CONFIDENTIAL AMENDED AND RESTATED DISTRIBUTORSHIP AGREEMENT

Confidentiality Agreement

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CREE INC | SUMITOMO CORPORATION,

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Title: CONFIDENTIAL AMENDED AND RESTATED DISTRIBUTORSHIP AGREEMENT
Governing Law: New York Date: 6/1/2005
Industry: SEMICO Sector: TECHNO

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Amended and Restated Distributorship Agreement

Exhibit 10.1

CONFIDENTIAL

AMENDED AND RESTATED DISTRIBUTORSHIP AGREEMENT

THIS AMENDED AND RESTATED DISTRIBUTORSHIP AGREEMENT (the “Agreement”) is made and entered into as of the 25th day of May, 2005, to be effective as of the Effective Date, by and between CREE, INC., a corporation organized and existing under the laws of the State of North Carolina, U.S.A., having its principal place of business at 4600 Silicon Drive, Durham, North Carolina 27703 (“Manufacturer”), SUMITOMO CORPORATION, a corporation organized and existing under the laws of Japan, having its principal place of business at [***], Tokyo 104-8610, Japan (“Distributor”) and Sumitomo Corporation of America (“SCOA”), a wholly-owned subsidiary of Sumitomo organized under the laws of State of New York and having its principal place of business at [***]

Recitals

WHEREAS,

(A)

Manufacturer and Distributor previously entered into an Amended and Restated Distributorship Agreement dated as of the 14^th day of May, 2004 (the “Distributorship Agreement”); and

(B)

Manufacturer and Distributor previously entered into a letter agreement dated as of the 12th day of July, 2004 (the “First Letter Agreement”) amending the Distributorship Agreement; and

(C)

Manufacturer, Distributor and SCOA previously entered into another letter agreement dated as of the 10th day of September, 2004 (the “Second Letter Agreement”) further amending the Distributorship Agreement and the First Letter Agreement (the First Letter Agreement and Second Letter Agreement being collectively referred to hereinafter as the “Letter Agreements” and the Distributorship Agreement and the Letter Agreements being collectively referred to hereinafter as the “Existing Agreements”); and

(D)

Manufacturer and Distributor desire to amend and restate the Existing Agreements to reflect and record certain matters with respect to their long-standing and strategic relationship; and

(E)

SCOA is a party to this Agreement solely for the purpose of entering into Individual Contracts for the purchase of LED Products from Manufacturer pursuant to Sections 7.1 and 7.2 below.

NOW, THEREFORE, the parties hereto, in consideration of the premises, covenants and undertakings herein contained, mutually agree as follows:

1.	DEFINITIONS

1.1.

For purposes of this Agreement, the capitalized terms defined below and elsewhere in this Agreement have the meanings so defined, and such definitions apply to both singular and plural forms:


Affiliate:		with respect to a person, any other person that controls, is controlled by, or is under common control with the named person, whether directly or through one or more intermediaries, where “control” means possession of the power to direct the management, operations or policies of the controlled person through stock ownership, contract or other arrangements.

Annual MPC:		Distributor’s annual minimum purchase commitment as defined in Section 9.1.

[***]

Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.


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Amended and Restated as of May 25, 2005

CONFIDENTIAL


ATMI:		Advanced Technology Materials, Inc.

Average Exchange Rate:		as defined in Section 8.5 (b).

Bank:		as defined in Section 8.5 (b).

Base Rate:		as defined in Section 8.5 (b).

Chip Schedule:		as defined in Section 7.1(a)

[***]:		as defined in Section 8.7(a).

[***]:		as defined in Section 12.2.

Distributor:		as defined in Preamble.

Distributorship Agreement:		as defined in Recitals.

Effective Date:		the 27^th day of June, 2005.

Execution Date:		the 25 day of May, 2005.

Existing Agreements:		as defined in Recitals.

Firm Commitment Portion:		as defined in Section 7.3.

Firmed-Up Order:		as defined in Section 7.1(a).

First Letter Agreement:		as defined in Recitals.

FY06:		2006 fiscal year of Manufacturer.

FY07:		2007 fiscal year of Manufacturer.

Individual Contract:		as defined in Section 7.1.

Inventory:		as defined in Section 7.4.

Inventory Cap:		as defined in Section 9.3.

Letter Agreements:		as defined in Recitals.

Liaison Office/ Cree Japan:		the representative office maintained by Manufacturer, through an Affiliate, in the Tokyo, Japan area.

LED Products:		visible or ultraviolet light emitting diodes (LEDs) in die form that are fabricated by or for Manufacturer using Group III-nitride materials on silicon carbide wafers and that Manufacturer makes

[***]

Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.


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		generally available to customers for purchase during the term of this Agreement. As used herein, “generally available” includes LED Products custom manufactured for customers of Distributor but excludes LED Products custom manufactured for other customers.

LED Product Forecast:		as defined in Section 7.3.

LED Resale Price:		as defined in Section 8.1(a).

[***]:		as defined in Section 8.6(b).

Manufacturer:		as defined in Preamble.

Master Agreement:		as defined in Section 7.1(c).

Material Schedule:		as defined in Section 7.1(b)

New Products:		as defined in Section 9.3.

[***] Products		LED Products [*] by [*] Manufacturer that have been designated by Manufacturer to Distributor in writing in accordance with Section 7.1(c).

[***] Product Resale Price:		as defined in Section 8.2(b).

[*] Reserve ([*]):		as defined in Section 8.6(a).

[***]:		as defined in Section 8.6(a).

[*] Reserve ([*]):		as defined in Section 8.7(a).

[***]:		as defined in Section 8.7(a).

Products:		LED Products, [***] Products and Wafer Products collectively, except where the term applies in context only to a specific type of Product.

Quarterly MPC:		Distributor’s quarterly minimum purchase commitment in each fiscal quarter of Manufacturer as defined in Section 9.1.

SCOA:		as defined in Preamble.

Second Letter Agreement:		as defined in Recitals.

Term:		the term of this Agreement as defined in Section 2.2.

Territory A:		the country of Japan.

Territory B:		the countries of the Republic of China (Taiwan), Singapore and the Philippines.

[***]

Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.


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Territory C:		the countries of [***], the Republic of Korea, the Republic of Indonesia, Thailand and Malaysia.

Territory:		Territory A, Territory B and Territory C, collectively.

Wafer Order:		as defined in Section 7.1(b)

Wafer Products:		collectively “SiC Wafer Products” and “GaN Wafer Products.” “SiC Wafer Products” means silicon carbide wafers, either without epitaxial layers or with only silicon carbide epitaxial layers deposited thereon, made by or for Manufacturer and that Manufacturer makes generally available to customers for purchase during the term of this Agreement. “GaN Wafer Products” means gallium nitride wafers, either with or without epitaxial layers deposited thereon, and hetero substrates, such as silicon carbide, sapphire or silicon, with one or more AIII nitride epitaxial layers deposited thereon, made by or for Manufacturer and that Manufacturer makes generally available to customers for purchase during the term of this Agreement. As used herein, “generally available” includes Wafer Products custom manufactured for customers of Distributor but excludes Wafer Products custom manufactured for other customers. For avoidance of doubt, Wafer Products do not include any [*] by [*] Manufacturer.

Wafer Retail Price:		as defined in Section 8.3(b).

[***]:		[***] as defined in Section 7.3.

1.2.

For purposes of this Agreement, “person” shall be construed broadly to mean any individual, corporation, partnership or other legal entity, and the terms “fiscal quarter” and “fiscal year” shall refer to the respective accounting periods used by Manufacturer.

TERM

2.1.

Except as expressly provided herein, the amended and restated terms and conditions in this Agreement shall not become effective until the Effective Date. After the Execution Date but prior to the Effective Date, certain terms and conditions expressly identified herein shall become effective with respect to Products to be shipped after the Effective Date in order to facilitate the transition between the provisions of this Agreement and the Existing Agreements. This Agreement will be legally binding on the parties when executed on behalf of both parties notwithstanding the later Effective Date. Upon the Effective Date, this Agreement shall supersede and replace the Existing Agreements with respect to Products to be shipped after the Effective Date, but the Existing Agreements shall continue to apply with respect to Products shipped prior to the Effective Date.

2.2.

Subject to the provisions of Sections 8.7(a) and 9.2, the term of this Agreement (the “Term”) shall extend for a period of five (5) fiscal years commencing June 23, 2002 and ending June 24, 2007, unless sooner terminated in accordance with the provisions of this Agreement.

2.3.

The parties acknowledge and agree that neither is obligated to continue its business relationship with the other after the effective date of any termination of this Agreement or the expiration date if this Agreement is not renewed.

[***]

Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.


Distributorship Agreement		Page 4

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CONFIDENTIAL

3.	DESIGNATION

3.1.

Distributor will serve as the strategic partner and exclusive distributor of Manufacturer for distribution of Products in Territory A during the Term of this Agreement. Section 4.1 below defines the exclusive nature of Distributor’s appointment in Territory A.

3.2.

Subject to the provisions in Section 4.2 below, Distributor will serve as a non-exclusive distributor for distribution of Products in Territory B and Territory C during the Term of this Agreement.

3.3.

Notwithstanding any language herein to the contrary, unless extended by written agreement of the parties, Distributor’s appointment as a distributor of GaN Wafer Products in the Territory is [***]. In connection with the determination of the [***] for [***] (as provided in Section [***] below), the parties in good faith will discuss [***] and shall mutually agree upon the terms for [***].

4.	EXCLUSIVITY; NON-EXCLUSIVE TERRITORIES

4.1

During the Term of this Agreement and subject to Distributor’s compliance with its obligations in Section 5 below, except as otherwise provided in Sections 8.3(d) and 9.4 below, Manufacturer will not, without Distributor’s written consent, directly or through any Affiliate sell Products to any person other than Distributor for shipment by Manufacturer or its Affiliates into Territory A. This Section 4.1 shall not be construed to restrict Manufacturer or its Affiliates from selling or authorizing the sale of Products to persons outside Territory A.

4.2

Distributor’s appointment in Territory B and Territory C is non-exclusive. Distributor shall not advise any customer or potential customer in such territories that it may only purchase Products from Distributor. Customers in such territories shall be free to choose to purchase Products directly from Manufacturer or from another distributor, as applicable. With respect to marketing, sales and deliveries by Distributor in Territory C, Distributor may [***]. Subject to any applicable export restrictions, Distributor may request that Manufacturer [***]. If the customer prefers to purchase Products directly from Manufacturer, the provisions of Section 10 will apply if Manufacturer requests Distributor’s assistance in connection with such transaction.

5.	DUTIES OF DISTRIBUTOR

5.1

Distributor agrees to perform and comply with the following during the Term of this Agreement:

(a)

It will use its best efforts, to the fullest extent commercially reasonable, to promote the sale of [***] Products within the Territory through its sales and merchandising programs in order to obtain and sustain the maximum sales of [***] Products in the Territory and will solicit orders for and sell [***] Products within the Territory.

[***]

Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.


Distributorship Agreement		Page 5

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(b)

Distributor will furnish Manufacturer with reports on the following matters in writing not less frequently than the period shown, and promptly upon request at such other times as Manufacturer may request in writing, with the report to be delivered to Manufacturer and/or the Liaison Office as indicated below unless otherwise requested by Manufacturer:


Report	Frequency	Delivered To
General market situation for Products in the Territory	[***]	Cree Japan

[***]-month forecast of anticipated sales of Products	[***]	Cree Japan

Inventory on hand, including volume by Product type and assigned value	[***]	Cree Japan

Summary of meetings with customers and prospective customers, including current and anticipated Product applications by customer and quantity requirements	[***]	Cree Japan

Summary of significant customer inquiries	[***]	Cree Japan

Information, to the extent known, regarding the activities of competitors with respect to Products in the Territory	[***]	Cree Japan

(c)

In addition, in its role as the strategic partner of Manufacturer for distribution of Products in Territory A, Distributor will cooperate with Manufacturer and the Liaison Office to establish, to the fullest practicable extent, a “transparent interface” between Manufacturer and customers for Products such that the Liaison Office is kept fully informed of all developments relating to customers for Products and that the Product sales and marketing efforts of Distributor are coordinated with the efforts of the Liaison Office. Without limiting the foregoing, upon request Distributor will make available to the Liaison Office copies of all quotes, invoices, customer correspondence and other records relating to the sale and marketing of Products in Territory A and in Territory C.

(d)

Distributor will at all times conduct its affairs under this Agreement in accordance with the highest standards of business ethics and propriety. It will comply with all applicable laws and regulations in performing its obligations under this Agreement and will apply for and obtain (at its own expense) all licenses and approvals necessary to perform its obligations hereunder except as provided in Section 12.2.

(e)

Without Manufacturer’s prior written consent, neither Distributor nor its directors, officers, agents or employees shall at any time during the Term of this Agreement, directly or indirectly, (i) establish any Product distribution branch or maintain any Product distribution depot outside the Territory, or (ii) manufacture, distribute, represent, sell or otherwise handle any products that, in the reasonable opinion of Manufacturer, [***], including without limitation [***]; provided that the foregoing limitations as provided in this Section 5.1(e) will only apply to [***].

(f)

Distributor will not market, sell or otherwise distribute Products purchased under this Agreement outside the Territory or market, sell or otherwise distribute [***] Products to [***] for such [***] Products, except as may be authorized by Manufacturer in writing from time to time in Manufacturer’s sole discretion. Distributor will not, without Manufacturer’s prior written consent, which consent will not be unreasonably withheld, sell or otherwise distribute Products purchased under this Agreement to a person other than an end user customer. Notwithstanding any language herein to the contrary, the parties hereto confirm that [***].

[***]

Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.


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CONFIDENTIAL

(g)

Distributor will appoint at least one employee within its organization to coordinate the performance of its responsibilities under this Agreement.

(h)

Distributor shall be responsible for obtaining any required licenses, permits and other governmental approvals necessary for the export of Products from the United States or such other country from where Products are shipped and their import into the Territory, except as provided in Section 12.2, and will otherwise comply with all export and import laws and regulations applicable to its activities under this Agreement.

6.	DUTIES OF MANUFACTURER

6.1