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BlueGenTech / EVDrive Development Agreement

BlueGenTech / EVDrive Development Agreement

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BlueGenTech / EVDrive Development Agreement

  1. 1. - 1 - DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT (this “Agreement”) is made and entered into effective as of the 5th day of May, 2015 (the “Effective Date”), by and between Bluegentech, LLC, a Utah limited liability company (“Bluegentech”), and EVDrive Inc., a Wyoming corporation (“EVDrive”). RECITALS WHEREAS, Bluegentech intends to integrate a new and valuable proprietary turbine technology (“Bluegentech Turbine”) into a turbine powered electric semi-truck that is all-wheel drive; WHEREAS, EVDrive and its Affiliates having undertaken to develop a systems- engineering based technology that combines a complete systems design and engineering approach with internally developed intellectual property and off-the-shelf hardware components to create high performance and efficient powertrains and hybrid technology retro-fit for commercial transportation (“EVDrive Services”); and WHEREAS, Bluegentech desires EVDrive to assist Bluegentech with development of a Phase 1 “Alpha” Prototype of a Custom Electric Driveline by providing the EVDrive Services. The Custom Electric Driveline to be developed pursuant to this Agreement is meant to be a prototype version that will function and meet the specifications set forth in Schedule D, but is not intended for commercial production and distribution. NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual promises, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bluegentech and EVDrive (each, a “Party” and collectively, the “Parties”) hereby agree as follows. AGREEMENT ARTICLE I. DEFINITIONS; INCORPORATION OF RECITALS The above recitals are hereby incorporated by reference. Each term defined in Schedule A, when used in this Agreement with the initial letter capitalized, shall have the meaning ascribed to it in Schedule A.
  2. 2. - 2 - ARTICLE II. GRANT OF LICENSE TO BLUEGENTECH 2.1. EVDrive Property. EVDrive is the owner of the EVDrive Services, certain Intellectual Property and other property developed by EVDrive prior to the date of this Agreement, which property (the “EVDrive Property”), which EVDrive Property is listed on Schedule B hereto. 2.2. Representations and Warranties Regarding EVDrive Property. (a) EVDrive represents and warrants that Schedule B identifies all pertinent EVDrive Property related to Custom Electric Driveline development. In the event that EVDrive hereafter develops any Intellectual Property, technology or product related to Custom Electric Drivelines, EVDrive shall promptly disclose such Intellectual Property, technology or product to Bluegentech. (b) EVDrive hereby represents and warrants to Bluegentech that EVDrive is the sole and exclusive legal and beneficial and record, owner of all right, title and interest in and to the EVDrive Property, that the EVDrive Property does not infringe, dilute, misappropriate or otherwise violate the intellectual property rights of any other Person, and that there are no actions, threats or claims by any other Person alleging infringement, misappropriation or violation of the rights of any other Person by such EVDrive Property. 2.3. Grant of License. EVDrive hereby grants to Bluegentech an unlimited, non- exclusive, perpetual, irrevocable, transferable, sublicensable, royalty-free, world-wide license to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit the EVDrive Property in connection with the use, development and commercialization of the Deliverables (defined below), including the Custom Electric Driveline; provided however, that such license may be suspended in writing by EVDrive in the event of a material breach by Bluegentech under Section 4.1(e); provided further that such license shall automatically be reinstated immediately upon cure by Bluegentech of any such breach. ARTICLE III. DEVELOPMENT OF THE CUSTOM ELECTRIC DRIVELINE PHASE 1 “ALPHA” PROTOTYPE 3.1. Development of the Phase 1 Alpha prototype of a Custom Electric Driveline. (a) EVDrive hereby agrees that it shall work in good faith to develop and deliver to Bluegentech the deliverables set forth in Schedule D (collectively, the “Deliverables”), including without limitation, a Phase 1 “Alpha” Custom Electric Driveline that integrates the Bluegentech Turbine to create a turbine powered electric semi-truck that is all-wheel drive. EVDrive shall use its best
  3. 3. - 3 - efforts to ensure that all Deliverables meet and perform in accordance with the specifications set forth in Schedule D. It is understood that Schedule D may not include all Deliverables or specifications to complete the Custom Electric Driveline. The Parties may add or subtract Deliverables and specifications, which shall be mutually determined and agreed upon. (b) EVDrive shall assign such resources and qualified personnel as are reasonably required to perform the services described in this Section 3.1, which resources and personnel shall include, without limitation the Key Persons list in Section 5.5. 3.2. Assistance of Bluegentech. Bluegentech shall provide the following services or deliverables: (a) The Bluegentech Turbine, the truck chassis, driver controls, dashboard displays and all sub-systems and parts not provided by EVDrive to complete a Alpha Prototype, which shall all stay in Bluegentech’s facility in Salt Lake City at all times; (b) While the Bluegentech Turbine shall remain in Salt Lake City, Bluegentech shall provide any and all support to EVDrive to assist with the integration of both hardware and software; (c) Within 45 days after the Effective Date, Bluegentech shall lend to EVDrive 2 laptops configured with Matlab, Simulink and Motohawk software for EVDrive’s use in developing the Deliverables hereunder. Bluegentech shall also provide the hardware to support the final software platform that will control all motors, inverters, controllers, BMS and any vehicle control unit required to run the applicable vehicle. Bluegentech shall have the right to affix GPS tracking on the laptops and any other hardware it may provide to EVDrive for its use under this Agreement. Bluegentech shall also have the right to remote wipe clean any laptop that it feels has been breached by a third party or lost; (d) .Stp files of the chassis, suspension modules, Bluegentech Turbine, and required support systems for the turbine; (e) Such other assistance as is reasonably requested by EVDrive, which assistance is reasonably within the scope of Bluegentech’s obligations hereunder. For example, if requested by EVDrive, Bluegentech will assist EVDrive in interacting with critical vendors to facilitate the timely delivery of component parts such as battery cells. (f) Assistance in designing and providing sub-systems and overview electrical/data specifications that the powertrain will need to supply electrical power to and CANBus control/data communications, e.g. HVAC, brakes, electric power steering, communications radios, infotainment, etc.
  4. 4. - 4 - 3.3. Access to Vendors; Required Vendors. EVDrive agrees that it shall deliver to Bluegentech all information reasonably requested regarding its vendors, suppliers and dealers of materials and component parts and Bluegentech may directly enter into agreements with such vendors, suppliers and dealers to purchase such materials and component parts at any time following the eight-month anniversary of the Effective Date. EVDrive agrees it shall permit and not attempt to interfere in any way with Bluegentech entering into agreements for the purchase of materials and component parts with any such vendors, suppliers or dealers. In furtherance of the foregoing, EVDrive acknowledges that many manufacturers do not allow customers to buy directly from them once orders have been placed with a dealer such as EVDrive. Therefore, EVDrive agrees it shall notify all of its vendors, suppliers and dealers that Bluegentech has the right to directly purchase such materials and component parts from such vendors, suppliers and dealers at any time following the eight-month anniversary of the Effective Date. Prior to the eight- month anniversary of the Effective Date, Bluegentech will not purchase component parts or set up accounts with EVDrive’s vendors, suppliers or dealers unless requested by EVDrive. EVDrive agrees that it shall use commercially reasonable efforts to enter into a supply agreement with AM Racing Inc., an Oregon corporation, or equivalent skilled and experienced mechanical engineering vendor to supply gearboxes, motors and clutchless transmissions to be used and integrated into the Deliverables, so long as that vendor pricing and delivery times are equal to or better than current estimates. 3.4. Delivery. To the extent applicable, all Deliverables shall be delivered to Bluegentech F.O.B. destination to a facility designated by Bluegentech in writing. EVDrive shall use its reasonable best efforts to deliver the Deliverables on the delivery dates specified on Schedule C. 3.5. Rejection of Deliverable in Case of Nonconformity. (a) Subject to Bluegentech fulfilling its obligations hereunder, Bluegentech may reject any Deliverable that is not conforming in all material respects with the specifications contained in Section 3.1. (b) In order to reject a Deliverable, Bluegentech must (i) give notice to EVDrive of Bluegentech’s intent to reject the Deliverable within 30 business days of receipt together with a written indication of the reasons for such possible rejection, and (ii) as promptly as reasonably possible thereafter, provide EVDrive with notice of final rejection and the full basis therefor. After notice of intent to reject is given, Bluegentech shall cooperate with EVDrive in determining whether the rejected Deliverables may be remedied. EVDrive agrees that in the event that Bluegentech rejects a Deliverable, EVDrive will use its reasonable best efforts to repair or replace the defective Deliverable. (c) The failure by EVDrive to deliver the Deliverables that conform in all material respects with the specifications contained in Section 3.1 by the end of the longer of the Term or any extension thereof expressly agreed upon in writing
  5. 5. - 5 - by Bluegentech shall constitute a material breach and Bluegentech shall be entitled to hold payment in such a case until Deliverables are in satisfactory shape and functioning, in addition to other remedies it may have under this Agreement and applicable law. ARTICLE IV. COMPENSATION 4.1. Terms of Payment and Related Matters. Bluegenetech shall pay EVDrive as follows: (a) Service Fee. Bluegentech agrees that in exchange for services rendered hereunder, Bluegentech shall pay to EVDrive a total amount equal to $698,499.96 (the “Service Fee”). The Service Fee shall be paid in 4 installments , with the first of such installments being due within 10 days of the execution of this Agreement and the remaining three installment payments being due on the 3- month, 6-month and 9-month anniversaries of the Effective Date. The first of such payments shall be in the amount of $174,624.99, the 3-month anniversary payment shall be in the amount of $227,124.99, the 6-month anniversary payment shall be in the amount of $142,124.99, and the 9-month anniversary payment shall be in the amount of $154,624.99. Service Fee payments that are more than 10 days late will entitle EVDrive to stop work hereunder until such payments are made, and such late Service Fee payments, or portions thereof, shall accrue interest at the rate of 2% per month until paid. (b) Materials Reimbursement. In addition to the Service Fee and subject to Bluegentech’s rights to directly purchase component parts and materials as described herein, Bluegentech shall reimburse EVDrive for the cost of component parts and materials purchased by EVDrive for use in developing the Deliverables; provided, however, any equipment purchased will be approved by Bluegentech and that the cost of any component parts or materials purchased by EVDrive for use as contemplated herein shall not be subject to any markup and shall be reimbursed by Bluegentech at EVDrive’s actual out-of-pocket cost. Any materials for which EVDrive seeks reimbursement shall be subject to EVDrive providing written evidence to Bluegentech’s satisfaction of the cost of such materials. Bluegentech shall have the option to directly purchase the necessary component parts and materials (or any portion of them) and supply them to EVDrive. If Bluegentech desires to purchase materials and supply them to EVDrive, EVDrive agrees that it shall provide Bluegentech with such information as requested by Bluegentech as may be reasonably required to facilitate Bluegentech’s sourcing of such materials. Any reimbursement for materials purchased by EVDrive shall be paid within 15 business days of EVDrive’s delivery to Bluegentech of such receipts or invoices reflecting the purchase of such materials.
  6. 6. - 6 - (c) Expense Reimbursement. Bluegentech shall reimburse EVDrive for reasonable and actual out-of-pocket travel expenses associated with EVDrive’s provision of services to Bluegentech hereunder; provided that EVDrive obtained prior written approval from Bluegentech concerning such expenses and EVDrive provides written evidence to Bluegentech’s satisfaction of the cost of such expenses. Any reimbursement of such travel expenses shall be paid within 15 business days of EVDrive’s delivery to Bluegentech of such receipts or invoices reflecting the expenses. (d) Excluded Expenses. Bluegentech agrees that costs and expenses associated with the development of engine control units (“ECU”s) or vehicle control units (“VCU”s) shall be borne by Bluegentech. (e) Failure to Make Payment. Subject to Section 3.5(c), Failure of Bluegentech to make any undisputed payment under Sections 4.1(a), (b) or (c) within 30 days of the later of the due date or the applicable cure period, will be deemed a material breach of this Agreement by Bluegentech. In the event of an emergency within Bluegentech such as a death, kidnapping, travel overseas, or other events that may be deemed emergency or outside normal business operations, EVDrive shall give Bluegentech reasonable time to remedy the payment without materially breaching this Agreement. 4.2. Responsibility for Wages and Fees. For such time as any employees or agents of EVDrive are providing the services to Bluegentech under this Agreement, (a) such employees will remain employees and agents of EVDrive and shall not be deemed to be employees or agents of Bluegentech for any purpose, and (b) EVDrive shall be solely responsible for the payment and provision of all wages, bonuses and commissions, employee benefits, including severance and worker’s compensation, and the withholding and payment of applicable Taxes relating to such employment. ARTICLE V. COVENANTS 5.1. Confidentiality. (a) Each of the Parties hereby acknowledges that in the course of its dealings before and after the execution of this Agreement, each party hereto (as such, the “Receiving Party”) has acquired and shall acquire Confidential Information (as defined below) from and/or about the other party hereto (as such, the “Disclosing Party”). Each of the Parties agrees to hold the other Party’s Confidential Information in the strictest confidence and use the same solely for the limited and express purposes of this Agreement and not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party. Each of the Parties shall exercise at least the same degree of care to protect the other Party’s Confidential Information as it exercises with respect to its own Confidential Information. Any Party hereto shall not disclose any of the other Party’s Confidential Information to any third party, but only to its
  7. 7. - 7 - employees and agents who have a legitimate need to know such Confidential Information in order to accomplish the purposes of this Agreement and who are bound by the terms of a confidentiality agreement that are at least as restrictive as the terms contained herein. In the event of any loss or unauthorized disclosure of Confidential Information, the Receiving Party shall promptly inform the Disclosing Party thereof. Immediately upon the expiration or termination of this Agreement, except as otherwise expressly provided herein including in Section 2.3, each party hereto shall return all of the other Party’s Confidential Information, whether in written or electronic format, and all copies thereof, which Confidential Information is deemed the property of the Disclosing Party, or otherwise dispose of the same as requested by the Disclosing Party. This mutual covenant of confidentiality shall be deemed retroactive to the date(s) of the initial disclosures of Confidential Information made by either party to the other, and is subject to all additional restrictions under law by virtue of any patents, copyrights or trade secrets owned by either party with respect to its respective Confidential Information. (b) As used herein, the term “Confidential Information” shall mean, with respect to a Disclosing Party, (a) all information labeled or otherwise identified as “confidential” by the Disclosing Party, (b) the specific terms and conditions of this Agreement, (c) information regarding costs shared between the Parties, and (d) all information disclosed by the Disclosing Party concerning its products, product development plans, customer lists and marketing strategies, including without limitation any and all data, technology, research, inventions, tools, prototypes, Intellectual Property, trade secrets, know-how, formulations, files, software, compositions, works of authorship, samples, processes, methods and the like, and all information relating to the Disclosing Party’s past, present and future research, development and business activities of a nature generally considered confidential or proprietary in the business world. Notwithstanding the above, the following information shall not be deemed Confidential Information: (i) information which is or becomes part of the public domain through no wrongful act of the Receiving Party; (ii) information which is rightfully received by the Receiving Party from a third party without restriction and without breach of this Agreement; (iii) information which is approved for release by written authorization of an officer of the Disclosing Party; (iv) information which is required to be disclosed pursuant to the order of a court or governmental agency or operation of law; or (v) information which the Receiving Party demonstrates to have been lawfully in possession of the disclosure prior to its receipt thereof from the Disclosing Party or its employees. (c) Prior Confidentiality Agreements. Any prior confidentiality agreements between the Parties are hereby terminated and the confidentiality and other provisions in this Agreement shall be controlling for all events occurring from and after the date of this Agreement. 5.2. Non-Compete and Non-Solicit. During the term of this Agreement and for a period of three (3) years thereafter (hereinafter the “Restricted Period”), EVDrive, its
  8. 8. - 8 - officers, directors, shareholders and affiliates, (collectively, the “Obligated Affiliates” and each, an “Obligated Affiliate”), shall not directly or indirectly, through an affiliate or otherwise, conduct, manage, operate, engage, participate in, be employed by, control or have an ownership interest in any business, firm, sole proprietorship, corporation, partnership, limited liability company, joint venture or other entity, enterprise or association that is located within the United States and Canada that is engaged in the business of providing driveline or related expertise to any Person other than Bluegentech involved in the sale, manufacturing, designing or sourcing of commercial class 6, 7, or 8 vehicles using single or multiple turbines or the development of turbine technologies. Notwithstanding the foregoing, the restrictions set forth in this Section 5.2 shall not restrict EVDrive from servicing its current customers in continuing to develop sub- systems that are currently in progress; provided that EVDrive shall not develop or sell any systems or sub-systems to a customer if EVDrive has reason to believe such system or sub-system would be used in commercial class 6, 7 or 8 vehicles using one or more turbine engines, and EVDrive shall require any such customer to whom it sells a system or sub-system to agree not use or transfer to any other entity such systems or sub-systems developed by EVDrive for use in commercial class 6, 7 or 8 vehicles using one or more turbine engines. During the Restricted Period, the Obligated Affiliates shall not directly or indirectly, through an affiliate or otherwise, except with the prior written consent of Bluegentech: (i) call on, solicit or induce, or attempt to solicit or induce, any employee or staff member of Bluegentech to leave the employ of Bluegentech for any reason whatsoever, or provide employment, either on a full-time basis or part-time or consulting basis, to any person who then currently is, or who within six (6) months immediately prior thereto was, an employee of or staff member of Bluegentech Business or (ii) do any act or thing to cause, bring about, or induce any interference with, disturbance to or interruption of any existing relationship of the Bluegentech with any client, strategic partner, distributor, customer, vendor or supplier of the Bluegentech, including soliciting or encouraging any such client, strategic partner, distributor, customer, vendor or supplier to discontinue or reduce its business with Bluegentech. 5.3. Insurance. During the Term of this Agreement and for a period of 1 year thereafter, EVDrive shall maintain the following minimum insurance coverage: (a) Workers Compensation. Workers compensation, at statutory limits; and (b) Comprehensive General Liability. Comprehensive general liability, including products/completed operations coverage, and broad form contractual, with the following limits of liability: i. $1,000,000 per occurrence for bodily injury or property damage arising out of products, completed operations, and broad form contractual; and ii. $2,000,000 general aggregate.
  9. 9. - 9 - EVDrive shall provide Bluegentech with a copy of its certificate of insurance evidencing the above insurance coverage. EVDrive shall notify Bluegentech of any material change in such insurance within thirty (30) days of such change. 5.4. Equitable Remedies (a) EVDrive acknowledges that a breach or threatened breach of this Article V would give rise to irreparable harm to Bluegentech, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by EVDrive of any such obligations, Bluegentech shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (b) EVDrive acknowledges that the restrictions contained in this Article V are reasonable and necessary to protect the legitimate interests of Bluegentech and constitute a material inducement to Bluegentech to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Article V should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Article V and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. 5.5. Key Person. EVDrive agrees and acknowledges that the services of Steve Tice and Bob Simpson (each a “Key Person” and together, the “Key Persons”) are a material and indispensable part of this Agreement and their active involvement in developing and creating the Deliverables is essential to inducing Bluegentech to entering into this Agreement. EVDrive hereby agrees and that it will cause the Key Persons to have an active role in the development and creation of the Deliverables and to devote such time and attention as is necessary accomplish the same. ARTICLE VI. OWNERSHIP OF INTELLECTUAL PROPERTY 6.1. EVDrive Property. Unless otherwise agreed to by EVDrive in writing, as between EVDrive and Bluegentech, EVDrive will at all times be and remain the sole and exclusive owner of all EVDrive Property.
  10. 10. - 10 - 6.2. Bluegentech Property. As between EVDrive and Bluegentech, Bluegentech shall at all times be and remain the sole and exclusive owner of (a) all Intellectual Property and other property, whether tangible or intangible, developed by or for Bluegentech independent of this Agreement, and (b) all Developed Property (defined below), including all Deliverables and Work Product developed hereunder (collectively, the “Bluegentech Property”). 6.3. Developed Property. (a) As between EVDrive and Bluegentech, Bluegentech shall at all times be and remain the sole and exclusive owner of all Intellectual Property, Work Product and Deliverables that may be created or developed by EVDrive alone or with the assistance of Bluegentech in connection with the performance of EVDrive’s services hereunder, but excluding any EVDrive Property (the “Developed Property”). By way of clarification, Developed Property shall include any and all modifications, adaptations or derivative works of any EVDrive Property developed pursuant to this Agreement. To the extent that any work performed by EVDrive in connection with this Agreement may be covered by the definition of “Developed Property,” EVDrive hereby assigns and conveys its entire right, title and interest in and to all copies thereof, including all copyright and other proprietary rights therein, to Bluegentech without further consideration, free from any claim or lien or retention of rights. (b) Work Made for Hire. Without limiting the generality of Section 6.3(a), EVDrive acknowledges that Bluegentech will have all right, title and interest in and to all Deliverables, information, documentation and other materials developed or produced in the course of EVDrive providing services hereunder (whether or not such services are completed), and all rights of patent, copyright, trademark, trade secret and other proprietary rights therein and thereto (the foregoing, collectively, “Work Product”), will be the sole and exclusive property of Bluegentech. All Work Product shall be deemed to be “work made for hire” within the meaning of the Copyright Act of 1976, as amended (“Act”), of which Bluegentech is the author within the meaning of such Act. If any Work Product is not deemed “work made for hire” by operation of law, EVDrive hereby irrevocably assigns, transfers, and conveys to Bluegentech the sole and exclusive right, title and interest to such Work Product and all copies thereof, without further consideration. EVDrive shall, and shall require EVDrive personnel to, give Bluegentech and its designees all reasonable assistance and execute all documents necessary to assist and/or enable Bluegentech to perfect, preserve, register and/or record its rights in any Work Product. 6.4. License of Developed Property. Subject to the terms of this Agreement, Bluegentech hereby grants to EVDrive a limited non-exclusive, non-sublicenseable, royalty-free, terminable, worldwide license to use the Developed Property for the following purposes: (a) to the extent necessary to fulfill EVDrive’s obligations under this Agreement, and (b) for use in the sale, manufacturing, designing or sourcing of commercial classes of vehicles other than classes 6, 7 or 8 using one or more turbines so
  11. 11. - 11 - long as the phase 1 has been completed and said prototype vehicle is operational and a turbine is not used in conjunction with said applications (the “EVDrive License”). Bluegentech may terminate EVDrive’s right to use Developed Property, in whole or in part, if the usage of such Developed Property does not adhere to the terms of this Agreement in the reasonable discretion of Bluegentech. 6.5. Limitations on License and Use of Intellectual Property. EVDrive hereby agrees as follows: (a) EVDrive agrees that it shall do nothing inconsistent with Bluegentech’s ownership of Bluegentech Property either during the term of this Agreement or afterwards. (b) EVDrive agrees that the EVDrive License, including EVDrive’s use or commercial exploitation of any Developed Property pursuant to the EVDrive License, shall not create in EVDrive any ownership interests in the Developed Property. (c) EVDrive shall not transfer, pledge, hypothecate or assign its rights under the EVDrive License or attempt to do any of the foregoing to any third party. (d) EVDrive agrees that it shall not hold itself out as having acquired any proprietary rights or rights or ownership to any Bluegentech Property. (e) EVDrive agrees: (i) not to use, reproduce or display (or authorize the use, reproduction or display of) Bluegentech Property in any manner whatsoever other than as expressly authorized by this Agreement, except as is reasonably necessary for the purpose of providing services under this Agreement. (f) EVDrive agrees not to challenge: i. the validity of the trademarks, patents or patents pending included in Bluegentech Property; or ii. the ownership by Bluegentech of any Bluegentech Property. ARTICLE VII. TERM; TERMINATION; BREACH 7.1. Term. Subject to Section 7.3, the Term of this Agreement shall commence on the Effective Date and shall continue until the later of the one year anniversary of the Effective Date or the delivery to Bluegentech of all the Deliverables (the “Term”). 7.2. Production Timeline. EVDrive shall use its reasonable best efforts to adhere to the production timeline and delivery dates for Deliverables specified on Schedule C.
  12. 12. - 12 - Time is of the essence and any delay or adverse departure from the attached schedule shall, unless otherwise waived in writing by Bluegentech, be deemed a breach of this Agreement. 7.3. Termination. This Agreement may be terminated prior to the end of the Term: (a) at any time upon mutual written agreement between the Parties; (b) by either Party that gives the other Party thirty (30) days’ prior written notice upon discovery of a material breach of this Agreement by such Party, if the breach is not cured by the breaching Party to the reasonable satisfaction of the non-breaching Party within that 30-day period; (c) by either Party, immediately, if the other shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable insolvency proceeding, or if any such insolvency proceeding is instituted against the other (and not dismissed within sixty (60) days); (d) by either Party if a receiver is appointed for the other Party; (e) by Bluegentech, if any Key Person fails for any reason to be actively involved in the creation and development of the Deliverables, as contemplated in Section 5.5, as determined in the sole discretion of Bluegentech; (f) by Bluegentech if, in the reasonable discretion of Bluegentech, EVDrive or any Key Person has engaged in or is subject to any (i) indictment or conviction of, or plea of non contendre to of any felony or of any crime involving dishonesty or moral turpitude; (ii) participation in any fraud against Bluegentech; (iii) material breach of EVDrive’s and/or such Key Person’s duties to Bluegentech under this Agreement or under any of Bluegentech’s rules, policies, or procedures, which breach remains uncured after fourteen (14) days written notice; (iv) intentional damage by EVDrive or any Key Person to any property of Bluegentech; (v) failure to act in good faith in performing the obligations of EVDrive hereunder, or (vi) gross negligence or, reckless or willful misconduct by EVDrive and/or any Key Person, which in the good faith and reasonable determination of Bluegentech demonstrates gross unfitness to serve or is harmful to the Bluegentech’s reputation; or (g) by Bluegentech if EVDrive fails to enter into a contract with AM Racing Inc. or equivalent skilled and experienced mechanical engineering gearbox design vendor to supply gearboxes, motors and clutchless transmissions for use in the Deliverables. 7.4. Effect of Termination. Except to the extent explicitly set forth in this Agreement, all rights, licenses and privileges granted in this Agreement shall terminate and expire at the end of the Term, or when this Agreement is terminated if prior to the
  13. 13. - 13 - end of the Term, except for the provisions of Section 2.3, Article V, Article VI, Section 7.5, Article VIII, Article IX and Article X, which shall survive termination; provided that the indemnification obligations set forth in Article VIII shall survive termination for a period of one year. Termination of this Agreement by a Party is without prejudice to any other right or remedy of that Party under this Agreement or applicable law. 7.5. Return of Developed Property and Liability for Damages to Such Property. Except as is strictly necessary for EVDrive’s use of the license granted to it pursuant to Section 6.4, upon termination of this Agreement or within 20 business days of Bluegentech’s request, EVDrive shall deliver to Bluegentech and will not keep its possession, recreate, or deliver to anyone else, any and all Bluegentech Property and any other tangible or intangible property of Bluegentech, including Work Product and Deliverables then existing, whether or not such have been completed, and in whatever form such Bluegentech Property or other property may be in, including, but not limited to all designs, tangible embodiments of inventions, electronically stored information, records, data, notes, notebooks, hardware (including without limitation the laptops and other items lent by Bluegentech to EVDrive for its use to perform its obligations under this Agreement), reports, files, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, photographs, charts, any other documents and property, and reproductions of any of the foregoing items. After delivering to Bluegentech all original documents or property constituting Bluegentech Property, or if electronically stored, copies of such Bluegentech Property, EVDrive shall destroy any remaining records or copies, electronically stored or otherwise, that may remain in EVDrive’s possession or control and certify to Bluegentech that it has complied with the requirements of this Section 7.5. If any of Bluegentech’s tangible personal property in EVDrive’s possession shall have been damaged or lost while in EVDrive’s possession, EVDrive shall be liable to Bluegentech for any and all losses that Bluegentech may incur with respect to such damaged or lost property, including, without limitation, any and all costs associated with renewing applicable software licenses. ARTICLE VIII. INDEMNIFICATION 8.1. EVDrive Indemnity. EVDrive agrees to defend, indemnify and hold harmless Bluegentech and its employees, managers, directors, officers, principals, owners, agents and Affiliates from and against any claims, demands, losses, settlements, damages or expenses (including attorneys’ fees, disbursements and court costs) that arise out of or relate to of the following: (a) any third-party claim arising from Bluegentech’s distribution or use for the benefit of third parties of the EVDrive Property, Deliverables or Work Product, provided such claim is not substantially attributable to Bluegentech’s modification, integration, misuse or abuse of such EVDrive Property, Deliverable or Work Product; (b) any third-party claim that any EVDrive Property, Deliverable or Work Product or any modification thereto made by EVDrive infringes such third-party’s rights; (c) EVDrive’s misuse or modification of any Developed Property; (d) the use of any information, direction, specification or materials provided by EVDrive or any third-party in connection with the services provided by EVDrive hereunder; or (e) the breach of any
  14. 14. - 14 - of EVDrive’s representations or warranties hereunder, including without limitation, any costs associated with breaches of the warranties provided in Section 9.1. 8.2. Bluegentech Indemnity. Bluegentech agrees to defend, indemnify and hold harmless EVDrive and its employees, managers, directors, officers, principals, owners, agents and Affiliates from and against any claims, demands, losses, settlements, damages or expenses (including attorneys’ fees, disbursements and court costs) that arise out of or relate to of the following: (a) any third-party claim arising from Bluegentech’s modification, integration, misuse or abuse of the Developed Property or Work Product; (b) any third-party claim that any of Bluegentech’s Property infringes such third-party’s Intellectual Property rights; (c) the breach of any of Bluegentech’s representations or warranties hereunder. ARTICLE IX. LIMITATIONS ON LIABILITY; REPRESENTATIONS AND WARRANTIES 9.1. Warranties on Deliverables and Work Product. (a) SUBJECT TO SECTION 8.1, EVDRIVE WARRANTS TO BLUEGENTECH AND ITS RESELLERS AND END USERS THAT FOR ANY HARDWARE DEVICES, SOFTWARE, AND DELIVERABLES IN THEIR ORIGINAL FORM AS DELIVERED TO BLUEGENTECH THAT EVDRIVE CREATES FOR THIS PROJECT, EVDRIVE WILL OFFER A LIMITED WARRANTY FOR A PERIOD OF ONE (1) YEAR FROM DELIVERY, AND SHALL PERFORM IN ACCORDANCE WITH ANY APPLICABLE PUBLISHED SPECIFICATIONS AND DOCUMENTATION. EVDRIVE SHALL PROMPTLY CORRECT OR REPLACE (AT ITS OPTION) ANY DEFECTIVE HARDWARE DEVICE, DELIVERABLE OR UPGRADE PRODUCED BY EVDRIVE. NOTWITHSTANDING THE FOREGOING, ONLY BLUEGENTECH SHALL OFFER RESELLER AND END USER WARRANTIES FOR THE RESULTING FINAL PRODUCTION PRODUCT. THE WARRANTY CONTAINED HEREIN DOES NOT COVER DAMAGE TO DELIVERABLES RESULTING FROM THE ABUSE OR MISUSE OF THE DELIVERABLES BY BLUEGENTECH, ITS RESELLERS, OR END USERS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OFF THE SHELF HARDWARE WILL ONLY CARRY THE LIMITED WARRANTIES OFFERED BY THE INDIVIDUAL MANUFACTURERS. (b) Notwithstanding anything to the contrary in Section 9.1(a), EVDrive warrants that all Deliverables and Work Product will conform to the functionality and other objective requirements described in Section 3.1. Without limiting the generality of the foregoing, EVDrive warrants that the Custom Electric Driveline shall function as required by or described in Schedule D. 9.2. Limitations on Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
  15. 15. - 15 - CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF BUSINESS, WHETHER REASONABLY FORESEEABLE OR NOT, EVEN IF BLUEGENTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9.3. EVDrive General Representations and Warranties. EVDrive represents and warrants to Bluegentech as follows: (a) the execution, adoption and delivery of this Agreement has been duly and validly authorized by all necessary action on the part of EVDrive, and upon execution and delivery by EVDrive, this Agreement shall constitute a legal, valid and binding obligation of EVDrive, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other similar laws relating to or limiting creditors’ rights generally, or by equitable principles (whether enforcement is sought in equity or at law); (b) the execution and delivery of this Agreement by EVDrive and the performance by EVDrive of the obligations to be performed by it hereunder do not and will not result in a breach of, or constitute a default under, any agreement or instrument to which EVDrive is a party or by which it may be bound; and (c) there is not currently pending any petition or application, or any proceedings commenced, by or against, with respect to the business or assets of EVDrive or its Affiliates, under Title 7 or Title 11 of the United States Code, or any other law, domestic or foreign, relating to bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt or creditors’ rights, and EVDrive has not made any general assignment for the benefit of creditors. 9.4. Bluegentech General Representations and Warranties. Bluegentech represents and warrants to EVDrive as follows: (a) the execution, adoption and delivery of this Agreement has been duly and validly authorized by all necessary action on the part of Bluegentech, and upon execution and delivery by Bluegentech, this Agreement shall constitute a legal, valid and binding obligation of Bluegentech, enforceable against it in accordance with its terms, except as may be limited by applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other similar laws relating to or limiting creditors’ rights generally, or by equitable principles (whether enforcement is sought in equity or at law); (b) the execution and delivery of this Agreement by Bluegentech and the performance by Bluegentech of the obligations to be performed by it hereunder do not and will not result in a breach of, or constitute a default under, any agreement or instrument to which Bluegentech is a party or by which it may be bound; and
  16. 16. - 16 - (c) there is not currently pending any petition or application, or any proceedings commenced, by or against, with respect to the business or assets of Bluegentech or its Affiliates, under Title 7 or Title 11 of the United States Code, or any other law, domestic or foreign, relating to bankruptcy, reorganization, compromise, arrangement, insolvency, readjustment of debt or creditors’ rights, and Bluegentech has not made any general assignment for the benefit of creditors. ARTICLE X. GENERAL PROVISIONS 10.1. Assignment. EVDrive agrees not to transfer or assign its rights under this Agreement without the prior written consent of Bluegentech; for purposes of the foregoing, a change in control of the ownership of 50% or more of the ownership interests of EVDrive shall be deemed an assignment for purposes of this Agreement and shall require the prior written consent of Bluegentech, which consent shall not be unreasonably withheld. Any attempt by EVDrive to assign its rights under this Agreement is invalid and shall be deemed a breach, giving Bluegentech a right to terminate this Agreement as set forth in Section 7.3(b). Bluegentech may assign this Agreement to any Person, including, without limitation, any Affiliate, without the consent of EVDrive. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. 10.2. Notices. All notices and statements shall be in writing and shall be given at the respective addresses of the Parties set forth below, or at the changed address the recipient provides in writing. If to Bluegentech: BLUEGENTECH, LLC Attn: Trevor Milton 1071 East 100 South, Suite D-1 St. George, Utah 84770 Facsimile: (435) 652-0831 With a copy to: DORSEY & WHITNEY LLP Attn: Samuel P. Gardiner 136 South Main Street, Suite 1000 Salt Lake City, UT 84101 Facsimile: (801) 933-7373 If to EVDrive: EVDrive Inc., Attn: Steve E. Tice 5664 Mission Ctr. Rd. #401 San Diego, CA. 92108 Facsimile: 858-483-9700 With a copy to: EVDrive Inc. Attn: Robert D. Simpson
  17. 17. - 17 - 2092 NW ALOCLEK DR STE #516 HILLSBORO OR 97124 Facsimile: 858-483-9700 With a copy to: Miller Business Law Attn: Ron Miller 1012 SW King Avenue #101 Portland, Oregon 97205 Facsimile: 503-764-1453 10.3. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any prior or contemporaneous agreement between the Parties relating to the subject matter hereof. Accordingly, no prior or contemporaneous writings, letters, contracts, or verbal agreements between the Parties are part of, or may modify, this Agreement. The terms of this Agreement may not be modified except in a written document duly executed by both Parties. 10.4. Public Announcement. Unless otherwise required by applicable law (based upon the reasonable advice of counsel), EVDrive shall not make any public announcement in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media prior to any Public Demonstration (as defined below) without the prior written consent of Bluegentech. EVDrive may publicize its role and involvement with this project after a Public Demonstration by Bluegentech of the Deliverables developed hereunder, provided, however, that Bluegentech shall have the right to reasonably edit and approve the content of any public media release by EVDrive. “Public Demonstration” shall mean any demonstration of the Deliverables to members of the general public via expos, shows, or media intended for large-scale distribution. Public Demonstration shall not refer to any demonstration or showing of a Deliverable to individuals or groups of individuals where access is generally closed to the public or not intended for general public distribution, including without limitation, any demonstration to select investors or groups of investors, media personnel who are under an obligation to withhold such information from general distribution, or third parties who are otherwise obligated to hold such information confidential. 10.5. Waiver. If either Party waives a breach of any provision of this Agreement, or forbears from enforcing any rights hereunder, that waiver or forbearance does not affect any rights with respect to any future breach of the same or any other provision. 10.6. Severability. The provisions of this Agreement are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
  18. 18. - 18 - 10.7. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Utah applicable to contracts made and to be performed in the State of Utah without giving effect to conflict of laws rules. The Parties irrevocably consent to the jurisdiction of the courts of Salt Lake County, Utah, to interpret or enforce any provision of this Agreement and waive any claim that such courts lack personal jurisdiction over them and any objection that they may now or hereafter have to the laying of venue of any aforesaid actions or proceedings arising out of or in connection with this Agreement. 10.8. Force Majeure. Neither Party is liable for reasonable delays in the performance of its obligations under this Agreement which result from causes beyond its reasonable control, including, without limitation, acts of God, strikes, war, riot, civil disorder, embargo, acts of terrorism, acts of civil and military authorities, fire, earthquake or flood. 10.9. No Agency. This Agreement does not make either Party the legal representative, agent or partner of the other. Neither Party has the right or authority to assume, create or incur any liability or any obligation of any kind, express or implied, against or in the name of the other Party, except as specifically set forth in this Agreement. Each Party shall perform as an independent contractor in the performance of the implementation of all work hereunder, retaining complete control over its personnel and operations and conforming to all statutory requirements with respect to its employees. Neither Party’s employees shall be in any sense employees or agents of the other Party or have any authority to represent or bind such other Party in any way. 10.10. Successors and Permitted Assigns; No Third-Party Beneficiaries. The terms, provisions and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Except to the extent necessary to protect the ownership of an Affiliate’s Intellectual Property, this Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns and is not for the benefit of, nor may any provision of this Agreement be enforced by, any other Person. 10.11. Attorneys’ Fees. If either Party to this Agreement brings any action, suit, counterclaim, appeal, arbitration, or mediation for any relief against the other, declaratory or otherwise, to enforce the terms hereof or to declare rights hereunder, the non- prevailing Party must pay the prevailing Party’s reasonable attorneys’ fees and costs incurred in bringing the action and enforcing any judgment, order, ruling or award. 10.12. Headings. The descriptive headings contained in this Agreement are for convenience of reference only and do not affect in any way the meaning or interpretation of this Agreement. 10.13. Counterparts; Signatures. This Agreement may be executed in one or more counterparts, and by the different Parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute but one and the same agreement. This Agreement may be executed by facsimile or electronic (.pdf or .tif) signature.
  19. 19. - 19 - 10.14. Tax Matters. If applicable, each Party agrees to provide the other Party with satisfactory documentation (including but not limited to resale exemption or other certificates) supporting its representation that amounts paid by either Party pursuant to this Agreement. Except for taxes associated with reimbursable expenses as set forth in Sections 4.1(b) and 4.1(c), which taxes shall be paid by Bluegentech, each Party shall be obligated to pay (and hereby agrees to reimburse promptly upon demand, indemnify and hold harmless the other party against liability for or expenses attributable to) all taxes it incurs in connection with this Agreement. 10.15. Further Assurances. Subject to the terms and conditions of this Agreement, each of the Parties agrees to use all reasonable efforts to take, or cause to be taken, all action necessary, reasonable, proper or advisable under applicable laws and regulations to consummate and make effective the purposes and intent of this Agreement. [Signature page follows]
  20. 20. [Signature page to Development Agreement] - 20 - IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the Effective Date. BLUEGENTECH, LLC, a Utah limited liability company EVDRIVE INC., A Wyoming Corporation By: By: Name: Trevor Milton Name: Robert D. Simpson Title: Manager Title: CTO, Chairman of the Board
  21. 21. - 21- SCHEDULE A DEFINITIONS 1. “Affiliate” or “Affiliates” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. 2. “Agreement” means this Development Agreement and all schedules attached hereto or documents expressly incorporated into this Development Agreement by reference. 3. “Bluegentech” menas Bluegentech, LLC, a Utah limited liability company. 4. “Bluegentech Turbine” means Bluegentech’s proprietary turbine system including Bluegentech’s Property, including any related technologies or products jointly developed by the Parties pursuant to this Agreement to be used with the Bluegentech Turbine. 5. “Custom Electric Driveline” means any turbine powered series hybrid technologies developed for the Phase 1 Alpha prototype jointly by Bluegentech and EVDrive during the Term of this Agreement (or any extensions therefo) or that utilizes any of the Intellectual Property jointly developed or contributed by the Parties pursuant to this Agreement and/or any of the equipment, hardware or proprietary calibrations of EVDrive, including, but not limited to, the Bluegentech Turbine, and any modifications, alterations and/or upgrades thereto. 6. “Full Load” means a total combined weight of 80,000 lbs between truck and trailer. 7. “Effective Date” means the date first referenced in this Agreement. 8. “Intellectual Property” means all intellectual property and industrial property rights and assets, and all rights, interests and protections that are associated with, similar to, or required for the exercise of, any of the foregoing, however arising, pursuant to the laws of any jurisdiction throughout the world, all registrations and applications for, and renewals and extensions of, such rights, and the goodwill connected with the use of and symbolized by any of the foregoing, including any and all: trademarks, service marks, trade names, and similar designations of source or origin; websites and domain names; copyrights, designs and design registrations, and works of authorship, whether or not copyrightable; trade secrets, inventions and disclosures, whether or not patentable; and patents (including all reissues, divisionals, continuations, continuations-in-part and extensions thereof). 9. “Party” or “Parties” means a party or collectively, the parties to this Agreement.
  22. 22. - 22 – 10. “Person” means any individual, corporation, partnership, limited liability company, trust or other entity or organization, including a government entity. Reference to any individual in this Agreement may be made by using the last name of the Person only. 11. “Term” means the period set forth in Section 7.1 of this Agreement. 12. “Torque Vectoring” means the technology providing the differential with the ability to vary the power to, and control of, each wheel.
  23. 23. - 23- SCHEDULE B EVDRIVE PROPERTY EVDrive has, prior to the date of Effective Date, developed, on its own, specific intellectual property related to scalable Torque Vectoring for electric powertrains.
  24. 24. - 24 - SCHEDULE C PRODUCTION TIMELINE AND DELIVERABLE SCHEDULE Overall 12 month from date of this agreement execution for Phase 1 prototype development schedule broken up into 4 major Tasks, each with its own individual milestones. The dates will be developed with entire team on board and contracted including the Bluegentech team members. Task 1 – Performance Analysis Task 2 – System Design – hardware and software Task 3 – Custom Electric Driveline Hardware and Software Development Task 4 – Integration into third party supplied vehicle, testing and tweaking as time allows
  25. 25. - 25 - SCHEDULE D TARGET VEHICLE SPECIFICATIONS, FEATURES AND PERFORMANCE FOR PHASE 1 PROTOTYPE (ALPHA) EVDrive shall develop and deliver to Bluegentech the following Deliverables: i. EVDrive shall design, source, and assemble the Custom Electric Driveline for certain specific commercial class 6, 7, and 8 vehicle specified by Bluegentech, which Custom Electric Drive shall include, but is not limited to the following: A. Drive sub-systems including off-the-shelf motor cores, integrated into one case with custom optimal design multi-speed clutchless electronic-controlled gearbox for each of the six (6) wheels including the inverter/controllers to drive each motor/gearbox sub-system; B. Custom version of EVDrive’s torque vectoring control system running on EVDrive “Powertrain Control Unit” (“PCU”) to control the 6 motor/gearbox/inverter/controller units ported over to Bluegentech supplied hardware; C. Energy Storage System including liquid-cooling battery modules and BMS (battery management system) to be built at EVDrive facilities then shipped to Bluegentech for installation; D. Development of PCU functions on Bluegentech supplied hardware; E. Assist Bluegentech staff to develop all software to the Motorhawk/ Mototron/Simulink software simulation and then the run-time hardware platforms, e.g. the engine control units (“ECU”) which will be in the final vehicle; F. Powertrain cooling; G. Modify if possible Bluegentech supplied electric power steering to support required steering angle data streaming; H. Motohawk/Mototron/PCU (powertrain control unit) software (runs on the vehicle ECUs) automated control of the 6 Gearboxes integration with independent suspension and mechanical braking; I. Regenerative braking software and sub-systems, that performs fast charging of batteries from “reverse or negative torque” applied to all motors; J. Develop support sub-systems required such as Power distribution w/ contactors and accessory support as listed above; K. Integrate Bluegentech supplied IMU (inertial measurement unit for real- time 3DOF (degree of freedom - roll, pitch yaw) data streaming and the truck hitch 3DOF data sensor to the torque vectoring software running on the PCU platform); and ii. The Custom Electric Driveline must be developed such that a vehicle operator is able to read and display any fault or error codes within the system during operation of the
  26. 26. - 26 - applicable vehicle. Bluegentech is lead team member in programming of user interface (HMI touchscreen interface to VCU) for this purpose, however EVDrive will support with software running on the PCU part of the vehicles’ Motohawk ECUs. . iii. EVDrive shall develop and engineer 3-D models in Solid Works for the Custom Electric Driveline and its component parts in sufficient detail to allow Bluegentech to integrate it with a turbine powered electric semi-truck chassis. Without limiting the generality of the foregoing, EVDrive shall deliver to Bluegentech Solid Works files for the battery system, inverter controller, electric motor gearboxes, and any other component associated with the foregoing or the Custom Electric Driveline. iv. EVDrive with Bluegentech support, shall develop and deliver to Bluegentech any and all software necessary to operate the Custom Electric Driveline, which software shall interface with Bluegentech’s vehicle control unit (VCU). v. EVDrive shall work in good faith to develop and deliver to Bluegentech its part of the powertrain that can achieve the following performance goals: A. Match or exceed power/torque of a ISM500 or ISX500 Cummins Diesel (500hp) in a Class 8 tractor with GVWR of 20,000 lbs, 60,000 lbs max trailer weight and GVWR - 80,000lbs. B. e-powertrain to produce ~1000hp cont. minimum for 30 minutes - 200kWh, ~20,000 18650 cell EVD ESS C. e-powertrain to produce ~98,000 ft-lbs max. cont. for 30 minutes D. Accelerate up a six percent (6%) grade of climb for ~ thirty (30) minutes with full GVWR E. Able to reach and otherwise maintain speeds between zero (0) and ~eighty (80) miles per hour F. Powertrain sized with Turbine REX to sustain ~75mph cruise flat terrain until REX fuel runs out (auto turn on REX charge sustain mode) - Drive at ~seventy- five (75) miles per hour continuous under a Full Load of GVWR ~60,000 lbs. (IF Bluegentech’s supplied gas turbine and integrated generator can supply the needed continuous electrical power). G. ~80 mph is max top speed, not continuous cruise flat terrain speed

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