MENTOR PROTÉGÉ AGREEMENT
EXHIBIT
10.1
Coachmen
Industries, Inc., 0000 Xxxxxx Xxxxx, Xxxxxxx, XX 00000, hereinafter the "Mentor'
or "Coachmen'", and The Warrior Group, Inc., a Texas Corporation with its
principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000, XxXxxx, XX 00000
,
hereinafter the "Protégé" or "Warrior'" (collectively "parties"), hereby agree
to enter into this Mentor Protégé Agreement ("Agreement") for their mutual
benefit pursuant to the Title 13 Section 124.520 of the United States Code
of
Federal Regulations ("CFR"). This Agreement must be approved by the Small
Business Administration (“SBA”). This Agreement becomes effective on the date
that it is approved by the SBA, and Mentor will provide such assistance to
the
Protégé firm for at least one year.
WHEREAS,
Coachmen is a successful public company with approximately $800 million in
revenues in 2004, and with several subsidiaries having significant experience
in
negotiating and performing building contracts governmental
entities;
WHEREAS,
Coachmen during the performance of these contracts has developed particular
expertise in the program management, financing and cash management of
contracts,
WHEREAS.
Coachmen companies have entered into and successfully and profitably performed
building and supply contracts as both a prime contractor and subcontractor,
with
both large and small businesses (as determined by the North American Industry
Classification System ("NAICS") Codes of the SBA);
WHEREAS,
Warrior is a participant in the SBA's Section 8(a) Business Development ("BD"")
program:
WHEREAS,
Warrior is a successful Section 8(a) BD contractor;
WHEREAS;
Warrior has experienced continuing difficulty in program management, financing
and cash management of its contracts with the Federal Government;
WHEREAS,
the Parties believe that by entering into this Agreement Coachmen will be able
to provide Warrior with the financial stability and management expertise
necessary to effectively compete for Government contracts: and
WHEREAS,
Coachmen and Warrior agree that entering into this Agreement will primarily
benefit Warrior and provide incidental benefits to Coachmen,
NOW,
THEREFORE, the parties agree to enter into this Agreement, subject only to
the
approval of the SBA.
I
. Qualifications
of Mentor
a. Coachmen
is in its fortieth (40th)
year of
business and its thirty fifth (35th)
as a
publicly listed company. Its companies have, during its existence, successfully
completed millions of dollars of government or federally funded work, as well
as
millions of dollars of private contracting.
b. Coachmen
also enjoys an excellent technical reputation in its customer community, as
well
as a reputation in financial circles as a well-managed and financially strong
operation. Coachmen has sustained an excellent track record in contract
performance.
c. Coachmen
has assembled a support infrastructure with extensive experience in (i)
contracts and their administration; (ii) financial management; (iii) business
and contract law: (iv) marketing, bidding and proposal preparation; and (v)
human resources and benefits
administration.
Coachmen can provide Warrior with appropriate access to this infrastructure
as
an element of its commitment to share its management expertise with
Warrior.
d. Coachmen
has been profitable for the last two years and thus possesses favorable
financial health, as that term is defined in 13 CFR §§ 124.520(b)(1)(i) and
(b)(3).
e. Coachmen
is not on the Federal list of debarred or suspended contractors or proposed
for
suspension or debarment and thus possesses good character. 13 CFR §§ 124.520(b)
(1) (ii) and (b) (1) (iii).
f. Based
on
its extensive experience in contracting with the Federal Government, Coachmen
can provide Warrior with significant guidance and support in government and
private sector contracting.
g. Coachmen's
primary NAICS code is 321992.
h. Coachmen
is
not a Mentor to any other 8(a)BD or any other firm in the SBA's or any other
Federal agency's Mentor Protégé Program.
2. Qualifications
of Protégé
a. Warrior
has established a reputation in the Government customer community for technical
excellence and effective performance, but has not been as effective in the
management and utilization of its financial resources. As such, Warrior
currently finds itself unable to compete with larger, more financially strong
concerns.
b. Warrior
entered the 8(a)BD Program on 08/24/2001
.
c. Warrior's
primary 8(a) NAICS Code is 236220. The small business size of that NAILS Code
requires that Warrior not exceed $28.5 million average sales over (3)
consecutive years.
d. Warrior
has never had revenue over $14.0 million which is less than half the standard
corresponding to its primary NAICS Code and, therefore, is eligible to
participate in the Mentor Protégé Program. 13 CFR §
124.520(c)(1)(iii).
e. Warrior
does not have any termination or suspension proceedings against it and is up
to
date with its reporting requirements. Thus, Warrior is in good standing in
the
8(a)BD Program. 13 CFR § 124.520(c)(2).
f. Warrior
does not have any other Mentors.
3. Assessment
of Needs of Protégé
To
date,
Warrior has primarily focused on Government related projects and has experienced
success in this arena. However, in consultation with Coachmen, Warrior has
identified the following areas in which it needs to increase or develop its
expertise in order to remain competitive.
a. Private
market.
Warrior
relies primarily on Government related projects and needs to expand into the
commercial, educational and construction industries.
b. Ability
to meet each state's building code requirements. Warrior
must increase its knowledge of state and national building code
requirements.
c.
Fleet
management and logistics. In
addition to the new custom transactions where the equipment being provided
is
built specifically for a project, Warrior needs to
increase
its ability to manage a fleet of pre-built units in order to service clients
when time restraints make custom-built products impossible.
d. Vendor
pool.
Warrior
needs to develop an established network of manufacturers and contractors
nationwide.
e. Financial
resources.
Warrior
lacks the financial stability to aggressively attack sizable government or
commercial projects with confidence, in part because Warrior lacks experience
in
utilizing various analysis tools used to assess and structure
transactions.
f. Product
lines.
Warrior
has only had experience in providing modular wood framed buildings but needs
to
gain knowledge of concrete and steel products and value added products such
as
furniture, steps, ramps, telecommunications, security systems and storage
equipment.
g. Managed
growth. To
successfully compete in the national federal contract arena, Warrior needs
to
learn management skills that will enable Warrior to establish multiple locations
over the next 2-3 years.
h. Bonding.
Warrior
lacks sufficient bonding capacity to increase market share.
i. Quality
Control.
Warrior
will require QA/QC and manufacturing expertise as it relates to their modular
procurement opportunities.
4. Assistance
to Be Provided by Mentor
a. As
indicated above. Coachmen has the contract management expertise and financial
resources to mentor Warrior while it is in the 8(a)BD program.
b. General
Assistance. To
ensure
Warrior's ongoing financial and contracting health. Coachmen and Warrior will
meet on a not less than quarterly basis to (i) review the status of ongoing
contracts, (ii) review prospective bidding opportunities, (iii) analyze
cash-flow requirements
and projected financial needs. (iv) review contract performance problems, and
(v) determine technical and/or management assistance needed by Warrior, as
necessary. Coachmen will also meet with customers as deemed necessary to assure
them of Coachmen's continuing support to Warrior.
c. Targeted
Assistance.
Based
upon the Coachmen's assessment of Warrior's needs, Coachmen will endeavor to
help Warrior address each of the categories previously mentioned in Section
3 in
the following ways:
i. Private
market.
Coachmen services customers in the commercial, educational and construction
industries and can provide Warrior with the benefit of over thirty years of
marketing and customer service experience, and thereby assist Warrior in
establishing a national brand name presence through Warrior /Coachmen Joint
Venture Activities.
ii. Ability
to meet each state's building code requirements.
Warrior
will have access to Coachmen's knowledge of state and national building code
requirements. Coachmen maintains over 20 manufacturing facilities in the US
and
is responsible for meeting state codes throughout its marketing area. By
partnering on commercial transactions Warrior will have the opportunity to
become familiar with this process nationwide.
iii. Vendor
pool.
Coachmen
has established a network of approved vendors, manufacturers and contractors
throughout its marketing area. Through this relationship Warrior will have
access to this vendor pool and be provided the opportunity to avail itself
of
the
qualification
process as well as establish relationships with these vendors. This will provide
Warrior with the future ability to perform work on a
nationwide
basis.
iv. Financial
resources.
Coachmen
can provide the financial stability to enable Warrior to aggressively attack
larger government or commercial projects with confidence. Further, Coachmen
can
provide Warrior with its experience in utilizing various analysis tools used
to
assess and structure transactions. These resources include indemnity for Warrior
as it relates to increasing its bonding capacity.
v. Product
lines.
In
addition to modular wood framed buildings, Coachmen also provides concrete
and
steel buildings, modular homes, recreational vehicles, thermo-formed plastic
products, and construction site services. Through the Mentor Program, Warrior
will have the opportunity to learn about these products and provide itself
additional growth opportunities
vi. Overall
Growth.
Coachmen
will assist Warrior to the extent the parties deem necessary and appropriate
in
acquiring the management skills that will enable Warrior to establish multiple
locations over the next 2-3 years.
d. In
addition, Coachmen, in conformance with the Small and Disadvantaged
Subcontracting requirements of Federal procurement, will endeavor to subcontract
with Warrior in its areas of expertise.
e. Finally,
Coachmen will attempt to expand Warrior's market access by advising and
supporting contacts within the customer community and be available on a
continuing basis to assist Warrior in overcoming the daily challenges of
operating a small business.
5. Right
to Terminate the Agreement
Either
Protégé or Mentor may terminate this Agreement upon 30-days advance written
notice to the other party of the Mentor/Protégé relationship and to the
SBA.
6. Relationship
of the Parties
This
Agreement does not create a joint venture, partnership, or formal business
relationship of any kind other than a Mentor Protégé relationship pursuant to 13
CFR § 124.520. Thus, the parties agree that no legal relationship of any kind
exists as a result of this Agreement, other than as expressly contained herein.
Nor shall either party have the authority to create any obligation for the
other
party, except to the extent stated herein. Any attempt to do so without the
express prior consent of the other party shall be void.
7. Protection
of
Proprietary
Information
a. The
parties anticipate that it may be necessary for either party to transfer to
the
other information of a proprietary nature in connection with performance under
this Agreement. All such information shall be so designated in writing on each
page or sheet or by appropriate stamp or legend by the party to qualify as
proprietary.
b. Each
of
the parties agrees that it will use the same reasonable efforts to protect
the
other party's proprietary information as are used to protect its own proprietary
information.
c. Proprietary
information shall be used only in preparation and submission and performance
of
this Agreement. However,
the Mentor may, without liability, disclose to the SBA information received
from
the Protégé that is necessary for the evaluation, discussion or negotiation of
the Agreement. If any such information is market proprietary, such marking
will
be retained on any disclosed information.
d. The
Mentor assumes no responsibility for release of proprietary information by
the
U.S. Government to the general public pursuant to the Freedom of Information
Act
or any similar statute or regulation.
e. A
party's
obligations regarding the use of proprietary information are not applicable
under the following conditions:
If
prior
to the receipt thereof under this Agreement, the information has been developed
independently by the party receiving it by persons not having access to the
information, or was lawfully known to the party receiving it as demonstrated
by
written records, or has been lawfully received from other sources, including
the
SBA, provided such other source did not receive it due to a breach of this
Agreement;
If.
subsequent to the receipt thereof under this Agreement, (a) the information
is
published by the party furnishing it or is disclosed by the party furnishing
it
to others, including the customer, without restriction, (b) the information
has
been lawfully obtained by the party receiving it from other sources, including
the SBA, provided
such other source did not receive it due to a breach of this Agreement, or
(c)
such information otherwise comes within the public knowledge or becomes
generally known to the public without fault of the recipient.
f. Proprietary
information furnished hereunder shall remain the property of the furnishing
party and shall be returned to it promptly upon request. Neither this Agreement
nor the furnishing of any information hereunder by either party to the other
shall be construed as granting any license under or right in any invention,
patent, trade secret, trademark, copyright, data or information of the
disclosing party.
g. Notwithstanding
the expiration of other portions of this Agreement, the obligations of the
parties under this paragraph shall continue for a period of two (2) years from
the termination of this Agreement or disclosure, whichever is
earlier.
8. Limitation
of Liability
NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS,
LOSS OF BUSINESS,
OR INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF THE OTHER PARTY,
WHETHER SUCH DAMAGES ARE ALLEGED TO HAVE RESULTED FROM BREACH OF CONTRACT OR
TORT, FOR ANYTHING RELATING TO OR ARISING OUT OF THIS AGREEMENT.
9. Indemnification
SUBJECT
TO ARTICLE 8 ABOVE, EACH PARTY SHALL INDEMNIFY AND HOLD THE OTHER HARMLESS
FROM
ANY AND ALL CLAIMS, ACTIONS, DAMAGES AND LIABILITIES (INCLUDING REASONABLE
ATTORNEY'S FEES) TO THE EXTENT ARISING DIRECTLY AND PROXIMATELY OUT OF THE
INDEMNIFYING PARTY'S NEGLIGENCE, OR WILLFUL, WANTON OR RECKLESS CONDUCT AND
WHICH RESULTS IN DEATH OR AN OCCURRENCE CAUSING BODILY INJURY OR DAMAGE TO
ANY
REAL OR TANGIBLE PERSONAL PROPERTY, ARISING FROM OR RELATING TO THE PERFORMANCE
OF THIS AGREEMENT.
10. Assignment
Neither
this Agreement nor any of the responsibilities here-under may be assigned or
otherwise transferred by either party, in whole or in part, to any entity that
is not a party
to
this
Agreement without the express, prior written consent of the
other
party. Such consent shall not be unreasonably withheld. Absent such express,
prior written consent, any attempted assignment to any entity that is not a
party to this Agreement shall be null and void and have no effect on either
party's obligations under this Agreement.
11. Amendment
of Agreement
This
Agreement shall not be amended or modified, nor shall any waiver, right, or
obligation hereunder be effective unless set forth in a document executed by
duly authorized representatives of each party. Any change to the Agreement
must
be approved in advance by the SBA.
12. Notices
Any
notice, modification, change. consent, demand or request required or permitted
by this Agreement shall be deemed to have been sufficiently given when
personally delivered, delivered by overnight carriers, or transmitted by first
class United States Mail, postage prepaid, addressed as follows:
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To
Mentor:
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To
Protégé:
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Coachmen
Industries, Inc.
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The
Warrior Group, Inc.
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0000
Xxxxxx Xxxxx
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0000
Xxxxxx Xxxxx., Xxxxx 000
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P.
0. Xxx 0000
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XxXxxx,
XX 00000
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Xxxxxxx,
XX 00000
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Attn:
General Counsel
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Attn:
V. Xxxx Warrior-Xxxxxxxx
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Phone:
(000) 000-0000
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Phone:
000-000-0000
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Facsimile:
(000) 000-0000
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Facsimile:
000-000-0000
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13. Law
This
Agreement shall be governed by the interpreted according to the laws of the
State of Indiana.
14. Authority
The
parties represent that the undersigned are duly authorized representatives
of
the parties and have the authority to bind the respective parties to this
Agreement.
IN
WITNESS WHEREOF, each of the parties to this Agreement has caused this Agreement
to be executed by its duly authorized representative as of the day and year
written below.
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COACHMEN
INDUSTRIES, INC.
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THE
WARRIOR GROUP, INC.
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By:
/s/ Xxxx
Xxxxxxx
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By:
/s/ Xxxx Warrior
Xxxxxxxx
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Its:
President
and Chief Operating Officer
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Its:
President and Chief Executive Officer
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Date:June
16, 2005
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Date:
June 16, 2005
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