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UNITED STATES SECURITIES AND
EXCHANGE COMMISSION Washington,
D.C. 20549
FORM
10-K (Mark
One) [
X ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For
the fiscal year ended September 30, 2008 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For
the transition period from
to
Commission
File Number: 0-6669
FORWARD
INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
New
York
(State or other jurisdiction of
1801 Green Rd., Suite E, Pompano Beach, FL 33064
(Address of principal executive offices, including zip
code)
(954) 419-9544
(Registrants telephone number, including area code)
Securities registered pursuant to Section 12(b) of the
Act:
None
Securities registered pursuant to Section 12(g) of the
Act:
Common Stock, $0.01 par value per share
Indicate by check mark if the
registrant is a well-known seasoned issuer, as defined in Rule 405 of the
Securities Act.
[
] Yes [ X ] No
Indicate by check mark if the
registrant is not required to file reports pursuant to Section 13 or Section
15(d) of the Act.
[
] Yes [ X ] No
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding twelve months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. [ X ] Yes [
] No
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of Registrants knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this form 10-K. [X]
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See the definitions of large accelerated filer, accelerated filer, and
smaller reporting company in Rule 12b-2 of the Exchange Act).
[ ] Large accelerated filer
[ ] Accelerated filer
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). [ ] Yes [X] No
1
The
aggregate market value of the voting and non-voting common equity held by
non-affiliates computed by reference to the price at which the common equity
was last sold, as of the last business day of the Registrants most recently
completed second fiscal quarter was: $17,417,797.
As
of November 19, 2008, 7,915,522 shares of the Registrants common stock were
outstanding.
Documents
Incorporated by Reference
2 Forward Industries, Inc. Table of Contents PART I Page No. Item
1. 4 Item
1A. 13 Item
1B. 19 Item
2. 19 Item
3. 19 Item
4. 19 PART II Item
5.
20
Item
6. 21 Item
7.
Managements
Discussion and Analysis of Financial Condition and Results of Operations 21 Item
7A. 30 Item
8. 31 Item
9.
Changes
in and Disagreements With Accountants on Accounting and Financial Disclosure 31 Item
9A. 31 Item
9A(T) 31 Item
9B. 32 PART III Item
10. 32 Item
11. 32 Item
12.
Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters 32 Item
13.
Certain
Relationships and Related Transactions, and Director Independence 33 Item
14. 33 PART IV Item
15. 33 56 3 Note Regarding Use of Certain Terms In this Annual Report on Form 10-K, unless the context
otherwise requires, the following terms have the meanings assigned to them as
set forth below: 4 Forward Industries, Inc.
ITEM 1.
BUSINESS General We design, market, and distribute carry
solutions for hand held consumer electronics products, including soft-sided
carrying cases, bags, clips, hand straps, decorative face plates, and other
accessories for medical monitoring and diagnostic kits, cellular telephones, cameras,
and other consumer electronic products. We sell these products in two primary customer
markets. Our principal customer market is original equipment manufacturers, or
OEMs, of these consumer electronic products, who package our carry solution
products as accessories in box together with their own product offerings and
to an increasing extent the contract manufacturing firms of these OEM
customers. In Fiscal 2008 and 2007 sales to OEM customers (or their contract
manufacturers) accounted for approximately 98% and 91% of our net sales,
respectively. Our second, and much smaller, customer
market consists of retailers and distributors in the cell phone products
aftermarket to whom we sell Company branded products and carry solutions bearing
the Motorola trademarks under a non-exclusive license from Motorola, Inc.
Under the Motorola license, we have been granted the rights to market such
carry solutions in the United States, Canada, and Europe. In Fiscal 2008 and
Fiscal 2007 sales of products in aftermarket channels accounted for
approximately 2% and 9% of our revenues, respectively. In prior fiscal years,
sales of licensed products accounted for substantially higher percentages of
revenue. We do not manufacture any of the products
that we sell and distribute. We source all products we market and distribute
from independent Chinese suppliers. Our suppliers custom manufacture our
carrying cases and related products to our order based on our designs and
know-how and to our customers specifications. Typically, we ship these
products to our OEM customers, or to their contract manufacturers, to be
packaged with their consumer products prior to distribution and sale. In the
case of sale of carry solutions to our aftermarket customers, we ship these as
stand alone, separately packaged stock units to distributors and retailers. Corporate History Forward Industries, Inc. was
incorporated in 1961 under the laws of the State of New York. Until 1989, our
primary business was the manufacture and distribution of advertising specialty
and promotional products. In 1989, we acquired Koszegi Industries, Inc., or
"Koszegi", an Indiana corporation that manufactured soft-sided
carrying cases at its South Bend, Indiana, facility. The carrying case
business progressively increased to the point where it became the predominant
part of our business. In September 1997, we sold the assets relating to the
production of advertising specialty and promotional products, and ceased
operating in that business segment. In May 1994, we formed Koszegi Asia
Ltd., or Koszegi Asia, as a wholly owned, Hong Kong-based, subsidiary of
Forward Industries to facilitate a more nimble and robust carrying case
procurement and quality control infrastructure, and to further enhance our foreign
sourcing capabilities. With Koszegi Asias ability to source quality cases in
China on short lead times, we determined that our domestic production
capability was unnecessary, and we now source all our product supply from
Chinese suppliers. See "Product Supply". In October 2008 we changed
the name of this subsidiary to Forward Industries HK Limited. In recent years in our OEM
distribution channel we have focused on strengthening our sales and
distribution network, and commercial relationships with our key OEM customers.
We have been responsive to our OEM customers distribution requirements by
entering into seven distribution hub agreements with two of our OEM customers
at their request to improve their tracking and control of accessory products packaged
in box with their consumer electronics. During Fiscal 2006, we began to
modify our quality control infrastructure by contracting part of this function
away from our Hong Kong distribution and quality control facility directly to a
third party provider. The predominant portion of our quality control function
is now conducted in this manner. In addition, we have sought to strengthen our
presence in secondary markets. 5 Forward Industries, Inc. We have also sought to strengthen
our aftermarket channel. In May 2001, we formed Forward Innovations GmbH, a
wholly owned Swiss subsidiary of Forward Industries, or Forward Innovations,
to facilitate distribution of licensed products as well as to further develop
our OEM European business presence, and this served us well under the 2001 and
2004 licenses. With the lengthy gap between expiration of the Motorola license
in December 2007 and entry into the new license in May 2008, staff at Forward
Innovations was temporarily reduced. Forward Innovations has also allowed us
to better serve our OEM European customers. See Marketing, Distribution and
Sales. Products Through our wholly owned
subsidiaries, Koszegi and Forward Innovations, we design and market to our
customers orders, carry solutions for hand held consumer electronics,
including soft-sided carrying cases, bags, clips, hand straps, decorative
faceplates, and other accessories made of leather, nylon, vinyl, plastic, PVC
and other synthetic fabrics. Our products are used by consumers for carrying or
transporting portable electronic products such as cellular telephones, blood
glucose monitoring kits, cameras, and other consumer hand held electronic
devices. Our carrying cases are designed to enable these devices to be stowed
in a handbag, briefcase, or backpack, clipped to a belt, or carried in a pocket
while protecting the electronic device from scratches, dust, and mishandling. Cases for Medical Kits We sell our medical monitoring and
diagnostic kit carrying cases directly to OEMs (or their contract
manufacturers) of electronic blood glucose monitoring kits for personal use by
diabetics. We typically sell these cases at prices ranging from $0.40 to $10.00
per unit. The predominant percentage of product sales by unit volumes are at
the low to middle area of this price range. The OEM customer or its contract
supplier packages the cases in box as a custom accessory for its blood
glucose testing and monitoring kits. The kits typically include a small,
electronic blood glucose monitor, testing strips, lancets for drawing a drop of
blood and our carrying case, customized with the manufacturers logo and
designed to fit and secure the glucose monitor, testing strips and lancets in
separate straps, pouches, and holders. We believe that users of these
monitoring kits may purchase new kits as frequently as every two years,
depending on advances made in the blood glucose measurement technology and
functionality. As the kits and technology change, our carrying case designs
change to accommodate the changes in size, shape and layout of the electronic
monitoring device, strips and lancet. Cases for Cellular Handsets We engage in the sale and
distribution of carrying cases and related accessory products for cellular
telephone handsets to OEM handset suppliers and to retailers and wholesalers of
cellular phone products and related accessories (typically bearing our
licensors trademarks under our license agreements with them). These products
include carry cases for cell phone handsets, cases for handset camera
attachments, handset plastic belt clips, carrying case straps and bags,
decorative faceplates, wrist straps, digital display cleaning cloths, and other
accessory products. Our selling prices for these products vary widely,
depending on the specific product, terms of the order, quantity ordered, and
distribution channel, and generally range from $0.20 or less to $13.00 per unit,
with the higher prices in the range generally occurring in the case of licensed
product sales. By unit volumes the predominant percentage of products sold sells
at the low or lower-middle end of this price range, and this typically is the
case for low cost/low price straps, cleaning cloths, or other accessories that
complement a handset case. In the case of sales to OEM customers and their
contract manufacturers, the manufacturer or its contract supplier packages our
cases or other accessories in box as a custom accessory for the cellular
handset. In the case of sales of aftermarket products, we sell and ship these
products as separately packaged, aftermarket accessories to third party retailers
and distributors. Other Carrying Case Products We also sell carrying cases, straps, belt clips, and
other carry and storage solutions for a diverse array of other portable
electronic and other products, including cases for cameras, MP3 players, retail
bar code scanners, and a variety of other products. Our selling prices for
these products also vary across a broad range, depending on the size and nature
of the product for which we design the carry solution. 6 Forward Industries, Inc. Product Development In our OEM business we typically
receive invitations to submit product designs and receive product orders in
connection with a customers introduction and rollout to market of a new
product that the customer has determined to accessorize and customize with our
products. Our OEM customers provide us with the desired functionality, size
and other basic specifications for the carrying case or other product,
including the OEMs identifying logo imprint on the product. Our in-house
design and production staff develops detailed design options and more detailed
product specifications for our customers evaluation, and in conjunction with
our customer, we then engage in the process of refinement of design and
specifications. Working with our suppliers, we furnish our customer with
product samples. Once our customer approves a product sample for commercial
introduction and order, we work with our suppliers to ensure conformity to the
definitive product samples and specifications. Manufacture and delivery of
products in production quantities is then coordinated with our OEM customers
manufacturing and shipment schedules so our carry solutions can be placed in
box with the consumer electronic product. In the case of sales of branded
products pursuant to our license agreements, we market carrying cases and
related accessory products for cell phone handsets based on our own designs or
designs furnished by our licensor. Our in-house design staff develops detailed
design options and product specifications for the licensors evaluation. We
work with our licensors to refine design specifications and subsequently submit
production samples for approval. Upon approval, we offer such products to
retailers and other distributors in the licensed territory. Licensed products
have, to date, been manufactured for both inventory and customer order. Research and development costs are
not material to our business. From time to time we file applications for and
secure copyrights and other statutory intellectual property protection for
carry case and other accessory designs we develop for sale to our customers (or
to a much lesser extent for our own portfolio), but generally intellectual
property protection is not significant to our business. Marketing, Distribution, and Sales Geographic Sales Distribution We sell our products globally. The approximate
percentages of net sales to customers by their geographic location for Fiscal 2008
and Fiscal 2007 are as follows:
Fiscal
Years Ended September 30,
Geographic Location:
2008
2007 APAC 50% 50% Americas 30% 30% Europe 20% 20% Totals 100% 100% The importance of the
Asia Pacific region, is attributable to the fact that increasingly our OEM
customers have outsourced product manufacture to contract manufacturers located
in China or elsewhere in Asia. In the case of outsourcing to Asian contract
manufacturers, we ship product to, and it is packaged in box at, such
contract manufacturers facility. If payment to us is due from the contract
manufacturer, we identify the sale to its geographic location rather than that
of the OEM customer for whom the contract manufacturer is supplying product
together with our cases in box. See Note 13 to the audited consolidated financial
statements included in Item 8 of this Annual Report. Channels of Distribution We have two channels of distribution
for our products: first, direct to our OEM customers, which package our carry
solutions products in box with their products, although increasingly, we may
ship directly to the OEM customers contract manufacturer, which similarly
packages our products in box on behalf of the OEM customer. The second
distribution channel is to distributors and retailers to whom we ship our carry
solution product accessories, either bearing our licensors trademarks under
our license agreement with it, or bearing our products marketed under our name
and logo. In both cases, these carry solution products are separately packaged
as stand alone stock units, for sale in the aftermarket. These two
distribution channels accounted for approximately the following percentages of our
net sales in Fiscal 2008 and Fiscal 2007: 7 Forward Industries, Inc.
Fiscal
Year Ended
Distribution Channels:
2008
2007
OEM
98%
91%
Aftermarket
2%
9%
Totals
100%
100% We
believe the significant decline in the aftermarkets relative revenue
contribution as seen in the above table is the result of several factors: the
strength of OEM diabetic sales on an absolute as well as relative basis;
second, the expiration of the Motorola license on December 31, 2007 and the
five month lapse of time before the new license agreement was concluded in May
2008; and the lack of execution as anticipated of approvals of new product
samples for sale under the new license as well as sales initiatives with
potential customers to advance our objectives under the new license by the end
of Fiscal 2008, or thereafter. OEM
Product Sales OEM products sales for blood glucose
monitors, cellular phone handsets, and other products (i.e., other than cases
and accessories for blood glucose monitoring kits and cellular phone handsets)
accounted for approximately the following percentages of total net sales in
Fiscal 2008 and Fiscal 2007:
Fiscal
Year Ended
OEM Product Sales:
2008
2007 Diabetic
Products 76% 49% Other
Products 16% 15% Cell
Phone Products 6% 27% Totals 98% 91% We believe that the
significant decline in relative revenue contribution from cell phone product
sales is the result of several factors. The most significant is the
approximate 80% decline in net sales from cell phone product cases due to a
steep drop off in OEM sales to Motorola, Inc. (approximately 74% of the
decline) and to the absence of licensed sales under the Motorola license as the
prior license expired after the first quarter of Fiscal 2008 (approximately 26%
of the decline). Second, OEM revenues from sales of blood glucose monitor
cases increased 40% in Fiscal 2008 compared to Fiscal 2007, and thus the
relative contribution of cell phone product revenues declined, even as those
revenues declined on an absolute basis. Of our approximately 100
active customers, three customers, including their subsidiaries, affiliates, and
contract manufacturers, accounted for approximately 75% of our net sales in
Fiscal 2008. Our principal OEM customers include Lifescan, Inc. (Lifescan), a
subsidiary of Johnson and Johnson, Abbott Laboratories (Abbott), and Roche
Diagnostics (Roche), for carrying cases for diabetic monitoring kits. A
fourth customer, Motorola Inc., contributed significantly to our net sales in Fiscal
2007 and prior fiscal years, but such sales have declined to insignificant
levels. These customers package our cases or other accessories in box with
their branded products or use them as promotional items. The approximate percentages
of net sales contributed by each of these four customers for Fiscal 2008 and Fiscal
2007 are as follows: 8 Forward Industries, Inc.
Fiscal
Year Ended
Customer:
2008
2007 Lifescan 46% 32% Abbott 20% 13% Roche 9% -- Motorola * -- 27% Totals 75% 72% * Excludes sales of Motorola-branded products to third
parties under our license agreement. The loss of any of the above named
customers could have a material adverse effect on our business, results of
operations and financial condition. See Item 1A. Risk Factors Our business
is characterized by a high degree of customer concentration. Our three largest
customers accounted for approximately 75% and 72% of net sales in Fiscal 2008
and 2007, respectively; the loss of, or material reduction in orders from, any
of these customers could materially and adversely affect our results of
operations and financial condition and Our business could suffer if
the services of any of the key personnel we rely on were lost to us. Aftermarket
Product Sales We have entered into non-exclusive
licenses with Motorola and SAGEM, each of which grants us the right to sell
cell phone carry cases and other accessories branded with their respective
trademarks in designated territories. Currently, sales under the licenses are minimal.
See Item 1A, Risk Factors: We may not realize the benefits that we
anticipated under the new license agreement . In Fiscal 2007 and prior years, aftermarket
product sales predominantly consisted of sales to third parties of licensed
products under the Motorola agreement. These sales accounted for approximately
1% and 9% of our net sales in Fiscal 2008 (in the first quarter thereof under
the expired license) and Fiscal 2007, respectively. We look to diversify
aftermarket channels in the near future by development of our own line of
products for sale to distributors and retailers or other initiatives. Sales
Force During Fiscal 2008 and Fiscal 2007
approximately 100% of net sales were made directly by our employees, which are
assigned key accounts and to defined geographic sales territories. . See Risk
Factors in Item 1A. of this Annual Report - Our business could suffer if
the services of any of the key personnel we rely on were lost to us. Motorola License Following the expiration of the prior
license agreement on December 31, 2007, in May 2008, we entered into a new, non-exclusive
license agreement with Motorola, Inc. (Motorola) that grants us the right to
distribute certain Motorola trademarked carry solution accessory products to wholesale
and retail customers in the United States, Canada, and Europe through March 31,
2009, subject to renewal by mutual agreement. The license agreement is
effective retroactive to January 1, 2008. The grant under the expired license
was limited to the EMEA Region and pertained to traditional Motorola branded
handsets; the grant under the new license expands the licensed territory and
covers a broader range of cell phone handsets, including Motorolas IDEN®
brand . In consideration of the grant, we
agreed to pay to Motorola a royalty based upon a percentage of actual net sales
of branded accessory products, subject to payment of minimum royalties
(irrespective of actual net sales) in the amount of $650,000 over the 15-month
term. In December 2008 Motorola and we reached an agreement under which
Motorola waives payment of all minimum royalties due under the license and
reduces the royalty rate in respect of the term which expires March 31, 2009. Both parties expect
to memorialize this agreement by amending the license agreement in the very
near term. To date, no material sales of licensed products have been recognized, and
there can be no assurance that any will be. See Note 14 to the audited,
consolidated Financial Statements included in Item 8 in Part II of this Annual
Report. In addition to other customary terms and conditions
typical of agreements of this kind, we may be required to indemnify Motorola in
respect of damage to its intellectual property, to cause our designated
manufacturers to comply with certain terms of the manufacturing agreement to
which they are a party pursuant to the license, or to incur costs and expenses
in other respects. See Item 1A. Risk Factors - Under our license
agreement with Motorola we may become liable for certain indemnification or
other liabilities and become exposed to certain risks of this Annual Report
for a discussion of indemnification obligations, manufacturing compliance and
certain other risks under the license agreement. 9 Forward Industries, Inc. OEM
Distribution Hubs During Fiscal 2008 and 2007 we operated
under distribution hub agreements with three of our OEM customers. These
agreements obligate us to supply carrying case accessory products to the
customers distribution hubs (often at multiple locations) where its products are
manufactured, and/or warehoused pending sale and where our products are
packaged with the OEM customers electronics products. The product volumes we
are required to supply to each distribution hub is based on our OEM customers
forecasts. Because product supply lead times with our suppliers may exceed
those agreed upon with our OEM customers, we sometimes have to purchase product
and stock inventory that ultimately exceeds our OEM customers forecasted
demand for which they are obligated to us. In particular, this may occur if the
customers forecast is revised downward during the period we are purchasing and
stocking product for the hub. As a result, our inventory levels, liquidity,
and results of operations may be adversely affected. We ship product to the hub
but do not recognize revenue until we have been advised by our customer that
product has been withdrawn from the distribution hub to be placed in box. By
historical standards in our business, these arrangements have had the general
effect of financing our customers inventory by extending the time between
placement of our orders to our suppliers in order to supply the hubs and the
time that revenue is recognized. The corollary effect is an increase in our
inventory levels. Credit Risk We generally sell our products on 30-
to 60-day credit terms customary in the industry. We have extended customary
credit terms for certain major OEM customers, upon their request, up to 90-days.
Historically, we have not had significant credit problems with our customers.
Our significant OEM customers are large, multi-national companies with good
credit histories. None of these customers is or has been in default to us, and
payments are generally received from them on a timely basis. Two customers,
including their international affiliates or their contract manufacturers,
accounted for approximately 74% and 75% of the Company's accounts receivable at
September 30, 2008 and 2007, respectively. As part of what has become
established industry practice, certain of our OEM customers request that we
ship product to their designated contract manufacturer and invoice such
manufacturers (and not the OEM customer) for the products to be included in
box with the cellular handsets or blood glucose monitors that are manufactured,
assembled and packaged by such contract manufacturers. In these cases, even
though our order flows originate with and depend on our relationship with the
OEM, our accounts receivable credit risk lies with the contract manufacturer.
Our OEM customer does not guarantee the credit of the contract manufacturer to
whom the OEM requests us to ship our carrying case products, and such orders
may be significant in volume from time to time. In most cases, these contract
manufacturers are themselves major multinational enterprises with good credit
histories. Any failure of any such customer or its contract manufacturer to
pay part or all the sums owed to us when due could have a material adverse
effect on our liquidity, business prospects, and results of operations. See
Item 1A. Risk Factors Product manufacture is increasingly being
outsourced by our OEM customers to contract manufacturing firms in China and in
Southeast Asia of this Annual Report. Foreign
Exchange Risk Certain of our OEM customers have
established sales and manufacturing operations in China. In addition, as noted
above, certain of these or other OEM customers may outsource manufacturing and
packaging of the products with which our carrying case solutions are packaged
in box to contract manufacturers that are located in China or in Southeast
Asia. Accordingly, our payment and remittance arrangements with such customers
may subject these arrangements to Chinese or other local currency regulations.
In the event that any foreign government were to impose regulatory restrictions
on the ability to effect conversion of local currency into U.S. dollars,
repatriation of U.S. dollars or other currencies to the United States, or
payment in any form to foreign business entities, or were to impose or enforce
tighter restrictions on foreign exchange license holders, our receipt or
recognition of U.S. dollars in payment, directly or indirectly, of invoices for
sales of our products could be delayed or otherwise affected. If this were to
affect receipt or recognition of material amounts of revenues, our liquidity or
results of operations could be materially and adversely affected. See Item 1A.
Risk FactorsPayments to us by or on behalf of our customers of accounts
receivable originated in China or other Asian nations may be subject to local
regulations or moratorium that restrict the right to convert foreign currencies
into U.S. dollars or U.S. dollars into foreign currencies,, or that prevent,
delay, or restrict the ability to remit U.S. dollars to the United States
of this Annual Report. 10 Forward Industries, Inc. Product Supply Manufacturing The manufacture of custom carrying
cases and other carry solution products generally consists of die cutting
fabrics, principally vinyl, nylon, and leather; and heat sealing, gluing,
sewing and decorating (affixing logos) by means of silk screening,
hot-stamping, embroidering or embossing. The principal materials used in the
manufacture of our products are vinyl, nylon, leather, metal and plastic parts
(such as clips, buckles, loops, and hinges and other hardware), foam padding
and cardboard, all of which are obtained according to our specifications from Chinese
suppliers. We do not believe that any of the component materials or parts used
by our suppliers in the manufacture of our products is supply constrained. We
believe that there are adequate available alternative sources of supply for all
of the materials used to manufacture, package, and ship our products. Suppliers We procure all our supply of
carrying solutions products from independent suppliers, each of which is a
Chinese business entity located in China. Depending on the product, we may
require several different suppliers to furnish component parts or pieces. We
purchased approximately 95% and 69% of our products from seven such suppliers
in Fiscal 2008 and Fiscal 2007, respectively. One supplier accounted for
approximately 43% and 20% of our product purchases in Fiscal 2008 and 2007.
See Note 1 (under the caption Supplier Rebates) to the Consolidated Financial
Statements set forth in Item 8 of this Annual Report. We place orders with one or more
suppliers at the time we receive firm orders from our OEM customers for a
particular product. Accordingly, we do not have minimum supply requirement
agreements with these or other suppliers to guarantee us supply of finished product,
nor have we made purchase commitments to purchase minimum amounts from any of
these suppliers. However, from time to time, we may order products from our
suppliers in anticipation of receiving a customer order to meet required
delivery times. If our customer cancels the order or we fail to receive the
customer order, we may still be required to pay for the supply order, which could
result in a loss to us as these are generally custom manufactured products
unfit for sale to other customers. With respect to aftermarket
products, we estimate the product sell through rates of our distributor and
retail customers in order to gauge the timing and size of inventory stocking
orders to our suppliers. We believe that other suppliers
could provide us similar products on comparable terms. However, a switch to a
different supplier could delay shipment of product resulting in a loss of sales
that could affect our operating results and adversely influence our
relationship with the affected customer. In addition, under our license
agreement with Motorola our selection of a new supplier to manufacture licensed
products is subject to Motorolas approval. Product Sampling and Quality
Control Upon award of an OEM order, our
design and production staff works closely with our customer to finalize product
designs and specifications and with our suppliers to coordinate production
schedules, conformity to design specifications, and quality control. Depending
on the customers requirements, the product involved, and time from sampling to
commercial order, our production staff, working in conjunction with our
marketing department, may submit samples and refinements thereof to the
customer several times per product before approval for production is granted.
Once the sampling process is completed for a specific product, which may range
from weeks to many months, commercial orders may be received and accepted. To ensure that product manufacturing
by our foreign suppliers meets our quality assurance standards, products we
sell and distribute are either inspected by our employees in our Hong Kong shipping
and quality assurance center or by contracted third-parties in China that are
overseen by Koszegi Asia employees. 11 Forward Industries, Inc. Quality assurance and sourcing
related expenses are reflected in cost of goods sold in our results of
operations. In March 2007, our Hong Kong inspection facility renewed its ISO 9001:2000
quality certification. Once our products are approved for
shipment by Koszegi Asias inspection and quality control procedures, the
products are typically shipped on container carrier vessels. In certain cases,
at the customers request, we will ship by air freight or transfer products to
a customers location in China or Hong Kong. Most ocean-going shipments bound
for the Untied States are off-loaded at the port of Los Angeles or San
Francisco, but certain customers arrange for shipments to East coast ports,
such as Miami or Philadelphia. European shipments generally are routed via
Rotterdam, Frankfurt, or London. Disruptions or delays in off-loading cargo at
any of these domestic or foreign ports as a result of labor disputes, physical
damage to port facilities or otherwise, or other delays may delay shipments to
our customers and cause re-routing of containers to ports with open facilities
or shipment via air freight. Depending on the cause of delay and trade terms
with our customer, we may be required in certain cases to bear the additional
expense of such alternate routing or reliance on air freight. See Item 1A.Risk
FactorsOur shipments of products via container freight to customers in the
United States and Europe are subject to delays or cancellation at port
facilities due to work stoppages or slowdowns, damage caused by weather or
terrorism and congestion due to inadequacy of equipment and other causes
of this Annual Report. We ship our products to our
customers by common carrier. Insurance We maintain commercial loss and
liability, business interruption, and general claims and other insurance
customary for our business. We do not maintain credit insurance for our trade
accounts receivable. Competition The business in which we engage is
highly competitive in terms of product pricing, design, delivery terms, and
customer service. In the production of carrying cases and related carry
solutions for OEM products, we compete with numerous United States and foreign
producers and distributors. Some of our competitors are substantially larger
than we are and have greater financial and other resources. We believe that we
sustain our competitive position through maintenance of an effective product
design capability, rapid response time to customer requests for proposals and
product shipment, competitive pricing, reliable product delivery, and product
quality. We believe that our ability to compete based on product quality
assurance considerations is enhanced by the local presence of our Hong Kong and
outsourced Chinese quality control and shipment facilities. See Item 1A. in
this Annual Report: Risk Factors - The carrying solutions business is
highly competitive and does not pose significant barriers to entry. Employees At September 30, 2008, we had 53 full-time
employees, of whom two are employed in executive capacities, 5 are employed in
administrative and clerical capacities, 19 are employed in sales and sales support
and design capacities, and 27 are employed in sourcing, quality control, and
warehouse capacities. We consider our employee relations to be satisfactory.
None of our employees is covered by a collective bargaining agreement. Since June 2003, we have employed
our U.S. employees through a co-employment agreement with ADP Total Source, a
Professional Employer Organization. The objective of this arrangement is for ADP
Total Source to assume many of the legal and administrative responsibilities of
human resources management, health benefits, workers' compensation, payroll,
payroll tax compliance, 401(K) plan administration and unemployment insurance. Regulation and Environmental Protection Our business is subject to various
regulations in various jurisdictions, including the United States and member
states of the European Community, that restrict the use or importation of
products manufactured with compounds deemed to be hazardous. We work with our
suppliers to ensure compliance with such regulations. In addition, from time
to time one or more customers may require testing of our products to ensure
compliance with applicable consumer safety rules and regulations or the
customers safety or packaging protocols. Because we do not engage in the
manufacture of products that we sell and distribute, compliance with federal,
state and local laws and regulations pertaining to the discharge of materials
into the environment, or otherwise relating to the protection of the
environment, has not had, and is not anticipated to have, any direct material effect
upon our capital expenditures, earnings, or competitive position. However,
compliance with such laws and regulations on the part of our suppliers may
result in increased costs of supply to us, particularly if domestic
environmental regulation in China becomes more prevalent. In addition, under
our license agreement with Motorola, we may be responsible for ensuring our
Chinese suppliers compliance with applicable regulations, including, among
others, those relating to worker safety, child labor laws, and environmental
protection. This may require us to incur administrative and/or legal expense
in working with our suppliers to achieve such compliance. We have not been engaged in any
environmental litigation or incurred any material costs related to compliance
with environmental or other regulations. From time to time we incur chemical
and/or safety laboratory testing expense in order to address customer requests
regarding our product materials or method of manufacture or regarding their
packaging methods and standards. 12 Forward Industries, Inc.
ITEM 1A.
RISK FACTORS Please read the note regarding
"Cautionary statement for purposes of the Safe Harbor provisions of the
Private Securities Litigation Reform Act of 1995" that appears on pages 21-22
of this Annual Report on Form 10-K. In our efforts to address and
reverse the steep falloff in OEM and licensed cell phone case sales, we have adopted
a strategy involving the dedication of significant resources to re-build and
develop our sales and marketing capability in our cell phone product line and
product sales generally. If this strategy does not succeed in generating a significant
increase in sales revenues in the near to mid-term, our operating results may
deteriorate from current levels.. In order to maximize our potential return
of investment under the license and to expand our selling capability to the
aftermarket generally, we have hired product development, marketing, selling,
and administrative personnel to exploit the license opportunity and to develop
our sales capability generally outside the license. With these resources our
objective is to rebuild and strengthen our marketing and product development
capabilities and to establish new sales channels in North America and the parts
of Europe we did not access under the old license. Accordingly, we anticipate that
selling, general, and administrative expenses will increase significantly as our
efforts in this regard continue. However, there can be no assurance that this
strategy will result in a sufficient increase in revenues to achieve a return
on our investments in personnel and royalty commitments. If we do not begin to
recognize significant revenues from these efforts during the next two quarters
to offset the increase in selling, general, and administrative expenses, our
operating results may further weaken from present levels. With the steep decline in cell phone
revenue in Fiscal 2008, our business has become more highly concentrated in our
blood glucose kit carry product line, thus increasing the risks to our financial
condition and results of operations compared to periods when revenue from
customers from our two principal product lines were more balanced. If our blood
glucose kit carry product line were to suffer a decline in or loss of sales,
our business would be materially and adversely affected. In recent years, revenue from OEM
customers in each of the two product lines fluctuated without one being
consistently predominant. As a consequence of the steep decline in revenues from
sales of accessories for cellular handsets over the past two fiscal years,
revenues from sales of carry solutions for diabetic monitoring cases from OEM
customers accounted for approximately 76% of net revenues in Fiscal 2008. Our business
is now characterized by increased product line as well as customer
concentration. In such circumstances, our financial condition and results of
operations are subject to higher risk from changes in the business practices of
OEMs of blood glucose monitors, for example, a decision to reduce or eliminate
inclusion of cases in box with the electronic device. Our business could suffer if the
services of any of the key personnel we rely on were lost to us. We are highly dependent on the efforts and services of certain key sales
representatives. Our business could be materially and adversely affected
if we lost the services of such individuals. If we lost the services of
these key sales representatives, we might experience a reduction in or
significant loss of orders from their respective customers, resulting in a loss
of revenues, which could materially and adversely affect our results of
operations and financial condition. 13 Forward Industries, Inc. We believe that Motorolas
announcement in March 2008 that it intends to spin off its Mobile Devices
business and the market developments leading up to that announcement may have contributed
to the steep decline in cell phone product sales and increases the risk to our
ongoing relationship with Motorola. In March 2008 Motorola announced its
intention to spin off its Mobile Devices business, which has been our OEM
customer for over 10 years. During much of that 10-year period, Motorola was
our largest customer by revenue, and the successes of its cell phone handset
business anchored our revenue and earnings base. (More recently, Motorola has announced
in its press releases that the disposal strategy might be reassessed.). The
steady and deep decline in our OEM and licensed sales revenues from Motorola,
and thus in our cell phone product business, since September 2006 is, we
believe, reflective of the risks and challenges inherent in the highly
competitive cell phone handset business generally. We cannot predict when, if
at all, our cell phone carry case business with this customer will begin to
improve. We cannot predict the further effects that a spin-off or other
re-structuring of the Mobile Devices business might have upon our business.
However, we do believe that any proposed restructuring of the Mobile Devices
business increases the risks and uncertainties attendant to continuation of our
long-standing relationship as a reliable, valuable supplier of carry solution
accessories. At the very least, the proposed spin-off or other re-structuring
of the Mobile Devices business increases the likelihood that a significant
recovery in levels of revenue from Motorola may require more time and be
subject to greater uncertainty than a recovery of such revenues would be in the
absence of strategic changes affecting the Mobile Devices unit. On the other
hand, if new management of the Mobile Devices business undertakes a sweeping
reassessment of all business relationships and methods, which circumstances are
beyond our control, the future scope and economics of in-box accessories and
suppliers thereof, including the Company, may be at longer term and more
significant risk. If our relationship with the Mobile Devices unit were
weakened as a result of a spin-off, sale or other re-structuring, our business
prospects, financial condition, and results of operations may continue to be
materially and adversely affected, including the possible continuation of
operating and net losses. We may not realize the benefits that
we anticipated under the new license agreement . Sales of cell phone products under the
Motorola license have tended, generally, to have higher margins than OEM sales
of cell phone products. The absence of any contribution from sales of products
under the license since the expiration of the prior license in December 2007
has contributed to the decline in gross profit percentage. For that reason, we
determined that entry into the new license in May 2008 would positively affect
our revenues and profitability. Entry into the license presented us with clear
mutual objectives and challenges: to establish new distribution channels in the
North American market and to re-establish distribution channels in Europe after
expiration of the prior license, intending to in both cases to leverage the
network of distributors and retailers of Motorola branded products; to submit
new carry case accessories for an updated Motorola cell phone handset product
line; and to establish ties with a new license team. On our part we determined
to expend resources to fortify our selling and administrative resources to
exploit the aftermarket opportunity. To date these objectives have not been
achieved to our satisfaction in the anticipated time frame, and we have
realized a nominal amount of sales of licensed products under the new license.
We believe that this result is due to the lack of execution as anticipated of
approvals of new product samples for sale as well as the inability to implement
sales initiatives with potential customers in the licensed territories. At
this time, there can be no assurance that we will be able to achieve our
objectives under the new license by the end of the first quarter of Fiscal 2009,
or thereafter, or that the benefits to the parties under the license will be
realized as we had envisioned. Failure to achieve our objectives under the
license could have a material and adverse effect on our financial condition and
results of operations. Our business is and has been
characterized by a high degree of customer concentration. Our three largest
customers accounted for approximately 75% and 72% of net sales in Fiscal 2008
and Fiscal 2007, respectively; the loss of, or material reduction in orders
from, any of these customers could materially and adversely affect our results
of operations and financial condition. 14 Forward Industries, Inc. The predominant percentage of our
sales revenues is concentrated in three large OEM customers (including their
international affiliates and/or their contract manufacturers). The loss of any
of these key customers (whether as a result of such customers purchasing their
carry solution requirements from another vendor, deciding to manufacture their
own carrying cases, or eliminating the inclusion of our carrying cases with
their products or otherwise) could have a material adverse effect on our
financial condition, liquidity and results of operations. At any time,
a significant percentage of our accounts receivable risk may be concentrated in
a small number of customers. Two customers accounted for approximately
74% and 75% of our accounts receivable at September 30, 2008 and September 30, 2007,
respectively. The failure to receive or collect such amounts when, and as, due
could have a material adverse effect on our financial condition, liquidity, and
results of operations. If any one or more of our OEM
customers elect to reduce or discontinue inclusion of cases in-box, our
results of operations and financial condition would be materially and adversely
affected. The predominant percentage of our
revenues is derived from sales of case accessories to our OEM customers who
package our cases in-box with their electronics. If OEMs generally begin to
reduce or discontinue this practice, we would incur a significant decline in
revenues and our results of operations and financial condition would be
materially and adversely affected. Our inventory levels have settled at
elevated levels since September 2006 and may remain at historically high levels
in future periods, primarily as a result of the support of hub agreements
recently entered into with two large OEM customers. During Fiscal 2006 we entered into
hub agreements with two of our principal OEM customers, and during Fiscal 2007
and Fiscal 2008 entered into additional hub agreements covering additional
distribution hubs with these customers. These arrangements require us to supply
product to their distribution hubs based on our OEM customer's forecasts. Because
product supply and stocking lead times may exceed those agreed upon with our
OEM customers, during which time the customers forecasted demand for the
period may be reduced, we may purchase and stock inventory that exceeds our OEM
customers forecasted demand. It is only their forecast demand for which they
are obligated to us. As a result, our inventory levels, liquidity, and results
of operations may be adversely affected by such excess purchases. In addition,
certain of these hub arrangements include terms of payment by the customer to compensate
us in the event inventory stocks are not drawn down from a hub by the
customer. The terms of payment vary and there can be no assurance that these
arrangements will not result in a material increase in our inventory allowance,
which could have a material adverse effect on our results of operations and
financial condition. We experienced severe erosion in our
OEM product sales margins during Fiscal 2007 and Fiscal 2008, and it is not
clear when these margins will begin to improve. We continue to encounter
pressures from certain OEM customers to constrain or even roll back prices.
This price constraint factor has been exacerbated by inflationary pressures
that affect our costs of supply. During Fiscal 2007 and Fiscal 2008,
we have experienced significant pricing pressure from our OEM customers. We
have been unable to extract comparable pricing concessions from our product
suppliers across all product lines, and this has resulted in the erosion of
product sales margins. We anticipate that pressures on our ability to maintain
or increase prices as well as shifts in our product mix will continue to exert
downward pressure on our gross profit percentage in the fiscal year ending
September 30, 2009. During Fiscal 2008 and well into the first quarter of
Fiscal 2009, we have faced more persistent increases in costs of goods sold,
due to inflationary pressures affecting materials and labor costs incurred by
our Chinese vendors and inflationary pressures generally on costs of energy and
commodities. In addition, prices these vendors charge to us are reflecting the
appreciation of Chinese currency against the US dollar, which are passed
through to us in the form of higher US dollar prices. Other components of cost
of goods sold, such as our Hong Kong/China inspection costs, which
traditionally have been relatively fixed, are showing signs of wage-price
inflation. During this period we also faced higher energy costs passed through
to us in freight charges. When calculated on the basis of reduced sales
volumes, these pressures are also contributing to reduced gross profit
percentage. We cannot predict when, if at all, our overall product sales
margins will begin to improve. 15 Forward Industries, Inc. Our
results of operations are subject to the risks of fluctuations in the values of
foreign currencies relative to the U.S. Dollar; for example, if the recent
trend of appreciation of the Chinese renminbi, in which a significant portion
of our suppliers costs are denominated, and depreciation of the US Dollar, in
which most of our revenues are denominated, continues, our gross margins will
be subject to further pressure. Our results of operations are
expressed in U.S. Dollars. When the U.S. Dollar appreciates or depreciates in
value against a currency, such as the Chinese renminbi, our results will be benefited
or adversely affected, respectively. If, for example, China were to permit the
renminbi to float to a free market rate of exchange, it is widely anticipated
that the U.S. Dollar would depreciate in value relative to the renminbi, which
could materially increase our costs of goods sold (in U.S. dollar terms) and
adversely affect our results of operations if we cannot pass those costs along
to our customers or if we cannot enter into financial arrangements that hedge
or otherwise mitigate this risk. During Fiscal 2008 currency markets pushed
the renminbi up and the U.S. Dollar down, having the effect described above. The
opposite relationship would apply to sales revenues or other accounts receivable
denominated in a foreign currency. When the U.S. Dollar appreciates or
depreciates in value against a currency, such as the Euro, in which a
significant part of our revenues is denominated, our results of operations can
be adversely affected or benefited, respectively. The significant appreciation
of the Euro against the U.S. Dollar since the beginning of 2003 has had the
effect of increasing, in U.S. dollar terms, U.S. Dollar denominated sales on
our statement of income in proportion to Euro-denominated sales revenues. A reversal
of this trend could adversely affect our results of operations. Future revenues are difficult to
predict and are likely to show significant variability as a consequence of
customer concentration. Because our sales revenues are
highly concentrated in a few large customers, and because the volumes of these
customers' order flows to us are highly variable, and can fluctuate markedly in
a short period of time, our quarterly revenues, and consequently our results of
operations, are highly variable and subject to significant changes over a
relatively short period of time. Each of these customers launches
many different products and may purchase products accessories, such as carrying
cases, from many different competing vendors. When we are selected to supply a
carry solution for a specific product and launch, we may not be in a position
to know the frequency or volumes of our customers' orders, the duration of such
orders (which will depend on the product's life cycle), or the pricing of such
orders, all of which depend on our customers' ongoing assessments of the
product's relative contribution to their businesses, as well as other factors.
Our OEM customers may keep consumer electronic products for which our carry
solutions have been selected to be packaged "in-box" in active
promotion for many months, or for a very short period of time, depending on the
popularity of the product, product development cycles, new product
introductions, and our customers' competitors' product offerings. As any
consumer electronic product life (i.e., its continuing or waning popularity)
and the related "in box" program mature, we may be forced to accept
significant price reductions for our carry solutions, which will affect the
level of our revenue. Short product life cycles are particularly
characteristic of the cellular handset market, where new functionality is
constantly introduced, competition between vendors is high, and industry
technical standards are subject to continuing change. All of this makes our quarterly revenue
levels susceptible to a high degree of variability and difficult to predict
more than a quarter into the future. Significant, rapid shifts in our
operating results may occur if and when one or more of these customers increase
or decrease the size(s) of, or eliminate, their orders from us by amounts that
are material to our business. Our gross margins, and therefore
our profitability, vary considerably by customer and therefore across our
product lines, and if the relative revenue contribution from one or more OEM
customers changes materially, relative to total revenues, our gross profit
percentage may decline. Our gross profit margins vary widely
depending on the customer, order size, market in which the customer's products
are sold and the types of carrying cases and related accessories sold. In
addition, there is a broad range of selling prices within our soft-sided
carrying cases product line, and there is also a broad range of selling prices
between, for example, soft-sided carrying cases and other carry solutions such
as straps, clips, and camera attachment cases. Because of the broad
variability in price ranges and product types, we anticipate that gross
margins, and accordingly net income, will continue to fluctuate depending on
the relative revenue contribution by customer of carrying cases for cellular
handsets and those for blood glucose monitors, as well as our OEM customers'
order patterns and preferences for more or less expensive cases and or other
accessories to be included as accessories "in box". Such
fluctuations may have the effect of masking the impact of fluctuations in unit
volume sale trends. 16 Forward Industries, Inc. Product manufacture is often outsourced
by our OEM customers to contract manufacturing firms in China and in Southeast
Asia Such firms are performing
manufacturing, assembly and product packaging functions, including the bundling
of product accessories such as ours with the OEM customer's product. As a
consequence of this business practice, we often sell our carry solution
products to the contract manufacturing firm. In these cases, we invoice the
contract manufacturing firm and not the OEM customer. Therefore, it is the
contract manufacturing firm's credit to which we must look for payment in such
cases and not that of our OEM customer. This may alter the credit profile of
our customer base and may involve significant purchase order volumes. In some,
but not all cases, the manufacturing firm is itself a large, multinational
entity with significant financial resources. Under our
license agreement with Motorola we may become liable for certain
indemnification or other liabilities and become exposed to certain risks. Each manufacturer selected by us to
manufacture products for sale pursuant to our license agreement with Motorola
is subject to Motorola's approval, and we are responsible for ensuring such
manufacturer's compliance with the terms of the Manufacturer's Agreement (as
defined in the License Agreement), in particular the proper use of the Motorola
trademarks and compliance with applicable laws in the jurisdiction where the
manufacturer is located. Failure of the manufacturer to comply with its
obligations under such manufacturing agreement could result in termination of
the license agreement, Motorola's demand that we enforce the terms of the
Manufacturing Agreement against the manufacturer, at our cost and expense, or a
claim for damages by Motorola against us, or a combination of the foregoing. The License Agreement expires on March
31, 2009, but both parties have certain rights of termination customary for
such agreements prior to such date, including, for example, in the case of
violation of the agreement, insolvency or bankruptcy of one party, or breach of
representations or covenants. If we elect to give notice to terminate the
license agreement under certain conditions, as specified in the agreement, before
its expiration on March 31, 2009, we will be required to pay minimum royalties
for the two calendar quarters commencing after the date of notice plus the
remainder of the minimum royalty, if any, for the quarter in which the notice
was given. In addition, Motorola and we have agreed to certain
cross-indemnification provisions, which, as applicable to us, obligate us to
indemnify Motorola in respect of all third party suits, actions, claims,
damages and liabilities and expense against, or incurred by, Motorola arising
out of or connected with the licensed products, their method of manufacture,
sale or distribution, the promotional or packaging of the products, or any breach
by us of the License Agreement. The occurrence of any of the foregoing events,
claims, obligations, or demands could subject us to make payments or incur
expense, which could be material and adversely affect our results of operations
and financial condition. Payments to us by or on behalf of
our customers of accounts receivable originated in China or other Asian nations
may be subject to local regulations or moratorium that restrict the right to
convert foreign currencies into U.S. dollars, or that prevent, delay, or
restrict the ability to remit U.S. dollars to the United States. 17 Forward Industries, Inc. Our payment and remittance
arrangements with certain customers may subject these arrangements to Chinese
or other local currency regulations. In the event that any foreign government
were to impose regulatory restrictions on the ability to effect conversion of
local currency into U.S. dollars or remittance of U.S. dollars to the United
States, our receipt or recognition of U.S. dollars in payment, directly or
indirectly, of invoices for sales of our products could be delayed or otherwise
affected, including, for example, by a reduction in the effective exchange rate
to our detriment, imposition of fees or expenses, a discounting of the amount
of the account receivable, or a deferral of such accounts receivable into a
future reporting period, or an outright cancellation of the payment. If this
were to affect receipt or recognition of material amounts of revenues, our
liquidity or results of operations could be materially and adversely affected. Our dependence on foreign
manufacturers creates quality control, product cost, pricing, availability, and
delivery risks. As a result, from time to time we experience certain quality
control, on-time delivery, cost, or other issues that may threaten customer
relationships. All of our products are manufactured
by Chinese manufacturers in China. Our reliance on foreign suppliers,
manufacturers, and other contractors involves significant risks, including
reduced control over quality assurance, manufacturing yields and costs,
delivery schedules, the potential lack of adequate capacity, the lack of
capital, and potential misappropriation of our designs. In Fiscal 2006, we transitioned the responsibility
for quality assurance inspection of products from our Koszegi Asia facility to
a third-party quality assurance provider. In the course of this transition we
experienced a high level of turnover of Koszegi Asia quality control employees
who oversee the activities of our quality assurance provider. In connection
with these developments, certain quality control and delivery problems surfaced
in Fiscal 2007 and other quality control issues have continued in Fiscal 2008. While
we have dedicated additional management oversight to the quality control function
and made it a higher priority, there can be no assurance that we will be
successful in these efforts, and our failure to do so could result in the loss
of a key customer, which could have an adverse effect on our results of
operations and our business reputation. Our shipments of products via
container freight to customers in the United States and Europe are subject to
delays or cancellation due to work stoppages or slowdowns, piracy, damage to
port facilities caused by weather or terrorism, and congestion due to
inadequacy of port terminal equipment and other causes. Since all of our carrying solutions
products are sourced from China, the carrying cases and other products we
distribute and sell must be brought to our customers' markets. To the extent
that there are disruptions or delays in loading cargo in Hong Kong or Chinese
ports or off-loading cargo at ports of destination as a result of labor
disputes, work-rules related slowdowns, tariff or World Trade
Organization-related disputes, piracy, physical damage to port terminal
facilities or equipment caused by severe weather or terrorist incidents,
congestion in port terminal facilities, inadequate equipment to load, dock and
offload container vessels or energy-related tie-ups or otherwise, or for other
reasons, product shipments to our customers will be delayed. In any such case,
our customer may cancel or change the terms of its purchase order, resulting in
a cancellation or delay of payments to us. A closure or partial closure of Hong
Kong, Chinese, United States or European port facilities or other causes of
delays in the loading, importation, offloading or movement of our products
could result in increased expenses, as we try to avoid such delays, delayed
shipments or cancelled orders, or all of the above. Depending on the severity
of such consequences, this may have an adverse effect on our financial
condition and results of operations. The carrying solutions business
is highly competitive and does not pose significant barriers to entry. There is intense competition in the
sale of carry solutions products to original equipment manufacturers. Since
little or no significant proprietary technology is involved in the design,
production, or distribution of products similar to our products, others may
enter the business with relative ease and compete against us. Such competition
may result in the diminution of our market share, the loss of one or more major
OEM customers, and adversely affect our net sales, results of operations, and
financial condition. Many of our competitors are larger, better capitalized,
and more diversified than we are and may be better able to withstand a downturn
in the general economy or in the product areas in which we specialize. These
competitors may also have less sales concentration than we do and be better
able to withstand the loss of a key customer or diminution of a large
customer's orders. We do not pay dividends on our
common stock. We have not paid any cash dividends
on our common stock since 1987. The payment in the future of cash dividends by
us, if any, will depend upon our results of operations, short-term and
long-term cash availability, working capital, working capital needs, and other
factors, as determined by our Board of Directors. Applicable laws may also
restrict the ability of a corporation to pay dividends, for example when such
payment would render the corporation insolvent. We do not anticipate that cash
dividends will be paid in the foreseeable future. The absence of dividend
payments on a common stock might make such stock susceptible to greater market
price swings. 18 Forward Industries, Inc. We have in place anti-takeover measures and charter
provisions that may prevent a hostile or unwanted effort to acquire Forward. Our Board of Directors is authorized
to issue up to 4,000,000 shares of "blank check" preferred stock. Our
Board of Directors has the authority, without shareholder approval, to issue
such preferred stock in one or more series and to fix the relative rights and
preferences thereof including their redemption, dividend and conversion rights.
Our ability to issue the authorized but unissued shares of preferred stock
could be used to impede takeovers of our company. Under certain circumstance,
the issuance of the preferred stock could make it more difficult for a third
party to gain control of Forward, discourage bids for the common stock at a
premium, or otherwise adversely affect the market price of our common stock. In
addition, our certificate of incorporation requires the affirmative vote of
two-thirds of the shares outstanding to approve a business combination such as
a merger or sale of all or substantially all assets. Such provision and blank
check preferred stock may discourage attempts to acquire Forward. Applicable
laws that impose restrictions on, or regulate the manner of, a takeover attempt
may also have the effect of deterring any such transaction. We are not aware
of any attempt to acquire Forward.
ITEM 1B. UNRESOLVED STAFF
COMMENTS Not Applicable
ITEM 2. PROPERTIES We lease approximately 10,000 square
feet of office and warehouse space at 1801 Green Road, Pompano Beach, Florida,
through Koszegi Industries Inc., our wholly owned subsidiary. Under the terms
of the lease, which expires in May 2012, the monthly rent is approximately $12,000.
We use this office space as our executive office and our United States sales
office. During Fiscal 2008, we leased
approximately 9,000 square feet of warehouse and office space in Hong Kong, at
a monthly rental of approximately $12,000 through Koszegi Asia Ltd., our wholly
owned subsidiary, under a lease that expired in November 2008. We used this
space as a sourcing, quality assurance, and logistics facility for products
purchased from our China suppliers. In October, 2008, we outsourced our
warehousing operation to a third party logistics provider, terminated our
existing lease and leased approximately 4,400 square feet of office space in
Kowloon, Hong Kong, at a monthly rental of approximately $13,000 also through
Koszegi Asia Ltd, under an agreement that expires in October, 2011. As of
November 2008, we have relocated all of our Asia-based sourcing, quality
assurance, and logistics personnel to this new office space. Forward Innovations, our Swiss
subsidiary, leases approximately 2,000 square feet of office space in Cham,
Switzerland, at a monthly rental of approximately $2,000. This lease is on a
month-to-month basis and can be cancelled by us with a six-months notice. We
use this facility as our EMEA sales and administrative office. We believe that each of the
foregoing leased properties is adequate for the purposes for which it is used.
All leases are with independent third parties. We believe that the loss of any
lease would not have a material adverse effect on our operations as we believe
that we could identify and lease comparable facilities upon approximately
equivalent terms.
ITEM 3. LEGAL
PROCEEDINGS From time to time, the Company may
become a party to legal actions or proceedings in the ordinary course of its
business. As of September 30, 2008, there were no such actions or proceedings,
either individually or in the aggregate, that, if decided adversely to the
Companys interests, the Company believes would be material to its business.
ITEM 4. SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS No matter was submitted to a vote
of our security holders in the fiscal fourth quarter of 2008. We anticipate
that the annual meeting of shareholders in respect of the fiscal year ended
September 30, 2008, will be held in February 2009. 19 Forward Industries, Inc. ITEM 5. MARKET FOR COMMON
STOCK, RELATED SHAREHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES Market for Common Stock The principal market for our common
stock is the NASDAQ SmallCap Market. Our common stock is traded under the
symbol "FORD". The following table sets forth the high and low
closing bid quotations for our common stock on the NASDAQ SmallCap Market for
each quarter in the last two fiscal years. Bid Price Information for Common Stock* Fiscal 2008 Fiscal 2007 High Bid Low Bid High Bid Low Bid First Quarter $3.58 $2.22 $ 6.09 $ 4.10 Second Quarter $2.54 $2.01 $ 5.30 $ 4.06 Third
Quarter $2.80 $2.17 $ 4.25 $ 3.21 Fourth
Quarter $2.73 $1.84 $ 3.61 $ 2.61 _______________________________ On November
19, 2008, the closing bid quotation for our common stock was $2.11. See Item 1A. of this Annual Report Risk FactorsIf
our common stock were to be de-listed from the NASDAQ SmallCap Market, the
existing market prices for and liquidity of our common stock may decline. Holders of common stock. As of November 19, 2008, there were
approximately 116 holders of record of our common stock, excluding
approximately 7,000 beneficial holders whose shares are held in street name. Dividends We have not paid any cash dividends
on our common stock since 1987 and do not plan to pay cash dividends in the
foreseeable future. The payment of dividends in the future, if any, will depend
upon our results of operations, as well as our short-term and long-term cash
availability, working capital, working capital needs, and other factors, as
determined by our Board of Directors. Currently, except as may be provided by
applicable laws, there are no contractual or other restrictions on our ability
to pay dividends if we were to decide to declare and pay them. Recent sales of unregistered
securities During Fiscal 2008, we did not issue
and sell any shares of common stock, or securities exercisable for or
exchangeable into common stock, or any other securities that were not
registered under the Securities Act of 1933. Securities authorized for
issuance under equity compensation plans. For information relating to this
topic, see Part III, Item 11 of this Annual Report. Executive Compensation
which is incorporated in this Annual Report on Form 10-K by reference to our 2009
Proxy Statement. 20 Forward Industries, Inc. Purchase
of Equity Securities No repurchase of any common stock or
other equity security was made during the fourth quarter of Fiscal 2008. On September 27, 2002, our Board of
Directors authorized the repurchase of up to 400,000 shares of our outstanding
common stock (approximately 7% of the number of shares then outstanding). On
January 21, 2004, our Board increased the amount of shares authorized for
repurchase to 486,200. Under these authorizations, as of September 30,
2008, we had repurchased an aggregate of 172,603 shares at a cost of
approximately $0.4 million, including 70,000 shares in Fiscal 2007, but none
during Fiscal 2008, leaving a balance of 313,597 shares (approximately 4% of
the shares outstanding at September 30, 2008) under those authorizations.
Separately, on March 5, 2008, we in effect purchased 72,917 outstanding shares
of common stock held by our former Chairman of the Board and principal
executive officer, by accepting such shares at their fair market value on such
date as consideration for his exercise of options to purchase 100,000 shares of
common stock as part of a cashless exercise. ITEM 6. SELECTED FINANCIAL
DATA Not applicable. ITEM 7. MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion and
analysis should be read in conjunction with our audited Consolidated Financial
Statements and the notes thereto and other financial information appearing in Item
8 of this Annual Report on Form 10-K. This discussion and analysis compares
our consolidated results of operations for the fiscal year ended September 30, 2008
("Fiscal 2008"), with those of the fiscal year ended September 30, 2007
("Fiscal 2007"), and compares our consolidated results of operations
for Fiscal 2007 with those of the fiscal year ended September 30, 2006 (Fiscal
2006) and is based on or derived from the audited Consolidated Financial
Statements included in Item 8 in this Annual Report. All figures in the
following discussion are presented on a consolidated basis. All dollar amounts
and percentages presented herein have been rounded to approximate values. Cautionary statement for purposes of the Safe Harbor
provisions of the Private Securities Litigation Reform Act of 1995
The following managements discussion
and analysis includes forward-looking statements that are not based on
historical fact and that involve assessments of certain risks, developments,
and uncertainties in our business. Such forward looking statements, within the
meaning of the Private Securities Litigation Reform Act of 1995, can be
identified by the use of forward-looking terminology such as may, will,
should, expect, anticipate, estimate, intend, continue, or
believe, or the negatives or other variations of these terms or comparable
terminology. Forward looking statements may include projections, forecasts, or
estimates of future performance and developments. Forward looking statements contained
in this Report are based upon assumptions and assessments that we believe to be
reasonable at the time such forward looking statements are made. Whether those
assumptions and assessments will be realized will be determined by future
factors, developments, and events, which are difficult to predict and may be
beyond our control. Actual results, factors, developments, and events may
differ materially from those assumed and assessed. Such risk factors,
uncertainties, contingencies, and developments, including those discussed in
this Managements Discussion and Analysis of Financial Condition and Results of
Operations and those identified in Risk Factors in Item 1A of this Annual
Report, could cause our future operating results to differ materially from
those set forth in any forward looking statement. Such factors include, among
others, the following: our ability to maintain constructive commercial
relationships with our key Original Equipment Manufacturer (OEM) customers,
including during periods of economic downturns generally or in their business
environments; our success in winning new business from our customers and against
competing vendors; whether replacement programs that we win will be more or
less successful or profitable than those that are replaced; the success or
failure of our efforts under our license agreements; levels of demand and
pricing generally for cellular handsets and blood glucose monitoring devices sold
by our customers for which we supply carry solutions; variability in order flow
from our OEM customers; the loss of one or more key sales employees upon whom
relationships with key OEM customers depend; OEM customers decision to reduce
or eliminate their practice of including carry case accessories in-box; general
economic and business conditions, nationally and internationally in the countries
in which we do business or the onset of a global economic recession; the
failure of one or more of our suppliers; the need to add materially to our
inventory allowance, including the impact on inventory levels or saleability of
inventory arising out of hub agreements we have entered into with two of our
OEM customers; demographic changes; changes in technology, including
developments affecting cellular handsets; developments in the treatment or
control of diabetes that affect the incidence of use and replacement rates of
handheld blood glucose monitors by diabetics; increased competition in the
business of distribution of carry solutions for handheld electronic devices
generally or increased competition to include carry solutions with products
manufactured by our OEM customers in particular; changes affecting the business
or business prospects of one or more of our principal OEM customers;
governmental regulations and changes in, or the failure to comply with,
governmental regulations; and other factors included elsewhere in this Annual Report
and our other reports filed with the Commission. Accordingly, there can be no
assurance that any such forward looking statement, projection, forecast or
estimate can be realized or that actual returns, results, or business prospects
will not differ materially from those set forth in any forward looking
statement.
21 Forward Industries, Inc.
Given these uncertainties, readers
are cautioned not to place undue reliance on such forward-looking statements.
The Company disclaims any obligation to update any such factors or to publicly
announce the results of any revisions to any of the forward-looking statements
contained herein to reflect future results, events or developments.
Critical Accounting Policies and Estimates We have identified the accounting
policies and significant estimation processes below as critical to our business
operations and the understanding of our results of operations. The listing is
not intended to be a comprehensive list. In many cases, the accounting
treatment of a particular transaction is specifically dictated by accounting
principles generally accepted in the United States, with no need for
managements judgment of a particular transaction. In other cases, management
is required to exercise judgment in the application of accounting principles
with respect to particular transactions. The impact and any associated risks
related to these policies on our business operations is discussed throughout
this Managements Discussion and Analysis of Financial Condition and Results
of Operations where such policies affect reported and expected financial results.
For a detailed discussion of the applications of these and other accounting
policies, refer to Item 8. Financial Statements and Supplementary Data in
this Annual Report. Our preparation of our consolidated financial statements
requires us to make estimates and assumptions that are believed to be
reasonable under the circumstances. There can be no assurance that actual
results will not differ from those estimates and such differences could be
significant. Revenue Recognition In accordance with the requirements
of Staff Accounting Bulletin (SAB) No. 104, Revenue Recognition in Financial
Statements, the Company generally recognizes revenue from product sales to
customers when: products that do not require further services by the Company
are shipped; there are no uncertainties surrounding customer acceptance; and
collectibility is reasonably assured. Accounts Receivable We record an allowance for doubtful
accounts for all receivables judged by us to be unlikely to be collected. The
effect of the allowance is to reduce the accounts receivable reported on our
balance sheet to an amount that we believe will actually be collected.
Significant management judgments, analyses, and estimates must be made and used
in connection with establishing this valuation account, based on a combination
of factors: the age of receivable balances, our historical bad debts write-off
experience, and our respective customers creditworthiness, among other factors.
At September 30, 2008 and September 30, 2007, our allowance for doubtful
accounts was approximately $10,000 and $47,000, respectively. Changes to this
account are reflected in the general and administrative expense line of our
consolidated statements of operations. Although we consider our allowance for
doubtful accounts to be adequate and proper, changes in economic conditions,
the assessments of new customers creditworthiness, changes in customer
circumstances, or other factors could have a material effect on the recorded
allowance. Inventory Valuation We make estimates and judgments to
value our inventory. Our inventory is recorded at the lower of cost or market.
The majority of our inventory consists of finished goods that are custom made
by our suppliers based on firm orders from our OEM customers and held for our
account or supplied to our OEM customers distribution hubs in anticipation of
their draw-downs to fulfill orders. We also periodically stock inventory in
anticipation of orders from our OEM customers when it appears to us
commercially advantageous to do so. In addition, we hold inventory in support
of sales to wholesalers and distributors in the aftermarket, including our
license agreement with Motorola. 22 Forward Industries, Inc. At the end of each fiscal quarter,
we evaluate our ending inventories, and we establish an allowance for inventory
that is considered obsolete, slow moving, or otherwise un-saleable. This
evaluation includes, among other factors, analyses of inventory levels,
historical loss trends, sales history, and projections of future sales demand.
We physically dispose of inventory once its marketability has been determined
to be zero. Inventory allowances were approximately $0.2 million and $0.6 million
at September 30, 2008 and 2007, respectively. The decrease in the allowance
from September 30, 2007 to September 30, 2008, was due to the disposal of cell
phone inventory determined to be obsolete or unsalable. Increases to this
account are reflected in the cost of goods sold line of our consolidated
statements of operations. See Note 14, Subsequent Events, to our audited,
consolidated financial statements in Item 8 of Part II of this Annual Report on
Form 10-K. The vast majority of our production
is made to customer specifications. If a customer elects not to accept
delivery, or defaults on a purchase order or commitment, or returns inventory
from its hub without payment in violation of the hub arrangements, additional
inventory write-downs or reserves may be required and would be reflected in
cost of goods sold in the period the revision is made. Historically, actual
inventory valuation results have not deviated significantly from those
previously estimated by us. Deferred Income Taxes In our consolidated financial
statements, we are required to estimate income taxes in each of the
jurisdictions in which we are subject to taxation. This process involves
estimating actual current income tax expense as well as assessing temporary
differences resulting from differing treatment of revenue and expense items for
tax and accounting purposes. These differences result in deferred tax assets
and liabilities, which are included in our consolidated balance sheet. We had
approximately $0.4 million and $0.3 million of net deferred tax assets at
September 30, 2008 and 2007, respectively. No valuation allowances were
recorded in respect of these deferred tax assets as of such dates. Management evaluates our deferred
tax assets on a quarterly basis and assesses the need for valuation allowances.
Our deferred tax assets are evaluated by considering historical levels of
income, estimates of future taxable income, and the impact of our tax planning
strategies. We record a valuation allowance to reduce deferred tax assets when
it is determined, on a more likely than not basis, that we will not be able to
use all or part of our deferred tax assets. In the event that it should be
subsequently determined that we can not, on a more likely than not basis,
realize all or part of our deferred tax assets, if any, in the future, an
adjustment to establish (or record an increase in) the deferred tax asset
valuation allowance would be charged to income in the period in which such
determination is made. Changes in our deferred tax assets are reflected in the
tax (benefit) expense line of our consolidated statements of operations. Variability of Revenues and Results of
Operation Because our sales revenues are
highly concentrated in a few large customers, and because the volumes of these
customers order flows to us are highly variable, with short lead times, our quarterly
revenues, and consequently our results of operations, are susceptible to
significant variability over a relatively short period of time. 23 Forward Industries, Inc. We depend for the predominant
proportion of our sales revenues on OEM orders from our three largest
customers, each of which is a large, multinational corporation. Each of these
customers launches different products and can purchase products accessories,
such as carrying cases, from many different vendors. When we are selected to
supply a carry solution in-box for a specific product and launch, we may not
be in a position to know the frequency or volumes of our customers orders, or
the duration of such orders (which will depend on the OEM customer products
life cycle), all of which depend on our customers ongoing assessments of the
products relative contribution to their businesses, as well as other factors.
Our OEM customers may keep products for which our carry solutions have been
selected to be packaged in-box in active promotion for many months, or for a
very short period of time, depending on the popularity of the product, product
development cycles and new product introductions, and our customers
competitors product offerings. Product life cycles for blood glucose
monitoring instruments and kits and related carry case accessories are subject
to advances in the technology for measurement of blood sugars and insulin
administration. Short product life cycles and/or significant variability in
product pricing are particularly characteristic of the cellular handset market,
where new functionality is constantly introduced, competition among vendors is
high, and industry technical standards are subject to continuing change. When
in-box programs end, and to the extent that the introduction of new programs
does not include our products as an accessory in-box, or such new programs do
include our products as an accessory in-box but do not result in a comparable
level of demand for our products, the level of our OEM product sales is
susceptible to significant and rapid change. All of this makes our quarterly revenue
levels susceptible to a high degree of variability and difficult to predict. Significant,
rapid shifts in our operating results may occur if and when one or more of
these customers increases or decreases the size(s) of, or eliminates, its
orders from us by amounts that are material to our business. Trends in Results of Operations We anticipate that OEM diabetic
sales will continue to account for the predominant percentage of revenue and
that net sales contributions from OEM cell phone sales and aftermarket
distribution for the first half of Fiscal 2009 will be negligible. We believe OEM diabetic sales will continue to lead
revenue generation. We will see negligible revenue from
licensed sales or sales of our proprietary products in the aftermarket. See
Risk Factors in Part II, Item 1A, of this Annual Report on Form 10-K for a
discussion of recent developments relating to our relationship with Motorola. We anticipate that gross profit
and gross profit percentage may continue to be adversely impacted by product
mix factors. The average gross margin
for all diabetic product sales tends to be narrow compared to other OEM sales
and aftermarket sales. With OEM diabetic product sales continuing to account for
the predominant percentage of our total revenue mix, our overall gross profit
margin will thus tend to be lower. Absent a material increase in revenues from
our other product lines, we anticipate that our overall gross margin will
remain compressed. Second, as relatively higher margin diabetic case programs
mature, we expect to face increased pricing pressure from our largest OEM
customers, and this will further impact gross profit. Building inflationary pressures
in or affecting Chinas economy contributed to rising costs of goods sold,
which pressured gross profit. We
cannot yet predict whether or when falling commodity prices observed in the
first quarter of Fiscal 2009 will benefit cost of goods sold. We source 100%
of the products we sell and distribute from vendors located in China. Rising
labor, energy, and materials costs (particularly in South China, where we
source the majority of our products), and the rising value of the Renminbi in
comparison to the U.S. dollar in Fiscal 2008 adversely affected gross profit
during Fiscal 2008. We had very little if any ability to pass higher costs on
to our larger customers. The recent reversal of commodity prices and possibly
labor inputs may benefit our cost of goods sold. But final prices to us are
the subject of negotiation with our suppliers, and it is too early to predict
whether lower inputs will be passed through to us. Pre-tax net loss in recent and
the current reporting periods would have been significantly larger but for the
substantial level of other income, which consists primarily of interest
income on cash balances. Federal
Reserve and European Central Bank reductions in the level of interest rates
combined with slightly lower cash balances have and may continue to result in
lower levels of other income and thus result in a smaller offset to operating
losses.
Forward Industries, Inc. Results of Operations for Fiscal 2008
compared to Fiscal 2007 Net loss Net loss in Fiscal 2008 increased
$0.3 million to $0.9 million compared to $0.6 million in Fiscal 2007 The deterioration
in results was primarily due to a $0.8 million, or 16%, reduction in gross
profit, due primarily to a $6.5 million decline in sales of cell phone carry
solution products, and to a $0.4 million, or 39%, decrease in other income, which
consists primarily of interest income. These declines were partially offset by
a decrease in selling, general and administrative expenses of $0.9 million, or 14%,
primarily due to lower personnel costs, royalty expense, and travel &
entertainment costs. Basic and diluted per share data was ($0.11) for Fiscal 2008,
compared to ($0.07) for Fiscal 2007. The decrease in earnings per share in
Fiscal 2008 was due to the increase in the net loss. Net Sales Net sales decreased $2.2 million, or
10%, to $20.0 million in Fiscal 2008 compared to $22.2 million in Fiscal 2007
due to lower sales of cell phone products, which declined $6.5 million, or 80%.
This decrease was offset, in part, by higher sales of carry cases for diabetic
products, which increased $4.4 million, or 40%. The tables below set forth
approximate net sales by product line and geographic location of our customers
for the periods indicated. Net Sales for Fiscal 2008 (millions of dollars)
APAC
Americas
EMEA
Total Diabetic Products $9.0 $3.1 $3.2 $15.3 Cell Phone Products 0.5 0.6 0.5 1.6 Other Products 0.5 2.4 0.1 3.1 Totals* $10.0 $6.1 $3.9 $20.0 Net Sales for Fiscal 2007 (millions of dollars)
APAC
Americas
EMEA
Total
Diabetic Products
$7.2
$2.1
$1.6
$10.9
Cell Phone Products
3.3
2.0
2.8
8.1
Other Products
0.4
2.6
0.1
3.1
Totals*
$10.9
$6.7
$4.5
$22.2 * Tables may
not total due to rounding. Diabetic Product Sales We design to the order of and sell
directly to our OEM customers carrying cases used by diabetics to carry their
personal electronic, blood glucose monitoring kits. In Fiscal 2008, OEM
customers for these carrying cases included Lifescan, Abbott Labs, and Roche
Diagnostics (including their subsidiaries, affiliates and contract manufacturers)
as well as other customers. Our carrying cases are packaged as an accessory
"in-box" with the monitoring kits that are sold by our OEM customers. Sales of cases and related
accessories for blood glucose monitoring kits increased $4.4 million to $15.3
million in Fiscal 2008, or 40% higher than Fiscal 2007. These results were
driven by higher sales to our three largest customers for Fiscal 2008, which
increased by $2.0 million, $1.1 million, and $1.2 million, respectively, in Fiscal
2008. The increase in sales was attributable to higher volumes of in-box sales
from existing programs and increased contributions from new programs. Sales of carrying cases for blood
glucose monitoring kits represented 76% of our total net sales in Fiscal 2008
compared to 49% of our total net sales in Fiscal 2007 due primarily to the
continuing significant decline in cell phone product sales as well as the
increase in OEM sales of cases and accessories for the blood glucose monitors. 25 Forward Industries, Inc. Other Product Sales We design and sell a number of
carrying solutions for items such as cameras, portable oxygen tanks, bar code
scanners, MP3 players, and other carrying solutions for an assortment of
products on a made-to-order basis that are customized to meet the individual
needs of our smaller OEM customers. By the nature of our distribution in
this market, sales of these customized products to order in their product
category vary from period to period without necessarily reflecting a
significant trend in overall demand for these items. Sales of other products were $3.1
million for both Fiscal 2008 and Fiscal 2007, which represented 16% and 14% of
our total sales, respectively. Cell Phone Product Sales Our cell phone carry solutions
products include carrying cases for handsets and camera attachments, plastic
belt clips, carrying case straps and bags, screen cleaners, decorative
faceplates, and other attachments used to carry or enhance the appearance of
cellular telephone handsets. We design to the order of and sell these
products directly to cell phone handset original equipment manufacturers.
Our cases are packaged as an accessory "in-box" with the handsets
that are sold by our OEM customers. Motorola was our only OEM cell phone
customer in Fiscal 2008 and Fiscal 2007. In addition to our in-box business
with OEM customers, we engage in the sale of carry solution products as
separately packaged accessories directly to wholesalers (for re-sale to retail
outlets) and retailers (for re-sale to retail consumers), a distribution
channel we sometimes refer to as the aftermarket. Products in this channel
include products bearing the Motorola logo, for which we have licensed the non-exclusive
rights in the United States, Canada, and Europe. Product and channel
development for these products are underway as we are committing resources to
strengthen (and establish, in the case of North American markets) our sales and
marketing capability. We dont expect to see revenue contribution, if any,
from these markets until the second fiscal quarter of Fiscal 2009. See Risk Factors in Item 1A of
Part I of this Annual Report on Form 10-K for a discussion of the risks
relating to OEM customer Motorola. Total sales of cell phone products
in Fiscal 2008 declined $6.5 million to $1.6 million, to a level one-fourth of that
compared to Fiscal 2007. Sales of such products in Fiscal 2008 were
predominantly OEM sales to Motorola, which decreased $4.8 million, to $1.2
million, or to a level approximately one-fifth the level attained in Fiscal 2007.
Aftermarket sales of cell phone
products, consisting primarily of licensed sales of Motorola branded products, declined
to $0.4 in Fiscal 2008, $1.5 million lower than aftermarket sales in Fiscal
2007, which consisted entirely of Motorola branded products sold under the
expired license. Sales of carry solutions for cell
phone products represented 8% of our total net sales in Fiscal 2008 compared to
36% in Fiscal 2007, due primarily to the decline in cell phone sales and to a
lesser extent the significant increase in diabetic product sales. Gross Profit Gross profit decreased $0.8 million,
or 16%, to $4.0 million in Fiscal 2008 from $4.8 million in Fiscal 2007. As a
percentage of net sales, gross profit decreased to 20% in Fiscal 2008 from to
22% in Fiscal 2007. These decreases were due to several factors. First, net
sales decreased $2.2 million due to the steep decline in our cell phone
products line. Second, average gross margin on diabetic product sales,
which accounted for 76% total net sales in Fiscal 2008 compared to 49% in
Fiscal 2007, tend to be lower than other product lines, and thus, adversely
affected our gross profit percentage. Third, higher labor and materials costs
due to inflation and currency factors, all contributed to restrain gross profit
and gross profit percentage. Lastly, the cost of operating our Hong Kong
facility, which constitutes part of our cost of goods sold on our statements of
operations, increased due to higher quality and compliance measures implemented
in Fiscal 2008, which on a lower revenue base, acted as a drag on our gross
profit percentage. Compared to the above figures, Fiscal 2008 gross profit and
gross profit percentage would have been $3.8 million and 19%, respectively, but
for the agreement of a customer to pay $250,000 to us that has the effect of
reducing Fiscal 2008 cost of goods sold by that amount. The payment,
which is in settlement of a larger amount of unpaid invoices to the customer in
respect of product included as part of our inventory allowance in Fiscal 2008
and Fiscal 2007, had the effect of significantly improving fiscal fourth
quarter gross profit and gross profit percentage, thereby improving the full-year
figures to the extent described above. See Note 14, Subsequent Events, to
the audited consolidated financial statements in Item 8 of Part II of this
Annual Report. 26 Forward Industries, Inc. Selling, General, and Administrative Expenses Selling, general, and administrative
expenses decreased $0.9 million, or 14%, to $5.7 million in Fiscal 2008 from $6.6
million in Fiscal 2007. This decrease was due to reductions in selling
personnel costs and general administrative personnel costs of $0.3 million and
$0.1million, respectively, primarily due to the expiration at December 31,
2007, of employment agreements of two executives, one in each area. In
addition, Royalty expenses were lower by $0.3 million as a result of the
elimination of the minimum royalty obligations under the new License Agreement.
Travel and entertainment costs incurred by selling personnel also decreased $0.1
million in Fiscal 2008. Other components of our operating expenses also
declined in Fiscal 2008, the most significant of which was other general and
administrative costs, which decreased $0.1 million primarily due to lower
depreciation expense, share-based compensation for our directors, and investor
relations fees. Royalty and commission expense declined $30,000 in Fiscal
2008 compared to Fiscal 2007 due to lower sales of licensed products. Other Income (Expense) Other income, primarily interest
income on cash balances, declined 39% to $0.6 million, due to sharply lower
average interest rates in Fiscal 2008 on slightly lower cash balances compared
to Fiscal 2007. The second component of other income consists of gain or loss
from foreign currency transactions, as to which we recorded a $6,000 loss in
Fiscal 2008 compared to an $11,000 gain in Fiscal 2007. Pre-tax Income Pre-tax income decreased $0.2 million
to a pre-tax loss of $1.0 in Fiscal 2008 from a pre-tax loss of $0.8 million in
Fiscal 2007 as a result of the changes as described above. Income Taxes Our effective income tax benefit
rate was 15% in Fiscal 2008 compared to 31% in Fiscal 2007 as a result of the higher
relative contribution of taxable loss from the EMEA Region, which bears a lower
benefit rate than United States taxable loss. This had a disproportionate
impact on an overall smaller taxable loss base. Our effective tax benefit rate
does not approximate the United States statutory federal income tax rate
primarily due to tax rate differentials in respect of state and foreign taxes,
to which income recorded by Forward Innovations is subject. Benefit from
income taxes decreased $94,000to $156,000 in Fiscal 2008 from $250,000
in Fiscal 2007. The income tax benefit consists primarily of estimated U.S.
federal income taxes, and to a lesser extent, current state and foreign income
taxes. See Note 9 to the Financial Statements in Item 8 of this Annual Report. We consider the earnings of our
foreign subsidiaries indefinitely invested and, accordingly, have not recorded
a provision for U.S. income taxes on their un-repatriated earnings. At September
30, 2008, those cumulative earnings were $4.3 million. Liquidity and Capital Resources During Fiscal 2008, we used $0.4
million of cash in operations compared to generating $1.9 million from
operations in Fiscal 2007. Our operating cash flows in Fiscal 2008 consisted of
a net loss of $0.9 million, offset in part by $0.5 million for non-cash items,
and $0.1 million for net changes in working capital items Non-cash items
consisting of provision for obsolete inventory, share-based compensation
expense, and depreciation expense reduced our net loss by $0.3 million, $135,000,
and $65,000, respectively. In addition, non-cash items consisting of deferred
tax expense and bad debt expense of $99,000 and $20,000, respectively,
contributed to our net loss. Working capital items consisted primarily of cash
generated by changes in accounts receivable, accounts payable, and prepaid and
other current assets of $0.5 million, $0.3 million, and $0.3 million, respectively,
offset, in part, by $0.8 million in cash used to increase inventory. Accounts
receivable decreased as a result of the lower levels of sales in Fiscal 2008
compared to Fiscal 2007. Accounts payable increased as a result of the increase
in our inventory balances between September 30, 2008 and 2007. Prepaid and
other current assets is primarily attributable to federal and state income
taxes that were prepaid at September 30, 2007, and were subsequently refunded
in Fiscal 2008 with no corresponding income tax prepayments made as of
September 30, 2008.
Forward Industries, Inc. Investing activities used $29,000 in
Fiscal 2008 for purchases of property, plant and equipment, primarily computer
and telecommunications hardware and software. In Fiscal 2007, investing
activities used $61,000 for purchases of property, plant and equipment,
primarily computer and telecommunications hardware and software. Financing activities provided $39,000
in Fiscal 2008 from the issuance of common stock upon the exercise of stock
options to purchase 22,000 shares under our 1996 Stock Incentive Plan. In
Fiscal 2007, financing activities used $140,000, consisting of $232,000 used to
purchase 70,000 shares of the Companys common stock in open market purchases offset
in part by $93,000 generated from the issuance of common stock upon the
exercise of stock options to purchase 53,000 shares under our 1996 Stock
Incentive Plan. At September 30, 2008, our current
ratio (current assets divided by current liabilities) was 10.6; our quick ratio
(current assets less inventories divided by current liabilities) was 10.1; and
our working capital (current assets less current liabilities) was $23.1
million. As of such date, we had no short or long-term debt outstanding. Our primary source of liquidity is
our cash on hand. The primary demands on our working capital are: operating
losses and accounts payable arising in the ordinary course of business, the
most significant of which arise when our customers place orders and we order
from our suppliers. Historically, our sources of liquidity have been adequate
to satisfy working capital requirements arising in the ordinary course of
business. We anticipate that our liquidity and financial resources for the ensuing
fiscal year will be adequate to manage our financial requirements. See Trends
in Results of Operations for a discussion of anticipated increases in selling,
general, and administrative expense. In March 2008, Forward and its
wholly-owned U.S. subsidiary, Koszegi Industries, Inc. elected not to renew their
credit facility with a U.S. bank that provided for a committed line of credit
in the maximum amount of $3.0 million, including a $1.5 million sub-limit for
letters of credit. Accordingly, this credit facility expired March 30, 2008.
There were no borrowings or letter of credit obligations outstanding under this
facility during the fiscal year ended September 30, 2008. See Notes 5 and 6 to
the audited consolidated Financial Statements. In February 2003, Forward
Innovations established a credit facility with a Swiss bank that provides for
an uncommitted line of credit in the maximum amount of $400,000. Amounts
borrowed under the facility may be structured as a term loan or loans, with a
maximum repayment Period of 12 months, or as a guarantee facility, or any
combination of the foregoing. Either party may terminate the facility at
any time; however, such termination would not affect the stated maturity of any
term loan outstanding under the facility. Amounts borrowed other than as
a term loan must be settled Periodly or converted into term loans. In
connection with this facility, Forward Innovations has agreed to certain financial
covenants. Amounts drawn under this credit facility bear interest at variable
rates established by the bank (5.35% at exchange rates as of September 30, 2008).
At September 30, 2008, Forward Innovations is contingently liable to the bank under
a letter of credit issued on its behalf in the amount of €224,000 (equal to
approximately $327,000 at exchange rates as of September 30, 2008) in favor of
Forward Innovations' freight forwarder and customs agent in connection with its
logistics operations in The Netherlands. The effect of the issuance of the letter
of credit is to reduce the availability of the credit line in an amount equal
to the face amount of the letter of credit. See Notes 5 and 6 to the audited
consolidated Financial Statements. 28 Forward Industries, Inc. On September 27, 2002, our Board of
Directors authorized the repurchase of up to 400,000 shares of our outstanding
common stock, or approximately 7% of the number of shares then outstanding. On
January 21, 2004, our Board increased the amount of shares authorized for
repurchase to 486,200. Under that authorization, as of September 30, 2008, we
had repurchased an aggregate of 172,603 shares at a cost of approximately $0.4
million but none during Fiscal 2008, compared to 70,000 shares purchased in
Fiscal 2007 at a cost of $232,000. In addition, in connection with an exercise
of outstanding stock options, 72,917 shares were purchased during the 2008
Period in a non-cash transaction by the tender of such shares valued at market
in consideration for the exercise price, which was outside the foregoing
authorizations. Contractual Obligations and Commercial
Commitments The Company
has entered into various contractual obligations and commercial commitments
that, under accounting principles generally accepted in the United States are
not recorded as a liability. The following is a summary of such contractual
cash obligations as of September 30, 2008: Contractual
Obligation or Commitment
Oct 08 Sep 09
Oct 09- Sep 11
Oct 11 Sep 13
Thereafter Employment Agreements $340,000 $85,000 $ -- $ -- Operating Leases 319,000 544,000 105,000 -- Totals $659,000 $629,000 $105,000 $ -- The
Company has not guaranteed the debt of any unconsolidated entity and does not
engage in derivative transactions or maintain any off-balance sheet special
purpose entities. See Note 5 to the audited consolidated Financial Statements
set forth at Item 8 of Part II of this Annual Report. 29 ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK Not
applicable
ITEM 8. FINANCIAL STATEMENTS AND
SUPPLEMENTARY DATA The consolidated financial statements and notes thereto
and supplementary data included in this Annual Report may be found at pages 38
to 58 of this Annual Report. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE None
ITEM 9A. CONTROLS AND PROCEDURES Not
applicable
ITEM 9A(T). CONTROLS AND PROCEDURES Our management is responsible for
establishing and maintaining a system of disclosure controls and procedures (as
defined in Rule 13a-15(e)) under the Exchange Act) that is designed to ensure
that information required to be disclosed by the Company in the reports that we
file or submit under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission's rules and
forms. Disclosure controls and procedures include, without limitation, controls
and procedures designed to ensure that information required to be disclosed by
an issuer in the reports that it files or submits under the Exchange Act is
accumulated and communicated to the issuer's management, including its
principal executive officer or officers and principal financial officer or
officers, or persons performing similar functions, as appropriate to allow
timely decisions regarding required disclosure. In accordance with Exchange Act
Rule 13a-15(b), our management, under the supervision and with the
participation of our Principal Executive Officer and Principal Financial Officer,
performed an evaluation of the effectiveness of the Company's disclosure
controls and procedures as of the end of the period covered by this Report (the
fourth fiscal quarter of Fiscal 2008 in the case of this Annual Report on Form
10-K). Based on that evaluation, the Company's Principal Executive Officer and
Principal Financial Officer concluded that the Company's disclosure controls and
procedures were effective, as of the end of the period covered by this Report (the
fourth fiscal quarter of Fiscal 2008 in the case of this Annual Report on Form
10-K), to provide reasonable assurance that information required to be
disclosed in the Company's reports filed or submitted under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified
in the Commission's rules and forms. Managements Report on Internal Controls Over
Financial Reporting Our Principal Executive Officer and our
Principal Financial Officer are responsible for establishing and maintaining
adequate internal control over financial reporting. Internal control over
financial reporting is defined in Rule 13a-15(f) and 15d-15(f) promulgated
under the Securities Exchange Act of 1934 as a process designed by, or under
the supervision of, our principal executive and principal financial officers
and effected by our board of directors, management and other personnel, to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external reporting purposes in
accordance with generally accepted accounting principles and includes those
policies and procedures that: pertain to the maintenance of records
that in reasonable detail accurately and fairly reflect the transactions and
dispositions of our assets; provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial
statements in accordance with generally accepted accounting principles, and
that our receipts and expenditures are being made only in accordance with
authorizations of management and our directors; and provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of our assets that
could have a material effect on the financial statements. 31 Because of its inherent
limitations, our internal control over financial reporting may not prevent or
detect misstatements. Therefore, even those systems determined to be effective
can provide only reasonable assurance with respect to financial statement
preparation and presentation. Projections of any evaluation of effectiveness
to future periods are subject to the risk that controls may become inadequate
because of changes in conditions, or that the degree of compliance with the
policies or procedures may deteriorate. Our Principal Executive Officer and our
Principal Financial Officer assessed the effectiveness of our internal control over
financial reporting as of September 30, 2008. In making this assessment,
management used the criteria set forth by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO) in Internal
Control Integrated Framework. Based on our assessment, our Principal
Executive Officer and our Principal Financial Officer believe that, as of
September 30, 2008, our internal control over financial reporting is effective
based on those criteria. This report does not include an
attestation report of our independent registered public accounting firm
regarding internal control over financial reporting. Management's report
was not subject to attestation by our independent registered public accounting
firm pursuant to temporary rules of the Securities and Exchange Commission that
permit us to provide only managements report on internal control in this annual
report. This report shall not be deemed to
be filed for purposes of Section 18 of the Exchange Act or otherwise subject to
the liabilities of that section, unless the registrant specifically states that
the report is to be considered filed under the Exchange Act or incorporates
it by reference into a filing under the Securities Act or the Exchange Act. Changes in internal controls Our management, with the
participation our Principal Executive Officer and Principal Financial Officer,
performed an evaluation required by Rule 13a-15(d) of the Exchange Act as to
whether any change in our internal controls over financial reporting (as
defined in Rule 13a-15(f) under the Exchange Act) occurred during the last
fiscal quarter of Fiscal 2008. Based on that evaluation, our Principal
Executive Officer and our Principal Financial Officer concluded that no change
occurred in the Company's internal controls over financial reporting during the
last fiscal quarter of Fiscal 2008 that has materially affected, or is
reasonably likely to materially affect, the Company's internal controls over
financial reporting. ITEM 9B. OTHER INFORMATION None
ITEM 10. DIRECTORS, EXECUTIVE
OFFICERS AND CORPORATE GOVERNANCE The information required by this item regarding
directors and executive officers is incorporated to this Annual Report on Form
10-K by reference to our Definitive Proxy Statement to be filed with the
Securities and Exchange Commission in connection with the Annual Meeting of
Stockholders to be held in 2009 (the 2009 Proxy Statement) under the heading
Election of Directors, Structure and Practices of the Board of Directors,
and Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters;Section 16(a) Beneficial Ownership Reporting Compliance. Information
regarding executive officers also incorporated to this Annual Report on Form
10-K by reference to the 2009 Proxy Statement under the caption Executive
Officers. The information required by this item relating to Corporate
Governance, including Code of Ethics, is incorporated to this Annual Report on
Form 10-K by reference to the 2009 Proxy Statement under the heading Structure
and Practices of the Board of Directors.
ITEM 11. EXECUTIVE COMPENSATION The information required by this item is incorporated
to this Annual Report on Form 10-K by reference to the 2009 Proxy Statement
under the heading Executive Compensation and Related Information.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS
The information required by this item is incorporated
to this Annual Report on Form 10-K by reference to the 2009 Proxy Statement
under the headings Executive Compensation and Related InformationSecurities
Authorized for Issuance Under Equity Compensation Plans and Security
Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters. 32
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS, AND DIRECTOR INDEPENDENCE The information required by this item is incorporated
to this Annual Report on Form 10-K by reference to the 2009 Proxy Statement
under the headings Security Ownership of Certain Beneficial Owners and
Management and Related Stockholder Matters Certain Relationships, Director
Independence, and Related Transactions and Structure and Practices of the
Board of Directors;Board of Directors and Director Independence. ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES The information required by this item is incorporated
to this Annual Report on Form 10-K by reference to the 2009 Proxy Statement
under the heading Matters Relating to Independent Registered Public
Accountants;Principal Accountant Fees and Services. ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES Certificate of Incorporation of the Company as amended
(incorporated by reference to Exhibit 2(a) to the Form 10-SB) Certificate of Amendment of Certificate of
Incorporation filed by the New York Department of State on August 22, 1997
(incorporated by reference to the Company's Annual Report on Form 10-KSB for
the period ended September 30, 1997) By-Laws (incorporated by reference to Exhibit 2(b) to the
Form 10-SB) (now superseded by the Amended and Restated By-Laws) Amendment to By-Laws (Article I, Section 2) (incorporated
by reference to Exhibit 3(c) to the Company's Registration Statement on Form SB-2
filed November 13, 1995 (Reg. No. 33-99338) (the "1995 SB-2 Registration
Statement") (now superseded by the Amended and Restated By-Laws) Amended and Restated By-Laws of Forward
Industries, Inc., as of February 13, 2008 License Agreement, effective as of October 1, 2004,
between Motorola, Inc. and the Company (incorporated by reference to Exhibit
10.1 to the Companys Current Report on Form 8-K, filed October 18, 2004. 1996 Stock Incentive Plan of Forward Industries, Inc.
(incorporated by reference to Exhibit 4 to the Registration Statement on Form
S-8 of the Company, as filed on April 25, 2003). 33
10.3 Amendment One to Employment Agreement effective as of July
12, 2005 between the Company and Douglas W. Sabra (incorporated by reference to
Exhibit 10.1 to the Companys Current Report on Form 8-K filed on July 12,
2005).
10.4 Employment Agreement effective as of October 1, 2005
between the Company and Jerome E. Ball (incorporated by reference to Exhibit
10.1 to the Companys Current Report on Form 8-K filed on December 28, 2005).
10.5 Employment Agreement effective as of October 1, 2005
between the Company and Michael M. Schiffman (incorporated by reference to
Exhibit 10.2 to the Companys Current Report on Form 8-K filed on December 28,
2005).
10.6 Employment Agreement effective as of October 1, 2005
between the Company and Douglas W. Sabra (incorporated by reference to Exhibit
10.3 to the Companys Current Report on Form 8-K filed on December 28, 2005).
10.7 Forward Industries, Inc. 2007 Equity Incentive Plan
(incorporated by reference to Exhibit 4.2 to the Registration Statement on Form
S-8 of the Company, as filed on July 10, 2007).
10.8 Consulting Agreement, dated August 15, 2007, between
Jerome E. Ball and Forward Industries, Inc. (incorporated by reference to
Exhibit 99.2 to the Current Report on Form 8-K of the Company as filed on
August 16, 2007).
10.9 Amendment to Employment Agreement, dated as of January 1,
2008, between the Company and Douglas W. Sabra (incorporated by reference to
Exhibit 10.9 to the Current Report on Form 8-K of the Company as filed on
February 13, 2008)
10.10 Severance and Release Agreement, dated as of December 31,
2007, between the Company and Michael M. Schiffman (incorporated by reference
to Exhibit 10.10 to the Current Report on Form 8-K of the Company as filed on
February 13, 2008).
10.11 License Agreement, dated as of May 22, 2008, between
Motorola, Inc. and Forward Industries, Inc.
10.12 Amended and Restated Employment Agreement, dated as of
August 12, 2008, between the Company and Douglas W. Sabra (incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K as filed on August
12, 2008).
10.13 Employment Agreement, dated as of August 12, 2008, between
the Company and James O. McKenna (incorporated by reference to Exhibit 10.2 to
the Current Report on Form 8-K as filed on August 12, 2008).
21.
SUBSIDIARIES OF THE REGISTRANT
21.1 List of Subsidiaries of Forward Industries, Inc.
23.
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING
FIRM
23.1 Consent of Kaufman, Rossin & Co., P.A. relating to
1996 Stock Incentive Plan
31.
CERTIFICATIONS
PURSUANT TO RULE 13a-14(a) (Section 302 of Sarbanes-Oxley)
31.1 Certification of Douglas W. Sabra
31.2 Certification of James O. McKenna 34 32. CERTIFICATIONS
PURSUANT TO RULE 13a-14(b) (Section 906 of Sarbanes-Oxley) 32.1 Certifications of Douglas W. Sabra and James O. McKenna 35 REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM The
Board of Directors and Shareholders of Forward Industries, Inc. We have audited the accompanying
consolidated balance sheets of Forward Industries, Inc. (the
Company) as of September 30, 2008 and 2007, and the related consolidated
statements of operations, shareholders' equity and cash flows for the years then
ended. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits. We conducted our audits in
accordance with the standards of the Public Company Accounting Oversight Board
(United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion. In our opinion, the consolidated
financial statements referred to above present fairly, in all material
respects, the financial position of Forward Industries, Inc. at
September 30, 2008 and 2007, and the results of its operations and its cash
flows for the years then ended, in conformity with accounting principles
generally accepted in the United States of America. KAUFMAN, ROSSIN & CO., P.A. Miami, Florida December
15, 2008 36 FORWARD INDUSTRIES, INC. CONSOLIDATED
BALANCE SHEETS SEPTEMBER 30, 2008 AND 2007
September 30,
September 30,
2008
2007
Assets
Current assets:
Cash and cash equivalents
$19,862,426
$20,267,791
Accounts receivable, net
3,659,553
4,135,117
Inventories, net
1,363,862
1,072,360
Prepaid expenses and other current
assets
586,632
628,786
Deferred tax asset
49,449
279,741
Total current assets
25,521,922
26,383,795
Property, plant, and equipment, net
124,854
160,644
Deferred tax asset
359,681
29,898
Other assets
98,259
57,538
Total assets
$26,104,716
$26,631,875
Liabilities and shareholders equity
Current liabilities:
Accounts payable
$2,206,630
$1,904,946
Accrued expenses and other current
liabilities
189,827
303,185
Total current liabilities
2,396,457
2,208,131
Commitments and contingencies
Shareholders equity: Preferred stock, par value
$0.01 per share; 4,000,000 shares authorized; no shares issued
--
--
Common stock, par value $0.01 per share;
40,000,000 shares authorized,
8,621,932 and 8,488,932 shares issued,
respectively (including 706,410 and 633,493 held in treasury, respectively )
86,219
84,889
Capital in excess of par value
15,893,480
15,546,046
Treasury stock, 706,410 and 633,493
shares at cost, respectively
(1,260,057)
(1,085,057)
Retained earnings
8,988,617
9,877,866
Total shareholders' equity
23,708,259
24,423,744
Total liabilities and shareholders equity
$26,104,716
$26,631,875 The accompanying notes are an integral part of the
consolidated financial statements. 37 FORWARD INDUSTRIES, INC. CONSOLIDATED
STATEMENTS OF OPERATIONS For the Fiscal Years Ended September 30, 2008 2007 Net
sales $19,973,869 $22,150,513 Cost of goods sold 15,946,020 17,346,913 Gross profit 4,027,849 4,803,600 Operating expenses: Selling 2,868,092 3,641,000 General
and administrative 2,824,962 2,977,660 Total operating expenses 5,693,054 6,618,660 Loss from operations (1,665,205) (1,815,060) Other income: Interest
income 625,959 1,001,091 Other
(expense) income, net (5,623) 11,130 Total other income 620,336 1,012,221 Loss before income tax benefit (1,044,869) (802,839) Income tax benefit (155,620) (249,380) Net loss
$ (889,249) $ (553,459) Net loss per common and common equivalent share Basic $ (0.11) $ (0.07) Diluted $ (0.11) $ (0.07) Weighted average number of common and common
equivalent shares outstanding Basic 7,888,727 7,844,376 Diluted 7,888,727 7,844,376 The accompanying notes are an integral part of the
consolidated financial statements. 38 FORWARD INDUSTRIES, INC. CONSOLIDATED
STATEMENTS OF SHAREHOLDERS EQUITY FOR THE FISCAL YEARS ENDED
SEPTEMBER 30, 2008 AND 2007
Common Stock
Treasury Stock
Total
Number of
Par Value
Additional
Retained
Number of
Amount
Balance at September 30,
2006
$24,950,367
8,424,931
$84,249
$15,287,952
$10,431,325
563,493
($853,159)
Common stock issued upon exercise of stock options
92,750 53,000
530
92,220
--
--
--
Share-based compensation
165,984 11,001
110
165,874
--
--
--
Repurchases
of common stock
(231,898)
--
--
--
--
70,000
(231,898)
Net
loss
(553,459)
--
--
--
(553,459)
--
--
Balance at September 30,
2007
24,423,744
8,488,932
84,889
15,546,046
9,877,866
633,493
(1,085,057)
Common stock issued upon
exercise of stock options
213,500
122,000
1,220
212,280
--
--
--
Share-based compensation
135,264
11,000
110
135,154
--
--
--
Repurchases of common stock
(175,000)
--
--
--
--
72,917
(175,000)
Net loss
(889,249)
--
--
--
(889,249)
--
--
Balance at September 30,
2008
$23,708,259
8,621,932
$86,219
$15,893,480
$8,988,617
706,410
($1,260,057) The accompanying notes are an integral part of the
consolidated financial statements. 39 FORWARD INDUSTRIES, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS For the Fiscal Years Ended September 30, 2008 2007 Operating activities: Net
loss
($889,249) ($553,459) Adjustments to reconcile net loss to net cash (used
in) provided by operating activities: Provision
for obsolete inventory 281,801 613,109 Share-based
compensation 135,264 165,984 Deferred
income taxes
(99,491) (226,639) Depreciation
and amortization 64,782 89,955
Recovery of bad debt expense (20,033) -- Changes
in operating assets and liabilities: Accounts receivable 495,597 1,933,941 Inventories
(823,303) 763,596 Prepaid expenses and other
current assets
292,154 (299,325) Other assets (40,721) (5,606) Accounts payable 301,684 (236,245) Accrued expenses and other
current liabilities (113,358) (387,228)
Net cash
(used in) provided by operating activities (414,873) 1,858,083 Investing activities: Purchases of property,
plant, and equipment (28,992) (60,515)
Net cash
used in investing activities (28,992) (60,515) Financing activities: Proceeds from exercise of
stock options 38,500 92,750 Purchases of treasury stock -- (231,898) Net
cash provided by (used in) financing activities 38,500 (139,148) Net (decrease) increase
in cash and cash equivalents (405,365) 1,658,420
Cash and
cash equivalents at beginning of period 20,267,791 18,609,371
Cash and
cash equivalents at end of period $19,862,426 $20,267,791 Supplemental Disclosures
of Cash Flow Information: Cash
paid during the fiscal year for: Interest -- -- Income
Taxes $11,476 $ 239,079 During
the fiscal year ended September 30, 2008, the Company accepted 72,917 shares
of common stock valued at fair market value on the date of the transaction
from a director as consideration to exercise options to purchase 100,000
shares of common stock as part of a cashless exercise. The accompanying notes are an integral part of the
consolidated financial statements. 40
FORWARD INDUSTRIES,
INC.
NOTES TO
CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 OVERVIEW Forward Industries, Inc. was
incorporated under the laws of the State of New York and began operations in
1961. The Company is engaged in the design, marketing, and distribution of
custom-designed, soft-sided carrying cases and other carry solutions products
made from leather, nylon, vinyl, and other synthetic fabrics. The cases and
other products are used primarily by consumers for the protection and transport
of portable electronic devices such as medical devices and cellular phones. The
Company markets its products as a direct seller to original-equipment-manufacturers
(OEMs) and as a distributor to retailers and wholesalers. Sales to OEM
customers are made in Europe, the APAC Region (meaning the Asia Pacific Region,
encompassing Australia, New Zealand, Hong Kong, Taiwan, China, South Korea,
Japan, Singapore, Malaysia, Thailand, Indonesia, India, the Philippines and
Vietnam), and the Americas (meaning the geographic area, encompassing North,
Central, and South America). Sales to retailers and distributors are made, in
the case of Company branded products, in Europe and, under a non-exclusive
license bearing the Motorola trademarks, in the United States, Canada, and
Europe.
NOTE 2 ACCOUNTING POLICIES Accounting Estimates The preparation of the Company's consolidated
financial statements in conformity with accounting principles generally
accepted in the United States requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosures of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Actual results could differ from those estimates. Basis of Presentation The accompanying consolidated
financial statements include the accounts of Forward Industries, Inc.
("Forward") and its wholly owned subsidiaries (together, the
"Company"). All significant intercompany transactions and balances
have been eliminated in consolidation. Cash Equivalents Cash and cash equivalents consist primarily of cash on
deposit, highly liquid money market accounts, and certificates of deposit with original
contractual maturities of three months or less. The Company minimizes its
credit risk associated with cash and cash equivalents by investing in high
quality instruments and by periodically evaluating the credit quality of the
primary financial institution issuers of such instruments. The Company holds
cash and cash equivalents at major financial institutions in the United States,
which cash amounts often exceed FDIC insured limits, and in Europe.
Historically, the Company has not experienced any losses due to such cash
concentrations. Accounts Receivable Accounts receivable consist of unsecured trade
accounts with various customers. The Company performs ongoing credit
evaluations of its customers and believes that adequate allowances for any
uncollectible receivables are maintained. Credit terms to the majority of our customers
are generally net thirty (30) days to net sixty (60) days, however, certain
customers, particularly the Companys largest, have extended payment terms up
to 90 days. The Company has not historically experienced significant losses in
extending credit to customers. At September 30, 2008 and 2007, the allowance
for doubtful accounts was approximately $10,000 and $47,000, respectively. 41
NOTE 2 ACCOUNTING
POLICIES (CONTINUED) Inventories Inventories consist
primarily of finished goods and are stated at the lower of cost (determined by
the first-in, first-out method) or market. Based on managements estimates, an
allowance is made to reduce excess, obsolete, or otherwise un-saleable
inventories to net realizable value. The allowance is established through
charges to cost of goods sold on the Companys consolidated statements of
operations. Reserved inventory that is disposed of is charged against the
allowance. Managements estimates in determining the adequacy of the allowance
are based upon several factors, including analyses of inventory levels,
historical loss trends, sales history, and projections of future sales demand.
The Companys estimates of the allowance, as well as recoveries of reserved
inventory, may change from time to time based on managements assessments, and
such changes could be material. At September 30, 2008 and 2007, the allowance
for obsolete inventory was approximately $168,000 and $558,000, respectively. Property, Plant and Equipment Property, plant and
equipment consist of furniture, fixtures and equipment, and leasehold
improvements and are recorded at cost. Expenditures for major additions and
improvements are capitalized, and minor replacements, maintenance, and repairs
are charged to expense as incurred. When property, plant and equipment are
retired or otherwise disposed of, the cost and accumulated depreciation are
removed from the accounts and any resulting gain or loss is included in the
results of operations for the respective period. Depreciation is provided over
the estimated useful lives of the related assets using the straight-line method
for financial statement purposes. The estimated useful life for furniture,
fixtures and equipment ranges from three to ten years. Amortization of
leasehold improvements is computed using the straight-line method over the
shorter of the remaining lease term or the estimated useful lives of the
improvements. For the fiscal years ended September 30, 2008 and 2007, the
Company recorded approximately $65,000 and $90,000 of depreciation expense,
respectively. Income Taxes The Company accounts for
its income taxes in accordance with the provisions of Statement of Financial
Accounting Standard (SFAS) No. 109, Accounting for Income Taxes (SFAS
109), which requires, among other things, recognition of future tax benefits
and liabilities measured at enacted rates attributable to temporary differences
between financial statement and income tax bases of assets and liabilities and
to tax net operating loss carryforwards to the extent that realization of these
benefits is more likely than not. The Company periodically evaluates the
realizability of its net deferred tax assets. Revenue Recognition In accordance with the
requirements of Staff Accounting Bulletin (SAB) No. 104, Revenue Recognition in
Financial Statements, the Company generally recognizes revenue from product
sales to customers when: products that do not require further services by the
Company are shipped, there are no uncertainties surrounding customer
acceptance, and collectibility is reasonably assured. Supplier Rebates Emerging Issues Task Force (EITF)
Issue No. 02-16, Accounting by a Customer (Including a Reseller) for Certain
Consideration Received from a Vendor, permits recognition of a rebate or refund
of a specified amount of cash consideration that is payable if the customer
completes a specified cumulative level of purchases. The Company has entered
into agreements with several of its suppliers that grant the Company a rebate
based on its level of purchases made during each fiscal quarter. In lieu of a
cash payment from these suppliers the Company generally receives a credit memo.
The Company reduces accounts payable to the supplier, inventory, and cost of
goods sold each quarter as the Company earns the rebates. For the fiscal years
ended September 30, 2008 and 2007, the cumulative amounts of such quarterly
rebates were approximately $451,000 and $504,000, respectively. The
quarterly rebates are net of amounts allocated to unsold inventories and are
reflected in the accompanying consolidated statements of operations as a
reduction of cost of goods sold. 42
NOTE 2 ACCOUNTING
POLICIES (CONTINUED) Shipping and Handling Costs The Company expenses shipping and handling costs as a
component of cost of goods sold. Advertising Expenses Advertising costs, consisting
primarily of samples and product brochures, are expensed as incurred. Advertising
costs are included in selling expenses in the accompanying consolidated
statements of operations and amounted to approximately $60,000 and $80,000 for
the years ended September 30, 2008 and 2007, respectively. Foreign Currency Transactions The functional currency of the
Company and its wholly owned foreign subsidiaries is the U.S. dollar. Foreign
currency transactions may generate receivables or payables that are fixed in
terms of the amount of foreign currency that will be received or paid. Fluctuations
in exchange rates between the functional currency and the currency in which a
transaction is denominated increases or decreases the expected amount of
functional currency cash flows upon settlement of the transaction. These
increases or decreases in expected functional currency cash flows are foreign
currency transaction gains or losses that are included in other income
(expense), net in the accompanying consolidated statements of operations. The
net (loss) gain from foreign currency transactions and translations was
approximately ($9,000) and $11,000 for the fiscal years ended September 30,
2008 and 2007, respectively. Comprehensive Loss For the fiscal years ended
September 30, 2008 and 2007, the Company did not have any components of
comprehensive loss other than net loss. Recent Accounting Pronouncements In September 2006, the FASB issued
Statement of Financial Accounting Standards No. 157, Fair Value Measurements
("SFAS No. 157"). SFAS No. 157 defines fair value, establishes a
framework for measuring fair value in generally accepted accounting principles
and expands disclosure about fair value measurements. SFAS No. 157 applies
under other accounting pronouncements that require or permit fair value
measurements, the FASB having previously concluded in those accounting
pronouncements that fair value is the relevant measurement attribute. Accordingly,
SFAS No. 157 does not require any new fair value measurements. SFAS No. 157 is
effective for fiscal years beginning after December 15, 2007. The Company is in
the process of evaluating the impact, if any, of adoption of SFAS No. 157 will
have on its consolidated financial statements. In February 2007, the FASB
issued Statement of Financial Accounting Standards No. 159, Fair Value
Option for Financial Assets and Financial Liabilities (SFAS No. 159),
which gives companies the option to measure eligible financial assets,
financial liabilities and firm commitments at fair value (i.e., the fair value
option), on an instrument-by-instrument basis, that are otherwise not permitted
to be accounted for at fair value under other accounting standards. The
election to use the fair value option is available when an entity first
recognizes a financial asset or financial liability or upon entering into a
firm commitment. Subsequent changes in fair value must be recorded in earnings.
SFAS No. 159 is effective for financial statements issued for fiscal years
beginning after November 15, 2007. The Company is in the process of
evaluating the impact, if any, of adoption of SFAS No. 159 will have on its
consolidated financial statements. 43
NOTE 2 ACCOUNTING
POLICIES (CONTINUED) Recent Accounting Pronouncements In December 2007, the FASB issued
FASB Statement No. 141 (revised 2007), Business Combinations
("SFAS 141(R)"). SFAS 141(R) requires that the fair value
of the purchase price of an acquisition including the issuance of equity
securities be determined on the acquisition date; requires that all assets,
liabilities, noncontrolling interests, contingent consideration, contingencies,
and in-process research and development costs of an acquired business be
recorded at fair value at the acquisition date; requires that acquisition costs
generally be expensed as incurred; requires that restructuring costs generally
be expensed in periods subsequent to the acquisition date; and requires that
changes in deferred tax asset valuation allowances and acquired income tax
uncertainties after the measurement period impact income tax expense. SFAS 141(R) also expands disclosures
related to business combinations. SFAS 141(R) will be applied
prospectively to business combinations occurring after the beginning of the
Company's fiscal year 2010, except that business combinations consummated prior
to the effective date must apply SFAS 141(R) income tax requirements
immediately upon adoption. The Company is currently evaluating the impact of
SFAS 141(R) related to future acquisitions, if any, on its financial
position, results of operations and cash flows.
NOTE 3 PROPERTY,
PLANT AND EQUIPMENT Property, plant and equipment and related
accumulated depreciation and amortization are summarized in the table below: For the Fiscal Years Ended September 30, 2008 2007 Furniture,
fixtures and equipment $980,469 $951,478 Leasehold
improvements 170,280 170,280 Property, plant and equipment, cost 1,150,749 1,121,758 Less
accumulated depreciation and amortization (1,025,895) (961,114) Property,
plant and equipment, net $124,854 $160,644 NOTE 4 ACCRUED EXPENSES AND
OTHER CURRENT LIABILITIES Accrued expenses and other current
liabilities consist of the following: For the Fiscal Years Ended September
30, 2008 2007 Accrued compensation $153,757 $137,457 Accrued expenses 21,053 76,479 Accrued taxes 12,872 -- Accrued royalties and commissions 2,145 89,249 Accrued expenses and other current liabilities $189,827 $303,185 NOTE 5 DEBT In March 2008, Forward and its
wholly-owned U.S. subsidiary, Koszegi Industries, Inc., elected not to renew their
credit facility with a U.S. bank that provided for a committed line of credit
in the maximum amount of $3.0 million, including a $1.5 million sub-limit for
letters of credit. Accordingly, this credit facility expired March 30, 2008. There
were no borrowings or letter of credit obligations outstanding at any time under
this facility during the fiscal years ended September 30, 2008 and 2007. 44 NOTE 5 DEBT (CONTINUED) In 2003, Forwards wholly-owned
Swiss subsidiary, Forward Innovations GmbH (Forward Innovations), established a
credit facility with a Swiss bank that provides for an uncommitted line of
credit in the maximum amount of $400,000. Amounts borrowed under the facility
may be structured as a term loan or loans, with a maximum repayment period of
12 months, as a letter of credit facility, or as a guarantee facility, or any
combination of the foregoing. Either party may terminate the facility at any
time; however, such termination would not affect the stated maturity of any
term loans outstanding. Amounts borrowed other than as a term loan must be
settled quarterly or converted into term loans. In connection with this
facility, Forward Innovations agreed to certain covenants. Amounts drawn under
this credit facility bear interest at variable rates established by the bank
(5.35% and 5.5% as September 30, 2008 and 2007, respectively). At September
30, 2008, Forward Innovations is contingently liable to the bank in respect of
a letter of credit issued on its behalf in the amount of €224,000 (equal to approximately
$327,000 and $315,000 at currency exchange rates on September 30, 2008 and
2007, respectively) in favor of Forward Innovations freight forwarder and
customs agent in connection with its logistics operations in The Netherlands.
The effect of the issuance of the letter of credit is to reduce the
availability of the credit line in an amount equal to the face amount of the
letter of credit. See Note 6, Commitments and ContingenciesGuarantee
Obligation
NOTE 6 COMMITMENTS
AND CONTINGENCIES Royalty Commitments In May 2008, the Company entered
into a non-exclusive license agreement with Motorola, Inc. (Motorola) that
grants the Company the right to distribute certain Motorola trademarked carry
solution accessory products to wholesale and retail customers in the United
States, Canada, and Europe through March 31, 2009, subject to renewal by mutual
agreement. The license agreement is effective retroactive to January 1, 2008,
following the expiration of a prior license agreement on December 31, 2007.
The grant under the expired license was limited to the EMEA Region and
pertained to traditional Motorola branded handsets; the grant under the new
license expands the licensed territory (although limited to Europe and not the
Middle East or Africa) and covers a broader range of cell phone handsets,
including Motorolas IDEN® brand. In
consideration of the grant, the Company agreed to pay to Motorola a royalty
based upon a percentage of actual net sales of branded accessory products,
subject to payment of minimum royalties (irrespective of actual net sales) in
the amount of $650,000 over the initial 15-month term of the agreement. See
Note 14 Subsequent Events. The Company recorded royalty
expense of approximately $103,000 (which is attributable to the expired
license) for the fiscal year ended September 30, 2008, which represents the
minimum royalties accrued in respect of such period. For the fiscal year ended
September 30, 2007, the Company recorded royalty expense of $404,000, which
represent royalties paid in respect of actual sales and in excess (and in lieu)
of the minimum royalties otherwise payable to Motorola in respect of such
period. The minimum royalty for the fiscal year ended September 30, 2007, was $336,000.
Royalty expense amounts are included in selling expenses in the accompanying
consolidated statements of operations. 45
NOTE 6 COMMITMENTS
AND CONTINGENCIES (CONTINUED) Guarantee Obligation In July 2002, Forward Innovations
and its European logistics provider (freight forwarding and customs agent)
entered into a Representation Agreement whereby, among other things, the
European logistics provider agreed to act as such subsidiary's fiscal
representative in The Netherlands for the purpose of providing services in
connection with any value added tax matters. As part of this agreement, the
subsidiary agreed to provide an undertaking to the logistics provider with
respect to any value added tax liability arising in The Netherlands that the
logistics provider paid on the subsidiary's behalf. Accordingly, in February
2004 such subsidiary entered into a guarantee agreement with a Swiss bank
relating to the repayment of any amount up to €224,000 (equal to approximately
$327,000 and $315,000 at currency exchange rates on September 30, 2008 and
2007, respectively) paid by such bank to the logistics provider pursuant to a
letter of credit that was issued by the bank in favor of the logistics provider
in order to satisfy such undertaking. The subsidiary would be required to
perform under the guarantee only in the event that: (i) a value added tax
liability is imposed on the Company's sales in The Netherlands, (ii) the
logistics provider asserts that it has been called upon in its capacity as
surety by the Dutch Receiver of Taxes to pay such taxes, (iii) the subsidiary
or the Company on its behalf fails or refuses to remit the amount of value
added tax due to the logistics provider, and (iv) the logistics provider makes
a drawing under the letter of credit. Commencing December 31, 2004, and on each
anniversary thereafter until December 31, 2009, it is intended that the bank
letter of credit will be renewed automatically for one-year periods. The
subsidiary has agreed to keep a letter of credit guarantee in place for five
years following the date its relationship terminates with the logistics
provider to satisfy any value added tax liability arising prior to expiration
of the Representation Agreement but asserted by The Netherlands after
expiration. As of September 30, 2008, the Company has not incurred a liability
in connection with this guarantee. Employment Agreements The Company has entered into
employment agreements with Douglas W. Sabra, its President (chief executive
officer), and James O. McKenna, its chief financial officer. Under his amended and restated employment
agreement, Mr. Sabra is employed as the Companys President (Chief Executive Officer)
at an annual salary of $250,000 until December 31, 2009. The agreement
provides for successive one-year renewal terms, unless either party provides
written notice of its intention not to renew the agreement not later than 90
days prior to the end of the term (or renewal period). If Forward gives such
notice and no cause for termination exists and no change of control (as defined
in the agreement) has occurred, subject to certain conditions, Mr. Sabra would
be entitled to receive salary at the then prevailing rate for the greater of six
months or the balance of the term as severance. In connection with his
succession to the office of President in January 2008, the Compensation
Committee of the Companys Board of Directors determined to grant Mr. Sabra
20,000 shares of restricted stock under the 2007 Plan, with a grant date of
January 2, 2008, vesting in equal proportions over three years from the grant
date. Under his amended and restated
agreement, if in circumstances that do not constitute a change of control (as
this term is defined in his agreement) Mr. Sabra terminates the agreement for
good reason, he is entitled to severance of six months at the prevailing salary
rate (or that before reduction thereof if that is the basis of good reason), or
if his employment is terminated without cause, he is entitled to salary at his
prevailing rate for the greater of six months or the balance of the term as
severance. Under his amended and restated agreement, if Mr. Sabras employment
is terminated without cause, or if he terminates his employment for good reason
(as defined in the Amended Agreement), in either case within one year of a
change of control (as defined), he is entitled to receive severance equal to 12
months of salary and immediate vesting of any unvested options and restricted
stock pursuant to applicable equity compensation plans. He would not be able
to terminate for good reason after a change of control as long as he was one of
the three most senior and highly compensated executives in the entity that
survives after a change of control.
Under his agreement Mr.
McKenna is employed as the Companys Chief Financial Officer at an annual
salary of $175,000 per annum until December 31, 2009. The agreement provides
for successive one-year renewal terms, unless either party provides written notice
of its intention not to renew the agreement not later than 90 days prior to the
end of the term (or renewal period). If Forward gives such notice and no cause
for termination exists and no change of control (as defined in the agreement)
has occurred, subject to certain conditions, Mr. McKenna would be entitled to
receive salary at the then prevailing rate for six months as severance. 46
NOTE 6 COMMITMENTS
AND CONTINGENCIES (CONTINUED) Employment Agreements (continued)
Mr. McKenna is also
entitled to six months of severance for termination without cause in
circumstances other than non-renewal and termination for good reason (as
defined in the Agreement) in either case in circumstances not involving a
change in control (as this term is defined in the agreement). If Mr. McKennas
employment is terminated without cause, or if he terminates his employment for
good reason, in either case within one year of a change of control, he is
entitled to receive severance equal to 12 months of salary and immediate vesting
of any unvested options and restricted stock (or other unvested grants)
pursuant to Company equity compensation plans. He would not be entitled to
terminate for good reason after a change of control if he is serving as an
executive in the financial department of the surviving entity after a change of
control. Under their agreements Mr. Sabra and
Mr. McKenna are eligible to earn bonus compensation in each year of the term of
their agreements based on achieving applicable financial targets established in
the first fiscal quarter during the term by the Compensation Committee. Both Mr.
Sabra and Mr. McKenna are entitled to receive customary benefits including
health, life and disability insurance, auto allowances and participation in the
Company's 401K retirement plan. Under their agreements, Mr. Sabra and Mr.
McKenna are subject to the terms of restrictive covenants that prohibit them
individually from competing against the Company, soliciting its employees, or
soliciting its customers, in each case for a period one year after expiration
of the term or any renewal thereof. They are also bound not to disclose
material, non-public information pertaining to the Company after expiration of
the term. Other Agreements Effective October 1, 2005, the
Company entered into an employment agreement with each of Jerome E. Ball and
Michael M. Schiffman to secure their services to Forward as its Chief Executive
Officer/Chairman of the Board and President/Chief Operating Officer,
respectively, during the terms of their respective agreements. These
agreements expired in accordance with their terms on December 31, 2007. In connection with expiration of
his agreement and retirement as Chief Executive Officer, Mr. Ball entered into
an agreement under which the Company was paying him a consulting fee of $10,000 per
month and a separate fee for serving as Chairman of the Board of approximately
$2,100 per month at the time of his death in April 2008. In addition, under
the terms of this agreement, his estate was entitled to payment of a death
benefit of one-half the monthly consulting payments remaining if he died during
the term. Accordingly, the Company made a payment of $100,000 to his estate
on May 9, 2008. During the fiscal year ended September 30, 2008 under this agreement,
Mr. Ball received an aggregate of $40,000 in consulting fees (separate and
apart from the death benefit of $100,000) and approximately $6,250 for
services as Chairman of the Board. These amounts are in addition to salary and
other benefits paid to him during such fiscal year under his employment
agreement and in addition to directors fees Mr. Ball received in respect of
Board meetings held in February 2008. Unexercised stock options to
purchase 10,000 shares of common stock granted to Mr. Ball pursuant to the
2007 Equity Incentive Plan in February 2008 were subject to a vesting period of
one year. On May 1, 2008, the Compensation Committee caused such shares to
immediately vest in order to permit his estate to exercise the options within
one year of the date of his death if the estate elects to do so. In connection with expiration of
his agreement, Mr. Schiffman entered into a severance agreement with the
Company under which Mr. Schiffman was granted a severance package consisting of
$162,500 (paid in full upon execution of the agreement) and a release by the
Company of potential claims. In return, Mr. Schiffman released the Company from
potential claims and agreed to certain modifications of the non-competition and
non-solicitation covenants contained in the employment agreement. 47
NOTE 6 COMMITMENTS
AND CONTINGENCIES (CONTINUED) Lease Commitments The Company
rents certain of its facilities under leases expiring at various dates through
May 2012. Total rent expense for the years ended September 30, 2008 and 2007,
amounted to approximately $313,000 and $280,000, respectively. Minimum future
rental commitments under such leases are summarized below: Fiscal
Year Ended September 30, Amount 2009 $ 319,000 2010 269,000 2011 276,000 2012 105,000 2013 -- Thereafter -- Total
lease commitments $969,000 NOTE 7 SHAREHOLDERS EQUITY Anti-takeover Provisions The Company is authorized to issue
up to 4,000,000 shares of "blank check" preferred stock. The Board of
Directors has the authority and discretion, without shareholder approval, to
issue preferred stock in one or more series for any consideration it deems
appropriate, and to fix the relative rights and preferences thereof including
their redemption, dividend and conversion rights. Stock Repurchase On September 27, 2002, the
Companys Board of Directors authorized the repurchase of up to 400,000 shares
of the Companys outstanding common stock (approximately 7% of the number of
shares then outstanding). On January 21, 2004, the Companys Board increased
the amount of shares authorized for repurchase to 486,200. Under these
authorizations, as of September 30, 2008, the Company had repurchased an
aggregate of 172,603 shares at a cost of approximately $0.4 million, including
70,000 shares in fiscal 2007, but none during fiscal 2008, leaving a balance of
313,597 shares (approximately 4% of the shares outstanding at September 30,
2008) under those authorizations. Separate and apart from these announced
repurchase programs, in March 2008, the Company in effect purchased 72,917
outstanding shares of common stock held by the Companys former Chairman of the
Board and principal executive officer, by accepting such shares at their fair
market value on such date as consideration for his exercise of options to
purchase 100,000 shares of common stock as part of a cashless exercise. See Note
8.
NOTE 8 STOCK
BASED COMPENSATION In May 2007, shareholders of the
Company approved the Forward Industries, Inc. 2007 Equity Incentive Plan (the
2007 Plan), pursuant to which up to 400,000 shares of common stock can be
issued to officers, employees, and non-employee directors of the Company in the
form of grants of restricted common stock and stock options to such persons.
This plan was adopted by the Board of Directors in February 2007. The price at
which restricted common stock may be granted and the exercise price of stock
options granted may not be less than the fair market value of the common stock
at the date of grant. The Companys Compensation Committee administers the
plan. Options generally expire ten years after the date of grant and
restricted stock grants generally vest in equal proportions over three years.
As of September 30, 2008, 250,000 shares of common stock remain available for
grants under the 2007 Plan. 48 NOTE 8 STOCK
BASED COMPENSATION (CONTINUED) The Companys 1996 Stock Incentive
Plan (the 1996 Plan) expired in accordance with its terms in November 2006.
The exercise price of incentive options granted under the 1996 Plan to officers,
employees, and non-employee directors of the Company were required by its
provisions to be equal at least to the fair market value of the common stock at
the date of grant. Options expire ten years after the date of grant and
generally vest in equal proportions over three years. Unexercised options
granted pursuant to the 1996 Plan prior to expiration remain outstanding until
the earlier of exercise or option expiration. Under the 1996 Plan 30,000 fully
vested stock options remain outstanding and unexercised, all at exercise prices
higher than the fair market value of the stock at September 30, 2008. Stock Option Awards In February 2008 and August 2007, the
Compensation Committee granted stock option awards to purchase 60,000 shares of
common stock and 40,000 shares of common stock, respectively, in the aggregate,
to the Companys non-employee directors under the 2007 Plan. These awards are
subject to a continued service condition and vest on the anniversary date the
awards were granted. Accordingly, the Company recognized approximately $66,000
and $99,000 of compensation cost related to these stock option awards in its
consolidated statements of operations for the fiscal years ended September 30,
3008 and 2007, respectively. The
following table summarizes stock option activity under the 2007 Plan and the
1996 Plan during the fiscal years ended September 30, 2008 and 2007: Shares Weighted Average Weighted Average Aggregate Outstanding at September 30, 2006 248,750 $4.15 Granted 40,000 2.85 Exercised (53,000) 1.75 Forfeited -- -- Expired (3,750) 2.00 Outstanding at September 30, 2007 232,000* $4.51 Granted 60,000* 2.20 Exercised (122,000)* 1.75 Forfeited** -- -- Expired (60,000)* 8.26 Outstanding at September 30, 2008 110,000 $4.26 8.35 $0 Options
vested and exercisable at September 30, 2008 60,000 $5.98 6.66 -- *Of these
amounts, 30,000 stock options were outstanding, no options were granted, 122,000
options were exercised, 40,000 options expired pursuant to the 1996 Plan. **Options to purchase 10,000 shares of common stock
granted to a non-employee director who died in April 2008 would under normal
terms of the grant have lapsed upon death. The Compensation Committee
determined to waive that forfeiture provision for a period of one year from the
date of death. 49
NOTE 8 STOCK
BASED COMPENSATION (CONTINUED) Stock Option Awards (continued) The
table below provides additional information regarding stock option awards that
were outstanding and exercisable at September 30, 2008. Stock Options Outstanding and
Exercisable Range of Exercise Prices Outstanding at Weighted Average Weighted Average $2.20 to $2.85 30,000 6.08 $2.63 $6.02 20,000 7.59 $6.02 $15.91 10,000 6.56 $15.91 60,000 The
fair value of each stock option on the date of grant was estimated using a
Black-Scholes option-pricing formula applying the following assumptions for
each respective period: For the Fiscal Years Ended September 30, 2008 2007 Expected
term (in years) 5.0 5.0 Risk-free
interest rate 3.78% 5.24% Expected
volatility 80.2% 86.1% Expected
dividend yield 0% 0% The expected term
represents the period over which the stock option awards are expected to be
outstanding. The Company based the risk-free interest rate used in its
assumptions on the implied yield currently available on U.S. Treasury
zero-coupon issues with a remaining term equivalent to the awards expected
term. The volatility factor used in the Companys assumptions is based on the
historical price of its stock over the most recent period commensurate with the
expected term of the award. The Company historically has not paid any dividends
on its common stock and had no intention to do so on the date the share-based
awards were granted. Accordingly, the Company used a dividend yield of zero in
its assumptions. The Company estimates the expected term, volatility and
forfeitures of share-based awards based upon historical data. Restricted Stock Awards Under the 2007 Plan during
the fiscal years ended September 30, 2008 and 2007, the Compensation Committee
approved and granted 36,500 and 33,000 restricted stock awards, respectively,
or 69,500 shares of restricted stock, in the aggregate, to certain key
employees, one of whom also serves as a director. Vesting of the restricted
stock is generally subject to a continued service condition with one-third of
the awards vesting each year on the anniversary date the awards were granted
typically commencing on the first such anniversary date. The fair value of the
awards granted was equal to the market value of the Companys common stock on
the grant date. During the fiscal years ended September 30, 2008 and 2007, the
Company recognized approximately $70,000 and $67,000, respectively, of
compensation cost in its consolidated statements of operations related to
restricted stock awards. 50
NOTE 8 STOCK
BASED COMPENSATION (CONTINUED) Restricted Stock Awards (continued) The
following table summarizes restricted stock activity under the 2007 Plan during
the fiscal years ended September 30, 2008 and 2007. Shares Weighted Non-vested balance at September 30,
2006 -- -- Changes during the period: Shares granted 33,000 $3.49 Shares vested (11,001) $3.49 Shares forfeited -- -- Non-vested balance at September 30,
2007 21,999 $3.49 Changes during the period: Shares granted 36,500 $2.37 Shares vested (11,001) $3.49 Shares forfeited -- -- Non-vested balance at September 30, 2008 47,498 $2.65 As of September 30,
2008, there was approximately $66,000 of total unrecognized compensation cost
related to 47,498 shares of unvested restricted stock awards (reflected in the
table above) granted under the 2007 Equity Incentive Plan. That cost is
expected to be recognized over the remainder of the requisite service (vesting)
period. Warrants As of September 30,
2008, warrants to purchase 75,000 shares of the Companys common stock at an
exercise price of $1.75 were outstanding. By their terms these warrants expire
90 days after a registration statement registering common stock (other than
pursuant to employee benefit plans) is declared effective by the Securities and
Exchange Commission. As of September 30, 2008, no such registration statement
has been filed with the Securities and Exchange Commission.
NOTE 9 INCOME
TAXES For the
fiscal years ended September 30, 2008 and 2007, the Company recorded a benefit
from income taxes of approximately $156,000 and $249,000, respectively. The
Companys income tax benefit consists of the following United States and
foreign components: For the Fiscal Years Ended September 30, 2008 2007 U.S.
Federal and State
Current $ -- $ --
Deferred (110,167) (229,843) Foreign:
Current -- --
Deferred (45,453) (19,537) Income tax benefit ($155,620) ($249,380)
51
NOTE 9 INCOME
TAXES (CONTINUED) The deferred
tax benefit is the change in the deferred tax assets and liabilities
representing the tax consequences of changes in the amounts of temporary
differences, net operating loss carryforwards and changes in tax rates during
the fiscal year. The Companys deferred tax assets and liabilities are
comprised of the following: As of September 30, 2008 2007 Deferred
tax assets: Net
operating losses $351,565 $146,737 Excess
tax over book basis in inventory 101,759 202,950 Share-based
compensation 20,618 45,577 Allowance
for doubtful accounts -- 7,156 473,942 402,420 Deferred
tax liabilities: Prepaid
insurance (52,310) (77,102) Depreciation (12,502) (15,679) (64,812) (92,781) Net
deferred tax assets $409,130 $309,639 The Company believes that it is
more likely than not that the deferred tax assets will be realized through
future taxable income. Accordingly, the Company has not recorded a valuation
allowance against its deferred tax assets as of September 30, 2008. The Company
had cumulative net operating losses of approximately $795,000 and $882,000 for
United States and foreign income tax purposes, respectively, as of September
30, 2008. The
significant elements contributing to the difference between the federal
statutory tax rate and the Companys effective tax rate are as follows: For the Fiscal Years Ended September 30, 2008 2007 Statutory
federal income tax rate 34.0% 34.0% State
taxes, net of federal benefit 1.8% 1.8% Non-deductible
items (1.1%) (1.1%) Foreign
tax rate differential (21.5%) (7.9%) Other 1.8% 4.3% Effective tax rate 15.0% 31.1% Effective June
2001, undistributed earnings of the Companys Swiss subsidiary are considered
to be permanently invested; therefore, in accordance with SFAS No. 109, no
provision for U.S. Federal and state income taxes on those earnings has been
provided. At September 30, 2008 and 2007, the Companys Swiss subsidiary had
approximately $4,303,000 and $4,774,000 of accumulated undistributed earnings,
respectively.
NOTE 10 LOSS
PER SHARE Basic per share data for each
period presented is computed using the weighted-average number of shares of
common stock outstanding during each period. Diluted per share data is
computed using the weighted-average number of common and dilutive
common-equivalent shares outstanding during each period. Dilutive
common-equivalent shares consist of shares that would be issued upon the
exercise of stock options and warrants, computed using the treasury stock
method. Loss per share data for the fiscal years ended September 30, 2008 and
2007, excludes all outstanding common equivalent shares as inclusion of such
shares would be anti-dilutive. 52
NOTE 10 LOSS
PER SHARE (CONTINUED) In accordance with the contingently
issuable shares provision of SFAS 128, 47,498 and 21,999 shares of
service-based common stock awards (restricted stock) were excluded from the
calculation of diluted loss per share for the fiscal year ended September 30,
2008 and 2007, respectively.
NOTE 11 401(K)
PLAN The Company maintains a 401(k)
benefit plan allowing eligible U.S.-based employees to contribute a portion of
their salary in an amount up to the annual maximum amounts as set periodically
by the Internal Revenue Service. In accordance with the Safe Harbor provisions,
the Company has elected to match 100% on the first 4% of eligible contributions
by its employees. The Company's matching contributions were approximately $48,000
and $75,000 for the years ended September 30, 2008 and 2007, respectively, and
are reflected in the accompanying consolidated statements of operations. The
Company's contributions vest immediately.
NOTE 12 LEGAL PROCEDINGS
From time to time, the Company may
become a party to legal actions or proceedings in the ordinary course of its
business. As of September 30, 2008, there were no such actions or proceedings,
either individually or in the aggregate, that, if decided adversely to the
Companys interests, the Company believes would be material to its business.
NOTE 13 OPERATING
SEGMENT INFORMATION The Company operates in a single
segment: the supply of carrying solutions for portable electronic devices. This
carrying-solution segment includes the design, marketing, and distribution of products
to its customers that include manufacturers of consumer hand held wireless
telecommunications and medical monitoring devices. The Companys carrying
solution segment operates in geographic regions that include primarily the
APAC, the Americas, and Europe. Geographic regions are defined based primarily
on the location of the customer. Revenues from External Customers The
following table presents net sales related to these geographic segments. (dollars in thousands) Year Ended September 30, 2008 2007 APAC $10,026 $10,945 Americas 6,080 6,690 Europe* 3,868 4,516 Total
net sales $19,974 $22,151 *In the fiscal year ended September 30, 2007, net sales
in Europe also included EMEA sales, Europe, Middle East, and Africa. Long-Lived Assets (Net
of Accumulated Depreciation and Amortization) Identifiable long-lived assets, consisting entirely of
property, plant and equipment, by geographic region are as follows: (dollars in thousands) Year Ended September 30, 2008 2007 APAC $25 $39 Americas 94 110 Europe 6 12 Total
long-lived assets (net) $125 $161 53
NOTE 13 OPERATING
SEGMENT INFORMATION (CONTINUED) Supplier
Concentration The Company procures all of its
supply of carrying solutions products from independent suppliers, each of which
is a Chinese business entity located in China. Depending on the product, the
Company may require several different suppliers to furnish component parts or
pieces. The Company purchased approximately 95% and 69% of its products from
seven such suppliers in the fiscal years ended September 30, 2008 and 2007,
respectively. One supplier accounted for approximately 43% and 20% of the
Companys product purchases in the fiscal years ended September 30, 2008 and 2007,
respectively. Major
Customers The following customers or their
affiliates accounted for more than ten percent of the Companys net sales, by
geographic region: Fiscal Year Ended September 30, 2008 Americas EMEA APAC Total Company Lifescan, Inc 5% 2% 88% 46% Abbott Laboratories 40% 35% 2% 20% Roche
Diagnostics -- 47% -- 9% Intermec
Corporation 12% -- 5% 6% Fiscal Year Ended September 30, 2007 Americas EMEA APAC Total Company Lifescan, Inc --% --% 64% 32% Motorola Inc. * 29% 19% 30% 27% Abbott
Laboratories 27% 22% 1% 13% * Motorola percentages do not include the
sale of licensed Motorola products made by the Company to third parties under
its license agreement with Motorola. Other than the customers presented in the
table above, no other single customer comprised more than 10% of the Companys
net sales. Two customers accounted for approximately
74% and 75% of the Companys accounts receivable at September 30, 2008 and
September 30, 2007, respectively.
NOTE 14 SUBSEQUENT
EVENTS As of September 30, 3008, the
Company and Motorola were in negotiations to amend the license agreement with
respect to royalty provisions. In December 2008 the Company and Motorola
reached an agreement under which Motorola waives payment of all minimum
royalties due under the license and reduces the royalty rate in respect of the
term that expires March 31, 2009. Both parties expect to memorialize this
agreement by amending the license agreement in the very near term. Minimum royalties
under the license amounted to $650,000, of which the Company had accrued
approximately $271,000 as of September 30, 2008. However, as a result of the
agreement reached in December 2008, the Company reduced this payable to zero
with a corresponding adjustment to its selling expenses on its statement of
operations for fiscal year ended September 30, 2008. 54
NOTE 14 SUBSEQUENT
EVENTS (CONTINUED) As of September 30, 2008, the
Company and Motorola were also in negotiations regarding the Companys claim
that Motorola was obligated to the Company for certain inventory that the
Company manufactured to order and in some cases stored at Motorolas hubs. As
of September 30, 2008, the Company had fully reserved for this inventory and
disposed of it with Motorolas consent. In December 2008 the Company and Motorola
reached a settlement of these issues under which Motorola has agreed to pay us
$250,000 in respect of the inventory. Both parties expect to memorialize and
perform this agreement in the very near term. Accordingly, the Company has recorded
a receivable for the settlement amount on its balance sheet as of September 30,
2008, a reduction to its obsolete inventory expense in its consolidated
statements of operations as of September 30, 2008, and corresponding
adjustments in its Statement of Cash Flows for the fiscal year ended September
30, 2008. 55 Pursuant to the requirements of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned, hereunto duly authorized. Dated: December 15, 2008 FORWARD
INDUSTRIES, INC. (Registrant) By:
/s/ Douglas W. Sabra Douglas
W. Sabra President and Acting
Chairman (Principal
Executive Officer) By:
/s/James O. McKenna James
O. McKenna Vice
President, Chief Financial Officer and (Principal
Financial and Accounting Officer) In accordance with the Securities
Exchange Act of 1934, this report has been signed below by the following
persons on behalf of the registrant and in the capacities and on the dates
indicated:
/s/Douglas
W. Sabra
Douglas
W. Sabra
Chief
Executive Officer and
Acting
Chairman of the Board
(Principal
Executive Officer)
/s/James
O. McKenna
James
O. McKenna
Chief Financial
Officer and Vice President (Principal Financial Officer and Principal
Accounting Officer)
/s/John
Chiste
John Chiste
Director
/s/Bruce
Galloway
Bruce
Galloway
Director
/s/Fred
Hamilton
Fred
Hamilton
Director
/s/Louis
Lipschitz
Louis Lipschitz
Director
/s/Michael
Schiffman
Michael Schiffman
Director
56 Exhibit Index Certificate of Incorporation of the Company as amended
(incorporated by reference to Exhibit 2(a) to the Form 10-SB) Certificate of Amendment of Certificate of
Incorporation filed by the New York Department of State on August 22, 1997
(incorporated by reference to the Company's Annual Report on Form 10-KSB for
the period ended September 30, 1997) By-Laws (incorporated by reference to Exhibit 2(b) to the
Form 10-SB) (now superseded by the Amended and Restated By-Laws) Amendment to By-Laws (Article I, Section 2) (incorporated
by reference to Exhibit 3(c) to the Company's Registration Statement on Form SB-2
filed November 13, 1995 (Reg. No. 33-99338) (the "1995 SB-2 Registration
Statement") (now superseded by the Amended and Restated By-Laws) Amended and Restated By-Laws of Forward
Industries, Inc., as of February 13, 2008 License Agreement, effective as of October 1, 2004,
between Motorola, Inc. and the Company (incorporated by reference to Exhibit
10.1 to the Companys Current Report on Form 8-K, filed October 18, 2004. 1996 Stock Incentive Plan of Forward Industries, Inc.
(incorporated by reference to Exhibit 4 to the Registration Statement on Form
S-8 of the Company, as filed on April 25, 2003).
10.3 Amendment One to Employment Agreement effective as of July
12, 2005 between the Company and Douglas W. Sabra (incorporated by reference to
Exhibit 10.1 to the Companys Current Report on Form 8-K filed on July 12,
2005).
10.4 Employment Agreement effective as of October 1, 2005
between the Company and Jerome E. Ball (incorporated by reference to Exhibit
10.1 to the Companys Current Report on Form 8-K filed on December 28, 2005).
10.5 Employment Agreement effective as of October 1, 2005
between the Company and Michael M. Schiffman (incorporated by reference to
Exhibit 10.2 to the Companys Current Report on Form 8-K filed on December 28,
2005).
10.6 Employment Agreement effective as of October 1, 2005
between the Company and Douglas W. Sabra (incorporated by reference to Exhibit
10.3 to the Companys Current Report on Form 8-K filed on December 28, 2005).
10.7 Forward Industries, Inc. 2007 Equity Incentive Plan
(incorporated by reference to Exhibit 4.2 to the Registration Statement on Form
S-8 of the Company, as filed on July 10, 2007).
10.8 Consulting Agreement, dated August 15, 2007, between
Jerome E. Ball and Forward Industries, Inc. (incorporated by reference to
Exhibit 99.2 to the Current Report on Form 8-K of the Company as filed on
August 16, 2007).
10.9 Amendment to Employment Agreement, dated as of January 1,
2008, between the Company and Douglas W. Sabra (incorporated by reference to
Exhibit 10.9 to the Current Report on Form 8-K of the Company as filed on
February 13, 2008) 57
10.10 Severance and Release Agreement, dated as of December 31,
2007, between the Company and Michael M. Schiffman (incorporated by reference
to Exhibit 10.10 to the Current Report on Form 8-K of the Company as filed on
February 13, 2008).
10.11 License Agreement, dated as of May 22, 2008, between
Motorola, Inc. and Forward Industries, Inc.
10.12 Amended and Restated Employment Agreement, dated as of
August 12, 2008, between the Company and Douglas W. Sabra
10.13 Employment Agreement, dated as of August 12, 2008, between
the Company and James O. McKenna
21.
SUBSIDIARIES OF THE REGISTRANT
21.1 List of Subsidiaries of Forward Industries, Inc.
23.
CONSENT OF INDEPENDENT REGISTERED ACCOUNTING
FIRM
23.1 Consent of Kaufman, Rossin & Co., P.A. relating to
1996 Stock Incentive Plan
31.
CERTIFICATIONS
PURSUANT TO RULE 13a-14(a) (Section 302 of Sarbanes-Oxley)
31.1 Certification of Douglas W. Sabra
31.2 Certification of James O. McKenna Certifications of Douglas W. Sabra and James O. McKenna
58
MOTOROLA, INC. AND FORWARD INDUSTRIES,
INC.
TABLE OF CONTENTS
1. DEFINITIONS
2. GRANT OF LICENSE 4 7 7
4. APPROVED MANUFACTURERS 9
5. APPEARANCE OF TRADEMARKS
TRADEMARK NOTICES 10
6. PROTECTION OF TRADEMARKS
7. PRODUCT WARRANTY
AND SUPPORT
8. ROYALTIES AND
REPORTS
9. SALES AND
MARKETING
10. TERM AND TERMINATION 11 12 13 15 16
11. POST TERMINATION RIGHTS AND OBLIGATIONS
12. CONFIDENTIALITY AND
INTELLECTUAL PROPERTY
13. EXPORT
14. REPRESENTATIONS AND
WARRANTIES
15. INDEMNITY AND INSURANCE 18 20 22 22 23
16. DISPUTE RESOLUTION 24
17. FORCE MAJEURE
18. LIMITATION OF LIABILITY 25 26
19. COMPLIANCE WITH LAWS 26
20. INTELLECTUAL PROPERTY 26
21. PRESS RELEASES 27
22. ETHICS AND CONFLICTS OF INTEREST
23. NOTICES 27 27 24.
ASSIGNMENT OF RIGHTS AND SUBLICENSE 28
25. FREEDOM OF ACTION 29 26. APPROVALS
27. WAIVER OF DEFAULT OR OTHER RIGHTS
28. SEVERABILITY
29. SECTION HEADINGS
30. EXHIBITS
31. SURVIVAL
32. TIME IS OF THE ESSENCE
33. RIGHTS CUMULATIVE
34. ENTIRE AGREEMENT 35. GOVERNING LAW EXHIBITS A, Products, Territory,
Rates and Term B. Trademarks C. Trademark Use
Guidelines D. Specifications E. Sample Manufacturers
Agreement F. Product Warranty G. Licensor Exclusive
Accounts H. Compliance with Laws
and Ethical Standards LICENSE AGREEMENT
THIS AGREEMENT is made between:
(1) MOTOROLA,
INC., a Delaware corporation, having its principal office at 1303 East Algonquin Road, Schaumburg, Illinois 60196, USA (including its subsidiaries and
affiliates, Motorola or Licensor); and (2) FORWARD INDUSTRIES, INC.,
a New York corporation, having its principal office at 1801 Green Road, Pompano Beach, Florida 33064, (Licensee). &nb
sp;
with reference to the
following recitals: ,A. Motorola is the owner of
certain Trademarks, including MOTOROLA and the Stylized M logo. The Trademarks
constitute valuable rights owned and used by Motorola in conducting its
business and designating the origin or sponsorship of distinctive branded
products by Motorola; B. Motorola wishes to
license certain Trademarks for use in connection with accessories for cellular
telephones; C. Licensee wishes to use
the Trademarks upon and in connection with the manufacture, sale, marketing,
and distribution of certain accessories for cellular telephones; D. Motorola desires to
protect the integrity of its Trademarks and to preserve its right to label its
products with its Trademarks so as to avoid consumer confusion and to
distinguish its products from those of its competitors; E. Motorola and Licensee are parties to a
license agreement entered into as of October 1, 2004, that expired by its terms December 31, 2007 (the Prior Agreement); and F. Licensee and Motorola
agree that certain restrictions on Licensees use of the Trademarks are
necessary to ensure that the Trademarks are not diluted or subjected to
disrepute in the course of Licensees use of the Trademarks, that Motorolas
reputation is not subjected to disrepute, and that Motorolas rights in the
Trademarks and ownership of the Trademarks are preserved. NOW, THEREFORE, in
consideration of the mutual promises of this Agreement, the parties agree as
follows:
1. DEFINITIONS
1.1
In
this Agreement:
Affiliates means affiliated,
associated or subsidiary companies of Motorola or Licensee (as applicable) or
persons or other entities with a common ownership, common management, or
interest in or interlocking directorate with, Licensee or Motorola. Approved Sample
means
Product or Product Materials which have been delivered to and approved in
writing by Motorolas Representative as provided in Section 3 of this
Agreement. Approved Manufacturer means
a contract manufacturer or supplier to Licensee of the Product or Product
Materials that has been approved by Motorola and that has executed a
Manufacturers Agreement incorporating all of the terms of the Manufacturers
Agreement set forth in Exhibit E.
Business Day means a day that is not a Saturday or
Sunday or a legal holiday and on which banks are not required or permitted by
law or other governmental action to close in Illinois or Florida. Days means calendar days. Derivative Works means any computer
program, work, industrial design, ornamental design, product, service,
improvement, supplement, modification, alteration, addition, revision,
enhancement, new version, new edition, remake, sequel, translation, adaptation,
design, plot, theme, character, story line, concept, scene, audio-visual
display, interface element or aspect, in any medium, format, use or form
whatsoever, whether interactive or linear and whether now known or unknown
(including but not limited to sound recordings, phonorecords, computer-assisted
media, games, books, magazines, periodicals, merchandise, animation, home
videos, radio, motion pictures, cable and television), that is derived directly
or indirectly, from any Motorola Intellectual Property, or any part or aspect
of any thereof, or that uses or incorporates any of the Motorola Intellectual
Property, or any part or aspect of any thereof. Effective Date means January 1, 2008. Gross Sales means the total amount
billed by Licensee for Products sold to its customers, other than Motorola, its
subsidiaries and its affiliates. Intellectual Property Rights means any and all (by whatever name or term known or designated)
tangible and intangible and now known or hereafter existing: (i) rights
associated with works of authorship throughout the universe, including but not
limited to copyrights (including without limitation the sole and exclusive
right to prepare Derivative Works of copyrighted works and to copy,
manufacture, reproduce, lend, distribute copies of, modify, publicly perform
and publicly display the copyrighted work and all derivative works thereof),
moral rights (including without limitation any right to identification of
authorship and any limitation on subsequent modification) and mask-works; (ii) rights
in and relating to the protection of trademarks, service marks, trade names,
goodwill, rights in packaging, rights of publicity, merchandising rights,
advertising rights and similar rights; (iii) rights in and relating to the
protection of trade secrets and confidential information; (iv) patents,
designs, algorithms and other industrial property rights and rights associated
therewith; (v) other intellectual and industrial property and proprietary
rights (of every kind and nature throughout the universe and however
designated) relating to intangible property that are analogous to any of the
foregoing rights (including without limitation logos, character rights,
rental rights and rights to remuneration), whether arising by operation of
law, contract, license or otherwise; (vi) registrations, applications,
renewals, extensions, continuations, divisions or reissues thereof now or
hereafter in force throughout the universe (including without limitation rights
in any of the foregoing); and (vii) rights in and relating to the sole and
exclusive possession, ownership and use of any of the foregoing throughout the
universe, including without limitation the right to license and sublicense,
franchise, assign, pledge, mortgage, sell, transfer, convey, grant, gift over,
divide, partition and use (or not use) in any way any of the foregoing now or
hereafter (including without limitation any claims and causes of action of any
kind with respect to, and any other rights relating to the enforcement of, any
of the foregoing). Laws mean any and all applicable
published laws, rules, regulations, including, but not limited to, local and
national laws, rules and regulations, treaties, ministerial guidance or
guidelines, generally accepted voluntary industry standards, association laws,
codes, etc. pertaining to any activities of Motorola or any third party engaged
by Motorola in connection with the performance of the obligations arising under
this Agreement. Manufacturers Agreement means an
agreement among Motorola, Licensee and a manufacturer or supplier of the
Product or Product Materials incorporating all of the terms of the
Manufacturers Agreement set forth in Exhibit E. Net Sales means Gross Sales, less
refunds, credits and allowances actually allowed to customers for returned
Products. Product or Products means
specific products or product categories as established in Exhibit A for which
the Licensee is authorized under this Agreement and which have been approved by Motorola
as provided in this Agreement and which bear the Trademarks. Product Materials means to the
extent required by this Agreement, warranty statement, user guide,
packaging and marketing materials, including but not limited to point-of-sale
materials, publicity, advertising, signs, catalogs, product brochures and other
in-box materials relating to the Products.
Sales Year or Sales Years means a period of
time that is twelve months or less in time, as defined in Exhibit A, during
which sales of Products are measured.
Specifications means the Cosmetic
Specifications and Materials and Methods Specifications attached hereto as
Exhibit D.
Territory means the authorized counties referred to
in Exhibit A subject to the restrictions in Section 13. Trademarks means one or more of the trademarks, trade
names, logos, trade dress, and service marks referred to in Exhibit B.
Trademark Use Guidelines shall be those Motorola guidelines for use of the Trademarks,
as provided in Exhibit C. 2.
GRANT
OF LICENSE 2.1 Motorola grants to
Licensee, subject to the terms and conditions of this Agreement, the
non-exclusive right to use the Trademarks upon the Products and in connection
with the manufacture, sale, marketing and distribution of the Products in the
Territory. 2.2
Licensee may manufacture Products or have Products manufactured for it
anywhere in the world subject to the terms of this Agreement including the
restrictions and obligations of Sections 3, 13 and 19 of this Agreement. 2.3
Licensee is
further authorized to use in the Territory the Trademarks in Product Materials directly
related to Products including in publicity, advertising, signs, catalogs,
product brochures, packaging, point-of-sale materials and other forms of
advertising, subject to the terms and conditions of this Agreement.
3. SAMPLES;
QUALITY CONTROL 3.1 Motorola shall provide Licensee with artistic
renderings of the Trademarks and with Trademark Use Guidelines identified in
Exhibit C. Licensee shall use the Trademarks only as provided in the artistic
renderings provided by Motorola and shall comply with the Trademark Use
Guidelines provided by Motorola. 3.2 Motorola will attend a quarterly meeting with
Licensee to provide information and strategize regarding the future planned
launch of Motorola mobile phones and accessories for which Licensee might plan
to make compatible Products. 3.3
Samples. Licensee shall produce and submit
to Motorola samples of any Product(s) it proposes to market or sell under this
Agreement. Motorola agrees to Promptly review the sample(s) and notify
Licensee of its decision in writing to designate the sample(s) as approved or
not approved. Motorola may approve or disapprove any sample in its sole
discretion.
3.4
Technical Specifications. All products
must comply with the Materials and Methods and Cosmetic Specifications
(Specifications) attached hereto as Exhibit D. 3.5
Final Production Samples. Licensee must also
obtain Motorolas written approval of final production samples of each Product
and all Product Materials, prior to the sale, publication, distribution or use
of such Product and/or Product Materials. Licensee shall furnish, at no cost to
Motorola, three final production samples of each Product and corresponding
Product Materials to Motorolas Representative who may retain such final
samples at Motorolas discretion. Licensee acknowledges that Motorola may
perform SAR tests on the production samples and that no production sample will
be approved unless it passes SAR testing. Motorola agrees to Promptly after
submission of Product samples notify Licensee in writing if it approves of such
final production samples of each Product and final production samples of Product
Materials. If such Product and/or Product Materials are not approved, Motorola
will in such notice advise Licensee of the reasons, including corrections
required by Motorola. Licensee shall make all such corrections at its expense,
or withdraw the proposed Product and/or Product Materials from consideration. Any
review and/or approval by Motorola shall not relieve Licensee from its
obligations provided in this Agreement. Sections 3.2 and 3.4 shall not apply
to Products sold in the Territory pursuant to the Prior Agreement and which
have not been modified by Licensee or at Motorolas direction subsequent to
their final approval for production and sale under that license. Licensee
shall not manufacture any Product until it has received written approval from
Motorola. 3.6 Licensee agrees that, once approved, it will not make
any changes to an approved Product or Product Materials without seeking new
approval from Motorola. Individual Approved Products may not be bundled
together without separate approval of the bundle and its Product Materials. . Each
Product and the Product Materials shall at all times: (i) conform to the terms
of this Agreement; (ii) conform to the Trademark Use Guidelines and the
Specifications and (iii) be the same in appearance, form, fit, function,
quality and regulatory compliance to the Approved Sample of the Product or
Product Materials. If at any time the Product and/or Product Materials fail
to meet these requirements, Licensee shall Promptly, but in no event later than
thirty (30) days of becoming aware of such failure, make all changes necessary
to bring such Product and/or Product Materials into conformance, or cease using
the Trademarks on a nonconforming Product and/or Product Materials, or cease
selling the Product. In addition, Licensee may be required by Motorola within
ten (10) business days after becoming aware of such nonconformance, take steps
to withdraw any nonconforming Products and/or Product Materials from the market
if reasonably determined by Motorola to be a nonconformance creating significant
safety, quality, customer satisfaction or negative brand impact issues. 3.7 If requested by Motorola due to reasonable
concerns over nonconformance with the Approved Samples, Licensee shall, at its
own expense, submit to Motorolas Representative the results of inspections
and tests that have been performed by an independent testing laboratory approved
by Motorola on randomly selected samples of each Product to show conformance.
In addition, Motorola may require Licensee, at Licensees own expense, to
perform tests at an independent laboratory approved by Motorola to show conformance of the Product with the Approved
Samples. At its sole discretion, Motorola may purchase the Product, at its own
expense, from retail outlets or from distributors and review the Product and
Product Materials to ensure that they conform in appearance, form, fit,
function, quality and regulatory compliance to the Approved Samples, the
Specifications and the Trademark Use Guidelines. 3.8 Upon five (5) business days notice to Licensee,
Motorola shall have the right to conduct or have conducted, during regular
business hours, an examination of Products manufactured by or for Licensee
(including those assembled or tested) at Licensees facilities to determine
compliance of such Products with the Approved Sample(s) and the Trademark Use
Guidelines and the Specifications. 3.9
Costs. Motorola
and Licensee shall each bear their own costs, including, but not limited to,
reasonable and necessary travel and inspection services associated with the
inspection and testing of Products for conformance with the requirements of
this Section 3 , except that Licensee alone shall bear any costs associated
with the inspection and testing of Products that are conducted by an
independent testing laboratory as referenced in Section 3.7 and shall bear the
cost of the samples referenced in this Agreement. 4.
APPROVED MANUFACTURERS 4.1 Licensee must obtain Motorolas written consent
prior to using any third party to manufacture or to supply Licensee with any
Product. Licensee shall forward to Motorola a written list of proposed
manufacturers or suppliers and the Products that each is to manufacture or
supply and the location(s) where such Products shall be manufactured. Motorola
may request any additional business or credit information regarding the
proposed manufacturer or supplier it deems necessary to make a determination.
Motorola agrees to Promptly review the list and to notify Licensee of its decision,
and, if not approved, to advise Licensee, in writing stating the reasons why
such manufacturer or supplier is not acceptable. A manufacturer or supplier
who is so approved is an Approved Manufacturer for only that Product for which
it is approved and only after executing a Manufacturers Agreement.
4.2 Prior to manufacturing any Product or using any manufacturer
to manufacture any Product, Licensee shall have the proposed manufacturer
execute a Manufacturers Agreement that has terms that are legally enforceable
in the jurisdiction in which the Products are manufactured or supplied and
includes at least the same terms and conditions as those set out in the
Manufacturers Agreement in Exhibit E. Licensee may include additional terms
in the Manufacturers Agreement provided they do not result, in the opinion of
Motorola, in a reduction in the protections and remedies available to Motorola
under the terms in Exhibit E. A copy of the executed Manufacturers Agreement
shall be delivered to Motorola before the Licensee or any Approved Manufacturer
may commence the manufacture or supply of any Product. 4.3 Should either party become aware of any applicable
published laws or regulations in any jurisdiction in the Territory that are
inconsistent with the provisions and intent of the Manufacturers Agreement, it
shall notify the other party within five (5) days of becoming aware of such
inconsistency. 4.4 If Motorola
determines that an Approved Manufacturer has breached any Manufacturers Agreement
in any material respect, Motorola shall advise the Licensee of the breach in
reasonable detail and, instruct Licensee to enforce the Manufacturers
Agreement against the breaching Approved Manufacturer. If Licensee determines
that an Approved Manufacturer has breached any Manufacturers Agreement in any
material respect, Licensee shall immediately give notice to Motorola of such
breach. In either case Licensee will use commercially reasonable efforts to enforce
the Manufacturers Agreement against the breaching Approved Manufacturer by
obtaining a cure of the breach or terminating the Manufacturers Agreement
within thirty (30) days. If the Licensee or the Approved Manufacturer fails
within this thirty (30) day period to (i) cure such breach to the satisfaction
of Motorola or (ii) to suspend the manufacture of Products under the
Manufacturers Agreement pending cure of such breach to the satisfaction of
Motorola, all rights to manufacture Product under this Agreement are
immediately terminated and that Approved Manufacturer shall immediately be
terminated as an Approved Manufacturer. 4.5 Licensee acknowledges
that any failure by Licensee to enforce or terminate any Manufacturers
Agreement against a breaching Approved Manufacturer in accordance with this Article
4 is a material breach of this Agreement, and that such failure will cause
irreparable harm and damages to Motorola. 4.6 If Licensee fails or
refuses to immediately comply with or enforce the Manufacturers Agreement
against the breaching Approved Manufacturer in accordance with Section 4.4,
Motorola shall have the right commencing three business days after written
notice to Licensee to enforce the provisions of the Manufacturers Agreement
against the Licensee or the breaching Approved Manufacturer. In such cases, the
cost of enforcing the Manufacturers Agreement, including but not limited to
attorneys fees, shall be paid by Licensee, whether the Manufacturers Agreement
is enforced by Motorola or Licensee. Licensee agrees to cooperate fully with
Motorola, at Licensees own expense, in all actions to enforce a Manufacturing
Agreement. 4.7 Upon seven (7)
business days notice to the Approved Manufacturer, Motorola shall have the
right to inspect or have inspected, at Motorolas expense, the manufacturing
facilities of the Approved Manufacturer during regular business hours to
determine compliance with the terms of the Manufacturers Agreement and compliance
of the Products and the Product Materials with the Approved Samples, the
Specifications and the Trademark Use Guidelines. If at any time the Products and/or
Product Materials fail to conform to the Trademark Use Guidelines, or the
Specifications or are not the same in appearance, form, fit, function, quality
and regulatory compliance to the Approved Sample(s), Motorola or its authorized
representative shall so notify Licensee. Upon such notification, Licensee shall
Promptly, but in no event later than thirty (30) business days, work with the
Approved Manufacturer to make all changes necessary to bring such Products
and/or Product Materials into conformance, or cease using the Trademarks on
such nonconforming Products and/or Product Materials, or cease selling such
Products. In addition, Licensee may be required by Motorola within ten (10)
business days after becoming aware of such nonconformance, take steps to
withdraw any nonconforming Products and/or Product Materials from the market if
reasonably determined by Motorola to be a nonconformance creating significant safety,
quality, customer satisfaction or negative brand impact issues.
5. APPEARANCE OF TRADEMARKS; TRADEMARK NOTICES
5.1 All products and
Product materials shall comply with the Trademark use Guidelines. Motorola may
change the Trademarks Use Guidelines regarding the style, appearance and manner
of use of the Trademarks as necessary, in its sole discretion. If Motorola
requires Licensee to implement such changes, it shall give written notice to
Licensee of any such change(s). Licensee shall Promptly implement the revised
Trademarks Use Guidelines on a running change basis, but in no event later than
one hundred twenty (120) business days of Licensees receipt of Motorolas
notification of any change in the Trademarks Use Guidelines. Licensee shall be
permitted in accordance with the terms of this Agreement, to sell, in the
ordinary course of business, Product inventory that exists at the time of
receipt of such notice. 5.2 Motorola
may require, where practicable, that the following notices, all or in part, be
used on the Products and/or Product Materials to identify the licensed use
under the Agreement and the proprietary rights of Motorola:
Motorola
TM attribution statement for Licensee packaging: Manufactured,
distributed or sold by "FORWARD INDUSTRIES, INC.", official
licensee for this product. Motorola, the Stylized M Logo, and other
Motorola trademarks and trade dress are owned by Motorola, Inc. and are used
under license from Motorola, Inc. MOTOROLA and the Stylized M Logo are
registered in the US Patent & Trademark Office. All other product or
service names are the property of their respective owners. ©
Motorola, Inc. 200X. (with X being the date of publication). All rights
reserved. Please
contact customer service at 800-872-3935 for questions/comments, warranty, support
or service related to this product.
Motorola
TM attribution statement for Licensee Collateral: Motorola,
the Stylized M Logo, and other Motorola trademarks and trade dress are owned by
Motorola, Inc. and are used under license from Motorola, Inc. MOTOROLA
and the Stylized M Logo are registered in the U.S. Patent & Trademark
Office. All other products or service names are the property of
their respective owners. © Motorola, Inc. 200X. (with X being the date of
publication) All rights reserved. 5.3 Motorola may require
through written notice and a reasonable time for implementation that Licensee
adopt and use different Trademarks and/or Product Materials specifications for
different countries in the Territory, and Licensee agrees to be bound by such
requirements of Motorola. 6. PROTECTION OF
TRADEMARKS 6.1 Licensee acknowledges that Motorola is the exclusive owner of
the Trademarks and any trademark incorporating all or any part of the
Trademarks. Without limiting the foregoing, Licensee hereby assigns to Motorola
all right, title and interest in the Trademarks, together with the goodwill
attaching thereto that may inure to Licensee in connection with this Agreement
or from its use of the Trademarks hereunder. Licensee agrees to execute and deliver
such documents as necessary for Motorola to register Licensee as registered
user or permitted user in any country, or to withdraw Licensee as a registered
user or permitted user, of the Trademarks. All use of the Trademarks by
Licensee shall inure to the sole benefit of Motorola. Licensee shall cooperate
and shall execute all papers reasonably requested by Motorola to affect further
registration, maintenance and renewal of the Trademarks at the sole expense of
Motorola. 6.2 Licensee will not encourage or assist a third
party to register, or attempt in any country to register the copyright, or to
register as a trademark, service mark, design patent or industrial design, any
portion of the Motorola Intellectual Property Rights or derivations or adaptations
thereof, or any work, symbol or design that is so similar thereto as to suggest
association with or sponsorship by Motorola. In the event of any breach of the
foregoing, Licensee agrees to terminate the unauthorized registration activity
and to execute and deliver, or cause to be delivered, to Motorola such
assignments and other documents as Motorola may require to transfer to Motorola
all rights to the registrations, patents or applications involved. Licensee
will not, nor will it encourage or assist a third party to, challenge the
validity or ownership of any patent, copyright, trademark, or other
Intellectual Property Rights or registrations of Motorola. 6.3 If Licensee learns
of any infringement of the Trademarks or of the existence, use or promotion of
any mark or design similar to the Trademarks, Licensee shall Promptly notify
Motorola. Motorola shall have the sole right and discretion to decide what
legal proceedings or other action, if any, shall be taken, by whom, how such
proceedings or other action shall be conducted. Any legal proceedings
instituted pursuant to this Section 6.3 shall be for the sole benefit of
Motorola. Licensee shall, at the request of Motorola, cooperate and assist
Motorola in any such suit or action, provided that Motorola will reimburse
Licensee for all documented reasonable costs, including attorneys fees. 6.4 In the performance of
this Agreement, Licensee shall comply with applicable laws and regulations, and
those laws and regulations particularly pertaining to the proper use and
designation of trademarks in the countries of the Territory. Should Licensee be
or become aware of any applicable laws or regulations that are inconsistent
with the provisions of this Agreement, Licensee shall Promptly notify Motorola
of such inconsistency. The parties then, shall in good faith, negotiate a
modification to this Agreement such that it complies with applicable law and
regulations or Motorola may terminate the license and rights granted hereunder
in that jurisdiction, and the Territory set forth in Exhibit B shall be
appropriately amended. 7. PRODUCT WARRANTY AND
SUPPORT 7.1 Licensee shall
provide a warranty and support service plan for the Products. Licensee must obtain
Motorolas written approval of the warranty and support service plan prior to
the manufacture of any Product for each country in the Territory. Such warranty
shall, at a minimum, provide a one-year warranty period and comply with the
requirements set forth in Exhibit F, unless otherwise approved in writing by
Motorola. Motorola agrees to Promptly notify Licensee if it approves the
warranty and support plan or, if not approved, Motorola will advise the
Licensee of corrections required by Motorola for the warranty and support
service to be approved. Once the warranty and support service plan is approved,
Licensee may use it with all Products. However, if Licensee makes any
modifications to the warranty and support service plan, it must re-submit the
plan to Motorola for a new approval. Any approval by Motorola shall not relieve
Licensee from its obligations set forth in this Agreement, including but not
limited to complying with local laws on warranties in the Territories where the
Products are sold. 7.2 Licensee will be
fully responsible for all end user support service and warranty costs,
including but not limited to the following (if applicable): transportation
costs, Product replacements, service labor, field repair, refunds, returns, and
other customer concessions to ensure each customers satisfaction for the
duration of the applicable warranty period. Motorola may require Licensee to
halt sales or to recall Product in whole or in part or to take other corrective
actions where Motorola reasonably determines customer satisfaction, quality,
safety, returns or compliance problem(s) exist. 7.3 All Product packaging
shall include a conspicuous use of the telephone number and address for
Licensees customer service department or customer service representative so
that any questions regarding support service for the Products including
warranty can be directed by the consumer or by Motorola to Licensee. At its
sole discretion and when feasible, Motorola may also require the Licensee to
affix a sticker on each Product indicating the telephone number of Licensees
customer service department. Licensee shall provide the telephone number and
address for customer service to Motorola for each Product before the initial
sale of such Product. If Motorola determines that the number of questions
regarding any Product that are directed by the consumer to Motorola exceed 1%
of the number of such Products sold, Motorola and the Licensee shall mutually
agree on a corrective action. If a reasonable corrective action cannot be
agreed to, Motorola may require Licensee to withdraw such Product from the
market or require Licensee to pay Motorola for future costs incurred related to
such questions. 7.4 Throughout the period
during which the warranty for any Product is in effect, Licensee shall provide
a well-manned toll-free (where available) telephone service number for receipt
of service calls for the Products. At a minimum, such telephone service number
shall operate manned with live personnel during regular business hours for all
time zones in which the Products are sold. At all other times, such telephone
service number shall have, at a minimum, an automated message specifying the
times during which the service number shall be manned with live personnel. 7.5 Licensee will
collect, prepare reports or, maintain and, upon request, deliver to Motorola,
all applicable data and records relating to Product warranty and warranty
service rendered. In addition, within thirty (30) days after the end of each
quarterly period, Licensee shall furnish to Motorolas Representative a
statement summarizing all significant problems and quality issues reported to
Licensees customer service department for each Product in the preceding
quarter. 8. ROYALTIES AND REPORTS 8.1 Licensee agrees to
pay Motorola a Royalty equal to the percentage shown in Exhibit A for each
Product, of all Net Sales for the Products (Royalty). Licensee shall pay the
Royalties in quarterly periods ending on the last day of March, June, September
and December during the Sales Year. The Royalty obligation shall accrue upon
the sale of the Products regardless of the time of collection by Licensee. For
purposes of this agreement, Products shall be considered sold on the date
when such Products are billed, invoiced, shipped or paid for, whichever event
occurs first. No deductions shall be made for uncollectible accounts.
Royalties will be paid in US dollars. If the gross sale price is expressed in
any currency other than United States Dollars, the royalty rate shall be
applied to that currency converted to United States Dollars based upon the
exchange rate that appears in the Currency Trading section of the United
States Eastern Edition of The Wall Street Journal on the last day of the
quarterly period in which the royalties become due. 8.3 On or before the fifteenth
(15th) day following each calendar quarter during the Sales Year, as
set forth in Exhibit A, Licensee shall make a quarterly payment to Motorola
which shall be calculated as follows: The greater of the year-to-date Minimum
Royalty due or the year-to-date Royalties due, minus the actual Royalty
payments made for the Sales Year. The Minimum Royalty due in each quarter
shall be the Minimum set forth in Exhibit A. Neither the expiration nor the
termination of this Agreement shall relieve Licensee from its Royalty and
Minimum Royalty payment obligations. 8.2 Fifteen (15) days
after the close of each month, Licensee will also furnish to Motorola, on forms
provided or approved by Motorola, a statement of Net Sales and number of units
of all Products sold (whether or not subject to a royalty) during the
immediately preceding month and statements of other information as the forms
may require. Such statements will be certified true and correct by a duly
authorized officer of Licensee if Licensee is a corporation or by a principal
of Licensee if Licensee is a partnership or sole proprietor. Licensee shall
send all payments required by this Section to Motorola at the address in
Section 8.4 and statements required by this Section to the Category Manager at
the address in Section 23. 8.3 Credits for Products
for which royalties were previously paid shall be made against royalties in the
quarter the Product returns are received and credited to Licensees customers.
8.4 All payments shall be electronically transferred to
Motorola with all electronic transfer fees to be paid by Licensee at:
WIRE TRANSFERS: Bank of America 100 West 33rd Street New York, NY 10001 ABA#026009593 SWIFT Code: BOFAUS3N Account Name: MOTOROLA INC Account Number: 4426499628
8.5 During the term of this
Agreement and for at least three (3) years following the termination or
expiration of this Agreement, Licensee and its Affiliates shall maintain at
Licensees or its Affiliates principal office such books and records including
but not limited to production, inventory and sales records (collectively Books
and Records) as are necessary to substantiate that (i) all statements
submitted to Motorola hereunder were true, complete and accurate, (ii) all
royalties and other payments due Motorola hereunder shall have been paid to
Motorola in accordance with the provisions of this Agreement, and (iii) no
payments have been made, directly or indirectly, by or on behalf of Licensee to
or for the benefit of any Motorola employee or agent who may reasonably be
expected to influence Motorolas decision to enter this Agreement or the amount
to be paid by Licensee under this Agreement. (As used in this Section,
payment shall include money, property, services, and all other forms of
consideration.) All Books and Records shall be maintained in accordance with
generally accepted accounting principles consistently applied. During the term
of, and for three (3) years after the termination or expiration of this
Agreement, the Books and Records shall be open to inspection, audit, and copy
by or on behalf of Motorola during business hours. 8.6 If any examination
reveals that Licensee has underpaid the royalty, Licensee shall pay the
shortfall to Motorola within ten (10) days of being notified of the shortfall.
Motorola shall bear the costs and expenses of conducting each examination.
However, if the examination reveals that Licensee has underpaid the royalty by
more than five percent (5%) of the actual amount due, Licensee shall reimburse
Motorola for all costs and expenses incurred in conducting the examination. 8.7 Licensee shall pay
any tax (and any related interest and penalties), however designated, imposed
solely as a result of the existence or operation of this Agreement including
any tax that Licensee is required to withhold or deduct from payments to
Motorola, except (i) any such tax constituting an income tax imposed upon
Motorola (including its subsidiaries and Affiliates) by any governmental entity
within the United States proper (the fifty (50) states and the District of
Columbia); and (ii), if the aforesaid office of Licensee is located in or
relocated to a jurisdiction outside of the United States proper, any foreign
tax imposed on Motorola or any of its subsidiaries if such tax is allowable as a
credit against U.S. income taxes of any of such companies. In the case of taxes
imposed pursuant to sub-section ii of this Section, Licensee shall furnish
Motorola with any evidence required by United States taxing authorities to
establish that such tax has been paid. 8.8
Interest. Any
payment or underpayment under this Agreement that is delayed beyond the due
date shall be subject to an interest charge, calculated on the due date and
monthly thereafter, of four percent (4%) over the United States prime rate (as
reported by the Wall Street Journal on the due date and monthly
thereafter) per annum, compounded monthly until paid, on the unpaid balance,
payable in United States dollars. If the amount of such interest exceeds the
maximum interest rate permitted by law, such fee shall be reduced to such
maximum. 9. SALES AND MARKETING 9.1 Licensee shall provide Motorola with written descriptions in
such detail as may be requested from time to time by Motorola of Licensees
marketing and distribution program before
the programs implementation or modification. Licensee shall not proceed with
the implementation of the initial program or any modification of its marketing
and distribution program without obtaining Motorolas prior approval.
9.2 Licensee agrees to
attend an Annual Review and Planning Meeting with Motorola to review the
current years performance in comparison with previously projected goals and
objectives and to adopt goals and objectives for the coming year. Licensee
agrees to develop and present a detailed sales marketing plan with projected
goals and objectives for the coming year. The sales marketing plans shall be
structured with Motorola. At least sixty (60) days prior to the annual
meeting, each party agrees to provide the other party with a list of relevant
issues and questions to be addressed, and the other party agrees to address the
issues and questions at the Annual Review and Planning Meeting. At the
discretion of Motorola, Licensee agrees to attend semi-annual or other required
performance review meetings with Motorola at a mutually agreed upon location. 9.3 Throughout the term of this Agreement, Licensee
agrees to promote the sales of Products in retail outlets and distributors in
the Territory. In
order to preserve the value and integrity of the Trademarks, the parties agree
that the Products will be sold only in channels where the suitability of the
trading premises, the customer service and the competence of the resellers are
of sufficient quality and reliability and are appropriate for the resale of the
Products consistent with Motorolas brand image. For the avoidance of doubt,
the following channels would satisfy such requirements: department stores,
chain consumer electronics stores, boutique consumer electronics stores, and mass
merchants. Motorola reserves the right to disapprove or withdraw approval of
any specific retailer if, in Motorolas reasonable belief, that retailer does
not provide suitable service or competence or maintain a suitable trading
premises, or may otherwise subject the Trademarks to devaluation or disrepute
in any way. 9.4 Licensee agrees not
to offer, without prior written approval from Motorola, branded products that
are identical in function and in appearance to Products, except for the Trademarks,
in the same retail outlets or distributors with the Products. Motorola
acknowledges that the foregoing restriction is intended only to prohibit
Licensee from offering items that are identical to the Products under a
different brand name, and is not intended to prohibit Licensee from offering
non-Trademarks branded products generally. In the event the parties mutually
agree to customizations that differentiate the Products by including in
appearance elements that create an identity associated with the Products,
Licensee agrees to use and limit such customizations to the Products unless
Motorola agrees in writing to their use for other products. Neither party
assigns to the other party any rights in its industrial designs, Product
designs, technology, and/or intellectual property in and associated with the
Products unless specifically agreed to in writing by the owner. 9.5
Advertising
Reserve. Licensee agrees to reserve a minimum of 2% of wholesale price and
use it for advertising, merchandising and promotion of the Product. Licensee
will provide a report at the Annual Review and Planning meeting detailing how
the advertising reserve was used. If Licensee fails to provide a detailed
report demonstrating that the advertising reserve was used for advertising,
merchandising and promotion activities related directly to the Product(s),
Licensee shall pay the amount of the reserve to Licensor as a penalty.
10. TERM AND TERMINATION 10.1 Unless
sooner terminated in accordance with this Agreement, the license and rights
granted under this Agreement shall commence on the Effective Date of the
Agreement, and shall continue in effect until March 31st, 2009. The
parties may renew or extend the Term of this Agreement by mutual consent. 10.2 Without prejudice to any
other rights that Motorola may have, Motorola may at any time give notice of
termination of this Agreement effective immediately: 10.2.1 If Licensee
shall be unable to pay its obligations when due, shall make any assignment for
the benefit of creditors, shall file a voluntary petition in bankruptcy, shall
be adjudicated bankrupt or insolvent, shall have any receiver or trustee in
bankruptcy or insolvency appointed for its business or property, or shall make
an assignment for the benefit of creditors; 10.2.2
If Licensee
manufactures, sells, markets, or distributes any Products without obtaining Motorolas
approval as provided for by this Agreement or continues to manufacture, sell,
market, or distribute any Products after receipt of notice from Motorola disapproving
such items in accordance with the terms of this Agreement; 10.2.3 If
Licensee breaches any provision of this Agreement relating to the unauthorized
assertion of rights in the Trademarks; 10.2.4 If
Licensee breaches any provision of this Agreement prohibiting Licensee from
directly or indirectly arranging for manufacture by third parties, assigning,
transferring, sublicensing, delegating or otherwise encumbering this Agreement
or any of its rights or obligations; or 10.2.5 If
reasonable grounds for insecurity arise with respect to Licensees performance
of this Agreement and Motorola demands adequate assurance of due performance in
writing, and Licensee fails to provide such adequate assurance within five (5)
days after the date of Motorolas request therefore or within such other
shorter period of time as Motorola may reasonably designate under the then
existing circumstances. The parties further agree that if Motorola has
requested adequate assurances, Motorola may suspend its performance of this
Agreement until Motorola receives such assurances in writing. 10.2.6 If
Licensee shall fail for one hundred and twenty (120) consecutive days to
continue the bona fide distribution and sale of the Products in
commercially reasonable quantities throughout the Territory; 10.2.7 If
the quality in any Products has reached unacceptable levels pursuant to Section
3 referenced herein and a mutually agreeable action plan to remedy the defects
has not been established within seven (7) days from notice by Motorola, or if
subsequent quality reports reveal that the defect rates have not been reduced
to the acceptable standard. 10.2.8 If by May
31st, 2008 Licensee has not begun the bona fide distribution
and sale of the Products in commercially reasonable quantities in the locations
in the Territory agreed in the current marketing and distribution program
adopted pursuant to Section 9 of this Agreement; 10.2.9 If
Licensee fails to comply with applicable laws or ethical standards as provided
in section 19.2, 22 and Exhibit G or refuses to allow an inspection to
determine compliance with laws and ethical standards, as provided in section
19.3. 10.3 Without prejudice to
any other rights that Motorola may have, Motorola shall have the right to
terminate this agreement for any material breach thirty (30) days after mailing
a written notice to Licensee describing the alleged breach in reasonable detail
unless the breaches are cured in the reasonable discretion of Motorola within
the thirty (30) day period. Material breaches include but are not limited to
the following: 10.3.1 If
Licensee distributes or uses any Product Materials without obtaining Motorolas
approval as provided in this agreement; 10.3.2 If
Licensee shall fail to make any payment due hereunder or provide any statement
required hereunder; 10.3.3
If Licensee fails to obtain or maintain insurance as required by the Section 15
of this Agreement; 10.3.4 If
Licensee breaches any material provision of this Agreement relating to the
Territory including, but not limited to section 13; 10.3.5 If in Motorolas
reasonable determination significant customer satisfaction issues have arisen
with any Product; or 10.3.6 Licensee
fails to enforce or terminate a Manufacturers Agreement against a breaching
Approved Manufacturer as required in Section 4. 10.4 Licensee may terminate
this Agreement for convenience at any time, with or without cause, by giving
Motorola one-hundred eighty (180) days prior written notice and upon payment
of the Minimum Royalty for the 180-day period plus the remainder of the Minimum
Royalty for the quarter in which the end of the 180-day period falls. License
shall also provide royalty reports for the 180 day period as provided in
Section 8. 10.5 Without prejudice to any other
rights that Licensee may have, including, without limitation, those under
Section 22, Licensee shall have the right to terminate this Agreement: 10.5.1 for any material
breach of this Agreement by Motorola ninety (90) days after mailing written
notice to Motorola that specifies the alleged breach in reasonable detail,
unless the breach or breaches are cured in the reasonable determination of
Licensee within such ninety-day period; 10.5.2 immediately upon written
notice to Motorola if any of the Trademarks is determined by a court of
competent jurisdiction to infringe the rights of a third party; or 10.5.3 immediately upon
written notice to Motorola if Motorola shall be unable to pay its obligations
when due, shall make any assignment for the benefit of creditors, shall file a
voluntary petition in bankruptcy, shall be adjudicated bankrupt or insolvent,
shall have any receiver or trustee in bankruptcy or insolvency appointed for
its business or property, or shall make an assignment for the benefit of
creditors. 11. POST-TERMINATION
AND EXPIRATION RIGHTS AND OBLIGATIONS 11.1 If this Agreement is terminated for
any cause under Section 10.2, Licensee and Licensees receivers,
representatives, trustees, agents, administrators, successors or permitted assigns
shall have no right after the effective date of termination to manufacture, sell,
ship, market or distribute Products or to use any promotional and packaging
material relating to the Products. Any Products not sold, shipped, and
distributed by Licensee prior to termination must be destroyed or reprocessed
so that the Trademarks are no longer present in whole or in part on the
Products or on their Product Materials. Upon Motorolas request, Licensee
shall provide evidence satisfactory to Motorola of such destruction or
reprocessing of remaining Products or Product Materials. Licensees final
statement and payment of royalties, which shall include the difference, if any,
between all royalties based upon Net Sales for the termination Sales Year and
the remaining Minimum Royalty for the termination Sales Year shall be received
by Motorola within thirty (30) days after the effective date of termination.
Licensee shall send all payments and statements required by this Section 11.1 in
accordance with Section 8.5. 11.2 After expiration of
the initial term and any renewal term(s) of this Agreement or the termination
of this Agreement under any provision other than Section 10.2, Licensee may sell, ship, market and
distribute Products in the Territory that are on hand or in the process of
manufacture at the date of expiration or at the time notice of termination is
received for a period of ninety (90) days after the date of expiration or the
date of notice of termination, as the case may be, provided that the royalties
with respect to that period are paid and the appropriate statements for that
period are furnished. Motorola shall have the right, but not the obligation, to
purchase all or part of Licensees inventory of Products at cost upon
expiration of the ninety (90) day sell-off period permitted by this Section
11.2. Unless purchased by Motorola, any Products not sold, shipped, and
distributed by Licensee within this ninety (90) day period must be destroyed or
reprocessed so that the Trademarks are no longer present in whole or in part on
the Products or on their Product Materials. Upon Motorolas request, Licensee
shall provide evidence satisfactory to Motorola of such destruction or
reprocessing of remaining Products or Product Materials. After termination of
this Agreement under Section 10.3, Licensee shall make the next quarterly
statement and payment as required by Section 8 and Licensee shall make a final
statement and payment of royalties including the difference, if any, between
all royalties based upon Net Sales and the remaining Minimum Royalty for the
termination Sales Year to Motorola no later than one hundred (100) days after
the effective date of termination. After termination of this Agreement under
section 10.4 and 10.5 Licensee shall make the next quarterly statement and
payment as required by Section 8 and Section 10.4 and Licensee shall make a
final statement and payment of royalties for all Products sold during the
sell-off period to Motorola no later than one-hundred (100) days after the effective
date of termination. Licensee shall send all payments and statements required
by this Section 11.2 in accordance with Section 8.5. 11.3 After the expiration
or termination of this Agreement and except as provided in Section 11.2, all
rights granted to Licensee under this Agreement shall forthwith revert to
Motorola, and Licensee shall refrain from further use of the Trademarks or any
further reference to the Trademarks, either directly or indirectly, or from use
of any marks or designs similar to the Trademarks in connection with the
manufacture, sale, marketing or distribution of Licensees products. Licensee
also shall turn over to Motorola all molds, silk-screens, and other materials
that reproduce the Trademarks or shall give evidence satisfactory to Motorola
of their destruction. Licensee shall be responsible to Motorola for any
damages caused by the unauthorized use by Licensee or by others of such molds,
silk-screens or reproduction materials that are not turned over to Motorola. 11.4
Licensee acknowledges that its failure to cease the manufacture, sale,
marketing or distribution of the Products and the Product Materials at the
termination or expiration of this Agreement, except as provided in Section
11.2, will result in immediate and irreparable damage to Motorola and to the
rights of any subsequent licensee of Motorola. Licensee acknowledges and
admits that there is no adequate remedy at law for failure to cease such
activities, and Licensee agrees that in the event of such failure, Motorola
shall be entitled to injunctive relief and such other relief as any court with
jurisdiction may deem just and proper. 11.5
Within twenty (20) days after expiration or within ten (10) days after
notice of termination of this Agreement, as the case may be, Licensee shall
deliver to Motorola a written report indicating the number and description of
the Products and Product Materials that it had on hand or in the process of
manufacture as of the date of expiration or at the time termination notice is
received. Motorola may conduct a physical inventory in order to verify such
report. If Licensee fails to submit the required written report or refuses to
permit Motorola to conduct such physical inventory, Licensee shall forfeit its
rights under this Agreement to dispose of such inventory. In addition to such
forfeiture, Motorola shall have recourse to all other available remedies. 12. CONFIDENTIALITY AND
INTELLECTUAL PROPERTY 12.1 Motorolas
Confidential Information shall mean specifications, property, data, drawings,
schematics, diagrams, dimensions, prints, reprints, information, business and
financial information, customer and vendor lists, pricing and sales
information. Products created by Motorola for Licensee under this Agreement,
submitted or presented by Motorola to Licensee under this Agreement, or jointly
developed by the parties are deemed Motorolas Confidential Information. 12.2 Licensees
Confidential Information shall mean Licensees business and financial
information, information concerning Licensees products and related
specifications, property, data, drawings, schematics, diagrams, dimensions,
prints and reprints, Licensees decoration process, including, without
limitation, specifications, data, drawings, technical information, diagrams,
schematics, Licensees customer and vendor lists, pricing and sales
information, and Licensees customer information provided to Motorola by
Licensee or to which Motorola otherwise gains access. Products created by
Licensee under this Agreement and submitted and presented to Motorola under
this Agreement for approval, are deemed Licensees Confidential Information. 12.3 Each
of the parties and its contractors agrees to maintain the confidentiality of
the other partys Confidential Information furnished in oral, visual, written
and/or other tangible form including electronic form, and not disclose such
Confidential Information to any third party, except as authorized by the other
party in writing. Each party further agrees to keep confidential the terms of
this Agreement; except as required by applicable reporting requirements
pursuant to the Federal securities laws; provided, however, that the parties
shall issue a joint press release regarding this Agreement in a form, and at
such time, as is mutually agreed upon by the parties in writing. 12.4 Each
of the parties agrees to restrict disclosure of the other partys Confidential
Information to its employees and contractors who have a need to know. Each of
the parties agrees that the other partys Confidential Information shall be
handled with the same degree of care that it applies to its own confidential
information (but in no event less than reasonable care) and shall not be
exported directly or indirectly to any restricted or prohibited country set
forth in Section 13 or such other restricted or prohibited countries as may be
designated by the United States Department of Commerce except in compliance
with the regulations of the Office of Export Control for the United States
Department of Commerce. 12.5 Licensee
is the Receiving Party with respect to Motorolas Confidential Information
and Motorola is the Receiving Party with respect to Licensees Confidential
Information. The parties agree to exclude from these obligations of
confidentiality any Confidential Information that the Receiving Party can
demonstrate: (i) is wholly independently developed by the Receiving Party
without the use of the other partys Confidential Information; or (ii) is known
or becomes known to the general public without breach of this Agreement; or
(iii) was known to the Receiving Party without confidential limitation at the
time of disclosure by the other party as evidenced by documentation in the
Receiving Partys possession; or (iv) is approved for release by written authorization
of the other party, but only to the extent of and subject to such conditions as
may be imposed in such written authorization; or (v) is disclosed in response
to a valid order to a court, regulatory agency, or other governmental body in
the United States or any political subdivision thereof, but only to the extent
and for the purposes stated in such order; provided, however, that the
Receiving Party shall first notify the other party in writing of the order and
cooperate with the other party if the other party desires to seek an
appropriate protective order; or (vi) is received rightfully and without
confidential limitation by the Receiving Party from a third party. 12.6 In
the course of its relationship with Motorola, Motorola may give Licensee access
to Motorolas facility including its manufacturing, distribution or accelerated
life testing area. Licensee agrees that the manufacturing, handling or testing
techniques, processes, methodologies and know how embodied in equipment and
equipment arrangements; equipment supplier names; and products under
manufacture, handling or testing in Motorolas facility are deemed to be
Motorola Confidential Information, even if not identified as confidential at
the time of disclosure and confirmed in correspondence. In the course of its
relationship with Licensee, Licensee may give Motorola access to Licensees
facility including its manufacturing, distribution or accelerated life testing
area. Motorola agrees that the manufacturing, handling or testing techniques,
processes, methodologies and know how embodied in equipment and equipment
arrangements; equipment supplier names; and products under manufacture,
handling or testing in Licensees facility are deemed to be Licensee
Confidential Information, even if not identified as confidential at the time of
disclosure and confirmed in correspondence. 12.7 Upon
termination of this Agreement, all Confidential Information transmitted to the
Receiving Party by the other party in record bearing media or other tangible
form including electronic form, and any copies thereof made by the Receiving
Party shall be either destroyed and its destruction certified in writing or, at
the other partys written request, returned to the other party, except that the
Receiving Party shall be entitled to retain a secure copy of the other partys
Confidential Information for archival purposes only. Additionally, Motorola
agrees to return Licensees Confidential Information upon Licensees written
request, and Licensee agrees to return Motorolas Confidential Information upon
Motorolas written request. 12.8
Licensee agrees that it will not in any manner use its knowledge of
Motorola business for the benefit of itself (except in accordance with the
terms of this Agreement) or any other party or divulge to others information or
data concerning Motorolas business affairs, including the names of customers,
names of employees, number or character of contracts, marketing strategies and
prices, terms or particulars of Motorolas business. Licensee will, in all
things and in good faith, protect the good will of Motorolas business and keep
confidential its knowledge of such business affairs acquired prior to and
during the terms of this Agreement. Motorola agrees that it will not in any
manner use its knowledge of Licensee business for the benefit of itself (except
in accordance with the terms of this Agreement) or any other party or divulge
to others information or data concerning Licensees business affairs, including
the names of customers, names of employees, number or character of contracts,
marketing strategies and prices, terms or particulars of Licensees business.
Motorola will, in all things and in good faith, protect the good will of
Licensees business and the Licensee Designs and keep confidential its
knowledge of such business affairs acquired prior to and during the terms of
this Agreement. 13. EXPORT 13.1 Licensee agrees and represents that it is aware of
all pertinent export laws and regulations and will not violate them in any material
respect. To the extent that Licensee exports, transports or manufactures or has
manufactured any products or technologies in any way connected to the
Trademarks, Licensee hereby assures Motorola that it does not intend to and
will not, without the prior written consent of the Office of Export Licensing
of the U.S. Department of Commerce, P.O. Box 273, Washington, D.C. 20230,
exports, transports, manufactures or have manufactured directly or indirectly
(i) Products or other items in any way associated therewith or (ii) any
technical information provided hereunder in, to or by (a) any individuals or
entities listed in the Table of Denial Orders as published from time to time in
Supplement No.2 to Part 764 of the above referenced regulations, (b) embargoed
countries or foreign nationals of such countries, as may be changed from time
to time, under U.S. export laws and regulations or (c) controlled countries and
foreign nationals of such countries to the extent such products and
technologies are defined as controlled technologies in the U.S. Export
Administration Regulations Part 774. Embargoed and controlled countries are
defined in the U.S. Export Administration Regulations Parts 740 Supplement
No.1, 746 and 772 and currently include Cuba, Iran, Libya, North Korea, Sudan, and Syria. 14. REPRESENTATIONS AND
WARRANTIES 14.1 Motorola represents
and warrants that it has the power to grant a license of the Trademarks in the
Territory and that such grant is in compliance with applicable law and does not
infringe the rights of any third party. Motorola, at its expense, shall be
responsible for obtaining and maintaining all licenses, permits and approvals
necessary for Motorola to maintain its rights in the Trademarks No other
warranties, express or implied, are given by Motorola, and all other
warranties, express or implied, are expressly disclaimed by Motorola. 14.2 Licensee represents
and warrants that at all times: 14.2.1 Except as provided in
Section 14.1, Licensee has and shall maintain all rights and licenses needed
to sell the Products and the Products do not infringe any patent, copyright,
mask work right, moral right, trademark, service mark, trade secret and/or all
other intellectual property rights and/or similar rights of any third party.
Licensee is solely responsible for all royalties, fees or other payments to
secure such rights and licenses for end user customers. 14.2.2 Licensee shall secure
and maintain all certifications and requirements to sell the Products and
Licensee shall affix all labels on the appropriate area of each Product
regarding such certifications and requirements. Licensee shall provide written
evidence of such certifications and approvals to Motorola upon Motorolas
request. 14.2.3 All Products are new,
and do not contain anything used, except for warranty replacement Products
and/or parts provided by Licensee all of which shall be conspicuously labeled
as Used on the warranty replacement Product and/or part, on the carton, and
on the shipping paperwork and Licensee shall have processes, procedures and
documentation in place to comply with and substantiate this representation and
warranty. 14.2.4 Product Materials shall
not claim or suggest that any Products improve the health of users, have
therapeutic capabilities, or can help the users to avoid injuries that
otherwise might occur through the use of alternative products. 14.2.5 All claims made in
connection with the Products and Product Materials are in all material respects
accurate, complete and have been substantiated prior to use in advertising,
promotion or on the Products or Product Materials. 14.2.6 Licensee, at its
expense, shall be responsible for obtaining and maintaining all licenses,
permits and approvals that are required by all appropriate governmental
authorities, with respect to Licensees compliance with it obligations under this
Agreement, excluding any licenses, permits or approvals necessary for Motorola
to maintain its rights in the Trademarks, and to comply with any requirements
of such governmental authorities for the registration or recording of this
Agreement and for making payments hereunder. Licensee shall furnish to Motorola
within thirty (30) days of receipt of same, written evidence from such
governmental authorities of any such licenses, permits, clearances,
authorizations, approvals, registration or recording. 14.2.7 All Products are safe
for any use consistent with the warranties, specifications and requirements of
this Agreement. 14.2.8 All Products are of
merchantable quality, and conform to the specifications and requirements of
quality in materials, design, and workmanship in this Agreement. 14.2.9 Licensee warrants that its
performance hereunder will be in compliance with all applicable federal, state
and local laws, orders, rules and regulations. 14.3
Compliance with
Laws and Procedures; Authority. Each party hereto warrants that such
party's performance hereunder will be in compliance with all applicable
federal, state and local laws, orders, rules and regulations, whether domestic
or foreign. Each party hereto warrants that its execution, delivery and
performance of this Agreement has been authorized by all necessary corporation
action and that this Agreement has been duly authorized, executed and
delivered. 15. INDEMNITIES AND INSURANCE 15.1 Licensee acknowledges that, except as
set forth in Section 15.2 of this Agreement, it will have no claims against
Motorola for any damage to property or injury to persons arising out of the
operation of Licensees business. Licensee agrees to indemnify, hold harmless
and defend Motorola , its subsidiaries and customers, with legal counsel
acceptable to Motorola, from and against all third-party suits, actions,
claims, damages, liabilities, costs and expenses, including attorneys fees,
court costs and other legal expenses, arising out of or connected with the
Products, Licensees methods of manufacturing, marketing, selling, distributing
or use of the Products, the promotional or packaging material relating to the
Products, or any breach by Licensee of any provision of this Agreement or of
any warranty made by Licensee in this Agreement. Motorola agrees to give
Licensee written notice of any claim within ten (ten) days of receipt by
Motorola. Motorolas failure to provide written notice of the claim within ten
days shall not affect its right to indemnification unless and to the extent the
delay materially prejudices Licensees ability to respond to the claim. Licensee
shall bear full responsibility for the defense (including any settlements) of
any such claim; provided, however, that: (i) Licensee shall keep Motorola
informed of, and consult with Motorola in connection with the progress of such
litigation or settlement; and (ii) Licensee shall not have any right, without Motorolas
prior written consent, to settle any such claim if such settlement arises from
or is part of any criminal action, suit or proceeding or contains a stipulation
to or admission or acknowledgement of any liability or wrongdoing (whether in
contract, tort, or otherwise) on the part of Motorola or any Motorola Affiliate.
15.2 Motorola agrees to
indemnify, hold harmless and defend Licensee from and against all third-party suits,
actions, claims, damages, liabilities, costs and expenses, including attorneys
fees, court costs and other legal expenses, arising out of or relating to
infringement of the trademarks or copyrights of any third party by the
Trademarks so long as such claims arise from Licensees promotion or sale of
the Products in the Territory and Licensees use of the Trademarks in
accordance with the terms of this Agreement. Licensee agrees to give Motorola
written notice of any claim within ten (10) days business days of receipt by
Licensee. Licensees failure to provide written notice of the claim within ten
days shall not affect its right to indemnification unless and to the extent the
delay materially prejudices Motorolas ability to respond to the claim.
Licensee agrees to give Motorola control of the defense of the claim and
cooperates with Motorola in the defense and any related settlement
negotiations. 15.3 During the term of
the Agreement, Licensee will maintain at its own expense, commercial general
liability (CGL) insurance including contractual liability coverage, products
and completed operations in an amount not less than one Million Dollars
($1,000,000.) per occurrence for bodily injury, personal injury and property
damage liability. The insurance will be placed with an insurer acceptable to
Motorola, licensed for the jurisdiction in which this Agreement is performed
and having a Bests Rating not less than A-VII. The CGL policy will name
Motorola, Inc. as an additional insured and provide a minimum thirty (30) days
prior written notice of cancellation or material change. Licensee shall
furnish Motorola within thirty (30) days after execution of this Agreement or,
if earlier, prior to the sale of the Products, with a certificate of insurance
stating thereon the limits of liability, the period of coverage, the parties
insured (including Licensee and Motorola), and the insurers agreement not to
terminate or materially modify such insurance without endeavoring to notify
Motorola in writing at least ten (10) days before such termination or
modification. Coverage provided for Motorola shall be primary, and any
insurance maintained by Motorola shall be in excess and not contributing with
any insurance provided by Licensee. Coverage shall be on a claims made basis.
Motorola shall not be responsible for the payment of the premiums, charge
taxes, assessments, or other costs for the product liability insurance. 15.4 The existence of the
product liability insurance shall not mitigate, alter, or waive the indemnity
provisions of Section 15.
16. DISPUTE RESOLUTION
16.1 The
Parties will attempt to settle any claim or controversy relating to this
Agreement through negotiation in good faith and a spirit of mutual cooperation.
If those attempts fail to achieve a settlement, then the dispute will be
mediated by a mutually acceptable mediator to be chosen by the Parties within
forty-five (45) days after written notice by either Party demanding mediation.
Neither Party may unreasonably withhold consent to the selection of a mediator,
and the Parties will share the costs of mediation equally. The non-binding mediation
hearing shall be conducted within forty-five (45) calendar days after the
selection of the mediator. Each Party shall bear its own attorneys fees and
other costs. Any mediation shall be conducted in the English language. 16.2
Any dispute that cannot be resolved
between the Parties through negotiation or mediation within six (6) months of
the date of the initial demand for mediation by one of the
Parties may then be submitted to the courts for resolution. The use of any mediation
procedures will not be construed under the doctrines of laches, waiver or
estoppel to affect adversely the rights of either Party. Nothing in this
Section will prevent either Party from resorting to judicial proceedings if
interim relief from a court is necessary to prevent serious and irreparable injury
to that Party or to others. In addition, nothing in this Section 16 shall be
construed as applying to disputes regarding the Intellectual Property Rights
(including Confidential Information) or Trademarks.
17.
FORCE MAJEURE 17.1 The terms of this
Agreement are binding upon the parties hereto except where prevented, delayed
or interfered with by causes beyond the reasonable control and without the
fault or negligence of the non-performing party, including, without limitation,
riot, war, strike, significant acts of terrorism and the effects thereof, insurrection,
civil war or severe domestic instability or suspension of the banking or
foreign exchange system in any nation in the Territory or place of manufacture
of the Products, banking moratorium, or hostilities between nations,
governmental regulation (other than action taken in response to Motorolas or
Licensees violation or failure to act with respect to any law or governmental
regulation, in which case the party at fault shall not be permitted to claim
the benefit of this Section 17), acts of God, fire, accidents, strikes or
earthquakes. 17.2 The party affected by
force
majeure shall give notice to the other party of said force majeure
event Promptly after the occurrence thereafter, stating therein the nature of
suspension of performance and reasons thereof. Such party shall use its best
efforts to resume performance as soon as reasonably possible. Upon restoration
of the affected partys ability to perform its obligations hereunder, the
affected party will give immediate notice to the other party. 17.3 If the
force
majeure condition that prevents a partys performance hereunder shall
continue for a period of six (6) consecutive months, and there shall be no
reasonable prospect for the immediate cure thereof despite the best efforts of
the affected party to cure the same, then either party shall have the right to
terminate this Agreement in its entirety and without liability upon ninety (90)
days prior notice to the other party.
18. LIMITATION OF
LIABILITY 18.1 Except for third party
damages included in settlements and judgments subject to Section15.2 Motorola
shall not be liable to Licensee for lost profits, or consequential, indirect,
incidental, special or punitive damages, even if advised in advance of the
possibility of such damages. Except for judgments or settlements subject to
Section 15.2, Motorola shall not be liable to Licensee for direct damages in
excess of the total Royalties paid by Licensee to Motorola under this
agreement.
19.
COMPLIANCE WITH LAWS
19.1 In the performance of
this Agreement, Licensee shall comply in all material respects with published applicable
laws and regulations in the countries of said Territory. Should Licensee be or
become aware of any applicable laws or regulations which are inconsistent with
the provisions of this Agreement, Licensee shall Promptly notify Motorola of
such inconsistency. The parties then, shall in good faith, negotiate a
modification to this Agreement such that it complies with applicable law and
regulations and if the parties are unable to successfully negotiate such a
modification Motorola may terminate the license and rights granted hereunder in
that jurisdiction, and the Territory set forth in Exhibit B shall be
appropriately amended. 19.2
Compliance with Laws
and Ethical Standards. Licensee, on behalf of itself, its Affiliates and
its suppliers and subcontractors (Supply Chain), represents and warrants that
all Products are produced, manufactured and supplied, and Services are
rendered, in compliance in all material respects with applicable laws, rules,
regulations and standards, including those concerning environmental protection,
freedom of association, wages and humane treatment of workers, as set forth in
Exhibit G 19.3
Inspection of
Facilities. Upon five (5) business days notice to Licensee, Motorola
shall have the right to conduct or have conducted, during regular business
hours, an examination of Licensees or Licensees Affiliates or an Approved
Manufacturers manufacturing, assembly, testing and business facilities to
determine compliance with laws and ethical standards as set forth on Exhibit G.
20 INTELLECTUAL
PROPERTY 20.1 No grant or
transfer of any Motorolas Intellectual Property Rights to Licensee is given or
intended under this agreement, including any license implied or otherwise,
except as expressly provided in Section 2 of this Agreement. 20.2 As between
Motorola and Licensee, Motorola owns and, upon creation shall own, all rights
in the Trademarks, the trade dress, copyrights, ornamental designs, industrial
designs and design patents associated with the Product and Product Materials
and any Derivative Works created from them. Notwithstanding the foregoing, if
Licensee presents to Motorola a sample of a product that is designed to fit
mobile telephones generally and is not designed to fit a Motorola product
specifically (hereinafter a Universal case), and Licensee give Motorola a
right of first refusal to exclusively use the design of the Universal case as a
Product under the terms of this Agreement, then the ornamental and industrial
design rights and design patents associated with such Universal case shall be
owned by Licensee. Licensee shall cooperate and shall execute all papers
reasonably requested by Motorola to effect registration, maintenance and
renewal of these rights, at the sole expense of Motorola.
21. PRESS RELEASES 21.1 Licensee shall
make no press releases concerning the business relationship or license granted
in this Agreement or the introduction or sales of Products without Motorolas
written agreement as to the form and content of the proposed press release.
22. ETHICS AND CONFLICTS OF
INTEREST.
22.1 Both
parties will refrain from activities that: (i) are illegal, unethical; (ii)
might bring either party into disrepute; or (iii) might constitute or represent
a serious conflict of interest or that might give the appearance of
impropriety. Both parties will cooperate fully in any investigation or
evaluation of such matters. Breach of this obligation by either party will
entitle the non-breaching party to terminate this Agreement without notice. 23. NOTICES 23.1 Any notice required or
permitted to be given under this Agreement shall be in writing and shall be
directed by one party to the other at its respective address as follows unless
otherwise provided for in this Agreement: Licensor: Robert
Vacheron Category
Manager Motorola,
Inc. 1700 Bellemeade Ct. Lawrenceville, GA 30043 EMAIL:
CRV009@motorola.com and to: Scott
Offer Corporate
Vice President Law
Department, Personal Communications Sector
Motorola,
Inc. 600 North U.S. Highway 45 Libertyville , IL 60048-1286 Licensee: Douglas
Sabra Chief
Executive Officer Forward
Industries 1801 Green Road, Suite E. Pompano Beach, FL 33064 Phone:
954-360-6420 FAX:
954-419-9735 EMAIL:
dsabra@forwardindustries.com And to: Steven
A. Malsin Attorney
at Law 237 Upper Shad Road Pound Ridge, NY 10576 23.2 Any notice required or
permitted to be given under this Agreement shall be in writing, shall be deemed
to have been received (i) when delivered personally; (ii) when sent by
confirmed facsimile or by e-mail except for notices that relate to default
provisions; (iii) five (5) days after having been sent by registered or
certified mall, return receipt requested, postage prepaid; or (iv) one business
(1) day after deposit with a commercial overnight carrier with written
verification of receipt. 23.3 Either party may
change the address to which notices or requests shall be directed by written
notice to the other party, but such written notice to be effective must be
received by the other party at least thirty (30) days before the effective date
of the change of address. 24. ASSIGNMENT
OF RIGHTS AND SUBLICENSE 24.1 The benefit of this
Agreement shall be personal to Licensee who shall not, without the prior
consent in writing of Motorola, assign its rights, or delegate its duties
hereunder, nor grant or purport to grant any sublicense in respect to the
Trademarks, to third parties. 24.2 Notwithstanding the
above, Licensee shall have the right to assign its rights and to delegate its
duties under this Agreement, with Motorolas prior written consent, which shall
not be unreasonably withheld, to wholly-owned subsidiaries of Licensee. In the
event that Licensee undergoes a substantial change of ownership, whether or not
such a change results from a merger, acquisition, consolidation or otherwise,
Licensee shall have the right to assign its rights and to delegate its duties
to such new owner under this Agreement, with Motorolas prior written consent,
provided that the substantial change of ownership does not result in a
substantial change in the nature of the Licensees business, a substantial
change in nature including, but not limited to, a change in product mix,
pricing structure, financial condition or method of doing business. However, in
any instance, Licensee and its assignee shall remain ultimately liable to
Motorola for all of the obligations assumed by it under the terms of the
Agreement. 25. FREEDOM OF
ACTION 25.1
Nothing in this Agreement shall be construed as prohibiting or
restricting Motorola or its subsidiaries from independently developing, having
developed independently, acquiring, licensing, distributing or marketing
products, services and other materials which are competitive in any form with
the Products. Licensee agrees and acknowledges that it shall not hold Motorola
liable for any lost sales or revenues in respect to the sales performance of
the Products, regardless of the reason for such lost sales or revenues
including, but not limited to, Motorolas direction in the appearance, function
or marketing of the Products.
26. APPROVALS 26.1 Any
approval required by this Agreement to be obtained from Motorola must be in writing
from the Category Manager and may be withheld by Motorola for any reason deemed
reasonable and justifiable in the sole determination of Motorola. If approval
is not delivered in writing to the Licensee within fifteen (15) business days
of submission of a request for approval, the request for approval shall be
deemed to be denied.
27. WAIVER
OF DEFAULT OR OTHER RIGHTS 27.1 The failure of
Motorola to insist in any one or more instances of the performance of any term,
obligation or condition of this Agreement by Licensee or to exercise any right
or privilege herein conferred upon Motorola shall not be construed as
thereafter waiving such term, obligation, or condition, or relinquishing such
right or privilege, and the acknowledged waiver or relinquishment by Motorola
of any default or right and shall not constitute waiver of any other default or
right.
28. SEVERABILITY 28.1 If any provision of
this Agreement shall be determined to be illegal and unenforceable by any court
of law or any competent governmental or other authority, the remaining
provisions shall be severable and enforceable in accordance with their terms so
long as this Agreement without such terms or provisions does not fail of its
essential purpose or purposes. The parties will negotiate in good faith to
replace any such illegal or unenforceable provision or provisions with suitable
provisions that will maintain the economic purposes and intentions of this
Agreement. 29. SECTION
HEADINGS 29.1 The captions for each
Section have been inserted for the sake of convenience and shall not be deemed
to be binding upon the parties for the purpose of interpretation of this
Agreement. 30. EXHIBITS 30.1 All references to
Exhibit or Exhibits herein shall mean those Exhibits A through G attached
to this Agreement, which are hereby incorporated into this Agreement as though
fully set forth herein. 31. SURVIVAL 31.1 Licensees obligations and
agreements under Sections 6, 7, 8, 11, 12, 13,15, 16, 18, 19, 20, 21, 22, 23,
25, 27, 28, 29, 30, 31, 33, 34, 35 shall survive the termination or expiration
of this Agreement. 32. TIME
IS OF THE ESSENCE 32.1 Time
is of the essence with respect to the obligations to be performed under this
Agreement. 33. RIGHTS
CUMULATIVE 33.1 Except
as expressly provided in this Agreement, and to the extent permitted by law,
any remedies described in this Agreement are cumulative and not alternative to
any other remedies available at law or in equity.
34. ENTIRE
AGREEMENT 34.1 The provisions of this
Agreement contain the entire agreement between the parties relating to use by
Licensee of Trademarks on Products, and on Product Materials, and supersede and
cancel all prior provisions, negotiations, agreements and commitments (whether
oral or in writing) with respect to the subject matter hereof. This Agreement
shall be interpreted to achieve the objectives and intent of the parties as set
forth in the text and factual recitals of the Agreement. It is specifically
agreed that no evidence of discussions during the negotiation of the Agreement
or drafts written or exchanged may be used in connection with the
interpretation or construction of this Agreement. This Agreement may not be
released, discharged, abandoned, changed or modified in any manner except by an
instrument in writing signed by the parties. In the event of any conflict
between the provisions of this Agreement and provisions in any other agreement
with Licensee, the provisions of this Agreement shall prevail.
35. GOVERNING LAW 35.1 This
Agreement is deemed to be executed in the State of Illinois and the
construction and performance of this Agreement will be construed and interpreted
according to the substantive laws of that State without regard to its conflicts
of law principles or rules. The parties agree that any legal action or
proceeding between Motorola and Licensee with respect to this Agreement,
including the Manufacturers Agreement, shall be brought in the United States
District Court for the Northern District of Illinois or, if such court does not
have jurisdiction, in any court of general jurisdiction in Cook County,
Illinois. IN WITNESS WHEREOF, the parties
haves caused this Agreement to be executed in duplicate originals by their
duly authorized representatives on the dates indicated below. MOTOROLA, INC.
/s/ Philip Gilchrist
By: Philip Gilchrist Title: Vice President, Global Product Management, Mobile Devices Business Date:
May 22, 2008 FORWARD INDUSTRIES, INC.
/s/ Doug Sabra
BY: Doug
Sabra Title: Chief Executive Officer Date:
May 14, 2008
EXHIBIT A
License between
Motorola and Forward Industries
Products: Carry
solutions, face plates, cleaners and decorative accessories for mobile
telephones and related accessories.
Territory: USA, Canada, Austria, Belgium, , Denmark,
Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Monaco, Norway,
Portugal, Spain, Sweden, Switzerland, UK, Czech Republic, Hungary, Latvia,
Lithuania, Poland, Slovakia, Croatia, Estonia, Russia, Ukraine, Liechtenstein,
Albania, Belarus, Bosnia-Herzegovina, Bulgaria, Macedonia, Romania, Slovenia,
Uzbekistan
Royalty (for each product): 15 % of Net Sales.
Term: April 1, 2008 through March 31, 2009
Sales Year: April 1 to March 31
Minimum Royalty:
2008: Q1 - N/A Q2 N/A Q3 - $150,000 Q4 - $250,000
2009: Q1 - $250,000
EXHIBIT B
The Licensed
Motorola Trademarks are: the MOTOROLA signature and the stylized M logo
(Emsignia) and associated Motorola Trade Dress
EXHIBIT C
TRADEMARK USE
GUIDELINES
Artistic
renderings of the Licensed Motorola Trademarks and Trade Dress shall be
provided to Licensee under the following items, which become a part of this
agreement by reference:
- Motorola
Basic Corporate Identity Standards
- Motorola
Consumer Packaging Guidelines
- Motorola
logo and artwork files
- Motorola
Global POS guidelines
FILES ARE
SUBJECT TO CHANGE Motorola shall keep Licensee
appraised of any changes and, in the event such change affects inventory or
packaging in stock or in production by Licensee, then Licensee shall be permitted
to sell such inventory and implement the change as a running change as soon
as practicable.
EXHIBIT D
SPECIFICATIONS
Material and Methods Specification-Template for Personalization
Products supplied as a .pdf file
Test Validation Matrix supplied as an Excel document
MANUFACTURERS AGREEMENT
AGREEMENT dated this ___________day
of____________________, 200_, by and among_________________________
(Address)____________ (Licensee) and ________________________, (Address)____________,
(Manufacturer), and Motorola, Inc., a Delaware Corporation (Motorola). WHEREAS, Licensee has obtained a license from Motorola to
use the Trademarks, Motorola Trade Dress and Copyrights referred to in Exhibit
1 (collectively Trademarks) to this Manufacturers Agreement, on or in
conjunction with the product(s) referred to in Exhibit 2 (Product(s)) to this
Manufacturers Agreement; and WHEREAS, Motorola owns throughout the world certain
trademark registrations for the Trademarks for use on a variety of goods; and WHEREAS, Manufacturer wishes to manufacture, exclusively
for Licensee, Product(s) using the Trademarks . NOW, in consideration of the foregoing, the covenants hereinafter
set forth, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows: 1.
TRADEMARKS, TRADE
DRESS, ORNAMENTAL DESIGNS 1.1 Manufacturer agrees that any and all rights that
may be acquired by the use of the Trademarks and Copyrights by the Manufacturer
shall inure to the sole benefit of Motorola. The Manufacturer shall execute all
papers and to make such filings as required to confirm such use inures to the
benefit of Motorola. 1.2 As
between Motorola and Manufacturer, Motorola owns and, upon creation shall own,
all rights in the trade dress, copyrights, ornamental designs, industrial
designs and design patents associated with the Product and any packaging,
marketing materials, point-of-sale materials, publicity, advertising, signs,
catalogs product brochures, warranty statement, user guide, and other in-box
materials relating to the Products and any derivative works created from them.
Manufacturer shall cooperate and shall execute all papers reasonably requested
by Motorola to effect registration, maintenance and renewal of these rights, at
the sole expense of Motorola. 2. PROTECTION AND
MAINTENANCE OF TRADEMARK 2.1 Manufacturer
also agrees to cooperate and execute all papers reasonably requested by
Licensee or Motorola to effect further registration, maintenance, and renewal
of the Trademarks and Copyrights at the sole expense of Motorola and, where
applicable, to record Manufacturer as a registered user of the Trademarks.
Manufacturer agrees not to use the Trademarks and Copyrights or any part
thereof as part of its corporate or trade name nor use any name or mark
confusingly similar to, or derivative of, the Trademarks and Copyrights. 2.2 Manufacturer
further agrees not to register in any country any name or mark resembling or
confusingly similar to or derivative of the Trademarks and Copyrights. 2.3 Manufacturer agrees that if any application for
registration is, or has been filed in any country by Manufacturer which relates
to any name or trademark which, in the opinion of Motorola, is confusingly
similar, deceptive or misleading with respect to the Trademarks and Copyrights,
Manufacturer shall abandon immediately any such application or registration or,
at Motorolas sole discretion, assign it to Motorola. 2.4 Manufacturer agrees that if it is notified by
Licensee or Motorola of any change in any of the Trademarks and Copyrights,
Manufacturer shall immediately change the Trademarks and Copyrights to conform
with such change. 3. CONTRACT MANUFACTURE LIMITATION 3.1 Manufacturer agrees that it will not manufacture
any goods using the Trademark and Copyrights other than the Product(s)
specified by this Manufacturers Agreement for which Manufacturer was approved
and shall exclusively manufacture for and/or sell to Licensee any such
Product(s) during the term of Licensees license from Motorola to use the
Trademark and Copyrights on such Product(s). 4. COMPLIANCE
WITH LAW AND LABOR PRACTICES 4.1 Manufacturer agrees to comply with all
applicable laws, orders, rules and regulations in performing its obligations.
4.2 Manufacturer warrants that all Products manufactured by
Manufacturer will be produced in compliance with all applicable laws, orders,
rules and regulations in the jurisdiction Manufacturer manufactures the
Products and will comply with the provisions of the Compliance with Laws and
Standards document attached hereto as Exhibit 3. .
4.3 Manufacturer warrants that all Products will be manufactured by it,
whether assembled or packaged in whole or in part, without the use of any
forced labor, prison labor or child labor, and that such Products will not be
trans-shipped for the purpose of mislabeling, evading quota or country of
origin restrictions, or avoiding compliance with provisions against forced
labor, prison labor or child labor. 5. REPRESENTATION AND WARRANTIES 5.1 Manufacturer
further agrees and warrants that at all times: (i) it has and shall maintain all rights and
licenses needed to manufacture and sell the Products and the Products do not
infringe any patent, copyright, mask work right, moral right, trademark,
service mark, trade secret and/or all other intellectual property rights and/or
similar rights of any third party. Manufacturer is solely responsible for all
royalties, fees or other payments to secure such rights and licenses. (ii) Manufacturer shall secure and maintain all
certifications and requirements to manufacture and sell the Products and
Manufacturer shall affix all labels on the appropriate area of each Product
regarding such certifications and requirements. Manufacturer shall provide
written evidence of such certifications and approvals upon request. (iii) All Products are new, and do not contain anything
used, and Manufacturer shall have processes, procedures and documentation in
place to comply with and substantiate this representation and warranty. 6. INDEMNIFICATION 6.1 Manufacturer agrees to indemnify, hold harmless
and defend Motorola its subsidiaries and customers with legal counsel
acceptable to Motorola from and against all suits, actions, claims, damages,
liabilities, costs and expenses, including attorneys fees, court costs and
other legal expenses (collectively Claims), arising out of or connected with
the Products, Manufacturer's methods of manufacturing the Products, and the
promotional or packaging material relating to the Products, except where such
Claims arise solely out of Licensees actions or omissions. Motorola agrees to
give Manufacturer written notice of any claim within thirty (thirty) days of
receipt by Motorola. Motorolas failure to provide written notice of the claim
within thirty days shall not affect its right to indemnification unless the
delay materially prejudices Manufacturers ability to respond to the claim. Manufacturer
shall bear full responsibility for the defense (including any settlements) of
any such claim; provided, however, that: (i) Manufacturer shall keep Motorola
informed of, and consult with Motorola in connection with the progress of such
litigation or settlement; and (ii) Manufacturer shall not have any right,
without Motorolas prior written consent, to settle any such claim if such
settlement arises from or is part of any criminal action, suit or proceeding or
contains a stipulation to or admission or acknowledgement of, any liability or
wrongdoing (whether in contract, tort, or otherwise) on the part of Motorola or
Motorola subsidiary. INSPECTION AND AUDIT 7.1 Manufacturer further agrees that upon seven (7)
days notice to Licensee, who shall in turn notify Manufacturer, Motorola shall
have the right to inspect, at Motorolas expense, the manufacturing facilities
of Manufacturer during regular business hours to determine compliance of the
Product(s) manufactured by Manufacturer with the applicable Control
Specifications approved by Motorola and supplied to Manufacturer by Licensee,
and for compliance with laws, standards and labor practices. 7.2 Manufacturer further agrees that, during the
term of this Agreement and for at least five (5) years following the
termination or expiration of this Agreement, Manufacturer and its Affiliates
shall maintain at Manufacturers or its Affiliates principal office, such
books and records, including, but not limited to, production, inventory and
sales records (collectively Books and Records) as are necessary to
substantiate that: (i) all statements submitted to Motorola by Licensee were
true, complete and accurate with regard to the quantities of Products sold to
Licensee by Manufacturer and the countries to which they were shipped; (ii) Manufacturer
has manufactured and sold Products exclusively to Licensee in accordance with the
provisions of this Agreement; and (iii) no payments have been made, directly or
indirectly, by or on behalf of Manufacturer or Licensee to or for the benefit
of any Motorola employee or agent who may reasonably be expected to influence
Motorolas decision to enter this Agreement or the amounts to be paid by
Licensee or Manufacturer under this Agreement. (As used in this Section,
payment shall include money, property, services, and all other forms of
consideration.) All Books and Records shall be maintained in accordance with
generally accepted accounting principles consistently applied. During the Term
of, and for five (5) years after the termination or expiration of this
Agreement, the Books and Records shall be open to inspection, audit, and copy
by or on behalf of Motorola during business hours. 8. CONFLICTING LAWS 8.1 Manufacturer
agrees that should it be or become aware of any applicable laws or regulations
which are materially inconsistent with the provisions of the Manufacturers
Agreement, it shall notify Licensee within fifteen (15) days of becoming aware
of such material inconsistency. 9. TERMINATION
AND EXPIRATION 9.1 Manufacturer agrees that upon the termination or
expiration of this Manufacturers Agreement, Manufacturer shall execute all
papers and make such filings as necessary to terminate any registered user
agreements or similar agreements that may have been executed, filed and/or
recorded while this Manufacturers Agreement was in effect. 9.2 Manufacturer acknowledges that any material
breach by Manufacturer of this Manufacturers Agreement will cause irreparable
harm and damages to Licensee and/or Motorola. If Licensee or Motorola
determine Manufacturer has materially breached this Manufacturers Agreement,
Manufacturer shall have thirty (30) days to cure such breach to the
satisfaction of Motorola and Licensee. If Manufacturer fails to cure such
material breach in thirty (30) days, this Manufacturers Agreement shall
terminate. The parties of this Manufacturers Agreement expressly agree that
Motorola, is an intended beneficiary of this Manufacturers Agreement with
rights to enforce such agreement. 10.
GOVERNING LAW 10.1 The construction and performance of this
Manufacturers Agreement will be governed by the internal, substantive laws of
the state of Illinois without regard to its choice of law rules. IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed in duplicate originals by its duly authorized
representative on the respective dates entered below. MANUFACTURER LICENSEE By: __________________________ By:
_____________________ Title: __________________________ Title:
____________________ Date: __________________________ Date:
____________________ MOTOROLA, INC. By: __________________________ Title: __________________________ Date: __________________________
13-1950672
incorporation or organization)(I.R.S.
Employer Identification No.)
[ ] Non-accelerated filer (Do not check if a smaller reporting
company)
[X] Smaller reporting company
Certain specified portions of the
registrants proxy statement in respect of its annual meeting of shareholders
expected to be held on or about February 11, 2009, are incorporated by
reference into Part III (Items 10-14) of this Annual Report on Form 10-K to the
extent described herein.
"we", "our", and the "Company" refer to Forward
Industries, Inc., a New York corporation, together with its consolidated
subsidiaries;
Forward or Forward Industries refers to Forward Industries, Inc.;
common stock refers to the common stock, $.01 par value per share, of Forward
Industries, Inc.;
"Koszegi" refers to Forward Industries wholly owned subsidiary
Koszegi Industries, Inc., an Indiana corporation;
Koszegi Asia refers to Forward Industries wholly owned subsidiary Koszegi
Asia Ltd., a Hong Kong corporation (the name of this subsidiary was changed to
Forward Industries HK Limited in October 2008);
Forward Innovations refers to Forward Industries wholly owned subsidiary
Forward Innovations GmbH, a Swiss corporation; Forward APAC refers to Forward
Industries wholly owned subsidiary Forward Asia Pacific Limited, a Hong Kong
corporation; GAAP refers to accounting principles generally accepted in the
United States;
Commission refers to the United States Securities and Exchange Commission;
Exchange Act refers to the United States Securities Exchange Act of 1934, as
amended;
Fiscal 2008 refers to our fiscal year ended September 30, 2008;
Fiscal 2007 refers to our fiscal year ended September 30, 2007;
Fiscal 2006 refers to our fiscal year ended September 30, 2006;
EMEA Region means the geographic area encompassing Europe, the Middle East
and Africa;
Europe means the countries included in the European Union and also, in the
context of the Motorola License territory, the following countries: Norway,
Switzerland, Croatia, Russia, Ukraine, Albania, Belarus, Bosnia-Herzegovina,,
Macedonia, and Uzbekistan;
APAC Region means the Asia Pacific Region, consisting of Australia, New
Zealand, Hong Kong, Taiwan, China, South Korea, Japan, Singapore, Malaysia,
Thailand, Indonesia, India, the Philippines and Vietnam;
Americas refers to the geographic area encompassing North, Central, and
South America
PART I
PART II
*High and low bid price information as furnished
by The NASDAQ Stock Market Inc.
24
27
30
PART III
PART IV
a.
Financial Statements and Schedules
Report of Independent
Registered Public Accounting Firm
Consolidated Balance Sheets
Consolidated Statements of Operations
Consolidated Statements of Shareholders Equity
Consolidated Statements of Cash Flows
Notes to Consolidated Financial Statements
Financial statement schedules
other than those listed above have been omitted because they are either not
required, not applicable or the information is otherwise included in the notes
to the consolidated financial statements.
b. Exhibits
3.
ARTICLES
OF INCORPORATION AND BY-LAWS
3(i).1
3(i).2
3(ii).1
3(ii).2
3(ii).3
10.
MATERIAL
CONTRACTS
10.1
10.2
Shares
Paid-in Capital
Earnings
Shares
Exercise Price
Remaining
Contractual
Term (Years)
Intrinsic Value
September 30, 2008
Remaining Contractual
Term (Years)
Exercise Price
Average
Grant Date
Fair Value
December 15, 2008
December 15, 2008
December 15, 2008
December 15, 2008
December 15, 2008
December 15, 2008
December 15, 2008
3.
ARTICLES
OF INCORPORATION AND BY-LAWS
3(i).1
3(i).2
3(ii).1
3(ii).2
3(ii).3
10.
MATERIAL
CONTRACTS
10.1
10.2
32.
CERTIFICATIONS PURSUANT TO RULE 13a-14(b) (Section 906 of
Sarbanes-Oxley)
32.1
LICENSE
AGREEMENT
BETWEEN
3. SAMPLES; QUALITY CONTROL
29
29
29
29
29
30
30
30
30
30
Promptly means a reasonable effort to perform
within 10-15 business days.
EXHIBIT E
EXHIBIT 1 to Manufacturers Agreement
TRADEMARKS, TRADE DRESS, AND COPYRIGHTS
The Licensed Motorola Trademarks are: the MOTOROLA signature and the stylized M logo (Emsignia) and associated Motorola Trade Dress
EXHIBIT 2 to Manufacturers Agreement
PRODUCTS
EXHIBIT 3 to Manufacturers Agreement
Compliance with Laws and Ethical Standards
1. Ethical Conduct, Anticorruption and Unfair Business Practices
Motorola has historically depended on product quality and superiority, combined with outstanding support capability, to sell its products. Accordingly, Manufacturer agrees to perform the services hereunder with the highest ethical standards. Motorola will not do business with any entity or person where Motorola believes that payoffs or similar improper or unethical practices are involved. Motorola expects its Manufacturers to abide by this policy and not to have a relationship with another entity or person, or engage in any activity that results or may result in a conflict of interest, or embarrassment to Motorola, or harm to Motorola's reputation. Manufacturer will: (i) maintain transparency and accuracy in corporate record keeping; (ii) act lawfully and with integrity in handling competitive data, proprietary information and other intellectual property; and (iii) comply with legal requirements regarding fair competition and antitrust, and accurate and truthful marketing. Manufacturer will not engage in corrupt practices, including public or private bribery or kickbacks. If Manufacturer fails to comply in any respect with all of these requirements, then Motorola may immediately and without liability terminate this Agreement.
2. Antidiscrimination and Humane Treatment of Workers
a. Manufacturer will employ workers on the basis of their ability to do the job and not on the basis of their personal characteristics or beliefs.
b. Manufacturer will assure that Products (including parts) will not be produced, manufactured, mined, or assembled with the use of forced, prison, or indentured labor, including debt bondage, or with the use of illegal child labor in violation of International Labor Conventions for minimum age (ILO-C138) and child labor (ILO-C182). If Manufacturer recruits contract workers, Manufacturer will pay agency recruitment commissions, will not require workers to remain in employment for any period of time against their will, and will not impose any early termination penalties on workers. If Manufacturer provides housing or eating facilities, Manufacturer will assure the facilities are operated and maintained in a safe, sanitary and dignified manner.
c. Manufacturer will operate safe, healthy and fair working environments, including managing operations so levels of overtime do not create inhumane working conditions. Manufacturer will pay workers at least the minimum legal wage, or where no wage laws exist, the local industry standard. Manufacturer will assure that workers are free to join, or refrain from joining, associations of their own choosing, unless otherwise prohibited by law. Manufacturer will not routinely require workers to work in excess of six consecutive days without a rest day.
3. Environmental Protection
a. Manufacturer will implement a functioning environmental management system in accordance with ISO 14001 or equivalent. Third-party registration is recommended but not required.
b. Manufacturer certifies that Products and their parts do not contain and are not manufactured with a process that uses any Class I ozone-depleting substances (as identified in 40 CRF Part 82 Appendix A to Subpart A, or as subsequently identified by the U.S. Environmental Protection Agency as Class I ozone-depleting substances). For Products imported into the United States, Manufacturer will provide Motorola with a completed and signed ODS Certification Questionnaire, accessible at the following URL: http://www.motorola.com/suppliers/materialsdisclosure
c. For Products used as parts for Motorola products, including the packaging used with such products and any manuals that accompany such products in the ordinary course, Manufacturer will provide material disclosure or certification, as defined in Motorolas Controlled and Reportable Materials Disclosure Process, accessible at the following URL: http://www.motorola.com/suppliers/materialsdisclosure
4. Material Safety Data Sheets
Manufacturer will electronically provide material safety data sheets, chemical safety data sheets, or equivalent documentation for all chemicals sold to Motorola. For all chemicals supplied or imported into the United States, Manufacturer will certify that the chemicals are listed on the Toxic Substances Control Act, 15 USCS §2601, et. seq., chemical inventory, or are subject to an exemption specified in the material safety data sheets.
5. Imports and Customs
Manufacturer will comply with all import and customs laws, regulations and administrative determinations of the importing country. Manufacturer will comply with the security criteria of the importing countrys government security program. If Manufacturer is providing Products to be delivered to, or Services to support delivery to, the U.S., Manufacturer will comply with the security criteria of the U.S. Customs and Border Protections Customs-Trade Partnership against Terrorism (C-TPAT) Program (available on http://www.cbp.gov ).
6. Export Restriction
If Manufacturer is the exporter of record for any shipments, Manufacturer will obtain all export authorizations from the U.S. government or other governments that may be required to lawfully make such shipments.
7. Utilization of Small Business Concerns
If applicable, Manufacturer will comply with the provisions of U.S. Federal Acquisition Regulation (FAR) 52.219-8 pertaining to Utilization of Small Business Concerns, as well as any other state and local, small and other business utilization laws.
8. Equal Opportunity
If applicable, Manufacturer will comply with the provisions of FAR 52.222-21, 52.222-26, 52.222-35, and 52.222-36 pertaining to Segregated Facilities, Equal Opportunity, Equal Opportunity for Veterans, and Affirmative Action for Workers with Disabilities. If applicable, Manufacturer will maintain, at each establishment, affirmative action programs required by the rules of the U.S. Secretary of Labor (41 CFR 60-1 and 60-2).
9. Government Subcontract
If an Order is issued under a government contract, Manufacturer will comply with the terms of the government contract that appear on the Order, and with any other applicable laws, regulations and executive orders.
10. Manufacturer Diversity
If Manufacturer is located in the United States or is supplying Products to Motorola locations based in the United States, Manufacturer will track and report its Supply Chains spend with minority-owned, women-owned and disabled veteran-owned business enterprises located in the United States. Manufacturer and Motorola will agree on a goal for Manufacturers Supply Chain spend, based upon a percentage of Manufacturers total gross revenues under this Agreement. Manufacturer will submit quarterly progress reports, in a format designated by Motorola, by the twenty-fifth day of the month following the end of each calendar quarter. All reports will be forwarded to the Motorola Manufacturer Diversity Group, 2501 S. Price Road, M/D G1232, Chandler, AZ 85248, or sent via email to supplierdiversity@motorola.com .
11. Product Safety and Regulatory Compliance
Manufacturer will ensure that all Products and services provided comply with all applicable regulations and laws, including all applicable product safety, environmental, and recycling regulations and laws.
12. ICT Manufacturer Self Assessment Questionnaire
Upon Motorolas request, Manufacturer will obtain a subscription to the Global e-sustainability Initiative (GeSI) and Electronic Industry Code of Conducts (EICC) online system E-TASC at www.E-TASC.com and complete the ICT Supplier Self-Assessment within that system. Details regarding this ICT Supplier Self Assessment Questionnaire and Motorola Corporate Responsibility initiatives are available for review at: http://compass.mot.com/web/wikinethome .
EXHIBIT F
PRODUCT WARRANTY
Licensee shall include a written warranty statement on or in all Product packaging. Such warranty shall, at a minimum:
The following statement shall be used for all goods sold in the United States:
Statement of Limited Warranty: (Licensee) warrants that for a period of years from the date of purchase that this product 1) is free from defects in materials and workmanship and 2) conforms to its specifications. If this product does not function as warranted during the warranty period, (Licensee), at its option, will either replace this product with one that is functionally equivalent or will refund your purchase price. These are your exclusive remedies under this warranty. Please call 1-800 (XXXXXXXX) for warranty service.
This product is manufactured, distributed or sold by XXXXXX, official licensee for this product. Motorola, the Motorola logo trademarks and the Motorola trade dress are owned by Motorola, Inc. and are used under license from Motorola. Please contact XXXXXX at YYYYYYYY for questions/comments, warranty, support, or service related to this product
This warranty will be voided by misuse, improper physical environment, accident, or improper maintenance by you. THIS WARRANTY REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AN]) FITNESS FOR A PARTICULAR PURPOSE. THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD.
Circumstances may arise where, because of a default on (Licensees) part or other liability, you are entitled to recover damages from (Licensee). In each such instance, regardless of the basis on which you are entitled to claim damages from (Licensee) (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), (Licensee) is only liable for:
1. damages for bodily injury (including death) and damage to real property and
tangible personal property; and
2. the amount of any other actual direct damages or loss, up to the greater of $500 or
the price paid for this product.
UNDER NO CIRCUMSTANCES IS (Licensee) OR XXX LIABLE FOR ANY OF THE FOLLOWING: (1) THIRD-PARTY CLAIMS AGAINST YOU FOR LOSSES OR DAMAGES (OTHER THAN THOSE UNDER THE FIRST ITEM LISTED ABOVE); (2) LOSS OF, OR DAMAGE TO, YOUR RECORDS OR DATA: OR (3) SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF (Licensee) OR XXX ARE INFORMED OF THEIR POSSIBILITY. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
EXHIBIT G
Compliance with Laws and Ethical Standards
1. Ethical Conduct, Anticorruption and Unfair Business Practices
Motorola has historically depended on product quality and superiority, combined with outstanding support capability, to sell its products. Accordingly, Licensee agrees to perform the services hereunder with the highest ethical standards. Motorola will not do business with any entity or person where Motorola believes that payoffs or similar improper or unethical practices are involved. Motorola expects its Licensees to abide by this policy and not to have a relationship with another entity or person, or engage in any activity that results or may result in a conflict of interest, or embarrassment to Motorola, or harm to Motorola's reputation. Licensee will: (i) maintain transparency and accuracy in corporate record keeping; (ii) act lawfully and with integrity in handling competitive data, proprietary information and other intellectual property; and (iii) comply with legal requirements regarding fair competition and antitrust, and accurate and truthful marketing. Licensee will not engage in corrupt practices, including public or private bribery or kickbacks. If Licensee fails to comply in any respect with all of these requirements, then Motorola may immediately and without liability terminate this Agreement.
2. Antidiscrimination and Humane Treatment of Workers
a. Licensee will employ workers on the basis of their ability to do the job and not on the basis of their personal characteristics or beliefs.
b. Licensee will assure that Products (including parts) will not be produced, manufactured, mined, or assembled with the use of forced, prison, or indentured labor, including debt bondage, or with the use of illegal child labor in violation of International Labor Conventions for minimum age (ILO-C138) and child labor (ILO-C182). If Licensee recruits contract workers, Licensee will pay agency recruitment commissions, will not require workers to remain in employment for any period of time against their will, and will not impose any early termination penalties on workers. If Licensee provides housing or eating facilities, Licensee will assure the facilities are operated and maintained in a safe, sanitary and dignified manner.
c. Licensee will operate safe, healthy and fair working environments, including managing operations so levels of overtime do not create inhumane working conditions. Licensee will pay workers at least the minimum legal wage, or where no wage laws exist, the local industry standard. Licensee will assure that workers are free to join, or refrain from joining, associations of their own choosing, unless otherwise prohibited by law. Licensee will not routinely require workers to work in excess of six consecutive days without a rest day.
3. Environmental Protection
a. Licensee will implement a functioning environmental management system in accordance with ISO 14001 or equivalent. Third-party registration is recommended but not required.
b. Licensee certifies that Products and their parts do not contain and are not manufactured with a process that uses any Class I ozone-depleting substances (as identified in 40 CRF Part 82 Appendix A to Subpart A, or as subsequently identified by the U.S. Environmental Protection Agency as Class I ozone-depleting substances). For Products imported into the United States, Licensee will provide Motorola with a completed and signed ODS Certification Questionnaire, accessible at the following URL: http://www.motorola.com/content.jsp?globalObjectId=8343
c. For Products used as parts for Motorola products, including the packaging used with such products and any manuals that accompany such products in the ordinary course, Licensee will provide material disclosure or certification, as defined in Motorolas Controlled and Reportable Materials Disclosure Process, accessible at the following URL: http://www.motorola.com/mot/doc/1/1501_MotDoc.pdf
4. Material Safety Data Sheets
Licensee will electronically provide material safety data sheets, chemical safety data sheets, or equivalent documentation for all chemicals sold to Motorola. For all chemicals supplied or imported into the United States, Licensee will certify that the chemicals are listed on the Toxic Substances Control Act, 15 USCS §2601, et. seq., chemical inventory, or are subject to an exemption specified in the material safety data sheets.
5. Imports and Customs
Licensee will comply with all import and customs laws, regulations and administrative determinations of the importing country. Licensee will comply with the security criteria of the importing countrys government security program. If Licensee is providing Products to be delivered to, or Services to support delivery to, the U.S., Licensee will comply with the security criteria of the U.S. Customs and Border Protections Customs-Trade Partnership against Terrorism (C-TPAT) Program (available on http://www.cbp.gov).
6. Export Restriction
If Licensee is the exporter of record for any shipments, Licensee will obtain all export authorizations from the U.S. government or other governments that may be required to lawfully make such shipments.
7. Utilization of Small Business Concerns
If applicable, Licensee will comply with the provisions of U.S. Federal Acquisition Regulation (FAR) 52.219-8 pertaining to Utilization of Small Business Concerns, as well as any other state and local, small and other business utilization laws.
8. Equal Opportunity
If applicable, Licensee will comply with the provisions of FAR 52.222-21, 52.222-26, 52.222-35, and 52.222-36 pertaining to Segregated Facilities, Equal Opportunity, Equal Opportunity for Veterans, and Affirmative Action for Workers with Disabilities. If applicable, Licensee will maintain, at each establishment, affirmative action programs required by the rules of the U.S. Secretary of Labor (41 CFR 60-1 and 60-2).
9. Government Subcontract
If an Order is issued under a government contract, Licensee will comply with the terms of the government contract that appear on the Order, and with any other applicable laws, regulations and executive orders.
10. Licensee Diversity
If Licensee is located in the United States or is supplying Products to Motorola locations based in the United States, Licensee will track and report its Supply Chains spend with minority-owned, women-owned and disabled veteran-owned business enterprises located in the United States. Licensee and Motorola will agree on a goal for Licensees Supply Chain spend, based upon a percentage of Licensees total gross revenues under this Agreement. Licensee will submit quarterly progress reports, in a format designated by Motorola, by the twenty-fifth day of the month following the end of each calendar quarter. All reports will be forwarded to the Motorola Licensee Diversity Group, 2501 S. Price Road, M/D G1232, Chandler, AZ 85248, or sent via email to supplierdiversity@motorola.com .
11. Product Safety and Regulatory Compliance
Licensee will ensure that all Products and services provided comply with all applicable regulations and laws, including all applicable product safety, environmental, and recycling regulations and laws.
12. ICT Licensee Self Assessment Questionnaire
Upon Motorolas request, Licensee will obtain a subscription to the Global e-sustainability Initiative (GeSI) and Electronic Industry Code of Conducts (EICC) online system E-TASC at www.E-TASC.com and complete the ICT Supplier Self-Assessment within that system. Details regarding this ICT Supplier Self Assessment Questionnaire and Motorola Corporate Responsibility initiatives are available for review at: http://compass.mot.com/web/wikinethome .
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this Agreement), dated as of the 12th day of August, 2008, between Forward Industries, Inc., a New York corporation having its principal offices at 1801 Green Road, Suite E, Pompano Beach, Florida 33064 (the Company), and Douglas W. Sabra, residing at 7441 Brunswick Circle, Boynton Beach FL 33437 (Executive).
W I T N E S S E T H:
WHEREAS, Executive has been rendering services to the Company pursuant to an employment agreement between him and the Company dated as of December 27, 2005, effective as of October 1, 2005, and amended as of January 2, 2008 (the Prior Agreement);
WHEREAS, the Company and Executive desire to amend and restate the Prior Agreement in order to reflect their current agreements as to the terms of employment, with effect from the date of execution of this Agreement (Effective Date);
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt of which the parties hereby acknowledge, the parties agree as follows:
1. PRIOR AGREEMENT
The parties hereto hereby agree that (a) the terms of this Amended and Restated Agreement shall govern the terms of employment of Executive by the Company, and (b) the Company has no obligations to Executive under the Prior Agreement that have not been discharged except in respect of accrued and unpaid salary to the date of execution hereof, unused personal days and vacation time accrued in respect of the fiscal year ended September 30, 2008, and pension, medical benefits, and other benefits granted to all employees generally as such benefits have accrued on behalf of Executive consistent with the terms of the Prior Agreement and as continued pursuant to this Agreement.
2. EMPLOYMENT TERM
Unless earlier terminated in accordance with the terms of this Agreement, the term of employment hereunder (the Term) shall commence on the Effective Date and expire on December 31 , 2009. Upon expiration of the Term, this Agreement shall be automatically renewed for successive terms of one year each; provided, however, that if either party provides written notice to the other party of its or his determination not to so renew not later than 90 (ninety) days prior to the expiration of the Term, or any renewal thereof, as the case may be, this Agreement and Executives employment shall terminate at the end of the Term or such renewal term, as the case may be. In the event that the Company is the party giving notice of non-renewal, this shall be treated as a termination without Cause and governed by the terms of Section 6 or Section 8, as the case may be.
3 EMPLOYMENT DUTIES AND SERVICES
(a) On the terms and conditions herein set forth, the Company hereby employs Executive as its President (chief executive officer) for the term of this Agreement and any renewal(s) thereof, and Executive hereby accepts such employment. Executive shall perform such duties and responsibilities of a chief executive nature for the Company as shall be consistent with the provisions of the Companys By-laws in effect from time to time and as are customary for a chief executive officer of corporations of similar size and business as the Company, subject to the direction of the Companys Board of Directors (the Board). Subject to election thereto by the shareholders of the Company at the annual or other meeting from time to time, for so long as he serves as President Executive shall serve as a member of the Board, for which he shall not be entitled to additional compensation. Executive shall serve the Company faithfully and to the best of his ability and shall devote his full business time and attention to the business and affairs of the Company, subject to reasonable absences for vacation and illness as determined by the Compensation Committee of the Board (the Compensation Committee). Executive will not engage, directly or indirectly, in any other business or occupation during the Term.
-2-
(b) Nothing in this Agreement shall preclude the Executive from (i) engaging in personal investment activities for himself and his family, (ii) accepting directorships unrelated to the Company, subject to the prior, written approval of the Compensation Committee, (iii) engaging in charitable and civic activities, and (iv) engaging in such other limited activities on behalf of family interests as have been or may be approved by the Nominating and Governance Committee of the Board, so long as any one or more such outside interests set forth in clauses (i), (ii), (iii), and (iv) hereof do not interfere with or affect the performance of his duties or responsibilities hereunder.
(c) Unless otherwise agreed in writing by the Company and Executive, the performance of Executives services during the term of this Agreement shall be rendered at the principal executive offices of the Company, subject to such travel in furtherance of Executives performance of his duties hereunder as the business of the Company may require.
4. COMPENSATION AND EXPENSE REIMBURSEMENT
(a) Salary. Executive shall be entitled to receive for all services rendered by Executive in any and all capacities in connection with his employment hereunder a salary (as it may be adjusted, Salary) of $250,000 per annum, payable in equal installments in accordance with the prevailing practices of the Company (but not less frequently than monthly).
(b) Bonus; Calculation and Payment. The Executive shall be eligible to receive a bonus (Bonus) with respect to each full fiscal year or part thereof (except to the extent expressly provided in Section 4(b), 5, 6, or 7(b) hereof) in respect of his employment hereunder, as set forth in this Section 4. The amount of Bonus, if any, that Executive may earn in any fiscal year during the Term hereof pursuant to this Section 4(b) shall be based on the extent to which, if any, the Company achieves all or a percentage of, or exceeds, Target (as defined below) in each such fiscal year, in accordance with guidelines, or a formula, for earning such bonus as fixed by the Compensation Committee in its sole discretion not later than the date referred to in the next paragraph.
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Target means, with respect to any fiscal year, the amount of pre-tax income or other measure of operating results of the Company as determined by the Compensation Committee of the Board in its sole discretion, projected for achievement, in whole or in part, in such fiscal year by the Compensation Committee for the purpose of establishing Executives right to receive Bonus compensation in respect of such fiscal year. The Compensation Committee shall determine the Target, together with the formulas for earning Bonus hereunder, after the Board has adopted the Annual Budget in respect of each fiscal year during the Term hereof but not later than the 75th day of each such fiscal year. The Compensation Committee may determine that the amount of Bonus for such purposes may be pro rated based on Target being achieved, exceeded, or missed.
Bonus compensation, if any, payable pursuant to Section 4(b) shall be payable to Executive not earlier than the date on which the Companys audited financial statements relating to the fiscal year in respect of which such Bonus compensation is payable are first filed with the Securities and Exchange Commission (the Commission) pursuant to Section 13 or 15(d) under the Securities Exchange Act of 1934 (Exchange Act) nor later than the tenth (10th) business day after such date. If Executive is otherwise entitled to payment of a Bonus pursuant to this Section 4(b) and the terms of this Agreement but has not served as an employee for the full fiscal year in respect of which such Bonus is payable, Executive, or his estate, shall be entitled to payment, at the time specified in the next preceding sentence, of a ratable portion of such Bonus to which he or his estate is entitled, based on the ratio that the actual number of days in such fiscal year during which he served as an Employee pursuant to this Agreement and is so entitled bears to 365; provided, however, that no Bonus (pro-rated or otherwise) shall be payable in respect of a fiscal year during which Executive is employed hereunder solely for the first fiscal quarter thereof because of expiration of the Term, or any renewal thereof as a result of notice of non-renewal furnished pursuant to Section 2; and provided, further, that if Executives employment was terminated as a result of notice pursuant to Section 5, Termination for Cause, he shall not be entitled to any Bonus compensation in respect of the fiscal year during which such notice of termination was given or during which such termination becomes effective.
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(c) Expenses. Executive will be reimbursed for all reasonable and necessary expenses incurred by Executive in carrying out the duties contemplated under this Agreement, in accordance with Company practices and procedures in effect from time to time, as such practices may be changed from time to time by the Board. Executive shall be entitled to a monthly allowance, subject to the approval and discretion of the Compensation Committee, to defray the expense of the lease of an automobile (including monthly lease cost, maintenance, insurance, and operating expense) for Executives use in connection with the discharge of his duties under this Agreement, the amount of which allowance shall be includible in Executives W-2 statements and be subject to applicable income tax withholding regulations..
(d) Benefits. Executive shall be entitled to participate in all group health and other insurance programs and all other fringe benefit (including vacation) and retirement plans (including any 401(k) plan) or other compensatory plans that the Company may hereafter elect to make available to its executives generally on terms no less favorable than those provided to other executives generally, provided Executive meets the qualifications therefor. The Company shall not be required to establish any such program or plan, except to the extent expressly set forth in this Section 4.
(e) Withholding. All payments required to be made by the Company hereunder to the Executive shall be subject to the withholding of such amounts relating to taxes and other governmental assessments as the Company may reasonably determine it should withhold pursuant to any applicable law, rule or regulation.
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(f) IRC§409A. Executive and the Company agree that the provisions of this Agreement shall be construed and implemented, and any deferrals and elections shall be made, in order to comply with Internal Revenue Code Section 409A, as it may be amended, and the rules and regulations issued thereunder from time to time.
5. TERMINATION BY THE COMPANY FOR CAUSE
(a) The Board of Directors may, by written notice given at any time during the Term, or any renewal thereof, terminate the employment of Executive for cause, the cause to be specified in reasonable detail in such notice. For purposes of this Agreement, cause shall mean Executives:
(i) willful misconduct in connection with the performance of any of his duties or services hereunder, including without limitation (1) misappropriation or improper diversion of funds, rights or property of the Company or any subsidiary of the Company (Subsidiary ), or (2) securing or attempting to secure personally (including for the benefit of any family member, or person sharing the same household, or any entity (corporate, partnership, unincorporated association, proprietorship, limited liability company, trust, or otherwise) in which Executive has any economic or beneficial interest) any profit or benefit in connection with any transaction entered into on behalf of the Company or any Subsidiary unless the transaction benefiting the entity has been approved by the Board upon the basis of full disclosure of such benefit, or (3) material breach of any covenant contained in this Agreement or (4) any other action in violation of Executive s fiduciary duty owed to the Company or Executive s acting in a manner adverse to the interests of the Company and for his own pecuniary benefit or that of a family member (or member of his household) or any entity (as described in clause (i)(2) of Section 5(a) above) in which he or any such person has an economic or beneficial interest; or (5) Executive s failure to cooperate, if requested by the Board, with any investigation or inquiry into his or the Company s business practices, whether internal or external;
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(ii) willful failure, neglect or refusal to perform his duties or services under this Agreement, which failure, neglect or refusal shall continue for a period of 30 days after written notice thereof shall have been given to the Executive by or on behalf of the Board ; and/or
(iii) conviction of, or nolo contendere or guilty plea in connection with, a felony.
(b) Termination for cause under clause (i) or (iii) of paragraph (a) of this Section 5 shall be effective immediately upon the giving of such notice; if notice of termination for cause relates to clause (ii) of paragraph (a) of this Section 5, termination shall be effective on the thirtieth (30th) day after the notice referred to in the first sentence of this Section 5 is given to Executive, unless the Executive shall have, prior to such thirtieth (30th) day, cured the alleged cause to the satisfaction of the Board, in which case the Board shall so notify Executive and such cause shall be deemed to no longer exist; provided, however, that if the Board concludes that Executives willful failure, neglect, or refusal to perform has resulted in material damage to the Company or its reputation that is not capable of being remedied, termination shall be effective immediately upon giving of notice.
For purposes of this Agreement, an act or failure to act on the Executives part shall be considered willful if it was done or omitted to be done by him not in good faith, and shall not include any act or failure to act resulting from any incapacity of the Executive.
(c) Upon termination of employment by the Company for Cause, the Executive shall be entitled to receive, and his sole remedies under this Agreement shall be:
(i) any earned and unpaid Salary accrued through the date of termination for Cause, payable in a lump sum not later than 15 days following Executives termination of employment;
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(ii) compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 5;
(iii) except for any Bonus compensation (for which Executive shall not be eligible), any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(iv) any stock options, grants of Common Stock, restricted share grants or other benefits under any of the Companys compensation plans that were vested as of 5:00 PM on the date immediately prior to the date of termination in accordance with the terms of such plans and any applicable plan agreements with Executive, provided, however, that any vested but unexercised stock options may not be exercised on or after the effective date of termination.
(d) Termination of Executives employment under this Section 5 shall be in addition to and not exclusive of any other rights and remedies that the Company has or may have relating to Executive with respect to the facts and circumstances pertaining to such termination.
6. TERMINATION BY EXECUTIVE FOR GOOD REASON OR TERMINATION WITHOUT CAUSE PRIOR TO CHANGE IN CONTROL
(a) In the event Executive terminates his employment under this Agreement for Good Reason (as hereinafter defined), or in the event Executives employment is terminated without Cause (which termination shall be effective as of the date specified by the Company in written notice delivered to Executive not fewer than 15 days prior to the date of termination) other than due to death or Disability (as hereinafter defined), in either case prior to a Change in Control (as hereinafter defined), the Executive shall be entitled to receive, and his sole remedies under this Agreement shall be:
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(i) any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executives termination of employment;
(ii) Salary, at the annualized rate in effect on the date of termination of Executives employment (or, in the event a reduction in Salary is a basis for termination for Good Reason, then the Salary in effect immediately prior to such reduction), for a period of (A) in case of executives termination for Good Reason, six months following such termination, or (B) in case of termination by the Company without cause, the greater of (x) six months or (y) the balance of the Term (or renewal thereof, as the case may be) remaining after the date of termination set forth in such notice, in either case payable in a lump sum not later than 15 days following termination of employment;
(iii) compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 6;
(iv) except in the case of the Company giving notice of non-renewal at the end of the Term (or any renewal thereof), the ratable amount of Bonus, if any, to which Executive would otherwise have been entitled in the current fiscal year but for termination under this Section, payable at the time specified in Section 4(b);
(v) any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
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(vi) any stock options, grants of Common Stock, restricted share grants or other benefits under any of the Companys compensation plans that were vested as of 5:00 PM on the date immediately prior to the date of termination, which may be exercised (in the case of options) or delivered (in the case of restricted stock) in accordance with the terms of such plans and any applicable plan agreements with Executive.
(b) Termination by the Executive for Good Reason shall be effected by his giving prior written notice to the Company, in which case this Agreement shall terminate on the date specified in such notice; provided, however, that such notice shall specify (i) in reasonable detail the circumstances or event asserted as the basis for termination for Good Reason and (ii) a date of termination that shall be at least thirty (30) days after the date of delivery of such notice; and provided, further, that the Company shall have the right during such thirty (30) day period to remedy the circumstances or event giving rise to the notice of termination for Good Reason prior to the date specified in such notice, in which case no right of termination or other right shall exist under this Section. .
For purposes of this Agreement, subject to Section 8(D), the term Good Reason shall mean:
(i) the assignment to Executive without his written consent of any duties inconsistent in any material respect with Executives chief executive position (including employment status, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 3 of this Agreement or any other action by the Company that results in a material diminishment in such positions, authority, duties, or responsibilities, other than such assignment or other action that is remedied by the Company prior to the date of termination specified in the written notice from Executive:
(ii) a decrease in annual Salary rate;
(iii) any failure by the Company to perform any material obligation under, or its breach of a material provision of, this Agreement that is not cured within the 30-day notice period referred to above; or
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(iv) failure of a Successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent as the Company would have had there been no Successor.
7. TERMINATION FOR DEATH OR DISABILITY
(a) Executives employment shall terminate immediately upon his death or Disability (as hereinafter defined). Upon such termination, the Executive, his estate, or his beneficiaries, as the case may be, shall be entitled to receive, and their sole remedies under this Agreement shall be:
(i) subject to Section 8(b), any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executives termination of employment;
(ii) subject to Section 8(b), compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 7;
(iii) subject to Section 8(b), the ratable amount of Bonus, if any, to which Executive would otherwise have been entitled in the current fiscal year to the date of termination under this Section, payable at the time specified in Section 4(b);
(iv) any unpaid benefits accrued through the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(v) any stock options, grants of Common Stock, restricted share grants or other benefits under any of the Companys compensation plans that were vested as of 5:00 PM on the date immediately prior to the date of termination, which may be exercised (in the case of options) or delivered (in the case of restricted stock) in accordance with the terms of such plans and any applicable plan agreements with Executive.
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(b) For purposes of this Agreement, the term Disability shall mean any disability, illness, or other incapacity that prevents Executive from performing services as contemplated by Section 3, for 120 or more consecutive days or for 180 days in any consecutive 12-month period. In such event, the Company shall have the right to terminate this Agreement upon 10 days prior written notice to Executive. During the period of any such disability, illness, or incapacity, (i) the obligation of the Company to pay Salary to Executive pursuant to Section 4 shall be reduced to the extent of any amount received by Executive pursuant to any disability insurance policy maintained and paid for by the Company, and (ii) no bonus compensation shall accrue or be earned, or count toward proration. Termination under this Section shall not prejudice any rights of Executive under disability policies being maintained by the Company for Executive under the terms of this Agreement, if any.
8. TERMINATION UPON CHANGE OF CONTROL
(a) In the event Executive terminates his employment under this Agreement for Good Reason, or in the event Executives employment is terminated without Cause (which termination shall be effective as of the date specified by the Company in written notice to Executive) other than due to death or disability, in either case within 12 months after a Change in Control (as hereinafter defined), the Executive shall be entitled to receive, and his sole remedies under this Agreement shall be:
(i) any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executives termination of employment;
(ii) Salary, at the annualized rate in effect on the date of termination of Executives employment (or, in the event a reduction in Salary after a Change in Control is a basis for termination for Good Reason, then the Salary in effect immediately prior to such reduction), for a period of 12 months following such termination, payable in a lump sum not later than 15 days following termination of employment;
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(iii) compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 8;
(iv) except in the case of the Company giving notice of non-renewal at the end of the Term (or any renewal thereof), the ratable amount of Bonus, if any, to which Executive would otherwise have been entitled in the current fiscal year but for termination under this Section, payable at the time specified in Section 4(b);
(v) any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(vi) immediate vesting and elimination of all restrictions on any restricted share grants or deferred stock awards outstanding on the date of termination of employment; and
(vii) immediate vesting of all outstanding stock options on the date of termination of employment and the right to exercise such stock options as provided in any stock option award agreement to which Executive is a party.
(b) A Change of Control shall be deemed to have occurred if:
(i) Any Person (as hereinafter defined, other than the Company, any employee benefit plan of the Company, or any company owned directly or indirectly by the shareholders of the Company immediately prior to such occurrence) becomes the Beneficial Owner (as hereinafter defined), directly or indirectly, of securities of the Company or any Subsidiary (as hereinafter defined) representing 50% or more of the combined voting power of the Companys or such subsidiarys then outstanding securities;
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(ii) during any period of two consecutive years or shorter period, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph (b)) whose election by the Board or nomination for election by the Companys shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved but excluding for this purpose any such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate, or other entity or Person other than the Board, cease for any reason to constitute at least a majority of the Board;
(iii) the Company enters into any consolidation, merger, or other business combination with or into any other corporation or other entity or person, or any other corporate reorganization, whereby the shareholders of the Company immediately prior to such consolidation, merger, business combination, or reorganization own less than 50% of the voting power of the surviving entity immediately after such consolidation, merger, business combination, or reorganization;
(iv) the consummation of a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such sale or disposition immediately after which such assets will be owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of common stock of the Company immediately prior to such sale or disposition), in which case the Board shall determine the effective date of the Change in Control resulting from such transaction; or
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(v) the occurrence of any other event that the Board determines, in its discretion, would materially alter the structure of the Company or its ownership.
For purposes of this definition, the term:
(A) Beneficial Owner shall have the meaning ascribed thereto in Rule 13d-3 under the Exchange Act (as such term or rule may be amended from time to time), except that a Person shall be deemed to be the Beneficial Owner of all shares that such Person has the right to acquire pursuant to any agreement or arrangement or upon exercise or conversion of rights, warrants, or options, or otherwise, without regard to the sixty day period referred to in Rule 13d-3);
(B) Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto;
(C) Person has the meaning ascribed thereto in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including group as defined in Section 14(d) thereof; and
(D) Good Reason as used in Section 8 (1) shall include, in addition to the circumstances specified in Section 6 of this Agreement, a removal of the Executive from, or any failure to elect or re-elect or, as the case may be, nominate the Executive as a member of the Board and (2) shall not exist as a reason for Executive to terminate his employment after a Change of Control notwithstanding anything to the contrary in Section 6 where the Change of Control arises in connection with the circumstances described in clause (b)(iii) of this Section 8 and Executives employment by the entity surviving such consolidation, merger, combination, or reorganization qualifies him as not lower than the third ranking executive of such entity in terms of executive authority and salary and other measures of compensation..
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9. OBLIGATIONS UPON TERMINATION, ETC.
(a) Upon the termination of employment, all provisions of this Agreement shall terminate except for this Section 9, Sections 10, 11 and 12, the terms of which shall survive such termination, and the Company shall have no further obligation to Executive hereunder, except as herein expressly provided. The Company shall comply with the terms of settlement of all deferred compensation arrangements to which Executive is a party in accordance with his duly executed deferral election forms.
(b) In the event of a termination of employment by Executive on his own initiative during the Term or any renewal thereof by delivery of written notice of such resignation ten business days in advance, other than due to Disability or termination for Good Reason, Executive shall have the same entitlements as provided in Section 5, Termination by the Company for Cause. Notwithstanding the foregoing, Executive shall have no right to terminate during the Term except in the event of termination for Good Reason, and any voluntary termination of employment shall be considered a material breach.
(c) In the event of a termination of employment, payment made and performance by the Company in accordance with the provisions of Section 5, 6, 7, 8, or 9, as the case may be, shall operate to fully discharge and release the Company and its directors, officers, employees, subsidiaries, affiliates, shareholders, successors, assigns, agents, and representatives (all of the foregoing collectively, the releasees) from any further obligation or liability with respect to Executives rights under this Agreement. Other than payment and performance as aforesaid, none of the releasees shall have any further obligation or liability to Executive or any other person under this Agreement arising out of termination of Executives employment under this Agreement. The Company shall have the right to condition the payment of any severance or other amounts pursuant to Section 5, 6, 7, 8, or 9 upon delivery by Executive to the Company of a release in form and substance satisfactory to the Company releasing any and all claims the Executive, his estate, representatives, and assigns may have against the Company and any other releasee arising out of this Agreement.
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10. COVENANTS
Executive agrees that during the Term, any renewal thereof, and for one full year after expiration or termination of the Term or any renewal thereof (except in the case of clause (a), as to which Executives covenant shall not be limited in time), he shall not, without the express prior written consent of the Company, directly or indirectly, either individually or as an employee, officer, director, agent, partner, shareholder, consultant, option holder, joint venturer, contractor, nominee, lender of money, guarantor, investor, owner, or in any other capacity:
(a) except as required in the course of performing his duties as an Executive hereunder, disclose, copy, divulge, furnish, distribute or make available in any medium whatsoever to any firm, company, corporation, organization, or other entity or person (including but not limited to actual or potential customers or competitors or government officials), or otherwise misappropriate trade secrets, intellectual property, or other confidential or non-public information of or concerning the Company, its Subsidiaries or affiliates or the business of any of the foregoing, including without limitation, customer lists, product designs and product know-how, launch information or plans pertaining to Company or customer products, arrangements for supplying customers, methods of operation and organization, sources of supply and arrangements with vendors, product development, business plans and strategies; provided, however, Executive may make disclosures as and to the extent required by applicable law or compelled upon court or administrative order, provided, further, however, that in the event that Executive is so required or compelled, he shall notify the Company not fewer than ten (10) business days in advance of such disclosure in order to afford it the reasonable opportunity to obtain a protective order or other remedy to limit the scope of such disclosure (it being understood and agreed that, if such disclosure is required by applicable law, Executive shall upon the Companys request furnish the source and precedents with respect to such requirement). For purposes of this Section 10, information shall not be deemed confidential if it is within the public domain or becomes publicly known other than through disclosure by Executive in violation of this provision; (ii)
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(b) own (or have any financial interest in, actual, contingent or otherwise), control, manage, operate, participate, engage in, invest in or otherwise have any interest in, or otherwise be connected with, in any manner, any firm, company, corporation, organization, business, enterprise, venture or other entity, association or person that is engaged in the business actually engaged in by the Company during the Term or any renewal thereof, including without limitation the Company Business (as hereinafter defined) ; or
(c) solicit, employ or retain or arrange, encourage, facilitate or assist to have any other firm, company, corporation, organization, business, enterprise, venture or other entity, association or person solicit, employ, retain, or otherwise participate in the employment or retention of, any person who is then, or who has been, within the preceding six (6) months, an employee, consultant, sales representative, technician or engineer of the Company, its subsidiaries or affiliates.
(d) own (or have any financial interest in, actual, contingent, future, or otherwise), control, manage, operate, participate, engage in, invest in or otherwise have any interest in or through, or otherwise be connected with, in any manner, any firm, company, corporation, organization, associate, business, enterprise, venture or other entity, association or person that does or proposes to do any one or more of the following as it relates to of the Company Business (as hereinafter defined): (a)(i) engage in, do, or solicit business with, or (ii) interfere with or affect the Companys business opportunities with, any of the customers with whom the Company has done business with during the most recent two calendar years or (b)(i) engage in, do, or solicit business with, or (ii) interfere with or affect the Companys business opportunities with, any of the vendors with whom the Company has done business with during the most recent two calendar years. The term Company Business shall mean the business of designing, manufacturing, procuring the supply or manufacture of, sourcing, selling, re-selling, and/or distributing of carrying or portable cases or cover plates and related carry case accessories supplied to the cellular telephone, portable medical equipment, laptop computer, photography, video or audio industries. Nothing in this Section 10 shall be deemed to prohibit Executive from the acquisition or holding of, solely as a passive stockholder, not more than one percent (1%) of the shares or other securities of a publicly-owned corporation if such securities are traded on a national securities exchange or the NASDAQ Stock Market.
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(e) Upon the expiration or termination of this Agreement for any reason, Executive shall promptly deliver to the Company all documents, papers and records in his possession relating to the business or affairs of the Company and that he obtained or received in his capacity as an officer of the Company and any other Company property or equipment in his possession or control.
(f) In the event Executive shall violate or be in violation of any provision of this Section 10 (which provisions Executive hereby acknowledges are reasonable and equitable), in addition to the Companys right to exercise any and all remedies, legal and equitable, which it may have under applicable laws, Executive shall not be entitled to any, and hereby waives any and all rights to, each and every, termination payment under this Agreement.
11. SEPARABILITY
Executive agrees that the provisions of Section 10 hereof constitute independent and separable covenants, for which Executive is receiving consideration, which shall survive the termination of employment, and which shall be enforceable by the Company notwithstanding any rights or remedies the Company may have under any other provision hereof.
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12. SPECIFIC PERFORMANCE
Executive acknowledges that:
(a) the services to be rendered and covenants to be performed under this Agreement are of a special and unique character and that the Company would be irreparably harmed if such services were lost to it or if Executive breached its obligations and covenants hereunder;
(b) the Company is relying on the Executives performance of the covenants contained herein, including, without limitation, those contained in Section 10 above, as a material inducement for its entering into this Agreement;
(c) the Company may be damaged if the provisions hereof are not specifically enforced; and
(d) the award of monetary damages may not adequately protect the Company in the event of a breach hereof by Executive.
By virtue thereof, Executive agrees and consents that if Executive breaches any of the provisions of this Agreement, the Company, in addition to any other rights and remedies available under this Agreement or under applicable laws, shall (without any bond or other security being required and without the necessity of proving monetary damages) be entitled to a temporary and/or permanent injunction to be issued by a court of competent jurisdiction restraining Executive from committing or continuing any violation of this Agreement, or any other appropriate decree of specific performance. Such remedies shall not be exclusive and shall be in addition to any other remedy that the Company may have.
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13. MISCELLANEOUS
(a) Entire Agreement; Amendment. This Agreement constitutes the entire employment agreement between the parties and may not be modified, amended or terminated (other than pursuant to the terms hereof) except by a written instrument executed by the parties hereto. All other agreements, written or oral, between the parties pertaining to the employment or remuneration of Executive not specifically contemplated hereby or incorporated or merged herein are hereby terminated and shall be of no further force or effect.
(b) Assignment; Successors. This Agreement is not assignable by Executive without the prior written consent of the Company and any purported assignment by Executive of Executives rights and/or obligations under this Agreement shall be null and void. Except as provided below, this Agreement may be assigned by the Company at any time, upon delivery of written notice to Executive, to any successor to the business of the Company, or to any Subsidiary or affiliate of the Company. In the event that another corporation or other business entity becomes a Successor of the Company, then this Agreement may not be assigned to such Successor unless the Successor shall, by an agreement in form and substance reasonably satisfactory to the Executive, expressly assume and agree to perform this Agreement in the same manner and to the same extent as the Company would be required to perform if there had been no Successor. The term Successor as used herein shall mean any corporation or other business entity that succeeds to substantially all of the assets or conducts the business of the Company, whether directly or indirectly, by purchase, merger, consolidation or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
(c) Waivers, etc. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. The failure of any party to insist upon strict adherence to any term of this Agreement on any occasion shall not operate or be construed as a waiver of the right to insist upon strict adherence to that term or any other term of this Agreement on that or any other occasion.
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(d) Provisions Overly Broad. In the event that any term or provision of this Agreement shall be deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same shall have the power and hereby is authorized and directed to modify such term or provision to limit such scope, duration or area, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event that any provision of this Agreement shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall attach only to such provision and shall not affect or render invalid or unenforceable any other provision of this Agreement.
(e) Notices. Any notice permitted or required hereunder shall be in writing and shall be deemed to have been given on the date of delivery or, if mailed by certified mail, postage prepaid, return receipt requested, documented overnight courier, or by facsimile transmission, on the date mailed or transmitted.
(i) If to Executive to:
Douglas W. Sabra at his address
set forth in the preamble to this Agreement
(ii) If to the Company to:
the address set forth in the
preamble to this Agreement
Attention: Chairman of the Compensation Committee
with a copy to:
Steven Malsin, Esq.
237 Upper Shad Road
Pound Ridge, NY 10576
Telecopy: (914) 764-1940
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(f) Law Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of New York governing contracts made and to be performed in New York without regard to conflict of law principles thereof.
(g) Survival. All obligations of the Company to Executive and Executive to the Company shall terminate upon the termination of this Agreement, except as expressly provided herein. The provisions of Sections 10, 11 and 12 shall survive termination of this Agreement.
(h) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and each party may become a party hereto by executing a counterpart hereof. This Agreement and any counterpart so executed shall be deemed to be one and the same instrument. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts.
(i) Approval. This Agreement is subject to prior review and approval of the Compensation Committee of the Companys Board of Directors.
(j) Headings. The headings in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 12th day of August 2008, intending it to be effective on and as of the Effective Date.
DOUGLAS W. SABRA |
FORWARD INDUSTRIES, INC. |
/s/ Douglas W. Sabra |
By: /s/ James O. McKenna |
|
Title: Chief Financial Officer |
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this Agreement), dated as of the 12th day of August, 2008, between Forward Industries, Inc., a New York corporation having its principal offices at 1801 Green Road, Suite E, Pompano Beach, Florida 33064 (the Company), and James O. McKenna, residing at 951 Mill Creek Drive, Palm Beach Gardens, FL 33410 (Executive).
W I T N E S S E T H:
WHEREAS, the Company wished to secure the services of Executive upon the terms and conditions of employment as set forth herein, with effect from the date of execution of this Agreement (Effective Date);
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt of which the parties hereby acknowledge, the parties agree as follows:
1. EMPLOYMENT TERM
Unless earlier terminated in accordance with the terms of this Agreement, the term of employment hereunder (the Term) shall commence on the Effective Date and expire on December 31 , 2009. Upon expiration of the Term, this Agreement shall be automatically renewed for successive terms of one year each; provided, however, that if either party provides written notice to the other party of its or his determination not to so renew not later than 90 (ninety) days prior to the expiration of the Term, or any renewal thereof, as the case may be, this Agreement and Executives employment shall terminate at the end of the Term or such renewal term, as the case may be. In the event that the Company is the party giving notice of non-renewal, this shall be treated as a termination without Cause and governed by the terms of Section 5 or Section 7, as the case may be.
2 EMPLOYMENT DUTIES AND SERVICES
(a) On the terms and conditions herein set forth, the Company hereby employs Executive as its chief financial officer and treasurer for the term of this Agreement and any renewal(s) thereof, and Executive hereby accepts such employment. Executive shall perform such duties and responsibilities of a chief financial officer nature for the Company as shall be consistent with the provisions of the Companys By-laws in effect from time to time and as are customary for a chief financial officer of corporations of similar size and business as the Company, subject to the direction of the Companys President (chief executive officer), or in his absence, the Board of Directors (the Board). Executive shall serve the Company faithfully and to the best of his ability and shall devote his full business time and attention to the business and affairs of the Company, subject to reasonable absences for vacation and illness in accordance with Company policies. Executive will not engage, directly or indirectly, in any other business or occupation during the Term.
(b) Nothing in this Agreement shall preclude the Executive from (i) engaging in personal investment activities for himself and his family, (ii) accepting directorships unrelated to the Company, subject to the prior, written approval of the Compensation Committee of the Board (Compensation Committee), (iii) engaging in charitable and civic activities, and (iv) engaging in such other limited activities on behalf of family interests as may be approved by the Nominating and Governance Committee of the Board, so long as any one or more such outside interests set forth in clauses (i), (ii), (iii), and (iv) hereof do not interfere with or affect the performance of his duties or responsibilities hereunder.
(c) Unless otherwise agreed in writing by the Company and Executive, the performance of Executives services during the term of this Agreement shall be rendered at the principal executive offices of the Company, subject to such travel in furtherance of Executives performance of his duties hereunder as the business of the Company may require.
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3. COMPENSATION AND EXPENSE REIMBURSEMENT
(a) Salary. Executive shall be entitled to receive for all services rendered by Executive in any and all capacities in connection with his employment hereunder a salary (as it may be adjusted, Salary) of $175,000 per annum, payable in equal installments in accordance with the prevailing practices of the Company (but not less frequently than monthly).
(b) Bonus; Calculation and Payment. The Executive shall be eligible to receive a bonus (Bonus) with respect to each full fiscal year or part thereof (except to the extent expressly provided in Section 3(b), 4, 5, or 6(b) hereof) in respect of his employment hereunder, as set forth in this Section 3. The amount of Bonus, if any, that Executive may earn in any fiscal year during the Term hereof pursuant to this Section 3(b) shall be based on the extent to which, if any, the Company achieves all or a percentage of, or exceeds, Target (as defined below) in each such fiscal year, in accordance with guidelines, or a formula, for earning such bonus as fixed by the Compensation Committee in its sole discretion not later than the date referred to in the next paragraph.
Target means, with respect to any fiscal year, the amount of pre-tax income or other measure of operating results of the Company as determined by the Compensation Committee of the Board in its sole discretion, projected for achievement, in whole or in part, in such fiscal year by the Compensation Committee for the purpose of establishing Executives right to receive Bonus compensation in respect of such fiscal year. The Compensation Committee shall determine the Target, together with the formulas for earning Bonus hereunder, after the Board has adopted the Annual Budget in respect of each fiscal year during the Term hereof but not later than the 75th day of each such fiscal year. The Compensation Committee may determine that the amount of Bonus for such purposes may be pro rated based on Target being achieved, exceeded, or missed.
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Bonus compensation, if any, payable pursuant to Section 3(b) shall be payable to Executive not earlier than the date on which the Companys audited financial statements relating to the fiscal year in respect of which such Bonus compensation is payable are first filed with the Securities and Exchange Commission (the Commission) pursuant to Section 13 or 15(d) under the Securities Exchange Act of 1934 (Exchange Act) nor later than the tenth (10th) business day after such date. If Executive is otherwise entitled to payment of a Bonus pursuant to this Section 4(b) and the terms of this Agreement but has not served as an employee for the full fiscal year in respect of which such Bonus is payable, Executive, or his estate, shall be entitled to payment, at the time specified in the next preceding sentence, of a ratable portion of such Bonus to which he or his estate is entitled, based on the ratio that the actual number of days in such fiscal year during which he served as an Employee pursuant to this Agreement and is so entitled bears to 365; provided, however, that no Bonus (pro-rated or otherwise) shall be payable in respect of a fiscal year during which Executive is employed hereunder solely for the first fiscal quarter thereof because of expiration of the Term, or any renewal thereof as a result of notice of non-renewal furnished pursuant to Section 1; and provided, further, that if Executives employment was terminated as a result of notice pursuant to Section 4, Termination for Cause, he shall not be entitled to any Bonus compensation in respect of the fiscal year during which such notice of termination was given or during which such termination becomes effective.
(c) Expenses. Executive will be reimbursed for all reasonable and necessary expenses incurred by Executive in carrying out the duties contemplated under this Agreement, in accordance with Company practices and procedures in effect from time to time, as such practices may be changed from time to time by the Board. Executive shall be reimbursed for the expense of operating an automobile (maintenance, gas, tolls and insurance only) for Executives use in connection with the discharge of his duties under this Agreement, the maximum amount of which reimbursement shall be determined by the Compensation Committee and shall be includible in Executives W-2 statements and be subject to applicable income tax withholding regulations.
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(d) Benefits. Executive shall be entitled to participate in all group health and other insurance programs and all other fringe benefit (including vacation) and retirement plans (including any 401(k) plan) or other compensatory plans that the Company may hereafter elect to make available to its executives generally on terms no less favorable than those provided to other executives generally, provided Executive meets the qualifications therefor. The Company shall not be required to establish any such program or plan, except to the extent expressly set forth in this Section 4.
(e) Withholding. All payments required to be made by the Company hereunder to the Executive shall be subject to the withholding of such amounts relating to taxes and other governmental assessments as the Company may reasonably determine it should withhold pursuant to any applicable law, rule or regulation.
(f) IRC§409A. Executive and the Company agree that the provisions of this Agreement shall be construed and implemented, and any deferrals and elections shall be made, in order to comply with Internal Revenue Code Section 409A, as it may be amended, and the rules and regulations issued thereunder from time to time.
4. TERMINATION BY THE COMPANY FOR CAUSE
(a) The Board of Directors may, by written notice given at any time during the Term, or any renewal thereof, terminate the employment of Executive for cause, the cause to be specified in reasonable detail in such notice. For purposes of this Agreement, cause shall mean Executives:
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(i) willful misconduct in connection with the performance of any of his duties or services hereunder, including without limitation (1) misappropriation or improper diversion of funds, rights or property of the Company or any subsidiary of the Company (Subsidiary), or (2) securing or attempting to secure personally (including for the benefit of any family member, or person sharing the same household, or any entity (corporate, partnership, unincorporated association, proprietorship, limited liability company, trust, or otherwise) in which Executive has any economic or beneficial interest) any profit or benefit in connection with any transaction entered into on behalf of the Company or any Subsidiary unless the transaction benefiting the entity has been approved by the Board upon the basis of full disclosure of such benefit, or (3) material breach of any covenant contained in this Agreement or (4) any other action in violation of Executives fiduciary duty owed to the Company or Executives acting in a manner adverse to the interests of the Company and for his own pecuniary benefit or that of a family member (or member of his household) or any entity (as described in clause (i)(2) of Section 4(a) above) in which he or any such person has an economic or beneficial interest; or (5) Executives failure to cooperate, if requested by the Board, with any investigation or inquiry into his or the Companys business practices, whether internal or external;
(ii) willful failure, neglect or refusal to perform his duties or services under this Agreement, which failure, neglect or refusal shall continue for a period of 30 days after written notice thereof shall have been given to the Executive by or on behalf of the Board ; and/or
(iii) conviction of, or nolo contendere or guilty plea in connection with, a felony.
(b) Termination for cause under clause (i) or (iii) of paragraph (a) of this Section 4 shall be effective immediately upon the giving of such notice; if notice of termination for cause relates to clause (ii) of paragraph (a) of this Section 4, termination shall be effective on the thirtieth (30th) day after the notice referred to in the first sentence of this Section 4 is given to Executive, unless the Executive shall have, prior to such thirtieth (30th) day, cured the alleged cause to the satisfaction of the Board, in which case the Board shall so notify Executive and such cause shall be deemed to no longer exist; provided, however, that if the Board concludes that Executives willful failure, neglect, or refusal to perform has resulted in material damage to the Company or its reputation that is not capable of being remedied, termination shall be effective immediately upon giving of notice.
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For purposes of this Agreement, an act or failure to act on the Executives part shall be considered willful if it was done or omitted to be done by him not in good faith, and shall not include any act or failure to act resulting from any incapacity of the Executive.
(c) Upon termination of employment by the Company for Cause, the Executive shall be entitled to receive, and his sole remedies under this Agreement shall be:
(i) any earned and unpaid Salary accrued through the date of termination for Cause, payable in a lump sum not later than 15 days following Executives termination of employment;
(ii) compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 4;
(iii) except for any Bonus compensation (for which Executive shall not be eligible), any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(iv) any stock options, grants of Common Stock, restricted share grants or other benefits under any of the Companys compensation plans that were vested as of 5:00 PM on the date immediately prior to the date of termination in accordance with the terms of such plans and any applicable plan agreements with Executive, provided, however, that any vested but unexercised stock options may not be exercised on or after the effective date of termination.
(d) Termination of Executives employment under this Section 4 shall be in addition to and not exclusive of any other rights and remedies that the Company has or may have relating to Executive with respect to the facts and circumstances pertaining to such termination.
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5. TERMINATION BY EXECUTIVE FOR GOOD REASON OR TERMINATION WITHOUT CAUSE PRIOR TO CHANGE IN CONTROL
(a) In the event Executive terminates his employment under this Agreement for Good Reason (as hereinafter defined), or in the event Executives employment is terminated without Cause (which termination shall be effective as of the date specified by the Company in written notice delivered to Executive not fewer than 15 days prior to the date of termination) other than due to death or Disability (as hereinafter defined), in either case prior to a Change in Control (as hereinafter defined), the Executive shall be entitled to receive, and his sole remedies under this Agreement shall be:
(i) any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executives termination of employment;
(ii) Salary, at the annualized rate in effect on the date of termination of Executives employment (or, in the event a reduction in Salary is a basis for termination for Good Reason, then the Salary in effect immediately prior to such reduction), for a period of six months following such termination, payable in a lump sum not later than 15 days following termination of employment;
(iii) compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 6;
(iv) except in the case of the Company giving notice of non-renewal at the end of the Term (or any renewal thereof), the ratable amount of Bonus, if any, to which Executive would otherwise have been entitled in the current fiscal year but for termination under this Section, payable at the time specified in Section 3(b);
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(v) any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(vi) any stock options, grants of Common Stock, restricted share grants or other benefits under any of the Companys compensation plans that were vested as of 5:00 PM on the date immediately prior to the date of termination, which may be exercised (in the case of options) or delivered (in the case of restricted stock) in accordance with the terms of such plans and any applicable plan agreements with Executive.
(b) Termination by the Executive for Good Reason shall be effected by his giving prior written notice to the Company, in which case this Agreement shall terminate on the date specified in such notice; provided, however, that such notice shall specify (i) in reasonable detail the circumstances or event asserted as the basis for termination for Good Reason and (ii) a date of termination that shall be at least thirty (30) days after the date of delivery of such notice; and provided, further, that the Company shall have the right during such thirty (30) day period to remedy the circumstances or event giving rise to the notice of termination for Good Reason prior to the date specified in such notice, in which case no right of termination or other right shall exist under this Section. .
For purposes of this Agreement, subject to Section 7(D), the term Good Reason shall mean:
(i) the assignment to Executive without his written consent of any duties inconsistent in any material respect with Executives position (including employment status, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 2 of this Agreement or any other action by the Company that results in a material diminishment in such positions, authority, duties, or responsibilities, other than such assignment or other action that is remedied by the Company prior to the date of termination specified in the written notice from Executive:
(ii) a decrease in annual Salary rate;
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(iii) any failure by the Company to perform any material obligation under, or its breach of a material provision of, this Agreement that is not cured within the 30-day notice period referred to above; or
(iv) failure of a Successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent as the Company would have had there been no Successor.
6. TERMINATION FOR DEATH OR DISABILITY
(a) Executives employment shall terminate immediately upon his death or Disability (as hereinafter defined). Upon such termination, the Executive, his estate, or his beneficiaries, as the case may be, shall be entitled to receive, and their sole remedies under this Agreement shall be:
(i) subject to Section 7(b), any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executives termination of employment;
(ii) subject to Section 7(b), compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 6;
(iii) subject to Section 7(b), the ratable amount of Bonus, if any, to which Executive would otherwise have been entitled in the current fiscal year to the date of termination under this Section, payable at the time specified in Section 3(b);
(iv) any unpaid benefits accrued through the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
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(v) any stock options, grants of Common Stock, restricted share grants or other benefits under any of the Companys compensation plans that were vested as of 5:00 PM on the date immediately prior to the date of termination, which may be exercised (in the case of options) or delivered (in the case of restricted stock) in accordance with the terms of such plans and any applicable plan agreements with Executive.
(b) For purposes of this Agreement, the term Disability shall mean any disability, illness, or other incapacity that prevents Executive from performing services as contemplated by Section 2, for 120 or more consecutive days or for 180 days in any consecutive 12-month period. In such event, the Company shall have the right to terminate this Agreement upon 10 days prior written notice to Executive. During the period of any such disability, illness, or incapacity, (i) the obligation of the Company to pay Salary to Executive pursuant to Section 3 shall be reduced to the extent of any amount received by Executive pursuant to any disability insurance policy maintained and paid for by the Company, and (ii) no bonus compensation shall accrue or be earned, or count toward proration. Termination under this Section shall not prejudice any rights of Executive under disability policies being maintained by the Company for Executive under the terms of this Agreement, if any.
7. TERMINATION UPON CHANGE OF CONTROL
(a) In the event Executive terminates his employment under this Agreement for Good Reason, or in the event Executives employment is terminated without Cause (which termination shall be effective as of the date specified by the Company in written notice to Executive) other than due to death or disability, in either case within 12 months after a Change in Control (as hereinafter defined), the Executive shall be entitled to receive, and his sole remedies under this Agreement shall be:
(i) any earned and unpaid Salary accrued through the date of termination, payable in a lump sum not later than 15 days following Executives termination of employment;
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(ii) Salary, at the annualized rate in effect on the date of termination of Executives employment (or, in the event a reduction in Salary after a Change in Control is a basis for termination for Good Reason, then the Salary in effect immediately prior to such reduction), for a period of 12 months following such termination, payable in a lump sum not later than 15 days following termination of employment;
(iii) compensation for any unused personal holidays and unused vacation days accrued in the fiscal year in which termination occurs through the date of termination, payable as in clause (i) of this Section 7;
(iv) except in the case of the Company giving notice of non-renewal at the end of the Term (or any renewal thereof), the ratable amount of Bonus, if any, to which Executive would otherwise have been entitled in the current fiscal year but for termination under this Section, payable at the time specified in Section 3(b);
(v) any unpaid benefits accrued through the day immediately prior to the date of termination that may be due the Executive under any employee benefit plans or programs of the Company, payable in accordance with the terms of such plans or programs, together with any documented, unreimbursed business expenses, payable in accordance with Company policies; and
(vi) immediate vesting and elimination of all restrictions on any restricted share grants or deferred stock awards outstanding on the date of termination of employment; and
(vii) immediate vesting of all outstanding stock options on the date of termination of employment and the right to exercise such stock options as provided in any stock option award agreement to which Executive is a party.
(b) A Change of Control shall be deemed to have occurred if:
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(i) Any Person (as hereinafter defined, other than the Company, any employee benefit plan of the Company, or any company owned directly or indirectly by the shareholders of the Company immediately prior to such occurrence) becomes the Beneficial Owner (as hereinafter defined), directly or indirectly, of securities of the Company or any Subsidiary (as hereinafter defined) representing 50% or more of the combined voting power of the Companys or such subsidiarys then outstanding securities;
(ii) during any period of two consecutive years or shorter period, individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (iii) or (iv) of this paragraph (b)) whose election by the Board or nomination for election by the Companys shareholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the two-year period or whose election or nomination for election was previously so approved but excluding for this purpose any such new director whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate, or other entity or Person other than the Board, cease for any reason to constitute at least a majority of the Board;
(iii) the Company enters into any consolidation, merger, or other business combination with or into any other corporation or other entity or person, or any other corporate reorganization, whereby the shareholders of the Company immediately prior to such consolidation, merger, business combination, or reorganization own less than 50% of the voting power of the surviving entity immediately after such consolidation, merger, business combination, or reorganization;
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(iv) the consummation of a plan or agreement for the sale or disposition of all or substantially all of the consolidated assets of the Company (other than such sale or disposition immediately after which such assets will be owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of common stock of the Company immediately prior to such sale or disposition), in which case the Board shall determine the effective date of the Change in Control resulting from such transaction; or
(v) the occurrence of any other event that the Board determines, in its discretion, would materially alter the structure of the Company or its ownership.
For purposes of this definition, the term:
(A) Beneficial Owner shall have the meaning ascribed thereto in Rule 13d-3 under the Exchange Act (as such term or rule may be amended from time to time), except that a Person shall be deemed to be the Beneficial Owner of all shares that such Person has the right to acquire pursuant to any agreement or arrangement or upon exercise or conversion of rights, warrants, or options, or otherwise, without regard to the sixty day period referred to in Rule 13d-3);
(B) Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, or any successor act thereto;
(C) Person has the meaning ascribed thereto in Section 3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof, including group as defined in Section 14(d) thereof; and
(D) Good Reason as used in this Section 7 shall not exist as a reason for Executive to terminate his employment after a Change of Control notwithstanding anything to the contrary in Section 5 where the Change of Control arises in connection with the circumstances described in clause (b)(iii) of this Section 7 and Executives employment by the entity surviving such consolidation, merger, combination, or reorganization qualifies him as an executive in such entitys financial function or department.
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8. OBLIGATIONS UPON TERMINATION, ETC.
(a) Upon the termination of employment, all provisions of this Agreement shall terminate except for this Section 8, Sections 9, 10 and 11, the terms of which shall survive such termination, and the Company shall have no further obligation to Executive hereunder, except as herein expressly provided. The Company shall comply with the terms of settlement of all deferred compensation arrangements to which Executive is a party in accordance with his duly executed deferral election forms.
(b) In the event of a termination of employment by Executive on his own initiative during the Term or any renewal thereof by delivery of written notice of such resignation ten business days in advance, other than due to Disability or termination for Good Reason, Executive shall have the same entitlements as provided in Section 4, Termination by the Company for Cause. Notwithstanding the foregoing, Executive shall have no right to terminate during the Term except in the event of termination for Good Reason, and any voluntary termination of employment shall be considered a material breach.
(c) In the event of a termination of employment, payment made and performance by the Company in accordance with the provisions of Section 4, 5, 6, 7, or 8, as the case may be, shall operate to fully discharge and release the Company and its directors, officers, employees, subsidiaries, affiliates, shareholders, successors, assigns, agents, and representatives (all of the foregoing collectively, the releasees) from any further obligation or liability with respect to Executives rights under this Agreement. Other than payment and performance as aforesaid, none of the releasees shall have any further obligation or liability to Executive or any other person under this Agreement arising out of termination of Executives employment under this Agreement. The Company shall have the right to condition the payment of any severance or other amounts pursuant to Section 4, 5, 6, 7, or 8 upon delivery by Executive to the Company of a release in form and substance satisfactory to the Company releasing any and all claims the Executive, his estate, representatives, and assigns may have against the Company and any other releasee arising out of this Agreement.
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9. COVENANTS
Executive agrees that during the Term, any renewal thereof, and for one full year after expiration or termination of the Term or any renewal thereof (except in the case of clause (a), as to which Executives covenant shall not be limited in time), he shall not, without the express prior written consent of the Company, directly or indirectly, either individually or as an employee, officer, director, agent, partner, shareholder, consultant, option holder, joint venturer, contractor, nominee, lender of money, guarantor, investor, owner, or in any other capacity:
(a) except as required in the course of performing his duties as an Executive hereunder, disclose, copy, divulge, furnish, distribute or make available in any medium whatsoever to any firm, company, corporation, organization, or other entity or person (including but not limited to actual or potential customers or competitors or government officials), or otherwise misappropriate trade secrets, intellectual property, or other confidential or non-public information of or concerning the Company, its Subsidiaries or affiliates or the business of any of the foregoing, including without limitation, customer lists, product designs and product know-how, launch information or plans pertaining to Company or customer products, arrangements for supplying customers, methods of operation and organization, sources of supply and arrangements with vendors, product development, business plans and strategies; provided, however, Executive may make disclosures as and to the extent required by applicable law or compelled upon court or administrative order, provided, further, however, that in the event that Executive is so required or compelled, he shall notify the Company not fewer than ten (10) business days in advance of such disclosure in order to afford it the reasonable opportunity to obtain a protective order or other remedy to limit the scope of such disclosure (it being understood and agreed that, if such disclosure is required by applicable law, Executive shall upon the Companys request furnish the source and precedents with respect to such requirement). For purposes of this Section 10, information shall not be deemed confidential if it is within the public domain or becomes publicly known other than through disclosure by Executive in violation of this provision; (ii)
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(b) own (or have any financial interest in, actual, contingent or otherwise), control, manage, operate, participate, engage in, invest in or otherwise have any interest in, or otherwise be connected with, in any manner, any firm, company, corporation, organization, business, enterprise, venture or other entity, association or person that is engaged in the business actually engaged in by the Company during the Term or any renewal thereof, including without limitation the Company Business (as hereinafter defined) ; or
(c) solicit, employ or retain or arrange, encourage, facilitate or assist to have any other firm, company, corporation, organization, business, enterprise, venture or other entity, association or person solicit, employ, retain, or otherwise participate in the employment or retention of, any person who is then, or who has been, within the preceding six (6) months, an employee, consultant, sales representative, technician or engineer of the Company, its subsidiaries or affiliates.
(d) own (or have any financial interest in, actual, contingent, future, or otherwise), control, manage, operate, participate, engage in, invest in or otherwise have any interest in or through, or otherwise be connected with, in any manner, any firm, company, corporation, organization, associate, business, enterprise, venture or other entity, association or person that does or proposes to do any one or more of the following as it relates to of the Company Business (as hereinafter defined): (a)(i) engage in, do, or solicit business with, or (ii) interfere with or affect the Companys business opportunities with, any of the customers with whom the Company has done business with during the most recent two calendar years or (b)(i) engage in, do, or solicit business with, or (ii) interfere with or affect the Companys business opportunities with, any of the vendors with whom the Company has done business with during the most recent two calendar years. The term Company Business shall mean the business of designing, manufacturing, procuring the supply or manufacture of, sourcing, selling, re-selling, and/or distributing of carrying or portable cases or cover plates and related carry case accessories supplied to the cellular telephone, portable medical equipment, laptop computer, photography, video or audio industries. Nothing in this Section 9 shall be deemed to prohibit Executive from the acquisition or holding of, solely as a passive stockholder, not more than one percent (1%) of the shares or other securities of a publicly-owned corporation if such securities are traded on a national securities exchange or the NASDAQ Stock Market.
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(e) Upon the expiration or termination of this Agreement for any reason, Executive shall promptly deliver to the Company all documents, papers and records in his possession relating to the business or affairs of the Company and that he obtained or received in his capacity as an officer of the Company and any other Company property or equipment in his possession or control.
(f) In the event Executive shall violate or be in violation of any provision of this Section 9 (which provisions Executive hereby acknowledges are reasonable and equitable), in addition to the Companys right to exercise any and all remedies, legal and equitable, which it may have under applicable laws, Executive shall not be entitled to any, and hereby waives any and all rights to, each and every, termination payment under this Agreement.
10. SEPARABILITY
Executive agrees that the provisions of Section 9 hereof constitute independent and separable covenants, for which Executive is receiving consideration, which shall survive the termination of employment, and which shall be enforceable by the Company notwithstanding any rights or remedies the Company may have under any other provision hereof.
11. SPECIFIC PERFORMANCE
Executive acknowledges that:
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(a) the services to be rendered and covenants to be performed under this Agreement are of a special and unique character and that the Company would be irreparably harmed if such services were lost to it or if Executive breached its obligations and covenants hereunder;
(b) the Company is relying on the Executives performance of the covenants contained herein, including, without limitation, those contained in Section 9 above, as a material inducement for its entering into this Agreement;
(c) the Company may be damaged if the provisions hereof are not specifically enforced; and
(d) the award of monetary damages may not adequately protect the Company in the event of a breach hereof by Executive.
By virtue thereof, Executive agrees and consents that if Executive breaches any of the provisions of this Agreement, the Company, in addition to any other rights and remedies available under this Agreement or under applicable laws, shall (without any bond or other security being required and without the necessity of proving monetary damages) be entitled to a temporary and/or permanent injunction to be issued by a court of competent jurisdiction restraining Executive from committing or continuing any violation of this Agreement, or any other appropriate decree of specific performance. Such remedies shall not be exclusive and shall be in addition to any other remedy that the Company may have.
12. MISCELLANEOUS
(a) Entire Agreement; Amendment. This Agreement constitutes the entire employment agreement between the parties and may not be modified, amended or terminated (other than pursuant to the terms hereof) except by a written instrument executed by the parties hereto. All other agreements, written or oral, between the parties pertaining to the employment or remuneration of Executive not specifically contemplated hereby or incorporated or merged herein are hereby terminated and shall be of no further force or effect.
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(b) Assignment; Successors. This Agreement is not assignable by Executive without the prior written consent of the Company and any purported assignment by Executive of Executives rights and/or obligations under this Agreement shall be null and void. Except as provided below, this Agreement may be assigned by the Company at any time, upon delivery of written notice to Executive, to any successor to the business of the Company, or to any Subsidiary or affiliate of the Company. In the event that another corporation or other business entity becomes a Successor of the Company, then this Agreement may not be assigned to such Successor unless the Successor shall, by an agreement in form and substance reasonably satisfactory to the Executive, expressly assume and agree to perform this Agreement in the same manner and to the same extent as the Company would be required to perform if there had been no Successor. The term Successor as used herein shall mean any corporation or other business entity that succeeds to substantially all of the assets or conducts the business of the Company, whether directly or indirectly, by purchase, merger, consolidation or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
(c) Waivers, etc. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. The failure of any party to insist upon strict adherence to any term of this Agreement on any occasion shall not operate or be construed as a waiver of the right to insist upon strict adherence to that term or any other term of this Agreement on that or any other occasion.
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(d) Provisions Overly Broad. In the event that any term or provision of this Agreement shall be deemed by a court of competent jurisdiction to be overly broad in scope, duration or area of applicability, the court considering the same shall have the power and hereby is authorized and directed to modify such term or provision to limit such scope, duration or area, or all of them, so that such term or provision is no longer overly broad and to enforce the same as so limited. Subject to the foregoing sentence, in the event that any provision of this Agreement shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall attach only to such provision and shall not affect or render invalid or unenforceable any other provision of this Agreement.
(e) Notices. Any notice permitted or required hereunder shall be in writing and shall be deemed to have been given on the date of delivery or, if mailed by certified mail, postage prepaid, return receipt requested, documented overnight courier, or by facsimile transmission, on the date mailed or transmitted.
(i) If to Executive to:
James O. McKenna at his address
set forth in the preamble to this Agreement
(ii) If to the Company to:
the address set forth in the
preamble to this Agreement
Attention: Chairman of the Compensation Committee
with a copy to:
Steven Malsin, Esq.
237 Upper Shad Road
Pound Ridge, NY 10576
Telecopy: (914) 764-1940
(f) Law Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of New York governing contracts made and to be performed in New York without regard to conflict of law principles thereof.
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(g) Survival. All obligations of the Company to Executive and Executive to the Company shall terminate upon the termination of this Agreement, except as expressly provided herein. The provisions of Sections 9, 10 and 11 shall survive termination of this Agreement.
(h) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and each party may become a party hereto by executing a counterpart hereof. This Agreement and any counterpart so executed shall be deemed to be one and the same instrument. It shall not be necessary in making proof of this Agreement or any counterpart hereof to produce or account for any of the other counterparts.
(i) Approval. This Agreement is subject to prior review and approval of the Compensation Committee of the Companys Board of Directors.
(j) Headings. The headings in this Agreement are for convenience of reference only and shall not control or affect the meaning or construction of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the 12th day of August 2008, intending it to be effective on and as of the Effective Date.
JAMES O. McKENNA |
FORWARD INDUSTRIES, INC. |
/s/ James O. McKenna |
By: /s/ Douglas W. Sabra |
|
Title: Chief Executive Officer |
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Exhibit 21.1
List of Subsidiaries of Forward Industries, Inc.
1. Koszegi Industries Inc., an Indiana Corporation
2. Koszegi Asia Ltd., a Hong Kong Limited Company (the name of this subsidiary was changed to Forward Industries HK Limited in October 2008);
3. Forward Innovations GmbH, a Switzerland GmbH
4. Forward Asia Pacific Limited, a Hong Kong Limited Company
All four subsidiaries are wholly-owned by Forward Industries, Inc. Each does business under its name as set forth above.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the Registration Statement on Forms S-8 (Registration Nos. 333-104743 and 333-144442) of Forward Industries, Inc., of our report dated December 15, 2008, which appears in the annual report on Form 10-K of Forward Industries, Inc. for the year ended September 30, 2008.
/s/ Kaufman, Rossin & Co., P.A.
Certified Public Accountants
December 15, 2008
Miami, Florida
Exhibit 31.1
CERTIFICATION PURSUANT TO RULE 13a-14(a) UNDER THE EXCHANGE ACT
I, Douglas W. Sabra, of the Board and Chief Executive Officer of Forward Industries, Inc. (Forward) certify that:
1. |
I have reviewed this annual report on Form 10‑K for the fiscal year ended September 30, 2008, of Forward; |
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2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
||
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of Forward as of, and for, the periods presented in this report; |
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4. |
Forwards other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a‑15(e) and 15d‑15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for Forward and we have: |
||
a) |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to Forward, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
||
b) |
designed such internal controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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c) |
evaluated the effectiveness of Forwards disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report (the fourth quarter in the case of this annual report on Form 10-K) based on such evaluation; and |
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d) |
disclosed in this report any change in Forwards internal control over financial reporting that occurred during Forwards most recent fiscal quarter (Forwards fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, Forwards internal control over financial reporting; and |
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5. |
Forwards other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to Forwards auditors and the audit committee of Forwards board of directors (or persons performing the equivalent functions): |
||
a) |
all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect Forwards ability to record, process, summarize and report financial information; and |
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b) |
any fraud, whether or not material, that involves management or other employees who have a significant role in Forwards internal controls over financial reporting. |
Date: December 15, 2008
/s/Douglas
W. Sabra
Douglas W. Sabra
President and
Acting Chairman of the Board
and Chief Executive Officer
(Principal Executive Officer)
Exhibit 31.2
CERTIFICATION PURSUANT TO RULE 13a-14(a) UNDER THE EXCHANGE ACT
I, James O. McKenna, Chief Financial Officer of Forward Industries, Inc. (Forward) certify that:
1. |
I have reviewed this annual report on Form 10‑K for the fiscal year ended September 30, 2008, of Forward; |
||
2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
||
3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of Forward as of, and for, the periods presented in this report; |
||
4. |
Forwards other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a‑15(e) and 15d‑15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for Forward and we have: |
||
a) |
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to Forward, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
||
b) |
designed such internal controls over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
||
c) |
evaluated the effectiveness of Forwards disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report (the fourth quarter in the case of this annual report on Form 10-K) based on such evaluation; and |
||
d) |
disclosed in this report any change in Forwards internal control over financial reporting that occurred during Forwards most recent fiscal quarter (Forwards fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, Forwards internal control over financial reporting; and |
||
5. |
Forwards other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to Forwards auditors and the audit committee of Forwards board of directors (or persons performing the equivalent functions): |
||
a) |
all significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect Forwards ability to record, process, summarize and report financial information; and |
||
b) |
any fraud, whether or not material, that involves management or other employees who have a significant role in Forwards internal controls over financial reporting. |
Date: December 15, 2008
/s/James
O. McKenna
James O. McKenna
Chief
Financial Officer
(Principal Financial and Accounting Officer)
Exhibit 32.1
CERTIFICATIONS OF THE CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Douglas W. Sabra, Chief Executive Officer of Forward Industries, Inc. (Forward), and James O. McKenna, Chief Financial Officer of Forward, do each certify pursuant to 18 U.S.C. §1350 that, to the best of their knowledge:
Forwards annual report on Form 10-K for the fiscal year ended September 30, 2008 (the Report) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934; and
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of Forward.
IN WITNESS WHEREOF, the undersigned have set their hands hereto as of the 15th day of December 2008.
/s/ DOUGLAS W. SABRA
Douglas W. Sabra
President and Acting Chairman
(Principal Executive Officer)
/s/ JAMES O. MCKENNA
James O. McKenna
Chief Financial Officer
(Principal Financial and Accounting Officer)