<PAGE>
Exhibit 10.38
AMKOR TECHNOLOGY, INC.
RETIREMENT SEPARATION AGREEMENT AND RELEASE
This
Retirement Separation Agreement and Release ("Agreement") is made
by
and between Amkor Technology, Inc. (the "Company"), and John N.
Boruch
("Executive").
WHEREAS, Executive is employed by the Company and serves on its
Board of
Directors and now wishes to retire;
WHEREAS, the Company and Executive have entered into the stock
option
agreements listed on Exhibit A;
NOW
THEREFORE, the Company and Executive (collectively referred to as
"the
Parties") hereby agree as follows:
1.
Termination. As a result of Executive's decision to retire,
Executive's
employment from the Company will terminate effective as of December
30, 2005 and
Executive agrees to resign, effective as of the Effective Date (as
such term is
defined in Section 22), all positions with the Company, including
any
directorship of the Company or any of its affiliates or
subsidiaries.
2.
Consideration. In exchange for the Executive's covenants set forth
in
this Agreement and contingent upon the Executive signing and not
revoking the
release contained in Sections 4 and 5 the Company agrees to provide
Executive
with the following:
(a) Severance Pay. The Company agrees to pay Executive, on or
before
January 31, 2006, one million, eight hundred and twenty-three
thousand dollars
($1,823,000), less applicable withholding in accordance with the
Company's
payroll practices.
(b) Stock Options. As of December 31, 2005, each of the Stock
Options
will be amended to provide that it is fully vested, to the extent
that it was
not previously fully vested, and each option will be modified to
provide that it
will remain exercisable until December 31, 2008 (subject to the
following). If
the Term/Expiration date (as such term is used in the applicable
stock option
agreement) of a Stock Option occurs prior to December 31, 2008,
then such Stock
Option shall expire no later than the applicable Term/Expiration
date. Executive
specifically acknowledges that he has discussed the potential tax
consequences
of these modifications with his personal tax advisors and he agrees
to bear any
tax liability related to such modifications.
(c) Subsidized COBRA. If Executive timely elects to continue
his
health insurance coverage pursuant to the Consolidated Omnibus
Budget
Reconciliation Act of 1986 ("COBRA"), the Company will reimburse
Executive for
all COBRA premiums for eighteen (18) months unless COBRA coverage
earlier
terminates.
<PAGE>
(d) Transfer of Automobile. By January 31, 2005, the Company
will
transfer the ownership of the 2004 Lexus Lx 470 (VIN
JTHT00WD43544465) to
Executive. Executive will bear all responsibility for taxes and
liability
related to the transfer and to the automobile after the date of
transfer.
3.
Payment of Salary. Executive acknowledges and represents that
the
Company has paid all salary, wages, bonuses, accrued vacation,
commissions and
any and all other benefits due to Executive, other than those
accrued amounts
that will be paid during the final paycheck paid to Executive for
the period
ending December 30, 2005.
4.
Release of Claims. Executive agrees that the foregoing
consideration
represents settlement in full of all outstanding obligations owed
to Executive
by the Company. Executive, on behalf of himself, and his respective
heirs,
family members, executors and assigns, hereby fully and forever
releases the
Company and its past, present and future officers, agents,
directors, employees,
investors, shareholders, administrators, affiliates, divisions,
subsidiaries,
parents, predecessor and successor corporations, and assigns
(collectively, the
"Releasees"), from, and agrees not to sue or otherwise institute or
cause to be
instituted any legal or administrative proceedings concerning any
claim, duty,
obligation or cause of action relating to any matters of any kind,
whether
presently known or unknown, suspected or unsuspected, that he may
possess
arising from any omissions, acts or facts that have occurred up
until and
including the Effective Date of this Agreement including, without
limitation,
(a) any and all claims relating to or arising out of
Executive's
employment relationship with the Company and the termination of
that
relationship;
(b) any and all claims relating to, or arising from, Executive's
right
to purchase, or actual purchase of shares of stock of the Company,
including,
without limitation, any claims for fraud, misrepresentation, breach
of fiduciary
duty, breach of duty under applicable state corporate law, and
securities fraud
under any state or federal law;
(c) any and all claims for wrongful discharge of employment;
termination in violation of public policy; discrimination;
harassment;
retaliation; breach of contract, both express and implied; breach
of a covenant
of good faith and fair dealing, both express and implied;
promissory estoppel;
fraud; fraudulent inducement; negligent or intentional infliction
of emotional
distress; negligent or intentional misrepresentation; negligent or
intentional
interference with contract or prospective economic advantage;
unfair business
practices; defamation; libel; slander; negligence; personal injury;
assault;
battery; invasion of privacy; false imprisonment; conversion;
workers'
compensation and disability benefits;
(d) any and all claims for violation of any federal, state or
municipal statute, including, but not limited to, Title VII of the
Civil Rights
Act of 1964; the Civil Rights Act of 1991; the Americans with
Disabilities Act
of 1990; the Fair Labor Standards Act; the Fair Credit Reporting
Act; the Age
Discrimination in Employment Act of 1967; the Employee Retirement
Income
Security Act of 1974; the Worker Adjustment and Retraining
Notification Act; the
Family and Medical Leave Act; the Arizona Civil Rights Act; and any
other state
or local anti-discrimination laws;
-2-
<PAGE>
(e) any and all claims for violation of the federal, or any
state,
constitution;
(f) any and all claims arising out of any other laws and
regulations
relating to employment or employment discrimination; and
(g) any and all claims for attorneys' fees and costs.
Executive acknowledges and agrees that any breach by him of this
paragraph
or of his obligations under paragraphs 8, 9, 10, 11, or 12 hereof
shall
constitute a material breach of this Agreement, and shall entitle
the Company
immediately to cease paying COBRA premium reimbursements pursuant
to Section
2(c) and the stock option modifications provided in Section 2(b)
shall be null
and void and such stock options shall immediately expire. Further,
Executive
acknowledges and agrees that any breach by him of this paragraph or
of his
obligations under paragraphs 8, 9, 10, 11, or 12 hereof shall
constitute a
material breach of this Agreement and shall entitle the Company
immediately to
recover any other consideration provided to Executive by this
Agreement, except
as prohibited by law. Except as prohibited by law, Executive shall
also be
responsible to the Company for all costs, attorneys' fees and any
and all
damages incurred by the Company in: (a) enforcing his obligations
under this
paragraph, paragraphs 8, 9, 10, 11, or 12, including the bringing
of any action
to recover the consideration, and (b) defending against a claim
brought or
pursued by Executive in violation of the terms of this
Agreement.
5.
Acknowledgment of Waiver of Claims under ADEA. Executive
acknowledges
that he is waiving and releasing any rights he may have under the
Age
Discrimination in Employment Act of 1967 ("ADEA") and that this
waiver and
release is knowing and voluntary. Executive and the Company agree
that this
waiver and release does not apply to any rights or claims that may
arise under
ADEA after the Effective Date of this Agreement. Executive
acknowledges that the
consideration given for this waiver and release Agreement is in
addition to
anything of value to which Executive was already entitled.
Executive further
acknowledges that he has been advised by this writing that
(a) he should consult with an attorney prior to executing this
Agreement;
(b) he has up to twenty-one (21) days within which to consider
this
Agreement;
(c) he has seven (7) days following his execution of this Agreement
to
revoke this Agreement;
(d) this Agreement shall not be effective until the revocation
period
has expired; and,
nothing in this Agreement prevents or precludes Executive from
challenging
or seeking a determination in good faith of the validity of
this
