EXHIBIT 10.39
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 and 240.24b-2
JOINT VENTURE AGREEMENT
--------------------------------------------------------------------------------
between
ALLIANT TECHSYSTEMS INC.
and
VALENCE TECHNOLOGY, INC.
VALENCE TECHNOLOGY CAYMAN ISLANDS INC.
on
OCTOBER 7, 1996
ALLIANT / VALENCE CONFIDENTIAL
THIS AGREEMENT, entered into as of October 7, 1996 ("Effective Date") by and
between Valence Technology, Inc. with offices at 000 Xxxxxxxxx Xxx, Xxxxxxxxx,
Xxxxxx ("Valence US") and its wholly-owned subsidiary Valence Technology Cayman
Islands Inc. with offices at X.X. Xxx 000, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx,
Xxxxxxx Xxxx Indies ("Valence Cayman") (collectively "Valence") and Alliant
Techsystems Inc., with offices at Power Sources Center, 000 Xxxx Xxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000 ("Alliant").
WHEREAS, Valence has the knowledge, expertise and technology to design,
develop, manufacture and sell solid polymer electrolyte batteries, and Valence
owns or has rights to certain patents, trademarks, know-how, technology and
other intellectual property related to the design, manufacture, and sell such
batteries, and the laminates that are used in such batteries;
WHEREAS, Alliant has the knowledge, expertise and technology to design,
develop, manufacture and sell battery products that can incorporate solid
polymer electrolyte batteries in the United States military, foreign military
sales, and United States government specialized markets;
WHEREAS, the parties desire to form a Joint Venture Company for the purpose of
carrying on the business of designing, manufacturing, marketing, selling,
repairing, installing, maintaining, exploiting, applying, distributing and
dealing in battery products that use such batteries;
WHEREAS, the parties hereto in order to give effect to the aforesaid have
agreed to enter into this Agreement and accordingly are desirous of regulating
their relationship inter se as shareholders of the joint venture Joint Venture
Company and the activities of the joint venture Joint Venture Company in the
manner hereinafter described.
NOW, THEREFORE, In consideration of the mutual covenants and promises herein
set forth, Alliant and Valence agree as follows:
1. DEFINITIONS
1.1 AFFILIATED COMPANIES shall mean all subsidiaries, parent
companies, and subsidiaries of parent companies, where the party or parent owns
at least fifty percent (50%) of the subsidiary, or where the party's parent
owns at least fifty percent (50%) of the party.
1.2 APPLICATIONS shall mean applications for use in the Joint
Venture Markets, except for those applications for which Valence has already
granted an exclusive license to another party, such as automotive, traction and
utility load leveling markets licensed to General Motors, personalized lighting
systems and uninterruptable power supplies licensed to Goldtron Ltd., and any
applications in Korea licensed to Hanil Telecom Co., Ltd.
1.3 BATTERIES (or BATTERY, singular) shall mean the advanced
rechargeable solid polymer electrolyte batteries manufactured by the Joint
Venture Company utilizing Laminates based on the solid polymer electrolyte
technology owned and licensed by Valence.
1.4 BATTERY LAMINATE SUPPLY AGREEMENT shall mean the agreement to be
entered into between the Joint Venture Company and Valence.
1.5 BOARD shall mean the board of directors of the Joint Venture
Company.
1.6 BUSINESS shall mean the business described in Section 2.3.
1.7 JOINT VENTURE COMPANY shall mean the joint venture Joint Venture
Company referred to in Section 2.
1.8 JOINT VENTURE MARKETS shall mean United States Military, foreign
military sales and United States government specialized markets, not including
Valence standard product sales into such markets.
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1.9 LAMINATES shall mean cathode, separator and anode laminates, or
films, of the Battery, produced exclusively by Valence.
1.10 LICENSE AND SUPPORT AGREEMENTS shall mean both the agreement to
be entered into between the Joint Venture Company and Valence ("Valence License
and Support Agreement"), and the agreement to be entered into between the Joint
Venture Company and Alliant ("Alliant License and Support Agreement").
1.11 SPACE BASED APPLICATIONS shall mean Batteries intended for use
on deployment in products in space.
1.12 TRANSACTION DOCUMENTS shall mean this Agreement, the Battery
Laminate Supply Agreement, the License and Support Agreements and any other
document contemplated in this Agreement or entered into by the parties or
between each party and the Joint Venture Company in connection with this
Agreement.
1.13 VALENCE shall mean Valence US and Valence Cayman jointly and
separately, provided that Valence US shall accept any rights or obligations
that arise under this agreement in the United States, Canada or Mexico, and
Valence Cayman shall accept any rights or obligations that arise under this
agreement in the remainder of the world.
2. FORMATION
2.1 The parties shall form a joint limited liability company, to be
formed in the state of Delaware, which shall be governed by the terms of this
Joint Venture Agreement.
2.2 The joint venture company shall be named Alliant / Valence, LLC
("Joint Venture Company"), or as otherwise agreed to by the parties.
3. SHARE CAPITAL
3.1 Upon the completion of the share purchase, the Joint Venture
Company shall have an authorized capital of an amount equivalent two million
United States Dollars (US$2,000,000.00) divided into one thousand (1,000)
ordinary shares of par value one United States Dollar (US$1.00) each.
3.2 Each of Alliant and Valence shall have five hundred (500) member
shares, and each will thus have fifty percent (50%) ownership of the Joint
Venture Company.
3.2.1 Valence shall pay for its shares by contributing
polymer lithium ion battery technology and know how required
for manufacturing of batteries under its License and Support
Agreement.
3.2.2 Alliant shall pay for its shares by contributing the
flexible battery manufacturing know how, market and product
knowledge and technology for high performance military
applications under its License and Support Agreement.
Additionally, Alliant shall contribute all cash necessary to
operate Joint Venture Company for at least one (1) year,
including for salaries, operating costs, materials costs,
subcontract costs, and any necessary services and facilities.
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4. BOARD OF DIRECTORS
4.1 Unless otherwise agreed by the parties hereto, the number of
directors in the Board shall be four (4), comprising two (2) directors
appointed by Alliant and Valence, each. The Board shall be headed by a
Chairman, to be appointed from one of the directors.
4.2 The right of appointment conferred on a party hereto under
Section 4.1 shall include the right by that party to remove and replace at any
time from office, and to determine the period during which such person shall
hold the office of director.
4.3 The quorum for all meetings of the directors shall be three (3)
directors. Both parties shall use their best efforts to ensure that the minimum
number of directors necessary for a quorum be available on at least forty-eight
(48) hours notice. The Articles of Association of the Joint Venture Company
shall allow board meetings to be conducted by telephone conferencing, and
adoption of resolutions without a board meeting by unanimous written consent.
4.4 All decisions of the Board shall be decided by a simple majority
vote of those present and voting, except that at least one Board member
appointed by each party must vote in favor of any matter being passed by the
Board.
4.5 The Board shall meet at least four (4) times a year, with the
location of the meeting alternating between Horsham, Pennsylvania and
Henderson, Nevada. All expenses incurred by Board members in attending the
meetings shall be paid by the party that appointed that Board member, and shall
not be charged to Joint Venture Company.
5. SHAREHOLDER MEETING
5.1 No business shall be transacted at any general meeting of the
Joint Venture Company unless a quorum is present. Two (2) shareholders, with
at least one Alliant and one Valence shareholder, shall form a quorum. The
word "shareholder" in the context of this section includes a person attending
by proxy, attorney or representative.
5.2 All matters raised at any general meeting of the Joint Venture
Company shall, save as required by law or as otherwise provided herein, be
decided by ordinary resolution of the shareholders present at the meeting. All
resolutions must be passed by a simple majority vote of those shares voted at
the meeting, save as required by law or as otherwise provided herein.
6. INDEBTEDNESS AND ADDITIONAL CAPITALIZATION
The parties hereto agree that in the event any additional working capital is
required by the Joint Venture Company, such working capital shall be met, to
the extent possible, through the use of credit. Such credit shall be from such
financial institutions as the Board may from time to time agree. Such credit
shall be secured by all or such assets of the Joint Venture Company as the
Board shall determine. The parties hereto agree to use their best reasonable
efforts to secure appropriate credit facilities for the Joint Venture Company
on favorable terms.
7. DIVIDEND POLICY
The dividends of the Joint Venture Company shall be such as shall be
recommended by the Board from time to time who shall act in the best interests
of the Joint Venture Company when making any recommendations therefor it being
the intention of the parties to distribute profits by way of dividends subject
to commercial necessity for reinvestment in the Joint Venture Company and
subject to such method of distribution being to the mutual advantage of the
shareholders.
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CONFIDENTIAL TREATMENT REQUESTED
8. TRANSFER OF SHARES
Except for a sale, transfer or assignment as described in section 17.1, or a
sale, transfer or assignment to their subsidiaries or their divisions, the
parties hereto shall not sell, transfer, part with or otherwise dispose of its
ownership of any shares in the Joint Venture Company without the agreement of
the other party, and then only upon mutually agreeable terms.
9. TERMINATION
9.1 This Agreement shall renew automatically on each anniversary of
the Effective Date unless earlier terminated in accordance with this section 9.
9.2 This Agreement shall terminate:
9.2.1 upon mutual agreement of the parties;
9.2.2 upon failure of the Joint Venture Company to meet
the financial goals as described in section 10.15; or
9.2.3 upon failure of the Joint Venture Company to develop
the Joint Venture Market as described in section 10.9.
9.3 A party shall be deemed to have breached or defaulted if:
9.3.1 any representation, warranty or statement by such
party in any Transaction Document or in any document delivered
under any of them is not complied with or is or proves to have
been incorrect in any material respect when made; or
9.3.2 such party does not perform or comply with any one
or more of its material obligations under any Transaction
Document and such party in breach shall fail to rectify that
breach within sixty (60) days of written notice of breach
being given to that party in the terms of this Section.
9.4 In the event a party commits a breach or default, as described
above in Section 9.1, the other party hereto shall, without prejudice to any
other rights and remedies such party may have, be entitled by notice in writing
to the party in breach or default to terminate this Agreement forthwith as
against such party and thereupon such defaulting party shall transfer all of
its shares in the Joint Venture Company to the other party and shall cause any
directors appointed by such party to resign from office.
9.5 Save as hereinafter provided, Alliant shall be entitled to
forthwith terminate this Agreement if the Valence License and Support
Agreement, or Laminate Supply Agreement, is terminated or ceases to be in full
force and effect for any reason whatsoever and without prejudice to any other
rights and remedies. Save as hereinafter provided, Valence shall be entitled
to forthwith terminate this Agreement if the Alliant License and Support
Agreement is terminated or ceases to be in full force and effect for any reason
whatsoever and without prejudice to any other rights and remedies. [
]
9.6 In the event that a party becomes insolvent, dissolves, or other
wise ceases to exist, this Agreement shall immediately terminate. Further, in
such an event, the Joint Venture Company shall be immediately and automatically
liquidated and dissolved, with its surplus assets (if any) upon such
liquidation distributed to the shareholders.
Page 5
9.7 The termination of this Agreement from any cause shall not
release any party hereto from any liability which at the time of termination
has already accrued to any party hereto, or which thereafter may accrue in
respect of any act or omission prior to such termination.
9.8 In the event of any termination of this Agreement, regardless of
cause or breach by either party, the License and Support Agreements and
Laminate Supply Agreement shall immediately be terminated.
10. VARIOUS CORPORATE MATTERS
10.1 The registered office of the Joint Venture Company shall be at
such location as the Board may from time to time decide.
10.2 The Secretary of the Joint Venture Company shall be appointed by
the Board.
10.3 The auditors of the Joint Venture Company shall be mutually
agreed upon by the parties.
10.4 The financial year of the Joint Venture Company shall end on 31
December in each calendar year.
10.5 The Joint Venture Company shall maintain accurate and complete
accounting records, which shall be in accordance with Generally Accepted
Account Principles (GAAP) and each party or its appointed representatives shall
have full access to all accounting and other records of the Joint Venture
Company at all reasonable times. Each party shall have the right to audit the
records of the Joint Venture Company, at its own expense. The Joint Venture
Company shall provide to each of the parties financial information of the Joint
Venture Company necessary for each party to meet their financial reporting
obligations, including reconciliation between the Joint Venture Company's
general accepted accounting policies and those of each party, on a quarterly
basis.
10.6 Each party shall have veto power over major decisions in the
management of the Joint Venture Company.
10.7 The Board shall have the exclusive right to select, hire and
discharge the most senior level position that is responsible for:
10.7.1 the Joint Venture Company management (i.e.
President, Chief Executive Officer);
10.7.2 manufacturing, operations (i.e. Chief Operating
Officer, Vice President of Manufacturing);
10.7.3 finance (i.e. Chief Financial Officer);
10.7.4 engineering, research and development (i.e. Chief
Technical Officer, Vice President of Engineering, Vice
President of Research and Development); and
10.7.5 sales, marketing (i.e. Vice President of Marketing
and Sales).
10.8 Joint Venture Company general manager shall be a full time
employee of Joint Venture Company reporting to Joint Venture Company Board.
10.9 Joint Venture Company shall not own any plant, property or
equipment. All manufacturing shall be subcontracted, primarily to Alliant.
Alliant shall invest in the necessary production tooling and manufacturing
equipment required to support the subcontracted manufacturing. Alliant's
investment in such tooling and equipment shall be triggered upon acceptance by
the Joint Venture Company of a production contract.
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CONFIDENTIAL TREATMENT REQUESTED
10.10 Joint Venture Company may rent office and fabrication space from
Alliant at its Power Sources Center located in Horsham, Pennsylvania.
10.11 Joint Venture Company shall only use laminate materials supplied
by Valence [ ] All other components may
be procured from other sources. Joint Venture Company may purchase services
for fabrication and packaging from the Alliant Power Sources Center.
10.11.1 Joint Venture Company shall purchase laminates from
Valence at Valence's Fully-Liquidated Manufacturing Cost (as
defined in the Battery Laminate Supply Agreement) plus [
]
10.11.2 Joint Venture Company shall purchase administrative
services from Alliant at Alliant's cost plus [ ]
10.11.3 Joint Venture Company shall purchase manufacturing
services from Alliant at Alliant's cost plus [ ]
10.11.4 Joint Venture Company shall purchase marketing
services from Alliant at Alliant's cost plus [ ]
10.11.5 Joint Venture Company shall purchase distribution
services from Alliant at Alliant's cost plus [ ]
10.12 While all sales shall be between Joint Venture Company and its
customers, Alliant shall be exclusively responsible for the marketing and
distribution of Joint Venture Company products on behalf of Joint Venture
Company.
10.13 The prices for Joint Venture Company products shall be set by
the board of directors of Joint Venture Company. Joint Venture Company shall
be responsible for all royalties due on the sale of its products.
10.14 Joint Venture Company shall have exclusive rights to the Joint
Venture Markets in the United States and non-exclusive rights to the Joint
Venture Markets elsewhere. Neither Valence nor Alliant shall enter into any
joint venture, distribution arrangement or partnership in competition with
Joint Venture Company in these markets.
10.15 Joint Venture Company must meet a gross sales and profitability
goal of [ ]
respectively, by the [ ] year and must increase the gross sales amount by
[ ] each year and maintain the profitability margin each year
thereafter. Should Joint Venture Company fail to meet this measure of success,
then either party may terminate the Agreement in accordance with section 9, and
cause the dissolution of Joint Venture Company, and distribution of its assets.
10.16 Alliant shall be able to purchase products from Joint Venture
Company for its own use (in systems and subsystems manufactured by Alliant) at
a [ ] discount over the market pricing. However, it shall be
noted that Joint Venture Company shall have to pay royalties based on the fair
market value of such sales. Alliant shall not use its right to purchase
products at a discount directly from Joint Venture Company as a way to
circumvent direct sales by Joint Venture Company to customers.
10.17 Valence shall grant Joint Venture Company a right of first
refusal to the Space Based Applications market for Valence's battery technology.
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11. GOOD FAITH AND RELATIONSHIP BETWEEN PARTIES
11.1 In entering into this Agreement the parties hereto recognize
that it is impracticable to make provisions for every contingency that may
arise in the course of the performance thereof. If by reason of any unforeseen
occurrence or development the operation of this Agreement is likely to cause
any inequitable hardship to any of the parties hereto, the parties hereto shall
negotiate immediately in good faith as to what manner the terms and conditions
of this Agreement may be modified in order to provide an equitable solution in
so far as such is possible within the spirit of this Agreement for such
unforeseen occurrence or development.
11.2 The parties hereto hereby agree and declare that they will
execute and do all such acts and things as are necessary and within their power
and authority for the time being to carry into effect and/or to comply with the
provisions of this Agreement, including voting by Board members and the voting
of shares.
11.3 Nothing in this Agreement shall be construed to imply the
existence of a partnership between the parties hereto other than as
shareholders in the Joint Venture Company in accordance with the terms of this
Agreement. Valence and Alliant each represent and warrant to the other that
they have entered into no contracts, nor are subject to any obligations, which
prevent them from entering into and performing this Agreement. It is
understood and agreed that Valence and Alliant are, and at all times shall
remain, independent contractors. At no time shall either Party represent to
any third party that it is the agent of the other for any reason whatsoever.
Valence and Alliant further covenant that no authorization shall be given to
any employee to act for the other Party to this Agreement. In no event shall
either Party at any time have authority to make any contracts or commitments on
behalf of or as an agent of the other or otherwise make use of its relationship
with the other, without the other's express consent in each instance.
12. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, special, incidental
or consequential damages resulting from its performance or failure to perform
under this Agreement, whether due to a breach of contract, breach of warranty,
or such party's negligence.
13. CONFIDENTIALITY AND PUBLIC DISCLOSURE
13.1 "Confidential Information" shall mean that information of either
party which is disclosed to the other party or the Joint Venture Company
("Recipient") by reason of the parties' relationship under the Joint Venture
Agreement, either directly or indirectly in any written or recorded form,
orally, or by drawings or inspection of parts or equipment, and, either in
writing and marked as confidential or proprietary, or if oral, reduced to
writing similarly marked within thirty (30) days of disclosure.
13.2 Recipient shall receive and use the Confidential Information
only for performance of Recipient's obligations under the Joint Venture
Agreement, and will not use Confidential Information for any other purpose, and
shall not disclose such Confidential Information to any person or persons who
do not need to have knowledge of such Confidential Information in the course of
their employment.
13.3 It is expressly understood that Recipient shall not be liable
for disclosure of any Confidential Information if the same was in the public
domain at the time it was disclosed; was known to Recipient at the time of
disclosure; is disclosed with the prior written approval of the other party
hereto; is disclosed after five (5) years from the termination of the Joint
Venture Agreement; was independently developed by Recipient; or becomes known
to Recipient, on a non-confidential basis, from a source other than the other
party hereto, without breach of the Joint Venture Agreement or this letter by
Recipient.
13.4 Each party hereto shall not, except as authorized by the Board,
or required by any applicable law or regulation of the Cayman Islands or the
United States of America, reveal to any
Page 8
person, firm or Joint Venture Company any of the trade secrets, secret or
confidential operations, processes or dealings or confidential information of
the Joint Venture Company or any information concerning the organization,
business, finances, transitions or affairs of the Joint Venture Company which
may come to his knowledge under the Joint Venture Agreement and shall keep with
complete secrecy all trade secrets and other confidential information entrusted
to it and shall not use or attempt to use any such information in any manner
which may injure or cause loss either directly or indirectly to the Joint
Venture Company or its business or may be likely to do so.
13.5 Valence and Alliant agree that the terms and conditions of the
Joint Venture Agreement and this letter shall not be disclosed to any other
party without the prior written consent of the other, which consent should not
be unreasonably withheld. Neither Valence nor Alliant shall publish or use any
advertising, sales promotion, press release or publicity matters relating to
the Joint Venture Agreement or this letter, without the prior written approval
of the other, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, either party may make such disclosures and press
releases as are necessary to meet its disclosure requirements under the laws,
regulation and rules of the Cayman Islands or the United States of America.
13.6 Joint Venture Company shall not enter into any agreement that
would require it to disclose or encumber any Valence or Joint Venture Company
confidential information or intellectual property rights.
14. TRADEMARKS AND ADVERTISING, AND SAFETY
14.1 The joint venture Joint Venture Company shall market and sell
the Batteries for Applications in the Joint Venture Markets under names, trade
marks, trade names, designs, logos and get-up and all other trademark rights
relating to the marketing and sale of the Batteries for Applications in the
Joint Venture Markets shall belong to and be the absolute property of the Joint
Venture Company.
14.2 Valence may require Solid Polymer Electrolyte Batteries to be
marked with the Valence logo and name in a reasonable size so as to be noticed
by a consumer of such Solid Polymer Electrolyte Batteries. Any promotional
material produced by Alliant that specifically references any Solid Polymer
Electrolyte Battery performance specifications or promotes the additional value
of such Solid Polymer Electrolyte Batteries, shall also include a reference to
Valence and an appropriate promotional copy supplied by Valence, upon Valence's
request. Valence must approve any specifications regarding Batteries prior to
publication, or distribution, outside the Joint Venture Company, Alliant or
Valence.
14.3 Because Valence's logo and/or name will be on the Batteries,
Valence shall have right to stop manufacturing, sales and/or distribution of
Batteries, if, in Valence's sole judgement, there is any safety defect.
Additionally, Valence shall have the right to cause the joint venture Joint
Venture Company to conduct a recall of Batteries, if such a defect is
discovered in Batteries already distributed outside Joint Venture Company. The
Joint Venture Company shall install and maintain a lot tracking system adequate
to allow an effective and timely recall. Further, Valence shall review design
and quality of products to assure such products meet Valence's design and
quality standards.
14.4 Each party recognizes the right, title, and interest of the
other party and its affiliates in and to all service marks, trademarks, and
trade names used by the other and agrees not to use any of the other party's
service marks, trademarks, and trade names without the other party's express
written permission.
15. PERSONNEL
Alliant shall use its best endeavors to procure the relevant personnel required
by the Joint Venture Company in respect of the management, administration and
operations of the Joint Venture Company as well as the marketing of the Joint
Venture Company's products.
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CONFIDENTIAL TREATMENT REQUESTED
16. INTELLECTUAL PROPERTY LICENSES
16.1 Valence and Alliant, and their Affiliated Companies, shall each
grant the Joint Venture Company a world-wide, royalty-free, non-transferable,
non-sublicensable, personal license to all intellectual property created by
Valence or Alliant, or their Affiliated Companies, prior to, or during, the
term of this Agreement necessary to design, manufacture, use, sell, and
distribute Batteries, using Laminate supplied exclusively by Valence, [
] for Applications in the Joint Venture
Markets, specifically not including intellectual property related to the
composition or manufacturing of Laminates. These licenses shall be exclusive
in the United States and non-exclusive elsewhere.
16.2 The Joint Venture Company shall grant Valence and Alliant, and
their Affiliated Companies, a non-exclusive, world-wide, royalty-free,
non-transferable, non-sublicensable, personal license to all intellectual
property created by the Joint Venture Company during the term of this Agreement.
17. GENERAL
17.1 Neither party may assign its rights or obligations under this
Agreement without the prior consent of the other, and any purported assignment
without such consent shall have no force or effect, except that a party may
assign this Agreement incident to the transfer of all or substantially all of
its business. Subject to the foregoing, this Agreement shall bind and inure to
the benefit of the respective parties hereto and their successors and assigns.
17.2 No failure or delay by either party to enforce or take advantage
of any provision or right under this Agreement shall constitute a subsequent
waiver of that provision or right, nor shall it be deemed to be a waiver of any
of the other terms and conditions of this Agreement.
17.3 Neither party to this Agreement shall be liable for its failure
to perform any of its obligations hereunder during any period in which such
performance is prevented by any cause beyond its reasonable control. In the
event of any such delay the date of delivery or performance hereunder shall be
extended by a period equal to the time lost by reason of such delay.
17.4 The validity, performance and construction of this Agreement
shall be governed by the laws of the state of Delaware (excluding its conflict
of laws provisions).
17.5 Each party hereto shall bear its own costs and expenses in
respect of the preparation, negotiation, finalize and execution of this
Agreement and the other agreements or documents contemplated herein.
17.6 Each party shall comply with all applicable laws in performing
under this Agreement.
17.7 All notices or communications to be given under this Agreement
shall be in writing and shall be deemed delivered upon hand delivery, upon
acknowledged telex or facsimile communication, or seven (7) days after deposit
in the mail, postage prepaid, by certified, registered or first class mail,
addressed to the parties at their addresses set forth above.
17.8 In the event that any provision of this Agreement is prohibited
by any law governing its construction, performance or enforcement, such
provision shall be ineffective to the extent of such prohibition without
invalidating thereby any of the remaining provisions of the Agreement.
17.9 The terms and conditions of this Agreement may not be
superseded, modified, or amended except in writing which states that it is such
a modification, and is signed by an authorized representative of each party
hereto. This Agreement shall not be modified, supplemented, qualified, or
interpreted by any trade usage or prior course of dealing not made a part of
the order by its express terms.
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17.10 Section titles used herein are for reference only and shall not
be for purposes of interpretation.
17.11 This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall constitute one and the
same instrument.
17.12 This Agreement, including exhibits, and the other Transaction
Documents, constitutes the entire Agreement between the parties as to the
subject matter hereof, and supersedes and replaces all prior or contemporaneous
agreements, written or oral, regarding such subject matter, and shall take
precedence over any additional or conflicting terms which may be contained in
either party's purchase orders or order acknowledgment forms. In the event of
any conflict between the provisions of this Agreement and the Articles of
Incorporation / By-Laws of the Joint Venture Company, the provisions of this
Agreement shall prevail over Articles of Incorporation / By-Laws.
ACCEPTED AND AGREED:
VALENCE TECHNOLOGY, INC. ALLIANT TECHSYSTEMS INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------- -----------------------------------
signature of authorized representative signature of authorized representative
Xxxxxx X. Xxxx Xxxxxxx Xxxxxxxx
-------------------------------------- --------------------------------------
printed name printed name
President President and CEO
-------------------------------------- --------------------------------------
title title
10-7-96 10-7-96
-------------------------------------- --------------------------------------
date date
VALENCE TECHNOLOGY CAYMAN ISLANDS INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
signature of authorized representative
Xxxxxxx Xxxxxx
--------------------------------------
printed name
General Manager
--------------------------------------
title
10-7-96
--------------------------------------
date
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