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).
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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