Exhibit 3
STANDSTILL AGREEMENT ("Agreement") entered into as of April 11, 2002 by
and between Xxxxxx X. Xxxxx, an individual residing at 000 Xxxx 00xx Xxxxxx,
Xxx. 00X, Xxx Xxxx, XX 00000 ("Ellin"), Xxxxx X. Xxxxx, an individual residing
at 000 Xxxx 00xx Xxxxxx, Xxx. 00X, Xxx Xxxx, XX 00000 ("Xxxxx Xxxxx"), Atlantis
Equities, Inc., a New York corporation ("Atlantis"), Xxxxxx Xxxxx Family 1997
Trust, a trust formed under the laws of the State of New York (the "Trust"),
Xxxxxx Xxxxx Profit Sharing Plan, an employee benefit plan formed under the laws
of the United States (the "Plan", and together with Ellin, Xxxxx Xxxxx, Atlantis
and the "Trust", the "Ellin Group"), and Forward Industries, Inc., a New York
corporation, with offices at 0000 Xxxxx Xxxx, Xxxxxxx Xxxxx, XX 00000 (the
"Company").
RECITALS:
WHEREAS, in connection with the transactions to be consummated by it under
that certain Settlement Agreement of even date herewith between the Ellin Group
and the Company (the "Settlement Agreement"), the Company and the members of the
Ellin Group have agreed to enter into this Agreement;
WHEREAS, the Existing Position (as defined herein) owned beneficially or
of record by the Ellin Group constitutes 100% of the Company Voting Securities
(as defined herein) owned beneficially or of record, individually or
collectively, by the Ellin Group and their Affiliates, associates and other
persons with whom such Persons could constitute a group with respect to the
Company Voting Securities;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements set forth herein,
intending to be legally bound hereby, the parties hereto, agree as follows:
AGREEMENT
1. CERTAIN DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" shall mean, with respect to any specified Person, any
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified. In the case of Ellin, his Affiliates shall include without limitation
the Xxxxxx Xxxxx Family 1997 Trust, the Trustee of said Trust, Atlantis
Equities, Inc., a New York corporation having an address at 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, XX, and its officers and directors, the Xxxxxx Xxxxx Profit
Sharing Plan, the administrator of said Plan, and Xxxxx X. Xxxxx.
(b) "beneficially own" or "beneficial ownership" (or terms of similar
import) with respect to any securities shall mean having "beneficial ownership"
of such securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or understanding, whether
or not in writing. Securities Beneficially Owned by a Person shall include
securities Beneficially Owned by all Affiliates and "associates" (as defined
under Exchange Act) of such Person and all other Persons with whom such Person
would constitute a "group" within the meaning of Section 13(d) of the Exchange
Act and the rules promulgated thereunder.
(c) "Change of Control" shall mean the occurrence of any of the following:
(i) any "person" or "group" (for the purposes of this definition, as such terms
are used in Section 13(d) or 14(d)(2) under the Exchange Act) becomes the
ultimate "beneficial owner" (as defined above in Section 1(b)) of 40% or more of
the Company Voting Securities; or (ii) any "person" or "group" (other than
existing executive officers and employee-directors of the Company and their
Affiliates as of the date hereof), together with any Affiliates or Related
Persons thereof, shall succeed in having a sufficient number of its nominees
appointed to the Board of Directors of the Company such that the nominees, when
added to any existing member remaining on the Board of Directors of the Company
after such appointment who was a nominee of or is an Affiliate or Related Person
of such "person" or "group", will constitute a majority of the board of
Directors of the Company.
(d) "Common Stock" shall mean the Company's Common Stock, par value $0.01
per share.
(e) "Company Voting Securities" shall mean the Company's Common Stock and
any other securities issued by the Company entitled, or which may be entitled,
to vote (whether or not entitled to vote generally in the election of directors)
and any securities convertible into or exercisable or exchangeable for such
securities (whether or not subject to contingencies with respect to any matter
or proposal submitted for the vote or consent of shareholders of the Company).
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934.
(g) "Existing Position" shall mean the 695,700 shares of Common Stock
owned beneficially or of record, individually or collectively, by Ellin, his
immediate family members and his Affiliates, associates and other persons
forming a group as of the date of this Agreement.
(h) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
(i) "Related Person" shall mean, with respect to any Person, any other
Person directly or indirectly owning 10% or more of the outstanding voting
securities or combined voting power of such Person.
(j) "Standstill Period" shall mean the period commencing on the date that
this Agreement is executed by the parties hereto and ending on the date that is
eighteen months (547 days) after such date of execution; provided, however, that
if the Ellin Group or any member thereof, or their Affiliates, agents or
representatives, is determined by a court of applicable jurisdiction to have
breached this Agreement, the date on which the Standstill Period shall end shall
be extended for a period of time equivalent to the period during which such one
or more such Persons were in breach.
2. STANDSTILL AND RELATED PROVISIONS.
(a) During the Standstill Period the Ellin Group, and each member thereof,
agrees that without the prior written consent of the Board of Directors of the
Company specifically expressed in a resolution adopted by a majority of the
directors of the Company, the Ellin Group
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will not, each member of the Ellin Group will not, and Ellin will cause each of
his other Affiliates, agents and representatives not to, directly or indirectly,
alone or in concert with others:
(i) acquire or offer, propose or agree to acquire, directly or
indirectly, whether by purchase, tender or exchange offer, through the
acquisition of control of another Person or otherwise, any Company Voting
Securities or other securities of the Company;
(ii) make, or in any way participate, directly or indirectly, in any
"solicitation" (as such term is used in the proxy rules of the Securities
and Exchange Commission as in effect on the date hereof) of proxies or
consents (whether or not relating to the election or removal of
directors), advise, seek to advise, encourage or influence any Person with
respect to the voting of any Company Voting Securities, initiate, propose
or otherwise "solicit" (as such term is used in the proxy rules of the
Securities and Exchange Commission as in effect on the date hereof)
stockholders of the Company for the approval of shareholder proposals,
whether made pursuant to Rule 14a-8 of the Exchange Act or otherwise, or
induce or attempt to induce any other Person to initiate any such
shareholder proposal or initiate any other action described in this
Section 2(a)(ii);
(iii) seek, propose, or make any statement with respect to, a
merger, consolidation, business combination, tender or exchange offer,
sale or purchase of assets, sale or purchase of securities, dissolution,
liquidation, reorganization, recapitalization or similar transaction
involving the Company, its subsidiaries or its business, whether or not
any such transaction involves a Change of Control of the Company;
(iv) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to
Beneficial Ownership of any Company Voting Securities or otherwise
involving a transaction described in Section 2(a)(iii) above;
(v) deposit any Company Voting Securities in any voting trust or
subject any Company Voting Securities to any arrangement or agreement with
respect to the voting or beneficial ownership of any Company Voting
Securities other than this Agreement;
(vi) call or seek to have called any meeting of the stockholders of
the Company or execute any written consent with respect to the Company or
Company Voting Securities;
(vii) otherwise act to control or seek to control or influence or
seek to influence the management, Board of Directors or policies of the
Company, or to induce a Change of Control of the Company;
(viii)seek representation on the Board of Directors of the Company
or seek the removal of any member of such Board; provided, however, that
the appointment of Messrs. Xxxxxxxx and Xxxx to the Board of Directors of
the Company in accordance with the Settlement Agreement shall not
constitute a violation of this provision;
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(ix) make any proposal or publicly disclose any intention to make
any proposal (whether or not subject to conditions) or enter into any
discussion regarding any of the actions described in this Section 2(a);
(x) take any action which might encourage, induce, persuade or force
another Person to make a public announcement relating in any way to the
Company, its subsidiaries or its business regarding any of the types of
matters set forth in this subsection; or encourage, solicit, assist,
institute, participate in, finance or support, or enter into any
discussions, negotiations, understandings, agreements or arrangements
with, any other Person, individual, entity or party with respect to any of
the foregoing;
(xi) make any proposal, statement or inquiry, or disclose any
intention, plan or arrangement (whether written or oral) inconsistent with
the foregoing, or make or disclose any request to amend, waive or
terminate any provision of this Agreement; or
(xii) have any discussions or communications, or enter into any
arrangements, understandings, or agreements (whether written or oral)
with, or advise, finance, assist or encourage, any other Person in
connection with any of the foregoing, or make any investment in or enter
into any arrangement with, any other Person that engages, or offers or
proposes to engage, in any of the foregoing.
(b) During the Standstill Period none of the Ellin Group or any member
thereof shall, and Ellin shall cause his other Affiliates, agents and
representatives not to, directly or indirectly, effect, cause, participate in,
or seek, offer, attempt or propose (whether publicly or otherwise) to effect,
cause, participate in, seek, offer, attempt or propose any of the activities
described in Section 2(a) above.
(c) Provided that none of the Ellin Group, its Affiliates, agents and
representatives engages in any conduct otherwise prohibited by Section 2(a)
above, (i) the record and/or beneficial ownership by the Ellin Group of the
Existing Position (together with any Common Stock permitted to be purchased
pursuant to Section 2(d) below), (ii) the fact that the Ellin Group may
constitute a "group" within the meaning of Section 13(d) of the Exchange Act,
(iii) their voting of the Common Stock represented by the Existing Position
(together with any Common Stock permitted to be purchased pursuant to Section
2(d) below) and (iv) Ellin's private communications with the Nominee Directors
(as defined in Section 2(e) hereof) for the purpose of conveying his views to
them and to management generally with respect to governance and other matters
affecting the business and affairs of the Company shall not be deemed to
constitute a breach of Sections 2(a)(iv), (v) or (vii) of this Agreement,
provided that such activities are not associated with any public statements of
any kind relating thereto or other actions otherwise prohibited by this
Agreement.
(d) During the Standstill Period, provided that each and all of the
members of the Ellin Group have at all times complied and are then in compliance
with all provisions of this Agreement, and Ellin provides to the Company written
certification containing a representation and warranty to that effect, then
notwithstanding the provisions of Section 2(a)(i) above:
(i) Ellin or another member of the Ellin Group may, by written request made not
more frequently
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than once each calendar quarter (a "Request"), upon the written approval of such
Request by the Company's Board of Directors as evidenced by written
authorization of an executive officer of the Company, purchase additional shares
of Common Stock by transactions executed regular way on the Nasdaq Stock
Market--Small Cap Market (the "Nasdaq Stock Market") only, such that after such
purchase or purchases the aggregate beneficial ownership of Common Stock held by
the Ellin Group in all capacities shall be not more than 15.0% of the shares of
Common Stock outstanding (as of the date hereof, 873,846 shares), including the
Company Voting Securities represented by the Existing Position. Any such
purchases must be completed within 60 days of the approval of the Board of
Directors, which may be given or withheld in its sole discretion. The Company
shall notify Ellin of its decision to approve or reject a Request not later than
fifteen calendar days after receipt thereof; and
(ii) Without regard to the disposition of any Request under clause (d)(i) above,
in the event that the Company receives written notification from the Nasdaq
Stock Market that it intends to de-list, or to commence a de-listing proceeding
with respect to, the Common Stock and the reason given for such de-listing or
proceeding relates solely and exclusively to the prevailing trading prices of
the Common Stock on the Nasdaq Stock Market, the Company shall promptly so
advise Ellin in writing. Ellin, or other members of the Ellin Group, may, after
the action or proposed action by the Nasdaq Stock Market has been made public,
thereupon purchase shares of Common Stock by transactions executed regular way
on the Nasdaq Stock Market only, in an amount not to exceed the amount of shares
and percentage set forth in clause (i) of this Section 2(d), it being understood
and agreed that such amount and percentage caps shall apply to all purchases, if
any, made pursuant to clause (d)(i) and clause (d)(ii) in the aggregate; and
(iii) Each purchase of Common Stock permitted pursuant to Section 2(d)(i) or
(ii) above is subject to the following: (A) Each and all of the members of the
Ellin Group must at all times be in compliance with all provisions of this
Agreement and all applicable provisions of United States Federal and state
securities laws, including without limitation Sections 10, 13(d), and 16 under
the Exchange Act and the rules and regulations promulgated thereunder by the
Securities and Exchange Commission, including without limitation Rule 10b-5 and
Rules 13d-1-13d-5, inclusive, thereof, the rules of the Nasdaq Stock Market and
the rules of the National Association of Securities Dealers; (B) the Ellin Group
shall on a timely basis amend and file Schedule 13D with respect to the Company
Voting Securities, as required, and in addition, not later than two business
days after each such purchase, notify the Company in writing by facsimile
transmission as to each such purchase, the amount thereof and the aggregate
holdings of Common Stock held by each and every member of the Ellin Group after
giving effect to such purchase; (C) any purchase permitted by this Section 2(d)
shall in not in any respect whatsoever constitute a waiver or modification of
any of the other terms of this Agreement or diminish the obligations of each and
every member of the Ellin Group or otherwise expand their rights hereunder; and
(D)(x) having approved the purchase of Common Stock under Section 2(d)(i), as
the case may be, the Company may at any time thereafter instruct Ellin by
written notice to stop such purchases, or (y) if the condition precedent to
purchases permitted under Section 2(d)(ii) shall have been satisfied, the
Company may at any time thereafter instruct Ellin by written notice to stop such
purchases if the Company deems such action advisable in order to comply with
applicable laws or if the Company has been advised by the Nasdaq Stock Market
that proceedings to de-list the Common Stock have been terminated and the Common
Stock shall not have been de-listed, and
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in each case described under clause (x) or (y), as the case may be, each and all
members of the Ellin Group shall thereupon refrain from further purchases,
unless and until again permitted to do so under the foregoing provisions.
(e) It is contemplated under the Settlement Agreement that Messrs. Xxxxx
Xxxxxxxx and Xxxx Xxxx (collectively, the "Nominee Directors") will be appointed
to the Company's Board of Directors in accordance with the terms thereof.
Notwithstanding Section 1(j) above, if during the Standstill Period (i) each of
Messrs. Xxxxxxxx and Xxxx (x) is ready, willing and able to stand for nomination
and election to the Company's Board of Directors and (y) has not been determined
to be ineligible for such nomination or election in accordance with the
Company's policies, certificate of incorporation and by-laws and applicable
laws, and the Company refuses or fails to nominate either such person for
election as a director to the Board of Directors at the same time that other
candidates for election are so nominated, or (ii) either or both of Messrs.
Xxxxxxxx and Xxxx are removed from office without cause, then in either case the
Standstill Period shall thereupon immediately terminate. Termination of the
Standstill Period prior to the term specified in Section 1(j) pursuant to this
Section 2(e) shall not apply in the case of a failure or refusal of either or
both of Messrs. Xxxxxxxx or Xxxx to stand for nomination or election, the
resignation of either or both of them, the removal from office for cause or the
inability of either or both to stand for election or serve as a director as a
result of disability or death.
3. LITIGATION.
(a) During the Standstill Period, the Ellin Group shall not, each member
thereof shall not, and Ellin shall cause his Affiliates, agents and
representatives not to, file (or encourage, participate in, finance or support
the filing or maintenance of) any suit or other proceeding in any court against
the Company or any of its directors, officers, employees or agents, or any of
their respective Affiliates, except a suit to enforce this Agreement, the
Settlement Agreement (and any exhibits thereto) or any subsequent agreement
entered into by the parties during the Standstill Period.
(b) During the Standstill Period, the Company shall not file (or
encourage, participate in, finance or support the filing or maintenance of) any
suit in any court against any of the Ellin Group, Ellin, his Affiliates, agents
and representatives except a suit to enforce this Agreement, the Settlement
Agreement (and any exhibits thereto) or any subsequent agreement entered into by
the parties during the Standstill Period.
4. CONFIDENTIALITY.
(a) Each member of the Ellin Group acknowledges and agrees that one or
more of Ellin and other members of the Ellin Group may have access to certain
confidential and/or proprietary information of the Company and its subsidiaries
and affiliates and that such information constitutes valuable, special and
unique property of the Company (the "Confidential Information"). Each member of
the Ellin Group further agrees that, during the Standstill Period and
thereafter, it shall keep confidential and will not, directly or indirectly, in
any manner or capacity, disclose any Confidential Information to any other
Person, firm, corporation, association or other entity for any reason or purpose
whatsoever and shall only disclose the same to Ellin's attorneys, accountants
and financial advisors on a need-to-know basis, and will not,
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directly or indirectly, utilize or exploit such information. Ellin shall cause
his Affiliates, agents and representatives to comply with the terms of this
Section 4(a).]
(b) In addition, during the Standstill Period, the Company and the Ellin
Group will keep confidential and will not, directly or indirectly, in any
capacity or manner except as and to the extent required by law (including any
disclosure requirements under Section 13(d) of the Exchange Act) or necessary to
accomplish the undertakings set forth in this Agreement, disclose the existence
of this Agreement or any subsequent agreement entered into by the parties during
the Standstill Period, the terms and conditions of this Agreement or any such
agreement and the transactions contemplated herein or therein, nor information
regarding the discussions and negotiations related thereto, and shall only
disclose the same to such of Ellin's attorneys, accountants and financial
advisors on a need-to-know basis and to such other persons as are necessary to
accomplish the undertakings set forth in this Agreement. Ellin shall cause his
Affiliates, agents and representatives to comply with the terms of this Section
4(b).
(c) Subject to compliance with the terms of this Agreement,
contemporaneously with the execution and delivery of this Agreement (but in any
event not later than one business day thereafter), Ellin and the Ellin Group
shall file with the Securities and Exchange Commission one or more amendments to
the Statement on Schedule 13D previously filed by them for the purpose of
attaching a copy of this Agreement as an exhibit thereto or, if required in the
reasonable opinion of legal counsel to them, file a new Statement on Schedule
13D. In order to facilitate any such filings, the Company shall provide Ellin
with an electronic copy of this Agreement on or before the execution and
delivery thereof by e-mail or diskette in Microsoft Word format. In addition,
Ellin and the Ellin Group may in their discretion agree to cause to be issued a
press release that describes or summarizes the agreements and undertakings set
forth herein. The language to be contained in the amended Schedule 13D, or the
new Schedule 13D, as the case may be, and the press release, as the case may be,
shall have been agreed upon in form and substance by Ellin and the Company prior
to such filing and issuance, respectively. None of the Ellin Group or any member
thereof shall thereafter during the Standstill Period file an amendment to said
Schedule 13D, file a new Schedule 13D or issue any press release with respect to
the subject matter hereof unless the Company shall have agreed in form and
substance to the contents thereof prior to such filing or release.
(d) In the event that any member of the Ellin Group or any Person to whom
any of the foregoing transmits Confidential Information pursuant to this
Agreement is requested or becomes legally compelled (by oral questions,
interrogatories, request for information or documents, subpoena, civil
investigative demand or similar process) to disclose any of the Confidential
Information, Ellin shall, and he shall cause his Affiliates, agents and
representatives to, provide the Company with prompt written notice so that the
Company may seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. In the event that a protective
order or other remedy is not obtained or the provisions of this Agreement are
not waived, such person will furnish only that portion of the Confidential
Information which is legally required and will exercise his or her reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded any Confidential Information so disclosed.
5. NO DEROGATORY REMARKS.
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(a) Each member of the Ellin Group hereby agrees that it will not, and
each shall cause its Affiliates, agents and representatives to agree not to,
during the Standstill Period, directly or indirectly, in any capacity or manner,
make, express, transmit, speak, write, verbalize or otherwise communicate in any
way (or cause, further, assist, solicit, encourage, support or participate in
any of the foregoing), any remark, comment, message, information, declaration,
communication or other statement of any kind, whether verbal, in writing,
electronically transferred or otherwise, that might reasonably be construed to
be derogatory or critical of, or negative toward, the Company or any of its
directors, officers, affiliates, subsidiaries, employees, agents or
representatives (collectively, the "Company's Representatives"), or to malign,
harm, disparage, defame or damage the reputation or good name of the Company,
its business or any of the Company's Representatives, and/or that reveals,
discloses, incorporates, is based upon, discusses, includes or otherwise
involves any Confidential Information.
(b) the Company hereby agrees that, during the Standstill Period, the
Company will not, directly or indirectly, in any capacity or manner, make,
express, transmit, speak, write, verbalize or otherwise communicate in any way
(or cause, further, assist, solicit, encourage, support or participate in any of
the foregoing), any remark, comment, message, information, declaration,
communication or other statement of any kind, whether verbal, in writing,
electronically transferred or otherwise, that might reasonably be construed to
be derogatory or critical of, or negative toward, any of Ellin or any other
member of the Ellin Group, or to malign, harm, disparage, defame or damage the
reputation or good name of Ellin or any member of the Ellin Group (or their
businesses, as applicable), agents or representatives.
6. REMEDIES. The Company and each member of the Ellin Group acknowledge and
agree that the covenants and agreements set forth in this Agreement are an
essential inducement for the Company and the Ellin Group to have entered into
this Agreement, and the restrictions imposed herein are not greater than are
fair and reasonable and necessary for the protection of the Company and the
Ellin Group in light of the substantial harm that the Company and the Ellin
Group will suffer in the event of a breach of any of the provisions of said
covenants or agreements. The Company and each member of the Ellin Group further
acknowledge and agree that the parties would not have an adequate remedy at law
and would be irreparably harmed in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that, in the event of an actual or
threatened breach of this Agreement by the Company, the Ellin Group or any
member thereof (or any of their Affiliates, agents or representatives), each
party hereto shall be entitled to injunctive or other equitable remedy or relief
to enjoin, restrain, prohibit and/or prevent breaches or violations of this
Agreement and to specifically enforce the terms and provisions hereof
(including, without limitation, requiring each and every member of the Ellin
Group and any nominee, broker or other Person acting on their behalf, to dispose
of shares of Common Stock in order to be in compliance with the terms of this
Agreement), in addition to any other remedy at law or in equity to which such
party may be entitled. Each of the Company and the members of the Ellin Group
hereby waives, and the Company agrees to cause the Company's Representatives to
waive, and Ellin agrees to cause Ellin's Affiliates, agents and representatives,
as the case may be, to waive, any requirement for the securing or posting of any
bond or the proving of actual damages in connection with such remedy or relief.
7. MISCELLANEOUS.
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(a) NOTICES. All notices, consents, waivers and other communications under
this Agreement must be in writing and will be deemed to have been duly given if
delivered by hand, by overnight delivery, or by United States mail, postage
prepaid, registered or certified mail, return receipt requested, upon delivery
or refusal of delivery, in each case to the appropriate addresses set forth
below (or to such other addresses as a party may designate by notice to the
other party hereto):
If to Ellin:
Xx. Xxxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
copy to:
Xxxxx Raysman Xxxxxxxxx
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.
If to Xxxxx Xxxxx:
Xxx. Xxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx. 00X
Xxx Xxxx, XX 00000
copy to:
Xxxxx Raysman Xxxxxxxxx
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Esq.]
If to Atlantis Equities, Inc.:
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Atlantis Equities, Inc.
Xxxxxx X. Xxxxx, President
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
If to Xxxxxx Xxxxx Family 1997 Trust:
Xxxxxx Xxxxx Family 1997 Trust
Xxxxxx Xxxxx, Trustee
000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
If to Xxxxxx Xxxxx Profit Sharing Plan:
c/o Xxxxxx Xxxxx, Trustee
c/o Atlantis Equities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company:
Forward Industries, Inc.
0000 Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
copy to:
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
or too such other address as to the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement, and
supersedes any prior agreements and understandings (oral or written), between
the parties hereto relating to the subject matter of this Agreement. To be
effective, any modification, amendment or supplement of this Agreement must be
in writing and signed by the party to be charged thereby.
(c) CHOICE OF LAW. The validity and construction of this Agreement shall
be governed by the laws of the State of New York, without regard to the
principles of conflict of laws thereof.
(d) HEADINGS. The Section headings herein are for reference only and shall
not limit or control the meaning of any provision of this Agreement.
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(e) NO WAIVER. No delay or omission on the part of any party hereto in
exercising any right hereunder shall operate as a waiver of such right or any
other right under this Agreement.
(f) ASSIGNMENT. No party hereto shall assign this Agreement, or any
rights, benefits, duties or obligations hereunder, or any interest therein,
without first obtaining the written consent of the other party hereto. Without
waiver of the foregoing provisions, all of the rights, benefits, duties,
liabilities, and obligations of the parties hereto shall inure to the benefit of
and be binding upon the parties and their respective heirs, successors and
permitted assigns.
(g) INTERPRETATION. The parties hereto have each negotiated the terms
hereof and reviewed this Agreement carefully. It is the intent of the parties
that each word, phrase, and sentence and other part hereof shall be given its
plain meaning, and that rules of interpretation or construction of contracts
that would construe any ambiguity of any part hereof against the draftsman, by
virtue of being the draftsman, shall not apply. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein. The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such term. Unless
the context otherwise indicates, any agreement, instrument or statute defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument or statute as from time to time amended,
modified or supplemented, including (in the case of agreements or instruments)
by waiver or consent and (in the case of statutes) by succession of comparable
successor statutes and references to all attachments thereto and instruments
incorporated therein. References to a person are also to its heirs, successors
and permitted assigns.
(h) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall comprise one and the same document. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of a
manually executed counterpart of this Agreement.
(i) ATTORNEYS' FEES. If legal action is commenced to enforce this
Agreement, the prevailing party in such action shall be entitled to recover its
reasonable costs and reasonable attorneys' fees and expenses in addition to any
other relief granted. The term "prevailing party" shall mean the party in whose
favor final judgment after appeal (if any) is rendered with respect to the
claims asserted in a complaint.
(j) The agreements, undertakings, obligations and covenants set forth
herein or in any Exhibit hereto on the part of the members of the Ellin Group
shall be bind them jointly and severally.
(k) SEVERABILITY. If any provision of this Agreement shall be held invalid
under any applicable laws, such invalidity shall not affect any other provision
of this Agreement that can be given effect without the invalid provision, and,
to this end, the provisions hereof are severable.
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(l) EXPENSES. All costs and expenses incurred in connection herewith shall
be borne by the respective parties incurring such expense, whether or not such
transactions are consummated.
(m) NO THIRD PARTY BENEFICIARIES. Except as expressly provided herein,
this Agreement and its provisions, terms and conditions are for the sole and
exclusive benefit of the parties to this Agreement and their heirs, successors
and permitted assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
--------------------------------
XXXXX XXXXX
/s/ Xxxxx Xxxxx
--------------------------------
ATLANTIS EQUITIES, INC.
/s/ Xxxxx Xxxxx
--------------------------------
By:
Name: Xxxxx Xxxxx
Title: President
XXXXXX XXXXX FAMILY 1997 TRUST
/s/ Xxxxxx Xxxxx, Trustee
--------------------------------
By:
Name: Xxxxxx Xxxxx
Title: Trustee
XXXXXX XXXXX PROFIT SHARING PLAN
/s/ Xxxxxx Xxxxx
--------------------------------
By:
Name: Xxxxxx Xxxxx
Title: Trustee
FORWARD INDUSTRIES, INC.
/s/ Xxxxxx X. Xxxx
--------------------------------
By:
Name: Xxxxxx X. Xxxx
Title: Chairman and CEO
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