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 with this
Agreement. FPII hereby grants to SMC for the term an exclusive, 


 


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royalty-free license of FPII’s intellectual property
interests, if any, related to the Spare Parts in accordance with this
Agreement.


 


(d)                                 The Parties agree that Spartan has unique
capabilities with regard to the manufacture, assembly or sourcing of certain of
the Spare Parts. Spartan agrees that it will not independently sell certain identified Spare Parts or
any assembled subsystem or system comprised thereof, to any third party
including any agency, division or department of the USDoD or any contractor
thereof, related to the Vehicles, provided however that such restriction complies
with all laws, rules and regulations as described in paragraph (g).


 


(e)                                  FPII agrees that it shall utilize SMC for the
sale of the Spare Parts, or any assembled subsystem or system comprised thereof, to the Customer or any contractor thereof,
related to the Vehicles as identified
in Exhibit A. All FPII sales for Spare Parts shall be
exclusively sourced through SMC under the
terms of this Agreement, regardless of whether the Spare Parts are to be
sourced for Vehicle retrofits, upgrades, spares, replacement parts, re-set, or
remanufacture.


 


(f)                                    FPII and SMC agree that neither party has
any intellectual property rights
in commercial off the shelf items as defined in the FAR (provided that such
item has an existing manufacturer catalog part number) for the Vehicles, that
such items are not subject to this Agreement, and that each party is free to
sell such items to anyone at anytime. (g) Any restriction on FPII’s or SMC’s
ability to sell Spare Parts must be consistent
with statutory and regulatory prohibitions on restricting spare part
sales by a subcontractor. Any
such restriction must be compliant with all laws, rules, and regulations, to include antitrust laws and regulations.
In addition, the party acting as prime
contractor may not restrict the direct
sale of unaltered COTS items from the party acting as subcontractor to
any customer.


 


3                                          Proposals.


 


(a)                                  The parties agree to cooperate to
properly and timely respond to all requests from the Customer for quotes,
proposals or information with regard to the Spare Parts.


 


(b)                                 FPII recognizes that SMC has superior
capability in responding to Customer requests for quotes, proposals and
information with regard to acquiring Spare Parts. SMC shall use its best
efforts to assist, support and provide information to FPII to ensure timely, fulsome and compliant proposals,
information or quotes to the Customer with regard to the Spare Parts.


 


(c)                                  From March the Effective Date and
thereafter, all inquiries, orders or requests regarding Spare Parts shall be
directed to, and responded to, by FPII regardless of the method of inquiry,
order or request and regardless of the party receiving the inquiry, order or
request.


 


(d)                                 Except as otherwise set forth in Exhibit A,
during the term of this Agreement, as between SMC and FPII, FPII shall act as
prime contractor for all activities regarding the 


 


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Spare Parts, and SMC shall act as a subcontractor for
the performance of the requirements related to the Spare Parts on an exclusive basis. FPII shall be the
primary point of contact with the Customer and will prepare all responses or
proposals, integrate the data and material provided by SMC, and submit any
quote, proposal or information to the Customer. FPII will make the final determination
of the form and content of any response to the Customer and will make
reasonable efforts to ensure SMC’s data is adequately portrayed and identified.
FPII will afford SMC the opportunity to review, prior to proposal, response,
quote or information submission, that portion to be performed by SMC. The
Parties each agree to bear their respective proposal-related costs and expenses
at no cost to the other. The Parties shall undertake reasonable efforts to negotiate in good faith and execute
a mutually agreeable fixed price subcontract or purchase order for the Spare
Parts with terms and conditions consistent with the respective Contract.


 


4                                          Records. 
The parties agree to keep
records having a detail generally equivalent to that maintained by the party
for confidential information owned by that party. The parties further agree to
make such records available to other party upon reasonable request and the
requesting party shall have the
right to examine such records during reasonable business hours for the purpose
of determining a receiving party’s compliance with the terms of this Agreement.


 


5                                          Confidentiality.  Unless specifically provided for herein, the
terms of the Confidentiality Agreement are incorporated herein by reference.


 


6                                          General. 
This Agreement shall be interpreted and construed in accordance with the
laws of the State of South Carolina. This written instrument shall constitute
the entire Agreement between the parties hereto with respect to the subject
matter hereof, and all other prior agreements, covenants, promises and
conditions, oral or written, between these parties are incorporated herein or
superseded in their entirety by this Agreement and shall not be varied,
amended, or supplemented
except by a writing of subsequent or even data executed by both parties.


 


7                                          Authorizations.  It is understood and agreed by the parties
that this Agreement is permanently subject to the rules prevailing in both
the U.S.A. and foreign countries regarding the transfer of technology and
supplies in the armament field and relevant
authorizations from the cognizant Government Authorities, including but not
limited to export licenses to be issued
by the respective authorities of such Governments.


 


8                                          Binding Agreement.  This Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.


 


9                                          Representations.    Each party represents that it will comply
with all applicable export and import laws and regulations during performance
of this Agreement, including but not limited to, the U.S. Arms Export Control
Act, as amended (22 U.S.C. §§ 2751-2799), the
International Traffic in Arms Regulations, as amended (22 C.F.R. Part 120
et seq.), the Export Administration Act, as amended, (50 U.S.C. §§ 2401-2420), and the U.S.
Export Administration Regulations, as amended (15 C.F.R. § 730 et seq.). The Parties shall not export,
disclose, furnish or otherwise provide any article, technical data, technology,
defense service, or technical assistance of the 


 


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other Party to any
foreign person or entity, whether within the U.S. or abroad, without obtaining,
in advance, (a) appropriate U.S. government export authorization, and (b) written
approval from the Disclosing Party.


 


10                                    The parties agree that the violation of
any of the provisions of this Agreement will cause irreparable loss and harm
which cannot be reasonably or adequately compensated by damages in an action at law, and, accordingly, the
aggrieved party will be entitled to seek injunctive and other equitable relief
to enforce the provisions of this agreement and to prevent or cure any breach
or threatened breach thereof; but no action for any such relief shall be deemed
to be a waiver of right to bring an action for damages. The parties further
agree that it will not be a defense to any request for such relief that an
adequate remedy at law exists.


 


11                                    Either Party may unilaterally terminate
this Agreement if the other Party becomes suspended, debarred or otherwise
deemed not presently responsible. This Agreement will terminate in the event of
liquidation, bankruptcy, reorganization, dissolution or insolvency of either
Party resulting in the Parties inability to perform.


 


12                                    The Term Sheet is superseded by this
Agreement.


 


13                                    The term of this Agreement shall be ten (10) years.


 


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IN WITNESS WHEREOF,  the parties hereto have caused this
Agreement to be executed effective as of the day and year above provided.


 


Force
Protection Industries, Inc.


 


 


	
  By:

  	
  /s/
  Michael Moody

  	
   

  
	
  Name:
  Michael Moody

  	
   

  
	
  Title:
  President and Chief Executive Officer

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Spartan
  Motors Chassis, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  John E. Sztykiel

  	
   

  
	
  Name:
  John E. Sztykiel

  	
   

  
	
  Title:
  Chief Executive Officer

  	
   

  



 


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