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These excerpts taken from the FWRD 10-K filed Feb 26, 2009. 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) “ 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) “ 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) “ This excerpt taken from the FWRD 8-K filed Oct 31, 2007. MATERIAL
CHANGE IN DUTIES” shall be deemed to have occurred when the
Executive is assigned any duties inconsistent in any material respect with
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.
(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 60 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 due to Executive's disability (as defined in the Company's long-term
disability plan or insurance policy, or if no such plan or policy exists, as
determined in good faith by the Board of Directors of the
Company). Executive shall be entitled to the benefits payable or to
be provided under (i), (ii), (iii), and (iv) of Paragraph
7(a). Executive or his estate, as the case may be, shall not by
operation of this paragraph forfeit any rights in which he is vested at the
time
of his death or disability.
9. NON-COMPETITION,
NON-DISCLOSURE, AND NON-SOLICITATION. Executive agrees to
execute and be bound by the terms and conditions of the Restrictive Covenants
Agreement attached hereto as Exhibit B, which is hereby made a part of this
Agreement. Upon termination of this Agreement, for whatever reason,
Executive remains bound to the Non-Competition, Non-Disclosure and
Non-Solicitation obligations set forth in Attachment B hereto.
10. INJUNCTIVE
RELIEF. The Executive acknowledges that his services to be rendered to
the Company are of a special and unusual character which have a unique value
to
the Company, the loss of which cannot adequately be compensated by damages
in an
action at law. Executive further acknowledges that any breach of the terms
of
Paragraph 9, including Exhibit B, would result in material damage to the
Company, although it might be difficult to establish the monetary value of
the
damage. Executive therefore agrees that the Company, in addition to any other
rights and remedies available to it, shall be entitled to obtain an immediate
injunction (whether temporary or permanent) from any court of appropriate
jurisdiction in the event of any such breach thereof by Executive, or threatened
breach which the Company in good faith believes will or is likely to result
in
irreparable harm to the Company. The existence of any claim or cause of action
by Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company
of
Executive's agreement under this Paragraph and Paragraph 9 above. In
the event that Company institutes suit against Executive to enforce its rights
hereunder and is not successful on the merits, then Company shall indemnify
Executive from and against any and all costs (including attorneys fees and
legal
expenses) and other expenses which Executive expended in defending said
action.
11. MISCELLANEOUS.
(a) NOTICE.
Any notice or other communication required or permitted under this Agreement
shall be effective only if it is in writing and shall be deemed to have been
duly given when delivered personally or seven days after mailing if mailed
first
class by registered or certified mail, postage prepaid, addressed as
follows:
If
to the
Company: Forward Air
Corporation
430
Airport Road
Greeneville,
TN 37745
Attention: Legal
Department
If
to the
Executive: Bruce A.
Campbell
260
Regency Place
Greeneville,
TN 37745
or
to such other address as either party may designate by notice to the
other.
(b) ENTIRE
AGREEMENT. This Agreement constitutes the entire agreement between the
parties hereto with respect to the Executive's employment by the Company and
supersedes and is in full substitution for the Employment Agreement including
Exhibit A thereto, dated January 24, 2006, between the Company and Executive
and
any and all other prior understandings or agreements with respect to the
Executive's employment.
(c) AMENDMENT.
This Agreement may be amended only by an instrument in writing signed by the
parties hereto, and any provision hereof may be waived only by an instrument
in
writing signed by the party or parties against whom or which enforcement of
such
waiver is sought. The failure of either party hereto to comply with any
provision hereof shall in no way affect the full right to require such
performance at any time thereafter, nor shall the waiver by either party hereto
of a breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision, or a waiver of the provision itself, or
a
waiver of any other provision of this Agreement.
(d) BINDING
EFFECT. This Agreement is binding on and is for the benefit of the
parties hereto and their respective successors, heirs, executors, administrators
and other legal representatives provided, however, that in the event of
Executive’s death, the provisions of Paragraph 9 or Exhibit B shall not be
binding upon Executive’s heirs or executors. Although the
non-competition, non-disclosure and non-solicitation obligations of Executive
set forth in Paragraph 9 and Attachment B hereto may extend to the Company’s
successors and assigns, the remaining rights and obligations of this Agreement
shall not be assigned by the Executive or the Company, except for assignment
by
the Company to any wholly owned subsidiary.
(e) SEVERABILITY
AND MODIFICATION. If any provision of this Agreement or portion thereof
is so broad, in scope or duration, so as to be unenforceable, such provision
or
portion thereof shall be interpreted to be only so broad as is enforceable.
In
addition, to the extent that any provision of this Agreement as applied to
either party or to any circumstances shall be adjudged by a court of competent
jurisdiction to be void or unenforceable, the same shall in no way affect any
other provision of this Agreement or the validity or enforceability of this
Agreement.
(f) | EXCERPTS ON THIS PAGE:
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