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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) October 14, 1996
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FORWARD INDUSTRIES, INC.
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(Exact Name of registrant as specified in its charter)
New York 0-6669 13-1950672
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(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
275 Hempstead Turnpike, West Hempstead, NY 11552
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 564-1100
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Not Applicable
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(Former name, former address and former fiscal year, if changed since last
report)
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ITEM 5. OTHER EVENTS.
EMPLOYMENT AGREEMENT WITH WILLIAM MOOAR
Effective October 14, 1996, Forward Industries, Inc. (the "Company")
entered into an employment agreement (the "Agreement") with William Mooar,
pursuant which Mr. Mooar will serve as President of the Company and perform
duties for the Company of a senior executive nature. Simultaneously, Mr. Mooar
became a director of the Company.
Mr. Mooar is employed at an annual base salary of $150,000, received a
signing bonus of $30,000 and will receive incentive compensation with respect to
each fiscal year of the Company ending during the term of the Agreement equal to
the product of (i) $100,000, and (ii) a fraction, the numerator of which will be
the Company's audited pre-tax operating profit (if any) for such fiscal year and
the denominator of which will be $500,000.
The Agreement provides that, subject to shareholder approval, Mr.
Mooar will receive an option to purchase 250,000 shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), at an exercise price of
$.01 per share. The option will vest in four equal semi-annual installments
commencing March 30, 1997, provided that Mr. Mooar continues in the Company's
employ at each such vesting date. If such option is not approved by the
Company's shareholders by March 30, 1997, the Company is required to sell Mr.
Mooar on such date 250,000 shares of Common Stock for $2,500 in lieu of such
option, subject to Mr. Mooar's obligation to resell to the Company, at his
purchase price, up to 187,500 of such shares on termination of his employment
with the Company, depending on when his employment terminates.
The Agreement also provides that, subject to shareholder approval, the
Company will grant Mr. Mooar an additional option (the "Incentive Option") to
purchase an additional 400,000 shares of Common Stock if the Company's audited
pre-tax operating income for its 1997 or 1998 fiscal year is at least $1
million. The Incentive Option, if earned, will be granted as of the date that
the Company's independent auditors certify the Company's year-end financial
statements which reflect achievement of the required pre-tax operating income.
The Incentive Option will vest in four equal semi-annual installments commencing
six months after the date of grant if Mr. Mooar is employed by the Company at
such time, and will expire ten years after the date of grant.
Prior to joining the Company, Mr. Mooar was the chief executive of
Coast Manufacturing Company and Coast Marketing Company (collectively "Coast),
which are engaged in the import, manufacture and distribution of carrying cases
for the photographic, audio and video markets. Although Mr. Mooar is required
to devote his full business time to the business of the Company, he has been
granted the right to devote, until January 30, 1997, up to four hours a week to
Coast (in which he remains the sole equity-holder) to assist in the transition
of his previous responsibilities to a new Coast management team.
The Agreement expires October 13, 1998; however, the Company has the
right to terminate the Agreement during the first 90 days thereof without cause
and without incurring any termination obligation to Mr. Mooar.
The foregoing information is qualified in its entirety by reference to
the complete text of the Agreement, a copy of which is filed as an exhibit
hereto and is incorporated herein by reference.
TERMINATION OF NEGOTIATIONS FOR ACQUISITION OF COAST
Reference is made to Part 2 ("Management's Discussion and Analysis")
of the Company's Quarterly Report on Form 10-QSB for the quarterly period ended
June 30, 1996 in which the Company indicated that it had entered into a non-
binding letter of intent to acquire the business and assets of Coast,
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subject to certain conditions. On October 17, 1996, the Company announced that
it had terminated its negotiations to acquire the business and assets of Coast,
due to the inability of Coast to restructure its outstanding liabilities, one of
several conditions to a proposed transaction.
ISSUANCE OF COMMON STOCK UPON CONVERSION OF NOTE
Reference is made to Part 2 ("Management's Discussion and Analysis")
of the Company's Quarterly Report on Form 10-QSB for the quarterly period ended
March 31, 1996 in which the Company indicated that, on February 14, 1996, it had
issued its thirteen month note in the principal amount of $250,000 (the "Note")
convertible into restricted shares of Common Stock at a conversion rate of $1.00
per share. The Note, as amended, was further modified on October 19, 1996 to
reduce the conversion rate to $.50 per share and, on October 25, 1996, the
holder thereof, Cliveden Capital Offshore Fund, converted the Note into 500,000
shares of Common Stock.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS
1. Employment Agreement, dated as of October 14, 1996, between Forward
Industries, Inc. and William Mooar.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
FORWARD INDUSTRIES, INC.
(Registrant)
Date: October 30, 1996 By: s/Theodore H. Schiffman
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Theodore H. Schiffman
Chairman and Chief
Executive Officer
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EXHIBIT 1 TO FORM 8-K CURRENT REPORT
FORWARD INDUSTRIES, INC.
EMPLOYMENT AGREEMENT
AGREEMENT effective as of October 14, 1996 between Forward Industries,
Inc., a New York corporation with offices at 275 Hempstead Avenue, Hempstead,
New York 11552 (the "Company"), and William Mooar residing at 541 Westover Road,
Stamford, Connecticut 06902 ("Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ Executive to perform senior
executive and other services for the Company, and Executive desires to accept
such employment, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of which the parties
acknowledge, the parties agree as follows:
1. EMPLOYMENT AND DUTIES
2. The Company hereby employs Executive for the term of this Agreement
and Executive hereby accepts such employment as the President of the Company on
the terms and conditions set forth in this Agreement.
3. EMPLOYMENT TERM
Unless terminated at an earlier date pursuant to the terms of this
Agreement, the term of employment hereunder (the "Employment Term") shall be two
(2) years, commencing on the date hereof (the "Commencement Date").
a. SERVICES
Executive shall perform such duties of a senior executive nature for
the Company, as shall be consistent with the provisions of the Company's By-laws
in effect on the date hereof, subject to the direction of the Board of Directors
of the Company (the "Board"). Executive shall serve the Company faithfully and
to the best of his ability and shall devote his full business time and attention
to the affairs of the Company, subject to reasonable absences for vacation and
illness as determined by the Board.
b. The headquarters for the performance of Executive's services
during the term of this Agreement shall be the principal executive offices of
the Company in Hempstead, New York, unless otherwise agreed by the Company and
Executive and subject to such reasonable travel in the performance of
Executive's duties as the business of the Company may require.
4. COMPENSATION AND EXPENSE REIMBURSEMENT
a. SALARY. Executive shall be entitled to receive for all services
rendered by Executive in any capacity, an annual salary at the rate of $150,000
(payable in equal installments in accordance with the then prevailing practices
of the Company, but in no event less frequently than
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monthly), subject to adjustment upon terms agreed upon by the Company and
Executive. In addition, the Company shall pay Executive $30,000 on October 15,
1996 as a signing bonus.
b. BONUS. The Executive shall receive a bonus with respect to each
full fiscal year ended during the Employment Term equal to $100,000 multiplied
by a fraction, the numerator of which shall be the pre-tax operating profit (if
any) of the Company as shown in its audited financial statements for such fiscal
year and the denominator of which shall be $500,000.
In addition, as further inducement to Executive to serve as President
of the Company, upon execution of this Agreement, Executive shall receive,
subject to approval by the shareholders of the Company, options to purchase
250,000 shares of common stock, par value $.01 per share (the "Common Stock"),
of the Company at an exercise price of $.01 per share, provided, further, that
if the stockholders do not approve such options by March 30, 1997, then the
Company shall, as of such date, sell the Executive 250,000 shares of Common
Stock at $.01 per share and all but 62,500 of such shares shall be subject to
repurchase by the Company at $.01 per share if the Executive's employment with
the Company terminates (with such risk of repurchase lapsing as to 62,500
additional shares of Common Stock each six months thereafter). If the Executive
purchases the 250,000 shares as a result of the failure of the stockholders to
approve the options, such purchase shall replace such options and such options
shall be canceled. Options to purchase 62,500 (subject to adjustment for stock
splits and similar events) of such shares of Common Stock shall become
exercisable every six months during the Employment Period, provided the
Executive is still employed by the Company.
c. EXPENSES. Executive will be reimbursed for all reasonable and
necessary expenses incurred by Executive in carrying out the duties contemplated
under this Agreement, in accordance with then prevailing Company procedure, as
such practices may be changed from time to time by the Board. The Company shall
reimburse the Executive for, or pay for, the costs of a car lease not to exceed
$600 per month.
d. STOCK OPTIONS. Subject to the approval by the shareholders of
the Company, Executive shall be granted options to purchase 400,000 shares of
Common Stock, if the Company's pre-tax operating income for the fiscal year
ending September 30, 1997 or the fiscal year ending September 30, 1998 is at
least $1 million. Net income shall be derived from the audited financial
statements of the Company for each such fiscal year and any options earned will
be granted as of the date such financial statements are signed by the Company's
independent certified accountants and will be evidenced by a Stock Option
Agreement in the form of Exhibit A hereto. The exercise price of such options
shall be equal to the fair market value on the date of the grant and such
options shall vest 25% every six months after the date of grant, provided the
Executive is still employed by the Company, and be exercisable for ten (10)
years from the date of grant.
e. VACATIONS. Executive shall be entitled to four (4) weeks
vacation per year, to be taken at such times in accordance with the then
prevailing Company practices for Executive.
f. BENEFITS. Executive shall be entitled to participate in all
group health and other insurance programs and all other fringe benefit or
retirement plans or other compensatory plans which the Company may hereafter
elect to make available to its executives generally on terms no less favorable
than those provided to other executives generally, provided Executive meets the
qualifications therefor, but the Company shall not be required to establish any
such program or plan, except as provided in this Paragraph 4.
g. BOARD OF DIRECTORS. The Executive shall be invited to join the
Company's Board of Directors upon the commencement of the Employment Term.
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5.A TERMINATION FOR CAUSE
In the event of: (a) fraud against the Company, conviction of a
felony, the intentional disclosure of confidential information (unless required
by applicable law or court or other order), aiding a competitor to the detriment
of the Company, its subsidiaries or affiliates, intentionally engaging in
conduct which brings disrepute or otherwise is damaging to the reputation of the
Company, its subsidiaries or affiliates, performing competitive services or
acting in a competitive capacity for any other person, firm or corporation
without the prior written consent of the Company; or (b) willful misconduct,
gross negligence, prolonged and unexcused (subject to Paragraph 6 hereof)
absenteeism by Executive in connection with Executive's employment hereunder, a
breach by Executive of the terms of this Agreement which has a material adverse
effect on the Company, or Executive's willful or intentional failure to
implement the reasonable business requests or directions of the Board, the
Company shall have the right to give Executive a termination notice, specifying
the nature of the breach or failure. If such termination notice is given
pursuant to clause (a) above, the Employment Term shall terminate upon the
giving of such notice. If such termination notice is given pursuant to clause
(b) above, the Employment Term shall terminate thirty (30) days after the giving
of such notice if the circumstances described in such notice have not been
remedied by Executive within such thirty (30)-day period. Upon the termination
of the Employment Term pursuant to this Paragraph 5, all provisions of this
Agreement shall terminate except for the provisions of Paragraph 8. Upon the
effective date of termination of the Employment Term, the Company shall have no
further obligation to Executive hereunder, except for accrued and unpaid salary,
and other previously earned, accrued and unpaid benefits from the Company and
its employee benefit plans through the date of termination.
5.B TERMINATION WITHOUT CAUSE. In the event of a termination of the
Executive's employment within 90 days of the date of this Agreement with or
without cause, all provisions of this Agreement shall terminate except for the
provisions of Paragraph 8; provided, however, that the non-competition
provisions of Paragraph 8 hereof shall be applicable solely to any business,
enterprise or venture which is engaged in the business of manufacturing and/or
distributing carrying cases supplied to the cellular telephone, home medical
equipment, laptop computer and other industries being supplied by the Company or
any of its subsidiaries at such time, it being understood that, in the event of
a termination pursuant to this Section 5B, the Executive shall not be prohibited
from working as an executive of the Coast Companies (as defined below) or
working for a supplier to the photography, audio or visual industries. Upon the
effective date of termination of the Employment Term, the Company shall have no
further obligation to Executive hereunder, except for accrued and unpaid salary,
and other previously earned, accrued and unpaid benefits from the Company and
its employee benefit plans through the date of termination. If Executive's
employment hereunder is terminated by the Company (a) for any reason within the
90-day period referred to above or (b) for any reason after such 90-day period
other than as provided for in Sections 5A, 6 or 7 or the voluntary termination
by the Executive, then in either case, Executive's obligation, under Section
8(b), to grant the Company options to purchase the stock of the Coast Companies
(as defined in Section 8(b)) shall also terminate.
6. ILLNESS OR INCAPACITY
In the event of any disability, illness or other incapacity which
prevents Executive from performing services as contemplated herein, the
obligation of the Company to pay compensation to Executive shall be reduced to
the extent of any amount received by Executive pursuant to any disability
insurance policy maintained and paid for by the Company. If Executive shall be
incapacitated for more than 120 consecutive days or 180 days in any consecutive
12-month period, the Company shall have the right to terminate this Agreement
upon 10 days' prior written notice with no further liability, except for accrued
and unpaid salary, and other previously earned, accrued and unpaid benefits from
the Company and its employee benefit plans through the date of such termination,
provided that such termination shall not prejudice any rights of Executive under
any disability policies being maintained by the Company for
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Executive under the terms of this Agreement. Notwithstanding any such
termination, the provisions of Paragraph 8 will continue to apply.
7. DEATH
This Agreement shall terminate automatically upon the death of
Executive. In such event, the Company shall pay the estate of Executive, in
addition to any amounts to which Executive's estate would otherwise be entitled
under the Company's retirement plans and group life insurance policy, within 30
days after the date of death, all compensation earned under Paragraph 4 through
the date of death.
8. NON-COMPETITION AND TRADE SECRETS
a. CONFIDENTIALITY AND WORK PRODUCT. During the term of this
Agreement and thereafter without limitation of time, Executive shall not
knowingly divulge, furnish, or make available to any third person, company,
corporation or other organization (including but not limited to customers,
competitors or government officials), except in the course of performing his
duties as an Executive hereunder or with the Company's prior written consent,
trade secrets or other confidential information concerning the Company, its
subsidiaries or affiliates or the business of any of the foregoing, including
without limitation, confidential methods of operation and organization and
confidential sources of supply and customer lists, but Executive may make
disclosures as required by applicable law or orders without prior written notice
to the Company. For purposes of this Paragraph 8, information shall not be
deemed confidential if it (i) is within the public domain, or (ii) becomes
publicly known other than through disclosure by Executive in violation of this
provision.
b. NON-COMPETITION. During the Employment Term and for a period of
three (3) years thereafter, Executive agrees not to directly or indirectly, own,
control, manage, operate, participate or invest in, including, but not limited
to, as an officer, director, shareholder, employee, consultant, agent, or
otherwise be connected with, in any manner, any business, enterprise or venture
which is engaged in the business of manufacturing and/or distributing of
carrying cases supplied to the cellular telephone, home medical equipment,
laptop computer, photography, video or audio industries, including, without
limitation, Coast Manufacturing Company and Coast Marketing Company (the "Coast
Companies") and any other business engaged in by the Company during the
Employment Term, except that nothing in this subparagraph shall be deemed to
prohibit Executive from holding, solely as a passive stockholder, 100% of the
equity of the Coast Companies or the acquisition or holding of not more than one
percent (1%) of the shares or other securities of a publicly-owned corporation
if such securities are traded on a national securities exchange or over the
counter and until January 30, 1997, from performing such duties (not including
day-to-day operations) with respect to the Coast Companies as will not interfere
with the carrying out of his duties to the Company and as do not involve more
than four (4) hours in each week in connection with the transfer of all of his
responsibilities to the new management team of the Coast Companies.
Notwithstanding the foregoing, Executive (i) at such time as it would not be a
breach of any agreement existing as of the date hereof to which the Executive or
the Coast Companies are a party, in order to insure the Company that Executive
does not retain any economic interest in the Coast Companies, will grant five
year options (the "Options"), exercisable for $1.00 each to a wholly-owned
subsidiary of the Company (to be designated by the Company) to acquire 100% of
the capital of the capital stock owned by the Executive in each of the Coast
Companies, (ii) may not vote his securities in the Coast Companies in favor of
any disposition of assets of the Coast Companies (whether by asset sale, merger
or otherwise) to any party other than the Company and (iii) Executive may not
sell, assign, transfer, gift or otherwise dispose of such securities or
cooperate in any way or authorize the issuance of additional securities of the
Coast Companies until the Options expire or are exercised by the Company. Any
exercise of the Options shall be in writing. The closing of any exercise shall
take place at the offices of the Company on the 90th business day after the
notice of exercise is given (or such other time and place as the parties
mutually agree). The Executive agrees that, during the Employment Term, he will
not
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derive income from the Coast Companies and that all opportunities the Executive
generates or is presented with in the carrying case or related businesses will
be presented exclusively to the Company.
c. SOLICITATION. During the Employment Term and for a period of
three (3) years thereafter, Executive agrees not to directly or indirectly
solicit, employ or retain or arrange to have any other person, firm or other
entity solicit, employ, retain, or otherwise participate in the employment or
retention of, any person who is then, or who has been, within the preceding six
(6) months, an employee, technician or engineer of the Company, its subsidiaries
or affiliates.
d. In the event Executive shall violate any provisions of this
Paragraph 8 (which provisions Executive hereby acknowledges are reasonable and
equitable), Executive shall no longer be entitled to and hereby waives any and
all rights to any termination payment under this Agreement.
9. SEPARABILITY
Executive agrees that the provisions of Paragraph 8 hereof constitute
independent and separable covenants, for which Executive is receiving
consideration which shall survive the termination of employment and which shall
be enforceable by the Company notwithstanding any rights or remedies the Company
may have under any other provision hereof.
10. SPECIFIC PERFORMANCE
Executive acknowledges that:
(i) the services to be rendered under the provisions of this
Agreement are of a special character and it would be difficult to replace such
services;
(ii) the Company is relying on the covenants contained herein,
including, without limitation, those contained in Paragraph 8 above, as a
material inducement for entering into this Agreement;
(iii) the Company may be damaged if the provisions hereof are not
specifically enforced; and
(iv) the award of monetary damages may not adequately protect the
Company in the event of a breach hereof by Executive.
By virtue thereof, Executive agrees and consents that if Executive
breaches any of the provisions of this Agreement, the Company, in addition to
any other rights and remedies available under this Agreement or otherwise, shall
(without any bond or other security being required and without the necessity of
proving monetary damages) be entitled to a temporary and/or permanent injunction
to be issued by a court of competent jurisdiction restraining Executive from
committing or continuing any violation of this Agreement, or any other
appropriate decree of specific performance. Such remedies shall not be
exclusive and shall be in addition to any other remedy which the Company may
have.
11. MISCELLANEOUS
a. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire employment agreement between the parties and may not be modified, amended
or terminated (other than pursuant to the terms hereof) except by a written
instrument executed by the parties hereto. All other agreements between the
parties pertaining to the employment or remuneration of Executive not
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specifically contemplated hereby or incorporated or merged herein are terminated
and shall be of no further force or effect.
b. ASSIGNMENT. This Agreement is not assignable by Executive
without the prior written consent of the Company and any purported assignment by
Executive of Executive's rights and/or obligations under this Agreement shall be
null and void. This Agreement may be assigned by the Company at any time, upon
delivery of written notice to Executive (with Executive's consent, not to be
unreasonably withheld), to any successor to the business of the Company, or to
any subsidiaries or affiliates of the Company. In the event that Executive does
not consent to the assignment of this Agreement, the Company shall have the
right to terminate this Agreement automatically with no further liability,
except for accrued and unpaid salary, and other previously earned, accrued and
unpaid benefits from the Company and its employee benefit plans.
c. WAIVERS, ETC. No waiver of any breach or default hereunder
shall be considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar nature. The
failure of any party to insist upon strict adherence to any term of this
Agreement on any occasion shall not operate or be construed as a waiver of the
right to insist upon strict adherence to that term or any other term of this
Agreement on that or any other occasion.
d. PROVISIONS OVERLY BROAD. In the event that any term or
provision of this Agreement shall be deemed by a court of competent jurisdiction
to be overly broad in scope, duration or area of applicability, the court
considering the same shall have the power and hereby is authorized and directed
to modify such term or provision to limit such scope, duration or area, or all
of them, so that such term or provision is no longer overly broad and to enforce
the same as so limited. Subject to the foregoing sentence, in the event that
any provision of this Agreement shall be held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall attach only to such
provision and shall not affect or render invalid or unenforceable any other
provision of this Agreement.
e. NOTICES. Any notice permitted or required hereunder shall be
in writing and shall be deemed to have been given on the date of delivery or, if
mailed by certified mail, postage prepaid, return receipt requested, documented
overnight courier, or by facsimile transmission, on the date mailed or
transmitted.
(i) If to Executive to:
William Mooar at his address
set forth in the preamble to this Agreement
with a copy to:
Henry Porter
Lippes, Silverstein, Mathias & Wexler, LLP
700 Guaranty Building
28 Church Street
Buffalo, New York 14202-3950
Telecopy: 716-853-5199
(ii) If to the Company to:
the address set forth in the preamble
to this Agreement
Attention: Chairman of the Board
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with a copy to:
Squadron, Ellenoff, Plesent & Sheinfeld, LLP
551 Fifth Avenue
New York, New York 10176
Attention: Kenneth R. Koch, Esq.
Telecopy: (212) 697-6686
f. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York governing contracts made and to be
performed in New York without regard to conflict of law principles thereof.
g. This Agreement shall be binding upon and inure to the benefit
of the parties and their respective heirs, executors, administrators, personal
representatives, successors and permitted assigns.
h. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and each party may become a party hereto by
executing a counterpart hereof. This Agreement and any counterpart so executed
shall be deemed to be one and the same instrument. It shall not be necessary in
making proof of this Agreement or any counterpart hereof to produce or account
for any of the other counterparts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
EXECUTIVE FORWARD INDUSTRIES, INC.
s/William Mooar By: s/Theodore H. Schiffman
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William Mooar Name: Theodore H. Schiffman
Title: Chairman of the Board
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