EXECUTION COPY
AMENDMENT AND EXCHANGE AGREEMENT
AMENDMENT AND EXCHANGE AGREEMENT (the "AGREEMENT"), dated as of November
30, 2004, by and between Valence Technology, Inc., a Delaware corporation, with
headquarters located at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 (the "COMPANY"), and Riverview Group, LLC (the "INVESTOR").
WHEREAS:
A. The Company and the Investor are parties to that certain Securities
Purchase Agreement, dated as of June 2, 2003 (the "SECURITIES PURCHASE
AGREEMENT"), pursuant to which, among other things, the Investor purchased from
the Company (i) 1,000 shares of the Company's Series C Convertible Preferred
Stock (the "SERIES C SHARES"), which are convertible into shares of the
Company's common stock, par value $0.001 per share (the "COMMON STOCK") (as
converted, the "SERIES C CONVERSION SHARES"), in accordance with the terms of
the Company's Certificate of Designations, Preferences and Rights of Series C
Convertible Preferred Stock (the "SERIES C CERTIFICATE OF DESIGNATIONS"), and
(ii) warrants (the "WARRANTS") to acquire up to 352,900 additional shares of
Common Stock (as exercised collectively, the "WARRANT SHARES") for each Series C
Share purchased by the Investor on the Closing Date (as defined in the
Securities Purchase Agreement). Prior to the date hereof, the Investor has
converted 139 Series C Shares into shares of Common Stock.
B. Contemporaneously with the execution and delivery of the Securities
Purchase Agreement, the Company and the Investors entered into a Registration
Rights Agreement, dated as of June 2, 2003 (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company agreed to provide certain
registration rights with respect to the Registrable Securities (as defined in
the Registration Rights Agreement) under the Securities Act of 1933, as amended
(the "1933 ACT"), and the rules and regulations promulgated thereunder, and
applicable state securities laws.
C. A registration statement on Form S-3 (Registration No. 333-107135) filed
by the Company covering the resale of all of the Series C Conversion Shares and
the Warrant Shares has been declared effective by the SEC (the "EFFECTIVE
REGISTRATION STATEMENT").
D. Contemporaneously with the execution and delivery of this Agreement, the
Company and the Investor entered into that certain Securities Purchase
Agreement, dated as of the date hereof (the "COMMON STOCK PURCHASE AGREEMENT"),
pursuant to which, among other things, the Investor purchased from the Company
2,475,248 shares of Common Stock.
E. The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, (i) the Investor shall exchange 431 of
the Investor's Series C Shares (the "INVESTOR SERIES C-1 SHARE EXCHANGE AMOUNT")
for an identical amount of shares of Series C-1 Convertible Preferred Stock (the
"SERIES C-1 SHARES") which shall be convertible into Common Stock (as converted,
the "SERIES C-1 CONVERSION SHARES"), in accordance with the terms of the
Company's Certificate of Designations, Preferences and Rights of Series C-1
Convertible Preferred Stock (the "SERIES C-1 CERTIFICATE OF DESIGNATIONS") in
the form attached hereto as EXHIBIT A, and (ii) the Investor shall exchange 430
of the Investor's Series C Shares
(the "INVESTOR SERIES C-2 SHARE EXCHANGE AMOUNT") for an identical amount of
shares of Series C-2 Convertible Preferred Stock (the "SERIES C-2 SHARES") which
shall be convertible into Common Stock (as converted, the "SERIES C-2 CONVERSION
SHARES"), in accordance with the terms of the Company's Certificate of
Designations, Preferences and Rights of Series C-2 Convertible Preferred Stock
(the "SERIES C-2 CERTIFICATE OF DESIGNATIONS") in the form attached hereto as
EXHIBIT B. For purposes hereof, (i) the Investor's Series C-1 Share Exchange
Amount and the Investor's Series C-2 Share Exchange Amount are sometimes
collectively referred to herein as the, "INVESTOR'S SHARE EXCHANGE AMOUNT," (ii)
the Series C-1 Shares and the Series C-2 Shares are sometimes collectively
referred to herein as the, "EXCHANGE SHARES" and the (iii) the Series C-1
Conversion Shares and the Series C-2 Conversion Shares are sometimes
collectively referred to herein as the, "EXCHANGE CONVERSION Shares."
F. The parties hereto desire that the Exchange Conversion Shares either be
covered by an amendment or supplement to the existing Effective Registration
Statement or by registration rights terms substantially identical to those set
forth in the Registration Rights Agreement.
G. The parties hereto desire (i) to amend certain provisions of the
Securities Purchase Agreement, (ii) to amend certain provisions of the
Registration Rights Agreement, (iii) that the Company shall issue Series C-1
Shares in accordance with the Series C-1 Certificate of Designations and this
Agreement and (iv) that the Company shall issue Series C-2 Shares in accordance
with the Series C-2 Certificate of Designations and this Agreement.
H. The exchange of the Series C Shares for the Exchange Shares is being
made in reliance upon the exemption from registration provided by Section
3(a)(9) of the 1933 Act.
I. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed to them in the Securities Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises hereinafter set forth, the Company and the Investor hereby agree as
follows:
1. EXCHANGE OF SERIES C SHARES.
(a) EXCHANGE OF SERIES C SHARES. Subject to satisfaction (or waiver)
of the conditions set forth in Sections 5 and 6 below, (i) the
Investor shall surrender to the Company at the closing
contemplated by this Agreement (the "CLOSING") the certificates
representing Series C Shares totaling the Investor's Series C-1
Share Exchange Amount and the Company shall issue and deliver to
the Investor a certificate for the Investor's Series C-1 Shares,
in an amount of one Series C-1 Share for each Series C Share
being so exchanged, and (ii) the Investor shall surrender to the
Company at the Closing the certificates representing Series C
Shares totaling the Investor's Series C-2 Share Exchange Amount
and the Company shall issue and deliver to the Investor a
certificate for the Investor's Series C-2 Shares, in an amount of
one Series C-2 Share for each Series C Share being so exchanged.
(b) CLOSING DATE. The date and time of the Closing (the "CLOSING
DATE") shall be 10:00 a.m., New York Time, on the date hereof,
subject to notification of satisfaction (or waiver) of the
conditions to the Closing set forth in Sections 5 and 6 below (or
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such later date as is mutually agreed to by the Company and the
Investor). The Closing shall occur on the Closing Date at the
offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
(c) CLOSING MECHANICS. On the Closing Date, (i) the Company shall
issue and deliver to the Investor certificates representing the
Series C-1 Shares and the Series C-2 Shares (in such
denominations as the Investor shall request) and (ii) the
Investor shall deliver to the Company the Investor's Series C
Shares for cancellation.
2. AMENDMENTS TO TRANSACTION DOCUMENTS.
(a) SECURITIES PURCHASE AGREEMENT. The Securities Purchase Agreement
is hereby amended as follows:
(i) All references to "Preferred Shares" shall mean, and are
hereby replaced with, the Exchange Shares;
(ii) All references to "Conversion Shares" shall mean, and are
hereby replaced with, the "Exchange Conversion Shares"; and
(iii) The defined term "Transaction Documents" is hereby amended
to include this Agreement.
(b) REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement
is hereby amended as follows:
(i) The term "Registrable Securities" is hereby replaced by the
following:
(1) "REGISTRABLE SECURITIES" means (i) the Series C-1
Conversion Shares (as defined in the Amendment and
Exchange Agreement, dated as of November 30, 2004,
between the Company and certain of the Investors (the
"AMENDMENT AND EXCHANGE Agreement")) issued or issuable
upon conversion of the Series C-1 Shares (as defined in
the Amendment and Exchange Agreement), (ii) the Series
C-2 Conversion Shares (as defined in the Amendment and
Exchange Agreement) issued or issuable upon conversion
of the Series C-2 Shares (as defined in the Amendment
and Exchange Agreement), (iii) the Warrant Shares
issued or issuable upon exercise of the Warrants, (iv)
the Dividend Shares issued or issuable in connection
with the Series C-1 Shares or the Series C-2 Shares,
and (v) any shares of capital stock issued or issuable
with respect to the Exchange Conversion Shares, the
Series C-1 Shares, the Series C-2 Shares, the Dividend
Shares, the Warrant Shares or the Warrants as a result
of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise, without regard
to any limitations on conversions of the Series C-1
Shares or Series C-2 Shares or exercises of Warrants.
(ii) The term "Conversion Shares" is hereby amended to mean the
Exchange Conversion Shares (as defined in the Amendment and
Exchange Agreement).
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(iii) The term "Preferred Shares" is hereby amended to mean the
Series C-1 Shares and the Series C-2 Shares (as defined in
the Amendment and Exchange Agreement).
(iv) The term "Effectiveness Deadline" is hereby amended to mean,
in the event that the Effective Registration Statement does
not cover the resale of all of the Exchange Conversion
Shares and related Dividend Shares, then as to the New
Registration Statement (as defined in Section 4(b) of the
Amendment and Exchange Agreement), 90 days after the date of
this Agreement and if the Registration Statement is subject
to full review by the SEC, 135 days after the date hereof.
(v) The term "Registration Statement" is hereby amended to
include the New Registration Statement.
3. REPRESENTATIONS AND WARRANTIES
(a) INVESTOR BRING DOWN. The Investor hereby represents and warrants
to the Company as set forth in Sections Section 2(a)-(g) and
Sections 2(h) and 2(k) as to this Agreement as if such
representations and warranties were made as of the date hereof
and set forth in their entirety in this Agreement.
(b) COMPANY BRING DOWN. The Company represents and warrants to the
Investor as set forth in Section 3 of the Common Stock Purchase
Agreement as if such representations and warranties were made as
of the date hereof and set forth in their entirety in this
Agreement.
(c) EFFECTIVE REGISTRATION STATEMENT. The Company represents and
warrants to the Investor that (i) the Effective Registration
Statement was declared effective by the SEC, (ii) no stop order
suspending the effectiveness of the Effective Registration
Statement has been issued and, to the Company's knowledge, no
proceeding for that purpose has been initiated or threatened by
the SEC, and (iii) the Effective Registration Statement covers
the resale of 2,025,489 of the Exchange Conversion Shares and all
of the Warrant Shares.
4. CERTAIN COVENANTS
(a) DISCLOSURE OF TRANSACTIONS AND OTHER MATERIAL INFORMATION. By
9:00 a.m. New York local time on the date hereof, the Company
shall issue a press release reasonably acceptable to the Investor
disclosing all material terms of the transactions contemplated
hereby. As promptly as practicable but in any event not later
than 5:30 p.m., New York local time, on the date hereof, the
Company shall file a Current Report on Form 8-K with the SEC
describing the terms of the transactions contemplated by the
Transaction Documents and including as exhibits to such Current
Report on Form 8-K this Agreement, the Series C-1 Certificate of
Designations and the Series C-2 Certificate of Designations, in
the form required by the 1934 Act (the "8-K FILING").
Notwithstanding the foregoing, the preceding sentence is not
intended to impose any greater disclosure obligation on the
Company than is imposed by the 1934 Act and the rules promulgated
thereunder. The Company shall provide the Investor with a draft
copy of the 8-K Filing as early as practicable prior to the
filing. Thereafter, for a period of
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two years the Company shall provide the Investor promptly after
filing with copies of all filings made by the Company with the
SEC pursuant to Section 13 or 15 of the 1934 Act which are not
filed pursuant to XXXXX. The Company and the Investor shall
consult with each other in issuing any press releases or
otherwise in making public statements or filings with the SEC or
any regulatory agency or Principal Market with respect to the
transactions contemplated hereby. Except as set forth above,
neither the Investor nor the Company shall issue any press
release or otherwise make any public statement, filing or other
communication about the transactions contemplated hereby without
the prior consent of the other, except if such disclosure is
required by law or the rules and regulations of any Principal
Market, in which case the disclosing party shall promptly provide
the other parties with prior notice of such public statement,
filing or other communication. The Company shall not, and shall
use its reasonable best efforts to cause each of its officers,
directors, employees and agents not to, provide the Investor with
any material nonpublic information regarding the Company or any
of its Subsidiaries from and after the filing of the 8-K Filing
without the express written consent of the Investor.
(b) REGISTRATION RIGHTS. The Company will use its best efforts to
promptly amend the Effective Registration Statement or file a
prospectus supplement to the Effective Registration Statement
such the Effective Registration Statement shall include and cover
the resale of the Exchange Conversion Shares and related Dividend
Shares. In connection with the foregoing, the parties agree that
the defined term "Conversion Shares" set forth in the
Registration Rights Agreement shall be deemed amended to include
the Exchange Conversion Shares and the defined term "Preferred
Shares" shall be deemed amended to include the Series C-1 Shares
and the Series C-2 Shares. In the event that the Company is
unable to accomplish the foregoing as to all the Exchange
Conversion Shares within five (5) Business Days after the Closing
Date, then the Company shall file a new registration statement
(the "New Registration Statement") as to any Exchange Conversion
Shares not subject to the Effective Registration Statement, with
the Exchange Conversion Shares being treated as "Registrable
Securities" in accordance with, and being governed by, identical
terms to the Registration Rights Agreement, dated as of June 3,
2003, which provisions and terms should be applicable hereto
MUTATES MUTANDIS, by and among the Company and the buyers named
therein, as if the Company and the Investors had executed such
Registration Rights Agreement, and as if the Investors were party
thereto, as of the Closing Date.
(c) EXPENSES. The Company shall promptly reimburse the Investor for
reasonable legal fees and expenses, to the extent incurred, in
connection with the transaction contemplated hereby.
(d) CANCELLATION OF SERIES C PREFERRED. The Company covenants and
agrees that, from and after the date hereof, it will not issue
any shares of Series C Convertible Preferred Stock and will file
a Certificate of Elimination with respect to the Series C
Certificate of Designation as promptly as practicable hereafter.
5. CONDITIONS TO COMPANY'S OBLIGATIONS HEREUNDER.
The obligations of the Company hereunder are subject to the satisfaction of
each of the following conditions, provided that these conditions are for the
Company's sole
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benefit and may be waived by the Company at any time in its sole discretion by
providing the Investor with prior written notice thereof:
(a) The Investor shall have executed this Agreement and delivered the
same to the Company.
(b) The Series C-1 Certificate of Designations and the Series C-2
Certificate of Designations shall have been filed with the
Secretary of State of the State of Delaware.
(c) The Investor shall have delivered to the Company the stock
certificate for the Investor's Series C Shares for cancellation.
(d) The representations and warranties of the Investor shall be true
and correct as of the date when made and as of the Closing Date
as though made at that time (except for representations and
warranties that speak as of a specific date), and the Investor
shall have performed, satisfied and complied with the covenants,
agreements and conditions required by the Transaction Documents
to be performed, satisfied or complied with by the Investor at or
prior to the Closing Date.
6. CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER.
The obligations of the Investor hereunder are subject to the satisfaction
of each of the following conditions, provided that these conditions are for the
Investor's sole benefit and may be waived by the Investor at any time in its
sole discretion by providing the Company with prior written notice thereof:
(a) The Company shall have executed each of this Agreement and
delivered the same to such Investor.
(b) Each of the Series C-1 Certificate of Designations and the Series
C-2 Certificate of Designations shall have been filed with the
Secretary of State of the State of Delaware, and a copy thereof
certified by the Secretary of State of the State of Delaware
shall have been made available to such Investor.
(c) The Common Stock (x) shall be designated for quotation or listed
on the Principal Market and (y) shall not have been suspended by
the SEC or the Principal Market from trading on the Principal
Market nor shall suspension by the SEC or the Principal Market
have been threatened either (A) in writing by the SEC or the
Principal Market or (B) by falling below the minimum listing
maintenance requirements of the Principal Market; and the
Exchange Conversion Shares issuable upon conversion of the
Exchange Shares (without regard to any limitations on
conversions) and the Warrants Shares issuable upon exercise of
the Warrants (without regard to any limitations on exercises)
shall be listed (subject to official notice of issuance) upon the
Principal Market.
(d) The representations and warranties of the Company shall be true
and correct as of the date when made and as of the Closing Date
as though made at that time (except for representations and
warranties that speak as of a specific date), and the Company
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shall have performed, satisfied and complied with the covenants,
agreements and conditions required by the Transaction Documents
to be performed, satisfied or complied with by the Company at or
prior to the Closing Date. Such Investor shall have received a
certificate, executed by the Chief Executive Officer of the
Company, dated as of the Closing Date, to the foregoing effect
and as to such other matters as may be reasonably requested by
such Buyer.
(e) Such Buyer shall have received the opinion of opinion of Akin
Gump Xxxxxxx Xxxxx & Xxxx LLP, the Company's counsel, dated as of
the Closing Date, in the form of EXHIBIT C, attached hereto.
(f) The Company shall have executed and delivered to the Investor the
certificates (in such denominations as such Investor shall
request) for the Series C-1 Shares and the Series C-2 Shares
being issued to the Investor at the Closing.
(g) The Board of Directors of the Company shall have adopted
resolutions consistent with the transactions contemplated hereby
and in a form reasonably acceptable to the Investor (the
"RESOLUTIONS").
(h) The Company shall have reserved out of its authorized and
unissued Common Stock, solely for the purpose of effecting the
conversion of the Exchange Shares, at least 2,152,500 shares of
Common Stock.
(i) The Company shall have delivered to the Investor a letter from
the Company that is acknowledged and agreed to by the Company's
transfer agent acknowledging that the Irrevocable Transfer Agent
Instructions dated June 2, 2003 shall also apply to the Exchange
Conversion Shares.
(j) The Company shall have delivered to the Investor a certificate
evidencing the incorporation and good standing of the Company and
each U.S. Subsidiary in such entity's state of incorporation or
organization issued by the Secretary of State of such state of
incorporation or organization as of a date within ten days of the
Closing Date.
(k) The Company shall have delivered to the Investor a certified copy
of the Certificate of Incorporation as certified by the Secretary
of State of the State of Delaware as of a date within ten days of
the Closing Date.
(l) The Company shall have delivered to the Investor a secretary's
certificate, dated as of the Closing Date, certifying as to (A)
the Resolutions, (B) the Certificate of Incorporation and (C) the
By-laws, each as in effect at the Closing.
(m) The Company shall have made all filings under all applicable
federal and state securities laws necessary to consummate the
issuance of the Securities pursuant to this Agreement in
compliance with such laws.
(n) The Company shall have delivered to the Investor a letter from
the Company's transfer agent certifying the number of shares of
Common Stock outstanding as of a date within five days of the
Closing Date.
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(o) The Company shall have delivered to the Investor such other
documents relating to the transactions contemplated hereby as the
Investor or their counsel may reasonably request.
7. MISCELLANEOUS.
(a) GOVERNING LAW; JURISDICTION; JURY TRIAL. All questions concerning
the construction, validity, enforcement and interpretation of
this Agreement shall be governed by the internal laws of the
State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New
York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New
York. Each party hereby irrevocably submits to the non-exclusive
jurisdiction of the state and federal courts sitting in The City
of New York, Borough of Manhattan, for the adjudication of any
dispute hereunder or in connection herewith or with any
transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action
or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to
process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such
notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and
notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by
law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE,
AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF
ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) COUNTERPARTS. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and
the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due
execution and shall be binding upon the signatory thereto with
the same force and effect as if the signature were an original,
not a facsimile signature.
(c) HEADINGS. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the
interpretation of, this Agreement.
(d) SEVERABILITY. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in
any other jurisdiction.
(e) ENTIRE AGREEMENT; EFFECT ON PRIOR AGREEMENTS; AMENDMENTS. Except
for the Transaction Documents (to the extent any such Transaction
Document is not amended by this Agreement), this Agreement
supersedes all other prior oral or written agreements among the
Investor, the Company, their affiliates and Persons acting on
their behalf
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with respect to the matters discussed herein, and this Agreement
and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered
herein and therein and, except as specifically set forth herein
or therein, neither the Company nor the Investor makes any
representation, warranty, covenant or undertaking with respect to
such matters. No provision of this Agreement may be amended or
waived other than by an instrument in writing signed by the
Company and the Investor. No such amendment shall be effective to
the extent that it applies to less than all of the holders of the
Exchange Shares then outstanding. No provision hereof may be
waived other than by an instrument in writing signed by the party
against whom enforcement is sought. No consideration shall be
offered or paid to any person to amend or consent to a waiver or
modification of any provision of any of the Transaction
Documents, the Series C-1 Certificate of Designations or the
Series C-2 Certificate of Designations unless the same
consideration also is offered to all of the parties to the
Transaction Documents, holders of Series C-1 Shares, or holders
of Series C-2 Shares, as the case may be. The Company has not,
directly or indirectly, made any agreements with any of the
Investors relating to the terms or conditions of the transactions
contemplated by the Transaction Documents except as set forth in
the Transaction Documents.
(f) NOTICES. Any notices, consents, waivers or other communications
required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been
delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept
on file by the sending party); or (iii) one Business Day after
deposit with an overnight courier service, in each case properly
addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
Valence Technology, Inc.
Xxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, President and CEO
with a copy to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: C.N. Xxxxxxxx Xxxxxxx, III
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If to the Investor:
Riverview Group, LLC
000 Xxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Residence: New York
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party five (5) days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C)
provided by an overnight courier service shall be rebuttable evidence of
personal service, receipt by facsimile or receipt from an overnight courier
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of the Exchange
Shares. The Company shall not assign this Agreement or any rights
or obligations hereunder without the prior written consent of
holders of at least 80% of the Exchange Shares then outstanding,
including by merger or consolidation, except pursuant to a Change
of Control (as defined in Section 4(b) of the Series C-1
Certificate of Designations and the Series C-2 Certificate of
Designations) with respect to which the Company is in compliance
with Section 4 of the Series C-1 Certificate of Designations and
the Series C-2 Certificate of Designations. The Investor may
assign some or all of its rights hereunder without the consent of
the Company, in which event such assignee shall be deemed to be a
Investor hereunder with respect to such assigned rights.
(h) NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the
benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may
any provision hereof be enforced by, any other Person.
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(i) SURVIVAL. The representations and warranties of the Company and
the Investor contained herein, and the agreements and covenants
set forth herein, shall survive the Closing.
(j) FURTHER ASSURANCES. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
(k) NO STRICT CONSTRUCTION. The language used in this Agreement will
be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be
applied against any party.
(l) REMEDIES. The Investor and each holder of the Securities shall
have all rights and remedies set forth in the Transaction
Documents and all rights and remedies which such holders have
been granted at any time under any other agreement or contract
and all of the rights which such holders have under any law. Any
Person having any rights under any provision of this Agreement
shall be entitled to enforce such rights specifically (without
posting a bond or other security), to recover damages by reason
of any breach of any provision of this Agreement and to exercise
all other rights granted by law. Furthermore, the Company
recognizes that in the event that it fails to perform, observe,
or discharge any or all of its obligations under this Agreement,
any remedy at law may prove to be inadequate relief to the
Investor. The Company therefore agrees that the Investor shall be
entitled to seek temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages and
without posting a bond or other security.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Investor and the Company have caused this Amendment
and Exchange Agreement to be duly executed as of the date first written above.
COMPANY: INVESTOR:
VALENCE TECHNOLOGY, INC. RIVERVIEW GROUP, LLC
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- -------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxx
Title: Vice President of Finance Title: Chief Operating Officer
EXHIBITS
Exhibit A Series C-1 Certificate of Designations
Exhibit B Series C-2 Certificate of Designations
Exhibit C Opinion of Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
