exv10w1






Exhibit 10.1




AMKOR TECHNOLOGY, INC.




2009 VOTING AGREEMENT



This Voting Agreement (this “AGREEMENT”) is made and entered into as of March 26, 2009 by and among
Amkor Technology, Inc., a Delaware corporation (the “COMPANY”), James J. Kim (“MR. KIM”), and 915
Investments, LP (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 up to $250 million in aggregate principal amount of
Convertible Senior Subordinated Notes due 2014 (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”),
of which Investors will purchase at least $150 million in aggregate principal amount and up to $200
million in aggregate principal amount.



     B. Investors and their affiliates are the beneficial owners (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the “EXCHANGE ACT”); all references in this
Agreement to “beneficial ownership” or like terms shall be deemed to be references to beneficial
ownership by Investors, their affiliates and other persons or entities with whom they are acting in
concert as so defined) 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 and conversion of notes, 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) 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 of Common Stock 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. In this regard, the parties
recognize that certain shares of Company Common Stock issuable upon conversion of the Company’s
6.25% convertible Subordinated notes due 2013 are subject to a Voting Agreement dated as of
November 18, 2005 by and among the Company, Mr. Kim and the other Investors



 









 




named therein (the “2005 Voting Agreement”). The parties hereto agree that the obligations of Mr.
Kim and the Company under the 2005 Voting Agreement shall not be affected by the execution,
delivery or performance 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 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 the Delaware General Corporation
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 and their
affiliates 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, the Investors 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) such time as no
principal amount of the Notes remain outstanding and the Investors or their affiliates no longer
beneficially own any Shares; (ii) the consummation of a Change of Control Transaction; or (iii) 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



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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.



     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, when issued, will
be 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 voting 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 Mr. Kim
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 the Investors’ 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 Investors 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
Robert Sanchez, Esq., Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto, California
94304. All such notices and communications will be deemed effectively given






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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.




          (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 constitutes 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






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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.




          (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 the 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 first date above written.




	 	 	 	 	 
	 	AMKOR TECHNOLOGY, INC.,

A DELAWARE CORPORATION

 	 
	 	/s/ Joanne Solomon
 	 
	 	Name:  	Joanne Solomon 	 
	 	Title:  	Corporate Vice President

and Chief Financial Officer 	 
	 





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INVESTORS




	 	 	 	 	 	 	 	 	 
	JAMES J. KIM	 	 	 	915 INVESTMENTS, LP	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ James J. Kim

	 	 	 	By:
	 	/s/ James J. Kim	 	 
	 	 	 	 	 	 	 	 	 
	Name: James J. Kim	 	 	 	Name: 915 Investments, LP	 	 
	 	 	 	 	By: James J. Kim, General Partner	 	 
	 
	 	 	 	 	 	 	 	 
	Shares Beneficially Owned:	 	 	 	Shares Beneficially Owned:	 	 
	 
	 	 	 	 	 	 	 	 
	73,549,125 shares of Company Common Stock	 	 	 	0 shares of Company Common Stock	 	 
	 
	 	 	 	 	 	 	 	 
	14,098,633 shares of Company Common Stock	 	 	 	0 shares of Company Common Stock	 	 
	issuable upon the exercise of outstanding	 	 	 	issuable upon the exercise of outstanding	 	 
	options, warrants or other rights(1)	 	 	 	options, warrants or other rights(1)	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	Address:	 	 
	1900 S. Price Road,
	 	 	 	 	 	 	 	 
	Chandler, AZ 85286
	 	 	 	 	 	 	 	 








 




			
	(1)	 	Does not include any Shares