Exhibit 10.1
AMKOR TECHNOLOGY, INC.
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of November
18, 2005 by and among Amkor Technology, Inc., a Delaware corporation (the
"COMPANY"), Xxxxx X. Xxx ("XX. XXX"), The Xxxxx and Xxxxx Xxx Foundation, Inc.,
Trust U/D of Xxxxx X. Xxx dated 12/24/92 f/b/o Alexandra Xxx Xxxxxxxxxx, Trust
U/D of Xxxxx X. Xxx dated 10/3/94 f/b/o Xxxxxxxxxx Xxxx Xxxxxxxxxx, Trust U/D of
Xxxxx X. Xxx dated 10/15/01 f/b/o Dylan Xxxxx Xxxxxxxxxx, Trust U/D of Xxxxx X.
Xxx dated 10/15/01 f/b/o Xxxxxxx Xxx Xxx, Trust U/D of Xxxxx X. Xxx dated
11/17/03 f/b/o Xxxxx Xxx Xxx, and Trust U/D of Xxxxx X. Xxx dated 11/11/05 f/b/o
Children of Xxxxx X. Xxx (collectively, the "INVESTORS"). Capitalized terms
contained and not otherwise defined herein shall have the meaning ascribed to
such terms in the Note Purchase Agreement (defined below).
RECITALS
A. The Company proposes to issue $100 million in aggregate principal amount
of 6.25% Convertible Subordinated Notes due 2013 (the "NOTES"), convertible into
shares of the Company's common stock, $0.001 par value (the "COMMON STOCK")
pursuant to the terms and conditions of the Note Purchase Agreement (the
"PURCHASE AGREEMENT") of even date herewith (the "FINANCING").
B. Investors are the beneficial owners (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of such number
of shares of the outstanding capital stock of the Company, and such number of
shares of capital stock of the Company issuable upon the exercise of outstanding
options and warrants, as is indicated on the signature page of this Agreement.
C. In consideration of the execution of the Purchase Agreement by the
Company, Investors (in their capacity as such) have agreed to vote the Shares
(as defined below) and over which Investors have voting power, in the manner set
forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and other consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. SHARES. During the term of this Agreement, Investors agree to vote all
shares issued upon conversion of the Notes (the "SHARES") in accordance with the
provisions of this Agreement. For purposes of this Agreement, Shares shall not
include any securities of the Company of which Investors are the beneficial
owners immediately prior to the Closing of the Financing or any securities of
the Company acquired by Investors other than upon conversion of the Notes
subsequent to the date of this Agreement.
2. VOTING. Until this Agreement is terminated pursuant to Section 3 hereof,
Investors agree to vote and cause to be voted all Shares beneficially owned,
either directly or indirectly, by them in a
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neutral manner on all matters submitted to the stockholders of the Company for a
vote, whether required by the Company's charter or bylaws, pursuant to Delaware
General Corporate Law or otherwise, including, but not limited to, the election
of directors or a Change of Control Transaction (as defined below); provided,
however, that to the extent that the Investors shall beneficially own, in the
aggregate, securities of the Company representing less than forty-one and
six-tenths percent (41.6%) of the then-outstanding voting power of the Company,
then the Investors shall not be required to vote in a neutral manner such number
of the Shares equal to the difference of (i) (x) the number of shares of Common
Stock entitled to vote as of the record date set for any matter submitted for a
vote of stockholders of the Company multiplied by (y) .416, less (ii) the total
number of shares of Common Stock beneficially owned by the Investors in the
aggregate on the record date set for such stockholder vote other than the
Shares. In such instances, each Investor shall be entitled to vote a number of
Shares in a non-neutral manner in direct proportion to such Investors beneficial
ownership of voting securities of the Company. For purposes of this Agreement,
"NEUTRAL MANNER" means in the same proportion to all other outstanding voting
securities of the Company (excluding any and all voting securities beneficially
owned, directly or indirectly, by Investors) that are actually voted on a
proposal submitted to the Company's stockholders for approval. By way of example
only, if 100,000 voting securities that are not beneficially owned by Investors
are cast with 60,000 of such shares voting "For" a proposal, 30,000 of such
shares voting "Against" a proposal, and 10,000 of such shares abstaining,
Investors shall vote sixty percent (60%) of the Shares "For" the proposal,
thirty percent (30%) "Against" the proposal and abstain with respect to ten
percent (10%) of the Shares. The term "vote" shall include any exercise of
voting rights whether at an annual or special meeting of stockholders or by
written consent or in any other manner permitted by applicable law.
3. TERMINATION. This Agreement shall terminate upon the earlier of (i) the
Maturity Date of the Notes; (ii) at such time as no principal amount of the
Notes or any Shares remains outstanding; (iii) a Change of Control Transaction;
or (iv) the mutual agreement of the Company and Investors. "CHANGE OF CONTROL
TRANSACTION" means either (a) the acquisition of the Company by another entity
by means of any transaction or series of related transactions to which the
Company is party (including, without limitation, any stock acquisition, tender
offer, reorganization, merger or consolidation but excluding any sale of stock
for capital raising purposes) that results in the voting securities of the
Company outstanding immediately prior thereto failing to represent immediately
after such transaction or series of transactions (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or the entity that controls such surviving entity) a majority of the total
voting power represented by the outstanding voting securities of the Company,
such surviving entity or the entity that controls such surviving entity;
provided, however, that the Financing or conversion of the Notes pursuant to the
terms of the Purchase Agreement shall not constitute a Change of Control
Transaction; or (b) a sale, lease or other conveyance of all or substantially
all of the assets of the Company.
4. ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares or other securities (other than pursuant to a Change of
Control Transaction) are issued on, or in exchange for, any of the Shares by
reason of any stock dividend, stock split, consolidation of shares,
reclassification or consolidation involving the Company, such shares or
securities shall be deemed to be Shares for purposes of this Agreement.
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5. REPRESENTATIONS AND WARRANTIES OF INVESTORS. Investors hereby represent
and warrant to the Company that, as of the date hereof, (i) Investors are the
beneficial owner of the shares of Common Stock, and the options, warrants and
other rights to purchase shares of Common Stock, set forth on the signature page
of this Agreement, with full power to vote or direct the voting of the Shares
for and on behalf of all beneficial owners of the Shares; (ii) the Shares are
free and clear of any liens, pledges, security interests, claims, options,
rights of first refusal, co-sale rights, charges or other encumbrances of any
kind or nature (other than pursuant to the terms of restricted stock agreements
as in effect on the date hereof); (iii) Investors do not beneficially own any
securities of the Company other than the shares of Common Stock, and options,
warrants and other rights to purchase shares of Common Stock, set forth on the
signature page of this Agreement; (iv) Investors have and will have full power
and authority to make, enter into and carry out the terms of this Agreement; (v)
the execution, delivery and performance of this Agreement by Investors will not
violate any agreement or court order to which the Notes or Shares are subject,
including, without limitation, any voting agreement or voting trust; and (vi)
this Agreement has been duly and validly executed and delivered by Investors and
constitutes a valid and binding agreement of Investors, enforceable against
Investors in accordance with its terms.
6. LEGENDING OF SHARES. If so requested by the Company, Investors hereby
agree that the Shares shall bear a legend stating that they are subject to this
Agreement.
7. FIDUCIARY DUTIES. Investors are signing this Agreement solely in their
capacity as an owner of their respective Shares, and nothing herein shall
prohibit, prevent or preclude Xx. Xxx from taking or not taking any action in
his capacity as an officer or director of the Company.
8. MISCELLANEOUS.
(a) Notices. All notices, requests, demands, consents, instructions or
other communications required or permitted hereunder shall be in writing and
faxed, e-mailed, mailed, or delivered to each party as follows: (i) if to the
Investors, at each Investor's address, facsimile number or e-mail address set
forth in the Company's records, or at such other address, facsimile number or
e-mail address as such Investor shall have furnished the Company in writing, or
(ii) if to the Company, at Amkor Technology, Inc., Attn: Chief Financial
Officer, or at such other address or facsimile number as the Company shall have
furnished to Investors in writing, with a copy to Xxxxxx Xxxxxxx, Esq., Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000. All
such notices and communications will be deemed effectively given the earlier of
(i) when received, (ii) when delivered personally, (iii) one business day after
being delivered by facsimile or e-mail (with receipt of appropriate
confirmation), (iv) one business day after being deposited with an overnight
courier service of recognized standing or (v) four days after being deposited in
the U.S. mail, first class with postage prepaid. With respect to any notice
given by the Company under any provision of the Delaware General Corporation Law
or the Company's charter or bylaws, Investors agree that such notice may be
given by facsimile or by electronic mail. In the event of any conflict between
the Company's books and records and this Agreement or any notice delivered
hereunder, the Company's books and records will control absent fraud or error.
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(b) Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto. The Company shall not permit
the transfer (i) to any Affiliate (as defined in Rule 405 under the Securities
Act of 1933, as amended) of an Investor or (ii) to a person or entity with whom
an Investor is part of a group for purposes of Section 13(d)(3) of the Exchange
Act of any Shares on the Company's books or issue a new certificate representing
any Shares unless and until the person or entity referred to in clauses (i) or
(ii) of this subsection shall have executed a written agreement pursuant to
which such person or entity becomes a party to this Agreement and agrees to be
bound by all the provisions hereof as if such person or entity was a party
hereto.
(c) Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of Delaware as applied to agreements entered into
among Delaware residents to be performed entirely within Delaware, without
regard to principles of conflicts of law.
(d) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement. All references in this Agreement to
sections, paragraphs and exhibits shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits attached hereto.
(e) Further Assurances. Each party hereto agrees to execute and
deliver, by the proper exercise of its corporate, limited liability company,
partnership or other powers, all such other and additional instruments
(including proxies) and documents and do all such other acts and things as may
be necessary to more fully effectuate this Agreement.
(f) Entire Agreement. This Agreement and the exhibits hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof. No party hereto shall be liable or bound to
any other party in any manner with regard to the subjects hereof or thereof by
any warranties, representations or covenants except as specifically set forth
herein.
(g) Specific Performance. Each of the parties hereto hereby
acknowledge that (i) the representations, warranties, covenants and restrictions
set forth in this Agreement are necessary, fundamental and required for the
protection of the Company and its stockholders and to preserve for the Company
and its stockholders the benefits of the Financing; (ii) such covenants relate
to matters which are of a special, unique, and extraordinary character that
gives each such representation, warranty, covenant and restriction a special,
unique, and extraordinary value; and (iii) a breach of any such representation,
warranty, covenant or restriction, or any other term or provision of this
Agreement, will result in irreparable harm and damages to the Company which
cannot be adequately compensated by a monetary award. Accordingly, the Company
and Investors hereby expressly agree that in addition to all other remedies
available at law or in equity, the Company shall be entitled to the immediate
remedy of specific performance, a temporary and/or permanent restraining order,
preliminary injunction, or such other form of injunctive or equitable relief as
may be used by any court of competent jurisdiction to restrain or enjoin any of
the parties hereto from breaching any representations, warranties, covenants or
restrictions set forth in this Agreement, or to specifically enforce the terms
and provisions hereof.
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(h) Amendment. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
other than by a written instrument referencing this Agreement and signed by the
Company and the Investors.
(i) No Waiver. The failure or delay by a party to enforce any
provision of this Agreement will not in any way be construed as a waiver of any
such provision or prevent that party from thereafter enforcing any other
provision of this Agreement. The rights granted both parties hereunder are
cumulative and will not constitute a waiver of either party's right to assert
any other legal remedy available to it.
(j) Severability. If any provision of this Agreement becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, portions of such provision, or such provision in its entirety, to the
extent necessary, shall be severed from this Agreement, and such court will
replace such illegal, void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
same economic, business and other purposes of the illegal, void or unenforceable
provision. The balance of this Agreement shall be enforceable in accordance with
its terms.
(k) Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same agreement. Facsimile copies of signed
signature pages will be deemed binding originals.
(signature page follows)
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The parties have executed this Voting Agreement as of the date first above
written.
AMKOR TECHNOLOGY, INC.,
A DELAWARE CORPORATION
/s/ Xxxxxxx Xxxxx
--------------------------------------
Signature of Authorized Signatory
Xxxxxxx Xxxxx, Exec. VP and CFO
Name and Title of Authorized Signatory
(SIGNATURE PAGE TO VOTING AGREEMENT)
INVESTOR
/s/ Xxxxx X. Xxx
---------------------------------------
Xxxxx X. Xxx
Shares Beneficially Owned:
21,546,670 shares of Company Common
Stock
139,516 shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants
or other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxxx X. Xxx
----------------------------------------
The Xxxxx and Xxxxx Xxx Foundation, Inc.
By: Xxxxx X. Xxx
Title: President
Shares Beneficially Owned:
150,000 shares of Company Common Stock
139,520 shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 12/24/92
f/b/o Alexandra Xxx Xxxxxxxxxx
By: Xxxx X. Xxx
Title: Trustee
Shares Beneficially Owned:
10,000 shares of Company Common Stock
-- shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants
or other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxx X. Xxx
---------------------------------------
Trust U/D of Xxxxx X. Xxx dated 10/3/94
f/b/o Xxxxxxxxxx Xxxx Xxxxxxxxxx
By: Xxxx X. Xxx
Title: Trustee
Shares Beneficially Owned:
10,000 shares of Company Common Stock
-- shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 10/15/01
f/b/o Dylan Xxxxx Xxxxxxxxxx
By: Xxxx X. Xxx
Title: Trustee
Shares Beneficially Owned:
10,000 shares of Company Common Stock
-- shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 10/15/01
f/b/o Xxxxxxx Xxx Xxx
By: Xxxx X. Xxx
Title: Trustee
Shares Beneficially Owned:
10,000 shares of Company Common Stock
-- shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 11/17/03
f/b/o Xxxxx Xxx Xxx
By: Xxxx X. Xxx
Title: Trustee
Shares Beneficially Owned:
10,000 shares of Company Common Stock
-- shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
/s/ Xxxx X. Xxx
----------------------------------------
Trust U/D of Xxxxx X. Xxx dated 11/11/05
f/b/o Children of Xxxxx X. Xxx
By: Xxxx X. Xxx
Title: Trustee
Shares Beneficially Owned:
-- shares of Company Common Stock
-- shares of Company Common Stock
issuable upon the exercise of
outstanding options, warrants or
other rights (1)
Address:
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
(1) Does not include any Shares
(SIGNATURE PAGE TO VOTING AGREEMENT)
