ex_10-1.htm


    
      
        

        

      

      Exhibit
10.1

       

       

      CONVERTER
AGREEMENT

       

      THIS
CONVERTER AGREEMENT (this “Agreement” or the “Converter Agreement”) is dated
June 9, 2009
(the “Effective Date”) by and between Autocar, LLC, a Delaware limited
liability company (“Autocar”), and Balqon Corporation, a Nevada corporation
(“Balqon”).

       

      RECITALS

       

      WHEREAS,
Autocar manufactures, assembles and sells chassis for low-cab-over-engine
heavy-duty vehicles (the “Chassis”);

       

      WHEREAS,
Balqon designs, develops and distributes heavy-duty electric and hybrid drive
systems for industrial and commercial applications;

       

      WHEREAS,
Balqon will purchase the Chassis from Autocar or through an authorized Autocar
dealer (the “Dealer”) and install zero-emission heavy-duty electric drive
systems and batteries (the “Drive System”) into the Chassis for heavy-duty class
7 and class 8 electric vehicles (the “Trucks”);

       

      WHEREAS,
Autocar will provide reasonable support to Balqon in connection with Balqon’s
sale of the Trucks;

       

      WHEREAS,
the relationship of the parties with respect to certain aspects relating to the
design, assembly, marketing and sale of the Trucks will be governed by this
Agreement; and

       

      WHEREAS,
the parties intend to enter into a separate agreement regarding other terms and
conditions relating to the sale of the Chassis and the Trucks.

       

      NOW,
THEREFORE, in consideration of the Recitals set forth above, which are hereby
incorporated into this Agreement, the mutual covenants and agreements set forth
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:

       

      1.
PURCHASE AND SALE OF THE CHASSIS AND THE
TRUCKS

       

      1.1.
Branding
and Labeling. The Trucks will be branded and labeled consistently
with current Autocar branding and labeling, except that the logo “Powered by
Balqon” will appear on the side door, and the Balqon product label will appear
on the front of the cab. The parties will work together in good faith to
implement mutually-beneficial branding and labeling on the
Trucks.

       

      
        
          
          

        

        
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      1.2.
Marketing.
Promotion
and Funding. Autocar and Balqon will use commercially reasonable
efforts to advertise, market and promote Balqon’s sale of the Trucks,
individually and in cooperation with each other. Both parties will use their
respective web sites, industry
shows, sales brochures, print media and all other media outlets
reasonably available to them to advertise, market and promote Balqon’s sale of
the Trucks. In each instance of advertisement, marketing or promotion, the
parties will reference
both Autocar, as chassis manufacturer, and Balqon, as drive system manufacturer
of the Trucks. The parties will provide artwork,
photos, data and other information reasonably requested by the other
party for the preparation of marketing materials and will provide copies of
their marketing materials to the other
party. Each party's web
sites will contain links to the other party’s web site. Any use by a
party of the trade names and/or trademarks of the other party, links to the
other party’s web site or other marketing or advertising materials describing
the relationship of the parties shall be subject to the reasonable prior written
approval of the other party.

       

      1.3.
Orders
for
the Trucks. Following the execution of this Agreement, the parties
will implement procedures for Balqon’s order (the “Orders”) and purchase of the
Chassis, including (a) the purchase of a base-model Chassis (the “Demo Chassis”)
for Balqon’s use in the research of Drive System-Chassis integration,
engineering and testing (the “Engineering and Testing”), and (b) the purchase of
five Chassis within six months of the Effective Date.

       

      1.4.
Pricing
of the Chassis. The Chassis will be sold by Autocar or the Dealer
at pricing consistent with current
market pricing for the Chassis in other applications, taking into account
the removal and other changes in components and special handling and testing to
accommodate the Drive System as determined by Autocar in a commercially
reasonable manner and set forth in a separate written agreement to be entered
into by the parties.

       

      1.5.
Minimum
Annual Orders. Within twelve months of the first sale of a Truck
by Balqon to an end user (the “First Sale”), Balqon will purchase a minimum of
50 Chassis (the “First-Year Sales”). Within twelve months of the end of the
period for the First-Year Sales, Balqon will purchase a minimum of 75 Chassis
(the “Second-Year Sales”). Within twelve months of the end of the period for the
Second-Year Sales, Balqon will purchase a minimum of 112 Chassis (the
‘Third-Year Sales”). If (i) the First Sale does not occur on or before the first
anniversary of this Agreement or (ii) Balqon purchases less than the required
minimum First-, Second-or Third-Year Sales, and the shortfall is not due to
Autocar’s failure to meet the supply requirements for the Chassis, Autocar may,
in its sole discretion (a) terminate this Agreement upon not less than six
months notice to Balqon, or (b) negotiate in good faith a fair and reasonable
adjustment to the pricing of the Chassis for future purchases.

       

      1.6.
Autocar
Exclusivity.
During the term of this Agreement, and provided Balqon is in compliance
with Section
1.5 (Minimum Annual Orders) above and is not otherwise
in breach of this Agreement (taking into account any notice requirement and
applicable cure period), Autocar will not partner with any supplier of electric
drive systems other than Balqon for Autocar’s production of on road class 7 and
class 8 drayage vehicles for sale in North America, without Balqon’s prior
consent; provided,
however,
that the above exclusivity will not apply to Autocar’s use of or
partnership with suppliers of hydraulic hybrid or parallel hybrid
systems.

       

      
        
          
          

        

        
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      1.7.
Balqon
Exclusivity. During the term of this Agreement and for twelve
months following the termination of this Agreement (such twelve month year
period following the termination
of this Agreement being hereinafter referred to as the “Tail Period”), and
provided
Autocar is not in breach of this Agreement (taking into account any notice
requirement
and applicable cure period), Balqon will not partner with, sell or otherwise
supply or
install electric drive systems to any other original equipment manufacturer
other
than Autocar for all on road class 7 and class 8 (i) drayage vehicles, (ii)
refuse vehicles,
(iii) aircraft service vehicles or (iv) any other applications appropriate for
cab­ over
engine chassis (collectively, “Covered Vehicles”) for sale in the United States,
Canada or
Mexico, without Autocars prior consent; provided, however,
that during the Tail
Period Balqon may sell Covered Vehicles that would otherwise be subject to the
exclusivity
provisions of this Section 1.7 by paying a fee to Autocar in the amount of
$6,000
per vehicle (the “Exclusivity Fee”). The Exclusivity Fee shall be payable to
Autocar
within 10 business days of Balqon’s receipt of payment for the vehicle. Autocar
(or a
third-party mutually agreed to by the parties) shall have the right to audit
Balqons books and
records for the purpose of verifying compliance with this Section 1.7.
Balqon’s
obligations under this Section 1.7 shall survive the termination of this
Agreement.

       

      1.8.
Installation
of the Drive System. Autocar will ship the Chassis to Balqon for
installation of the Drive Systems.

       

      1.8.1.
Compliance
with Laws. Balqon will be responsible for ensuring that the
Trucks that it sells are in compliance with all federal, state and local laws,
regulations and standards in its performance of its work, including, without
limitation, the Federal Motor Vehicle Safety Standards (the “FMVSS”). Balqon
will certify the Drive Systems’ compliance with the FMVSS to the extent required
thereunder. Balqon will retain a copy of the “Document for Incomplete Vehicle”
supplied by Autocar with the Chassis.

       

      1.8.2.
Autocar
Assistance During Installation. Autocar or the Dealer will provide
reasonable assistance to Balqon, including providing one or more on-site
technicians, at Autocar’s cost, to provide technical assistance to Balqon in
connection with Balqon’s performance of the functions set forth below in this
Section relating to the installation of the Drive System in the Chassis. Balqon
will provide adequate space and appropriate equipment within its facility for
the technician(s) to assist Balqon in performing such functions:

       

      1.8.2.1.
Completion of FMVSS certification of the complete vehicle (the
“Certification”);

       

      1.8.2.2.
Completion of the final inspection of the Truck upon completion of the
installation of the Drive System (the “Pre-Delivery Inspection”);
and

       

      1.8.2.3.
Other general assistance with regard to the installation of the Drive System
into the Chassis.

       

      
        
          
          

        

        
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      1.9.
Delivery
and Sale of
the Trucks. After completion of the Certification, the
Pre­-Delivery Inspection and any necessary repairs and re-inspection, Balqon
will sell the Trucks to
the end-users and register and prepare the ownership paperwork for the Trucks
and any other information or documentation as required by law and as appropriate
for the end-user. Balqon will ensure that all product information intended for
the end-user is contained in the Truck prior to the sale to the
end-user.

       

      1.10.
Sales
Commissions.
During the term of this Agreement, Balqon will pay Autocar a sales
commission equal to three percent (3%) of the purchase price of a complete
Balqon electric vehicle paid by the end-user arising out of or resulting from
sales leads generated by or its Dealer (regardless of whether the sales lead
generated by Autocar or Dealer results in the chassis being supplied by Autocar
or another original equipment manufacturer). Such commission shall be paid to
Autocar within 10 business days of Balqon’s receipt of payment for the vehicle.
The terms of this Section 1.10 shall survive the termination of this
Agreement.

       

      1.11.
Technical
Sales Support. Autocar
will provide reasonable general technical assistance regarding the Chassis in
support of Balqon’s business development efforts.

       

      2.
DRIVE SYSTEM-CHASSIS INTEGRATION

       

      2.1.
Integration
Research. Engineering and Testing. All
Engineering and Testing (as defined below) of the Trucks will be completed by
Balqon, with Autocar’s reasonable assistance, as mutually agreed upon by the
parties.

       

      2.2. Balqon’s
Responsibilities
and Costs. Balqon will be responsible for conducting and
completing the Engineering and Testing at Balqon’s cost. For the purposes
hereof, “Engineering and Testing” will include, but not be limited to, the
following:

       

      2.2.1.
Engineering and design work for integration of the Drive System into the
Chassis; and

       

      2.2.2.
Testing of the integrated Drive System and the Truck for safety, performance,
durability and compliance with laws, including the FMVSS.

       

      2.3.
Autocar’s
Responsibilities
and Costs. Autocar will be responsible for the following support
for the Engineering and Testing:

       

      2.3.1.
Assistance.
Autocar will provide assistance reasonably requested by Balqon at
Autocar’s cost, with regard to the engineering, design and modification of the
Chassis, the operation and usage of the Truck (on-road and off-road), the FMVSS,
on-the-road regulations and such other areas as may be reasonably requested for
the Engineering and Testing. Autocar will use reasonable commercial efforts to
respond to Balqon’s questions related to the installation instructions provide
by Autocar to Balqon (“Installation Instructions”). The Installation
Instructions and all modifications to the Chassis are subject to Autocar’s
approval.

       

      
        
          
          

        

        
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      2.3.1.1.
The assistance to be provided by Autocar will include but not be limited to
providing consultation with respect to compliance by Balqon’s of applicable
United States Department of Transportation (“DOT”)
regulations, defining
appropriate and required testing procedures and scopes of work, identifying and
validating potential testing facilities and contractors, communication with
testing facilities and contractors, interpretation of DOT testing data and
recommendations of adjustments to improve testing results. Balqon will be
responsible for the any charges or costs of all testing and third-party testing
facilities and contractors.

       

      2.3.2.
Designs
and Models. Autocar will provide designs and models for the
Chassis reasonably requested by Balqon at Autocar’s cost.

       

      2.3.3.
Changes
to the Design of the Chassis. Autocar will make such modifications
to the design and assembly of the Chassis to facilitate the integration of the
Drive Systems as Autocar deems appropriate in its sole discretion. The first 30
design engineering hours for each such modification will be at Autocar’s cost;
Balqon will pay Autocar $75 per design engineering hour in excess of 30 hours
for each modification.

       

      2.3.4.
Development
of the Chassis. Autocar will use commercially reasonable efforts
to research and develop improvements to the Chassis and its integration with the
Drive System during the term of this Agreement.

       

      3.
QUALITY,
SERVICE, WARRANTY. Following the execution of this Agreement, the parties
will enter into a supplemental agreement setting forth quality, service,
warranty and related policies and procedures for the Chassis. The Chassis will
be covered by Autocar’s then current standard Limited Warranty (which will
exclude coverage of the Drive Systems).

       

      4.
TERM AND TERMINATION

       

      4.1.
Term
and
Renewal. The initial term of this Agreement (the “Initial Term”)
will commence on the Effective Date and will continue for 36 months after the
First Sale. Unless either party gives notice to the other party at least 60 days
prior to the expiration of the Initial Term (the “Notice Period”) of such
party’s intention to terminate this Agreement at the end of the Initial Term,
the Agreement will automatically continue for successive one-year terms (each, a
“Renewal Term”) until terminated by either party upon giving notice to the other
party at least 60 days prior to the end of a Renewal Term in accordance with
this Agreement. Notwithstanding the foregoing, if through no fault of Balqon the
Trucks have not satisfied applicable self-certification testing requirements on
or before the expiration of nine (9) months from the date the Drive System is
integrated into the Chassis by Balqon, Balqon shall have the right to terminate
the Agreement upon no less than 30 days prior written notice to
Autocar.

       

      4.2.
Termination
for Breach. During the Initial Term
and any Renewal Term. if either party breaches or fails to perform its
obligations under this Agreement. and such breach or failure continues
unremedied for 30 days after notice to the defaulting party describing such
breach or failure in reasonable detail, the non-defaulting party may terminate
this Agreement, unless such breach or failure cannot reasonably be cured within
a 30-day period, in which case the non-defaulting party may not terminate so
long as the defaulting
party has promptly commenced and diligently pursued a remedy of such breach to
the non-defaulting party’s reasonable satisfaction.

       

      
        
          
          

        

        
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      4.3.
Effect
of
Termination. The parties shall complete any pending orders
accepted by Autocar or the Dealer prior to the effective date of termination of
this Agreement.

       

      4.4.
Insolvencv. Either
party may immediately terminate this Agreement at any time in the event of the
occurrence of any of the following events (each, an “Insolvency Event”):
(a)
insolvency of the other party; (b) filing of a voluntary petition in bankruptcy
by the other party; (c) filing of any involuntary petition in bankruptcy against
the other party; (d)
appointment of a receiver or trustee for the other party; or (e) execution of an
assignment for the benefit of creditors by the other party, provided that any
such petition, appointment or assignment is not vacated or nullified within 30
days of such event. In the event of an Insolvency Event with regard to Balqon,
Balqon will, to the greatest extent possible, protect Autocar’s interests and
continue to comply with all obligations under this Agreement. If at any time
Balqon or a trustee or receiver on behalf of Balqon determines that Balqon will
not continue to comply with all obligations under this Agreement due an
Insolvency Event, Balqon will promptly notify Autocar of
same.

       

      5.
INSURANCE.
Prior to the receipt of the first Chassis from Autocar, Balqon will (a)
procure and maintain, with insurers reasonably acceptable to Autocar, the
following types of insurance coverage: (i) workers’ compensation for statutory
obligations imposed by workers’ compensation or occupational disease laws; (ii)
comprehensive general liability including products/completed operations
liability insurance with a vendor’s endorsement (broad form) with a minimum
coverage of $2,000,000; (iii) employer’s liability insurance for personal injury
and property damage with a minimum liability coverage of $2,000,000; (iv)
comprehensive automobile insurance for personal injury and property damage with
a minimum liability coverage of $1,000,000; and (v) excess/umbrella liability
insurance coverage with a minimum coverage of $10,000,000 and (b) provide
Autocar with a certificate of insurance for all policies of insurance required
hereunder in a form reasonably acceptable to Autocar, stating that the insurer
will provide Autocar with not less than 30 days advance notice of any
cancellation, non-renewal or material change in the insurance coverage and
naming Autocar as an additional insured thereunder. Balqon will provide
additional certificates of insurance at Autocar’s request.

       

      6.
CONFIDENTIAL
INFORMATION

       

      6.1. Definition
of Confidential Information. During and after the term of this
Agreement, the parties will not use or disclose, or authorize anyone else to use
or disclose, any of the terms of this Agreement, including but not limited to
the prices, any customer or supplier identities, terms of agreements with any
customers, suppliers or assemblers, identities of other subassernblers, lists of
materials, supplies, parts, assemblies, subassemblies, or equipment, methods,
blueprints, assembly and subassembly procedures and techniques, formulas,
production plans and layouts, correspondence, tiles, forms, reports, proposals,
systems, marketing plans or strategies, financial, sales or commission
information or reports, know-how, Intellectual Property (as defined in Section 6.2 (Additional
Definitions) below),
policies, electronically-stored information, software, databases and programs,
or any other secret or confidential information or matter relating to any aspect
of the business of the other party (collectively, “Confidential Information”)
without the prior consent of the other party, except as may be required under
applicable state or federal securities laws including the Securities Exchange
Act of 1934, as amended.

       

      
        
          
          

        

        
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      6.2.
Additional
Definitions. Confidential Information will not include information
which: (a) is or
becomes publicly known through no wrongful act on the receiving party’s part;
(b) is
already known to the receiving party as
of the Effective Date without any obligation restricting disclosure, (c)
comes into the receiving party’s possession without any obligation restricting
disclosure; (d) is independently developed by the receiving party without
reference to or use of the Confidential Information; or (e) is disclosed
pursuant to an order of a governmental or judicial authority, after prior notice
to the disclosing party and affording the disclosing party reasonable
opportunity and cooperation to object to the disclosure or obtain a protective
order, at the expense of the disclosing party. “Intellectual Property” includes
all trade secrets, copyrights, moral rights, author rights, Internet domain
names, patents, trademarks (including without limitation registrations and
applications, renewals and extensions therefor), continuations,
continuations-in-part, divisionals, trade names, rights in trade dress and
packaging, goodwill and all divisionals, continuations, reissues, renewals, and
extensions thereof, regardless of whether any such rights arise under the laws
of the United States or any other state, county or jurisdiction and applicable
international laws, treaties and conventions.

       

      6.3.
Return
of
Confidential Information. Upon termination of this Agreement, the
parties will immediately deliver to the other party all papers, books, manuals,
lists, correspondence, documents and other materials relating to Confidential
Information, together with all copies and embodiments of all of the foregoing,
including, without limitation, electronically-stored records, databases,
programs, computer disks and computer software, irrespective of whether the
parties created the same or were involved with the same, and will neither copy,
use nor take any such material.

       

      7.
NON-SOLICITATION.
During the term of this Agreement and for a period of twelve months
thereafter, either party will not, and will not permit any of its affiliates to,
directly or indirectly, hire, recruit or otherwise solicit or induce any
employee, customer, subscriber or supplier of the other party to terminate its
employment or other arrangement with the other party, otherwise change its
relationship with either party or establish any relationship with the other
party or any of the other party’s affiliates.

       

      
        
          
          

        

        
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      8.
INDEMNIFICATION

       

      8.1.
Balqon’s
Indemnification of Autocar. Balqon will indemnify, defend and hold
harmless Autocar and its affiliates, subsidiaries, parent companies, managers,
members, officers, employees, agents, representatives, attorneys, successors and
assigns (collectively, the “Autocar Indemnified Parties”) from and against any
and all actions, claims, demands, suits, liabilities. losses. damages,
obligations, judgments, settlements, costs and other expenses (including,
without limitation, reasonable attorneys’
fees and costs) (collectively, “Claims”) incurred or suffered by the Autocar
Indemnified
Parties which relate to or arise out of any actual or alleged (a) breach by
Balqon of
this Agreement; (b) direct or contributory infringement of, or inducement
to
infringe, any state, federal or patent, trademark, copyright or other
proprietary
right by reason of the manufacture, use or sale of the Drive Systems, the
integration
of the Drive System into the Chassis or the manufacture or marketing of
the Trucks; (c) the failure of
Balqon, the Drive Systems, the integration of the Drive System
into the Chassis or the manufacture or marketing of the Trucks to comply
with any
international treaties or agreements, federal, state or local laws, codes,
regulations
and ordinances which may be applicable to Balqon, Balqon’s business,
the Drive
Systems, the integration of the Drive System into the Chassis or the Trucks;
and (d)
any personal injury, property damage or other product liability or tort claims
relating
to the Drive Systems, the integration of the Drive System into the Chassis or
otherwise
caused by Balqon.

       

      8.2.
Autocar’s
Indemnification of Balqon. Autocar will indemnify, defend and hold
harmless Balqon and its affiliates, subsidiaries, parent companies,
shareholders, directors, officers, employees, agents, representatives,
attorneys, successors and assigns (collectively, the “Balqon Indemnified
Parties”) from and against any and all Claims incurred or suffered by the Balqon
Indemnified Parties which relate to or arise out of any actual or alleged (a)
breach by Autocar of this Agreement; (b) direct or contributory infringement of,
or inducement to infringe, any state, federal or foreign patent, trademark,
copyright or other proprietary right by reason of the manufacture, use or sale
of the Chassis; (c) the failure of Autocar or the Chassis to comply with any
international treaties or agreements, federal, state or local laws, codes,
regulations and ordinances which may be applicable to Autocar, Autocars business
or the Chassis; and (d) any personal injury, property damage or other product
liability or tort claims relating to the Chassis or otherwise caused by Autocar.
Notwithstanding the foregoing, Autocar’s indemnification obligations hereunder
will not include any Claims resulting from or arising out of (i) the integration
of the Drive System into the Chassis or the suitability of the Chassis for the
Trucks, (ii) any alteration or modification of the Chassis by a party other than
Autocar, other than alterations made in accordance with the Installation
Instructions or otherwise approved in writing by Autocar, (iii) a Chassis that
has not been used for its intended purpose and in accordance with any Autocar
operating instructions, or (iv) the suitability of the Trucks for the end
user.

       

      9.
GENERAL PROVISIONS

       

      9.1. Remedies.
The rights and remedies reserved to the parties in this Agreement will be
cumulative and in addition to all other rights and remedies provided at law or
in equity. All representations, warranties, rights, powers and remedies of the
parties will survive the termination of this Agreement. The restrictions set
forth in Section 1.7, Section 6 and Section 7 of this Agreement are reasonable
in terms of duration and scope, and in addition to any other remedy, such
restrictions may be enforced by injunctive proceedings (without the necessity of
posting bond) to preserve the status quo,
restrain a violation thereof and to compel specific performance with respect
thereto, whether or not this Agreement has terminated.

       

      
        
          
          

        

        
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      9.2.
Damages.
Except as specifically set forth in this Agreement, neither party will be
liable for any indirect, special, incidental, consequential or exemplary damages
that may in any way be related to this agreement.

       

      9.3.
NAFTA.
If the Drive Systems qualify for preferential treatment under the North
American Free Trade Agreement (“NAFTA”), Autocar will provide to Balqon a NAFTA
Certificate of Origin, United States Customs Form 434. Autocar will provide to
Balqon any additional documentation reasonably requested to certify the origin
of the Chassis as required by United States customs law, NAFTA or any other
applicable treaty or agreement. Autocar agrees to provide any documentation
required and to assist Balqon or its agents in any compilation, verification or
review of the documentation supporting the origination status of the
Chassis.

       

      9.4.
Non-Assignment.
This Agreement may not be assigned by either party without the prior
consent of the other party, except that either party may, without the other
party’s consent but with prior notice to the other party, assign any or all of
its rights and obligations under this Agreement (i) in connection with a sale of
all or substantially all of the assets or equity interests of such party or (ii)
to a subsidiary, sister company or other affiliate of such party.
Notwithstanding the foregoing, Balqon shall not assign any of its rights or
obligations under this Agreement to an Autocar Competitor (as hereinafter
defined), or engage in any other transaction the result of which is that Balqon
is directly or indirectly controlled by an Autocar Competitor without Autocar’s
prior written consent. For the purposes hereof, an “Autocar Competitor” shall
mean any original equipment manufacturer or any other person or entity (or any
affiliate thereof) that, directly or indirectly, competes with Autocar in the
refuse or yard tractor industry.

       

      9.5.
Notice
of Sale or
Relocation. Balqon will promptly, or as soon after such action is
not prohibited under the terms of a confidentiality agreement between Balqon and
any other party, give Autocar notice of any material negotiations between Balqon
and any other party with regard to a sale of all or substantially all of the
assets or equity, merger or similar transaction involving Balqon, and will keep
Autocar informed as to the status and timetable thereof.

       

      9.6.
Amendment
and Waiver. This Agreement may be amended only by a written
document executed by both parties hereto. No waiver of any rights of a party
under this Agreement will be effective unless in writing and executed by the
party granting the waiver.

       

      
        
          
          

        

        
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      9.7.
Governing
Law. Jurisdiction. Venue. Dispute Resolution and Attornevs’ Fees.
This Agreement will be construed according to the laws of the State of
Illinois without regard to its conflicts of laws provisions. All actions or
proceedings in any way, manner or respect arising out of or related to this
Agreement will be litigated only in state or federal courts, as appropriate,
located in Chicago. Illinois. Each party hereby consents
and submits to jurisdiction in the State of Illinois and waives any right to
transfer the venue of any such action or proceeding. Prior to initiating any
cause of action, the parties will promptly attempt in good faith to resolve any
controversy, claim or dispute of any nature arising out of or relating to this
Agreement, or the breach, termination, enforceability, interpretation or
validity of this Agreement (each, a “Dispute”) by negotiating between executives
or managers who have authority to settle the Dispute. The prevailing party in
any litigation over a Dispute will be entitled to recover from the
non-prevailing party all costs and expenses, including without limitation,
reasonable attorneys’ fees and costs incurred by such party in connection with
such litigation.

       

      9.8.
Entire
Agreement. This Agreement constitutes the entire agreement between
Autocar and Balqon with respect to the subject matter contained herein and
supersedes all prior oral or written representations and agreements as well as
any drafts, purchase orders, sales confirmations, invoices or other
communications issued prior to the Effective Date. No terms or conditions
contained in any purchase orders, sales confirmations, invoices or other
communications which are contrary with those contained in this Agreement will
have effect, and the terms
and conditions of this Agreement will govern, unless otherwise
specifically agreed to in writing, and then only to the extent of the terms
specifically identified, and signed by the person executing this Agreement on
behalf of a party or a more senior officer of such party.

       

      9.9. Binding
Effect.
This Agreement will be binding upon and inure to the benefit of
the parties hereto and their respective representatives, successors and
permitted assigns.

       

      9.10.
Notices.
Approvals and Consents. All notices, approvals and consents
to be given under this Agreement must be in writing and will be deemed given as
of the date of receipt via personal delivery, facsimile, courier service, or
Certified U.S. Mail, Return Receipt Requested. Notices must be given using the
following contact information, which may be amended fi’OI11
time to time by written notice to the other party:

      
      

       

      
        	If to
    Autocar:	
                Autocar,
      LLC

                
                  551
      South Washington Street

                  Hagerstown,
      IN 47346

                  Attn:
      Vice President, Business Development

                  Fax:
      (765) 489-5236

                

              
	 	 
	
                with a copy
      to: 

              	
                Horwood
      Marcus &
      Berk Chartered

                180 N.
      LaSalle, Suite 3700

                Chicago,
      IL 60601

                Attn:
      Keith H. Berk, Esq.

                Fax:
      (312) 264-2582

              


      

       

      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      

      
         

        
          	If to
    Autocar:	
                  Balqon
      Corporation

                  1420
      240th Street

                  Harbor
      City, CA 90710

                  Attn:
      President

                  Fax:
      (310) 326-3058

                
	 	 
	
                  with a copy
      to: 

                	
                  Rutan
      &
      Tucker, LLP

                  611 Anton
      Blvd., 14th Floor

                  Costa
      Mesa, CA 92626

                  Attn:
      Larry A. Cerutti, Esq.

                  Fax:
      (714) 546-9035

                


        

         

      

      9.11. Headings.
The section or paragraph headings or titles herein are for convenience of
reference only and will not be deemed a part of this
Agreement.

       

      9.12.
Counterparts.
This Agreement may be executed in multiple counterparts and by facsimile,
each of which will be deemed to be an original and all of which taken together
will constitute a single instrument.

       

      [Signature
page follows.]

       

      
        
          
          

        

        
          11

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the parties have signed this Converter Agreement as of the date
set forth above.

       

      
        
          	 	 	
                  AUTOCAR,
      LLC,

                  a
      Delaware limited liability company

                
	 	 	 	 	 
	
                   

                	 	
                  By: 
      

                	
                  /s/
      Eric R. Schwartz

                	 
	
                   

                	 	 	
                  Eric
      R. Schwartz

                  Vice
      President

                	 


        

      

       

      
        
          	 	 	
                  BALQON
      CORPORATION,

                  a
      Nevada corporation

                
	 	 	 	 	 
	
                   

                	 	
                  By: 
      

                	
                  /s/
      Balwinder Samra

                	 
	
                   

                	 	 	
                  
                    Balwinder
      Samra

                    President
      and Chief Executive Officer

                  

                	 


        

      

       

       

      12