Exhibit 10.78


 


AMENDMENT NO. 1


TO


SEVERANCE AGREEMENT


 


This Amendment No. 1
(this “Amendment”), dated as of December 24, 2008, amends that
certain Severance Agreement (the “Agreement”) entered into on June 25,
2008, by and between Force Protection, Inc., a Nevada corporation (the “Company”),
and Charles Mathis (the “Executive”).


 


WHEREAS, in order to avoid certain adverse federal
income tax consequences to the Executive as a result of Section 409A of
the Internal Revenue Code of 1986, as amended, the Company and the Executive
desire to enter into this Amendment to amend certain provisions of the
Agreement in accordance with Section 21 of the Agreement.


 


NOW,
THEREFORE, for and in
consideration of the promises and the mutual covenants and agreements in the Agreement
and herein, the Company and the Executive hereby agree as follows:


 


1.                                       Capitalized Terms. 
Capitalized terms that are not defined in this Amendment shall have the
meanings ascribed thereto in the Agreement.


 


2.                                       Section 1(d) of the Agreement is
amended in its entirety to read as follows:


 


“(d)                           “Change in Control Termination
Period” means the period of
time beginning with a Change in Control and ending two (2) years following
such Change in Control.”


 


3.                                       The third sentence in the last paragraph of Section 1(g) of
the Agreement is amended in its entirety to read as follows:


 


“The Executive must provide
notice of termination of employment (in accordance with the provisions of Section 14(b))
within ninety (90) days of the initial existence of an event constituting Good
Reason (including any such event which occurs prior to a Change in Control
pursuant to the first sentence of this paragraph) or such event shall not
constitute Good Reason under this Agreement.”


 


4.                                       Section 3(b) of the Agreement is
amended in its entirety to read as follows:


 


“a lump-sum cash amount within the calendar year next following the
calendar year during which the Date of Termination occurs equal to the product
of (i) the annual bonus the Executive would have been paid for the calendar
year during which the Date of Termination occurs based on the achievement of
actual performance goals and (ii) a fraction, the numerator of which the
number days in the fiscal year in which the Date of Termination occurs through
the Date of Termination and the denominator of which is three hundred
sixty-five (365) (the “Pro-Rata Bonus”);”


 

















 


5.                                       Section 3(c) of the Agreement is
amended in its entirety to read as follows:


 


“(c)                            a lump-sum cash
amount on the 55th day following the Date of Termination equal to one times the
sum of (A) the Executive’s annual base salary and (B) the greatest of
(1) the Executive’s target bonus for the fiscal year in which the
Executive’s Date of Termination occurs and (2) the average of the actual
bonuses earned by the Executive in respect of the two (2) preceding fiscal
years of the Company immediately preceding the fiscal year in which the Date of
Termination occurs;”


 


6.                                       Section 3(e) of the Agreement is
amended in its entirety to read as follows:


 


“(e)                            with respect to
outstanding equity awards held by the Executive as of the Date of Termination,
all stock options and stock appreciation rights that would become vested and
exercisable if the Executive had continued to be employed with the Company
during the twelve (12) month period commencing on the Date of Termination shall
vest and become exercisable and the restrictions on all restricted stock
awards, restricted stock units and other equity or incentive awards that would
have lapsed if the Executive had continued to be employed with the Company
during the twelve (12) month period commencing on the Date of Termination shall
lapse and such awards shall become immediately payable; provided, however, that if any such award is
subject to Section 409A (as defined in Section 19, below), the
provisions of this Section 3(e) will not result in the
immediate payment of such award if such payment would result in the imposition
of tax, interest and/or penalties upon the Executive under Section 409A,
in which case such payment shall be made at the earliest time such payment can
be made without resulting in the imposition of tax, interest and/or penalties
upon the Executive under Section 409A; and”


 


7.                                       Section 4(c) of the Agreement is
amended in its entirety to read as follows:


 


“(c)                            a lump-sum cash amount on the 55th day
following the Date of Termination (or, if later, the date of the Change in
Control) equal to one and one-half times the sum of: (A) the Executive’s
highest rate of annual base salary during the 12-month period prior to the Date of Termination; and (B) the greatest
of (1) the Executive’s target bonus for the fiscal year in which the
Executive’s Date of Termination occurs, (2) the Executive’s target bonus
for the fiscal year in which the Change in Control occurs and (3) the
average of the actual bonuses earned by the Executive in respect of the two (2) preceding
fiscal years of the Company immediately preceding the fiscal year in which the
Change in Control occurs;”


 


8.                                       Section 4(e) of the Agreement is
amended in its entirety to read as follows:


 


“(e)                            with respect to
outstanding equity awards held by the Executive as of the Date of Termination,
all stock options and stock appreciation rights shall vest and become
exercisable and the restrictions on all restricted stock awards, restricted
stock units and other equity or incentive awards shall lapse and such awards
shall become immediately payable; provided,
however, that if any such award is subject to Section 409A


 

















 


(as defined in Section 19, below), the provisions of this Section 3(e) will
not result in the immediate payment of such award if such payment would result
in the imposition of tax, interest and/or penalties upon the Executive under Section 409A,
in which case such payment shall be made at the earliest time such payment can
be made without resulting in the imposition of tax, interest and/or penalties
upon the Executive under Section 409A; and”


 


9.                                       The last sentence of Section 4 of the
Agreement is amended in its entirety to read as follows:


 


“Notwithstanding anything herein to the contrary, if the Executive
becomes entitled to, and receives, payments and benefits pursuant to Section 3
and thereafter becomes entitled to payments and benefits pursuant to this Section 4,
payments under this Section 4 shall be promptly paid following the
Change in Control (and in no event later than the March 15th of the calendar year following the calendar year in which
the Change in Control occurs) and such payments and benefits shall be reduced
by any amounts received pursuant to Section 3.  In
addition, the Executive’s right to receive the lump sum cash payment pursuant
to Sections 3(c) or 4(c) shall terminate on March 15th
of the calendar year following the calendar year in which the Window Period
commenced, and no such amount shall be payable thereafter.”


 


10.                                 The first sentence in Section 6 of the
Agreement is amended in its entirety to read as follows:


 


“Any amounts payable pursuant
to this Agreement (other than Accrued Amounts and Other Benefits) shall only be
payable if the Executive executes and delivers to the Company (and does not
revoke) a general release of claims in a form substantially in the form of Exhibit A
attached hereto, and such release becomes irrevocable within fifty-five (55) days following the Executive’s
Date of Termination.”


 


11.                                 The last sentence of Section 7(a) of
the Agreement is deleted in its entirety.


 


12.                                 The first sentence of Section 14(b) of
the Agreement is amended in its entirety to read as follows:


 


“A written notice of the Executive’s Date of Termination by the Company
or the Executive, as the case may be, to the other, shall (i) indicate the
specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive’s employment under
the provision so indicated and (iii) specify the termination date (which
date shall be not less than thirty (30) nor more than sixty (60) days after the
giving of such notice or, if later, the date of the Change in Control if the
Executive gives notice of an event described in Section 1(g) which
occurs prior to a Change in Control).”


 

















 


13.                                 Section 19 of the Agreement is amended
by adding the following language at the end thereof to read as follows:


 


“Any payment or benefit due
upon a termination of the Executive’s employment that represents a “deferral of
compensation” within the meaning of Section 409A shall be paid or provided
to the Executive only upon a “separation from service” as defined in Treas.
Reg. § 1.409A-1(h).”


 


14.                                 Counterparts.  This
Amendment may be executed (including by facsimile transmission confirmed
promptly thereafter by actual delivery of executed counterparts) in
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.


 


15.                                 Governing Law.  This
Amendment shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of South Carolina without regard to the principle
of conflicts of laws.


 


16.                                 Headings.  Section headings
are for convenience only and shall not be considered a part of this Amendment.


 


[Signature
Page Follows]


 

















 


IN WITNESS WHEREOF, the Company and the Executive have caused
this Amendment to be executed, effective as of the date first written above.


 


 


	
   

  	
  Force
  Protection, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lenna Ruth Macdonald

  
	
   

  	
  Name: Lenna Ruth Macdonald

  
	
   

  	
  Title: Chief Strategy Officer, General Counsel & Corporate Secretary 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles Mathis

  
	
   

  	
  Name: Charles Mathis

  
	
   

  	
  Title: Chief Financial
  Officer