong
(852) 2533-3300
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer ☒ | Accelerated filer ☐ |
| Non-accelerated filer ☐ (Do not check if a smaller reporting company) | Smaller reporting company ☐ |
| Emerging growth company ☐ |
CALCULATION OF REGISTRATION FEE
| Title of securities to be registered | Amount to be registered | Proposed maximum offering price per share |
Proposed maximum aggregate offering price |
Amount of registration fee |
* No additional securities are to be registered, and the registration fee was previously calculated and paid in connection with the filing of the original Registration Statement (File No. 333-178183). Therefore, no further registration fee is required.
Explanatory Statement
This Post-Effective Amendment is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the “Securities Act”), by ASE Industrial Holding Co., Ltd., a company limited by shares incorporated under the laws of the Republic of China (“ROC”) (the “Company”), as successor issuer to Advanced Semiconductor Engineering, Inc. (“ASE”), a company limited by shares incorporated under the laws of the ROC. The Company succeeded to the interests of ASE following a share exchange (the “Share Exchange”) pursuant to a joint share exchange agreement dated June 30, 2016, as supplemented by a supplemental agreement dated December 14, 2017 (collectively, the “Joint Share Exchange Agreement”) between ASE and Siliconware Precision Industries Co., Ltd. (“SPIL”). Pursuant to the Joint Share Exchange Agreement, the Company was formed by means of a statutory share exchange under the laws of the ROC, and the Company (i) acquired all issued shares of ASE in exchange for shares of the Company, and (ii) acquired all issued shares of SPIL using cash consideration. Upon the consummation of the Share Exchange, ASE and SPIL have become wholly owned subsidiaries of the Company concurrently. In addition, the Company assumed ASE’s existing obligations with respect to all outstanding options to purchase shares of ASE’s common stock. This Post-Effective Amendment pertains to the adoption by the Company of the registration statement on Form S-8 (the “Registration Statement”) with File No. 333-178183. The Company hereby expressly adopts the Registration Statement as its own registration statement for all purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”). This is Post-Effective Amendment No. 1 with respect to the Registration Statement. Registration fees were paid at the time of filing of the original Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents previously filed by ASE with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:
| (a) | ASE’s annual report on Form 20-F under the Exchange Act, for the fiscal year ended December 31, 2017 filed with the Commission on March 28, 2018; and |
| (b) | the description of common shares and American depositary shares of the Company contained under the headings “Description of HoldCo Common Shares” and “Description of HoldCo American Depositary Shares” in ASE’s registration statement on Form F-4 (File No. 333-214752) filed with the Commission on January 16, 2018, including any amendment or report filed for the purpose of updating such description. |
In addition, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof or of the related prospectus to the extent that a statement contained herein, (or in any other subsequently filed document which is also incorporated or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The relationship between the Registrant and its directors and officers is governed by the ROC Civil Code, the ROC Company Law and the Registrant’s Articles of Incorporation. There is no written contract between the Registrant and its directors and officers governing the rights and obligations of such parties. Under Section 10, Chapter 2, Book II of the ROC Civil Code, each person who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director or officer of the Registrant, in the absence of willful misconduct or negligence on the part of such person in connection with such person’s performance of duties as a director or officer, as the case may be, may be indemnified and held harmless by the Registrant to the fullest extent permitted by applicable law. In addition, the Registrant has obtained an insurance policy which provides liability coverage, including coverage for liabilities arising under the U.S. federal securities laws, for directors and officers and which contains certain exceptions and exclusions.
| Item 7. | Exemption from Registration Claimed |
Not applicable.
| Item 8. | Exhibits |
| Item 9. | Undertakings |
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;
(iii) To include any material information with respect to the Plan not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Taipei, Taiwan, Republic of China, on April 30, 2018.
| ASE INDUSTRIAL HOLDING CO., LTD. | |||
| By: | /s/ Joseph Tung | ||
| Name: | Joseph Tung | ||
| Title: | Chief Financial Officer | ||
Know all persons by these presents, that each person whose signature appears below, constitutes and appoints each of Jason C.S. Chang and Joseph Tung as his or her true and lawful attorney-in-fact and agent, upon the action of such appointee, with full power of substitution and resubstitution, to do any and all acts and things and execute, in the name of the undersigned, any and all instruments which each of said attorneys-in-fact and agents may deem necessary or advisable in order to enable ASE Industrial Holding Co., Ltd. to comply with the Securities Act of 1933, as amended (the “Securities Act”), and any requirements of the Securities and Exchange Commission (the “Commission”) in respect thereof, in connection with the filing with the Commission of this Registration Statement under the Securities Act, including specifically but without limitation, power and authority to sign the name of the undersigned to such Registration Statement, and any amendments to such Registration Statement (including post-effective amendments), and to file the same with all exhibits thereto and other documents in connection therewith, with the Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with applicable state securities laws, and to file the same, together with other documents in connection therewith with the appropriate state securities authorities, granting unto each of said attorneys-in-fact and agents full power and authority to do and to perform each and every act and thing requisite or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
| Signature | Title |
| /s/ Jason C.S. Chang |
Management Director, Chairman and Chief Executive Officer (principal executive officer) |
| Jason C.S. Chang | |
| /s/ Richard H.P. Chung | Management Director and Vice Chairman |
| Richard H.P. Chung | |
|
/s/ Bough Lin |
Management Director |
| Bough Lin | |
| /s/ Chi-Wen Tsai | Management Director |
| Chi-Wen Tsai | |
|
/s/ Rutherford Chang |
Management Director |
| Rutherford Chang | |
|
/s/ Tien Wu |
Management Director |
| Tien Wu | |
| /s/ Joseph Tung |
Management Director and Chief Financial Officer (principal financial officer) |
| Joseph Tung | |
|
/s/ Raymond Lo |
Management Director |
| Raymond Lo |
| Signature | Title |
| /s/ Jeffery Chen | Management Director |
| Jeffrey Chen | |
|
/s/ Tien-Szu Chen |
Management Director |
| Tien-Szu Chen | |
|
/s/ Freddie Liu |
Non-management Director |
| Freddie Liu | |
|
/s/ Murphy Kuo |
Controller and Vice President (principal accounting officer) |
| Murphy Kuo |
Date: April 30, 2018
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act, the undersigned, the duly authorized representative in the United States of the Registrant, has signed this Registration Statement or amendment thereto in Newark, Delaware, on April 30, 2018.
| PUGLISI & ASSOCIATES | |||
| By: | /s/ Donald J. Puglisi | ||
| Name: | Donald J. Puglisi | ||
| Title: | Managing Director | ||
EXHIBIT INDEX
Exhibit No. |
Description | |
| 4.1 | Articles of Incorporation of the Registrant (English translation). | |
| 5.1 | Opinion of Baker & McKenzie, ROC counsel to the Registrant, as to the legality of the securities being registered. | |
| 23.1 | Consent of Deloitte & Touche, independent registered public accounting firm. | |
|
23.2 |
Consent of Baker & McKenzie (included in Exhibit 5.1). | |
| 23.3 | Consent of PricewaterhouseCoopers, independent registered public accounting firm. | |
| 24.1 | Power of Attorney (included in the signature pages hereof). | |
| 99.1 | Notice to Holders of the 2010 and 2015 Employee Stock Options of Advanced Semiconductor Engineering, Inc. as a supplement to the 2010 Employee Stock Option Plan (English translation). |
Exhibit 4.1
ASE Industrial Holding Co., Ltd.
Articles of Incorporation
Chapter One: General Principals
Article 1.
The Company is called 日月光投資控股股份有限公司 and is registered as a company limited by shares according to the ROC Company Act. The English name of the Company is ASE Industrial Holdings Co., Ltd.
Article 2.
The Company is engaged in the following businesses:
H201010 General Investment Business
Article 3.
The investment made by the Company in other companies as a limited liability shareholder thereof is not subject to the limitation that such investment shall not exceed a certain percentage of the paid-in capital as set forth in the ROC Company Act.
Article 4.
The Company may provide external guaranty.
Article 5.
The Company’s headquarter is located in Kaohsiung, Taiwan, R.O.C. and may set up domestic or foreign branches, offices or business establishments as resolved by the Board of Directors, if necessary.
Chapter Two: Shares
Article 6.
The Company’s total capital is NT$50 billion divided into 5 billion shares with a par value of NT$10 per share. Stock options worth of NT$4 billion are set aside for employee subscription. The Board of Directors is authorized to issue the unissued shares in installments if deemed necessary for business purposes.
Article 7.
The share certificates shall be in registered form and have the signatures or seals of at least three directors of the Company and shall be legally authenticated before issuance. In accordance with the provisions set forth in Article 162-2 of the ROC Company Act, the Company may choose to not provide share certificates in print form.
Article 8.
No registration of share transfer shall be made within sixty days before each ordinary general shareholders’ meeting, or within thirty days before each extraordinary general shareholders’ meeting or five days before the record date for dividends, bonuses or other distributions as determined by the Company.
Article 9.
The rules governing stock affairs of the Company shall be made pursuant to the laws and the regulations of the relevant authorities.
Chapter Three: General Shareholders’ Meeting
Article 10.
General shareholders’ meetings include ordinary meetings and extraordinary meetings. Ordinary meetings shall be convened according to law by the Board of Directors once annually according to the law within 6 months after the end of each fiscal year. Extraordinary meetings will be held according to the law whenever necessary.
Article 11.
General shareholders’ meetings shall be convened by written notice stating the date, place and purpose dispatched to each shareholder at least 30 days, in the case of ordinary meetings, and 15 days, in the case of extraordinary meetings, prior to the date set for such meeting.
Article 12.
Unless otherwise required by the ROC Company Act, shareholders’ resolutions shall be adopted by at least half of the votes of the shareholders present at a general shareholders’ meeting who hold at least half of all issued and outstanding shares of the Company.
Article 13.
Each shareholder of the Company shall have one vote per share, unless otherwise provided by Article 179 of the ROC Company Act.
Article 14.
Any shareholder, who for any reason is unable to attend general shareholders’ meetings, may execute a proxy printed by the Company, in which the authorized matters shall be expressly stated, to authorize a proxy to attend the meeting for him/her. Such proxy shall be submitted to the Company at least 5 days prior to the general shareholders’ meeting.
Article 15.
The general shareholders’ meeting shall be convened by the Board of Directors unless otherwise stipulated in the ROC Company Act, and the person presiding over the meeting will be the Chairman of the Board of Directors (the “Chairman”). If the Chairman is on leave or for any reason cannot discharge his duty, Paragraph 3 of Article 208 of the ROC Company Act should apply. If the general shareholders’ meeting is convened by a person entitled to do so other than a member of the Board of Directors, that person shall act as the person presiding over the meeting . If two or more persons are entitled to call the general shareholders’ meeting, those persons shall elect one to act as the person presiding over the meeting.
Chapter Four: Director and Supervisor
Article 16.
The Company shall have nine to thirteen directors and also three supervisors to be elected by the general shareholders’ meeting from candidates with legal capacity. Each director or supervisor shall hold office for a term of three years, and may continue to serve in the office if re-elected.
The election of the directors and supervisors of the Company shall be conducted pursuant to Article 198 of the ROC Company Act and relevant regulations.
Article 16-1.
Since the second Board of Directors term, the Company shall have thirteen directors, of which there shall be three independent directors and ten non-independent directors, to be elected by the general shareholders’ meeting from candidates with legal capacity. Each director shall hold office for a term of three years, and may continue to serve in the office if re-elected.
The election of the directors of the Company shall be conducted pursuant to Article 198 of the ROC Company Act and relevant regulations.
When handling the aforementioned election of directors, the election of independent directors and non-independent directors should be held together, provided, however, that the number of independent directors and non-independent directors elected shall be calculated separately; those that receive votes representing more voting rights will be elected as independent directors or non-independent directors.
Upon the expiry of the term of office of the first supervisors of the Company elected, the provisions regarding supervisors under these Articles of Incorporation of the Company shall cease to apply. The Company shall then establish an audit committee in lieu of supervisors in accordance with Article 14-4 of the ROC Securities and Exchange Act to exercise the powers and duties of supervisors stipulated in the ROC Company Act, the ROC Securities and Exchange Act, and other applicable laws and regulations. The audit committee shall comprise solely of the independent directors. The responsibilities, powers and other related matters of the audit committee shall be separately stipulated in rules adopted by the Board of Directors in accordance with applicable laws and regulations.
The election of the Company’s independent directors uses the candidate nomination system. Shareholders who hold 1% or more of the Company’s issued shares and the Board of Directors may nominate a list of candidates for independent directors. After the Board of Directors examines and confirms the qualifications of the candidate(s) for serving as an independent director, the name(s) is/are sent to the general shareholders’ meeting for election. If the general shareholders’ meeting is convened by a person entitled to do so other than a member of the Board of Directors, after such person examines and confirms the qualifications of the candidate(s) for serving as an independent director, the name(s) is/are sent to the general shareholders’ meeting for election. All matters regarding the acceptance method and announcement of the nomination of candidates for independent directors will be handled according to the ROC Company Act, the ROC Securities and Exchange Act, and other relevant laws and regulations.
Article 16-2.
The remuneration of the Company’s supervisors and independent directors is set at NT$3 million per person annually. For those that do not serve a full year, the remuneration will be calculated in proportion to the number of days of the term that were actually served. The additional remuneration of the Company’s independent directors who are also the members of the Company’s Compensation Committee is set at NT$ 360,000 per person annually. For those that do not serve a full year, the additional remuneration will be calculated in proportion to the number of days of the term that were actually served.
Article 17.
The Board of Directors is constituted by directors. Their powers and duties are as follows:
(1). Preparing business plans;
(2). Preparing surplus distribution or loss make-up proposals;
(3). Preparing proposals to increase or decrease capital;
(4). Reviewing material internal rules and contracts;
(5). Hiring and discharging the general manager;
(6). Establishing and dissolving branch offices;
(7). Reviewing budgets and audited financial statements; and
(8). Other duties and powers granted by or in accordance with the ROC Company Act or shareholders’ resolutions.
Article 18.
The Board of Directors is constituted by directors, and the Chairman and Vice Chairman are elected by more than half of the directors at a board meeting at which two-thirds or more of the directors are present. If the Chairman is on leave or for any reason cannot discharge his duties, his/her acting proxy shall be elected in accordance with Article 208 of the ROC Company Act.
Article 19.
Board of Directors meetings shall be convened according to the law by the Chairman according to the law, unless otherwise stipulated by the ROC Company Act. Board of Directors meetings can be held at the place that the Company is headquartered, or at any place that is convenient for the directors to attend and appropriate for the meeting to be convened, or via video conference.
Article 19-1.
Directors and supervisors shall be notified of Board of Director meetings no later than seven days prior to the meetings. However, in case of any emergency, a Board of Directors meeting may be convened at any time.
Notifications of Board of Directors meetings may be in writing or via email or fax.
Article 20.
A director may execute a proxy to appoint another director to attend the Board of Directors meeting and to exercise his/her voting right, but a director can accept only one proxy.
Chapter Five: Manager
Article 21.
This company has one general manager. The appointment, discharge and salary of the general manager shall be managed in accordance with Article 29 of ROC Company Act.
Chapter Six: Accounting
Article 22.
The fiscal year of the Company starts from January 1 and ends on December 31 every year. At the end of each fiscal year, the Board of Directors shall prepare financial and accounting books in accordance with the ROC Company Act and submit them according to law to the ordinary general shareholders’ meeting for approval.
Article 23.
If the Company is profitable, 0.1% (inclusive) to 1% (inclusive) of the profits shall be allocated as compensation to employees and 0.75% (inclusive) or less of the profits should be allocated as compensation to directors. While the Company has accumulated losses, the profit shall be set aside to compensate losses before distribution.
The compensation being distributed to employees in the form of stock or cash shall be approved by more than half of the directors at a board meeting at which two-thirds or more of the directors are present and report to the general shareholders’ meeting.
“Employees” referred to in paragraph 1 and 2 above includes employees of subsidiaries who meet certain qualifications. Such qualifications are to be determined by the Board of Directors.
Article 24.
The annual net income (“Income”) shall be distributed in the order of sequences below:
(1) Making up for losses, if any.
(2) 10% being set aside as legal reserve.
(3) Allocation or reversal of a special surplus reserve in accordance with laws or regulations set forth by the authorities concerned.
(4) Addition or deduction of the portion of retained earnings that are equity investment gains or losses that have been realized and measured at fair value through other overall gains or losses.
The remainder plus the undistributed earnings shall be distributed in accordance with the proposal submitted by the Board of Directors and adopted by the general shareholders’ meeting.
Article 25.
The Company is at the stage of stable growth. In order to accommodate the capital demand for the present and future business development and satisfy the shareholder’s demand for the cash inflow, the Residual Dividend Policy is adopted for the dividend distribution of the Company. The ratio for cash dividends shall be not less than 30% of the total dividends; and the residual dividends shall be distributed in form of stocks in accordance with the distribution plan proposed by the Board of Directors and resolved by the general shareholders’ meeting.
Chapter Seven: Appendix
Article 26.
The bylaws and rules of procedure of the Company shall be stipulated separately.
Article 27.
Any matter not covered by these Articles of Incorporation shall be subject to the ROC Company Act.
Article 28.
These Articles of Incorporation were made on February 12, 2018 as approved by all the promoters.
Exhibit 5.1
[LETTERHEAD OF BAKER & MCKENZIE ]
April 30, 2018
ASE Industrial Holding Co., Ltd.
26 Chin Third Road
Nantze Export Processing Zone
Nantze
Kaohsiung, Taiwan
Republic of China
Re: Registration Statement on Form S-8 of Advanced Semiconductor Engineering, Inc.
Ladies and Gentlemen:
We act as the special Republic of China (the “ROC”) counsel to you, ASE Industrial Holding Co., Ltd. (“you” or the “Company”) in connection with your filing with the United States Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-8 (the “Registration Statement”) under the United States Securities Act of 1933, as amended (the “Securities Act”) on April 30, 2018 for the registration of the issuance of a certain number of shares of common stock, par value NT$10 per share, of the Company (the “New Shares”) by assumption of the outstanding employee stock options issued by Advanced Semiconductor Engineering, Inc. (the “ASE”) under the ASE 2010 Employee Stock Option Plan (the “ESOP”).
In rendering this opinion, we have examined the originals or copies of the following documents:
| (i) | the resolution made at the promoters’ meeting of the Company (also the extraordinary general meeting of shareholders of ASE) held on February 12, 2018 and the resolution made at the meeting of the board of directors of the Company held on April 30, 2018 (collectively, the “Resolutions”), |
| (ii) | the Articles of Incorporation as made on February 12, 2018 and the corporate registration card dated April 30, 2018 of the Company, |
| (iii) | the public records of the Company made available at the website of the ROC Ministry of Economic Affairs (“MOEA”) on April 30, 2018, |
| (iv) | Registration Statement, which constitutes a prospectus of the Company under the Securities Act, with respect to the general description of the ESOP, and |
| (v) | the certificate issued by the Company to us dated April 30, 2018. |
We have also examined the relevant laws and regulations of the ROC and originals or copies of such other documents, agreements and instruments as we have deemed necessary as a basis for the opinions hereinafter expressed. During our review of the above documents, we have (i) relied on such statements as to factual matters made in the Resolutions, (ii) assumed that all documents we received from the Company are final documents, as may be amended or supplemented prior to the date that New Shares are issued, and (iii) made such investigation as we have deemed necessary as a basis for the opinions hereinafter expressed.
To the extent that the obligations of the Company under the Resolutions may be dependent upon such matters, we have assumed for purposes of this opinion that (i) your corporate registration is not subject to cancellation or revocation as a result of having submitted forged or altered documents in your application for registration of its company incorporation, (ii) your public records made available at the website of the MOEA are a full, current and correct record of the corporate status of you at the time of our search, (iii) all factual statements made in the documents submitted to us are correct and complete and that such documents are not void and have not been amended, superseded, revoked or revised in any manner, and (iv) the minutes of the Resolutions are the full records of resolutions passed at meetings duly convened and held by the shareholders or the board of the directors of the Company, as the case may be.
In our examination, we have assumed the genuineness of the signatures, the authenticity of all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies and the legal capacity of all individuals executing those documents.
We are opining herein as to the effect on the subject transaction only of the present laws and regulations of the ROC, and we express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction.
Based upon the foregoing, and subject to the assumptions and qualifications herein contained, we are of the opinion that, as of the date hereof:
(1) the Company has been duly incorporated and is validly existing under the laws of the ROC as a company limited by shares; and
(2) the New Shares (initially in the form of the certificate of payment) have been duly authorized and, when delivered to and paid for by the persons who have subscribed for such New Shares under the ESOP, will be validly issued, fully paid and non-assessable. For the purposes of this opinion, the term “non-assessable” in relation to shares of capital stock of the Company under ROC law means that no calls for further payment can be made upon such capital stock or upon any holders of such capital stock solely by reason of their ownership thereof.
Our opinion is subject to the qualification that:
| (i) | The exercise of any rights may not be repugnant to public interests or have a primary purpose to harm another person, and that rights must be exercised in good faith. |
| (ii) | No liability arising from a willful act or gross negligence may be disclaimed in advance. |
| (iii) | Enforcement of rights for claims in relation to the subscription rights under the ESOP and Resolutions is subject to applicable statutes of limitations under the laws of the ROC. |
| (iv) | Under the Code of Civil Procedure, a party to the litigation has the right to dispute at the oral proceeding the fact alleged by the opposing party, and the court has discretionary power to admit or rule out the evidence. Any determination, certificate or other matters stated in the Resolutions to be conclusive may, nevertheless, be subject to review by the court. |
| (v) | The exercise of any rights may be limited by laws relating to reasonableness, good faith, public order and good morals and the limitation of actions, and failure to exercise any right may constitute a waiver of that right against all obligors. |
| (vi) | Judgment on a claim in relation to the subscription rights under the ESOP; the New Shares or the Resolutions may be rendered in United States dollars but such judgment may be satisfied by the payment of an amount in New Taiwan Dollars equivalent to the amount of the judgment (determined on the date of satisfaction of the judgment). |
| (vii) | The Company is required to obtain the approval of the Central Bank of the Republic of China (Taiwan) at the time conversion is sought in order to convert New Taiwan Dollars in the equivalent of more than US$50,000,000 into foreign currency in any year. |
Our opinion is rendered as of the date hereof based on the ROC laws and the facts existing on the date hereof. We express no opinion on any issue relating to the ROC tax consequences in relation to the subscription rights under the ESOP and New Shares other than those set forth in the Registration Statement and herein. Our opinion does not address any non-ROC tax consequences that may result from the transactions described in the Registration Statement. An opinion of counsel is not binding on the ROC tax authorities or the courts, and there can be no assurance that the ROC tax authorities or a court will not take a contrary position or that such contrary position will not be upheld.
Whenever a statement or opinion herein with respect to the existence or absence of facts is indicated to be based on “our knowledge” or a similar phrase, it is intended to indicate to signify that attorneys in our office who have devoted substantive attention to this matter have acquired actual knowledge of the existence or absence of such facts. We have not undertaken any independent investigation to determine the accuracy of any such statement or opinion, and no inference that we have any knowledge of any matters bearing on the accuracy of such statement or opinion should be drawn from our representation of the Company.
This opinion is rendered only to the Company and is solely for benefit of the Company in connection with the transaction contemplated by the Form S-8. Except for being furnished to the respective officers and employees of the Company, this opinion may not be relied upon by the Company for any other purpose, or furnished to, quoted to, relied upon, or otherwise referred to by any other person, firm or corporation for any purpose, without our express prior written consent, save to the extent required to be disclosed by law or any regulatory or governmental authority or any court, provided that such disclosure does not entitle the recipients to rely on this opinion.
Subject to the qualification hereof, we hereby consent to the use of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we fall within the category of person whose consent is required under Section 7 of the Securities Act or the regulations promulgated thereunder.
This opinion is given by the Taipei office of Baker & McKenzie (國際通商法律事務所), a Taiwanese partnership, and not on behalf of any other member or affiliated firm of Baker & McKenzie, a Swiss Verein.
Very truly yours,
/s/ Baker & McKenzie, Taipei Baker & McKenzie, Taipei |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Post-Effective Amendment No. 1 to Registration Statement No. 333-178183 on Form S-8 of our reports dated March 23, 2018, relating to the consolidated financial statements of Advanced Semiconductor Engineering, Inc. and its subsidiaries (which report expresses an unqualified opinion based on our audit and the report of the other auditors); and the effectiveness of Advanced Semiconductor Engineering, Inc. and its subsidiaries’ internal control over financial reporting, appearing in the Annual Report on Form 20-F of Advanced Semiconductor Engineering, Inc. for the year ended December 31, 2017.
/s/Deloitte & Touche
Taipei, Taiwan
The Republic of China
April 30, 2018
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (No. 333-178183) of ASE Industrial Holding Co., Ltd. of our report dated March 22, 2018 relating to the financial statements of Siliconware Precision Industries Co., Ltd., which appears in Advanced Semiconductor Engineering, Inc.’s Annual Report on Form 20-F for the year ended December 31, 2017.
/s/ PricewaterhouseCoopers, Taiwan
Taipei, Taiwan
Republic
of China
April 30, 2018
Exhibit 99.1
Notice to Holders of the 2010 and 2015 Employee Stock Options of Advanced Semiconductor Engineering, Inc.
March 20, 2018
Ladies and Gentlemen:
The offering terms of the employee stock options that you hold will be amended for the share exchange transaction between Advanced Semiconductor Engineering, Inc. ("ASE") and Siliconware Precision Industries Co., Ltd. ("SPIL").
| 1. | ASE and SPIL have entered into a joint share exchange agreement on June 30, 2016 ("Joint Share Exchange Agreement") pursuant to which a new company, ASE Industrial Holding Co., Ltd. ("HoldCo"), will be formed by means of a statutory share exchange. Upon completion of the statutory share exchange, HoldCo will acquire all issued shares of ASE and SPIL and ASE and SPIL will simultaneously become wholly owned subsidiaries of HoldCo, and ASE and SPIL will be delisted from the Taiwan Stock Exchange accordingly. |
| 2. | Based on the Joint Share Exchange Agreement, at the effective time of the statutory share exchange (the "Effective Time"; tentatively April 30, 2018; the common shares of the HoldCo will be listed on the Taiwan Stock Exchange on the same day), each ASE common share will be transferred to HoldCo in consideration for the right to receive 0.5 HoldCo common shares and the rights and obligations under the employee stock options held by you will be generally assumed by the HoldCo. The terms concerning "type of shares underlying the options", "number of granted options" and "exercise price" of the current ASE employee stock option plans should be accordingly amended as follows: |
| (1) | type of shares underlying the options: common shares newly issued by ASE Industrial Holding Co., Ltd. |
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| (2) | number of granted options1: |
the number of granted and unexercised options x 0.5.
starting from the Effective Time, each unit of option is entitled to subscribe for one (1) common share of HoldCo.
| (3) | exercise price: the exercise price of granted and unexercised options x 2. |
The other terms of the current ASE employee stock option plans should remain unchanged.
| 3. | The last day for ASE's common shares being traded on the Taiwan Stock Exchange should be April 17, 2018 (Taiwan time). If you intend to subscribe for ASE common shares by exercising stock option(s), you have to exercise the option(s) and pay the exercise price on or before April 11, 2018. Starting from April 12, 2018, ASE will no longer accept any application or payment for exercising any employee stock option. |
If you exercise the ASE employee stock option and pay the applicable exercise price on or after Effective Time (tentatively April 30, 2018) in accordance with relevant terms and conditions, you will receive common shares issued by HoldCo pursuant to the terms as described in Item 2 above.
| 4. | If you do not agree to accept any of the Items above, you have to send ASE a written hard-copy to express your objection clearly before April 2, 2018; otherwise, we will assume you agree to all the changes to the ASE employee stock option plans as described above. Such written hard-copy objection shall be delivered to the following address (any communication delivered by you through email or other electronic forms shall not be regarded as you expressing objection against the above Items): |
For International Post:
Attention: ASE Group Option Administration Office
10 West 5th Street, N.E.P.Z. Kaohsiung City 811,
Taiwan, Republic of China
1 Please note, pursuant to ASE's 2015 Employee Stock Option Plan, all the issued but non-exercisable options shall be cancelled immediately on your retirement date. Therefore, when you retire before or on or after the Effective Time, the number of issued but non-exercisable 2015 employee stock options held by you shall be adjusted pursuant to such condition as well.
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If you have any questions about the content of this notice, please feel free to contact the responsible person:
Telephone: 886-7-3636641 Ext. 66313 / 66314 / 66309 / 66311
Email: stock_option@aseglobal.com.
Advanced Semiconductor Engineering, Inc.
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