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EXHIBIT 10.12
LETTER AGREEMENT
THIS LETTER AGREEMENT is made and entered into effective January 1, 1997,
between Adaptec, Inc. ("Adaptec"), a California corporation with its principal
place of business at 000 Xxxxx Xxxxxxxx Xxxx., Xxxxxxxx, Xxxxxxxxxx 00000,
Lucent Technologies Inc. ("Lucent"), a Delaware corporation, acting through its
Microelectronics group, having an office at Xxx Xxx Xxx, Xxxxxxxx Xxxxxxx, Xxx
Xxxxxx 00000 and Lucent Technologies Microelectronica Espana S.A.
("Lucent-Spain"), a Spanish company with offices at Poligono Industrial, Tres
Xxxxxx, Xxxx Xxxxx, 00000 Xxxx Xxxxxx, Xxxxxx, Xxxxx (the "Letter Agreement").
-WITNESSETH-
WHEREAS, Lucent and Adaptec entered into a Consignment Agreement effective
January 10, 1996 (the "Consignment Agreement"); and
WHEREAS, pursuant to the Consignment Agreement, Adaptec purchased and consigned
to Lucent certain EQUIPMENT which has been installed in the Madrid I Clean Room;
and
WHEREAS, at the request of Adaptec, Adaptec and Lucent have agreed to terminate
the Consignment Agreement; and
WHEREAS, Adaptec desires to sell the EQUIPMENT and Lucent-Spain has agreed to
purchase the EQUIPMENT; and
WHEREAS, the parties wish to set forth the terms and conditions pursuant to
which Adaptec will sell the EQUIPMENT to Lucent-Spain and Lucent-Spain will
purchase the EQUIPMENT.
NOW, THEREFORE, in consideration of the mutual promises made herein and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties agree as follows:
All terms, unless defined herein, have the meaning assigned to them in the
Consignment Agreement.
1. The Consignment Agreement is terminated effective as of the date of this
Letter Agreement.
2. The EQUIPMENT will be sold by Adaptec to Lucent-Spain in two portions, namely
List A Equipment and List B Equipment as outlined in Attachment A hereto.
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3. Adaptec shall separately invoice Lucent -Spain for List A Equipment and List
B Equipment in 1997.
4. Lucent-Spain shall pay the invoiced amount for List A Equipment within thirty
(30) days of receipt of such invoice. Adaptec shall invoice Lucent-Spain for
List B Equipment in January 1998 and Lucent-Spain shall pay the invoiced amount
within thirty (30) days of receipt of such invoice. Provided however, that
Lucent-Spain has the option to request Adaptec to invoice Lucent-Spain earlier.
5. With respect to List A Equipment the amount invoiced shall be the price
actually paid by Adaptec for such List A Equipment plus any transportation costs
and duties billed to Adaptec and actually paid by Adaptec.
6. With respect to List B Equipment the amount invoiced shall be 90% of the
price actually paid by Adaptec for such List B Equipment plus any transportation
costs and duties billed to Adaptec and actually paid by Adaptec.
7. Lucent shall provide Adaptec with a list of the serial number and/or shop
identification number for each of the EQUIPMENT.
8. Lucent-Spain shall be responsible for all installation charges related to the
installation of the EQUIPMENT.
9. On receipt of payment for the List A Equipment all title, rights and any
interest whatsover that Adaptec has or had in the EQUIPMENT, win end and be
transferred to Lucent-Spain, provided however, that Adaptec will retain a
purchase money security interest in the List B Equipment (and any equivalent
rights of a secured creditor as may be available and applicable under Spanish
law) until payment in full therefor is received. Both Lucent and Lucent-Spain
agree that they will reasonably cooperate with Adaptec in preparing and filing
appropriate documents with government. agencies and taking such other actions as
may be necessary or desirable to preserve, perfect and enforce such security
interest of Adaptec. Any expenses, fees or any other costs related to the
perfecting and enforcing of any such security interest shall be borne entirely
by Adaptec.
10. Adaptec represents that on each of the date of the purchase by Lucent-Spain
of List A Equipment and List B Equipment, (i) the EQUIPMENT shall be on that
date paid for in full, (ii) Adaptec has full title and ownership of the
EQUIPMENT, (iii) no third party has any ownership right, title, interest, claim
or lien on any of the EQUIPMENT and (iv) Adaptec has the right and authority to
sell such EQUIPMENT to Lucent-Spain.
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11. Adaptec represents that to the best of its knowledge the amounts invoiced
for the EQUIPMENT are the actual amounts paid for such EQUIPMENT minus any
amounts that Adaptec received as refunds, credits or any other form of payments.
12. In consideration of Lucent-Spain purchasing the EQUIPMENT from Adaptec,
Lucent-Spain shall have the right to use the EQUIPMENT as of January 1, 1997,
without paying Adaptec any usage fee or any other type of compensation as a
result of such usage. Risk of loss shall be borne by Lucent-Spain as of January
1, 1997.
13. Adaptec agrees to pass on to Lucent-Spain the ability to exercise, if
necessary, any warranty rights Adaptec may have in the EQUIPMENT. Adaptec agrees
to take the necessary steps to ensure this.
14. The validity, construction and performance hereof shall be governed by the
substantive law, but not the conflicts of law rules, of the State of New York.
15. Lucent and Adaptec covenant, warrant and represent that their respective
representatives signing this Agreement have full power and proper authority to
sign this Agreement and so bind the parties. Lucent further covenants, warrants
and represents to Adaptec that Lucent is the successor to all of the rights and
interests of AT&T Corp. under the Consignment Agreement and is fully empowered
to execute this Letter Agreement and terminate the Consignment Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
ADAPTEC, INC. LUCENT TECHNOLOGIES INC.
By: /s/ XXX XXXXXXXX By: /s/ XXXX X. XXXXXX
------------------------ -----------------------------
Name: Xxx Xxxxxxxx Name: Xxxx X. Xxxxxx
------------------------ -----------------------------
Title: Corp. VP Operations Title: Customer Satisfaction &
------------------------ Business Development
Vice President
Date: 3/18/97 Date: 3/12/97
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LUCENT TECHNOLOGIES
MICROELECTRONICA ESPANA S.A.
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
------------------------
Title: Managing Director
------------------------
Date: 3/13/97
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APPENDIX A
EQUIPMENT LIST A (PAYMENT DUE IN 1997)
ADAPTEC
SUPPLIER EQUIPMENT ESE # P.O. NO. QUANTITY PAID
-------- --------- ----- -------- -------- ----
Nikon I-Line Body 11 89-023 MA35641 1 $ 2,895,761.90
Varian M2I Cluster Tool 58-023 MA35642 1 $ 2,744,070.00
XXX TCP 9606 Etcher 12-062 MA35653 1 $ 1,671,642.39
KLA 2132 Insp. system 12-026 MA35663 1 $ 1,760,987.50
TEL Developer 17-021 MA35664 1 $ 692,655.00
Thermawave Optiprobe 2600 12-025 MA35656 1 $ 396,930.00
Gasonics Aura-1000/1 12-060 MA35635 1 $ 182,632.80
Xxxxxx Xxxxxxxx X/X XX00000 1 $ 129,901.00
Xxxxxxx TCP 9606 Pumps 12-062 MA35630 4 $ 85,958.00
Xxxxxxx M2I Pumps 58-023 MA35643 4 $ 79,576.00
Optilas M2I Gas Analyzer 58-023 MA35644 5 $ 67,065.92
Leybold Aura 1000/1 Pump 12-060 MA35637 1 $ 32,173.29
TOSOH Targets 58-023 MA35677 1 $ 21,422.69
VDA TCP 9606 Transformer 12-062 MA35631 1 $ 6,336.00
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Total $10,767,112.49
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Page 2 of 2
APPENDIX A (continued)
EQUIPMENT LIST B (Payment Due in 1998)
SUPPLIER EQUIPMENT ESE # P.O. NUMBER ADAPTEC PAID $ 1998 (90%)
-------- --------- ----- ----------- ------------ ------------
Applied Matls Oxide AMI 5000 12-063 MA35640 1 $ 2,455,538.20 $ 2,209,984.38
Applied Matls AMI PETEOS 58-030 MA35645 1 $ 1,871,664.87 $ 1,684,498.38
KLA 2132 Insp.System 12-031 MA35729 1 $ 1,760,987.50 $ 1,044,888.75
AST RTP 028-021 MA35646 1 $ 768,240.00 $ 691,416.00
Xxxxx Int. Furnace Bank 04-005 MA35648 1 $ 758,724.00 $ 682,851.60
BIORAD Q6+ Retrofit 77-016 MA35650 1 $ 702,675.12 $ 632,407.61
TEL Developer 17-022 MA35664 1 $ 692,655.00 $ 623,389.50
Gasonics AE-2001 Etcher 12-061/12-038 MA35632 2 $ 679,721.00 $ 611,748.90
TEL Scrubber 64-031 MA35760 1 $ 509,743.77 $ 458,769.39
LEICA INS2000 Insp.System 77-017 MA35686 1 $ 425,724.10 $ 383,151.69
Semitool WSST 31-015 MA35649 1 $ 378,815.00 $ 340,933.50
Gasonics Aura 1000/1 12-066 MA35636 1 $ 181,032.90 $ 162,929.61
S. Gobain/Norton Process Tubes 04-005 MA35654 4 $ 113,157.00 $ 101,841.30
Leybold Aura 1000/1 Pump 12-066 MA35638 1 $ 32,173.29 $ 28,955.96
Leybold AE2001 PuMps 12-061/12-038 MA35633 2 $ 64,346.58 $ 57,911.92
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Total $11,395,198.33 $10,255,678.50