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 ”);”
