Exhibit 10.72
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EXCLUSIVE SUPPLY
AGREEMENT
THIS EXCLUSIVE SUPPLY AGREEMENT
(“Agreement”) is made and entered into effective as of
the 14th day of February, 2005, by and between Jesperator AB
(“Jesperator”), an entity organized under the laws of
Sweden having its address at Box 255, 178 23 Ekerö, Sweden,
with telefax +46 8 560 34354, and Charles & Colvard, Ltd.
(“C&C”), a North Carolina corporation having its
address at 300 Perimeter Park, Suite A, Morrisville, North Carolina
27560, telefax +1 919 468 5052.
Recitals
WHEREAS, Jesperator is engaged in
the business of developing, manufacturing and selling silicon
carbide material (SiC) for various applications and desires to
supply C&C with SiC; and
WHEREAS, C&C manufactures and
markets gemstones fabricated from SiC and desires to purchase SiC
from Jesperator; and
WHEREAS, Jesperator and C&C
desire to enter into an Exclusive Supply and Loan Agreement for
Jesperator to supply C&C with SiC and C&C agrees to
purchase SiC from Jesperator as provided herein;
NOW, THEREFORE, the parties hereto,
in consideration of the foregoing premises and the covenants and
undertakings herein contained, mutually agree as
follows:
1. Exclusivity. During the Initial Term and any
Additional Term (as defined below) of this Agreement, Jesperator
(including any affiliates of Jesperator) shall not sell SiC in any
form to any customer other than C&C if Jesperator has knowledge
or has reason to believe that such customer, or its customers,
intend to use such material for the purpose of fabricating,
distributing or selling faceted jewels or gemstones. Upon
termination of this Agreement pursuant to Section 4.3 hereof due to
a material breach by Jesperator, Jesperator (including any
affiliates of Jesperator) agrees that for the period equal to the
Initial Term and the Additional Term, Jesperator shall not sell SiC
to any customer if Jesperator has knowledge or has reason to
believe that such customer, or its customers, intend to use such
material for the purpose of fabricating, distributing or selling
faceted jewels or gemstones. This condition, however, is only valid
in case C&C continues to stay in the business of fabricating,
distribution and selling faceted jewels or gemstones made from SiC
and is only valid to the extent it is not in violation of any
applicable law in Sweden or in any other relevant
jurisdiction.
2. Purchase and Sale of SiC
2.1 Minimum Purchase and Sale
Quantities. (a) Minimum Quantities. C&C shall purchase from
Jesperator and Jesperator shall sell to C&C SiC meeting the
specifications for useable material set out on Exhibit A, in the
minimum quantities (“Minimum Quantities”) and at the
prices set out on Exhibit B during the periods set forth therein.
(b) Minimum Quantities Subject to Capacity. If and to the extent
that Jesperator has the production capacity to deliver up to the
minimum quantities subject to capacity set
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out on Exhibit B (the “Minimum Quantities
Subject to Capacity”), C&C shall purchase from Jesperator
and Jesperator shall sell to C&C such Minimum Quantities
Subject to Capacity of SiC meeting the specifications for useable
material set out on Exhibit A during the periods set forth in
Exhibit B. (c) Minimum Quantities Subject to Capacity Commencing
September 1, 2006. Commencing September 1, 2006, such Minimum
Quantities Subject to Capacity shall, subject to Jesperator’s
production capacity, be amount set forth in Exhibit B. No later
than 90 days prior to the end of each calendar quarter, Jesperator
shall inform C&C of its expected production capacity of SiC
meeting the specifications set forth on Exhibit A for the upcoming
quarter.
2.2 Useable Material
Assessment . Within 10 days of receipt of SiC from Jesperator,
C&C shall grade all SiC received from Jesperator according to
the specifications set out on Exhibit A. C&C shall provide
regular feedback to Jesperator concerning the grading of all SiC.
Upon Jesperator’s request and at Jesperator’s expense,
SiC not meeting the minimum specifications for useable material
shall be returned to Jesperator for analysis. All SiC delivered to
C&C and not returned to Jesperator at its expense shall be the
property of C&C.
3. Loan to Purchase HTCVD Reactor and
Equipment.
3.1 Loan . Concurrent with
the execution of this Agreement and as a condition precedent to its
effectiveness, C&C shall loan to Jesperator the sum of 400,000
USD (the “Loan”), to be used and repaid by Jesperator
in accordance with the terms of this Agreement. The Loan shall not
bear interest.
3.2 Use of Proceeds of the
Loan . Jesperator shall use the proceeds of the Loan to acquire
an HTCVD Reactor (“Reactor”) and equipment to install
and operate Reactor (“Equipment”). If the cost of
Reactor and Equipment exceed 400,000 USD, Jesperator shall be
responsible for such additional purchase price from its own
funds.
3.3 Repayment of the Loan .
Jesperator shall, for deliveries of SiC to C&C made after
December 31, 2005, repay such portion of the Loan as a 35%
deduction of the cash payments invoiced to C&C and actually
paid by C&C, in the aggregate amount up to the 400,000 USD
total of the Loan. Upon the termination of this Agreement
(including additional terms) due to Jesperator’s breach, any
portion of the Loan remaining unpaid shall be immediately due and
payable to C&C. The Loan repayments described above shall be
the only repayments required to be made by Jesperator.
3.4 Default in Repayment .
Upon default by Jesperator in repayment of the Loan, which default
exists on or following June 1, 2006 and is not cured within ninety
(90) days of written notice thereof by C&C to Jesperator,
C&C may declare the total unpaid balance due and payable, or
may, in lieu of further repayment of the loan convert any unpaid
portion of the Loan into equity in Jesperator pursuant to Section
3.5 below.
3.5 Conversion to Equity . In
the event C&C elects to convert the unpaid portion of the Loan
to equity pursuant to Section 3.4 above, a new selected issue of
shares shall be directed to C & C by Jesperator whereby C &
C shall subscribe for such shares and pay the subscription price by
way of setting off in full the unpaid portion of the Loan against
the issue price. The number of shares of Common
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Stock of Jesperator (“Common Stock”)
to be issued shall be calculated according to the following
formula:
Where:
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X =
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number of
shares of Common Stock to be issued
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SO =
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Number of
shares of Common Stock outstanding
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DO =
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Principal
amount of the Loan outstanding
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CV =
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Attributed
equity valuation of Jesperator based upon price in most recent
private placement or the public bid price for the Common Stock at
the end of the month in which such election occurs, if the Common
Stock is publicly traded. If there has been no private placement or
public offering of Common Stock, then CV shall equal 10,000,000
Euro, increased by any capital contribution made into Jesperator
after the date of this Agreement.
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Any election to convert the unpaid
portion of the Loan to equity shall be made by written notice to
Jesperator, delivered no later than the 20 th of a calendar month; the pricing
shall be made on the last business day of such month at
Jesperator’s notice address, and the shares issued as soon
thereafter as practicable.
3.6 Restrictions on
C&C’s Ownership of Equity Following Conversion of
Debt . C&C shall not sell, mortgage, transfer, assign or
otherwise encumber the shares issued as a result of the conversion
of the Loan to Common Stock for a period of two (2) years following
issuance; provided, however, that in the event Jesperator or its
shareholders enters into any merger, stock or asset sale resulting
in the transfer of control in Jesperator or its principal business
during such period, the shares of Common Stock owned by C&C
shall be entitled to participate in any such transaction equally
with other shares of Common Stock. Jesperator or its designated
party may, at Jesperator’s option, repurchase its Common
Stock issued pursuant to Section 3.5 at any time within six months
of such purchase by C&C at a price equal to the full amount of
the unpaid Loan. In addition, C&C agrees that until July 1,
2008, in the event that any shareholder of Jesperator owning more
than 10% of its Common Stock enters into any agreement restricting
the sale or transfer of its shares in connection with a private
placement or public offering of the Common Stock of Jesperator,
shares of the Common Stock owned by C&C shall be subject to the
same restrictions and conditions. Any share certificate for Common
Stock issued to C&C may bear a legend describing these
restrictions.
4. Term and Termination
4.1 Initial Term . The term
of this Agreement shall extend through February 28, 2008 unless
sooner terminated in accordance with Section 4.3 or by written
mutual consent of both parties.
4.2 Additional Term . C&C
shall have an option to extend this Agreement for one (1)
additional term of four (4) years. Such option shall become
exercisable at any time by written notice given no less than ninety
(90) days prior to expiration of the initial term.
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4.3 Termination . In the
event of a material breach by either party under this Agreement of
any obligation to the other party, the other party may terminate
this Agreement upon written notice if the breach is not cured
within ninety (90) days after giving written notice to the party in
breach setting out the nature of the breach in reasonable detail.
Sections 1, 3.3, 3.4, 3.5, 3.6, 4.3, 5.8, 6, 7.7, 7.8 and 7.9 shall
survive any termination of this Agreement.
5. Terms and Conditions of
Purchase
5.1 Standard Orders . C&C
agrees to accept and purchase and Jesperator shall sell and ship
such minimum monthly quantities of SiC in the indicated periods
meeting the specifications as provided in the Agreement. C&C
shall submit a detailed specification of types and quantities at
least 30 days before the start of the month in question
5.2 Additional Orders .
C&C shall submit any additional orders for SiC exceeding the
minimum quantities set forth in Exhibit B at least ninety (90) days
prior to the requested shipping date. Subject to the foregoing,
Jesperator shall use all reasonable efforts to ship the requested
SiC on or before the date requested by C&C in its
order.
5.3 Invoicing and Payment .
Jesperator shall invoice C&C upon shipment of SiC. Payment of
each invoice is due within thirty (30) days after the completion of
the assessment of useable material by C&C as set out in Section
2.2.
5.4 Taxes or Duties . C&C
shall not be liable for any applicable sales, use taxes or other
taxes or duties of any nature imposed by any governmental authority
with respect to purchases of SiC under this Agreement.
5.5 Shipping Expenses . All
shipping expenses, including insurance against loss or damage in
transit, will be invoiced to and paid by Jesperator. Material shall
be shipped by Jesperator F.O.B. to any U.S. location designated by
C&C.
5.6 Force Majeure .
Jesperator shall not be liable for or be in default of this
Agreement for any delay in delivery or failure to perform due to
strike, lockout, riot, war, fire, act of God, act of terrorism or
compliance with any law, regulation, order or direction, whether
valid or invalid, of any governmental authority or instrumentality
thereof. C&C agrees that such delay in delivery or failure to
perform any part of this Agreement shall not be grounds to
terminate or refuse to comply with any provisions hereof and no
penalty of any kind shall be effective against Jesperator for such
delay or failure; provided, however, that if such delay or failure
extends beyond three (3) months from the originally scheduled date
either party may, with written notice to the other, terminate this
Agreement without further liability.
5.7 Warranty . All standard
“material sales grade” products supplied by Jesperator
under this Agreement shall conform to the specifications in Exhibit
A, or as may otherwise be agreed in writing by Jesperator and
C&C. Non-conforming products as defined in Exhibit A shall be
replaced by Jesperator upon return of the defective product, if
such