As filed with the Securities and Exchange Commission
on September 16, 2016
Registration No. 333-194510
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
FORWARD INDUSTRIES,
INC.
New York
(State or other jurisdiction of
incorporation or organization)
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13-1950672
(I.R.S. Employer Identification
No.)
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477 S. Rosemary Ave., Suite 219
West Palm Beach, FL
(Address of principal executive
offices)
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33401
(Zip Code)
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Forward Industries, Inc. 2011 Long Term Incentive Plan
Forward Industries, Inc. 2007 Equity Incentive Plan,
as amended
(Full title of the plan)
Michael Matte
Chief Financial Officer
Forward Industries, Inc.
477 S. Rosemary Ave., Suite 219
West Palm Beach, Florida 33401
(Name and address of agent for service)
(561) 456-0030
(Telephone number, including area code, of agent for
service)
With a copy to:
Brian S. Bernstein, Esq.
Nason Yeager Gerson White & Lioce, P.A.
3001 PGA Boulevard, Suite 305
Palm Beach Gardens, Florida 33410
(561) 471-3516
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a small reporting company. See
the definitions of “large accelerated filer”, “accelerated filer”, and “smaller
reporting company” in Rule 12b-2 of the Exchange Act).
[ ] Large
accelerated
filer
[
] Non-accelerated filer (Do not check if a smaller
reporting company)
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[ ] Accelerated
filer
[
X
] Smaller reporting
company
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Additional
Registration No.: 333-165075
EXPLANATORY NOTE
Pursuant
to Rule 429 of the Securities Act of 1933 (the “Securities Act”), this
Post-Effective Amendment No. 1 to Registration Statement on Form S-8, File
No. 333-194510, of Forward Industries, Inc. (“Forward,” the “Company,”
“we”, “us” or “our”) also serves as a Post-Effective Amendment to the
Registration Statement on Form S-8 of the Company identified by the following
File No.: 333-165075.
This
Post-Effective Amendment No. 1 to Form S-8 is being filed solely for the
purpose of filing a revised reoffer prospectus that forms a part of this
Post-Effective Amendment relating to the resale of control securities acquired
or to be acquired by selling stockholders pursuant to the Company’s 2011
Long Term Incentive Plan
(the “2011 Plan”) and the 2007 Equity Incentive Plan, as
amended (the “2007 Plan”) (collectively, the “Plans”). The reoffer prospectus
contained herein is intended to be a combined prospectus under Rule 429 of the
Securities Act, and has been prepared in accordance with the requirements of
General Instruction C of Form S-8 and Part I of Form S-3, to be used in
connection with reoffers and resales of control securities that have been or
will be acquired by the selling stockholders.
The reoffer prospectus may be utilized for reofferings and resales of
shares of Common Stock acquired pursuant to the Plans, the shares of which were
previously registered.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Company has sent or given or will send
or give documents containing the information specified by Part I of this
Registration Statement to participants in the Plans, as specified in Rule
428(b)(1)(i) promulgated by the Securities and Exchange Commission (the “SEC”)
under the Securities Act. The Company is not filing such documents with the
SEC, but these documents constitute (along with the documents incorporated by
reference into this Registration Statement pursuant to Item 3 of Part II hereof)
a prospectus that meets the requirements of Section 10(a) of the Securities
Act.
Upon written or oral request, any of the
documents incorporated by reference in Item 3 of Part II of this Registration
Statement (which documents are incorporated by reference in this Section 10(a)
Prospectus), and other documents required to be delivered to eligible
employees, non-employee directors and consultants, pursuant to Rule 428(b) are
available without charge by contacting:
Forward Industries, Inc.
477 S. Rosemary Ave., Suite 219
West Palm Beach, Florida 33401
Attention: Chief Financial Officer
(561) 456-0030
RESALE
PROSPECTUS
The material which follows, up to but not
including the page beginning Part II of this Registration Statement,
constitutes a prospectus, prepared on Form S-3, in accordance with General
Instruction C to Form S-8, to be used in connection with resales of securities
acquired under the Registrant’s Plans by officers or directors of the
Registrant, as defined in Rule 405 under the Securities Act of 1933.
1
RESALE
PROSPECTUS
1,650,000
SHARES OF COMMON STOCK
FORWARD
INDUSTRIES, INC.
2011
LONG TERM INCENTIVE PLAN AND 2007 EQUITY INCENTIVE PLAN
This prospectus relates to the reoffer and
resale by certain selling stockholders of shares of Forward Industries, Inc.
(“Forward”, the “Company”, “we”, “our” or “us”) that may be issued by us to the
selling stockholders upon the exercise of stock options granted under our 2011
Plan and our 2007 Plan (the “Reoffer Prospectus”). In addition, this
Reoffer Prospectus relates to 354,317 shares of restricted stock and shares
underlying stock options held by the selling stockholders and which were issued
under our 2011 Plan and 2007 Plan. This Reoffer Prospectus also relates
to certain underlying options and shares of restricted stock that have not as
of this date been granted. If and when such options or shares of
restricted stock are granted to persons required to use the prospectus to
reoffer and resell the shares underlying such options or the shares of restricted
stock, we will distribute a prospectus supplement. The shares are being
reoffered and resold for the account of the selling stockholders and we will
not receive any of the proceeds from the resale of the shares.
The selling stockholders have advised us
that the resale of their shares may be effected from time to time in one or
more transactions on the Nasdaq Capital Market, in negotiated transactions or
otherwise, at market prices prevailing at the time of the sale or at prices
otherwise negotiated. See “Plan of Distribution.” We will bear all
expenses in connection with the preparation of this prospectus.
Our Common Stock is listed on the Nasdaq Capital
Market. On September 15, 2016, the closing price for the Common Stock, as
reported by Nasdaq, was $1.50.
This
investment involves risk. See “Risk Factors” beginning at page 5.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY
STATE SECURITIES COMMISSION HAS DETERMINED WHETHER THIS REOFFER PROSPECTUS IS
TRUTHFUL OR COMPLETE. THEY HAVE NOT MADE, NOR WILL THEY MAKE, ANY
DETERMINATION AS TO WHETHER ANYONE SHOULD BUY THESE SECURITIES. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is
September 16, 2016.
2
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on
Form S-8 with the SEC for our common stock, $0.01 par value per share (the
“Common Stock”), offered in this offering. This Reoffer Prospectus does
not contain all the information set forth in the Registration Statement.
You should refer to the Registration Statement and its exhibits for additional
information. Whenever we make references in this Reoffer Prospectus to
any of our contracts, agreements or other documents, the references are not
necessarily complete and you should refer to the exhibits to the Registration
Statement for copies of the actual contracts, agreements or other documents.
We file annual, quarterly and special
reports, proxy statements and other information with the SEC. You may
read and copy any document we file at the SEC’s public reference room located
at 100 F Street, N.E., Washington, D.C. 20549. You may obtain further
information on the operation of the public reference room by calling the SEC at
1-800-SEC-0330. Our SEC filings are also available to the public over the
Internet at the SEC’s website at http://www.sec.gov. You may also request
copies of such documents, upon payment of a duplicating fee, by writing to the
SEC at 100 F Street, N.E., Washington, D.C. 20549. Reports, proxy
statements and other information concerning us can also be inspected at the
Nasdaq Global Market Operations, 1735 K Street, N.W., Washington, D.C.
20006. You may also find recent documents we filed on our website at
www.forwardindustries.com.
INCORPORATION BY REFERENCE
The SEC allows us to incorporate by reference
the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
we incorporate by reference is considered to be part of this Reoffer
Prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We incorporate by reference the
documents listed below and any future filings made by us with the SEC under
Sections 13(a), 13(c), 14 or 15(d) (except with respect to information
furnished but not filed with the SEC pursuant to Item 2.02 or 7.01 of Form 8-K
only those reports that so indicate on the cover page thereof) of the
Securities Exchange Act of 1934 (the “Exchange Act”), until the sale of all the
shares of Common Stock that are part of this offering. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Reoffer Prospectus to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Reoffer Prospectus. The documents we are
incorporating by reference are as follows:
(1)
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Our Annual Report on Form 10-K filed with the SEC on
December 16, 2015 for the fiscal year ended September 30, 2015;
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(2)
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Our Quarterly Report on Form 10-Q filed with the SEC
on August 12, 2016 for the quarter ended June 30, 2016, our Quarterly Report
on Form 10-Q filed with the SEC on May 16, 2016 for the quarter ended March
31, 2016, and our Quarterly Report on Form 10-Q filed with the SEC on February
9, 2016 for the quarter ended December 31, 2015;
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(3)
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Our Current Reports on Form 8-K filed with the SEC
on August 12, 2016, May 16, 2016, February 9, 2016, January 22, 2016 and
December 9, 2015 (other than portions of those documents designated as
“furnished”); and
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(4)
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The description of our Common Stock contained in our
registration statement on Form S-1, filed pursuant to Section 12 of the
Exchange Act on March 26, 2014.
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You may request a copy of these filings, excluding the
exhibits to such filings which we have not specifically incorporated by
reference in such filings, at no cost, by writing or telephoning us at the
following address:
Forward
Industries, Inc.
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477
S. Rosemary Ave., Suite 219
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West
Palm Beach, Florida 33401
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Attention:
Chief Financial Officer
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(561)
456-0030
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ABOUT
THIS PROSPECTUS
This Reoffer Prospectus is part of a registration statement
we filed with the SEC. You should rely only on the information provided or
incorporated by reference in this Reoffer Prospectus or any related supplement.
We have not authorized anyone else to provide you with different
information. The selling stockholders will not make an offer of these
shares in any state where the offer is not permitted. You should not
assume that the information in this Reoffer Prospectus or any supplement is
accurate as of any other date than the date on the front of those documents.
RISK FACTORS
We have a history of losses and negative cash flow from
operations. We cannot assure you that we will sustain profitability in the
future.
We have incurred significant losses and negative cash
flows from operations in recent years. We incurred net losses of approximately
$1.4 million and $0.8 million for the fiscal years ended September 30, 2015 and
2014, respectively, and had net cash used in operating activities of
approximately $2.0 million for the fiscal year ended September 30, 2015 and net
cash provided by operating activities of approximately $0.2 million for the
fiscal year ended September 30, 2014. Further,
we may incur net losses in future reporting periods as we incur expenses
associated with the continuation of our business as well as its subsequent
development, which development cannot be guaranteed. There is no assurance our
future operations will continue to be profitable. If we cannot generate
sufficient revenues to operate profitably, we may be forced to cease or suspend
operations, or we may be required to raise additional capital to maintain or
grow our operations. There is no assurance that we will be able to raise such
additional capital.
We expect to continue to invest incremental cash
resources to execute our growth strategy. While we believe that our existing
cash resources are sufficient to support our growth strategy, there can be no
assurances that our growth strategy will be successful or that we will earn a
return on these investments.
Our business remains highly concentrated in our Diabetic Products
line. If our Diabetic Products line were to suffer the loss of a principal customer
or a material decline in or loss of sales, our business would be materially and
adversely affected.
Sales of Diabetic Products to
Original
Equipment Manufacturer (“OEM”)
customers accounted
for approximately 89% and 83% of net revenues from continuing operations in the
nine months ended June 30, 2106 and fiscal 2015, respectively. As a result, our
financial condition and results of operations are subject to higher risk from
the loss of a major diabetic customer or changes in their business practices; for
example, a decision to reduce or eliminate inclusion of cases in box with the
electronic device or a decision to focus on insulin pumps instead of insulin by
injection. In any such events, our business would be materially and adversely
affected.
The loss of any of, or a material reduction in orders from, our
largest customers, would materially and adversely affect our results of
operations and financial condition.
Our business is and has been characterized by a high degree of
customer concentration. Our four largest customers accounted for approximately
82% and 76% of net sales from continuing operations in fiscal 2015 and fiscal 2014,
respectively. The loss of any of these customers, whether as a result of its
purchase of its carry solution requirements from another vendor, its decision
to manufacture its own carrying cases, its decision to award its orders to one
of our competitors, or otherwise, would have a material adverse effect on our
financial condition, liquidity and results of operations.
If any one or more of our OEM customers elects to reduce or
discontinue inclusion of cases “in box”, our results of operations and
financial condition would be materially and adversely affected.
The predominant percentage of our revenues is derived from sales
of case accessories to our OEM customers who package our cases “in box” with
their electronics. During recent years, there have been numerous federal
legislative and administrative actions that have affected government programs,
including adjustments that have reduced or increased payments to healthcare
providers and patients. For example, the federal healthcare reform legislation
that was enacted in March 2010 (known as the Patient Protection and Affordable
Care Act of 2010 (“ACA”)) may reduce reimbursement for some healthcare
providers and patients while increasing
reimbursement
for others. In addition, ACA mandates the implementation of various programs
and value and quality-based reimbursement incentives that may impact the amount
of reimbursement for healthcare providers and patients. In addition and more
significantly, third-party payers, including governmental health administration
authorities, managed care providers and private health insurers, have
increasingly challenged the price and examined the cost effectiveness of
medical products and services, which has affected the reimbursement of such
products to patients. Due to this uncertainty in medical reimbursements, OEMs
have experienced reductions in demand and, as a result, have sought continuously
to reduce expenses. If one or more of our OEM customers generally begins to
reduce or discontinue the practice of including carry case accessories “in
box”, we would incur a significant decline in revenues and our results of
operations and financial condition would be materially and adversely affected.
We continue to encounter pressures from our largest OEM customers
to maintain or even decrease prices or to supply lower priced carry solutions,
and expect such pressure to persist. The effects of such price constraints on
our business may be exacerbated by inflationary pressures that affect our costs
of supply.
We continue to experience significant pricing pressure from our
largest OEM customers to maintain or even reduce the prices we charge them.
When we are unable to extract comparable concessions from our suppliers on
prices they charge us, our product sales margins erode. In addition,
competitors may reduce their average selling prices faster than we are able to
reduce costs, which can also accelerate the rate of decline of our selling
prices.
In addition to margin compression from customers in general, we
are encountering increased pricing from our Chinese suppliers who are reacting
to inflationary increases in materials and labor costs incurred by them. In
addition, prices that our Chinese vendors charge to us may reflect appreciation
of the Chinese currency against the U.S. dollar, which can be passed through to
us in the form of higher U.S. dollar prices. This in turn will tend to reduce
gross profit if we are unable to raise our prices. Any decrease in demand for
our products, coupled with pressure from the market and our customers to
decrease our prices, would materially adversely affect our business, financial
condition, and results of operations.
Increasingly, our customers are requesting that we enter into
supply agreements with them that have restrictive terms and conditions. These
agreements typically include provisions that increase our financial exposure,
which could result in significant costs to us.
Increasingly, our customers are requesting that we enter into
supply agreements with them. Recently, we entered into supply agreements with three
customers. These agreements do not include minimum volume commitments, but do
include provisions that generally serve to increase our exposure for product
liability and limited sales returns, which could result in higher costs to us
as a result of such claims. In addition, these agreements typically contain
provisions that seek to limit our operational and pricing flexibility and
extend payment terms, which could materially adversely affect our cash flow,
business, financial condition, and results of operations.
We depend on a single exclusive buying agent who, in turn, depends
on a limited number of key suppliers.
Our Chairman, Chief Executive Officer and largest shareholder is a
principal of Forward China, which is our exclusive sourcing agent and is
located in the Asia Pacific region (“APAC”). We have entered into a Buying Agency
and Supply Agreement with Forward China whereby Forward China acts as the
Company’s exclusive agent to arrange for sourcing, manufacturing and exporting
the Company’s products. Forward China has relied on a limited number of
suppliers to supply the component parts and pieces necessary for the production
of our carry and protective solutions products. As a result, our ability to
effectively push back against rising material costs may diminish. In addition,
any inability to obtain supplies from a single or limited number of suppliers
may result in difficulty obtaining the supplies necessary for our business and
may restrict our ability to produce our carry and protective solutions
products. Where practical, we intend to establish alternative sources to mitigate
the risk that the failure of any single supplier will adversely affect our
business. Nevertheless, a prolonged inability to obtain certain components or
the failure of one of our suppliers could impair our ability to ship products
and generate revenues, which could adversely affect our operating results and
damage our customer relationships.
In addition, we depend significantly on Forward China as our
exclusive buying agent for substantially all of our component parts in APAC. As
a result, we have limited visibility as to our supplier base, making it
difficult to forecast future events and to plan our operations. In addition, if
Forward China fails to satisfactorily perform its obligations, including
payment obligations, to our suppliers
or its duties to
us as our exclusive buying agent as a result of financial or other difficulties
or for any other reason, or if our relationship with Forward China were to
suffer, we could suffer irreparable harm resulting in substantial harm to our business.
Our business has benefited from OEMs deciding to outsource their
carry and protective solutions assembly needs to us. If OEMs choose to provide
these services in-house or select other providers, our business could suffer.
Our future revenue growth partially depends on new outsourcing
opportunities from OEMs. Current and prospective customers continuously
evaluate our performance against other providers. They also evaluate the
potential benefits of manufacturing their products themselves. To the extent that
outsourcing opportunities are not available either due to OEM decisions to
produce these products themselves or to use other providers, our financial
results and future growth could be materially adversely affected.
If we are unable to provide our customers with high-quality
products, and responsive service, or if we are unable to deliver our products
to our customers in a timely manner, our business, financial condition, and
results of operations may be materially adversely affected.
In order to maintain our existing customer base and obtain
business from new OEM customers, we must demonstrate our ability to produce our
products at the level of quality, responsiveness of service, timeliness of
delivery, and cost that our customers require. If our products are of
substandard quality, if they are not delivered on time, if we are not
responsive to our customers’ demands, or if we cannot meet our customers’
requirements, our reputation as a reliable supplier of our products would
likely be damaged. If we are unable to meet anticipated product and service
standards, we may be unable to obtain new contracts or keep our existing
customers, and this would have a material adverse effect on our business,
financial condition, and results of operations.
If we fail to maintain an effective system of internal control
over financial reporting, we may not be able to accurately report our financial
results. As a result, current and potential stockholders could lose confidence
in our financial reporting, which could harm our business and the trading price
of our stock.
Effective internal control over financial reporting is necessary
for us to provide reliable financial reports. If we cannot maintain effective
controls and reliable financial reports, our business and operating results
could be harmed. We continue to work on improvements to our internal controls
over financial reporting. Any failure to implement and maintain internal
controls over our financial reporting or difficulties encountered in the
implementation of improvements in our controls, could cause us to fail to meet
our reporting obligations. Any failure to improve our internal controls over
financial reporting or to address identified weaknesses in the future, if they
were to occur, could also cause investors to lose confidence in our reported
financial information, which could have a negative impact on the trading price
of our stock.
If we are unable to manage our growth effectively, our business,
financial condition, and results of operations could be materially adversely
affected.
We may experience growth in the scope and complexity of our
operations. This growth may strain our managerial, financial, manufacturing,
and other resources. In order to manage our growth, we may be required to
continue to implement additional operating and financial controls and hire and
train additional personnel. There can be no assurance that we will be able to
do so in the future, and failure to do so could jeopardize our expansion plans
and seriously harm our operations.
Our results of operations are subject to the risks of fluctuations
in the values of foreign currencies relative to the U.S. Dollar.
Our results of operations are expressed in U.S. dollars. When the
U.S. dollar appreciates or depreciates in value against a currency in which all
or a significant portion of revenues or other accounts receivable are
denominated, such as the Euro, our results of operations can be adversely
affected or benefited, respectively. The degree of impact is proportional to the
amount of foreign currency expense or revenue, as the case may be, and the
fluctuations in exchange rates over the period in which the effect is measured
on our financial statements. In addition, such currency fluctuations may affect
the comparability of our results of operations between financial periods.
Future revenues are difficult to predict and are likely to show
significant variability as a consequence of customer concentration.
Because our revenues are highly
concentrated in a few large customers, and because the volumes of these
customers’ order flows to us can fluctuate markedly in a short period of time,
our quarterly revenues, and consequently our results of operations, may be
highly variable and subject to significant changes over a relatively short
period of time. Our largest OEM customers may keep consumer products with which
our carry solutions are packaged “in-box” in active promotion for many months,
or for a very short period of time, depending on various factors, including
sales trends for the product, product development cycles, new product
introductions, and our customers' competitors' product offerings. As demand for
the consumer product relating to the in-box program matures and decreases, we
may be forced to accept significant price and/or volume reductions in customer
orders for our carry solutions, which will adversely affect revenue. These
factors tend to lead to a high degree of variability in our quarterly revenue
levels. Significant, rapid shifts in our operating results may occur if and
when one or more of these customers increase or decrease the size(s) of, or
eliminate, their orders from us by amounts that are material to our business.
Our gross margins, and therefore our profitability, vary
considerably by customer and by product, and if the contribution margin from
one or more OEM customers or products changes materially, relative to total
revenues, our gross profit percentage may fluctuate.
Our gross profit margins on the products we sell can vary widely
depending on the product type, customer and order size. Because of the broad
variability in price ranges and product types, we anticipate that gross
margins, and accordingly their impact on operating income or loss, may
fluctuate depending on the relative contribution margin from each customer or
product.
Product manufacture is often outsourced by our OEM customers to
contract manufacturing firms in China and in these instances it is the contract
manufacturer to which we must look for payment.
Contract manufacturing firms are performing manufacturing,
assembly, and product packaging functions, including the bundling of our
product accessories with the OEM customer's product. As a consequence of this
business practice, we often sell our carry solution products directly to the
contract manufacturing firm. This is particularly significant in the case of
diabetic product sales to certain customers. In these cases, we invoice the
contract manufacturing firm and not the OEM customer. Therefore, it is the
contract manufacturing firm to which we must look for payment in such instances
and not our OEM customer. This may alter the credit profile of our customer
base and may involve significant purchase order volumes. In some, but not all
cases, the manufacturing firm is itself a large, multinational entity with
significant financial resources.
Our dependence on foreign manufacturers creates quality control
and other risks to our business. From time to time we may experience certain
quality control, on-time delivery, cost, or other issues that may jeopardize
customer relationships.
Our reliance on foreign suppliers, manufacturers and other
contractors involves significant risks, including risk of product quality
issues and reduced control over quality assurance, manufacturing yields and
costs, pricing, timely delivery schedules, the potential lack of adequate
manufacturing capacity and availability of product, the lack of capital and
potential misappropriation of our designs. In any such event, our reputation
and our business will be harmed.
Our shipments of products via container may become subject to
delays or cancellation due to work stoppages or slowdowns, piracy, damage to
port facilities caused by weather or terrorism, and congestion due to
inadequacy of port terminal equipment and other causes.
To the extent that there are disruptions or delays in loading
container cargo in ports of origin or off-loading cargo at ports of destination
as a result of labor disputes, work-rules related slowdowns, tariff or World
Trade Organization-related disputes, piracy, physical damage to port terminal
facilities or equipment caused by severe weather or terrorist incidents,
congestion in port terminal facilities, inadequate equipment to load, dock and
offload container vessels or energy-related tie-ups or otherwise, or for other
reasons, product shipments to our customers will be delayed. In any such case,
our customer may cancel or change the terms of its purchase order, resulting in
a cancellation or delay of payments to us. A closure or partial closure of port
facilities or other causes of delays in the loading, importation, offloading or
movement of our products to the shipping destination agreed with our customer
could result in increased expenses, as we try to avoid such delays, delayed
shipments or cancelled orders, or all of the above. Depending on the severity
of such consequences, this may have an adverse effect on our business.
The OEM carrying solutions business is highly competitive and does
not pose significant barriers to entry.
There are
many competitors in the sale of carry solutions products to OEMs, and
competition is intense. Since little or no significant proprietary technology
is involved in the design, production or distribution of the types of products
we sell, others may enter the business with relative ease and compete against
us. Such competition may result in the diminution of our market share or the
loss of one or more major OEM customers, thereby adversely affecting our net
sales, results of operations, and financial condition. Many of our competitors
are larger, better capitalized and more diversified than we are and may be
better able to withstand a downturn in the general economy or in the product
areas in which we specialize. These competitors may also have less sales
concentration than we do and be better able to withstand the loss of a key
customer or diminution in its orders.
Our business could suffer if the services of key sales personnel
we rely on were lost to us.
We are highly dependent on the
efforts and services of certain key sales representatives who have account
responsibility for, and have longstanding relationships with one or more of our
largest customers. Our business could be materially and adversely affected if
we lost the services of any such individual. If we lost the services of a key
sales representative, we might experience a material reduction in orders from
his customers, resulting in a loss of revenues, which would materially and
adversely affect our results of operations and financial condition.
We maintain cash balances in our bank accounts that exceed the
FDIC insurance limits.
We maintain our cash assets at
commercial banks in the U.S. in amounts in excess of the Federal Deposit
Insurance Corporation insurance limit of $250,000 and in Europe in amounts that
may exceed any applicable deposit insurance limits. In the event of a failure
at a commercial bank where we maintain our deposits, or uninsured losses on
money market or other cash equivalents in which we maintain cash balances, we
may incur a loss to the extent such loss exceeds the insurance limits, which
could have a material adverse effect upon our financial conditions and our
results of operations.
Our Chairman and Chief Executive Officer is a significant
shareholder, which makes it possible for him to have significant influence over
the outcome of all matters submitted to our shareholders for approval and which
influence may be alleged to conflict with our interests and the interests of
our other shareholders.
Terence Wise, our Chairman and Chief
Executive Officer, is a significant shareholder who beneficially owns
approximately 18% of the outstanding shares of our common stock as of September
15, 2016. Mr. Wise has substantial influence over the outcome of all matters
submitted to our shareholders for approval, including the election of our
directors and other corporate actions. This influence may be alleged to
conflict with our interests and the interests of our other shareholders. In
2014, Mr. Wise successfully launched a proxy contest to elect a different slate
of directors than what our Company proposed to shareholders. In addition, such
influence by Mr. Wise could have the effect of discouraging potential business
partners or create actual or perceived governance instabilities that could
adversely affect the price of our common stock.
THE COMPANY
Forward Industries, Inc.
is a designer and distributor of specialty and promotional products. The
Company designs, markets, and distributes carry and protective solutions,
primarily for hand held electronic devices. The Company’s principal customer
market is original equipment manufacturers, or “OEMs” (or the contract
manufacturing firms of these OEM customers), that either package their products
as accessories “in box” together with their branded product offerings, or sell
them through their retail distribution channels. The Company does not
manufacture any of its OEM products and sources substantially all of its OEM
products from independent suppliers in China.
Our principal executive offices are located at 477 S. Rosemary Ave.,
Suite 219, West Palm Beach, Florida 33401. Our telephone number is (561)
456-0030.
USE OF PROCEEDS
The shares of Common Stock offered hereby
are being registered for the account of the selling stockholders identified in
this Reoffer Prospectus. See “Selling Stockholders.” All net
proceeds from the sale of the Common Stock will go to the stockholders who
offer and sell their shares. We will not receive any part of the proceeds
from such sales of Common Stock. We will, however, receive the exercise
price of the options at the time of their exercise. Such proceeds will be
contributed to working capital and will be used for general corporate purposes.
SELLING STOCKHOLDERS
This Reoffer Prospectus relates to the
reoffer and resale of shares issued or that may be issued to the selling stockholders
under our 2011 Plan and 2007 Plan.
The names of such individuals who may be selling stockholders
from time to time are listed below, along with the number of shares of Common
Stock currently owned by them and the number of shares offered for sale. The
address of each individual is in care of Forward Industries, Inc.
477 S. Rosemary Ave., Suite 219, West Palm Beach,
Florida 33401.
The following table shows, as of September
15, 2016:
|
•
|
the name of each selling
stockholder;
|
|
•
|
how many shares the selling
stockholder beneficially owns;
|
|
•
|
how many shares the selling
stockholder can resell under this prospectus; and
|
|
•
|
assuming a selling
stockholder sells all shares listed next to his or her name, how many shares
the selling stockholder will beneficially own after completion of the
offering.
|
We may amend or supplement this prospectus
form time to time in the future to update or change this list of selling
stockholders and shares that may be resold.
Name
|
Number of shares of
Common Stock
Beneficially Owned (1)
|
Number of
Shares to be Offered
for Resale (1)
|
Number of
shares of
Common Stock
Owned After
Completion of
the Offering
|
Percentage
of Class
to be
Owned After
Completion of
the Offering
|
Howard
Morgan (2)
|
95,000
|
95,000
|
0
|
0%
|
Terence
Wise (3)
|
1,608,541
|
60,000
|
1,548,541
|
17.7%
|
N.
Scott Fine (4)
|
70,000
|
70,000
|
0
|
0%
|
Sharon
Hrynkow (5)
|
54,317
|
54,317
|
0
|
0%
|
Michael
Matte (6)
|
65,000
|
65,000
|
0
|
0%
|
Sangita
Shah (7)
|
70,000
|
70,000
|
0
|
0%
|
|
|
|
|
|
____________
|
|
(1)
|
Beneficial Ownership.
Applicable percentages are
based on
8,782,496
shares outstanding as of the record
date, adjusted as required by rules of the SEC. Beneficial ownership is
determined under the rules of the SEC and generally includes voting or
investment power with respect to securities. Shares of common stock
underlying options and warrants and convertible notes currently exercisable
or convertible, or exercisable or convertible within 60 days are deemed
outstanding for computing the percentage of the person holding such
securities but are not deemed outstanding for computing the percentage of any
other person. Unless otherwise indicated in the footnotes to this table,
Forward believes that each of the shareholders named in the table has sole
voting and investment power with respect to the shares of common stock
indicated as beneficially owned by them. The table includes only vested
options, or options that have or will vest and become exercisable within 60
days.
|
(2)
|
Morgan
.
Mr. Morgan is a director. Represents 10,000 stock options and 85,000 shares
of common stock.
|
(3)
|
Wise
. Mr.
Wise is a director and executive officer. Represents 10,000 stock options
and 50,000 shares of common stock.
|
(4)
|
Fine
.
Mr. Fine is a director. Represents shares of common stock.
|
(5)
|
Hrynkow
.
Ms. Hrynkow is a director. Represents shares of common stock.
|
(6)
|
Matte
.
Mr. Matte is an executive officer. Represents 15,000 stock options and 50,000 shares
of common stock.
|
(7)
|
Shah
.
Ms. Shah is a director. Represents shares of common stock.
|
PLAN OF DISTRIBUTION
This offering is self-underwritten;
neither we nor the selling stockholders have employed an underwriter for the
sale of Common Stock by the selling stockholders. We will bear all
expenses in connection with the preparation of this Reoffer Prospectus.
The selling stockholders will bear all expenses associated with the sale of the
Common Stock.
The selling stockholders may offer their
shares of Common Stock directly or through pledgees, donees, transferees or
other successors in interest in one or more of the following transactions:
·
On any stock exchange on which the
shares of Common Stock may be listed at the time of sale
·
In negotiated transactions
·
In the over-the-counter market
·
In a combination of any of the
above transactions
The selling stockholders may offer their
shares of Common Stock at any of the following prices:
·
Fixed prices which may be changed
·
Market prices prevailing at the
time of sale
·
Prices related to such prevailing
market prices
·
At negotiated prices
The selling stockholders may effect such
transactions by selling shares to or through broker-dealers, and all such
broker-dealers may receive compensation in the form of discounts, concessions,
or commissions from the selling stockholders and/or the purchasers of shares of
Common Stock for whom such broker-dealers may act as agents or to whom they
sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
Any broker-dealer acquiring Common Stock
from the selling stockholders may sell the shares either directly, in its
normal market-making activities, through or to other brokers on a principal or
agency basis or to its customers. Any such sales may be at prices then
prevailing on the Nasdaq or at prices related to such prevailing market prices
or at negotiated prices to its customers or a combination of such
methods. The selling stockholders and any broker-dealers that act in
connection with the sale of the Common Stock hereunder might be deemed to be
“underwriters” within the meaning of Section 2(11) of the Securities Act; any
commissions received by them and any profit on the resale of shares as
principal might be deemed to be underwriting discounts and commissions under
the Securities Act. Any such commissions, as well as other expenses
incurred by the selling stockholders and applicable transfer taxes, are payable
by the selling stockholders.
The selling stockholders reserve the right
to accept, and together with any agent of the selling stockholder, to reject in
whole or in part any proposed purchase of the shares of Common Stock. The
selling stockholders will pay any sales commissions or other seller’s
compensation applicable to such transactions.
We have not registered or qualified offers
and sales of shares of the Common Stock under the laws of any country, other
than the United States. To comply with certain states’ securities laws,
if applicable, the selling stockholders will offer and sell their shares
of Common Stock in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states
the selling stockholders may not offer or sell shares of Common Stock unless we
have registered or qualified such shares for sale in such states or we have
complied with an available exemption from registration or qualification.
The selling stockholders have represented
to us that any purchase or sale of shares of Common Stock by them will comply
with Regulation M promulgated under the Securities Exchange Act of 1934.
In general, Rule 102 under Regulation M prohibits any person connected with a
distribution of our Common Stock (a “Distribution”) from directly or indirectly
bidding for, or purchasing for any account in which he or she has a beneficial
interest, any of our Common Stock or any right to purchase our Common Stock,
for a period of one business day before and after completion of his or her participation
in the Distribution (we refer to that time period as the “Distribution Period”).
During the Distribution Period, Rule 104
under Regulation M prohibits the selling stockholders and any other persons
engaged in the Distribution from engaging in any stabilizing bid or purchasing
our Common Stock except for the purpose of preventing or retarding a decline in
the open market price of our Common Stock. No such person may effect any
stabilizing transaction to facilitate any offering at the market. Inasmuch
as the selling stockholders will be reoffering and reselling our Common Stock
at the market, Rule 104 prohibits them from effecting any stabilizing
transaction in contravention of Rule 104 with respect to our Common Stock.
There can be no assurance that the selling
stockholders will sell any or all of the shares offered by them hereunder or
otherwise.
LEGAL MATTERS
Certain legal matters in connection with
the issuance of the shares of Common Stock offered hereby have been passed upon
for the Company by Nason Yeager Gerson White & Lioce, P.A., 3001 PGA
Boulevard, Suite 305, Palm Beach Gardens, Florida 33410.
EXPERTS
The consolidated financial statements of Forward Industries, Inc.
appearing in Forward Industries, Inc.s Annual Report on Form 10-K for the year
ended September 30, 2015 have been audited by CohnReznick LLP, independent
registered public accounting firm, as set forth in their report thereon,
included therein, and incorporated by reference herein. Such consolidated
financial statements are incorporated by reference herein in reliance upon such
report given on the authority of such firm as experts in accounting and
auditing.
ADDITIONAL INFORMATION
We have filed with the SEC four
Registration Statements on Form S-8 under the Securities Act (including this
one) with respect to the shares of Common Stock offered hereby. For
further information with respect to the Company and the securities offered
hereby, reference is made to the Registration Statements. Statements
contained in this Reoffer Prospectus as to the contents of any contract or
other document are not necessarily complete, and in each instance, reference is
made to the copy of such contract or document filed as an exhibit to the
Registration Statements, each such statement being qualified in all respects by
such reference.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or
persons controlling the Company, the Company has been advised that it is the
SEC’s opinion that such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Certain Documents by Reference
The SEC allows us to incorporate by
reference the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information we incorporate by reference is considered to be part of this
Reoffer Prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings made by us with the
SEC under Sections 13(a), 13(c), 14 or 15(d) (except with respect to
information furnished but not filed with the SEC pursuant to Item 2.02 or 7.01
of Form 8-K, only those reports that so indicate on the cover page thereof) of
the Exchange Act, until the sale of all the shares of Common Stock that are
part of this offering. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Reoffer Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Reoffer Prospectus. The documents we are incorporating by reference are as
follows:
(1)
|
Our
Annual Report on Form 10-K filed with the SEC on December 16, 2015 for the
fiscal year ended September 30, 2015;
|
|
|
(2)
|
Our
Quarterly Report on Form 10-Q filed with the SEC on August 12, 2016 for the
quarter ended June 30, 2016, our Quarterly Report on Form 10-Q filed with the
SEC on May 16, 2016 for the quarter ended March 31, 2016, and our Quarterly
Report on Form 10-Q filed with the SEC on February 9, 2016 for the quarter
ended December 31, 2015;
|
|
|
(3)
|
Our
Current Reports on Form 8-K filed with the SEC on August 12, 2016, May 16,
2016, February 9, 2016, January 22, 2016 and December 9, 2015 (other than
portions of those documents designated as “furnished”); and
|
|
|
(4)
|
The
description of our Common Stock contained in our registration statement on
Form S-1, filed pursuant to Section 12 of the Exchange Act on March 26, 2014.
|
Item 4. Description of
Securities
Not applicable.
Item 5. Interest of
Named Experts and Counsel
None.
Item
6. Indemnification of Officers and Directors
Under the New York Business Corporation
Law (“BCL”), a corporation may indemnify its directors and officers made, or
threatened to be made, a party to any action or proceeding, except for
stockholder derivative suits, if such director of officer acted in good faith,
for a purpose which he or she reasonably believed to be in or, in the case of
service to another corporation or enterprise, not opposed to, the best
interests of the corporation, and, in criminal proceedings, had no reasonable
cause to believe his or her conduct was unlawful. In the case of stockholder derivative
suits, the corporation may indemnify a director or officer if he or she acted
in good faith for a purpose which he or she reasonable believed to be in or, in
the case of service to another corporation or enterprise, not opposed to the
best interest of the corporation, except that no indemnification may be made in
respect of (i) a threatened action, or a pending action which is settled or
otherwise disposed of, or (ii) any claim, issue or matter as to which such
person has been adjudged to be liable to the corporation, unless and only to
the extent that the court in which action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
Any person who has been successful on
the merits or otherwise in the defense of a civil or criminal action or
proceeding will be entitled to indemnification. Except as provided in the
preceding sentence, unless ordered by a court pursuant to the BCL, any
indemnification under the BCL pursuant to the above
paragraph may be made only if authorized in the specific case and after a finding
that the director or officer met the requisite standard of conduct by (i) the
disinterested directors if a quorum is available, (ii) the board upon the
written opinion of independent legal counsel or (iii) the shareholders.
The indemnification described above
under the BCL is not exclusive of other indemnification rights to which a
director or officer may be entitled, whether contained in the certificate of
incorporation or by-laws or when authorized by (i) such certificate of
incorporation or by-laws, (ii) a resolution of shareholders, (iii) a resolution
of directors or (iv) an agreement providing for such indemnification, provided
that no indemnification may be made to or on behalf of any director or officer
if a judgment or other final adjudication adverse to the director or officer
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he or she personally gained in fact a financial profit or
other advantage to which he or she was not legally entitled.
The foregoing statement is qualified in
its entirety by reference to Sections 715, 717 and 721 through 725 of the BCL.
Article V of the Registrant’s Amended
and Restated Bylaws provides as follows:
“ARTICLE V. INDEMNIFICATION. Section 501. The
Corporation shall, to the fullest extent permitted by applicable law, indemnify
any person made or threatened to be made a party to any action or proceeding,
whether civil, criminal, administrative or investigative (and whether or not
(i) by or in the right of the Corporation to procure a judgment in its favor or
(ii) by or in the right of any Other Entity (as defined below) which such
person served in any capacity at the request of the Corporation, to procure a
judgment in its favor), by reason of the fact that such person, or his or her
testator or intestate, is or was a director or officer of the Corporation or
served such Other Entity in any capacity at the request of the Corporation, against
all judgments, fines, amounts paid in settlement and all expenses, including
attorneys’ and other experts’ fees, costs and disbursements, actually and
reasonably incurred by such person as a result of such action or proceeding, or
any appeal therein, or actually and reasonably incurred by such person (a) in
making an application for payment of such expenses before any court or other
governmental body, or (b) in otherwise seeking to enforce the provisions of
this Section 501, or (c) in securing or enforcing such person’s rights under
any policy of director or officer liability insurance provided by the
Corporation, if such person acted in good faith, for a purpose which he or she
reasonably believed to be in, or, in the case of services for any Other Entity,
not opposed to, the best interests of the Corporation and, in criminal actions
or proceedings, in addition, had no reasonable cause to believe that his or her
conduct was unlawful. The termination of any action or proceeding by judgment,
settlement, conviction or upon a plea of nolo contendere, or its equivalent,
shall not in itself create a presumption that such person did not act in good
faith, for a purpose which he or she reasonably believed to be in, or, in the
case of service for any Other Entity, not opposed to, the best interests of the
Corporation or that he or she had reasonable cause to believe that his or her
conduct was unlawful.
However, (i) no indemnification may be
made to or on behalf of any such person if a judgment or other final adjudication
adverse to such person establishes that his or her acts were committed in bad
faith or were the result of active and deliberate dishonesty and were material
to the cause of action so adjudicated, or that he or she personally gained in
fact a financial profit or other advantage to which he or she was not legally
entitled; (ii) no indemnification may be made if there has been a settlement
approved by the court and the indemnification would be inconsistent with any
condition with respect to indemnification expressly imposed by the court in
approving the settlement; and (iii) in the event of a proceeding by or in the
right of the Corporation to procure a judgment in its favor, no indemnification
may be made if it is settled or otherwise disposed of or such person shall have
been finally adjudged liable to the Corporation, unless (and only to the extent
that) the court in which the action was brought, or if no action was brought,
any court of competent jurisdiction, determines upon application that, in view
of all circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such portion of the settlement amount and expenses as the
court deems proper.
Any expense described in the first
paragraph of this Section 501 that is incurred by any person entitled to
indemnification under this Section 501 shall be paid or reimbursed to such
person by the Corporation in advance of the final disposition of any related
action or proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount to the Corporation to the extent, if any, that such
person (i) is ultimately found not to be entitled to indemnification or (ii)
receives reimbursement for such expenses under a policy of insurance paid for
by the Corporation. Such advances shall be paid by the Corporation to such
person within twenty days following delivery of a written request therefor by
such person to the Corporation. No payment made by the Corporation pursuant to
this paragraph shall be deemed or construed to relieve the issuer of any
insurance policy of any obligation or liability which, but for such payment,
such insurer would have to the Corporation or to any director or officer of the
Corporation or other individual to whom or on whose behalf such payment is made
by the Corporation.
The
indemnification and advancement of expenses provided by this Section 501: (i)
shall continue as to the person entitled to indemnification hereunder even
though he or she may have ceased to serve in the capacity that entitles him or
her to indemnification at the time of the action or proceeding and (ii) shall
inure to the benefit of the heirs, executors and administrators of such person.
A person who has been successful, on the
merits or otherwise, in the defense of a civil or criminal action or proceeding
of the character described in this Section 501 shall be entitled to (i.e., has
a legally binding right against the Corporation to) the indemnification
authorized by this Section 501. Except as provided in the immediately preceding
sentence, any indemnification provided for in this Section 501 (unless ordered
by a court under Section 724 of the Business Corporation Law), shall be made by
the Corporation only if authorized in the specific case:
(1) By the board of directors acting by a quorum
consisting of directors who are not parties to such action or proceeding for
which indemnification is sought, upon a finding that the person seeking
indemnification has met the standard of conduct set forth in the first two
paragraphs of this Section 501, or,
(2) If a quorum under the immediately preceding
subparagraph is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs:
(A) by the
board upon the opinion in writing of independent legal counsel that indemnification
is proper in the circumstances because the applicable standard of conduct set
forth in said first two paragraphs has been met by such person, or
(B) by the
shareholders upon a finding that the person has met the applicable standard of
conduct set forth in said first two paragraphs.
Notwithstanding
any other provision hereof, no amendment or repeal of this Section 501, or any
other corporate action or agreement which prohibits or otherwise limits the
right of any person to indemnification or advancement or reimbursement of
reasonable expenses hereunder, shall be effective as to any person until the
60th day following notice to such person of such action, and no such amendment
or repeal or other corporate action or agreement shall deprive any person of
any right hereunder arising out of any alleged or actual act or omission
occurring prior to such 60th day.
The Corporation is hereby authorized, but shall not be
required, to enter into agreements with any of its directors, officers or employees
providing for rights to indemnification and advancement and reimbursement of
reasonable expenses, including attorneys’ fees, to the extent permitted by law,
but the Corporation’s failure to do so shall not in any manner affect or limit
the rights provided for by this Section 501 or otherwise.
For purposes of this Section 501, the term “the
Corporation” shall include any legal successor to the Corporation, including
any corporation which acquires all or substantially all of the assets of the
Corporation in one or more transactions, and the term “Other Entity” shall mean
a corporation (other than the Corporation) of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise. For purposes of this Section 501, the Corporation shall be
deemed to have requested a person to serve an employee benefit plan where the
performance by such person of his or her duties to the Corporation or any
subsidiary thereof also imposes duties on, or otherwise involves services by,
such person to the plan or participants or beneficiaries of the plan; excise
taxes assessed on a person with respect to an employee benefit plan pursuant to
applicable law shall be considered fines; and action taken or omitted by a person
with respect to any employee benefit plan in the performance of such person’s
duties for a purpose reasonably believed by such person to be in the interest
of the participants and beneficiaries of the plan shall be deemed to be for a
purpose which is not opposed to the best interests of the Corporation.”
In addition the Registrant maintains Directors and
Officers Liability insurance.
We
have also entered into Indemnification Agreements with our directors and
officers which agreements are designed to indemnify them to the fullest extent
permissible by law.
Item 7. Exemption From
Registration Claimed
Not applicable.
Item
8. Exhibits
4.1
|
Forward Industries, Inc. 2011 Long Term Incentive
Plan (incorporated by reference to Exhibit A to the Company’s Proxy
Statement, Definitive 14A as filed with the SEC on January 26, 2011).
|
4.2
|
Forward Industries, Inc. 2007 Equity Incentive Plan,
as amended (incorporated by reference to Exhibit 4.1 to the Company’s Registration
Statement on Form S-8, as filed with the SEC on February 25, 2010).
|
*5.1
|
Opinion of Nason Yeager Gerson White & Lioce,
P.A. as to the legality of the stock covered by this registration statement.
|
*23.1
|
Consent of CohnReznick LLP, independent registered
public accounting firm.
|
23.2
|
Consent of Nason Yeager Gerson White & Lioce,
P.A. (included in exhibit 5.1).
|
24.1
|
Powers of Attorney, included on the signature page
to this Registration Statement.
|
____________
* Filed herewith.
Item 9. Undertakings.
|
A.
|
The
undersigned registrant hereby undertakes:
|
|
|
(1)
|
To file,
during any period in which offers or sales are being made, a post
‑
effective amendment to this
Registration Statement:
|
|
|
|
(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities Act;
|
|
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the Registration Statement (or the most recent post
‑
effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement;
|
|
|
|
(iii)
|
To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
|
|
|
|
provided,
however
,
that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post
‑
effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the SEC by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
|
|
|
(2)
|
That, for the
purposes of determining any liability under the Securities Act, each such post
‑
effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
|
|
|
(3)
|
To remove from
registration by means of a post
‑
effective amendment any of the
securities being registered that remain unsold at the termination of the
offering.
|
|
B.
|
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant’s annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona fide
offering thereof.
|
|
C.
|
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by a controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
|
SIGNATURES
In accordance with the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and authorizes this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of West Palm Beach, State of Florida, on the 16
th
day of September, 2016.
|
|
|
(Registrant)
|
|
|
|
|
|
By:
|
|
|
|
Terence Wise
Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each
person whose signature appears below constitutes and appoints each of Terence
Wise and Michael Matte his true and lawful attorneys-in-fact and agent, with
full power of substitution and resubstitution, for and in his or her name,
place and stead, in any and all capacities, to sign any or all amendments to
this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite necessary to
be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the
Securities Act, this Registration Statement has been signed by the following
persons in the capacities and on the date indicated.
September
16, 2016
|
/s/ Terence Wise
|
|
Terence Wise
|
|
Principal Executive Officer
and Director
|
|
|
September
16
, 2016
|
/s/ Michael Matte
|
|
Michael Matte
Principal Financial Officer
and Chief Accounting Officer
|
September
16
, 2016
|
/s/ N. Scott F
ine
N. Scott Fine
|
|
Director
|
|
|
September
16
, 2016
|
/s/ Sangita Shah
|
|
Sangita Shah
|
|
Director
|
|
|
September
16
, 2016
|
/s/ Sharon Hrynkow
|
|
Sharon Hrynkow
|
|
Director
|
|
|
September
16
, 2016
|
/s/ Howard Morgan
|
|
Howard Morgan
|
|
Director
|
EXHIBIT INDEX
4.1
|
Forward Industries, Inc. 2011 Long Term Incentive
Plan (incorporated by reference to Exhibit A to the Company’s Proxy
Statement, Definitive 14A as filed with the SEC on January 26, 2011).
|
4.2
|
Forward Industries, Inc. 2007 Equity Incentive Plan,
as amended (incorporated by reference to Exhibit 4.1 to the Company’s Registration
Statement on Form S-8, as filed with the SEC on February 25, 2010).
|
*5.1
|
Legal Opinion of Nason Yeager Gerson White &
Lioce, P.A.
|
*23.1
|
Consent of CohnReznick LLP, independent registered
public accounting firm.
|
23.2
|
Consent of Nason Yeager Gerson White & Lioce,
P.A. (included in exhibit 5.1).
|
24.1
|
Powers of Attorney, included on the signature page
to this Registration Statement.
|
____________
* Filed herewith.
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