COMPANY.
FOR PURPOSES OF THIS AGREEMENT, THE TERM
"CUSTOMER(S)" SHALL MEAN ANY INDIVIDUAL, CORPORATION, PARTNERSHIP, BUSINESS OR
OTHER ENTITY, WHETHER FOR-PROFIT OR NOT-FOR-PROFIT PUBLIC, PRIVATELY HELD (I)
WHOSE EXISTENCE AND BUSINESS IS KNOWN TO THE EXECUTIVE AS A RESULT OF THE
EMPLOYEE'S ACCESS TO THE COMPANY'S BUSINESS INFORMATION, CONFIDENTIAL OR
PROPRIETARY INFORMATION, CUSTOMER OR VENDOR LISTS OR CUSTOMER ACCOUNT
INFORMATION; OR (II) WITH WHOM THE COMPANY HAS DONE BUSINESS OR WITH WHOM THE
EXECUTIVE HAS NEGOTIATED DURING THE TWENTY-FOUR (24) MONTH PERIOD PRECEDING THE
TERMINATION OF HIS EMPLOYMENT OR DURING THE MOST RECENT TWENTY-FOUR (24) MONTH
PERIOD OF HIS EMPLOYMENT."
9.
CONFLICTING PROVISIONS.
IN THE EVENT OF ANY CONFLICT OR
INCONSISTENCY
BETWEEN THE PROVISIONS OF THIS AMENDMENT AND THOSE CONTAINED IN THE AGREEMENT,
THE PROVISIONS OF THIS AMENDMENT SHALL GOVERN AND CONTROL AND BE BINDING UPON
THE PARTIES HERETO.
10.
MISCELLANEOUS PROVISIONS.
(A)
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAWS PROVISIONS THEREOF.
THIS AMENDMENT IS INTENDED TO COMPLY WITH
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), AND SHALL BE
CONSTRUED IN A MANNER CONSISTENT WITH THAT INTENT.
ANY ACTION, SUIT OR OTHER
LEGAL PROCEEDING THAT IS COMMENCED TO RESOLVE ANY MATTER ARISING UNDER OR
RELATING TO ANY PROVISION OF THIS AMENDMENT SHALL BE SUBMITTED TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK OR IN THE
STATE OF FLORIDA.
(B)
EXCEPT AS MODIFIED BY THIS AMENDMENT, THE AGREEMENT AND ALL
EXECUTORY COVENANTS, AGREEMENTS, TERMS AND CONDITIONS THEREOF SHALL REMAIN IN
FULL FORCE AND EFFECT AND ARE HEREBY IN ALL RESPECTS RATIFIED AND CONFIRMED.
(C)
THE COVENANTS, AGREEMENTS, TERMS AND CONDITIONS CONTAINED IN THIS
AMENDMENT SHALL BIND AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND, EXCEPT
AS MAY OTHERWISE BE PROVIDED IN THE AGREEMENT, AS HEREBY MODIFIED AND
SUPPLEMENTED, THEIR RESPECTIVE LEGAL SUCCESSORS AND ASSIGNS.
(D)
THIS AMENDMENT MAY NOT BE CHANGED ORALLY BUT ONLY BY A WRITING
SIGNED BY BOTH PARTIES HERETO.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
October 26, 2012.
FORWARD INDUSTRIES, INC.
By:
Robert Garrett, Jr.
Chief Executive Officer
Agreed to and Accepted:
James O. McKenna
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