Exhibit 10.9
AMENDMENT TO EMPLOYMENT
AGREEMENT
This AMENDMENT TO EMPLOYMENT AGREEMENT (this
“Amendment”) is made and entered into effective as of
December 30, 2008, by and between Forward Air Corporation, a
corporation organized under the laws of the State of Tennessee (the
“Company”), and Bruce A. Campbell (the
“Executive”).
WHEREAS, the Company and the Executive entered
into an Employment Agreement, effective as of October 30, 2007 (the
“Employment Agreement”);
WHEREAS, section 11(c) of the Employment
Agreement specifies that the Employment Agreement may be amended
only by an instrument in writing signed by the parties;
WHEREAS, the Company and the Executive find it
mutually desirable and in the best interests of the parties to
amend the Employment Agreement to the extent necessary to comply
with section 409A of the Internal Revenue Code and the Treasury
regulations promulgated under that section, which relate to
nonqualified deferred compensation.
For and in consideration of the mutual covenants
and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend the Employment
Agreement as follows:
1. Section
6(b) is hereby amended in its entirety to read as
follows:
(b)
BONUS . Executive shall be eligible for an annual
cash bonus to be paid to him in the form of a Year-End Bonus
(“Year-End Bonus”). Executive shall be
eligible to receive a Year-End Bonus equal to fifty percent (50%)
of his Base Salary upon the Company’s achievement of the
performance criteria set forth in a Business Plan established by
the Board of Directors for that year and upon such other criteria
that the Board of Directors may establish. Executive
shall be eligible to receive a Year-End Bonus equal to one hundred
percent (100%) of his Base Salary upon the Company’s
achievement of the “Stretch” performance criteria
established by the Board of Directors for that year and upon such
other criteria that the Board of Directors may establish. The Board
of Directors shall have the discretion to award a Year-End Bonus to
Executive upon such other terms as the Board of Directors may
establish which amount shall be consistent with the annual
incentives awarded to chief executive officers of companies within
a peer group chosen by the Compensation Committee. The
Year-End Bonus for each calendar year, if any, shall be paid to
Executive on or after January 1 st ,
but by no later than March 15 th ,
of the immediately succeeding year.
2. Section
8(c) is hereby amended in its entirety to read as
follows:
(c) “
MATERIAL CHANGE IN DUTIES ” shall be deemed to have
occurred when, without the Executive consent, the Executive is
assigned any duties inconsistent in any material respect with the
Executive’s position (including status, offices, titles, and
reporting requirements), authority, duties or responsibilities as
in effect on the Effective Date, or any other action by the Company
which results in a materially demonstrable diminution in such
position, authority, duties or responsibilities. No
Material Change in Duties shall be deemed to have
occurred unless (i) the Executive notifies the Company in writing
within 90 days after the assignment of materially inconsistent
duties, and the Company fails to cure this material inconsistency
within 30 days after receipt of the notice, and (ii) the
termination of employment occurs no later than one year after the
initial assignment of materially inconsistent duties.
3. Section
8(d) is hereby amended in its entirety to read as
follows:
(d) “
BY DEATH OR DISABILITY ” If
Executive’s employment is terminated due to Executive’s
death, the Executive’s surviving spouse, or if none, his
estate, shall receive the benefits payable under (i), (ii), (iii),
and (iv) of Paragraph 7(a) above; provided, however, any payments
due thereunder shall be made in a lump sum payment within 90 days
of the Executive’s death. In addition, if the
Executive’s dependents are eligible to and actually elect to
continue under COBRA any coverages provided under Paragraph
7(a)(iii), the Company shall pay the cost of such COBRA coverage
for the period remaining under Paragraph 7(a)(iii). If
Executive’s employment is terminated
