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EXHIBIT 10.12
THE REGISTRANT HAS REQUESTED THAT CERTAIN PORTIONS OF THIS EXHIBIT
BE GIVEN CONFIDENTIAL TREATMENT. AN UNREDACTED VERSION OF THIS
EXHIBIT HAS BEEN FILED WITH THE COMMISSION.
DEVELOPMENT AGREEMENT, DATED JUNE 6, 1997, BETWEEN
CREE RESEARCH, INC. AND C3, INC.
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REDACTED--OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION AND IS DENOTED HEREIN BY *****
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (the "Agreement") is entered into effective
as of the 6th day of June, 1997 by and between Cree Research, Inc. ("Cree") and
C3, Inc. ("C3").
Recitals
WHEREAS, Cree and C3 are parties to an Exclusive Supply Agreement
dated September 15, 1995 as amended July 10, 1996 wherein Cree and C3 agree,
inter alia, for Cree to supply C3 certain silicon carbide ("SiC") material and
C3 agrees to purchase certain SiC material as provided therein; and
WHEREAS, Cree and C3 desire to enter into an agreement whereby Cree
shall perform certain research and development activities directed to improving
the colorless material available for purchase under the Exclusive Supply
Agreement; and
WHEREAS, Cree and C3 shall simultaneously with the execution of this
Agreement enter into an Amended and Restated Exclusive Supply Agreement (as
thus amended and restated, the "Supply Agreement"); and
WHEREAS, Cree and C3, in entering into this Agreement and the
amendment and restatement of the Supply Agreement, desire to improve and expand
upon their relationship and intend to work together cooperatively with the
objective of developing, as promptly as practicable, both the market for and
commercially viable means of manufacturing colorless silicon carbide material
suitable for gemstones; and
NOW, THEREFORE, the parties hereto, in consideration of the foregoing
premises and the covenants and undertakings herein contained, mutually agree as
follows:
1. Duties of Cree
1.1 Cree agrees to use its best commercially reasonable
efforts to develop a repeatable process, as defined in Section 1.2 (the
"Repeatable Process"), for producing SiC boules which meet the specifications
provided in Section 1.3 (the "Specifications") according to the proposal
attached hereto as Exhibit A.
1.2 The process for producing SiC boules shall be considered
a "Repeatable Process" when ***** crystal grower can produce, in a period of 30
days, at least ***** SiC boules that meet the Specifications.
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COMMISSION AND IS DENOTED HEREIN BY *****
1.3 As used in this Agreement, the term "Specifications"
shall mean the applicable specifications set out in the Specifications and
Timetable Chart below for SiC boules. The specifications require only that each
boule contain a certain volume of SiC material of which a specified percentage
(the "Percentage") is in the comparable diamond color grade range of GHIJ, with
no less than ***** in the GH range, or better, according to the standards
generally accepted by the diamond industry for color using pregraded master
color stones. While the specifications do not require the absence of
inclusions, blemishes or other defects affecting clarity, Cree shall use its
best commercially reasonable efforts to minimize such defects since such
defects can have an impact on the final color grade. The Percentage shall be
measured by observation on the a-axis through "windows" ground onto two sides
of the boule. The parties acknowledge that initially C3 shall promptly provide
feedback to Cree concerning the Percentage, but the parties shall cooperate to
develop a mutually acceptable testing procedure for Cree to determine the
Percentage prior to delivery of the SiC boules to C3. The volume specifications
are expressed in terms of the diameter and height of each boule, but any
equivalent volume is acceptable. The specifications change over time, as the
Date column indicates.
Specifications and Timetable Chart
Date Diameter Height %X-X Grade
---- -------- ------ ----------
1/1/1998 ***** ***** *****
7/1/1998 ***** ***** *****
7/1/1999 ***** ***** *****
7/1/2000 ***** ***** *****
7/1/2001 ***** ***** *****
For each of the specifications above, Cree will provide prompt notice to C3
when Cree has developed a Repeatable Process for producing boules meeting such
specifications.
1.4 Cree will use its best commercially reasonable efforts to
develop by October 31, 1997 a process that yields, an aggregate of at least
***** SiC boules per month each of which has a ***** height of material in the
comparable diamond color grade range of GHIJ, with no less than ***** in the GH
range, or better, according to the standards generally accepted by the diamond
industry for color using pregraded master color stones (it being understood
that while such specifications do not require the absence of inclusions,
blemishes or other defects affecting clarity, Cree shall use its best
commercially reasonable efforts to minimize such defects since such defects can
have an impact on the final color grade).
1.5 Cree agrees to report to C3 the progress of the
development services provided pursuant to this Agreement at monthly progress
meetings. Any "Confidential Information" provided by Cree to C3 at such
meetings or otherwise under this Agreement shall be subject to the terms of
Section 5 of the Supply Agreement.
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1.6 In April of each year, Cree and C3 shall consult on
appropriate development goals for the following year. Before May 1 of each
year, Cree shall submit to C3 a development plan for the next twelve months
beginning July 1 which shall include a budget and a description of the scope of
development activities in a format and with a level of detail similar to the
proposal attached hereto as Exhibit A with the addition of specific tasks and
goals listed on a quarterly basis. Plans submitted under this paragraph shall
set forth Cree's then current expectations for carrying on development
activities under this Agreement for the period covered by the plan, in the
manner determined by Cree to maximize the development progress toward the
year's goals. Cree may substitute resources and personnel from those set out in
the development plans provided that Cree reasonably determines such
substitutions are in the best interest of maintaining or enhancing progress
toward the then current development goals. If Cree succeeds in reaching goals
more quickly than anticipated, Cree will consult with C3 to determine other
development goals important to high yields of gemstone quality SiC material.
1.7 All SiC boules produced pursuant to this Agreement,
including SiC boules that do not meet the Specifications, shall be the property
of C3; provided that the seeds from all SiC boules produced shall remain the
property of Cree and shall be removed and retained by Cree. Cree shall identify
each boule delivered to C3 both by the crystal growth system in which it was
grown and with the date it was produced. Crystal growth systems used in the
development activities shall not be considered as "in use for production" for
purposes of the Supply Agreement. All SiC boules delivered hereunder will be
supplied "AS IS." EXCEPT AS PROVIDED ABOVE IN THIS PARAGRAPH WITH RESPECT TO
IDENTIFICATION OF BOULES, CREE MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO
ANY MATERIAL SUPPLIED HEREUNDER AND DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT OF PATENT OR SIMILAR RIGHTS.
1.8 Cree will use all commercially reasonable efforts to
reduce costs of the development services performed under this Agreement.
1.9 Cree is not obligated to contribute resources to the
development services performed under this Agreement beyond those funded by C3,
as provided in Section 2.1.
1.10 Cree provides no assurances that the development
services performed under this Agreement will be successful.
2. Duties of C3
2.1 Subject to Sections 2.2 and 2.3, C3 shall pay to Cree
each month a development fee equal to the sum of:
(i) The costs of materials and equipment used in the
development activities undertaken pursuant to this Agreement
(including the costs of operating such equipment; with such costs
calculated in the same manner as "loaded manufacturing costs," but,
without reduction for boules that do not meet the "minimum
specifications," as provided in the Supply Agreement);
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COMMISSION AND IS DENOTED HEREIN BY *****
(ii) An amount equal to a ***** gross margin of the costs
described in Section 2.1(i); and
(iii) All research and development labor costs and
outside services costs directly incurred by Cree in providing
development services pursuant to this Agreement; provided, that these
costs shall be charged to C3 on the same basis as Cree charges similar
costs in providing research services pursuant to contracts between
Cree and the U.S. government, using allocations, conditions and
calculations no less favorable to C3 than those available under any
such contract of Cree (it being understood that reductions in costs
from cost-sharing shall not be applicable and that such costs include
certain overhead allocations).
2.2 Subject to Section 2.3 and notwithstanding Section 2.1,
C3 shall pay to Cree each month this Agreement continues in effect a
development fee equal to the lesser of:
(i) The fee calculated pursuant to Section 2.1; or
(ii) The total development budget for the
appropriate month set forth in the proposal attached hereto as Exhibit
A.
2.3 If, prior to January 1, 1998, Cree has not developed a
Repeatable Process for producing SiC boules that meet the Specifications for
January 1, 1998, C3 shall have the option to reduce its funding obligations
herein (that is, the amount applicable under clause (ii) of Section 2.2) by 50%
by giving notice to Cree; provided, that such option, if not sooner exercised
by C3, shall expire at 11:59 p.m. eastern time on January 10, 1998. If C3
exercises its option to reduce its funding obligations pursuant to this Section
2.3, such reduction shall be effective January 1, 1998.
2.4 If, prior to January 1, 1998, Cree produces from *****
crystal growers, in a 30- day period, an aggregate of at least ***** SiC boules
that meet the Specifications for January 1, 1998, C3 shall pay Cree the sum of
two hundred thousand dollars ($200,000) in addition to all other amounts due
under this Agreement.
2.5 Cree shall invoice amounts due from C3 under this
Agreement, and such invoices shall be due and payable within thirty days.
2.6 C3 shall have the right, at its expense, to have an
independent public accounting firm reasonably acceptable to Cree audit Cree's
costs described in Sections 2.1(i) and 2.1(iii) (the "Audited Costs"). The
audit shall be conducted during normal business hours and upon reasonable prior
notice. The accounting firm conducting the audit shall be required to enter
into a mutually acceptable nondisclosure agreement with Cree under which such
firm will be obligated not to disclose any information obtained during the
course of the audit, except that it may disclose to C3 its analysis of the
correctness of the Audited Costs as calculated by Cree. The audit right under
this paragraph may be exercised not more than once during any fiscal year of
Cree and only with respect to costs applicable to the year preceding the
request for an audit. Cree shall provide reasonable assistance to the public
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REDACTED--OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION AND IS DENOTED HEREIN BY *****
accounting firm including, but not limited to, providing a schedule of the
Audited Costs (which shall provide reasonable detail as to the calculation of
the Audited Costs, including but not limited to hours charged by person at
billing rates applicable to each, total material costs, equipment charges and
overhead charges, however such schedule shall not divulge any proprietary or
confidential information of Cree), supporting analyses and any supporting
source documentation reasonably required by the public accounting firm. Such
accounting firm will audit and report to C3 on the schedule of Audited Costs,
but will not divulge to C3 any proprietary or confidential information
(including but not limited to supporting schedules and source documents)
disclosed during the audit process.
3. Term and Termination
3.1 Unless earlier terminated pursuant to Section 3.2 or
Section 5.6, or unless extended by the mutual consent of the parties hereto,
this Agreement shall terminate on June 30, 2002.
3.2 C3 shall have the option to terminate this Agreement
prior to June 30, 2002 under the following conditions:
(i) If, prior to January 1, 1998, Cree does not
produce from ***** crystal growers, in a 30-day period, an aggregate
of at least ***** SiC boules having an average volume of ***** height
and ***** diameter (or equivalent), with a minimum ***** height,
comprised of material in the comparable diamond color grade range of
GHIJ, with no less than ***** in the GH range, or better, according to
the standards generally accepted by the diamond industry for color
using pregraded master color stones (it being understood that while
such specifications do not require the absence of inclusions,
blemishes or other defects affecting clarity, Cree shall use its best
commercially reasonable efforts to minimize such defects since such
defects can have an impact on the final color grade), C3 shall have
the option of terminating this Agreement by giving notice to Cree;
provided, that such option to terminate, if not sooner exercised by
C3, shall expire at 11:59 p.m. eastern time on January 10, 1998.
(ii) During each year beginning July 1, 1998 through
the year beginning July 1, 2001 (the "Subject Years"), if Cree does
not develop by July 1 of each Subject Year a Repeatable Process for
producing SiC boules that meet the initial applicable Specifications
for such Subject Year, C3 shall have the option of terminating the
Agreement by giving notice to Cree; provided, that such termination
option, if not sooner exercised by C3, shall expire at 11:59 p.m.
eastern daylight savings time on the tenth day following the
termination of the applicable deadline for establishing the Repeatable
Process.
(iii) If the price charged to C3 for an SiC boule
ordered under the Supply Agreement as a standard product meeting the
Specifications noted below (as more specifically defined in Section
1.3) exceeds the amount shown for such Specifications below, C3 may
terminate this Agreement at any time by giving notice to Cree:
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REDACTED--OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION AND IS DENOTED HEREIN BY *****
Diameter Height %X-X Grade Price
-------- ------ ---------- -----
***** ***** ***** *****
***** ***** ***** *****
***** ***** ***** *****
***** ***** ***** *****
***** ***** ***** *****
If C3 exercises its option to terminate this Agreement pursuant to Section
3.2(i) or 3.2(ii), Cree shall not be entitled to payment for any work done or
any expenses incurred during the period from the time C3's option to terminate
became exercisable to the time such option is exercised.
4. Intellectual property
4.1 All inventions developed by Cree personnel in performing
work under this Agreement shall be the sole property of Cree.
4.2 Except for inventions related to the bulk growth of
silicon carbide or gallium nitride, C3 shall have a perpetual, irrevocable,
royalty-free, exclusive (including exclusive of Cree) license to use,
manufacture, sell and otherwise practice (including the right to sublicense)
all inventions developed by Cree pursuant to this Agreement for all gemstone
applications and applications for gemological instrumentation; provided that
Cree shall have the right to use and practice the invention to manufacture or
process material for C3 for the licensed applications. References in this
Agreement to "gemstones" are understood to mean "gems" (and vice versa).
5. General.
5.1 This Agreement shall not be amended, modified or altered
except pursuant to a document signed by both parties.
5.2 This Agreement is made in and shall be construed in
accordance with and governed by the laws of the State of North Carolina.
5.3 This Agreement shall inure to the benefit of and be
binding upon the parties and their respective successors and permitted assigns.
5.4 The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
5.5 This Agreement may not be assigned by either party
without the other party's prior written consent, which consent shall not be
unreasonably withheld except that either party may, in its sole discretion,
withhold consent to assignment of this Agreement to anyone other than a
permitted
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assignee of all rights under the Supply Agreement. Any attempted assignment in
violation of this Section 5.5 is void and shall constitute a breach of this
Agreement.
5.6 In the event of a material breach by either party of any
obligation under this Agreement to the other party, the other party may
terminate this Agreement upon written notice if the breach is not cured within
thirty (30) days after giving written notice to the party in breach, setting
out the nature of the breach in reasonable detail; provided, however, that no
cure period shall apply to a termination pursuant to the terms of the Agreement
by C3 pursuant to Section 3.2 (it being understood that the grounds for
termination specified in Section 3.2 do not constitute a breach) or in the
event of a material breach by a party that has breached this Agreement and been
given notice of similar material breaches on two prior occasions. In addition,
this Agreement shall automatically terminate upon any termination of the Supply
Agreement under Section 3.3 thereof.
5.7 Neither party shall issue any press release nor otherwise
make any public announcement concerning this Agreement without the prior
consent of the other party, except as may be required by law. The parties
further agree that the terms of this Agreement shall be treated as Confidential
Information of each other subject to Section 5 of the Supply Agreement;
provided, however, that either party may, upon notice to the other, make such
public disclosures regarding this Agreement as in the opinion of counsel for
such party are required by applicable securities laws or regulations or other
applicable law. Neither party shall use the name of the other party in any
advertising, marketing or similar material without the other party's prior
written consent.
5.8 The parties acknowledge and agree that in the event of a
breach of the Agreement, in addition to any other rights and remedies available
to it at law or otherwise, the parties shall be entitled to seek equitable
relief in the form of a temporary restraining order ("TRO") from any court of
competent jurisdiction; provided however, that in the event a TRO is obtained,
the parties shall request that any hearing on the merits of the dispute shall
be stayed pending arbitration of the dispute as provided in this Section 5.8.
In the event a party seeks a TRO or in the event of any other controversy or
claim (including, without limitation, any claim based on negligence,
misrepresentation, strict liability or other basis) arising out of or relating
to this Agreement or its performance or breach, a party shall give the other
party notice of the dispute, setting out the circumstance in reasonable detail,
and requesting a meeting of the representatives of the parties to attempt to
resolve the dispute or to reduce the scope of the issues subject to dispute.
The chief executive officers of the parties, and such other representatives as
each may desire to have attend, shall meet at a mutually agreeable time within
five business days from the date the meeting request was received and shall
hold such meeting at the offices of the party not requesting the same, or at
some mutually agreeable alternative location. In the event the parties do not
resolve the dispute at such meeting, or any mutually agreed upon adjournment
thereof, the dispute shall be settled exclusively by arbitration in the City of
Raleigh, North Carolina pursuant to the expedited procedures of the Commercial
Arbitration Rules of the American Arbitration Association (other than notice
requirements which shall be as provided in Section 5.9 below and the expedited
procedures for selection of arbitrators which shall be as provided in Sections
14 and 15 of such Rules). There shall be three arbitrators, one selected by
each of C3 and Cree and a third selected by the arbitrators selected by the
parties. The arbitrators shall in no event make any damage award that
contravenes Section 5.10 of this Agreement, but shall order the losing party to
pay all of the charges of the American Arbitration Association for such
arbitration and all of the prevailing party's costs of the arbitration,
including reasonable attorneys' fees. The decision in such
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arbitration shall be final and binding and judgment on any award rendered
therein may be entered in any court having jurisdiction.
5.9 All notices under this Agreement shall be in writing and
addressed to the other party at the address shown below or to such other
addresses as the party may hereafter designate by notice under this Agreement.
All notices so addressed shall be deemed given five (5) days after mailing if
sent by certified mail, return receipt requested, postage prepaid, or when sent
via facsimile if receipt is acknowledged in writing or otherwise when actually
received.
5.10 In no event shall either party be liable to the other
for incidental, consequential or special loss or damages of any kind, however
caused, or any punitive damages.
IN WITNESS WHEREOF, the parties have executed this Agreement by and
through their duly authorized representatives.
CREE RESEARCH, INC. C3, INC.
By:/s/ Xxxxxxx X. Xxxxxxx By:/s/ Xxxx X. Xxxxxx
---------------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx, Vice President Xxxx X. Xxxxxx, President
and Chief Operating Officer
Address for Notices: Address for Notices:
Cree Research, Inc. C3, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000 P.O. Box 13533
Xxxxxx, Xxxxx Xxxxxxxx 00000 Research Xxxxxxxx Xxxx, XX 00000-0000
Attention: President Attention: President
Fax No. (000) 000-0000 Fax No.: (000) 000-0000
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REDACTED--OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION AND IS DENOTED HEREIN BY *****
EXHIBIT A
A Proposal Submitted to:
C3, INC.
X.X. Xxx 00000
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000-0000
entitled:
DEVELOPMENT OF COLORLESS SILICON CARBIDE BOULE MANUFACTURING TECHNOLOGY
by:
CREE RESEARCH, INC.
0000 Xxxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Tel: (000) 000-0000
7 Month Proposed Cost: *****
12 Month Proposed Cost: *****
COMPANY PROPRIETARY
"The information contained in this document is
confidential and proprietary to Cree Research, Inc.
and shall not be duplicated, used or disclosed -- in
whole or in part without the prior written consent
of the Company."
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COMMISSION AND IS DENOTED HEREIN BY *****
Use or disclosure of proposal data is subject to the restriction on the Cover
Page of this proposal.
A. PERSONNEL
*****
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REDACTED--OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION AND IS DENOTED HEREIN BY *****
Use or disclosure of proposal data is subject to the restriction on the Cover
Page of this proposal.
B. BUDGET
NOTE: CREE RESERVES THE RIGHT TO ADJUST THE SPENDING AS IT DEEMS APPROPRIATE IN
ORDER TO MEET TILE OBJECTIVES OF THE DEVELOPMENT PROGRAM AND WITHIN THE TOTAL
AMOUNT OF THE BUDGET.
MONTHLY
STARTING
JUN-97 JUL-97 AUG-97 SEP-97 OCT-97 NOV-97 DEC-97 JAN-98
EQUIPMENT
COSTS
***** ***** ***** ***** ***** ***** ***** ***** *****
***** ***** ***** ***** ***** ***** ***** ***** *****
***** ***** ***** ***** ***** ***** ***** ***** *****
PEOPLE COSTS
C3 ***** ***** ***** ***** ***** ***** ***** *****
Focused
Team
Cree ***** ***** ***** ***** ***** ***** ***** *****
Resources
OTHER PROCESSING
Analytical ***** ***** ***** ***** ***** ***** ***** *****
Wafering ***** ***** ***** ***** ***** ***** ***** *****
Polishing ***** ***** ***** ***** ***** ***** ***** *****
Total ***** ***** ***** ***** ***** ***** ***** *****
EQUIPMENT - The equipment is outlined above and the cost reflects a *****
margin. Please note that *****.
C3 FOCUSED TEAM - This team will be led by ***** and will include *****.
CREE RESOURCES - These resources will support the C3 development effort on a
part time basis. This team will work under the direction of ***** and include
*****. In addition, ***** will provide equipment design support.
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COMMISSION AND IS DENOTED HEREIN BY *****
Use or disclosure of proposal data is subject to the restriction on the Cover
Page of this proposal.
C. MILESTONES/GOALS
The goals and milestones for the proposed program are listed below in Table 1.
5 YEAR DEVELOPMENT PLAN (TABLE 1)
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DATE MILESTONE DEMONSTRATION
---------------------------------------------------------------------------------------------------------------------
January 1, 1998 ***** Diameter Crystal, ***** Height, *****crystals (per the milestone specification)
***** Yield, GHIJ grade material from ***** system in a single month
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July 1, 1998 ***** Diameter Crystal,***** Height, ***** crystals (per the milestone specification)
***** Yield, GHIJ grade material from ***** system in a single month
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July 1, 1999 ***** Diameter Crystal, ***** Height, ***** crystals (per the milestone specification)
***** Yield, GHIJ grade material from ***** system in a single month
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July 1, 2000 ***** Diameter Crystal, ***** Height, ***** crystals (per the milestone specification)
***** Yield, GHIJ grade material from ***** system in a single month
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July 1, 2001 ***** Diameter Crystal, ***** Height, ***** crystals (per the milestone specification)
***** Yield, GHIJ grade material from ***** system in a single month
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