THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE TERMINATION OF HIS EMPLOYMENT.
(E)
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, OR OWNED BY THE UNITED
STATES GOVERNMENT THAT IS A BUSINESS ENTITY OR INDIVIDUAL WITH WHOM THE COMPANY
HAS DONE BUSINESS OR WITH WHOM THE EXECUTIVE HAS ACTIVELY NEGOTIATED WITH DURING
THE TWELVE (12) MONTH PERIOD PRECEDING THE TERMINATION OF HIS EMPLOYMENT.
(F)
"TERRITORY" SHALL MEAN (I) THROUGHOUT THE AREA COMPRISING THE
COMPANY'S MARKET FOR ITS SERVICES AND PRODUCTS WITH WHICH AREA EXECUTIVE WAS
MATERIALLY CONCERNED DURING THE TWENTY-FOUR (24) MONTH PERIOD PRIOR TO THE
TERMINATION OF THIS AGREEMENT; BUT IF SUCH AREA IS DETERMINED BY JUDICIAL ACTION
TO BE TOO BROAD, THEN IT SHALL MEAN (II) THROUGHOUT NORTH AMERICA, EUROPE AND
ASIA.
(G)
THE EXECUTIVE AGREES THAT IN THE EVENT A COURT DETERMINES THE
LENGTH OF TIME, TERRITORY OR ACTIVITIES PROHIBITED UNDER THIS AGREEMENT ARE 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.
10
(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.
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