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 Xxxx X. Xxxxxx
("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.
(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 xxx 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;
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(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 waiver under
the ADEA, nor does it impose any condition precedent, penalties or costs for
doing so, unless specifically authorized by federal law. Any revocation should
be in writing and delivered to Xxx Xxxxx at Amkor Technology at 0000 Xxxxx Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000, by close of business on the seventh day from the
date that Executive signs this Agreement.
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6. Unknown Claims. Executive represents that he is not aware of any claim
other than the claims that are released by this Agreement. Executive
acknowledges that he has been advised by legal counsel and is familiar with the
principle that a general release does not extend to claims which the releasor
does not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement with
the Releasees. Executive, being aware of said principle, agrees to expressly
waive any rights he may have to that effect, as well as under any other statute
or common law principles of similar effect.
7. No Pending or Future Lawsuits. Executive represents that he has no
lawsuits, claims, or actions pending in his name, or on behalf of any other
person or entity, against the Company or any other person or entity referred to
herein. Executive also represents that he does not intend to bring any claims on
his own behalf or on behalf of any other person or entity against the Company or
any other person or entity referred to herein.
8. Trade Secrets and Confidential Information/Company Property. Executive
agrees at all times hereafter to hold in the strictest confidence, and not to
use or disclose to any person or entity, any trade secrets, proprietary or
confidential information of the Company. Executive represents that he has not to
date misused or disclosed any of the Company's trade secrets, proprietary and
confidential information, to any unauthorized parties. Executive's signature
below constitutes his certification under penalty of perjury that he has
returned all documents and other items provided to Executive by the Company,
developed or obtained by Executive as a result of his employment with the
Company, or otherwise belonging to the Company.
9. Non-Competition and Non-Solicitation.
(a) Until the Noncompetition and Nonsolicitation End Date (as defined
in Section 9(b)(i), Executive agrees not to enter into an employment or
consulting relationship with any Prohibited Entity, as defined in Section
9(b)(ii). Executive specifically acknowledges and agrees that the provisions of
this Section 9 are no broader than necessary to protect the Company's legitimate
business interests and that Executive's knowledge of the Company's business make
the prospect of his entering into business with a competitor of the Company
uniquely harmful to the Company. Executive further acknowledges that the cash
severance payments made pursuant to Section 2(a) are not required by the terms
of any existing agreement and are being made by the Company in exchange for the
non-competition and non-solicitation covenants contained in this Section 9.
(b) Definitions:
(i) Noncompetition and Nonsolicitation End Date shall mean:
(1) December 31, 2008;
(2) If a court determines that the definition in Section
9(b)(i)(1) makes the covenant in Section 9(a) too broad to be enforceable, then
Noncompetition and Nonsolicitation End Date shall mean December 31, 2007;
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(3) If a court determines that the definitions in Section
9(b)(i)(1) and (9)(b)(i)(2) each make the covenant in Section 9(a) too broad to
be enforceable, then Noncompetition and Nonsolicitation End Date shall mean
December 31, 2006.
(ii) Prohibited Entity shall mean the most expansive of the
following definitions:
(1) Any company that is engaged in outsourced contract
semiconductor assembly and test services throughout the world. Executive
specifically acknowledges and agrees that the scope of the Company's business is
worldwide and that therefore this definition of Prohibited Entity is
appropriate;
(2) If a court determines that the definition in Section
9(b)(ii)(1) makes the covenant in Section 9(a) too broad to be enforceable, then
Prohibited Entity shall mean any company engaged in contract semiconductor
assembly and test services in the United States. Executive specifically
acknowledges and agrees that the scope of the Company's business is throughout
the United States and that therefore this definition of Prohibited Entity is
appropriate.
(3) If a court determines that the definitions in Sections
9(b)(ii)(1) and 9(b)(ii)(2) each make the covenant in Section 9(a) too broad to
be enforceable, then Prohibited Entity shall mean any of the following
companies, each of which Executive specifically acknowledges and agrees is a
direct competitor of the Company:
a) Advanced Semiconductor Engineering, Inc.,
b) ASE Test Limited,
c) ASAT Ltd.,
d) STATS ChipPAC Ltd., and
e) Siliconware Precision Industries Co., Ltd.
(c) Until the Noncompetition and Nonsolicitation End Date, Executive
separately agrees not to solicit any employees of the Company to leave the
employment of the Company or to solicit business from or enter into a consulting
or employment relationship with any key customer of the Company, including but
not limited to:
(1) Toshiba
(2) Intel
(3) Samsung
(4) IBM
(5) Altera
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(6) Sony
(7) Texas Instruments,
(8) Agilent Technologies,
(9) Freescale Semiconductor, and
(10) LSI Logic
10. Confidentiality of Settlement Information. Until this Agreement is
publicly filed with the U.S. Securities and Exchange Commission, Executive
agrees to use his best efforts to maintain in confidence the existence of this
Agreement, the contents and terms of this Agreement, and the consideration for
this Agreement (hereinafter collectively referred to as "Settlement
Information"). Executive agrees to take every reasonable precaution to prevent
disclosure of any Settlement Information to third parties, and agrees that there
will be no publicity, directly or indirectly, concerning any Settlement
Information. Executive agrees to take every precaution to disclose Settlement
Information only to those attorneys, accountants, governmental entities, and
family members who have a reasonable need to know of such Settlement
Information.
11. Good Conduct. Executive agrees he will not act in any manner that might
damage the business of the Company. Executive agrees that he will not counsel or
assist any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so. Executive agrees to cooperate in providing
assistance and information to the Company as reasonably requested in the future
and the Company agrees that it shall pay Executive at rate of $2,500 per day in
exchange for such cooperation.
12. Non-Disparagement. Executive agrees to refrain from any defamation,
libel or slander of the Company and its respective officers, directors,
employees, investors, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corporations, and assigns or tortuous
interference with the contracts and relationships of the Company and its
respective officers, directors, employees, investors, shareholders,
administrators, affiliates, divisions, subsidiaries, predecessor and successor
corporations, and assigns.
13. No Admission of Liability. Executive understands and acknowledges that
this Agreement constitutes a compromise and settlement of disputed claims. No
action taken by the Company, either previously or in connection with this
Agreement shall be deemed or construed to be (a) an admission of the truth or
falsity of any claims heretofore made or (b) an acknowledgment or admission by
the Company of any fault or liability whatsoever to the Executive or to any
third party.
14. Costs. The Parties shall each bear their own costs, expert fees,
attorneys' fees and other fees incurred in connection with this Agreement.
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15. Arbitration. The Parties agree that any and all disputes arising out
of, or relating to, the terms of this Agreement, their interpretation, and any
of the matters herein released, shall be subject to binding arbitration in
Maricopa County, Arizona before the American Arbitration Association under its
National Rules for the Resolution of Employment Disputes. The Parties agree that
the prevailing party in any arbitration shall be entitled to injunctive relief
in any court of competent jurisdiction to enforce the arbitration award. The
Parties agree that the prevailing party in any arbitration shall be awarded its
reasonable attorneys' fees and costs. THE PARTIES HEREBY AGREE TO WAIVE THEIR
RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR
JURY. This section will not prevent either party from seeking injunctive relief
(or any other provisional remedy) from any court having jurisdiction over the
Parties and the subject matter of their dispute relating to Executive's
obligations under this Agreement and the agreements incorporated herein by
reference.
16. Authority. Executive represents and warrants that he has the capacity
to act on his own behalf and on behalf of all who might claim through him to
bind them to the terms and conditions of this Agreement.
17. No Representations. Executive represents that he has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Agreement. Neither party has
relied upon any representations or statements made by the other party hereto
which are not specifically set forth in this Agreement.
18. Severability. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
19. Entire Agreement. This Agreement and the Stock Options represent the
entire agreement and understanding between the Company and Executive concerning
Executive's retirement from the Company, and supersede and replace any and all
prior agreements and understandings concerning Executive's relationship with the
Company and his compensation by the Company.
20. No Oral Modification. This Agreement may only be amended in writing
signed by Executive and the Chief Executive Officer of the Company.
21. Governing Law. This Agreement shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of Arizona.
22. Effective Date. This Agreement is effective eight days after it has
been signed by both Parties, provided that it is not revoked by Executive during
period between signing and the Effective Date.
23. Counterparts. This Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the
undersigned.
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24. Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the Parties hereto, with the full intent of releasing all claims. Each Party
acknowledges that:
(a) He has read this Agreement;
(b) He has been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of his own choice or that he has
voluntarily declined to seek such counsel;
(c) He understands the terms and consequences of this Agreement and of
the releases it contains;
(d) He is fully aware of the legal and binding effect of this
Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective
dates set forth below.
AMKOR TECHNOLOGY, INC.
Dated: December 22, 2005 By: /s/ Xxxxx Xxx
------------------------------------
Xxxxx Xxx
Chairman and Chief Executive Officer
Dated: December 22, 2005 /s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
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EXHIBIT A
AMKOR TECHNOLOGY, INC.
GRANT DATE TYPE NUMBER OF SHARES
---------- ---- ----------------
5/1/1998 Incentive Stock Option 36,360
11/9/1998 Incentive Stock Option 10,308
11/9/1998 Non-Qualified 37,427
5/7/1999 Non-Qualified 100,000
6/16/2003 Non-Qualified 7,692
6/16/2003 Non-Qualified 350,000
6/16/2003 Non-Qualified 144,337
6/16/2003 Non-Qualified 6,724
6/16/2003 Non-Qualified 5,663
6/16/2003 Non-Qualified 217,308
6/16/2003 Non-Qualified 168,276
6/26/2003 Non-Qualified 225,000
11/12/2004 Non-Qualified 60,000
---------
1,369,095
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