Exhibit 10.1
TEAMING AGREEMENT
This Agreement, effective as of the
23rd day of March, 2009 (the “Effective Date”), is
entered into by and between Force Protection Industries, Inc.,
a Nevada corporation (“FPII”), having a principal place
of business at 9801 Highway 78, Building 1, Ladson, South Carolina
29456, a wholly owned subsidiary of Force Protection, Inc.
(“Force Protection”) and Spartan Motors
Chassis, Inc., a Michigan corporation (“SMC”),
having a principal place of business at 1000 Reynolds Road,
Charlotte, Michigan 48813, a wholly owned subsidiary of Spartan
Motors, Inc. (collectively, the
“Parties”).
WHEREAS, FPII, is the designer, manufacturer and prime
contractor with regard to Cougar-class vehicles (including a number
of variants and configurations) (“Vehicles”) purchased
by the United States Department of Defense (“USDoD”)
and other end users;
WHEREAS, FPII desires to ensure, among other things, the
superior survivability attributes of, and configuration control
over any changes to, the Vehicles;
WHEREAS, Force Protection and SMC entered into a
confidentiality agreement, dated July 1, 2005
(“Confidentiality Agreement”);
WHEREAS, FPII and SMC entered into a term sheet dated
July 17, 2007 (“Term Sheet”);
WHEREAS, SMC is a subcontractor to FPII, pursuant to
which SMC provides significant automotive integration capabilities
and services to FPII related to the production of the
Vehicles;
WHEREAS, FPII’s domestic customer of the vehicles,
the USDoD desires to maintain, service and support the Vehicles,
including but not limited TACOM, MARCORPSYSCOM, DLA, DIB or any
other US government agency supporting the Vehicles, but
specifically excluding any other foreign customers of the Vehicles
(the “Customer”);
WHEREAS, the Parties desire to supply Customer with the
Vehicle automotive parts which have been specifically designed,
developed, modified, configured, adapted or reconfigured for the
Vehicles that are identified in Exhibit A, which is attached
hereto and incorporated by reference (the “Spare
Parts”);
WHEREAS, the Parties desire to work together in a
“contractor team arrangement” as that term is defined
in FAR 9.601(2) to submit proposals to Customer for Spare
Parts to (collectively “Proposals”);
WHEREAS, the Parties desire to combine their respective
complementary and non competitive experience, skills, facilities
and capabilities in order to compete effectively to obtain and
perform future military contracts for the supply of Spare Parts for
Vehicles to provide Customers with the best combination of
performance, cost and delivery in obtaining contracts for the
Proposals (collectively “Contracts”);
WHEREAS, the Parties recognize the criticality of
supporting the Customer in maintaining, servicing and supporting
the fielded Vehicles;
WHEREAS, FPII recognizes the SMC capabilities related to
supporting the Vehicles and meeting the customer’s
requirements to service, maintain and support the fielded
Vehicles;
WHEREAS, the Parties recognize that FPII is the design
authority related to the Vehicles;
WHEREAS, the parties desire to resolve all outstanding
issues and to work collaboratively to ensure that both FPII, on
behalf of Itself and its parent, affiliates and subsidiaries, and
SMC, on behalf of itself and its parent, affiliates and
subsidiaries, are focused on exceeding the Customer’s
expectations with regard to supplying Spare Parts to service,
maintain and sustain the Vehicles;
WHEREAS, the Parties seek to set out certain principles
to establish subsequent parameters for agreements to exceed the
Customers’ requirements for the Vehicles; and
WHEREAS, the Parties agree that other vehicles may be
included under the provisions of this Agreement by the mutual
written consent of both of the parties hereto.
NOW, THEREFORE,
based on the foregoing premises, for
valuable consideration derived under this Agreement and for other
good and valuable considerations acknowledged here, the Parties
agree as follows:
1
The Whereas Clauses are incorporated
by reference.
2
Intellectual Property
Rights.
(a)
FPII and SMC each agree that the
Vehicles are comprised of parts, subsystems and systems
representing proprietary protectable intellectual property, along
with all improvements, upgrades, substitutions, and enhancements
thereto. In addition to the intellectual property rights owned and
retained by the individual component manufacturers, in some cases,
additional intellectual property is owned by Force Protection; in
some cases, additional intellectual property is owned by Spartan;
in other cases, additional intellectual property was jointly
developed and owned by the Parties in order to timely complete the
urgent project.
(b)
Conditioned upon terms that are
compliant with all laws and regulation, the Parties have worked
collaboratively to identify the universe of applicable Spare Parts
and have determined both any legal restrictions on the safe of such
parts and the identification of the Party best suited to sell such
spare parts to resellers, distributors, and the government with a
goal of sharing potential spare parts business, consistent with the
Parties’ capabilities, areas of expertise, and ownership of
intellectual property.
(c)
SMC hereby grants to FPII for the
term an exclusive, royalty-free license of SMC’s intellectual
property interests, if any, related to the Vehicles or the Spare
Parts in accordance
