Exhibit 10.20


 


COLLABORATION AND DISTRIBUTION
AGREEMENT


 


This
Collaboration and Distribution Agreement (the “Agreement”) is entered into effective as
of April 18, 2007 (the “Effective Date”) by and between INTEMATIX CORPORATION, a
California corporation and its Affiliates (“Intematix”), and SEMILEDS CORPORATION, a
Delaware corporation and its Affiliates (“SemiLEDs”).


 


BACKGROUND


 


A.SemiLEDs
is in the business of LED, general illumination, and related lighting products.


 


B.Intematix
is in the business of phosphor products and phosphor related LED, signage,
display and lighting products.


 


C.SemiLEDs
and Intematix desire (1) to cooperate in the development of optimized
phosphors, as provided by Intematix, in combination with LED chips, as
manufactured by SemiLEDs, for high brightness, temperature stability,
reliability, and unsorted wavelength chips, and (2) to distribute SemiLEDs’
LED chips coupled with Intematix’ phosphors as One-Package Solution.


 


Now,
therefore, in consideration of the mutual promises contained herein, the
parties agree as follows:


 


1. DEFINITIONS.


 


1.1 “Affiliate(s)”
shall mean any corporation, company, or other legal entity in which a party to
this Agreement owns or controls, directly or indirectly, more than fifty (50%)
of the shares entitled to vote for the election of directors or other persons
performing similar functions, only for so long as such ownership or control
exists.


 


1.2 “Average
Selling Price” or “ASP”
means the weighted average selling price, based on the invoice price, less discounts,
sold to Customers during the two calendar quarters prior to the date of sale of
Phosphors to SemiLEDs, or LED Chips to Intematix, whichever applicable.  The ASP may vary depending on the Specific
Territory.


 


1.3 “Collaboration”
means the activities conducted pursuant to the Collaboration Plan.


 


1.4 “Company”
shall have the meaning as set forth in Section 3.1.


 


1.5 “Customers”
means end-users and packaging companies who purchase the Products for surface
mount or LED package.


 


1.6 “Approved
Customers” means Customers as listed in Exhibit A attached hereto and such
other Customers that Intematix has obtained approval from SemiLEDs according to
the procedure described in Section 3.3. 
SemiLEDs has the absolute right to remove any Approved Customer from the
Approved Customer list set forth in Exhibit A upon thirty (30) days’ written notice
to Intematix.


 


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1.7 “Distributor”
shall have the meaning as set forth in Section 3.1.


 


1.8 “LED Chips”
shall have the meaning as set forth in Section 2.1.1(b).


 


1.9 “One-Package
Solution” means Phosphors and LED Chips as being marketed and
sold together to SemiLEDs’ Customers or Intematix’s Approved Customers.


 


1.10 “Phosphors”
shall have the meaning as set forth in Section 2.1.1(a).


 


1.11 “Products”
means Phosphors and LED Chips that are sold together as One-Package
Solution.  Intematix’s Phosphors shall be
as set forth in Exhibit C,
and SemiLEDs’ LED Chips shall be as set forth in Exhibit D.


 


1.12 “Specific
Territory” means a specific country or region as designated by
SemiLEDs with respect to LED Chips, or by Intematix with respect to Phosphors,
for specific pricing policies.


 


2. COLLABORATION.


 


2.1 Collaboration Plan.


 


2.1.1                        During the term
of this Agreement, the parties shall collaborate with each other in accordance
with a written plan (the “Collaboration
Plan”), to be adopted by the parties.  The initial Collaboration Plan is attached
hereto as Exhibit E
and will include the following:


 


(a)                                  Intematix to
use its best effort to optimize the performance of its phosphor with SemiLEDs’
LED dies having 390 – 470 mn wavelength, or such other wavelengths, as a pump
source for both cold and warm light applications (“Phosphors”).


 


(b)                                 SemiLEDs to use
its best effort to optimize the performance of its LED dies (“LED Chips”) using
Phosphors.


 


(c)                                  Each of
Intematix and SemiLEDs shall cooperate to develop the highest performing One
Package Solution with the Products.


 


(d)                                 Each of
Intematix and SemiLEDs shall ensure that each of their Products delivered under
this Agreement are of the highest quality and performance.


 


2.1.2                        The
Collaboration Plan may be amended from time to time.


 


3. DISRIBUTION.


 


3.1 Definitions.  As used in this Section 3, depending on
whether the context is relating to LED Chips or Phosphors, the term “Distributor” shall
mean either (a) Intematix, which distributes LED Chips, or (b) SemiLEDs,
which distributes Phosphors as part of the One-Package Solution.  As such, in the same context, unless provided
otherwise, if the term Distributor is referred to SemiLEDs, then the term “Company” shall mean
Intematix and/or its designated Affiliate(s), and vice versa.


 


3.2 Appointment.


 


3.2.1                        Subject to the
customer approval procedure set forth in Section 3.3 below, and other terms
and conditions under this Agreement, SemiLEDs hereby appoints 


 


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Intematix as an exclusive distributor of LED Chips
to Approved Customers as part of a One-Package Solution.


 


3.2.2                        Subject to the
terms and conditions under this Agreement, Intematix hereby appoints
SemiLEDs as a non-exclusive distributor of Phosphors as part of the One-Package
Solution to Customers.


 


3.3 Approved Customers; Procedure.  Intematix shall not sell or otherwise
transfer LED Chips or the Products to any individual or entity other than the
Approved Customers as set forth in Exhibit A.  To qualify a potential customer as an
Approved Customer, Intematix shall first submit the name of the potential
customer and other required information to SemiLEDs using the Customer
Qualification Form attached hereto as Exhibit B.
SemiLEDs may reject any potential customer as an Approved Customer for any
reason or no reason.  SemiLEDs shall
acknowledge its acceptance or rejection in writing of a potential customer as
an Approved Customer within ten (10) business days of receipt of a
properly completed Customer Qualification Form. 
SemiLEDs shall have the absolute right for any reason or no reason to
remove any individual or entity from the Approved Customer list (such that that
individual or entity is no longer an Approved Customer) at any time upon thirty
(30) days’ written notice to Intematix; provided, however, and notwithstanding
any other provision of this Agreement to the contrary, if SemiLEDs materially
changes or reduces the individuals or entities from the Approved Customer list,
then Intematix may in its discretion terminate this Agreement without liability
to SemiLEDs.


 


3.4 Independent Contractor.  Distributor is and at all times shall be the
Company’s independent contractor in all matters relating to this
Agreement.  Distributor and its employees
are not agents of the Company for any purposes and shall have no power or
authority to bind or commit the Company in any way.


 


3.5 Sales and Distribution of Products; Prices.  The sale and distribution prices for the LED
Chips and Phosphors shall be determined in accordance with the Specific
Territory.


 


3.5.1                        SemiLEDs shall
sell LED Chips to Intematix, and Intematix shall sell Phosphors to SemiLEDs, to
be distributed within a Specific Territory at a price representing fifteen
percent (15%) discount from the Average Selling Price of such phosphors or LED
Chips, whichever applicable, as determined for such Specific Territory.


 


3.5.2                        Intematix may
sell LED Chips, whether or not they are part of the One-Package Solution, in
Intematix’ sole discretion, but if it elects to do so then only to Approved
Customers within a Specific Territory, and the selling price for such LED Chips
shall be equal to or higher than the Average Selling Price of similar LED Chips
determined for such Specific Territory.


 


3.6 Duties and Prohibitions.


 


3.6.1                        Facilities;
Records.  Distributor shall maintain its
own office space and facilities, with the entire cost of these items and activities
to be borne solely by such party. 
Distributor shall maintain complete and accurate books and records.  The Company shall have the right at any time
during the terms of this Agreement and for a period of six months after its
termination or expiration to examine such books, records, correspondence,
quotations, orders and other documents which pertain to the Company’s


 


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business
and the fulfillment of the Company’s obligations hereunder, as it may deem
necessary or appropriate upon reasonable advance notice to the Company.


 


3.6.2                        No Sale to
Distributors or Resellers. 
Intematix may not sell the LED Chips or the Products to any reseller,
distributor, or any person or entity that is not an end-user or package
company.  SemiLEDs may not sell the
Phosphors or the Products to any reseller, distributor, or any person or entity
that is not an end-user or package company.


 


3.6.3                        Intematix - No
Sale Outside of Specific Territory; Penalty.  Intematix shall not sell or otherwise
transfer any LED Chips or Products purchased pursuant to the Average Selling
Price determined for one Specific Territory to any entity located outside of
such Specific Territory.  A breach of
this covenant by Intematix shall subject Intematix to a penalty to SemiLEDs (i) an
amount equal to ten (10) times the difference between the purchase price
paid by Intematix for the LED Chips or Products sold or transferred (the
purchase price of which was based on the Specific Territory Intematix represented
to SemiLEDs) and the purchase price Intematix is required to pay for such LED
Chips or Products sold or distributed in the Specific Territory in which
Intematix actually sold or distributed, and (ii) all the expenses and
costs, including reasonable attorneys’ fees, incurred by SemiLEDs relating to
the enforcement of this covenant. The remedies provided under this Section 3.6.3
shall not be exclusive remedies, and that SemiLEDs shall be entitled to obtain
any and all remedies available to it whether in law or equity.


 


3.6.4                        SemiLEDs - No
Sale Outside of Specific Territory; Penalty.  SemiLEDs shall not sell or otherwise transfer
any Phosphor or Products purchased pursuant to the Average Selling Price
determined for one Specific Territory to any entity having their manufacturing
principally located outside of such Specific Territory.  A breach of this covenant by SemiLEDs shall
subject SemiLEDs to a penalty to Intematix (i) an amount equal to ten (10) times
the difference between the purchase price paid by SemiLEDs for the Phosphors or
Products sold or transferred (the purchase price of which was based on the
Specific Territory SemiLEDs represented to Intematix) and the purchase price
SemiLEDs is required to pay for such Phosphors or Products sold or distributed
in the Specific Territory in which SemiLEDs actually sold or distributed, and (ii) all
the expenses and costs, including reasonable attorneys’ fees, incurred by
Intematix relating to the enforcement of this covenant. The remedies provided
under this Section 3.6.3 shall not be exclusive remedies, and that
Intematix shall be entitled to obtain any and all remedies available to it
whether in law or equity.


 


3.6.5                        Secrecy.  During the term of this Agreement and three (3) years
thereafter, neither party shall disclose to any third party any invoice value
sold by one party to another, sales policies for any other business information
of the other party acquired from or as a consequence of transactions under this
Agreement, without the prior written consent of the other party.


 


3.6.6                        Reports.  Distributor shall prepare and submit to
Company quarterly sales information. 
Such sales information will include, at a minimum, date shipped,
quantity of Products sold, Customers’ and Approved Customers’ names, addresses,
contact information, and quantities sold to each such Customer and Approved
Customer, and remaining inventory. 
Distributor shall submit to Company, upon receipt of such information,
any competitive information, problems, complaints or suspected defects with
respect to the Products, and any feedback from any Customer or Approved
Customer.


 


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3.7 Purchase Orders and Placement.


 


3.7.1                        Addition to and
Deletion from Products. 
Intematix and SemiLEDs may, each in its sole discretion, (i) discontinue
the manufacture of any or all of Phosphors or LED Chips, respectively, or (ii) make
whatever changes or modification to the Phosphors or LED Chips, respectively,
or (iii) their availability, it deems necessary, desirable or
appropriate.  Each party may, in its sole
discretion, delete any Product from the list of Products described in Exhibit C or Exhibit D, whichever is
applicable, upon thirty (30) days’ written notice to the other party.


 


3.7.2                        Purchase Orders.  Purchase orders shall be in writing or a mode
agreeable to both parties, subject to the terms of this Agreement, and must
contain the following: (a) description of the Products to be purchased, (b) quantity
to be purchased, (c) delivery schedule, (d) bill-to and ship-to
destinations, (e) price, (f) payment terms, and (g) routing
instructions.  All purchase orders
submitted by Distributor shall be governed exclusively by the terms and
conditions of this Agreement.  Any
preprinted terms and conditions in Distributor’s purchase order in addition to
or inconsistent with those contained in this Agreement shall be of no force and
effect unless the Company specifically and expressly agrees in writing to such
terms.


 


3.7.3                        Order
Acknowledgments.  Company
will notify Distributor if an order is accepted.  No purchase order shall be binding on Company
unless and until so accepted in writing by Company.


 


3.7.4                        Product
Acceptance.  Distributor
will inspect all Products for obvious physical damage promptly upon receipt
thereof and may reject any Products that fails in a material way to meet agreed
upon specifications for such Products. 
Any Product not properly rejected within thirty (30) days of receipt of
that Product by Distributor will be deemed accepted.  As promptly as practicable after receipt by
Company of properly rejected Products, Company will, at its option and expense,
replace the Products and return such replaced Product to Distributor or credit
Distributor’s account at the current price for the rejected Product.  Improperly rejected Products will be returned
to Distributor at Distributor’s expense. 
Company reserves the right to discontinue the manufacture of any
Product.


 


3.7.5                        Cancellation.  No cancellations shall be allowed within
thirty (30) days of scheduled ship date unless prior approval is obtained in
writing from Company.


 


3.7.6                        Payment Terms.  Company will supply Distributor with price
quotations, at Distributor’s request, for products.  Payment for all orders shipped by Company
during a calendar month will be due on or before the 15th day of the second following month.  All payment shall be made in United States
dollars in immediately available funds by wire transfer to Company’s bank
account on routing instructions to be provided.


 


3.8 Compensation.  The difference between Distributor’s purchase
price for the Products and Distributor’s price paid by its Customers for such
Products will be Distributor’s sole remuneration for the purchase and sale of
the Products hereunder.  Distributor
shall have no right to receive any other payment or compensation from Company
for the purchase and sale of the Products or to receive reimbursement of any
expenses or


 


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other
costs incurred by Distributor in connection therewith, unless specifically and
expressly provided for hereunder.


 


3.9 Limited Warranties; Disclaimer; Limited
Liability.


 


3.9.1                        Except for the
warranty of title, Company warrants only that each product to be delivered
hereunder shall, under normal use and conditions, at the time of delivery and
for ninety (90) days thereafter conform substantially to Company’s
specifications therefore.  However, the
Company will have no responsibility for any such defect arising from, relating
to, or in combination with, components, parts, or materials not produced or not
provided by the Company, including without limitation Distributor’s products,
and this limited warranty is void if the defect resulted from accident, abuse,
or misapplication of the products.


 


3.9.2                        As the Company’s
sole liability and Distributor’s exclusive remedy for breach of the limited
warranty in Section 3.9.1, Company shall, at its option, (a) repair
or replace at its expense (including return shipment) any Product found by
Company to be non-conforming to warranty, or (b) reimburse Distributor for
the purchase price allocable to such Products less reasonable deductions for
usage and general market depreciation; provided that Distributor first notifies
Company in writing of the alleged defective Products and then, at Distributor’s
expense, returns such Products to Company’s designated return facility within
the applicable warranty period along with a brief statement explaining the
alleged defect. Returned Products that are found by Company to conform to such
warranty or are returned out-of-warranty will be repaired or replaced at
Company’s standard charges and shipped back to Distributor at Distributor’s
expense.  The warranty under this Section 3.9
shall not be valid if Company determines that the Product has been abused,
modified, altered, subjected to damage from accident or acts of nature or
otherwise used in breach of this Agreement or in a manner not in accordance
with the Company’s specifications or description.  THE FOREGOING STATES DISTRIBUTOR’S AND
CUSTOMER’S SOLE REMEDY AND THE COMPANY’S SOLE LIABILITY FOR BREACH OF THE
WARRANTY SET FORTH IN THIS SECTION 3.9. 
In no event shall Company be liable for any consequential or incidental
damages.  The Distributor shall have no
right or authority, express or implied, directly or indirectly, to alter,
enlarge or limit the representations or guarantees expressly contained in
Company’s most current written Product warranty as distributed by Company for
the applicable Product.  The Company may
withhold payments under Section 3.7.6 for any Product reasonably returned
for non-conformance to warranty.


 


3.9.3                        EXCEPT FOR THE
LIMITED WARRANTY PURSUANT TO SECTION 3.9.1 ABOVE, THE COMPANY DOES NOT
MAKE ANY WARRANTIES WITH RESPECT TO THE PRODUCTS OR OTHERWISE UNDER THIS AGREEMENT.  ALL DATA, INFORMATION AND PRODUCTS
PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, AND
NEITHER PARTY MAKES ANY WARRANTY AS TO THE ACCURACY, SUFFICIENCY, OR
SUITABILITY FOR THE OTHER’S USE OF ANY DATA, INFORMATION, PRODUCTS OR
ASSISTANCE PROVIDED HEREUNDER OR FOR MAKING PRODUCTS USING THE SAME.


 


3.9.4                        IN NO EVENT
SHALL EITHER PARTY ASSUME RESPONSIBILITY OR BE LIABLE FOR LOSS OR DAMAGES OF
ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT,
CONSEQUENTIAL,


 


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CONTINGENT,
OR INCIDENTAL, WHICH MIGHT ARISE OUT OF OR RELATING TO THE SALE OR USE OF ITS
PRODUCTS, WHETHER OR NOT SUCH PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF
SUCH DAMAGES.  THE PARTIES SPECIFICALLY
DISCLAIM ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.


 


4. PROPRIETARY RIGHTS AND INDEMNIFICATION.


 


4.1 Product Tradename License and Samples.  Ownership and all right, title and interest
in and to any trademarks, trade names or service marks which are valid and
enforceable, used with any Product are and shall remain vested solely in
Company.  Company grants to the
Distributor a limited license to use the trade name of Company and Company logo
solely to identify the Distributor as an independent distributor of
Company.  The Distributor shall provide
to Company, at no cost to Company, examples of all its uses of Company’s trade
name and logo and shall modify such use if requested by Company.  The Distributor shall not adopt any
trademark, trade name or service mark which is confusingly similar to the
trademark, trade name or service mark used by Company to sell or assist in the
sale of its Products.  Upon termination
of this Agreement, the Distributor will immediately cease all further use of
Company’s trademarks, trade names or service marks except as may be required in
the sale of Products in inventory.  The
Distributor’s rights and license under this Section 4.1 shall not survive
the termination of this Agreement.  All
products authorized by Company which are sold by the Distributor directly or
through its sales distribution channel must bear an authorized Company name, trademark
or logo, and no other except those authorized by Company in writing.  The Distributor may not put any Company
trademark, trade name, logo etc. on any product other than as authorized by
Company in writing.


 


4.2 No Licenses or Other Rights Granted.  Nothing in this Agreement will be construed
to grant any rights whatsoever in one party’s intellectual property to the
other Party.


 


4.3 Indemnification.  Company shall defend, indemnify, and hold
harmless Distributor and its officers, directors, employees, shareholders,
agents, successors and assigns from and against all claims, demands, damages,
liabilities, losses, settlements, costs and expenses (including reasonable
attorneys’ fees) of any kind that were awarded by final adjudication (from
which no appeal may be taken) by a court of competent jurisdiction, arising in
favor of any person, firm or corporation on account of any third party action
alleging that the marketing, sale or use of Products, or a component thereof,
by Distributor as contemplated under this Agreement violates or infringes any
third party’s United States patent issued as of the date hereof. The obligation
in Section 4.3 does not apply with respect to items (A) where the
alleged infringement or misappropriation relates to Company’s conformance with
specifications provided by the Distributor, if such infringement or
misappropriation would not have occurred but for such specification; (B) that
are modified after delivery by the Company, if the alleged infringement or
misappropriation would not have occurred but for such modification; (C) that
are combined with other products, processes or materials if such infringement
or misappropriation would not have occurred but for such combined use; (D) that
are used in a manner other than in accordance with the Company’s
specifications; or (E) where there is a failure to use replacement or
modified Products provided by the Company. Company’s obligations in this Section 4.3


 


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areconditioned
upon Distributor (X) promptly notifying Company, in writing no later than
ten (10) days after Distributor’s receipt of notification of a potential
claim of which it becomes aware, (Y) permitting Company to have sole
control of the defense, settlement, adjustment or compromise of any such claim,
and (Z) providing Company with reasonable assistance in defending,
settling or compromising such claim, at Company’s reasonable expense; Company
will not be responsible for any settlement or compromise that it does not
approve in writing. If the Products become or in the Company’s opinion is
likely to become, the subject of an infringement claim, the Company may, at its
sole discretion, (i) procure for Distributor the right to continue using
the Products, (ii) modify or replace the Products so that there is no
infringement or violation, or (iii) if neither of the foregoing options
are reasonably available to the Company, accept the return of the Products and
refund to Distributor the amounts paid for the Products during the six months
prior to the date of the claim arose  THE
FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF COMPANY AND THE
EXCLUSIVE REMEDY OF DISTRIBUTOR WITH RESPECT TO ANY ALLEGED OR ACTUAL
INFRINGEMENT OF PATENTS. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, AND
EXCEPT FOR THE LIABILITY SET FORTH UNDER SECTIONS 3.6.3 AND 3.6.4, COMPANY’S
MAXIMUM LIABILITY AND INDEMNIFICATION UNDER THIS AGREEMENT AND/OR IN CONNECTION
WITH THE SALE OF THE PRODUCTS SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE PAID
BY DISTRIBUTOR FOR THE PRODUCTS THAT GIVE RISE TO ANY CLAIM DURING THE
SIX-MONTH PERIOD PRIOR TO THE FINAL AJUDICATION SETTING FORTH THE LIABILITY
AMOUNT.  THE LIMITATIONS OF LIABILITY
CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PART OF THE BASIS OF EACH
PARTY’S BARGAIN HEREUNDER, AND NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT
ABSENT SUCH LIMITATIONS.


 


5. Confidentiality.


 


5.1 For purposes of this Agreement, “Confidential
Information” means all non-public and/or proprietary information disclosed in
the course of the activity pursuant to this Agreement.  However, the obligation of Section 5.3
shall not apply to information (a) of which the receiving party (“Recipient”) was
rightfully in possession prior to disclosure, as evidenced by appropriate
documentation, (b) independently developed by employees or agents of
Recipient as demonstrated by the written records and that such persons have not
had access to any information disclosed by the disclosing party (“Provider”) hereunder,
(c) that becomes available to the Recipient or its agents from a source
other than the Provider or its agents, provided that such source is not, to the
Recipient’s reasonable knowledge, prohibited from transmitting such information
to the Recipient by a contractual, legal or fiduciary obligation to the Provider
or its agents, (d) that becomes publicly available without fault of
Recipient, (e) which is authorized for disclosure by the disclosing party
in writing, or (f) whose disclosure is required by order of a court or
governmental authority, provided that Provider shall have been given timely
notice of such requirement and that Recipient shall cooperate with Provider to
limit the scope and effect of such order.


 


5.2 Unless such information is disclosed orally, by
visual inspection or in the form of samples, Confidential Information shall be
designated as such by an appropriate legend, such as “Confidential” or “Proprietary.”  Confidential Information that is disclosed
orally or by visual inspection shall be identified as confidential before or at
the time of disclosure, and shall be confirmed as confidential in a written
notice given by Provider to Recipient within thirty (30) days after such
disclosure.  Such notice must contain a


 


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reasonable
summary or identification of the orally or visually disclosed Confidential
Information and a statement to the effect that such information is Confidential
Information.


 


5.3 Recipient shall hold Provider’s Confidential
Information in strictest confidence for three (3) years from the date of
termination of this Agreement, using such measures as Recipient uses to protect
the confidentiality of its own Confidential Information of like importance, but
in no event using less than reasonable care. 
Recipient shall not make any disclosure of such Confidential Information
other than to its employees and consultants on a need to know basis.  Recipient shall inform each such employee and
consultant of Recipient’s confidentiality obligations under this Agreement, and
shall be jointly and severally liable for any breach of this Agreement by any
such employee or consultant.  Recipient
shall use the Confidential Information solely to perform the activities
contemplated by this Agreement.


 


6. TERM AND TERMINATION.


 


6.1 Term. 
The initial term of this Agreement shall commence on the Effective Date
and end (3)] years thereafter, unless earlier terminated as provided in this Section 6.  Thereafter, this Agreement shall be extended
automatically every year for an additional period of one (1) year, unless
terminated earlier pursuant to the terms of this Section 6 or unless
either party gives written notice to the other party of its intention not to
renew this Agreement at least thirty (30) days prior to the end of then current
term.


 


6.2 Termination for Convenience.  Notwithstanding Section 6.1, either
party may terminate this Agreement for its convenience without any liability to
the other party by giving the other party sixty (60) days prior written notice
of the termination.


 


6.3 Termination for Cause.  Either party may terminate this Agreement
immediately, upon written notice, (a) if the other party materially
breaches any term of this Agreement and fails to cure such breach within thirty
(30) days after receipt by the breaching party of written notice from the
non-breaching party describing such breach, (b) upon the institution by or
against the other party of insolvency, receivership or bankruptcy proceedings
or any other proceedings for the settlement of the other party’s debts not
dismissed within 60 days, (c) upon the other party’s making an assignment
for the benefit of creditors, or (d) upon the other party’s dissolution or
ceasing to conduct business in the normal course, or the other party’s failure
to pay its debts as they mature in the ordinary course of business.


 


6.4 Effect of Termination.  Upon termination or expiration of this
Agreement, (a) all rights granted to Distributor hereunder will
immediately cease; (b) Distributor shall immediately deliver the Quarterly
Report as to the period as yet unreported; (c) Distributor will
immediately cease all use, marketing, promotion and distribution of the Product
and return to the Company all copies of Company’s Confidential Information in
Distributor’s possession, custody or control. 
Upon termination or expiration of this Agreement, each party will
promptly return the other party’s Confidential Information.  The following Sections will survive
expiration or termination of this Agreement for any reason: Sections 3 through
5, 6.4 and 7.


 


7. GENERAL.


 


7.1 Governing Law.  This Agreement will be governed by the laws
of the State of California, United States, without giving effect to principles
of conflicts of laws.


 


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Whenever
possible, each provision of this Agreement will be interpreted so as to be
effective and valid under applicable law, but if any provision is held to be
invalid under applicable law, either in whole or in part, the provision will be
ineffective only to the extent of such invalidity, and the remaining provisions
of this Agreement shall remain in full force and effect.


 


7.2 Dispute.


 


7.2.1                        Dispute
Resolution.  Any and all
disputes, controversies or claims concerning or relating to this Agreement (a “Dispute”)
will be addressed in accordance with the procedures specified in this Section 7.2,
which will be the sole and exclusive procedures for the resolution of such
Disputes.  All negotiations pursuant to
this provision are confidential and shall be treated as compromise and settlement
negotiations for purpose of the United States Federal Rules of Evidence
and state rules of evidence.


 


7.2.2                        Negotiation.  The parties will attempt in good faith to
resolve any Dispute promptly by negotiation. 
If the Dispute has not been resolved within sixty (60) days of a party’s
request for negotiation, either party may initiate mediation as provided in Section 7.2.3.


 


7.2.3                        Nonbinding
Mediation.  A party may
initiate mediation by giving notice to the other party.  Mediation will be nonbinding and before the
Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under the then
effective JAMS Rules of Practice and Procedure.  The mediation shall take place in Santa Clara
County, California, regardless which party initiates the mediation.  The parties shall attempt to reach agreement
on the appointment of a mediator.  If
they cannot so agree, the mediator shall be appointed by JAMS and pursuant to
JAMS Rules of Practice and Procedure. 
The mediator will be a former judge of a federal or state court.  The mediation shall be completed within sixty
(60) days of its initiation, unless the parties otherwise agree.  The parties will bear their own costs and
expenses for participating in mediation under this Section 7.2.3,
including, without limitation, attorney’s fees, and shall shares equally the
mediator’s fees and expenses.


 


7.2.4                        Binding
Arbitration.  Any Dispute
that has not been resolved by mediation as provided in Section 7.2.3 may
be submitted to binding arbitration by the American Arbitration Association (“AAA”).  There will be one (1) neutral,
independent and impartial arbitrator selected in accordance with the AAA rules and
procedures then in effect; provided, however, the arbitrator may not vary,
modify or disregard any of the provisions contained in this Section 7.2.  The parties shall attempt to reach agreement
on the appointment of an arbitrator.  If
they cannot so agree, the arbitrator shall be appointed by the AAA.  The arbitration shall take place in Santa
Clara County, California, regardless which party initiates the
arbitration.  As part of any arbitration
conducted under this Section 7.2.4, each party may (i) request from
the other party documents and other materials relevant to the Dispute and
likely to bear on the issues in such Dispute, (ii) conduct no more than
five (5) oral depositions each of which will be limited to a maximum of
seven hours in testimony, (iii) propound to the other party no more than
two sets of interrogatories comprising a total of 35 questions, and (d) two
sets of requests for admissions comprising a total of 10 requested admissions
maximum. The decision and any award resulting from such arbitration shall be
final and binding.  Any final decision or
award from arbitration will be in writing and reasoned.  The judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction thereof.  The arbitrator is not empowered to award
damages in excess of compensatory damages and each party hereby irrevocably
waives any right to


 


10

















 


recover
such damages with respect to any Dispute resolved by arbitration.  Each party shall bear its own expenses
(including attorney’s fees) and an equal share of the expenses of the
arbitrator and the AAA fees.


 


7.2.5                        Confidentiality
in Dispute Resolution.  The
parties, their representatives, other participants and the mediator and
arbitrator shall hold the existence, content and result of the mediation and
arbitration in confidence.  All the
dispute resolution proceedings contemplated in this Section 7.2 will be as
confidential and private as permitted by law. 
The parties will not disclose the existence, content or results of any
proceedings conducted in accordance with this Section 7.2, and materials
submitted in connection with such proceedings will not be admissible in any
other proceeding, provided however, that this confidentiality provision will
not prevent a petition to vacate or enforce an arbitration award, and shall not
bar disclosures required by law.


 


7.2.6                        Injunctions;
Waiver.  Nothing in this Section 7.2
shall be construed to preclude any party from seeking injunctive relief from a
court without posting bond or other security, in order to protect its rights
pending mediation or arbitration.  If
either party chooses to seek such relief from a court, the parties consent to
the exclusive jurisdiction and venue of the courts located in Santa Clara
County, California.  A request by a party
to a court for such injunctive relief shall not be deemed a waiver of the
obligation to mediate or arbitrate.  EACH
PARTY ACKNOWLEDGES THAT THIS AGREEMENT TO ARBITRATE DISPUTES WAIVES THE PARTY’S
RIGHT TO TRIAL BY JURY OR COURT OR TO HAVE DISCOVERY UNDER COURT RULES.


 


7.3 Notices. 
All notices required or permitted to be given hereunder shall be in
writing and shall be either delivered by hand or national express courier or by
facsimile transmission with confirmation by express courier on the next
subsequent business day to the address and telephone number specified below (or
to such changed address as may be specified from time to time by notice duly
given).  Notice shall be deemed to have
been given upon receipt or, if given by fax, on the next business day following
transmission.


 


	
  If to Intematix:

  	
  Intematix
  Corporation

  
	
   

  	
  46410
  Fremont Blvd.

  
	
   

  	
  Fremont,
  California 94538

  
	
   

  	
  Fax:
  +1-510-668-0793

  
	
   

  	
  Attn:      Legal
  Counsel

  
	
   

  	
   

  
	
  If to SemiLEDs:

  	
  SemiLEDs
  Corporation

  
	
   

  	
  999
  Main Street, Suite 1010

  
	
   

  	
  Boise, Idaho
  83702

  
	
   

  	
  Fax:
  +1-208-728-3700

  
	
   

  	
  Attn:      Legal
  Counsel

  



 


7.4 Assignment; Sub-Contract.  Neither party may assign this Agreement
(other than by operation of law such as merger), delegate, sublicense or
sub-contract its performance under this Agreement, to any third party, other
than such party’s parent or wholly-owned subsidiaries, without obtaining the
prior written consent of the other party. 
Any purported transfer, assignment, delegation, sublicense or
sub-contract without the appropriate prior written consent shall be null and
void when attempted and of no force and effect. 
This Agreement shall be binding upon the successors and permitted
assigns of SemiLEDs and Intematix.


 


11

















 


7.5 Miscellaneous Provisions.  Nothing contained in this Agreement shall be
construed as creating a partnership or joint venture by or between the parties
or constitute either party the agent of the other.  Any provision of this Agreement may be waived
by the party entitled to the benefit thereof. 
Neither party shall be deemed, by any act or omission, to have waived
any of its rights or remedies hereunder unless such waiver is in writing and
signed by an officer of such party and then only to the extent specifically set
forth in such writing.  A waiver with
reference to one event shall not be construed as continuing or as a bar to
waiver of any right or remedy as to a subsequent event.  This Agreement constitutes the parties’
entire agreement with respect to the subject matter hereof, and all prior
agreements or understandings between them concerning such subject matter shall
not have any further force or effect. 
This Agreement may be modified only by a writing signed by both
parties.  This Agreement may be executed
by facsimile and in one or more counterparts, each of which will be deemed an
original, and all of which taken together shall be deemed one and the same
instrument.  Each party shall be
responsible for its costs and expenses in connection with this Agreement and
the transactions contemplated herein.


 


7.6 Press Releases and Publicity.  The parties will issue joint press release
regarding the strategic relationship established under the Agreement and the
language of such press release shall not be unreasonably delayed or
conditioned.  The parties may reveal the
general strategic relationship reflected by this Agreement in third party
communications including those for promotional and marketing purposes.


 


7.7 Employees and Subcontractors.  Each party warrants that it will have
agreements in place with its employees and others whose services it will utilize
pursuant to this Agreement sufficient to enable such Party to comply with all
provisions of this Agreement.


 


7.8 Compliance with Laws.  Each Party will comply with all applicable
laws and regulations (including, without limitation, the laws and regulations
of the Parties’ government(s) relating to export, import, labor and
employment) and defend and hold the other harmless from any expense or damage
resulting from its violation or alleged violation of any such law or regulation
in the performance of this Agreement.


 


7.9 Force Majeure.  Neither party will be liable for delay or
failure to fulfill its obligations under this Agreement due to acts of God
beyond its reasonable control, provided it promptly notifies the other party
and uses reasonable efforts to correct such failure or delay in its
performance.


 


IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.


 


	
  SEMILEDS CORPORATION

  	
  INTEMATIX CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  



 


12














 


Exhibit A


 


INTEMATIX’S APPROVED CUSTOMERS


 


CONFIDENTIAL


 


Hongli
Opto-Electronics Co., Ltd. 

Neo-Neon Industrial Co., Ltd 

Mason Technologies


 


Exhibit A

















 


Exhibit B


 


CUSTOMER QUALIFICATION FORM


 


Intematix
will be required to complete this application and return (preferably by email)
to SemiLEDs.  Contact information for
SemiLEDs is as follows:


 


	
  Name:

  	
  SemiLEDs
  Corporation

  
	
  Address:

  	
  999
  Main Street, Suite 1010, Boise, Idaho 83702

  
	
  Phone:

  	
  +1-389-7426

  
	
  Fax:

  	
  +1-208-728-3700

  
	
  Email:

  	
  Sales@SemiLEDs.com

  



 


 


	
  Potential Customer Information (required)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Company
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Division/Department/Subsidiary/Parent:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Office
  Locations / Addresses worldwide:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Contact
  Person:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Contact
  Information:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Business of Potential Customer:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Submitted By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Signature
  and Date:

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Telephone
  Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Email:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Acceptance Acknowledgement

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SemiLEDs
  Corporation

  	
   

  	
  Signature
  and Date:

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


Exhibit B

















 


Exhibit C


 


INTEMATIX’S PHOSPHORS


 


All phosphors being marketed by Intematix.


 


Exhibit C

















 


Exhibit D


 


SEMILEDS’ LED CHIPS


 


All LED chips being marketed by SemiLEDs.


 


Exhibit D

















 


Exhibit E


 


COLLABORATION PLAN


 


I.                 PROJECT 1:  One Package Solution


 


A.                                   Project Scope
and Objective:


 


Jointly
work on 390 nm to 470 nm phosphor developments for a white light LED Display
and SSL application.  The parties will
work closely in optimizing the Intematix phosphors in combination with SemiLED
chips for high brightness, temperature stability, reliability, and unsorted
wavelength chips: (1) to achieve 50 lumen/watt for cold light (6500K), 45
lumen/watt for warm light (3200K) for UV LED excited solutions; (2) to
achieve 80 lumen/watt for cold light (6500K), 60 lumen/watt for warm light
(3200K) for Blue LED excited solutions; (3) to prove concept of Intematix
SmartPhosphorTM using unsorted SemiLED chips with 10 nm range;
and (4) other lighting solutions as are jointly agreed.


 


B.                                     Roles and
Responsibilities of the Parties:


 


Will
include:


 


·                  Intematix will work to
optimize the performance of its phosphor with 390 - 470 nm dies as a pump
source for both cold and warm light applications (the “Developed Phosphor”).


 


·                  Intematix will (i) deliver
to SemiLEDs a reasonably sufficient amount of the Developed Phosphor as
SemiLEDs shall reasonably request and (ii) share with SemiLEDs in
confidence the specifications and other information relating to its Developed
Phosphor to assist SemiLEDs in fine-tuning packaged white lamps, using 390 nm
to 470 nm dies.


 


·                  SemiLEDs will work to
optimize the performance of its dies (“SemiLEDs Chips”) using the Developed
Phosphor.


 


·                  The parties will share with
each other in confidence the results of its effort under this Agreement and
other information relating to the Developed Phosphor and related lighting applications.


 


·                  The parties shall cooperate
under the above program to achieve a mutually successful outcome.


 


C.                                     Schedule and
Milestones and Start and End Dates:


 


To
be agreed upon at initial meeting.


 


Exhibit E