exhibit10_4.htm


     

    
      

    

    Exhibit
10.4

    
       

      CREE,
INC.

       

      EXECUTIVE
CHANGE IN CONTROL AGREEMENT

       

      
        
           

          Cree,
Inc. (the “Company”) and Charles M. Swoboda (“Executive”) entered into an
Employment Agreement effective as of October 13, 2004 (the “Original
Agreement”), which was subsequently amended and restated effective as of August
21, 2007 (the “Existing Agreement”).  This Executive Change in Control
Agreement (the “Agreement”) between Company and Executive is intended to
supersede and replace the Existing Agreement as of the effective date of this
Agreement, which shall be August 18, 2008 (the “Effective
Date”).  Upon full execution and delivery of this Agreement and the
exchange of good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the parties hereby agree to terminate the Existing
Agreement as of the Effective Date, except to the extent provided in Section 19
of this Agreement.

           

          1.    Duties and Scope of
Employment.

           

          (a)    Positions and
Duties.  Executive will continue to serve as Chairman of the
Board, President and Chief Executive Officer, reporting to the Company’s Board
of Directors (the “Board”).  Executive will render such business and
professional services in the performance of his duties, consistent with
Executive’s positions within the Company, as will reasonably be assigned to him
by the Board.  The period Executive is employed by the Company under
this Agreement is referred to herein as the “Employment Term”.

           

          (b)    Board
Membership.  At each annual meeting of the Company’s
stockholders during the Employment Term, the Company will nominate Executive to
serve as a member of the Board.  Executive’s service as a member of
the Board will be subject to any required stockholder approval.  While
a member of the Board, Executive will be permitted to attend all meetings of the
Board and executive sessions thereof, on substantially the same basis as other
members of the Board, except as is prohibited by applicable law or listing
standard.  Notwithstanding the preceding sentence, Executive will not
have the right to attend any portion of a meeting or executive session where the
item of discussion relates to Executive’s employment, including (but not limited
to) his compensation, performance and/or service on the Board.

           

          (c)    Obligations.  During
the Employment Term, Executive will devote Executive’s full business efforts and
time to the Company.  For the duration of the Employment Term,
Executive agrees not to actively engage in any other employment, occupation, or
consulting activity for any direct or indirect remuneration without the prior
approval of the Board (which approval will not be unreasonably withheld);
provided, however, that Executive may, without the approval of the Board, serve
in any capacity with any civic, educational, or charitable organization,
provided such services do not interfere with Executive’s obligations to
Company.

           

          2.    At-Will
Employment.  Executive and the Company agree that Executive’s
employment with the Company constitutes “at-will”
employment.  Executive and the Company acknowledge that this
employment relationship may be terminated at any time, upon written notice to
the other party, with or without good cause or for any or no cause, at the
option either of the Company or Executive.  However, as described in
this Agreement, Executive may be entitled to severance benefits depending upon
the circumstances of termination of his
employment.  Executive

           

           

          
            
              
              

            

            
              
              

              
                

              

            

            
              
              

            

          

           

          agrees
to resign from all positions held with the Company and its affiliates
immediately following the termination of his employment if the Board so
requests.

           

          3.    Term of
Agreement.  This Agreement will have an initial term of one
year commencing on the Effective Date.  On each anniversary of the
Effective Date thereafter, this Agreement will automatically renew for an
additional one-year term unless either party provides the other party with
written notice of non-renewal at least 120 days prior to the date of automatic
renewal.  Notwithstanding any contrary provision in this
Section 3, (i) in the event of the commencement of a tender offer or the
Company and another party enter into a written agreement that contemplates a
transaction, the consummation of either of which would result in a Change in
Control as defined in Subsection (a), (b), or (d) of such definition, this
Agreement will continue until the occurrence of either the resulting Change in
Control or the termination or expiration of the tender offer or the written
agreement without the occurrence of a Change in Control, whichever comes first,
and (ii) in the event a Change in Control (including without limitation a
resulting Change in Control described in the preceding clause (i))occurs during
the Employment Term, this Agreement will continue for not less than twenty-four
(24) months after the date of the Change in Control.

           

          4.    Compensation.

           

          (a)    Base
Salary.  As of the Effective Date, the Company will pay
Executive an annual salary of $572,000.00 as compensation for his services (such
annual salary, as is then effective, to be referred to herein as “Base
Salary”).  The Base Salary will be paid periodically in accordance
with the Company’s normal payroll schedule and practices and be subject to the
usual, required withholdings.  Executive’s salary will be subject to
review by the Compensation Committee of the Board (the “Committee”) not less
than annually, and adjustments will be made in the discretion of the
Committee.

           

          (b)    Incentive
Compensation.  Executive will be eligible to receive incentive
compensation payable for the achievement of performance goals established by the
Committee.  Executive’s annual target incentive award level will be at
least 80% of Base Salary, as determined by the Committee.  The actual
earned incentive, if any, payable to Executive for any fiscal year of the
Company will depend upon the extent to which the applicable performance goal(s)
specified by the Committee are achieved and will be decreased or increased for
under- or over-performance.  For each fiscal year of the Company, the
Committee will endeavor to establish the applicable performance goal(s) no later
than the 90th day of the fiscal year to which the goals
relate.  Executive will have the opportunity to discuss the nature of
such performance goals with the Committee prior to such performance goals being
established.  Executive’s incentive compensation will be subject to
the terms and conditions of the Company’s incentive plan or arrangement
designated by the Committee for this purpose, including but not limited to
continued employment requirements and payment date terms that are designed to
cause the incentive compensation to be exempt from or in compliance with Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the
guidance thereunder (collectively “Section 409A”).

           

          (c)    Long-Term
Incentive.  Executive will be eligible to receive long-term
incentives subject to terms and conditions established by the Committee, the
underlying Cree, Inc. 2004 Long-Term Incentive Compensation Plan or any
successor plan thereto, and the Committee’s

           

           

          
            
              
              

            

            
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          terms
and conditions for the applicable type of award, including vesting criteria such
as continued service or performance objectives.

           

          5.    Employee
Benefits.  Executive will be eligible to participate in all
Company employee benefit plans, policies, and arrangements that are applicable
to other executive officers of the Company in accordance with the terms of such
plans, policies, and arrangements as may exist from time to
time.  Notwithstanding the preceding sentence, Executive’s eligibility
for benefits (other than annual incentive, long-term incentives or other
long-term compensation (whether payable in cash, stock, or otherwise), salary,
or similar items) will be at least as great as that of any other executive
officer of the Company, provided, however, that (a) Executive will be
eligible for any enhanced level of benefits that he approves only upon
subsequent Committee approval, and (b) Executive will not be eligible for
any extraordinary or unusual benefits provided to another executive officer as
part of a negotiation for such executive officer to commence or continue
employment.

           

          6.    Expenses.  The
Company will reimburse Executive for reasonable travel, entertainment, and other
expenses incurred by Executive in the furtherance of the performance of
Executive’s duties hereunder, in accordance with the Company’s expense
reimbursement policy as in effect from time to time.  To the extent
that any such reimbursement does not qualify for exclusion from Federal income
taxation, the Company will make the reimbursement only if the corresponding
expense is incurred during the term of this Agreement and the reimbursement is
made on or before the last day of the calendar year following the calendar year
in which the expense is incurred, the amount of expenses eligible for such
reimbursement during a calendar year will not affect the amount of expenses
eligible for such reimbursement in another calendar year, and the right to such
reimbursement is not subject to liquidation or exchange for another benefit from
the Company.

           

          7.    Termination of
Employment.  In the event of Executive’s Termination of
Employment with the Company, Executive will be entitled to any (a) unpaid
Base Salary accrued up to the date of such Termination of Employment (the
“Termination Date”) paid in accordance with the schedule specified in Section
4(a) above, (b) any incentive compensation that is earned as of Executive’s
Termination Date in accordance with the terms and conditions of the applicable
incentive plan or arrangement but has not yet been paid, which amount, if any,
will be paid in accordance with the terms and conditions of the applicable
incentive arrangement, (c) pay for accrued but unused vacation that the
Company is legally obligated to pay Executive, which amount will be paid in the
first regular payroll cycle occurring after the Termination Date or, if
Executive is a Specified Employee of the Company on the Termination Date, such
amount will be paid on the Six-Month Delay Payment Date to the extent required
to satisfy Subsection 409A(a)(2)(B)(i), (d) benefits or compensation as
provided under the terms of any employee benefit and compensation agreements or
plans applicable to Executive, (e) unreimbursed business expenses required
to be reimbursed to Executive, which amount, if any, will be paid in accordance
with Section 6 above, and (f) rights to indemnification Executive may have
under the Company’s Articles of Incorporation, Bylaws, this Agreement, or a
separate indemnification agreement, as applicable.  In addition, if
the Termination of Employment is initiated by the Company without Cause or by
Executive for Good Reason, and the Termination of Employment is In Connection
with a Change in Control, Executive will be entitled to the amounts and benefits
specified in Section 8(a) below.

           

           

          
            
              
              

            

            
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          8.    Severance.

           

          (a)    Change in Control
Benefits.  If Executive’s Termination of Employment is
initiated by the Company without Cause or by Executive for Good Reason, and the
Termination of Employment is In Connection with a Change in Control (but not by
the Company in connection with the death or LTD Disability of Executive), then,
subject to Section 9, Executive will receive: (i) continued payment of
Base Salary for twenty-four (24) months, paid in accordance with the schedule
specified in Section 4(a) above, but commencing within thirty (30) days
following Termination of Employment with payments retroactive to that date,
except as provided in Section 8(b) below, (ii) a lump sum payment of an
amount equal to eighty percent (80%) of Executive’s Base Salary, multiplied by a
fraction, the numerator of which is the number of days elapsed starting on the
first day of the fiscal year during which the Termination Date occurs and ending
on the Termination Date and the denominator of which is 365, paid within sixty
(60) days following the Termination Date except as provided in Section 8(b)
below, (iii) a lump sum payment equal to the sum of Executive’s earned
annual incentives for the two most recently completed fiscal years immediately
preceding the Termination Date, paid within ninety (90) days following the
Termination Date except as provided in Section 8(b) below, (iv) a lump sum
payment equal to twenty-four (24) multiplied by the COBRA premium in effect for
the type of medical, dental and vision coverage in effect for Executive (e.g.,
family coverage vs. employee-only coverage) at the time of his Termination of
Employment, paid within ninety (90) days following the Termination Date except
as provided in Section 8(b) below, and (v) full accelerated vesting with
respect to Executive’s then outstanding, unvested stock options, restricted
stock awards, and other equity awards other than performance units used to pay
Executive’s annual incentive award.

          
             

            (b)    Payment Delay in Event
Executive is a Specified Employee.  If Executive is a Specified
Employee on the Termination Date, the payments specified in subsections 8(a)(i),
(ii), (iii) and (iv) above will be delayed until the Six-Month Delay Payment
Date to the extent required to satisfy Subsection 409A(a)(2)(B)(i); on that
date, the Company will pay Executive a lump sum consisting of all payments that
would have been paid to Executive prior to the Six-Month Delay Payment Date had
Executive not been a Specified Employee, increased for interest at the
short-term Federal rate in effect on the Termination Date for the period
beginning on the date each component of such lump sum would have been paid had
Executive not been a Specified Employee and ending on the Six-Month Delay
Payment Date.

          

          
             

            (c)    Parachute Payment
Limitation.  Notwithstanding the provisions of Section
8(a) above, if

          

           

             
(i)    any
payments or benefits received or to be received by Executive, whether
pursuant to the terms of this Agreement or any other plan, arrangement or
agreement with the Company or any person whose actions result in a Change in
Control, constitute "parachute payments" (such payments or benefits being
hereinafter referred to as the "Parachute Payments") within the meaning
of Section 280G(b)(2) of the Code, and

          
             

               
(ii)   the
aggregate present value of the Parachute Payments reduced by any excise tax
imposed under Section 4999 of the Code (or any similar tax that may
hereafter be 

          

           

          
            
              
              

            

            
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          imposed)
(the "Excise Tax") would be less than 3 times Executive's "base
amount" as defined in Section 280G(b)(3) of the Code,

           

          then, in
lieu of that portion of the Parachute Payments to which Executive would
otherwise be entitled under subsections (i), (ii), (iii) and (iv) of
Section 8(a) above, the Company shall pay Executive an amount (if
any) such that the aggregate present value of the Parachute Payments is equal to
2.99 times such base amount (the resulting amount that is payable
under subsections (i), (ii), (iii) and (iv) of Section 8(a) is the "Capped
Amount").  The Capped Amount shall be apportioned and substituted for the
amounts that would otherwise have been payable under subsections (i),
(ii), (iii) and (iv) of Section 8(a) above but for this Section
8(c) on a prorata basis, and each such amount shall be paid at the time
specified in the corresponding subsection of Section 8(a)
above except as provided in Section 8(b) above.  For this purpose,
proration shall be accomplished by multiplying each amount that would otherwise
have been payable under subsections (i), (ii), (iii) and (iv) of
Section 8(a) above but for this Section 8(c) by a fraction, the numerator of
which is the Capped Amount and the denominator of which is the aggregate amount
that would otherwise have been payable under subsections (i), (ii), (iii) and
(iv) of Section 8(a) but for this Section 8(c).  For purposes of this
Section 8(c), the base amount, the present value of the Parachute Payments,
the amount of the Excise Tax and all other appropriate matters shall be
determined by the Company’s independent auditors in accordance with the
principles of Section 280G of the Code and based upon the advice of tax
counsel selected by such auditors

          
             

            (d)    Voluntary Termination
without Good Reason; Termination for Cause.  If Executive’s
employment with the Company terminates voluntarily by Executive without Good
Reason or is terminated for Cause by the Company, then, except as provided in
Section 7, (i) all further vesting of Executive’s outstanding equity awards
will terminate immediately, and Executive’s outstanding equity awards will
terminate in accordance with the terms and conditions of the applicable award
agreement(s), (ii) all payments of compensation by the Company to Executive
hereunder will terminate immediately, and (iii) Executive will be entitled
to receive benefits, including severance benefits, only in accordance with the
Company’s then established plans, programs, and practices other than this
Agreement.

          

          
             

            (e)    Termination due to Death or
LTD Disability.  If Executive’s employment is terminated by
reason of his death or LTD Disability, then, except as provided in Section 7,
(i) Executive’s outstanding equity awards will vest and terminate in
accordance with the terms and conditions of the applicable award agreement(s);
(ii) all payments of compensation by the Company to Executive hereunder
will terminate immediately, and (iii) Executive will be entitled to receive
benefits, including severance benefits, only in accordance with the Company’s
then established plans, programs, and practices other than this
Agreement.

          

           

          (f)    Sole Right to
Severance.  This Agreement is intended to represent Executive’s
sole entitlement to severance payments and benefits in connection with a
termination of his employment In Connection with a Change in Control, except for
such payments and benefits to which Executive would be entitled as an employee
of the Company in the absence of this Agreement.

          
             

            9.    Conditions to Receipt of
Severance; No Duty to Mitigate.

          

           

          
            
              
              

            

            
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          (a)    Separation Agreement and
Release of Claims.  The receipt of any severance pursuant to
Section 8 will be subject to Executive signing and not revoking a release
of claims in substantially the form attached as Exhibit A, but with
any appropriate modifications, reflecting changes in applicable law, as are
necessary or appropriate to provide the Company with the protection it would
have if the release were executed as of the Effective Date.  No
severance will be paid or provided unless and until the release of claims is
timely executed and returned by Executive to the Company, becomes effective and
has not been timely revoked in accordance with the terms thereof.  The
Company will complete and provide to Executive the release of claims in
sufficient time so that if Executive timely executes and returns it, the
revocation period will expire before severance payments are required to commence
under Section 8.

           

          (b)    Nondisparagement.  As
a condition to receipt of severance, during the Employment Term and for the
longer of (i) 12 months thereafter or (ii) the Continuance Period,
Executive will not knowingly disparage, criticize, or otherwise make any
derogatory statements regarding the Company, its directors, or its
officers.  The foregoing restrictions will not apply to any statements
that are made truthfully in response to a subpoena or other compulsory legal
process.

           

          (c)    Other
Requirements.  Executive’s receipt of continued severance
payments will be subject to Executive continuing to comply with the terms of the
Confidential Information Agreement as amended by this Agreement.

           

          (d)    No Duty to
Mitigate.  Executive will not be required to mitigate the
amount of any payment contemplated by this Agreement, nor will any earnings that
Executive may receive from any other source reduce any such
payment.

           

          (e)    Generally Disabled; LTD
Disability.  The provisions of this Section 9(e) will control
in the event of conflict between this Section 9(e) and any other language in
this Agreement.  If Executive becomes Generally Disabled, the Company
will not be in breach of this Agreement and Executive will not be entitled to
severance pursuant to Section 8(a) on account of the Company, in its sole
discretion, taking any action that would otherwise be considered Good Reason
under items (i), (iii), or (iv) of the first paragraph of Section 10(g) below or
under item (i) of the second paragraph of Section 10(g) below provided that such
action remains in effect only for so long as Executive remains Generally
Disabled.  If Executive is Generally Disabled for more than ninety-one
(91) days (whether or not consecutive) in a rolling twelve (12) month period,
the Company will not be in breach of this Agreement and Executive will not be
entitled to severance per Section 8(a) on account of the Company permanently
taking any action that would otherwise be considered Good Reason under items
(i), (iii), or (iv) of the first paragraph of Section 10(g) below or under item
(i) of the second paragraph of Section 10(g) below so long as the Company does
not terminate Executive’s employment prior to the date that Executive is
determined to have an LTD Disability.  If Executive is Generally
Disabled and the Company terminates his employment without Cause In Connection
with a Change in Control prior to the date that he is determined to have an LTD
Disability, such termination will be considered Termination of Employment by the
Company without Cause for purposes of Section 8(a) of this Agreement, provided
that, in such circumstances, Executive will only be eligible for the severance
benefits set forth in items (i) and (iv) of Section 8(a) of this Agreement and
Section 13 of this Agreement will not apply.  If Executive ceases to
be Generally Disabled before his employment is terminated by reason of LTD
Disability, subject to the notice and cure provisions in Section 10(g), for
purposes of Section 8(a) 

           

           

          
            
              
              

            

            
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          of
this Agreement Executive will have the right to terminate his employment for
Good Reason (if the Termination of Employment is In Connection with a Change in
Control) on account of any event or circumstances that occurred while Executive
was Generally Disabled that would otherwise have constituted Good Reason except
for the provisions of this Section 9(e) unless such event or circumstances has
already been cured by the Company or consented to by Executive; provided that,
in such circumstances, Executive will only be eligible for the severance
benefits set forth in items (i) and (iv) of Section 8(a) of this Agreement and
Section 13 of this Agreement will not apply.  Notwithstanding any
language herein to the contrary, nothing in this paragraph creates a right to
severance benefits other than if Executive’s Termination of Employment is In
Connection with a Change in Control.

           

          10.   Definitions.

           

          (a)    Benefit
Plans.  For purposes of this Agreement, “Benefit Plans” means
plans, policies, or arrangements that the Company sponsors (or participates in)
and that immediately prior to the Termination Date provide Executive,
Executive’s spouse, and/or Executive’s eligible dependents with medical, dental,
or vision benefits.  The term “Benefit Plans” does not include plans,
policies, or arrangements providing for any other type of benefit (including,
but not by way of limitation, financial counseling, disability, life insurance,
or retirement benefits).

           

          (b)    Cause.  For
purposes of this Agreement, “Cause” means (i) Executive’s willful and
continued failure to perform the duties and responsibilities of his position
that is not corrected within a thirty (30) day correction period that begins
upon delivery to Executive of a written demand for performance from the Board
that describes the basis for the Board’s belief that Executive has not
substantially performed his duties; (ii) any act of personal dishonesty
taken by Executive in connection with his responsibilities as an employee of the
Company with the intention or reasonable expectation that such may result in
substantial personal enrichment of Executive; (iii) Executive’s conviction
of, or plea of nolo
contendere to, a felony that the Board reasonably believes has had or
will have a material detrimental effect on the Company’s reputation or business;
or (iv) Executive materially breaching Executive’s Confidential Information
Agreement as modified by this Agreement, which breach is (if capable of cure)
not cured within thirty (30) days after the Company delivers written notice to
Executive of the breach.

           

          (c)    Change in
Control.  For purposes of this Agreement, “Change in Control”
will have the same meaning as in Section 7.1 of the Cree, Inc. Equity
Compensation Plan (as amended and restated August 5, 2002 and without regard to
any subsequent amendments).

           

          (d)    Confidential Information
Agreement.  For purposes of this Agreement, “Confidential
Information Agreement” shall refer to the version of Employee Agreement
Regarding Confidential Information, Intellectual Property, and Noncompetition in
effect for Executive as of the relevant date; provided that, with respect to
Executive’s post-termination obligations, it shall refer to the version of such
agreement in effect as of Executive’s Termination Date.

           

          (e)    Continuance
Period.  For purposes of this Agreement, “Continuance Period”
means the period of time beginning on the Termination Date and ending on the
date twenty-four (24) months following the Termination
Date.  Notwithstanding the preceding sentence, in the event


           

           

          
            
              
              

            

            
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          of a
termination of Executive’s employment where Executive is not entitled to
severance under Section 8(a), the Continuance Period shall be of no
duration.

           

          (f)    Generally
Disabled.  For purposes of this Agreement, “Generally Disabled”
means that Executive is unable, with reasonable accommodation, to perform the
material and substantial duties of his position due to illness or injury or
physical or mental incapacity as determined by the Committee consistent with its
obligations to the Company’s shareholders.

           

          (g)    Good
Reason.  For purposes of this Agreement, except as provided in
Section 9(e) above, “Good Reason” means the occurrence of any of the following,
without Executive’s consent: (i) a significant reduction of Executive’s
duties or responsibilities or a change in Executive’s position as Chief
Executive Officer or President, or the removal of Executive from any of such
duties, positions, or responsibilities; (ii) a reduction in Executive’s
Base Salary or target annual incentive award level below 80% of Base Salary
other than a one-time reduction that also is applied to substantially all other
executive officers of the Company on Executive’s recommendation or approval if
Executive’s reduction is substantially proportionate to, or no greater than, the
reduction applied to substantially all other executive officers; (iii) the
Company requiring Executive to report to anyone other than the Board of
Directors; (iv) the Company eliminating from reporting to Executive any
position that previously directly reported to Executive; or (v) the Company
requiring Executive to relocate his principal place of business or the Company
relocating its headquarters, in either case to a facility or location outside of
a thirty-five (35) mile radius from Executive’s current principal place of
employment; provided, however, that Executive only will have Good Reason if
he provides notice to the Company of the existence
of the event or circumstances
constituting Good Reason specified in any of the preceding clauses within ninety (90) days of the initial occurrence of
such event or circumstances and, in the case of a tender offer as contemplated
in Section 3(i) of this Agreement, such event or circumstances must have
initially occurred after the commencement of the tender offer, and if such event
or circumstances is not cured within thirty (30) days after Executive
gives written notice to the Company.  If Executive initiates
Termination of Employment for Good Reason, the actual Termination of Employment
must occur within thirty (30) days after expiration of the cure period.
Executive’s failure to timely give notice of the occurrence of a specific event
that would otherwise constitute Good Reason will not constitute a waiver of
Executive’s right to give notice of any new event that would constitute Good
Reason that occurs after such prior event (regardless of whether the new
subsequent event is of the same or different nature as the preceding
event).  Executive’s actions approving in writing (or by such other
means as is reliable and verifiable) any change, reduction, requirement or
occurrence (that otherwise may be considered Good Reason) in his role as Chief
Executive Officer or as a director will be considered consent for the purposes
of this Good Reason definition.

           

          In
addition, except as provided in Section 9(e) above, “Good Reason” also means the
occurrence of any of the following, without Executive’s express written consent,
In Connection with a Change in Control:  (i) a substantial
reduction by the Company of the facilities and perquisites (including office
space and location) available to Executive provided such reduction is not
applied to all executive officers of the Company; (ii) a material reduction
in the kind or level of employee benefits to which Executive is entitled (other
than a reduction due to application of the rules for eligibility or coverage
under any benefit plan or policy) with the result that Executive’s overall
benefits package is significantly reduced provided such reduction is not applied
to substantially all executive officers of the Company; or (iii) the
failure of the Company to obtain the

           

           

          
            
              
              

            

            
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          assumption of this
Agreement by the Successor (as defined in Section 14); provided,
however, that Executive only will have Good Reason if the notice and cure
conditions specified in the immediately preceding paragraph are
satisfied.

           

          (h)    In Connection with a Change
in Control.  For purposes of this Agreement, a Termination of
Employment with the Company is “In Connection with a Change in Control” if
Executive incurs a Termination of Employment either within (i) the period of
time between the commencement of a tender offer or the Company and another party
entering into a written agreement that contemplates a transaction, the
consummation of either of which would result in a Change in Control as defined
in Subsection (a), (b), or (d) of such definition and the occurrence of either
the resulting Change in Control or the termination or expiration of the tender
offer or the written agreement without the occurrence of a Change in Control, or
(ii) twenty-four (24) months following a Change in Control (including without
limitation a resulting Change in Control described in the preceding
clause(i)).

           

          (i)    LTD
Disability.  For purposes of this Agreement, “LTD Disability”
will mean that Executive is “Partially Disabled” or “Total Disabled” within the
meaning of the Company’s current long-term disability plan (or such similar term
or terms in any long-term disability plan of the Company that replaces its
current long-term disability plan) and has satisfied the elimination period for
benefits eligibility under such plan.

           

          (j)    Six-Month Delay Payment
Date.  The payment date associated with the first regular
payroll cycle after passage of six months following the Termination
Date.

           

          (k)    Specified
Employee.  For purposes of this Agreement, “Specified Employee”
will have the meaning prescribed by Subsection 409A(a)(2)(B)(i) of the Code, as
such meaning may be amended from time to time.

          
             

            (l)    Termination of
Employment.  For purposes of this Agreement, “Termination of
Employment” will have the meaning as prescribed by Treasury Regulation §
1.409A-1(h)(1)(ii), as such meaning may be amended from time to
time.

          

           

          11.   Tax Treatment; Section 409A
Compliance.  Executive acknowledges and agrees that the
Company has made no representations as to the tax treatment of the compensation
and benefits provided pursuant to this Agreement. This
Agreement is intended to comply with the requirements of Section
409A.  Nothing in this Agreement shall require payment in 2008 of any
payment that was required to be paid after 2008 under this Agreement or the
Existing Agreement; in addition, except as may be required to observe the
six-month delay applicable to Specified Employees under Subsection
409A(a)(2)(B)(i), nothing in this Agreement shall postpone beyond 2008 any
payment that was required to be paid in 2008 pursuant to this Agreement or the
Existing Agreement.  The parties agree to work together to effectuate
the intent of this provision, including but not limited to revising the timing
and/or form of any payment hereunder as may be permitted by and necessary to
ensure the terms and conditions applicable to such payments comply with Section
409A.

           

          12.   Indemnification.  Subject
to applicable law, Executive will be provided indemnification to the maximum
extent permitted by the Company’s bylaws and Articles of Incorporation, with
such indemnification to be on terms determined by the Board or any of its


           

           

          
            
              
              

            

            
              - 9
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          committees,
but on terms no less favorable than provided to any other Company executive
officer or director and subject to the terms of any separate written
indemnification agreement.

           

          13.   Confidential
Information.  Executive agrees he will be subject to the
noncompetition/nonsolicitation provision (paragraph 11(a)) of his Confidential
Information Agreement during the Employment Term and, except as provided in
Sections 9(e) and 21 hereof, until the later of (a) the date twelve (12)
months following the Termination Date, or (b) the expiration of the
Continuance Period.

           

          14.   Assignment.  This
Agreement will be binding upon and inure to the benefit of (a) the heirs,
executors, and legal representatives of Executive upon Executive’s death, and
(b) any Successor of the Company.  Any such Successor of the
Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes.  For this purpose, “Successor” means any
person, firm, corporation, or other business entity which at any time, whether
by purchase, merger, or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company.  None of
the rights of Executive to receive any form of compensation payable pursuant to
this Agreement may be assigned or transferred except by will or the laws of
descent and distribution.  Any other attempted assignment, transfer,
conveyance, or other disposition of Executive’s right to compensation or other
benefits will be null and void.

           

          15.   Notices.  All
notices, requests, demands, and other communications called for hereunder will
be in writing and will be deemed given (a) on the date of delivery if
delivered personally, (b) one business day after being sent overnight by a
well-established commercial overnight service, or (c) four days after being
mailed by registered or certified mail, return receipt requested, prepaid and
addressed to the parties or their successors at the following addresses, or at
such other addresses as the parties may later designate in writing:

           

          If to the
Company:

          


          Attn: Chairman of the
Compensation Committee

          c/o Corporate Secretary

          Cree, Inc.

          4600 Silicon Drive

          Durham, NC 27703

           

          If to
Executive:

           

          at the last residential address known
by the Company.

           

          16.   Severability.  If
any provision hereof becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable, or void, this Agreement will continue in full
force and effect without said provision.

           

          17.   Arbitration.  The
Parties agree that any and all disputes arising out of the terms of this
Agreement, Executive’s employment by the Company, Executive’s service as an
officer or director of the Company, or Executive’s compensation and benefits,
their interpretation, and any of the matters herein released, will be subject to
binding arbitration in Durham, North Carolina before the American Arbitration
Association under its National Rules for the Resolution of
Employment

           

           

          
            
              
              

            

            
              - 10
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          Disputes, supplemented by
the North Carolina Rules of Civil Procedure.  The Parties agree that
the prevailing party in any arbitration will be entitled to injunctive relief in
any court of competent jurisdiction to enforce the arbitration
award.  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 paragraph
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 Confidential Information Agreement.

           

          18.   Legal and Tax
Expenses.  The Company will reimburse Executive up to
$9,000.00, grossed-up for income and withholding taxes based on the tax rates
applicable to supplemental wage payments to Executive at the time of
payment, for
reasonable legal and tax advice expenses incurred in 2008 by him in connection
with the negotiation, preparation, and execution of this Agreement and related
documents; the Company will make such reimbursement as soon as administratively
practicable after the date on which Executive substantiates to the Company in
writing the amount of such expenses but in no event later than the last day of
2009; Executive must provide such written substantiation in time for the Company
to make such reimbursement by the last day of 2009.  In addition, in
the event of a dispute relating to this Agreement arising during the term of
Executive’s employment with the Company or within three (3) years following the
termination of this Agreement, the Company will reimburse Executive’s fees and
expenses as incurred quarterly, including reasonable attorneys’ fees, in
connection with such dispute, provided that (i) Executive provides the Company
with written documentation substantiating the amount of such fees and expenses,
and (ii) Executive prevails on at least one material issue in such dispute or an
arbitrator does not determine that Executive’s legal positions were frivolous or
without legal foundation.  The Company will make such reimbursement
payments quarterly based on the written substantiation documentation submitted
by Executive to the Company during the prior quarter; in no event will any
reimbursement be made later than the end of the calendar year next following the
calendar year in which the expense was incurred by Executive; Executive must
provide such written substantiation in time for the Company to make such
reimbursement by such deadline.  In the event Executive does not so
prevail or in the event of a determination by the arbitrator that his legal
positions were frivolous or without legal foundation (in either case, a
“Resolution”), Executive will repay to the Company any amounts previously
reimbursed by it and Executive will reimburse the Company for its fees and
expenses, including reasonable attorneys’ fees, incurred in connection with the
dispute, both within a reasonable period of time not to exceed sixty (60) days
following the date of the Resolution.  The amount of expenses eligible
for reimbursement under this Section 18 during a calendar year will not affect
the amount of expenses eligible for reimbursement under this Section 18 in
another calendar year, and the right to such reimbursement is not subject to
liquidation or exchange for another benefit from the Company.

           

          19.   Integration.  This
Agreement, together with the Confidential Information Agreement and the standard
forms of equity award agreements and grant notices that describe Executive’s
outstanding equity awards, represents the entire agreement and understanding
between the parties as to the subject matter herein and supersedes all prior or
contemporaneous agreements whether written or oral.  No waiver,
alteration, or modification of any of the provisions of this Agreement will be
binding unless in a writing that is signed by duly authorized representatives of
the parties hereto.  Notwithstanding the foregoing, the parties
acknowledge that, with respect to Executive’s outstanding equity awards as of
the Effective Date, if Executive’s Termination of Employment is initiated by the
Company without Cause or by Executive for Good Reason, Executive’s right
to

           

           

          
            
              
              

            

            
              - 11
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          accelerated vesting of
each such award will be determined by reference to Sections 8(a) or 8(b), as
applicable (including any relevant defined terms) in the Original Agreement or
in the Existing Agreement, as applicable based on the version in effect at the
time of the grant of such award (the terms and conditions of which are
incorporated herein for this limited purpose), and not by reference to Section
8(a) (including any relevant defined terms) of this Agreement.

           

          20.   Waiver of
Breach.  The waiver of a breach of any term or provision of
this Agreement, which must be in writing, will not operate as or be construed to
be a waiver of any other previous or subsequent breach of this
Agreement.

           

          21.   Survival.  The
Confidential Information Agreement, the Company’s and Executive’s
responsibilities under Sections 7, 8 and 9, and Sections 12, 13, 17,
and 18 will survive the termination of this
Agreement.  Notwithstanding the preceding sentence, in the event this
Agreement expires because the Company delivers notice of non-renewal of the term
of this Agreement pursuant to Section 3, the amendment of the Confidential
Information Agreement provided by Section 13 will expire as of the expiration of
the term of this Agreement.

           

          22.   Headings.  All
captions and Section headings used in this Agreement are for convenient
reference only and do not form a part of this Agreement.

           

          23.   Tax
Withholding.  All payments made pursuant to this Agreement will
be subject to withholding of applicable taxes.

           

          24.   Governing
Law.  This Agreement will be governed by the laws of the State
of North Carolina (with the exception of its conflict of laws
provisions).

           

          25.   Acknowledgment.  Executive
acknowledges that he has had the opportunity to discuss this matter with and
obtain advice from his private attorney, has had sufficient time to, and has
carefully read and fully understands all the provisions of this Agreement, and
is knowingly and voluntarily entering into this Agreement.

           

          26.   Counterparts.  This
Agreement may be executed in counterparts, and each counterpart will have the
same force and effect as an original and will constitute an effective, binding
agreement on the part of each of the undersigned.

        

        
 

        
          
             


          

          
            - 12
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      IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of
the Company by a duly authorized officer, as of the day and year written
below.

       

      
        
          	 COMPANY:	
                   

                
	 	 	 	 
	 CREE,
    INC.	 	 	 
	 	 	 	 
	 	 	 	 
	 /s/ Thomas H. Werner	 	 	
                   Date: August 19,
      2008

                
	 Thomas H.
      Werner	 	 	 
	 Compensation
      Committee Chairman	 	 	 


        

         

         

          
            	 EXECUTIVE:	 	 	 
	 	 	 	 
	 	 	 	 
	 /s/ Charles M. Swoboda	 	 	
                     Date: August 19,
      2008

                  
	 Charles M.
      Swoboda	 	 	 
	 	 	 	 


          




        
          
            
            

          

          
            - 13
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      EXHIBIT A


      
        GENERAL
RELEASE

        
          RECITALS

        

      

      
         

        This
General Release (this “Release”) is made by and between Charles M. Swoboda
(“Employee”) and Cree, Inc. (the “Company”) (jointly referred to as the
“Parties”):

         

        WHEREAS,
the Company and Employee entered into an Executive Change in Control Agreement
dated August 18, 2008 (the “Change in Control Agreement”)

         

        WHEREAS,
the Company and Employee entered into an Employee Agreement Regarding
Confidential Information, Intellectual Property, and Noncompetition (as amended
by the Change in Control Agreement, the “Confidentiality
Agreement”);

         

        WHEREAS,
the Company and Employee entered into [DESCRIBE EQUITY AWARD AGREEMENTS: a Stock
Option Agreement dated [____] granting Employee the option to purchase shares of
the Company’s common stock subject to the terms and conditions of the Company’s
[Stock Option Plan] and the Stock Option Agreement (collectively, the “Stock
Agreements”)];

         

        WHEREAS,
Employee’s employment with the Company terminated on [DATE] (the “Termination
Date”);

         

        WHEREAS,
the Parties wish to resolve any and all disputes, claims, complaints,
grievances, charges, actions, petitions and demands that the Employee may have
against the Company as defined herein, including, but not limited to, any and
all claims arising out of, or related to, Employee’s employment with, or
separation from, the Company;

         

        NOW
THEREFORE, in consideration of the promises made herein, the Parties hereby
agree as follows:

         

        COVENANTS

         

        1.    Consideration.

         

        (a)    Pursuant
to the Section 9(a) of the Change in Control Agreement, Employee’s receipt of
severance pursuant to Section 8(a) of the Change in Control Agreement is subject
to Employee executing and not revoking this Release.  In consideration
of Employee executing and not revoking this Release, and subject to Section 9 of
the Change in Control Agreement, the Company agrees to pay (or provide, as
applicable) Employee the amounts and benefits specified in Section 8(a) of the
Change in Control Agreement.  Such severance benefits will be paid or
provided at the times and in the manner set forth in the Change in Control
Agreement.  Employee acknowledges that he will not be entitled to any
other compensation or benefits, except as provided in Section 7 of the Change in
Control Agreement.

         

        (b)    Stock.  Employee
acknowledges that as of the Termination Date, he will have vested in [______]
options and no more.  The exercise of any stock options shall continue
to be 

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        subject to the terms and
conditions of the Stock Agreements and Sections 8 and 19 of the Change in
Control Agreement.

         

        (c)    Benefits.  Employee’s group
health benefits will cease on [DATE], subject to Employee’s
right to continue his group health benefits under COBRA.  Employee’s
participation in all other benefits and incidents of employment (including, but
not limited to, the accrual of vacation and paid time off, and the vesting of
stock options) ceased on the Termination Date.

         

        2.    Payment of
Salary.  Subject to Section 7 of the Change in Control
Agreement and Section 1 above, Employee acknowledges and represents that
Employee is not entitled to any additional salary, wages, bonuses, accrued
vacation, housing allowances, relocation costs, interest, severance, stock,
stock options, outplacement costs, fees, commissions or any other benefits and
compensation.

         

        3.    Confidential
Information.  Employee shall continue to comply with the terms
and conditions of the Confidentiality Agreement, as such agreement may be
amended by the Change in Control Agreement, and maintain the confidentiality of
all of the Company’s confidential and proprietary
information.  Employee also shall return to the Company all of the
Company’s property, including all confidential and proprietary information, and
all documents and information that Employee obtained in connection with his
employment with the Company, on or before the Effective Date of this
Release.

         

        4.    Release of
Claims.  Employee agrees that the foregoing consideration
represents settlement in full of all outstanding obligations owed to Employee by
the Company.  To the fullest extent permitted by applicable law,
Employee, on his own behalf and on behalf of his respective heirs, family
members, executors, agents, and assigns, hereby fully and forever releases the
Company and its current and former: officers, directors, employees, agents,
investors, attorneys, shareholders, administrators, affiliates, divisions,
subsidiaries, predecessor and successor corpora­tions and assigns (the
“Releasees”) from, and agrees not to sue concerning, any claim, duty, obligation
or cause of action relating to any matters of any kind arising out of or
relating to his employment by the Company (except as provided in Section 7 of
the Change in Control Agreement), or his service as an officer of the Company
and/or a director of the Company, whether presently known or unknown, suspected
or unsuspected, that Employee may possess arising from any omissions, acts or
facts that have occurred up until and including the Effective Date of this
Release including, without limitation:

         

        (a)    any and
all claims relating to or arising from Employee’s employment with the Company,
or the termination of that employment;

         

        (b)    any and
all claims relating to, or arising from, Employee’s right to purchase, or actual
purchase of, shares of Company stock, including, but not limited to, 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 under the law of any jurisdiction, including, but not limited to,
wrongful discharge of employment; constructive discharge from employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a 

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        covenant of good faith and
fair dealing, both express and implied; promissory estoppel; 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; and conversion;

         

        (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 Age Discrimination in Employment Act of 1967; the Americans
with Disabilities Act of 1990; the Fair Labor Standards Act; the Employee
Retirement Income Security Act of 1974; the Worker Adjustment and Retraining
Notification Act; the Older Workers Benefit Protection Act; the Family and
Medical Leave Act; the Fair Credit Reporting Act; the North Carolina Equal
Employment Practices Act; and North Carolina law;

         

        (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;

         

        (g)    any claim
for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by
Employee as a result of this Release; and

         

        (h)    any and
all claims for attorney fees and costs.

         

        5.    Acknowledgement of Waiver of
Claims Under ADEA.  Employee 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.  Employee and the Company agree that this waiver and
release does not apply to any rights or claims that may arise under the ADEA
after the Effective Date of this Release.  Employee acknowledges that
the consideration given for this waiver and release is in addition to anything
of value to which Employee was already entitled.  Employee further
acknowledges that he has been advised by this writing that:

         

        (a)    he should
consult with an attorney prior to executing this Release;

         

        (b)    he has up
to twenty-one (21) days within which to consider this Release;

         

        (c)    he has
seven (7) days following his execution of this Release to revoke this
Release;

         

        (d)    this ADEA
waiver shall not be effective until the revocation period has expired;
and,

         

        (e)    nothing
in this Release prevents or precludes Employee 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.

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        6.    Unknown
Claims.  The Parties represent that they are not aware of any
claim by either of them other than the claims that are released by this
Release.  Employee 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 would have
materially affected his settlement with the releasee.  Employee, being
aware of said principle, agrees to expressly waive any rights Employee may have
to that effect, as well as under any other statute or common law principles of
similar effect, to the fullest extent permitted by applicable law.

         

        7.    Application for
Employment.  Employee understands and agrees that, as a
condition of this Release, he shall not be entitled to any employment with the
Company, its subsidiaries, or any successor, and he hereby waives any alleged
right of employment or re-employment with the Company, its subsidiaries or
related companies, or any successor.

         

        8.    No
Cooperation.

         

        (a)    Employee
agrees that he will not knowingly 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 any of the
Releasees that relate to any of the matters for which he has provided a release
hereunder, unless under a subpoena or other court order to do
so.  Employee agrees both to immediately notify the Company upon
receipt of any such subpoena or court order, and to furnish, within three (3)
business days of its receipt, a copy of such subpoena or court order to the
Company.  If approached by anyone for counsel or assistance in the
presentation or prosecution of any such disputes, differences, grievances,
claims, charges, or complaints against any of the Releasees, Employee shall
state no more than that he cannot provide counsel or assistance.

         

        (b)    Notwithstanding any
language herein to the contrary, Employee understand that nothing in this
Release prohibits him from filing or pursuing a charge of discrimination with
the Equal Employment Opportunity Commission (EEOC) or a claim with the National
Labor Relations Board (NLRB); provided that, by signing this Release Employee
agree to waive and relinquish any personal monetary gain that otherwise would
result from such EEOC or NLRB Claim.

         

        9.    Costs.  The
Parties shall each bear their own costs, expert fees, attorney fees and other
fees incurred in connection with the preparation of this Release.

         

        10.   Arbitration.  The
Parties agree that any and all disputes arising out of, or relating to, the
terms of this Release, their interpretation, and any of the matters herein
released, shall be subject to binding arbitration as described in Section 17 of
the Change in Control Agreement (but as adjusted to cover disputes under this
Release).

         

        11.   No
Representations.  Each Party represents that it has had the
opportunity to consult with an attorney, and has carefully read and understands
the scope and effect of the provisions of this Release.  Neither Party
has relied upon any representations or statements made by the other Party hereto
which are not specifically set forth in this Release.

         

        12.   No Oral
Modification.  Any modification or amendment of this Release,
or additional obligation assumed by either Party in connection with this
Release, shall be effective only if placed in writing and signed by both Parties
or their authorized representatives.

         

         

        
          
            
            

          

          
            
            

            
              

            

          

          
            
            

          

        

         

        13.   Entire
Agreement.  This Release, the Change in Control Agreement, the
Confidentiality Agreement and the Stock Agreements represent the entire
agreement and understanding between the Company and Employee concerning the
subject matter of this Release and Employee’s relationship with the Company, and
supersede and replace any and all prior agreements and understandings between
the Parties concerning the subject matter of this Release and Employee’s
relationship with the Company.

         

        14.   Governing
Law.  This Release shall be governed by the laws of the State
of North Carolina, without regard for choice of law provisions.

         

        15.   Severability.  If
any provision of this Release is found to be unenforceable, it shall not affect
the enforceability of the remaining provisions, and the court shall enforce all
remaining provisions to the fullest extent permitted by law.

         

        16.   Effective
Date.  This Release will not become effective until the eighth
(8th) day after it has been signed by both Parties and then only if Executive
does not revoke it as permitted in Section 5(c) above (the “Effective
Date”).  In order to revoke this Release, the Executive must deliver a
letter expressly stating that he is revoking this Release to the Company’s Vice
President, Administration, at 4600 Silicon Drive, Durham, North Carolina 27703
within seven (7) days after he signs this Release.

         

        17.   Voluntary Execution of
Release.  This Release is executed voluntarily and with the
full intent of releasing all claims, and without any duress or undue influence
by any of the Parties.  The Parties acknowledge that:

         

        (a)    They have
read this Release;

         

        (b)    They have
been represented in the preparation, negotiation, and execution of this Release
by legal counsel of their own choice or that they have voluntarily declined to
seek such counsel;

         

        (c)    They
understand the terms and consequences of this Release and of the releases it
contains; and

         

        (d)    They are
fully aware of the legal and binding effect of this
Release.

 

      

      
        
          
             


          

          
             


            
              

            

          

          
             


          

        

      

       

      
        IN
WITNESS WHEREOF, each of the parties has executed this Release, in the case of
the Company by a duly authorized officer, as of the day and year written
below.

        
           

          
            
              	 COMPANY:	
                       

                    	 
	 	 	 	 	 	 
	 CREE,
      INC.	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 By:	 	 	 	
                       Date:
    

                    	 
	 Title:	 	 	 	 	 
	 	 	 	 	 	 


            

             

            
            

            
              	 EXECUTIVE:	 	 	 	 
	 	 	 	 	 
	 	 	 	 	 
	 	 	 	
                       Date:
    

                    	 
	 CHARLES M.
      SWOBODA