TOO
RESTRICTIVE TO BE ENFORCEABLE, THE COURT MAY REDUCE THE SCOPE OF THE RESTRICTION
TO THE EXTENT NECESSARY TO MAKE THE RESTRICTION ENFORCEABLE.
11.
REPRESENTATION AND WARRANTY.
EXECUTIVE REPRESENTS AND WARRANTS TO
THE COMPANY THAT HE IS NOT SUBJECT TO ANY NON-COMPETITION PROVISION OF ANY OTHER
AGREEMENT RESTRICTING HIS ABILITY FULLY TO ACT HEREUNDER.
EXECUTIVE HEREBY
INDEMNIFIES AND HOLDS THE COMPANY HARMLESS AGAINST ANY LOSSES, CLAIMS, EXPENSES
(INCLUDING ATTORNEYS' FEES), DAMAGES OR LIABILITIES INCURRED BY THE COMPANY AS A
RESULT OF A BREACH OF THE FOREGOING REPRESENTATION AND WARRANTY.
12.
NOTICE.
ANY NOTICE OR OTHER COMMUNICATION REQUIRED OR PERMITTED TO
BE GIVEN TO THE PARTIES SHALL BE DEEMED TO HAVE BEEN GIVEN IF PERSONALLY
DELIVERED, IF SENT BY NATIONALLY RECOGNIZED OVERNIGHT COURIER OR IF MAILED BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, FIRST CLASS POSTAGE
PREPAID, AND ADDRESSED AS FOLLOWS:
(a)
If to Executive, to:
the address shown on the records of the Company.
(b)
If to the Company, to:
c/o Forward Industries, Inc.
3110 Main Street, Suite 400
Santa Monica, California 90405
Attention:
_____________
13.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS DECLARED VOID OR
UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, ALL OTHER PROVISIONS SHALL
NONETHELESS REMAIN IN FULL FORCE AND EFFECT.
10
14.
GOVERNING LAW.
THIS AGREEMENT 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 AGREEMENT 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 AGREEMENT SHALL BE SUBMITTED TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE STATE OF NEW YORK.
15.
WAIVER.
THE WAIVER BY EITHER PARTY OF A BREACH OF ANY PROVISION OF
THIS AGREEMENT SHALL NOT BE CONSTRUED AS A WAIVER OF ANY SUBSEQUENT BREACH.
THE
FAILURE OF A PARTY TO INSIST UPON STRICT ADHERENCE TO ANY PROVISION OF THIS
AGREEMENT ON ONE OR MORE OCCASIONS SHALL NOT BE CONSIDERED A WAIVER OR DEPRIVE
THAT PARTY OF THE RIGHT THEREAFTER TO INSIST UPON STRICT ADHERENCE TO THAT
PROVISION OR ANY OTHER PROVISION OF THIS AGREEMENT.
ANY WAIVER MUST BE IN
WRITING.
16.
MUTUAL RELEASE.
(A)
BY SIGNING THIS AGREEMENT, EXECUTIVE ACKNOWLEDGES AND AGREES THAT
THE PAYMENTS AND ARRANGEMENTS DESCRIBED ABOVE ARE IN LIEU OF AND IN FULL
SATISFACTION OF ANY AMOUNTS THAT MIGHT OTHERWISE BECOME DUE OR PAYABLE TO
EXECUTIVE UNDER ANY AGREEMENT, CONTRACT, PLAN, POLICY OR PRACTICE, PAST OR
PRESENT, OF THE COMPANY, OR ANY OF ITS PARENTS, SUBSIDIARIES, DIVISIONS,
AFFILIATES OR PREDECESSORS.
EXECUTIVE SHALL NOT BE ELIGIBLE TO RECEIVE BENEFITS
UNDER ANY EMPLOYEE BENEFIT PLANS OR COMPENSATION ARRANGEMENTS OF THE COMPANY, OR
ANY OF ITS PARENTS, SUBSIDIARIES, DIVISIONS, AFFILIATES OR PREDECESSORS, OTHER
THAN AS EXPRESSLY SET FORTH HEREIN.
EXECUTIVE FURTHER FOREVER RELEASES AND
DISCHARGES