Cooperative Agreement (Agreement No. W911NF-04-2-0021)



 Exhibit 10.33 
  
 COOPERATIVE AGREEMENT 
  
 BETWEEN 
  
 Cree, Inc. 
 (The Recipient) 
  
 AND 
  
 U.S. Army Research Laboratory (ARL) 
  
 CONCERNING 
  
 Manufacturing Technology for SiC Material and Power Devices 
  

Agreement No.: W911NF-04-2-0021 
 Total Estimated Amount of the Agreement:
[***] 
 Total Estimated Government Funding of the Agreement: $15,917,094.00 
 Total Estimated Recipient Share of the Agreement: [***] 
  
 Government Funds Obligated: [***] 
 Authority: 10 U.S.C. 2358 
  
 Accounting and Appropriation Data: 
  
 ACRN AA: 

					
	(1)	 	Appropriation No.:	 	 214 2040 0000 0 6N 6N7C 778045E2512 255Y ANDP00
 W71B7J4078M101 4NE2XX S18129

	(2)	 	Requisition No.:	 	W71B7J-4078-M101
	(3)	 	Amount:	 	[***]
	(4)	 	Applicable CLIN:	 	000101

  
 This Agreement is entered into between
the United States of America, hereinafter called the Government, represented by the U.S. Army Research Laboratory (ARL), and Cree, Inc., pursuant to and under U.S. Federal Law. 


	[***]	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. 








 Table of Contents 
  
 ARTICLES 
  
 Article 1 Scope of the Agreement 
  
 Article 2 General Definitions 
  
 Article 3 Program Management 
  
 Article 4 Staff
Rotation 
  
 Article 5 Fiscal Management 
  
 Article 6 Agreement Administration 
  
 Article 7 Term of the Agreement 
  
 Article 8 Administrative Responsibility 
  
 Article 9 Public Release or Dissemination of Information 
  
 Article 10 Patent Rights 
  
 Article 11 Entire Agreement 
  
 Article 12
Governing Law/Order of Precedence 
  
 Article 13 Waiver of Rights 
  
 Article 14 Use of Technical Facilities 
  
 Article 15 Metric System of Measurement 
  
 Article 16 Liability 
  
 Article 17 Non-Assignment 
  
 Article 18 Severability 
  
 Article 19 Force Majeure 
  
 Article 20 Notices








 Article 21 Performance by Foreign Nationals 
  
 ATTACHMENTS 
  

	Attachment	1 Standard Terms and Conditions for For-Profit Entities 

  
 Attachment 2 National Policy Requirement 
  
 Attachment 3 Other Certifications 
  
 Attachment 4 Annual Program Plan and Budget* 
  
 Attachment 5 Reporting Requirements 


	*	To be completed in accordance with Article 3.5 

  







 ARTICLE 1 Scope of the Agreement 
  
 1.1 Introduction 
  
 This Agreement is a “Cooperative Agreement” (31 USC 6305) and is awarded pursuant to 10 USC 2358 Research Projects. The Parties agree that the
principal purpose of this Agreement is for Cree, Inc., hereinafter referred to as the “Recipient”, to provide its best research efforts in the support and stimulation of fundamental research and not the acquisition of property for the
direct benefit or use of the Government. FAR and DFARS apply only as specifically referenced herein. This Agreement is not intended to be, nor shall it be construed as, by implication or otherwise, a partnership, a corporation, or other business
organization. 
  
 1.2 Background and Vision Statement 
  
 The U.S. Army Research Laboratory (ARL) Sensors and Electron Devices
Directorate (SEDD) works in many areas crucial to the success of the future Army, providing fundamental research to give commanders real-time situational awareness; rapid and precise discrimination and targeting; highly compact, lightweight energy
sources; as well as mitigating techniques for use against hostile enemy threats. 
  
 As part of the Army’s strategic plan to transform its field operations into a more strategically responsive force, the Army is actively engaged in efforts to develop a family of manned and unmanned ground weapons
systems under the Future Combat Systems program. A key factor in the development and demonstration of FCS platforms is the development of high power density, high temperature traction drive systems. 
  
 The Army Research Laboratory (ARL) has been charged with the responsibility
of developing technologies that will enable FCS demonstrations. This Cooperative Agreement will allow the DoD to utilize a new class of high power motor drives that will positively impact FCS designs. 
  
 1.3 Scope 
  
 This effort focuses on the manufacturing technology for high-temperature high-power silicon carbide (SiC) semiconductor
material and power devices for use in electric traction drive power components and associated power conditioning and control electronics for the next-generation of combat vehicles. All topics of joint interest regarding the manufacture, processing,
and performance of high-temperature high-power SiC power devices for electric traction drive systems may be explored under this agreement. Specifically, quality of SiC starting material (substrates and epi-layers) and the design, development, and
operation of SiC power devices for high-temperature, high power motor drive applications. 
  







 1.4 Goals/Objectives 
  
 The following schedule gives an estimate of the work to be undertaken during the course of this agreement: 
  
 Year One 
  

	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 

  
 Year Two 
  

	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 

  
 Year Three 
  

	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 

  
 Year Four 
  

	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 

  
 Year Five 
  

	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 


	 	•	Develop manufacturing technology for [***] 

  
 The Recipient shall participate in a program of coordinated research, development, and education with ARL in accordance with the Annual Program Plan,
Attachment 4 to this Agreement, which sets forth the specific goals and objectives for the program for the first twelve-month performance period. The recipient shall also comply with the reporting requirements set forth in Attachment 5. 

 
 The Government will have continuous involvement with the recipient. The
Government will also obtain access to the research results and certain rights in data, computer codes developed, 


	[***]	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. 








 and patents pursuant to Article 10 and Attachment 1 to this agreement. The Government and the Recipient are bound to each
other by a duty of good faith and best research effort in achieving the goals of the Program. 
  
 As a condition of this Agreement, it is herein understood and agreed that Federal funds are to be used only for costs that: (1) a reasonable and prudent person would incur, in carrying out the advanced research
project herein; and (2) are consistent with the purposes stated in governing Congressional authorizations and appropriations. 
  
 ARTICLE 2 General Definitions 
  
 2.1 Recipient — An organization or other entity receiving a grant or cooperative agreement from a DoD Component. For purposes of this Agreement, the Recipient
is Cree, Inc. 
  
 2.2 Party — For purposes of this Agreement, the
parties are ARL and the Recipient. 
  
 2.3 Grants Officer — Is the
Government’s principal point of contact for all administrative, financial or other non-technical issues arising under the Agreement. 
  
 2.4 Agreements Administrator – The Agreements Administrator has authority to administer Cooperative Agreements and, in coordination with the Grants Officer,
make determination and findings related to delegated administration functions. 
  
 2.5 Recipient Program Manager (RPM) — The RPM is the Recipient’s technical representative charged with the Recipient’s overall responsibility of management and guidance of the cooperative agreement. 
  
 2.6 Cooperative Agreement Manager (CAM) — Is the Government’s technical
representative from ARL charged with the overall responsibility of management and guidance of the cooperative agreement. 
  
 2.7 Annual Program Plan and Budget — Is the baseline document which details the scope, schedule, principal investigator(s), collaboration, staff rotation, and
educational opportunities for the research activities. It also includes the financial expression of the project, which serves as the resource allocation/commitment for the research activities. The Budget shall include the sum of both Federal and
non-Federal shares, as appropriate. 







 ARTICLE 3 Program Management 
  
 3.1 ARL Cooperative Agreement Manager (CAM). The ARL Cooperative Agreement Manager (CAM) is: 
  
 Dr. C. J. (Skip) Scozzie 
 U.S. Army Research Laboratory 
 ATTN: AMSRD-ARL-SE-DP 
 2800 Powder Mill Road 
 Adelphi, MD 20783-1197 
 Phone: 301-394-5211 
 Fax No.: 301-394-1559 
 Email Address: sscozzie@arl.army.mil 
  
 3.2 Recipient Program Manager (RPM). The Recipient Program Manager (RPM) is: 
  
 Dr. Anant Agarwal 
 Cree, Inc. 
 4600 Silicon Drive 
 Durham, NC 27703 
 Phone: 919-313-5539 
 Fax No.: 919-313-5656 
 Email Address: Anant_Agarwal@cree.com 







 3.3 Cooperative Agreement Management Committee. The ARL Cooperative Agreement Manager (CAM) is responsible for the
overall management and guidance of the cooperative agreement. The CAM, together with the RPM will form the Cooperative Agreement Management Committee (CAMC). Other advisory members may be added by either the CAM, or the RPM, by mutual
agreement, when their presence will prove beneficial to the research. The CAMC will prepare and approve the Annual Program Plan. 
  
 3.4 Management and Program Structure. The CAMC shall be responsible for the management and integration of the party’s collaborative efforts under this
agreement including programmatic, technical and reporting. 
  
 3.5 Annual
Program Planning Process. Within 45 days of award, the RPM and ARL CAM will collaborate and prepare the Annual Program Plan (APP) for year 1 (date of award through 12 months). Within 10 days of submission, the Grants Officer, in conjunction with
the RPM and ARL CAM, will approve the APP and associated budget for year 1. 
  
 Once approved, the APP shall serve as the annual baseline document which details the scope, schedule, principal investigator(s), staff rotation, educational opportunities, and resource allocation/commitment of the
research activities. Along with the APP, the Recipient shall include a list of foreign nationals proposed to perform during the period in accordance with the notification required by Article 21. This list shall be updated as necessary during the
course of the year. The ARL Grants Officer, in conjunction with the CAM, will approve the APP by way of issuing a modification to this agreement. The modification will incorporate the APP and budget to this agreement. The APP will then constitute
the necessary “statement of work” and authorization document for each task included in the APP. 
  
 Beginning 6 months after initial award, the Annual Program Planning Process shall begin for the following year. This process shall continue for the length
of the Agreement. As part of this process, one or more site visits may be required. In addition, the ARL CAM or his representatives will have the right to make visits as needed during the year to assess or coordinate performance. 
  
 The CAMC shall review the progress under the APP at least once annually. If
it appears that research milestones will not be met, the CAMC may propose an adjustment of the APP for incorporation into the Agreement by the Grants Officer. 







 ARTICLE 4 Staff Rotation or On-Site Collaboration 
  
 4.1 Salary and Travel Costs. All salary and travel costs associated with the rotation
of government personnel will be borne by the Government. All salary and travel costs associated with staff rotation or on-site collaboration of recipient personnel will be paid for with funding provided under this agreement. 
  
 4.2 Host Facility Regulations. All personnel in rotational assignments or on-site
collaboration are required to comply with the safety, environmental, security, and operational regulations or requirements of the host facility. 
  
 4.3 Administrative Support. The host facility will provide adequate office space, communications connections, administrative support, and office supplies, if
available, for researchers in long-term rotational assignments. Should it become necessary to procure equipment to facilitate a rotational assignment, the Annual Program Plan should reflect the need for such equipment, and the costs will be borne
under the cooperative agreement. 
  
 ARTICLE 5 Fiscal Management

  
 5.1 Allocation of Recipient Funds 
  
 5.1.1 Restrictions on the Use of Government Funds. Government funds provided under
this Agreement must be allocated by the Recipient exclusively for the execution and operation of the Annual Program Plan or Agreement Scope. Government funds shall not be utilized to support the Recipient’s operations or administration
unrelated to this Agreement. 
  
 5.1.2 Obligation. In no case shall the
Government’s financial obligation exceed the amount obligated on this Agreement. The total estimated amount of Government funding for performance of this Agreement is $15,917,094.00, subject to the availability of funds. Of this amount, [***]
is allotted and available for payment. It is estimated that obligated funds shall be sufficient to cover all areas of performance for the first twelve months of performance. The Government is not obligated to reimburse the Recipient for expenditures
in excess of the amount of obligated funds allotted by the Government. 
  
 5.1.3 Incremental Funding. The Government may obligate funds to this Agreement incrementally. In the event that this Agreement is funded incrementally, the Government anticipates that from time to time additional amounts will be
allotted to this agreement by unilateral modification, until the total amount for performance of this Agreement has been funded. To minimize interruption of effort due to lack of funds, the Recipient shall notify the Grants Officer in writing
whenever the amount of funds obligated under this agreement when added to anticipated costs in the next 60 days will exceed 75% of the amount allotted. 


	[***]	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. 








 5.1.4 Payments 
  
 a. The Recipient shall submit an original and two (2) copies of all vouchers (SF 270 “Request for Advance or Reimbursement”) to the Agreement Administrator for
payment approval. After written verification of progress towards or achievement of the research milestones by the CAM, and approval by the Agreement Administrator, the vouchers will be forwarded to the payment office within ten (10) calendar days of
receipt of the voucher. Payments will be made via EFT by the Payment Office listed in Article 8 within 20 calendar days of receipt of transmittal. 
  
 b. Payments will be made no more frequently than monthly and will be based on reimbursement of actual expenditures as monitored against the Budget Plan contained in the
Annual Program Plan. Once the CAM has verified that the Recipient has expended best efforts towards the successful achievement of the research goals, payment will be authorized. 
  
 5.1.5 Cost Share. The Recipient contributions for the purpose of cost share may consist of both cash and in-kind contributions. All
in-kind contributions must comply with the requirements of 32 CFR 34.13 Cost Sharing or Matching. The Government and Recipient estimate that the Scope of this Agreement can only be accomplished with a total aggregate resource contribution of [***]
from the effective date of this agreement through 60 months thereafter. For the purposes of this agreement, the cost share ratio shall be $15,917,094.00 Government and [***] Recipient. The Recipient intends, and by entering into this agreement,
undertakes to cause these funds to be provided. Failure of either party to provide its contribution may result in termination of this agreement, in accordance with Paragraph 7.4(a) of this agreement, or a proportional reduction in funding. As part
of the cost share of this Agreement, the Recipient agrees to provide a [***] throughout the life of this Agreement. [***]. 
  
 5.2 Audit Procedures. The Recipient shall ensure that an audit of all activities under this Agreement shall be conducted annually in accordance with the following
subparagraphs and 32 CFR 34.16. Copies of all audit reports shall be provided to the Agreements Administration Office. 

	[***].	

  
 5.2.1. Selection of Auditors, Scope of Audit, and Audit Objectives. An independent auditor, herein defined as a public accountant or government auditor who meets the standards specified in the Government Auditing Standards issued by
the U.S. Comptroller General, shall review and report Recipient expenditures of federal funds. The auditor shall determine whether: (1) The financial statements of the Recipient present fairly its financial position and the results of its operations
in accordance with generally accepted accounting principles; (2) The Recipient has an internal control structure to provide reasonable assurance that it is managing Federal awards in compliance with applicable laws and regulations, and has in



	[***]	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. 








 place adequate controls to ensure compliance with the laws and regulations that could have a material impact on the
financial statements; (3) The Recipient has complied with laws and regulations that may have a direct and material effect on its financial statement and amounts on each major Federal program; (4) The Recipient is operating in compliance with its
established policies and procedures; and (5) The Recipient has complied with all requirements of this Agreement. 
  
 5.2.2 Records. The Recipient shall maintain adequate records to account for Federal funds received, as well as cost share elements, under this Agreement. Upon
completion or termination, whichever occurs earlier, the Recipient shall furnish to the Agreement Administrator a copy of the final financial report prepared in accordance with Attachment 5. The Recipient’s relevant financial records are
subject to examination or audit by the Government for a period not to exceed three (3) years after expiration of the term of this Agreement. The Agreement Administrator or designee shall have direct access to sufficient records and information of
the Recipient, to ensure full accountability for all funding under this Agreement. Upon prior written notice such audit, examination, or access shall be performed during business hours on business days and shall be subject to the security
requirements of the audited party.  
  
 ARTICLE 6
Agreement Administration 
  
 6.1 Modifications to this Agreement. Any
Party who wishes to modify this Agreement shall, upon reasonable notice of the proposed modification to the other Party, confer in good faith with the other Party to determine the desirability of the proposed modification. Modifications shall not be
effective until a written modification is signed by the Agreement signatories or their successors. Administrative modifications may be unilaterally executed by the Grants Officer or by the Agreements Administrator. 
  
 6.2 Requirements for Approval for Changes to the Program Budget and Annual Program
Plan. This provision highlights Agency decisions on the terms and conditions of 32 CFR 32.25. During the course of performance, the Grants Officer, in coordination with the CAM, will have approval authority for certain specific changes to the
APP including but not limited to: 
  
 a. Changes in the scope or the objective of
the APP or research milestones; 
  
 b. Change in the key personnel specified in
the proposal or award document; 
  
 c. The absence for more than three months, or
a 25% reduction in time devoted to the project, by the approved project director or principal investigator. 
  
 d. The need for additional Federal funding. 







 ARTICLE 7 Term of the Agreement, Suspension, and Termination 
  
 7.1 Term of the Agreement. The term of this Agreement shall commence upon the
effective date and continue through sixty months, subject to the availability of funds. The following provisions and 32 CFR 34.51 and 34.52 as applicable address the suspension and termination of this agreement. 
  
 7.2 No-Cost Period of Performance Extension. In accordance with the DoD Grant and
Agreement Regulations (DoD 3210.6-R), the Recipient may initiate a request for a one-time, no-cost extension to the period of performance. The request may not include additional Federal funds, nor change the approved objectives or scope of the
program.  
  
 7.3 Suspension or Termination for Failure to Comply.
If the Recipient materially fails to comply with the terms and conditions of the agreement, the Grants Officer may, after having given Recipient thirty (30) days written notice of failure, take one or more of the following actions as
appropriate: 
  
 a. Temporarily withhold payments pending
correction of the deficiency by the Recipient, or more severe enforcement action as deemed appropriate by the Grants Officer, or DoD Component; 
  
 b. Disallow all or part of the cost of the activity or action not in compliance; 
  
 c. Wholly or partly suspend or terminate the current
agreement; 
  
 d. Withhold further awards for the
project or program; 
  
 e. Take any other legally
available remedies. 
  
 7.4 Termination. This Cooperative Agreement may be
terminated in whole or in part by: 
  
 a. the Grants Officer if a
Recipient materially fails to comply with the terms and conditions of the Agreement and the breach is not cured within thirty (30) days after receipt of written notice of said breech; 
  
 b. the Grants Officer should insufficient funds be available to accomplish the goals or intent of the agreement, or other
convenience of the Government; 
  
 c. the Grants Officer with the
consent of the Recipient, in which case the parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated; 







 d. the Recipient, upon sending to the Grants Officer written notification setting forth the reasons for
such termination, the effective date and, in the case of partial termination, the portion to be terminated. The Recipient must provide such notice at least 30 days prior to the effective date of the termination. If the Grants Officer determines in
the case of partial termination that the reduced or modified portion of the cooperative agreement will not accomplish the purposes for which the award was made, the Grants Officer may terminate the agreement in its entirety. 
  
 7.5 Costs Incurred During Suspension or Termination. Costs of the Recipient resulting
from obligations incurred by the Recipient during a suspension or after termination of the agreement are not allowable unless the Grants Officer expressly authorizes them in either the notice of suspension or termination, or subsequently. Other
Recipient costs incurred during suspension or termination which are necessary and not reasonably avoidable are allowable if: 
  
 a. The costs result from obligations which were properly incurred by the Recipient before the effective date of the suspension or termination, are not in
anticipation of it, and in the case of termination, are non-cancelable; and 
  
 b. the costs would be allowable if the agreement were not suspended or the award expired normally at the end of the funding period in which the termination takes effect. 
  
 ARTICLE 8 Administrative Responsibility 
  
 8.1 The Agreements Office 
  

	
	 U.S. Army Robert Morris Acquisition Center

	 Research Triangle Park Division

	 ATTN: AMSSB-ACR


  

			
	 For FedEx etc. use:
	  	For USPS use:
	 4300 S. Miami Blvd.
	  	P.O. Box 12211
	 Durham, NC 27703
	  	Research Triangle Park, NC 27709

  

	
	 Grants Officer: Patricia J. Fox

	 Phone: (919) 549-4272

	 Fax: (919) 549-4373

	 Email: patricia.fox@us.army.mil


  

	
	 Agreement Specialist: Richard Burkes

	 Phone: (919) 549-4295

	 Fax: (919) 549-4373

	 Email: richard.burkes@us.army.mil









 8.2 Agreements Administrator 
  
 DCMA Southern Virginia 
 190 Bernard Road 
 Bldg 117 
 Fort Monroe, VA 23651 
  
 8.3 The Recipient Address and Point of Contact 
  
 Ms. Sharon M. Hannigan 
 Cree, Inc. 
 4600 Silicon Drive 
 Durham, NC 27703 
 Phone: 919-313-5554 
 Fax: 919-313-5696 
 Email Address: Sharon_Hannigan@cree.com 
  
 8.4 The Payment Office 
  
 Operating Location - Rock Island 
 DFAS - Rock Island 
 Attn: DFAS-BVAJ/RI, Building 68 
 Rock Island, IL 61299-8000 
 CODE: S18129 
  
 8.5 Address of Payee 
  
 Cree, Inc. 
 4600 Silicon Drive 
 Durham, NC 27703 
  
 ARTICLE 9 Public Release or Dissemination of Information 
  
 9.1 Open Publication Policy. Notwithstanding the reporting requirements of this Agreement, parties to this Agreement favor an
open-publication policy to promote the commercial acceptance of the technology developed under this Agreement, but simultaneously recognize the necessity to protect proprietary information. 
  
 9.2 Prior Review of Public Releases. The Parties agree to confer and consult with each
other prior to publication or other disclosure of the results of work under this Agreement to 







 ensure that no classified or proprietary information is released. Prior to submitting a manuscript for publication or
before any other public disclosure, each Party will offer the other Party ample opportunity (not to exceed 60 days) to review such proposed publication or disclosure, to submit objections, and to file application letters for patents in a timely
manner. 
  
 9.3 Publication Legend. It is herein agreed that except for the
disclosure of basic information regarding this Agreement such as membership, purpose and a general description of the technical work, the Recipient will submit all proposed public releases to the ARL Cooperative Agreement Manager for comment prior
to release. Public releases include press releases, specific publicity or advertisement, and articles for proposed publication or presentation. In addition, articles for publication or presentation will contain an acknowledgement of support and a
disclaimer. Such statement may be placed either at the bottom of the first page or at the end of the paper. This should be included to read as follows. “Research was sponsored by the Army Research Laboratory and was accomplished under
Cooperative Agreement Number W911NF-04-2-0021. The views and conclusions contained in this document are those of the authors and should not be interpreted as representing the official policies, either expressed or implied, of the Army Research
Laboratory or the U.S. Government. The U.S. Government is authorized to reproduce and distribute reprints for Government purposes notwithstanding any copyright notation hereon.” 
  
 ARTICLE 10 Patent Rights 
  
 10.1 Definitions 
  
 10.1.1 Invention means any invention or discovery which is or may be patentable or otherwise protectable under Title 35 of the United States Code, or any novel variety of plant which is or may be
protected under the Plant Variety Act (7 U.S.C. 2321 et seq.). 
  
 10.1.2
Subject invention means any invention of the recipient conceived or first actually reduced to practice in the performance of work under this agreement, provided that in the case of a variety of plant, the date of determination (as defined in
section 41(d) of the Plant Variety Protection Act 7 U.S.C. 2401(d)) must occur during the period of agreement performance. 
  
 10.1.3 Practical application means to manufacture in the case of a composition or product, to practice in the case of a machine or system; and, in the case,
under such conditions as to establish that the invention is being utilized and that its benefits are, to the extent permitted by law or government regulations, available to the public on reasonable terms. 
  
 10.1.4 Made when used in relation to any invention means the conception or
first actual reduction to practice of such invention. 







 10.1.5 Small Business Firm means a small business concern as defined at Section 2 of Public Law 85-536 (15
U.S.C. 632) and implementing regulations of the Administrator of the Small Business Administration. For the purpose of this clause, the size standards for small business concerns involved in Government procurement and subcontracting at 13 CFR
121.3-8 and 13 CFR 121.3-12, respectively, will be used. 
  
 10.1.6
Nonprofit Organization means a university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c) and exempt from taxation under section
501(a) of the Internal Revenue Code (25 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified under a state nonprofit organization statute. 
  
 10.2 Allocation of Principal Rights. The recipient may retain the entire right, title, and interest throughout the world to each
subject invention subject to the provisions of this clause and 35 U.S.C. 203. With respect to any subject invention in which the recipient retains title, the federal government shall have a nonexclusive, nontransferable, irrevocable, paid-up license
to practice or have practiced for or on behalf of the United States the subject invention throughout the world. 
  
 10.3 Invention Disclosure, Election of Title and Filing of Patent Application by Recipient 
  
 10.3.1 The recipient will disclose each subject invention to ARL within two months after the inventor discloses it in writing to
recipient personnel responsible for patent matters. The disclosure to the agency shall be in the form of a written report and shall identify the agreement under which the invention was made and the inventor(s). It shall be sufficiently complete in
technical detail to convey a clear understanding to the extent known at the time of the disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also
identify any publication, sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after
disclosure to ARL, the recipient will promptly notify ARL of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the recipient. 
  
 10.3.2 The recipient will elect in writing whether or not to retain title to any such
invention by notifying ARL within two years of disclosure to ARL. However, in any case where publication, sale or public use has initiated the one year statutory period wherein valid patent protection can still be obtained in the United States, the
period for election of title may be shortened by ARL to a date that is no more than 60 days prior to the end of the statutory period. 
  
 10.3.3 The recipient will file its initial patent application on a subject invention to which it 







 elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period
wherein valid patent protection can be obtained in the United States after publication, on sale, or public use. The recipient will file patent applications in additional countries or international patent offices within either ten months of the
corresponding initial patent application or six months from the date permission is granted by the Commissioner of patents and trademarks to file foreign patent applications where such filing has been prohibited by a Secrecy Order. 
  
 10.3.4 Request for extension of the time for disclosure, election, and filing under
Subparagraphs 10.3.1, 10.3.2, and 10.3.3 may, at the discretion of ARL, be granted. 
  
 10.4 Conditions When the Government May Obtain Title. The recipient will convey title to ARL, upon written request, title to any subject invention: 
  
 10.4.1 If the recipient fails to disclose or elect to retain title to the subject invention within the times specified in 10.3 above,
or elects not to retain title; provided that ARL may only request title within 60 days after learning of the failure of the recipient to disclose or elect within the specified times. 
  
 10.4.2 In those countries in which the recipient fails to file patent applications within the times specified in Paragraph 10.3
above; provided, however, that if the recipient has filed a patent application in a country after the times specified in 10.3 above, but prior to its recipient of the written request of ARL, the recipient shall continue to retain title in that
country. 
  
 10.4.3 In any country in which the recipient decides not to
continue the prosecution of any application for, to pay the maintenance fees on, or defend in reexamination or opposition proceeding on, in a patent on a subject invention. 
  
 10.5 Minimum Rights to the Recipient and Protection of the Recipient Right to File. 
  
 10.5.1 The recipient will retain a nonexclusive royalty-free license throughout the
world in each subject invention to which the Government obtains title, except if the recipient fails to disclose the invention within the times specified in 10.3, above. The recipient’s license extends to its domestic subsidiary and affiliates,
if any, within the corporate structure of which the recipient is a party and includes the right to grant sublicenses of the same scope to the extent the recipient was legally obligated to do so at the time the agreement was awarded. The license is
transferable only with the approval of ARL except when transferred to the successor of that party of the recipient’s business to which the invention pertains. 
  
 10.5.2 The recipient’s domestic license may be revoked or modified by ARL to the extent necessary to achieve expeditious
practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with application provisions at 37 







 CFR part 404 and Agency licensing regulations (if any). This license will not be revoked in that field of use or
the geographical areas in which the recipient has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at the discretion
of the funding Federal agency to the extent the recipient, its licensees, or the domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country. 
  
 10.5.3 Before revocation or modification of the license, the funding Federal agency will furnish the recipient a written notice of
its intention to revoke or modify the license, and the recipient will be allowed thirty days (or such other time as may be authorized by the funding Federal agency for good cause shown by the recipient)after the notice to show cause why the license
should not be revoked or modified. The recipient hat the right to appeal, in accordance with applicable regulations in 37 CFR part 404 and Agency regulations (if any) concerning the licensing of Government-owned inventions, any decision concerning
the revocation or modification of the license. 
  
 10.6 Recipient Action to
Protect the Government’s Interest. 
  
 10.6.1 The recipient
agrees to execute or to have executed and promptly deliver to the Federal agency all instruments necessary to (i) establish or confirm the rights the Government has throughout the world in those subject inventions to which the recipient elects to
retain title, and (ii) convey title to the Federal agency when requested under paragraph 10.4 above and to enable the Government to obtain patent protection throughout the world in that subject invention. 
  
 10.6.2 The recipient agrees to require by written agreement or university policies and
procedures, its employees, other than clerical and non technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the recipient each subject
invention made under agreement in order that the recipient can comply with the disclosure provisions of paragraph 10.3 above, and to execute all papers necessary to file patent applications on subject inventions and to establish the
Government’s rights in the subject inventions. This disclosure format should require as a minimum, the information required by 10.3.1 above. The recipient shall instruct such employees through employee agreements or other suitable educational
programs on the importance of the reporting inventions in sufficient time to permit filing of patent applications prior to U.S or foreign statutory bars. 
  
 10.6.3 The recipient will notify the Federal agency of any decision not to continue the prosecution of a patent application, pay maintenance fees, or defend in a
reexamination or opposition proceeding on a patent, in any country, not less than thirty days before the expiration of the response period required by the relevant patent office. 
  
 10.6.4 The recipient agrees to include, within the specification of any United States patent 







 applications and any patent issuing thereon covering a subject invention, the following statement, “This invention
was made with Government support under Agreement No. W911NF-04-2-0021 awarded by ARL. The Government has certain rights in the invention.” 
  
 10.7 Subcontracts 
  
 10.7.1 The recipient will include this clause, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental or research work to be performed by a small
business firm or domestic nonprofit organization. The subcontractor will retain all rights provided for the recipient in this clause, and the recipient will not, as part of the consideration for awarding the subcontract, obtain rights in the
subcontractor’s subject invention. 
  
 10.7.2 The recipient will
include in all other subcontracts, regardless of tier, for experimental, developmental, or research work the patent rights clause required by FAR 52-227.11. 
  
 10.8 Reporting on Utilization of Subject Inventions. The recipient agrees to submit on request periodic reports no more frequently than annually on the
utilization of a subject invention or on efforts at obtaining such utilization that are being made by the recipient or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial
sale or use, gross royalties received by the recipient, and such other data and information as the agency may reasonably specify. The recipient also agrees to provide additional reports as may be requested by the agency in connection with any
march-in proceeding undertaken by the agency in accordance with paragraph 10.10 of this clause. As required by 35 U.S.C. 202(c)(5), the agency agrees it will not disclose such information to persons outside the Government without permission of the
recipient. 
  
 10.9 Preference for United States Industry. Notwithstanding
any other provision of this clause, the recipient agrees neither it nor any assignee will grant to any person the exclusive right to use or sell any subject inventions in the United States unless such person agrees that any products embodying the
subject invention will be manufactured substantially in the United States. However, in individual cases, the requirement for such an agreement may be waived by the Federal agency upon a showing by the recipient or its assignee that reasonable but
unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the United states or that under the circumstances domestic manufacture is not commercially feasible.

  
 10.10 March-in Rights. The recipient agrees that with respect to any
subject invention in which it has acquired title, the federal agency has the right in accordance with the procedures in 37 CFR 401.6 and any supplemental regulations of the Agency to require the recipient, an assignee or exclusive licensee of a
subject invention to grant a nonexclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances, and if the recipient, assignee, or exclusive
licensee 







 refuses such a request the Federal agency has the right to grant such a license itself if the Federal agency determines
that: 
  
 10.10.1 Such action is necessary because the recipient or
assignee has not taken or is not expected to take within reasonable time, effective steps to achieve practical application of the subject invention in such field of use. 
  
 10.10.2 Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the recipient, assignee,
or licensee. 
  
 10.10.3 Such action is necessary to meet requirements for
public use specified by Federal regulations and such requirements are not reasonably satisfied by the recipient, assignee, or licensee; or 
  
 10.10.4 Such action is necessary because the agreement required by paragraph 10.9 of this clause has not been obtained or waived or because a licensee of the
exclusive right to use or sell any subject invention in the United states is in breach of such agreement. 
  
 10.11 Special Provisions for Agreements with Nonprofit Organizations. If the recipient is a nonprofit organization it agrees that: 
  
 10.11.1 Rights to a subject invention in the United States may not be assigned without the approval of the Federal agency, except
where such assignment is made to an organization which has as one of its primary functions the management of inventions, provided that such assignee will be subject to the same provisions as the recipient. 
  
 10.11.2 The recipient will share royalties collected on a subject invention with the
inventor, including Federal employee co-inventors (when the Agency deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10; 
  
 10.11.3 The balance of any royalties or income earned by the recipient with respect to subject inventions, after payment of expenses
(including payments to inventors) incidental to the administration of subject inventions, will be utilized for the support of scientific research or education; and 
  
 10.11.4 It will make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small
business firms and that it will give a preference to a small business firm when licensing a subject invention if the recipient determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally
as likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided, that the recipient is also satisfied that the small business firm has the capability and resources to
carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the recipient of the 







 recipient. However, the recipient agrees that the Assistant Secretary of Commerce for Technology Policy may review the
recipient’s licensing program and decisions regarding small business applicants, and the recipient will negotiate changes to its licensing policy, procedures, or practices with the Secretary when the Secretary’s review discloses that the
recipient could take reasonable steps to implement more effectively the requirements of this paragraph 10.11.4. 
  
 10.12 Communication. Reports and notifications required by this clause shall be forwarded to the Grants Officer identified in this agreement. 
  
 ARTICLE 11 Entire Agreement 
  
 This Agreement along with all Attachments constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes any prior understandings or written or oral agreement relative to said matter. In the event of a conflict between the terms of the Agreement and its attachments, the terms of
the Agreement shall govern. 
  
 ARTICLE 12 Governing Law/Order
of Precedence 
  
 The Agreement shall be enforced in
accordance with applicable federal law and regulations, directives, circulars or other guidance as specified in this Agreement. When signed, this Agreement shall become binding on the Recipient and the Government to be administered in accordance
with the DoD Grant and Agreement Regulations as they apply to the particular recipient or subrecipient concerned. In the event a conflict exists between the provisions of this Agreement and the applicable law, regulations, directives, circulars or
other guidance, the Agreement provisions are subordinate. 
  
 ARTICLE 13 Waiver of Rights 
  
 Any waiver of any
requirement contained in this Agreement shall be by mutual agreement of the parties hereto. Any waiver shall be reduced to writing and a copy of the waiver shall be provided to each Party. Failure to insist upon strict performance of any of the
terms and conditions hereof, or failure or delay to exercise any rights provided herein or by law, shall not be deemed a waiver of any rights of any Party hereto. 







 ARTICLE 14 Use of Technical Facilities 
  
 To the maximum extent practical, the Recipient agrees to use the technical
reference facilities of the Defense Technical Information Center, 8725 John J. Kingman Road, Suite 0944, Ft. Belvoir, VA 22060-6218 (Internet address: http://www.dtic.mil) and all other sources, whether United States Government or private, for
purpose of surveying existing knowledge and avoiding needless duplication of scientific and engineering effort. 
  
 ARTICLE 15 Metric System of Measurement 
  
 The Metric Conversion Act of 1975 as amended by the Omnibus Trade and Competitiveness Act of 1988 and implemented by Executive Order 12770 gives
preference to the metric system. The Recipient shall ensure that the metric system is used to the maximum extent practicable in performance of this Agreement. 
  

ARTICLE 16 Liability 
  
 No Party to this Agreement shall be liable to any other Party for any property of that other Party consumed, damaged, or destroyed in the performance of
this Agreement, unless it is due to the negligence or misconduct of the Party or an employee or agent of the Party. 
  
 ARTICLE 17 Non-Assignment 
  
 This Agreement may not be assigned by any Party except by operation of law resulting from the merger of a party into or with another corporate entity. 
  
 ARTICLE 18 Severability 
  
 If any clause, provision or section of this Agreement shall be held illegal or invalid by any court, the invalidity of such clause, provision or section
shall not affect any of the remaining clauses, provisions or sections herein and this Agreement shall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained herein. 
  
 ARTICLE 19 Force Majeure 
  
 Neither Party shall be in breach of this Agreement for any failure of
performance caused by any event beyond its reasonable control and not caused by the fault or negligence of that Party. In the event such a force majeure event occurs, the Party unable to perform shall promptly notify the other Party and shall in
good faith maintain such partial performance as is reasonably possible and shall resume full performance as soon as is reasonably possible. 







 ARTICLE 20 Notices 
  
 All notices and prior approvals required hereunder shall be in writing and shall be addressed to the parties identified on
the Agreement cover page and Article 8. Notices shall be effective upon signature of the Grants Officer. 
  
 ARTICLE 21 Performance by Foreign Nationals 
  
 In accordance with 8 U.S.C. 1324a, it is unlawful to hire for employment in the U.S. an individual without verifying that individual’s employment
authorization. 8 CFR 274a.2 VERIFICATION OF EMPLOYMENT ELIGIBILITY identifies the official documents that establish employment eligibility. 
  
 Prior to performance of work by a foreign national as a result of this Agreement, the employer shall provide the Grants Officer the name of the foreign
national and identify the type of form(s) produced for verification of employment status. Should the foreign national’s performance require access to DoD facilities, the employer shall coordinate with the sponsor providing access, in order to
submit the following: 
  
 1. Individual’s Name 
 2. Citizenship 
 3. Date and Location of the Visit 
 4. Purpose of the Visit 
 5. Passport Number 
 6. Employer’s Verification of Work Authorization 







 ATTACHEMENT 1 
 Standard Terms and Conditions for For-Profit Entities 
  
 Department of Defense Grant and Agreement Regulations (DoDGARS) 
 (32 CFR Parts 21-34)

 Standard Terms and Conditions 
  
 The following references are to provisions of the DoDGAR that are applicable to For-Profit recipients to this agreement. Narratives following a reference
indicate the Agency’s decision on specific issues. 
  
 32 CFR 22.815
Claims, Disputes and Appeal 
  
 The Agency and recipient will
employ Alternative Dispute Resolution to resolve issues which arise during the performance of this agreement. The procedures to be used will be mutually agreed to when and if issues arise [see section 815(c)(2)]. The Grant Appeal Authority is the
Director of ARL [see section 815(e)(2)]. 
  
 32 CFR 34.1(b)(2)(ii) Sub-awards

  
 For-profit organizations that receive prime awards
covered by this part shall apply to each sub-award the administrative requirements that are applicable to the particular type of sub-recipient (see 32 CFR parts 32 and 34). 
  
 32 CFR 34.11 Standards for Financial Management Systems 
  
 The Agency does not guarantee or insure the repayment of money borrowed by the Recipient [see section 11(b)]. Fidelity bond
coverage is not required [see section 11(c)]. Bonds are not required [see section 11(d)]. 
  
 32 CFR 34.12 Payment 
  
 This agreement will employ the reimbursement method of payment [see 32 CFR 34.12(a)(1)]. 
  
 This agreement does not provide for advance payments (see section 12(a)(2)). (See Article 5, subparagraphs 5.1.2 thru 5.1.4.). 
  
 See Article 5 Fiscal Management for specifics concerning the payment
process. 
  
 32 CFR 34.17 Allowable Costs 
  
 The for-profit cost principles in 48 CFR parts 31 and 231 (in the Federal
Acquisition Regulation, or FAR, and the Defense Acquisition Regulation Supplement, or DFARs) as well as the supplemental information on allowability of audit costs in 32 CFR 34.16(f) are applicable. 
  
 32 CFR 34.18 Fee/Profit 
  
 This agreement does not provide for the payment of fee/profit to the recipients. 







 32 CFR 34.13 Cost Sharing or Matching 
  
 This provision is applicable only if cost share or match is proposed. Should cost share or match be included the parties to
this agreement will mutually agree to its allowability and valuation. 
  
 32
CFR 34.14 Program Income 
  
 Should this agreement result in
the generation of program income, the recipient shall account for said funds, add them to the funds committed to the project, and they shall be used to further the program objectives. 
  
 The recipient shall have no obligation to the Government for program income earned after the expiration of the program.

  
 Costs incident to the generation of program income may be
deducted from gross income to determine program income, provided these costs have not been charged to the award document. 
  
 The Patent and Trademark Amendments (35 U.S.C. Chapter 18) apply to inventions made under this award. 
  
 32 CFR 34.15 Revision of Budget and Program Plans 
  
 See Article 6 of this agreement.  
  
 32 CFR 34.16 Non-Federal Audits 
  
 For-profit recipients of this award are required to submit audit reports to
the Agreement Administrator. 
  
 32 CFR 34.30 through 34.31 Procurement

  
 ARL reserves the right to review prior to award
procurement documents such as request for proposals, or invitations for bids, independent cost estimates etc. during performance under this award [see 32 CFR 34.31(b)]. 
  
 32 CFR 34.20 through 34.25 Property 
  
 For-profit recipients may only purchase real property and equipment under this agreement with the prior approval of the Grants Officer. Government
approved Program Plans that include a budget indicating real property or equipment purchases will provide sufficient evidence of the required Grants Officer approval. 
  
 The recipient receives conditional title to all real property and equipment purchased under this agreement. ARL reserves the
right to transfer title to any and all equipment or real property purchased under this agreement to the Federal Government or to eligible third parties upon conclusion of this agreement. 
  
 ARL reserves the right to obtain, reproduce, publish or otherwise use for Federal Government purposes the data first
produced under this award, and authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. 
  
 For-profit organizations other than small business concerns shall comply with 35 U.S.C. 210(c) and executive Order 12591 (3 CFR, 1987 Comp., p.220) which
codifies a Presidential Memorandum on Government Patent Policy dated February 18,1983. 
  
 32 CFR 34.41 Reports 
  
 See Attachment 5 of this
agreement. 







 32 CFR 34.42 Records 
  
 32 CFR 34.61 through 34.63 After-the-Award Requirements 
  
 Appendix A to Part 34 – Contract Provisions 
  
 All contracts awarded by the Recipient, including those for amounts less than the simplified acquisition threshold, shall contain the following provisions as applicable:

  
 Equal Employment Opportunity (E.O. 11246 as amended by E.O. 11375 and
supplemented by 41 CFR Chapter 60) 
  
 Copeland “Anti-Kickback” Act (18
U.S.C. 874 and 40 U.S.C. 276c) 
  
 Contract Work Hours and Safety Standards Act
(40 U.S.C. 327-333) 
  
 Rights to Inventions Made Under a Contract, Grant or
Cooperative Agreement (37 CFR Part 401) 
  
 Clean Air Act (42 U.S.C. 7401 et seq.)
and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) 
  
 Byrd
Anti-Lobbying Amendment (31 U.S.C. 1352) 
  
 Debarment and Suspension (E.O.s 12549
and 12689) 







 ATTACHMENT 2 National Policy Requirements 
  
 National Policy Requirements 
  
 By signing this Agreement or accepting funds under this Agreement, the recipient assures that
it will comply with applicable provisions of the national policies on the following topics: 
  
 1. Nondiscrimination 
  
 a. On the basis
of race, color, or national origin, in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et seq.), as implemented by DoD regulations at 32 CFR part 195. 
  
 b.     On the basis of sex or blindness, in Title IX of the Education Amendments of 1972 (20 U.S.C. 1681, et seq.).
(Applicable to Educational Institutions only) 
  
 c. On the basis of age, in the
Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.), as implemented by Department of Health and Human Services regulations at 45 CFR part 90. 
  
 d. On the basis of handicap, in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as implemented by Department of Justice regulations at 28 CFR part 41 and
DoD regulations at 32 CFR part 56. 
  
 2. Live Organisms. For human
subjects, the Common Federal Policy for the Protection of Human Subjects, codified by the Department of Health and Human Services at 45 CFR part 46 and implemented by the Department of Defense at 32 CFR part 219. 
  
 3. Environmental Standards. 
  
 a. Comply with the applicable provisions of the Clean Air Act (42 U.S.C. 7401, et. Seq.) and
Clean Water Act (33 U.S.C. 1251, et. seq.), as implemented by Executive Order 11783 [3 CFR, 1971-1075 Comp., p. 799] and Environmental Protection Agency (EPA) rules at 40 CFR part 15. In accordance with the EPA rules, the Recipient further agrees
that it will: 
  
 - Not use any facility on the EPA’s List of Violating
Facilities in performing any award that is nonexempt under 40 CFR 15.5, as long as the facility remains on the list. 
  
 - Notify the awarding agency if it intends to use a facility in performing this award that is on the List of Violating Facilities or that the Recipient knows has been
recommended to be placed on the List of Violating Facilities. 
  
 b. Identify to
the awarding agency any impact this award may have on the quality of the human environment, and provide help the agency may need to comply with the National Environmental Policy Act (NEPA, at 42 U.S.C. 4231, et. seq.) and to prepare Environmental
Impact Statements or other required environmental documentation. In such cases, the recipient agrees to take no action that will have an adverse environmental impact (e.g., physical disturbance of a site such as breaking of ground) until the agency
provides written notification of compliance with the environmental impact analysis process. 







 4. Officials Not to Benefit. No member of or delegate to Congress, or resident commissioner, shall be admitted to
any share or part of this Agreement or to any benefit arising from it, in accordance with 41 U.S.C. 22. 
  
 5. Preference for U.S. Flag Carriers. Travel supported by U.S. Government funds under this Agreement shall use U.S. -flag air carriers (air carriers holding certificates under 49 USC 41102) for international
air transportation of people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974 (49 USC 40118) and the interpretative guidelines issued by the
Comptroller General of the United States in the March 31, 1981, amendment to the Comptroller General Decision B138942. 
  
 6. Cargo Preference. The recipient agrees that it will comply with the Cargo Preference Act of 1954 (46 U.S.C. 1241), as implemented by Department of
Transportation regulations at 46 CFR 381.7, which require that at least 50 percent of equipment, materials or commodities procured or otherwise obtained with U.S. Government funds under this agreement, and which may be transported by ocean vessel,
shall be transported on privately owned U.S.-flag commercial vessels, if available. 
  
 7. Military Recruiters. As a condition for receipt of funds available to the Department of Defense (DoD) under this award, the recipient agrees that it is not an institution of higher education (as defined in 32 CFR part 216) that
has a policy of denying, and that it is not an institution of higher education that effectively prevents, the Secretary of Defense from obtaining for military recruiting purposes: (A) entry to campuses or access to students on campuses; or (B)
access to directory information pertaining to students. If the recipient is determined, using the procedures in 32 CFR part 216, to be such an institution of higher education during the period of performance of this agreement, and therefore to be in
breach of this clause, the Government will cease all payments of DoD funds under this agreement and all other DoD grants and cooperative agreements to the recipient, and it may suspend or terminate such grants and agreements unilaterally for
material failure to comply with the terms and conditions of award. 







 ATTACHMENT 3 Other Certifications 
  
 Other Certifications 
  
 The following Certifications, which have been executed by the Recipient prior to award of this Agreement are on file with the issuing office, and are
hereby incorporated herein by reference: 
  
 a. Certification at Appendix A to 32
CFR Part 28 Regarding Lobbying 
 b. Certification at Appendix A to 32 CFR Part 25 Regarding Debarment, Suspension, and Other Responsibility Matters

 c. Certification at Appendix C to 32 CFR Part 25 Regarding Drug-Free Workplace Requirements 







 ATTACHMENT 4 Annual Program Plan and Budget 
  
 To be completed in accordance with Article 3.5. 







 ATTACHMENT 5 Reporting Requirements 
  
 REPORTING REQUIREMENTS 
  
 A. QUARTERLY REPORT 
  
 Throughout the term of the Agreement, the Recipient shall submit or otherwise provide a quarterly report (government fiscal quarter). Two (2) copies shall
be submitted or otherwise provided to the CAM, and one (1) copy shall be submitted or otherwise provided to the Agreements Administration Office. A copy of the letter of transmittal shall be submitted or otherwise provided to the Agreements Office.
The report shall contain two (2) major sections: 
  
 1. Technical Status
Report. The technical status report will detail technical progress to date on research milestones, all problems, technical issues or major developments during the reporting period. The technical status report will include a report on the status
of the collaborative activities during the reporting period. The technical status report will include the utilization of subject inventions by the Recipient. 
  
 2. Business Status Report. The business status report will provide summarized details of the resource status of this Agreement, including the status of
contributions by the Recipient. This report should compare the resource status with any payment and expenditure schedules or plans provided in the original agreement. Any major deviations shall be explained along with discussion of adjustment
actions proposed. 
  
 B. JOINT PAPERS AND PRESENTATIONS 
  
 When determined necessary by the CAM, periodic joint papers and
presentations will be given. 
  
 C. JOURNAL ARTICLES 
  
 Journal articles in general and joint ARL/Recipient journal articles are
strongly encouraged as a major reporting mechanism of this research effort. 







 D. ANNUAL and FINAL REPORTS 
  
 1. The Recipient shall submit an Annual Report making full disclosure of all major technical developments and progress for the preceding 12
months of effort within sixty (60) calendar days of completion of the effort and for each additional 12 months of effort, through the life of this agreement. The report will also provide an accounting of all Federal funds expended during the term of
the Agreement. With the approval of the Cooperative Agreement Manager, reprints of published articles may be attached to the Final Report. 
  
 2. The Recipient shall make distribution of the Annual and Final report as follows: Cooperative Agreement Manager - 1 original plus 1 copy; Agreement Administration
Office - 1 copy, and the Grants Officer - 1 copy of the letter of transmittal only. In addition, one (1) copy of the Final Report only shall be provided to Defense Technical Information Center (DTIC) addressed to 8725 John J. Kingman Road, Suite
0944, Ft. Belvoir, VA 22060-6218. 
  
 3. The Final Report shall be marked with a
distribution statement to denote the extent of its availability for further distribution, release, and disclosure with additional approvals or authorizations. The Final Report shall be marked on the front page in a conspicuous place with the
following marking: 
  
 DISTRIBUTION STATEMENT B. Distribution authorized
to U.S. Government agencies only to protect information not owned by the U.S. Government, or received with the understanding that it is not routinely transmitted outside of the U.S. Government. Other requests for this document shall be referred to
the ARL Security and Intelligence Office. 








											
	AWARD/CONTRACT	  	 1. THIS CONTRACT IS A RATED ORDER
     UNDER DPAS (15 CFR 350)
	  	RATING	  	PAGE OF PAGES
	  	  	  	1            3
			
	 2. CONTRACT (Proc. Inst. Ident.) NO.
 W911NF-04-2-0021
	  	 3. EFFECTIVE DATE
                 01 May 2004
	  	4. REQUISITION/PURCHASE REQUEST/PROJECT NO.


											
	 5. ISSUED
BY                                    CODE   
     W911NF
  
 US ARMY ROBERT MORRIS ACQ CTR –
W911NF
 RESEARCH TRIANGLE PARK CONTRACTING DIV
 ATTN: AMSRD-ACC-R
 P.O. BOX 12211
 RESEARCH TRIANGLE PARK NC 27709-2211
	 	 6. ADMINISTERED BY (If other than Item
5)                        CODE    S5111A
  
 DCMA SOUTHERN VIRGINIA
 190 BERNARD
ROAD
 BUILDING 117
 FORT MONROE VA 23651



											
		
	 7. NAME AND ADDRESS OF CONTRACTOR (No., street, city, county, state and zip code)
  
 CREE, INC.
 CREE, INC.
 4600 SILICON DRIVE
  
 DURHAM, NC 27703-8475
  
 CODE    0C9J8                            FACILITY CODE
	  	 8. DELIVERY
      ̈FOB ORIGIN        x OTHER (See
below)
  
 9. DISCOUNT FOR PROMPT PAYMENT
  
 10. SUBMIT
INVOICES                ITEM
 (4 copies unless otherwise
specified)
TO THE ADDRESS
SHOWN IN:



											
	 11. SHIP TO/MARK FOR                CODE
  
  
  
 See Schedule
	  	 12. PAYMENT WILL BE MADE BY
                                    CODE HQ0338
 DFAS-COLUMBUS CENTER
 DFAS-CO/SOUTH ENTITLEMENT
 OPERATIONS
 PO BOX 182264
 COLUMBUS OH 43218-2284

	 13. AUTHORITY FOR USING OTHER THAN FULL AND OPEN
      COMPETITION:
  ̈ 10 U.S.C. 2304(c)(            )     ̈ 41 U.S.C.
253(c)(            )
	  	 14. ACCOUNTING AND APPROPRIATION DATA
  
 See Schedule



											
	15A. ITEM NO.	 	15B. SUPPLIES/SERVICES	 	15C. QUANTITY	 	15D. UNIT	 	15E. UNIT PRICE	 	15F. AMOUNT
	 	 	SEE SCHEDULE	 	 	 	 	 	 	 	 
	 	 	 	 	15G. TOTAL AMOUNT OF CONTRACT	 	$15,917,094.00

  

															
	16. TABLE OF CONTENTS	 	 
	x	 	SEC	 	DESCRIPTION	 	PAGE(S)	 	x	 	SEC.	 	DESCRIPTION	 	PAGE(S)
	PART I - THE SCHEDULE	 	 	 	PART II - CONTRACT CLAUSES
	X	 	A	 	SOLICITATION/CONTRACT FORM	 	 	 	 	 	I	 	CONTRACT CLAUSES	 	 
	 	 	B	 	SUPPLIES OR SERVICES AND PRICES/COSTS	 	 	 	PART III - LIST OF DOCUMENTS, EXHIBITS AND OTHER ATTACHMENTS
	 	 	C	 	DESCRIPTION/SPECS./WORK STATEMENT	 	 	 	 	 	J	 	LIST OF ATTACHMENTS	 	 
	 	 	D	 	PACKAGING AND MARKING	 	 	 	PART IV - REPRESENTATIONS AND INSTRUCTIONS
	 	 	E	 	INSPECTION AND ACCEPTANCE	 	 	 	 	 	K	 	REPRESENTATIONS, CERTIFICATIONS AND OTHER STATEMENTS OF OFFERORS	 	 
	 	 	F	 	DELIVERIES OR PERFORMANCE	 	 	 	 	 	 	 
	 	 	G	 	CONTRACT ADMINISTRATION DATA	 	 	 	 	 	L	 	INSTRS., CONDS., AND NOTICES TO OFFERORS	 	 
	 	 	H	 	SPECIAL CONTRACT REQUIREMENTS	 	 	 	 	 	M	 	EVALUATION FACTORS FOR AWARD	 	 

  

			
	CONTRACTING OFFICER WILL COMPLETE ITEM 17 OR 18 AS APPLICABLE
		
	 17. x CONTRACTOR’S NEGOTIATED AGREEMENT    Contractor is required to sign this
document and return__    copies to issuing office.)    Contractor agrees to furnish and deliver all items or perform all the services set forth or otherwise identified above and on any continuation sheets
for the consideration stated herein. The rights and obligations of the parties to this contract shall be subject to and governed by the following documents: (a) this award/contract, (b) the solicitation, if any, and (c) such provisions,
representations, certifications, and specifications, as are attached or incorporated by reference herein.
 (Attachments are listed
herein.)
	  	 18.   ̈ AWARD (Contractor is not
required to sign this document.)        Your offer on Solicitation Number
                                        
        
  
 including the additions or
changes made by you which additions or changes are set forth in full above, is hereby accepted as to the items listed above and on any continuation sheets. This award consummates the contract which consists of the following documents: (a) the
Government’s solicitation and your offer, and
 (b) this award/contract. No further contractual document is necessary.



							
		
	 19A. NAME AND TITLE OF SIGNER (Type or print)
 John W. Palmour
	  	 20A. NAME AND TITLE OF CONTRACTING OFFICER
 Patricia J. Fox, Grants Officer
 Tel:  919-549-4272            EMAIL:
patricia.fox@us.army.mil

				
	19B. NAME OF CONTRACTOR	 	 19C. DATE SIGNED
 4/29/04                        
	  	 20B. UNITED STATES OF AMERICA
	  	 20C. DATE SIGNED
     2004 April
29



											
						
	BY	 	 /s/ John W. Palmour

	  	 	  	BY	  	 /s/ Patricia J. Fox

	  	 
	 	 	         (Signature of person authorized to sign)
	  	  	 	  	         (Signature of Contracting Officer)
	  

  

					
	 NSN 7540-01-152-8069
	 	26-107	 	 STANDARD FORM 26 (REV. 4-85)

			
	 PREVIOUS EDITION UNUSABLE
	 	GPO 1985 O - 469-794	 	 Prescribed by GSA

	 	 	 	 	 FAR (48 CFR) 53.214(a)