Exhibit 10.1


 


SEPARATION AGREEMENT


 


 


This Separation Agreement (“Agreement”)
dated as of February 29, 2008 is by and between Force Protection, Inc.,
a Nevada corporation (the “Company” or “Force Protection”), and Michael Durski
(the “Executive”).


 


IT IS HEREBY AGREED AS
FOLLOWS:


 


1.                                       The payments and benefits under this
Agreement are in consideration of the Executive’s waiver and release in Section 9
hereof and covenants in Section 13 hereof.


 


2.                                       The Executive and the Company agree that
the Executive’s last day of employment with the Company will be on February 29,
2008 (the “Date of Termination”), whether or not Executive revokes this
Agreement pursuant to paragraph 11 below.


 


3.                                       The Company will pay the Executive, on a
bi-weekly basis, commencing on the first business day following the Effective
Date (after the expiration of the Revocation Period as defined in Section 11),
a severance amount equal to his current annual basis salary for a period of one
year (26 bi-weekly payments), reduced by applicable tax withholding (“Severance
Benefits”).


 


4.                                       The Company will pay the Executive any
accrued and unpaid vacation pay, in the amount of $10,000, reduced by
applicable tax withholding, in the next regular payroll after the Date of
Termination. Further, Executive agrees to cooperate with the Company to
facilitate the removal of certain security equipment installed at the home of
the Executive with ADT at a mutually agreed to date and time.


 


5.                                       The Executive will receive separate
written notice of his right to elect continuation coverage under the Company’s
medical, dental and vision insurance plans, subject to the terms and conditions
of COBRA and the applicable plan(s) in effect for active employees from
time to time. If Executive timely elects continuation coverage under COBRA,
then, subject to Executive’s execution and non-revocation of this Agreement,
the Company will pay the employer portion of the premium cost of such insurance
for a one year period following the Date of Termination. Notwithstanding the
foregoing, in the event Executive becomes reemployed with another employer and
becomes eligible to receive welfare benefits from such employer, then the
benefits described above shall be secondary to such benefits during the period
of Executive’s eligibility.


 


6.                                       The Company and the Executive agree that
as of the Date of Termination there are no other amounts or benefit due to the
Executive through such date or thereafter from or under any other plan, program
(including gainsharing), policy or agreement of the Company, as well as any
other individual employment agreement with the Executive. Except as otherwise
provided in this Agreement, the Executive acknowledges that he has been paid
all wages or other compensation and benefits due him in connection with his
employment and that he has received any paid or unpaid leave that he has
requested.


 


 


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7.                                       Effective as of the Date of Termination,
the Executive hereby resigns as a member of the board of directors of all subsidiaries
or affiliates of the Company as well as any other positions held with such
subsidiaries or affiliates effective as of the Date of Termination and agrees
to execute such other documents as may be requested by the Company to implement
such resignations.


 


8.                                       The Company shall indemnify the Executive
to the extent provided pursuant to the Company’s First Amended and Restated
By-Laws and Articles of Incorporation, as in effect on the Date of Termination,
and the Executive shall not be entitled to any other rights to indemnification
by the Company other than as set forth therein.


 


9.                                       (a)           Executive,
for himself and for Executive’s heirs, dependents, assigns, agents, executors,
administrators, trustees and legal representatives (collectively, the “Releasors”)
hereby forever releases, waives and discharges the Released Parties (as defined
below) from each and every claim, demand, cause of action, fee, liability or
right of any sort (based upon legal or equitable theory, whether contractual,
common-law, statutory, federal, state, local or otherwise), known or unknown,
which Releasors ever had, now have, or hereafter may have against the Released
Parties by reason of any actual or alleged act, omission, transaction,
practice, policy, procedure, conduct, occurrence, or other matter from the
beginning of the world up to and including the Effective Date (as defined
below), including without limitation, those in connection with, or in any way
related to or arising out of, Executive’s employment or termination of employment
or any other agreement, understanding, relationship, arrangement, act, omission
or occurrence, with the Released Parties.


 


(b)                                 Without limiting the generality of the
previous paragraph, this general release is intended to and shall release the
Released Parties from any and all claims, whether known or unknown, which
Releasors ever had, now have, or may hereafter have against the Released
Parties including, but not limited to: (1) any claim of discrimination or
retaliation under the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 621-634, as amended by the Older Workers’ Benefit Protection Act, P.L.
101-433 (“ADEA”), including, but not limited to, all claims of age
discrimination in employment and all claims of retaliation in violation of the
ADEA and any state — statute or local ordinance barring age discrimination,
Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the
Employee Retirement Income Security Act of 1974, as amended (excluding claims
for accrued, vested benefits under any employee benefit or pension plan of the
Released Parties subject to the terms and conditions of such plan and
applicable law); (2) any claim under the South Carolina Human Affairs Law
and the South Carolina Wage Payment Statute (3) any other claim (whether
based on federal, state or local law or ordinance, statutory or decisional)
relating to or arising out of Executive’s employment, the terms and conditions
of such employment, the termination of such employment and/or any of the events
relating directly or indirectly to or surrounding the termination of such
employment, including, but not limited to, breach of contract (express or
implied), 


 


 


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              tort, wrongful discharge, detrimental
reliance, defamation, emotional distress or compensatory or punitive damages,
any other claim of employment discrimination, retaliation, infliction of
emotional distress, defamation, invasion of privacy, tortious interference with
contractual relations, wrongful termination, outrage, promissory estoppel, or
other liabilities, suits, debts, claims for back pay, front pay, compensatory
or punitive damages, injunctive relief, severance pay, costs, reinstatement,
business expenses, commissions, bonuses, incentive compensation plans, or
payment or reimbursement under any health insurance or other employee benefit
plan, insurance premiums or other sums of money, grievances, expenses, demands,
controversies of every kind and description, whether liquidated or
unliquidated, contingent or otherwise and whether specifically mentioned or
not, that exist or might be claimed to exist at or prior to the date of this
Agreement; and (4) any claim for attorney’s fees, costs, disbursements and
the like.


 


(c)                                  The foregoing general release does not in
any way affect: (1) Executive’s rights of indemnification to which
Executive was entitled immediately prior to the Date of Termination; (2) the
right of Executive to take whatever steps may be necessary to enforce the terms
of this Agreement, (3) any claims arising after the Effective Date, (4) or
any claims that may not be released by law.


 


(d)                                 For purposes of this general release, the
“Released Parties” means the Company, all current and former parents,
subsidiaries, related companies, partnerships, joint ventures and employee
benefit programs (and the trustees, administrators, fiduciaries and insurers of
such programs), and, with respect to each of them, their predecessors and
successors, and, with respect to each such entity, all of its past, present,
and future employees, officers, directors, members, stockholders, owners,
representatives, assigns, attorneys, agents, insurers, and any other person
acting by, through, under or in concert with any of the persons or entities
listed in this paragraph, and their successors (whether acting as agents for
such entities or in their individual capacities).


 


10.                                 Executive represents and warrants that,
as of the Effective Date of this Agreement, Executive has not filed or
commenced any suit, claim, charge, complaint, action, arbitration, or legal
proceeding of any kind against the Company or its subsidiaries or affiliates.
Nothing in this Agreement shall be construed to affect the Equal Employment
Opportunity Commission’s (the “Commission”) or any state agency’s independent
right and responsibility to enforce the law, nor does this Agreement affect
Executive’s right to file a charge or participate in an investigation or
proceeding conducted by either the Commission or any such state agency,
although this Agreement does bar any claim that Executive might have to receive
monetary damages in connection with any Commission or state agency proceeding
concerning matters covered by this Agreement.


 


11.                                 By signing this Agreement, Executive
expressly acknowledges and agrees that: (a) Executive has carefully read
it and fully understands what it means; (b) Executive has discussed this
Agreement with an attorney of Executive’s choosing before signing it; (c) 


 


 


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              Executive has been given at least
twenty-one (21) calendar days to consider whether to sign this Agreement; (d) Executive
has agreed to this Agreement knowingly and voluntarily and was not subjected to
any undue influence or duress; (e) the consideration provided Executive
under this Agreement is sufficient to support the releases provided by
Executive under this Agreement; (f) Executive may revoke Executive’s
execution of this Agreement within seven (7) days after Executive signs it
by sending written notice of revocation as set forth below (“Revocation Period”);
and (g) on the eighth day after Executive executes this Agreement (the “Effective
Date”), this Agreement becomes effective and enforceable, provided that
Executive does not revoke this Agreement during the revocation period. Any
revocation of Executive’s execution of this Agreement must be submitted, in
writing, to Force Protection, Inc. 9801 Highway 78, Building No. 1,
Ladson, South Carolina 29456-3802, to the attention of the Co-General Counsel,
stating “I hereby revoke my execution of the Agreement.” The revocation must be
personally delivered to the Co-General Counsel or mailed to the Co-General
Counsel and postmarked within seven (7) days of Executive’s execution of
this Agreement. If the last day of the Revocation Period is a Saturday, Sunday
or legal holiday, then the revocation period will be extended to the following
day which is not a Saturday, Sunday or legal holiday. Executive agrees that if
Executive does not execute this Agreement or, in the event of revocation,
Executive will not be entitled to receive any of the payments or benefits under
this Agreement (other than provided for in paragraph 4). Executive must execute
this Agreement on or before 21 days after the Date of Termination.
Notwithstanding the foregoing, if Executive revokes this Agreement pursuant to
this paragraph 11 the provisions of paragraph 2 shall survive such revocation.


 


12.                                 The Executive agrees that in exchange for
a portion of the Severance Benefits (which the Executive agrees constitutes
consideration for all commitments made herein in addition to anything of value
to which he is already entitled).


 


13.                                 In consideration of the Severance
Benefits, the Executive agrees to the following covenants:


 


(a)                                  Non-Compete. 
For a 12-month period after the Date of Termination, the Executive shall
not directly or indirectly (without the prior written consent of the Company):


 


i.                                          hold a 5% or greater equity (including
stock options whether or not exercisable), voting or profit participation
interest in a Competitive Enterprise, or


 


ii.                                       associate (including as an officer,
employee, partner, consultant, agent or advisor) with a Competitive Enterprise and
in connection with the Executive’s association engage, or directly or
indirectly manage or supervise personnel engaged, in any activity:


 


 


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(A)                              that is substantially related to any
activity that the Executive was engaged in with the Company or its affiliates
during the 12 months prior to the Date of Termination (excluding as a
director),


 


(B)                                that is substantially related to any
activity for which the Executive had direct or indirect managerial or
supervisory responsibility with the Company or its affiliates during the 12
months prior to the Date of Termination, or


 


(C)                                that calls for the application of
specialized knowledge or skills substantially related to those used by the
Executive in his activities with the Company or affiliates during the 12 months
prior to the Date of Termination.


 


For purposes of this Agreement, “Competitive
Enterprise” means any business enterprise anywhere worldwide that
either (A) engages in the manufacture and sale of blast- and
ballistic-protected wheeled vehicles for the US or foreign militaries or (B) holds
a 5% or greater equity, voting or profit participation interest in any
enterprise that engages in such a competitive activity.


 


(b)                                 Non-Solicit. 
For a 12-month period after the Date of Termination, the Executive shall
not, in any manner, directly or indirectly (without the prior written consent
of the Company): (i) solicit any Client to transact business with a
Competitive Enterprise or to reduce or refrain from doing any business with the
Company, (ii) transact business with any Client that would cause the
Executive to be engaged in a Competitive Enterprise, (iii) interfere with
or damage any relationship between the Company and a Client or (iv) solicit
anyone who is then an employee of the Company to resign from the Company or to
apply for or accept employment with any other business or enterprise.


 


(c)                                  For purposes of this Agreement, a “Client” means any client or prospective client of the
Company or its affiliates to whom the Executive provided services, or for whom
the Executive transacted business, or whose identity became known to the
Executive in connection with his relationship with or employment by the Company
or its affiliates, and “Solicit” means
any direct or indirect communication of any kind, regardless of who initiates
it, that in any way invites, advises, encourages or requests any person to take
or refrain from taking any action.


 


(d)                                 Confidential Information. 
The Executive hereby acknowledges that, as an employee of the Company,
he had access to confidential information of a special and unique nature and
value relating to the Company and its strategic plan and financial operations.
The Executive further recognizes and acknowledges that all such confidential
information is the exclusive property of the Company, is material and
confidential, and is critical to the successful conduct of the business of the
Company. Accordingly, the Executive hereby covenants and agrees that he 


 


 


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              shall not at any time, directly
or indirectly, divulge, reveal or communicate any such confidential information
to any person, firm, corporation or entity whatsoever, or use any such
confidential information for his own benefit or for the benefit of others.
Notwithstanding the foregoing, the Executive shall be authorized to disclose
confidential information (i) as may be required by law or legal process
after providing the Company with prior written notice and an opportunity to
respond to such disclosure (unless such notice is prohibited by law), (ii) in
any criminal proceeding against him after providing the Company with prior
written notice and an opportunity to seek protection for such confidential
information, and (iii) with the prior written consent of the Company.


 


(e)                                  Survival. 
Any termination of this Agreement (or breach of this Agreement by the
Executive or the Company) shall have no effect on the continuing operation of
this Section 13.


 


(f)                                    Validity. 
The terms and provisions of this Section 13 are intended to be
separate and divisible provisions and if, for any reason, any one or more of
them is held to be invalid or unenforceable, neither the validity nor the
enforceability of any other provision of this Agreement shall thereby be
affected. The parties hereto acknowledge that the potential restrictions on the
Executive’s future employment imposed by this Section 13 are reasonable in
both duration and geographic scope and in all other respects. If for any reason
any court of competent jurisdiction shall find any provisions of this Section 13
unreasonable in duration or geographic scope or otherwise, the Executive and
the Company agree that the restrictions and prohibitions contained herein shall
be effective to the fullest extent allowed under applicable law in such jurisdiction.


 


(g)                                 Consideration. 
The parties acknowledge that this Agreement would not have been entered
into and the benefits described in Section 3 would not have been promised
in the absence of the Executive’s promises under this Section 13.


 


14.                                 This Agreement constitutes the entire
agreement between the parties and supersedes any and all prior contemporaneous,
oral or written agreements or understandings between the parties. No
representation, promise, inducement or statement of intention has been made by the
Released Parties that is not embodied in this Agreement. No party shall be
bound by or liable for any alleged representation, promise, inducement, or
statement of intention not contained in this Agreement. This Agreement cannot
be amended, modified, or supplemented in any respect except by subsequent
written agreement signed by all parties hereto.


 


15.                                 Executive agrees to indemnify and hold
the Released Parties harmless from and against any and all loss, cost, damage,
or expense, including, but not limited to, reasonable attorneys’ fees, incurred
by the Released Parties arising out of any action at law or equity, or any
other proceeding, they find necessary to enforce any of the terms, covenants or
conditions of the Agreement or due to a breach of this Agreement by Executive.
In the event a court determines that Executive has breached this Agreement,
specifically 


 


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              including (but not limited to)
reinstating or instituting any legal or administrative proceeding against the
Released Parties in violation of any provision of this Agreement (other than
proceedings brought pursuant to the ADEA), Executive specifically acknowledges
that he will return to the Company: (i) the Severance Benefit, less $500;
and (ii) any recovery Executive obtains as a result of legal or
administrative proceedings brought against the Released Parties in violation of
this Agreement.


 


16.                                 The Released Parties will have all of the
rights and remedies available at law and equity to enforce their rights under
this Agreement. Should it be held at any time by a court of competent
jurisdiction that any of the obligations, covenants or agreements set forth in
this Agreement are illegal, invalid or unenforceable, the validity of the
remaining parts, terms, or provisions shall not be affected thereby and any
illegal, invalid or unenforceable parts, terms or provisions shall be deemed
not to be a part of this Agreement.


 


17.                                 This Agreement shall be interpreted and
enforced in accordance with the laws of the State of South Carolina. Executive
consents to the exclusive jurisdiction of courts located in Charleston, South
Carolina, agreeing to waive any argument of lack of personal jurisdiction or
forum non-conveniens with respect to any claim or controversy arising out of or
relating to this Agreement, Executive’s employment with the Company, Executive’s
separation from that employment, and any other contact or communication
involving Executive and the Company.


 


18.                                 Unless the context otherwise requires,
when used in this Agreement, the singular shall include the plural, the plural
shall include the singular, and all nouns, pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter, as the identity
of the person or persons may require.


 


PLEASE READ CAREFULLY


 


I, MICHAEL DURSKI,
EXPRESSLY ACKNOWLEDGE, REPRESENT AND WARRANT THAT I HAVE CAREFULLY REVIEWED
THIS AGREEMENT; THAT I FULLY UNDERSTAND THE TERMS, CONDITIONS AND SIGNIFICANCE
OF THIS AGREEMENT; THAT I HAVE HAD AMPLE TIME TO CONSIDER THIS AGREEMENT; THAT
THE COMPANY HAS ADVISED ME IN WRITING TO CONSULT WITH AN ATTORNEY CONCERNING
THIS AGREEMENT; THAT I HAVE HAD A FULL OPPORTUNITY TO REVIEW THIS AGREEMENT
WITH AN ATTORNEY AND HAVE DONE SO OR HAVE DECLINED TO DO SO; AND THAT I HAVE
EXECUTED THIS AGREEMENT KNOWINGLY, VOLUNTARILY, AND WITH SUCH ADVICE FROM AN
ATTORNEY AS I DEEMED APPROPRIATE.


 


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IN WITNESS WHEREOF, the
Executive has hereunto set the Executive’s hand and the Company has caused this
Agreement to be executed in its name and on its behalf, all as of the date
first written above.


 


	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ Michael Durski

  
	
   

  	
   

  	
  Michael Durski

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Force
  Protection, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Michael Moody

  
	
   

  	
   

  	
  Name:

  	
   

  	
  Michael Moody

  
	
   

  	
   

  	
  Title:

  	
   

  	
  Interim CEO &
  President

  



 


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