Exhibit 10.2


 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


OSHKOSH TEAMING AGREEMENT


 


THIS TEAMING AGREEMENT (this
“Agreement”) dated as of the 7th day of April, 2009 (the “Effective Date”) is
entered into between Force Protection Industries, Inc., a Nevada
corporation (“FPI”) having an office at 9801 Highway 78 Bldg 1 Ladson, SC 29456
and Oshkosh Corporation, a Wisconsin corporation (“Subcontractor”), having an
office at 2307 Oregon Street, Oshkosh, WI 54902. FPI and Subcontractor each
individually referred to as a “Party” and collectively as the “Parties”.


 


WITNESSETH


 


WHEREAS, the Parties
executed a Mutual Confidential Disclosure Agreement on October 31, 2008
(the “MCDA”) regarding Subcontractor’s TAK-4® independent suspension system
(the “System”);


 


WHEREAS, the MCDA
pertains, among other things, to FPI’s Cougar armored vehicle and provides that
the Parties will determine the feasibility of teaming together to provide the
U.S. Government with MRAP suspension upgrade; and


 


WHEREAS, the Parties
intend this Agreement to apply with respect to FPI’s Cougar armored vehicle as
well as derivatives thereto, including the MRAP 6x6, the MRAP 4x4, JERRV, ILAV,
Mastiff Ridgback or TSV (collectively, the “Cougar”); and


 


WHEREAS, FPI desires
to maintain configuration control over the Cougar to ensure survivability
attributes associated with any changes; and


 


WHEREAS, Subcontractor
desires to maintain configuration control over the System; and


 


WHEREAS, the Parties
have expended time and effort to integrate Subcontractor’s System for use on the
Cougar (the “TAK-4® Cougar Suspension Upgrade” or “TCSU”); and


 


WHEREAS, FPI’s
specific contribution, in the form of FPI Proprietary Components, is outlined
in Exhibit 1; and


 


WHEREAS, one of FPI’s
customers, the U.S Department of Defense’s Joint Program Office (“JPO”), has
expressed an interest in upgrading certain Cougars with the TCSU; and


 


WHEREAS, the parties
desire to work together to submit this proposal and also desire to work
together in a “contractor team arrangement” as that term is defined in FAR
9.601(2) to submit proposals to any current or future customers of FPI for
the Cougar (the “Customers”) specifically desiring or requesting the TCSU
(collectively “Proposals”); and


 


WHEREAS, the Parties
desire to combine their respective complementary experience, skills, facilities
and capabilities to offer Customers the best combination of performance, cost
and delivery in connection with obtaining a contract or contracts for the
Proposals (the “Contract(s)”); and


 


WHEREAS, the Parties
wish to define their mutual roles, responsibilities and commitments in
connection with the marketing associated with obtaining Contract(s) for
the Proposals.


 


1

















 


[***]
INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


NOW, THEREFORE, in
consideration of the foregoing premises, and the covenants, promises, and
agreements set forth below, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which is hereby acknowledged, the parties
agree as follows:


 


1.0          PROPOSAL ACTIVITIES


 


1.1           During the term of this Agreement, FPI shall act as
prime contractor for all efforts under Proposals and Subcontractor shall act as
subcontractor for the supply of TCSUs as well as performance of such additional
work as is agreed to by the Parties to be responsive to issued Proposals. If
such work is called for in a Proposal, Subcontractor shall be granted a right
of first refusal to assemble TCSU kits and to: (a) perform installation
subject to the approval by: (i) the Customer, and (ii) any entity
with which FPI has a prior agreement regarding the ILAV, Mastiff, Ridgback or
TSV Cougar vehicles; or (b) train, supervise and certify FPI’s personnel
with respect to the installation of the TCSUs onto Cougars; provided the terms
of Subcontractor’s price, delivery and quality for installation or training are
agreed in good faith by the Parties to be commercially reasonable (the “Work”).
If applicable, FPI shall exert reasonable efforts to obtain, on behalf of
Oshkosh, the approval described in (a)(i) and (ii), above. Notwithstanding
anything in this Agreement to the contrary, FPI shall retain the right to
disassemble the existing Cougar axles as well as the right to provide, kit and
install the FPI Proprietary Components. However, the parties may by mutual
agreement allow Subcontractor to kit the entire TCSU. Subcontractor shall
provide FPI with the interface information and outline drawings of the TAK-4
independent suspension in order prepare Proposals or complete Contracts. FPI
shall provide Subcontractor with the interface information and outline drawings
for the FPI Proprietary Components.


 


1.2           FPI shall be the point of contact with the Customers
and will prepare the Proposals, integrate the data and material provided by
Subcontractor, and submit the Proposals to the Customers. FPI shall timely
inform Subcontractor of communications with the Customer that impact
subcontract performance and shall permit Subcontractor to communicate with the
Customer as requested by the Customer or is reasonably necessary to optimize
Proposal success. FPI, in good faith consultation with Subcontractor and
pursuant to Subcontractor’s reasonable approval with respect to its content,
will make the final determination of the form and content of the Proposals and
will ensure Subcontractor’s data is adequately portrayed and identified as
Subcontractor’s portion.


 


1.3           During the term of this Agreement, the Parties’
relationship shall be mutually exclusive with respect to the Proposals for
Customers specifically desiring or requesting the TCSU. Neither Party shall
submit a proposal, or bid for services relating to Proposals separately or with
others, or take any action or make any agreements or representations with
respect to the Proposals that are in any way inconsistent with the Parties’ agreement
to jointly pursue the opportunities as provided in this Agreement. However,
notwithstanding anything to the contrary in this Agreement, in the event FPI
declines to continue to pursue a Proposal or a Customer elects to work directly
with Subcontractor in whole or in part, Subcontractor shall then have the right
to continue to pursue the Proposal subject to Article 12, by itself or in
combination with others, provided neither Party has created such a circumstance
through breach of this Agreement.


 


2.0          RELATIONSHIP OF THE
PARTIES


 


2.1           The Parties shall act under this Agreement as
independent contractors, and no Party shall act as agent for, or partner of,
the other, nor be authorized to incur any liability or to represent or make
commitments on behalf of the other (except as provided for in this Agreement),
and no employee of a Party shall be deemed an employee of any other Party.


 


2

















 


[***] INDICATES MATERIAL THAT HAS
BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


2.2           Nothing in this Agreement shall be deemed to
constitute, create, give effect to or otherwise recognize a joint venture,
partnership or formal business entity of any kind, and the rights and
obligations of the Parties shall be limited to those expressly set forth
herein. No Party shall have any liability or obligation to the others except as
expressly provided in this Agreement.


 


3.0          TERM AND TERMINATION


 


3.1           Except with respect to the provisions of Articles 4,
5, 7, 9, 11 and 12 which shall survive the expiration or earlier termination
hereof, this Agreement and all rights and duties hereunder will cease and
terminate with respect a particular Proposal upon the first to occur of the
following:


 


3.1.1        cancellation of the Proposal;


 


3.1.2        the elimination of FPI from consideration as a prime
contractor for any phase of the Proposal;


 


3.1.3        a decision by the Customer to work directly with
Subcontractor subject to the Article 12;


 


3.1.4        disapproval by Customer of a FPI subcontract to
Subcontractor, or direction by the Customer to use a subcontract source other
than Subcontractor for a substantial portion of the Work, provided FPI has made
reasonable efforts to secure an opportunity for Subcontractor to participate as
set forth herein under the Proposal;


 


3.1.5        failure of FPI and Subcontractor to agree upon a
mutually acceptable purchase order after negotiation in good faith;


 


3.1.6        expiration of sixty (60) months after the Effective
Date or the award of a Contract under any pending proposal, whichever comes
later;


 


3.1.7        mutual written agreement of the Parties to terminate;


 


3.1.8        petition by one of the Parties for bankruptcy or
reorganization under the bankruptcy laws or assignment for the benefit of
creditors;


 


3.1.9        A Party’s material breach of the provisions of this
Agreement, which is not cured within fourteen (14) days after receipt of
written notice of such breach provided by the other Party; or


 


3.1.10      The execution of a purchase order between FPI and
Subcontractor.


 


4.0          CONFIDENTIAL/PROPRIETARY
INFORMATION


 


The
parties shall abide by the terms of the MCDA which is specifically incorporated
by reference.


 


5.0          PUBLICITY AND NEWS
RELEASE


 


Any
news release, public announcement, advertisement or publicity proposed to be
released by any Party concerning a Proposal or the activities of any Party in
connection with this Agreement or any resulting award of the Contract shall be
subject to the approval of all Parties prior to release, which approval shall
not be unreasonably withheld or delayed.


 


3

















 


[***] INDICATES MATERIAL THAT HAS
BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


6.0          ASSIGNMENT


 


Neither
this Agreement nor any interest herein may be assigned, in whole or in part, by
any Party hereto without the prior written consent of the other Party, except
by way of merger, consolidation or the acquisition of substantially all of the
business assets of a party.


 


7.0          DISPUTE RESOLUTION


 


This
Agreement shall be governed by the laws of the State of South Carolina,
excluding its conflicts of law rules. It is the intent of the Parties that any
dispute be resolved informally and promptly through good faith negotiation
between them. Either Party may initiate negotiation proceedings by written
notice to the other Party setting forth the particulars of the dispute. The
Parties agree to meet in good faith to jointly define the scope and a method to
remedy the dispute. If these proceedings are not successful, a representative
of the senior management from each Party shall meet personally in a good faith
attempt to resolve the matter. Should any disputes remain unresolved after
completion of the 2 step resolution process set forth above, the Parties shall
promptly submit any dispute to mediation with an independent mediator. In the
event mediation is not successful in resolving the dispute, the Parties agree
to submit the dispute to binding arbitration in Atlanta, Georgia or other
mutually agreed-upon location, according to the Commercial Arbitration Rules and
Procedures of the American Arbitration Association.


 


8.0          SCOPE OF AGREEMENT


 


8.1           This Agreement shall relate only to the Proposals specified
herein and nothing herein shall be deemed to:


 


8.1.1                      Confer any right or impose any obligation
or restriction on any Party with respect to any other program, effort or
marketing activity at any time undertaken by any Party hereto; or


 


8.1.2                      Limit the rights of any Party to promote,
market, sell, lease, license or otherwise dispose of its products or services;
other than with regard to the Proposals and then only as specified herein.


 


9.0          NOTICES


 


Any
notice, demand or request required or permitted by this Agreement shall be in
writing and shall be given as follows:


 


	
  FPI:

  	
   

  	
  Subcontractor:

  
	
  Force
  Protection Industries, Inc.

  9801
  Highway 78, Bldg. 1

  Ladson,
  SC 29456

  Attention:
  John Wall, III

  Facsimile
  No.: 843-553-1311

  	
   

  	
  Oshkosh
  Corporation

  2307
  Oregon Street

  Oshkosh,
  WI 54902

  Attention:
  Brad Bauknecht

  Facsimile
  No.: 920-966-5955

  



 


10.0        PURCHASE ORDERS


 


10.1         The parties shall negotiate a Purchase Order, the
terms of which will be consistent with any Proposal, the Work required
thereunder and the Supply Agreement attached as Exhibit 2.


 


4

















 


[***] INDICATES MATERIAL THAT HAS
BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


11.0        COMPLIANCE WITH LAWS


 


11.1         The Parties acknowledge that the Customer and the
Parties are subject to the Export Regulations of the United States of America
regarding export of certain technical data from the United States. Each Party
agrees that it will not export, either directly or indirectly, any information
or data received from Customer or the direct product thereof to any country in
contravention of the said Export Regulations, or which, if done by Customer
would violate the laws of the United States of America.


 


11.2         The Parties and their respective officers, employees,
representatives, consultants, and subcontractors will comply with the requirements
of Part 3 of the Federal Acquisition Regulations (48 C.F.R 3.000 through
3.906), entitled “IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST” as those requirements apply to those doing business with the Federal
Government.


 


11.3         Each Party shall comply with the Foreign Corrupt
Practices Act of 1977 and all other applicable laws, including without
limitation those laws dealing with improper or illegal payments, gifts, or
gratuities and shall not offer, make or give any such payments, gifts or
gratuities to any person (whether governmental official or private individual)
for the purpose of inducing such person or individual to make a buying
decision, or to take any other action favorable to any Party in connection with
any Project.


 


12.0        COOPERATION AND ROYALTY


 


In
the event that a Customer contacts Subcontractor for the supply of TCSU,
Subcontractor shall advise such Customer that it has this existing Teaming
Agreement and that the Customer should contact FPI as the Original Equipment Manufacturer
of the Cougar. Subcontractor shall immediately advise FPI of any such Customer
contact, and provide FPI with any information and documentation that it
receives from the Customer. The parties shall use reasonable efforts to
complete the order for the Customer through the use of FPI as the prime
contractor. Notwithstanding the foregoing, if the parties are unsuccessful or a
Customer provides a written directive requiring that the TCSU be provided by
Subcontractor, directly or indirectly through other parties, Subcontractor may
proceed with the sale, provided, Subcontractor shall procure FPI Proprietary
Components from FPI, provided the terms of FPI’s price, delivery and quality
are agreed to in good faith by the parties to be commercially reasonable, and
provided further that the Subcontractor agrees in writing to pay FPI a royalty
of [***] which is
payable within fourteen (14) days of Subcontractor’s receipt of each payment
from the Customer.


 


13.0        ENTIRE AGREEMENT


 


This
Agreement constitutes the entire understanding and agreement of and between the
Parties with respect to the subject matter hereof and supersedes all prior
representations and agreements, oral or written. It shall not be varied, except
by an instrument in writing of all subsequent date, duly executed by any
authorized representatives of both Parties. Article and paragraph headings
herein are for convenience only and shall not limit in any way the scope of
interpretation of any provision to this Agreement.


 


5

















 


[***] INDICATES MATERIAL THAT HAS
BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.


 


IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by their respective duly
authorized officers effective the day and year first written above.


 


 


	
  FORCE
  PROTECTION INDUSTRIES, INC.

  	
   

  	
  OSHKOSH
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Mark V. Edwards

  	
   

  	
  By:

  	
  /s/
  Richard A. Hove

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Mark
  V. Edwards

  	
   

  	
  Name:

  	
  Richard
  A. Hove

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Executive
  Vice President, Development

  	
   

  	
  Title:

  	
  Executive
  VP and President, Defense

  



 


6

















 


[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.


 


EXHIBIT 1


 


The FPI Proprietary Components comprise:


 


1.       Removal of existing [***], supply and
installation [***] and relocating [***]


2.       Supply and installation of [***] and transfer [***]


3.       Supply and installation of [***], as
specifically conformed [***]


 


7