SECTION 19 (WHETHER THEY WOULD HAVE OTHERWISE
BEEN PAYABLE IN A SINGLE SUM OR IN INSTALLMENTS IN THE ABSENCE OF SUCH DELAY)
SHALL BE PAID OR REIMBURSED TO THE EXECUTIVE IN A LUMP SUM WITH INTEREST AT THE
PRIME RATE AS PUBLISHED IN THE WALL STREET JOURNAL ON THE FIRST BUSINESS DAY OF
THE DELAY PERIOD, AND ANY REMAINING PAYMENTS AND BENEFITS DUE UNDER THIS
AGREEMENT SHALL BE PAID OR PROVIDED IN ACCORDANCE WITH THE NORMAL PAYMENT DATES
SPECIFIED FOR THEM HEREIN.
(C)
WITH REGARD TO ANY PROVISION HEREIN THAT PROVIDES FOR
REIMBURSEMENT OF COSTS AND EXPENSES OR IN-KIND BENEFITS, EXCEPT AS PERMITTED BY
CODE SECTION 409A, (I) THE RIGHT TO REIMBURSEMENT OR IN-KIND BENEFITS SHALL NOT
BE SUBJECT TO LIQUIDATION OR EXCHANGE FOR ANOTHER BENEFIT, (II) THE AMOUNT OF
EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR IN-KIND BENEFITS, PROVIDED DURING ANY
TAXABLE YEAR SHALL NOT AFFECT THE EXPENSES ELIGIBLE FOR REIMBURSEMENT, OR
IN-KIND BENEFITS TO BE PROVIDED, IN ANY OTHER TAXABLE YEAR, PROVIDED THAT THE
FOREGOING CLAUSE (II) SHALL NOT BE VIOLATED WITHOUT REGARD TO EXPENSES
REIMBURSED UNDER ANY ARRANGEMENT COVERED BY CODE SECTION 105(B) SOLELY BECAUSE
SUCH EXPENSES ARE SUBJECT TO A LIMIT RELATED TO THE PERIOD THE ARRANGEMENT IS IN
EFFECT AND (III) SUCH PAYMENTS SHALL BE MADE ON OR BEFORE THE LAST DAY OF
EXECUTIVE'S TAXABLE YEAR FOLLOWING THE TAXABLE YEAR IN WHICH THE EXPENSE
OCCURRED.
(D)
FOR PURPOSES OF CODE SECTION 409A, THE EXECUTIVE'S RIGHT TO RECEIVE
ANY INSTALLMENT PAYMENTS PURSUANT TO THIS AGREEMENT SHALL BE TREATED AS A RIGHT
TO RECEIVE A SERIES OF SEPARATE AND DISTINCT PAYMENTS.
WHENEVER A PAYMENT UNDER
THIS AGREEMENT SPECIFIES A PAYMENT PERIOD WITH REFERENCE TO A NUMBER OF DAYS
(E.G., "WITHIN SIXTY (60) DAYS FOLLOWING THE DATE OF TERMINATION"), THE ACTUAL
DATE OF PAYMENT WITHIN THE SPECIFIED PERIOD SHALL BE WITHIN THE SOLE DISCRETION
OF THE COMPANY.
21.
INDEMNIFICATION AND LIABILITY INSURANCE.
THE COMPANY SHALL INDEMNIFY
AND COVER EXECUTIVE UNDER THE COMPANY'S DIRECTORS' AND OFFICERS' LIABILITY
INSURANCE DURING THE TERM IN THE SAME AMOUNT AND TO THE SAME EXTENT AS THE
COMPANY INDEMNIFIES AND COVERS ITS OTHER OFFICERS AND DIRECTORS.
[Signature page follows]
13
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
and delivered on the date above.
FORWARD INDUSTRIES, INC.
By:
Name:
Title:
Agreed to and Accepted:
Robert Garrett, Jr.
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EXHIBIT A
AGREEMENT AND RELEASE
Agreement and Release ("Agreement") executed this ___ day of ______, 20__, by
and between Robert Garrett, Jr. ("Executive") with an address at
___________________ and Forward Industries, Inc., its parents, subsidiaries and
affiliates (the "Company") with an address at 3110 Main Street, Suite 400, Santa
Monica, California 90405.
1.
EXECUTIVE'S EMPLOYMENT SHALL BE TERMINATED EFFECTIVE ________
("TERMINATION DATE").
AS OF THAT DATE, EXECUTIVE'S DUTIES, RESPONSIBILITIES,
OFFICE AND TITLE SHALL CEASE.
CAPITALIZED TERMS USED WITHOUT DEFINITION IN THIS
AGREEMENT SHALL HAVE THE MEANINGS SET FORTH IN THE EMPLOYMENT AGREEMENT BY AND
BETWEEN EXECUTIVE AND THE COMPANY, DATED AS OF MARCH __, 2012 (THE "EMPLOYMENT
AGREEMENT").
2.
(A)
IF