Exhibit 10.2 Consulting Agreement


    
      
         

        EXHIBIT 10.2

        
 

        CONSULTING
          AGREEMENT

         

        This
          Consulting Agreement (the “Agreement”) is made and entered into effective as of
          December 1, 2005 (the “Effective Date”) by and between Frozen Food Express
          Industries, Inc. (“FFE”) and F. Dixon McElwee, Jr. (“Consultant”). 

         

        RECITALS

         

        WHEREAS,
          Consultant’s employment with FFE terminated effective on or about November 29,
          2005;

         

        WHEREAS,
          Consultant, as the former Chief Financial Officer (“CFO”) of FFE, has
          specialized knowledge regarding FFE’s financial management and related matters;
          and

         

        WHEREAS,
          FFE desires that Consultant complete such tasks and projects as may reasonably
          be designated from time to time by FEE, and Consultant agrees to perform
          such
          consulting services as an independent contractor on the terms and subject
          to the
          conditions set forth in this Agreement;

         

        NOW,
          THEREFORE, in consideration of the foregoing and of the mutual covenants
          and
          agreements contained herein, as well as other good and valuable consideration,
          the receipt and sufficiency of which are hereby acknowledged, the parties
          hereto
          agree as follows:

         

        1.  Engagement.
          FFE
          hereby engages Consultant to render consulting services, as an independent
          contractor, to FFE upon the terms and conditions set forth in this Agreement.
          

         

        2.  Terms
          of Engagement.
          

         

        a. Nature
          of Services and Engagement.
          During
          the Consulting Term, as defined under Section 3 below, Consultant shall
          perform
          services to or for the benefit of FFE by completing such tasks and projects
          as
          may reasonably be designated from time to time by the Chairman, President
          and
          Chief Executive Officer and/or the Executive Vice President and Cheif Operating
          Officer of FFE. Consultant shall attend meetings and conferences as may
          be
          directed by FFE from time to time. Consultant shall endeavor to promote
          the
          interests of FFE and all services rendered by Consultant on behalf of FFE
          shall
          be performed to the best of his abilities and in furtherance of the welfare
          and
          objectives of FFE.

         

        b. Independence
          of Consultant.
          The
          parties agree that Consultant is an independent contractor. Nothing in
          this
          Agreement shall in any way be construed to constitute Consultant as an
          agent,
          employee, or representative of FFE. Consultant will work independently
          and
          exercise his own judgment, without official hours or a prescribed minimum
          number
          of hours worked per week. FFE shall not exercise control over the means
          or
          methods of Consultant’s work or his day-to-day activities, except that
          Consultant shall comply with all applicable local, state, and federal laws,
          rules, and regulations and complete all assigned projects in a thorough,
          professional, and timely manner.

         

        c. Authority
          to Enter Into Agreements.
          Consultant shall have no power or authority to act, bind, make commitments,
          or
          enter into contracts or agreements on behalf of FFE, and Consultant may
          not hold
          himself out as an employee, officer, director, or agent of FFE. 

         

        d. Equipment,
          Tools, Materials or Supplies.
          Consultant shall supply, at his sole expense, all equipment, tools, materials,
          and/or supplies necessary for the provision of services under this Agreement,
          except that FFE shall provide Consultant with access to its computer system
          as
          needed.

         

        3.  Consulting
          Term and Termination.
          

         

        a. Consulting
          Term.
          The
          Consulting Term shall be for three (3) years and begin on the Effective
          Date of
          this Agreement and continue through November 30, 2008.

         

        b. Termination.
          This
          Agreement may be terminated prior to the expiration of the Consulting Term
          by
          either party upon thirty (30) days’ prior written notice to the other party but
          only for a material breach of this Agreement. In addition, FFE may terminate
          this Agreement immediately and without prior written notice if Consultant
          refuses or is unable to perform the services to be performed hereunder,
          whether
          by reason of Consultant’s death or disability or otherwise. 

         

        4.  Compensation.
          As
          compensation for the services to be rendered by Consultant to FFE pursuant
          to
          this Agreement, Consultant shall be paid the compensation and other benefits
          described below:

         

        a. Consulting
          Fee.
          FFE
          shall pay to Consultant a one-time fee of $75,000.00 or the pro rata share
          of
          the bonus payment under the 2005 Executive Bonus And Restricted Stock Plan,
          whichever is greater, as described in the Severance Agreement between the
          parties, dated November 29, 2005, and incorporated herein by
          reference.

         

        b. Reimbursement
          of Expenses.
          FFE
          shall not be liable for any expense paid or incurred by Consultant other
          than
          those that are pre-approved in writing by FFE and have been documented
          and
          itemized by Consultant. 

         

        c. Benefits.
          Consultant shall
          not
          be entitled to, nor receive any company-sponsored benefits normally provided
          to
          FFE’s employees, including, but not limited to, training, retirement, vacation,
          holidays, leaves of absence, or sick pay. FFE will not provide health,
          life,
          dental, or disability insurance to Consultant, and will not make unemployment
          insurance or disability insurance contributions nor obtain workers’ compensation
          insurance on Consultant’s behalf. Consultant
          shall carry his own insurance and agrees to assume any risk incidental
          to his
          entry upon the premises of FFE and travel to and from the location at which
          services are to be performed.

         

        d. Taxes.
          FFE
          shall
          not be responsible for withholding federal, state, or local income taxes,
          or any
          other taxes or social security payments, from any sum paid to Consultant
          under
          this Agreement. Consultant shall be solely responsible for filing all returns
          and paying any income, social security, or other tax levied upon or determined
          with respect to the payments made to Consultant pursuant to this Agreement.
          Consultant
          agrees to indemnify FFE for all such tax liability, including interest
          and
          penalties, if any.

         

        5.  Confidential
          Information.
          

         

        a.  Promise
          to Provide Confidential Information.
          FFE
          promises that it will, immediately upon Consultant’s execution of this
          Agreement, provide Consultant with Confidential Information, as this term
          is
          defined in Section 5(b) below, including but not limited to the information
          attached hereto as Exhibit A. Consultant acknowledges that FFE has invested
          substantial time, money and effort in developing its Confidential Information,
          that this Confidential Information is a valuable, special and unique asset
          of
          FFE, that FFE would sustain great loss if such information were improperly
          used
          or disclosed, and that the protection and maintenance of FFE’s Confidential
          Information constitute legitimate interests to be protected by FEE by the
          covenants set forth in Section 6 below. 

         

        b.  Non-Disclosure.
          Consultant acknowledges that, by signing this Agreement, he acknowledges
          delivery and receipt of confidential information relating to the business,
          financial affairs, services, operations, and/or activities of FFE or its
          affiliates, including without limitation accounting information, financial
          information, financial analyses, budgets, and forecasts, marketing strategies,
          business development plans, research and development, methods of doing
          business,
          information about employees and employment practices, trade secrets, market
          reports, customer information (including but not limited to customer lists,
          customer research and investigations, customer sales, and customer financial
          information), vendor information (including without limitation vendor lists,
          vendor prices, services, and contracts), freight charges, routes, schedules,
          rates, tariffs, and prices charged to customers and other similar information
          that is proprietary information of FFE or its affiliates (collectively
          referred
          to as “Confidential Information”). Consultant will not for any reason divulge,
          use, furnish, disclose, or make accessible, for his own benefit or the
          benefit
          of any person or entity with which he may be associated, any Confidential
          Information to any person, firm, corporation, association, or other entity
          for
          any reason or purpose whatsoever without FFE’s prior written consent.
          Confidential Information does not include information which has become
          publicly
          known and made generally available through no wrongful act of Consultant
          or
          which has been rightfully received by Consultant from a third party authorized
          to make such disclosure.

         

        c.  Return
          of Confidential Information and Records. All
          records, files, materials, and Confidential Information obtained by Consultant
          are confidential and proprietary and shall remain the exclusive property
          of FFE
          or its affiliates, as the case may be. Upon the end of the Consulting Term,
          Consultant will not take with him, unless authorized in writing by FFE,
          data,
          formulations, compositions, reports, letters, memoranda, notes, magnetic
          or
          electronic media, or any writing or documents whatever, or copies thereof,
          which
          reflect or deal with Confidential Information, and Consultant will promptly
          deliver to FFE any of the foregoing which may be in his possession or control.
          

         

        d.  Remedies
          for Breach of Confidentiality Covenants.
          Consultant acknowledges and agrees that his breach of the confidentiality
          provisions of this Agreement could not be adequately compensated with monetary
          damages or other legal remedies and would irreparably injure FFE and,
          accordingly, that FFE shall be entitled to temporary and permanent injunctive
          relief without the necessity of independent proof by it as to the inadequacy
          of
          legal remedies or the nature or extent of the irreparable harm suffered
          by it,
          and that specific performance shall be an appropriate remedy. Consultant
          waives
          any claim or defense that there is an adequate remedy at law for such breach.
          Nothing in this Section 5(c) shall be construed to prevent FFE from pursuing
          any
          and all other legal or equitable remedies available to it for such breach
          or
          threatened breach, including without limitation the recovery of monetary
          damages.

         

        e.  Survivability.
          The
          provisions of this Section 5 will survive the termination of the Agreement
          and
          shall be binding upon Consultant’s successors and assigns.

         

        6.  Non-Competition
          and Non-Solicitation Agreement. 

         

        a.  Non-Competition.
          During
          the Consulting Term, Consultant shall not, directly or indirectly, engage
          or be
          engaged in any managerial or executive capacity in any refrigerated trucking
          business within the continental United States in which FFE provides refrigerated
          trucking services, either as an individual, or as an employee, associate,
          partner, member, stockholder, consultant, owner, manager, agent or otherwise
          or
          by means of any corporate or other device, either on his own behalf or
          on behalf
          of others. 

         

        b.  Non-Solicitation.
          During
          the Consulting Term, Consultant shall not (i) on
          his
          own behalf or on behalf of any other person or entity, solicit, divert
          or
          recruit any person who is, during such time frame, an employee of FFE to
          leave
          such employment or in any other manner attempt, directly or indirectly,
          to
          influence, induce, or encourage any employee of FFE to leave the employment
          of
          FFE;
          or
          (ii) cause or assist anyone to cause any of the customers of FFE with whom
          Consultant communicated, dealt with, or became acquainted prior to or during
          the
          Consulting Term to enter into contractual arrangements with himself or
          any other
          person, firm, partnership, corporation, or other company in any business
          or
          activity that is in competition with FFE.

         

        c.  Reasonableness
          of Restrictions.
          Consultant has carefully read and considered the provisions of this Section
          6
          and, having done so, agrees that the restrictions set forth herein, including,
          but not limited to, the time period of restriction, the geographic areas
          of
          restriction, and the scope of the restriction are fair and reasonable,
          are
          supported by sufficient and valid consideration, and these restrictions
          do not
          impose any greater restraint than is necessary to protect the Confidential
          Information, goodwill, and other legitimate business interests of FFE.
          Consultant acknowledges that these restrictions will not cause him undue
          hardship; that there are numerous other employment and business opportunities
          available to him that are not affected by these restrictions; and that
          Consultant’s ability to earn a livelihood without violating such restrictions is
          a material condition to this Agreement.

         

        d.  Violation
          of Restrictions.
          Consultant
          acknowledges that compliance with the non-competition and non-solicitation
          restrictive covenants contained in this Section 6 is necessary to protect
          the
          Confidential Information, business, and goodwill of FFE. Consultant also
          acknowledges that a breach of such covenants will result in irreparable
          and
          continuing damages to FFE, for which money damages may be an insufficient
          remedy
          to FFE. Further, Consultant acknowledges that the ascertainment of the
          full
          amount of damages in the event of Consultant’s breach of any provision of this
          Agreement would be difficult. Consequently, Consultant agrees that, in
          the event
          of a breach or threatened breach of any of the restrictive covenants contained
          in this agreement, that the parties, in addition to all other remedies
          they may
          have, shall be entitled to both (a) temporary, preliminary and/or permanent
          injunctive relief to restrain the breach of or otherwise to specifically
          enforce
          any of the covenants in order to prevent the continuation of such harm;
          and (b)
          money damages insofar as they can be determined. 

         

        7.  Breach
          of this Agreement.
          If,
          during the Consulting Term, Consultant violates any of the terms of this
          Agreement, Consultant will return to FFE the full amount of the Consulting
          Fee
          within ten (10) business days of written notification by FFE that Consultant
          has
          violated the terms of this Agreement. 

         

        8.  Indemnification.
          Consultant agrees to indemnify and hold harmless FFE, its officers, directors,
          and employees from and against all taxes, losses, damages, liabilities,
          costs,
          and expenses, including attorneys’ fees and costs of court, arising directly or
          indirectly from any negligent, reckless, or intentionally wrongful act
          of
          Consultant or Consultant’s assistants, employees, or agents; a determination by
          a court or agency that Consultant is not an independent contractor; and
          any
          breach by Consultant or his assistants, employees, or agents of any of
          the
          covenants contained in this Agreement.

         

        9.  Severability
          and Modification.
          It is
          the desire and intent of the parties that the provisions of this Agreement
          be
          enforced to the fullest extent permissible under the laws and public policies
          of
          the State of Texas. If any provision is adjudicated to be invalid or
          unenforceable, the invalid or unenforceable provision shall be deemed amended
          in
          such manner as to render it enforceable and to effectuate as nearly as
          possible
          the intentions and agreement of the parties. If any provision of this Agreement
          is held illegal, invalid, or unenforceable, in whole or in part, by a court
          of
          competent jurisdiction, then it is the intent of the parties hereto that
          the
          balance of this Agreement be enforced to the fullest extent permitted by
          applicable law and, in lieu of such illegal, invalid, or unenforceable
          provision, there shall be added automatically as part of this Agreement
          a
          provision as similar in its terms to such invalid provision as may be possible
          and be legal, valid, and enforceable.

         

        10.  Independent
          Consideration.
          The
          covenants contained herein each constitute a separate agreement independently
          supported by good and adequate consideration and each such agreement shall
          be
          severable from the other provisions of this Agreement and shall survive
          this
          Agreement. The existence of any claim or cause of action of Consultant
          against
          FFE, whether predicated on this Agreement or otherwise, shall not constitute
          a
          defense to the enforcement by FFE of the covenants and agreements of Consultant
          set forth herein. 

         

        11.  No
          Obligation to Use Services and Cap on Services.
          Notwithstanding any other provision of this Agreement, FFE shall have no
          obligation to actually utilize Consultant’s services. FFE’s obligations to
          Consultant under this Agreement shall be fully performed by the payment
          to
          Consultant of the Consulting Fee which FFE is obligated to pay Consultant
          following the execution of this Agreement, subject to all of FFE’s rights
          hereunder. Consultant shall have no obligation to render services beyond
          five
          (5) hours per month to FFE; if services are requested by FFE that would
          require
          additional time commitments, the parties shall endeavor to agree upon a
          reasonable compensation to Consultant for such additional working
          time.

         

        12.  Waiver
          and Breach.
          A
          party’s failure at any time to require performance by the other party of any
          provision hereof shall not affect the party’s right thereafter to enforce the
          same, nor shall the waiver by any party of any breach of any provision
          hereof be
          construed as a waiver of any succeeding breach of any provision or as a
          waiver
          of the provision itself.

         

        13.  Breach
          by FFE.
          No act
          or omission of FFE hereunder shall constitute a breach of this Agreement
          unless
          Consultant shall first notify FFE in writing setting forth in reasonable
          detail
          the alleged breach and FFE shall not cure the alleged breach within thirty
          (30)
          days after receipt of said notice. If FFE fails to cure a material breach
          of its
          obligations under this Agreement as herein provided, Consultant may terminate
          this Agreement by written notice to FFE delivered to FFE within five (5)
          business days after the expiration of the applicable cure period or any
          further
          cure period to which the parties may agree.

         

        14.  Attorneys’
          Fees.
          In the
          event of any suit or judicial proceeding between the parties hereto with
          respect
          to this Agreement, the prevailing party shall, in addition to such other
          relief
          as the court may award, be entitled to reasonable attorneys’ fees and
          costs.

         

        15.  Modification.
          No
          change or modification of this Agreement shall be valid or binding upon
          the
          parties hereto, nor shall any waiver of any term or condition in the future
          be
          so binding, unless such change or modification or waiver is in writing
          and
          signed by all of the parties hereto.

         

        16.  Notices.
          All
          notices hereunder shall be in writing and shall be delivered by hand or
          mailed
          within the continental United States by first class, registered, or certified
          mail, return receipt requested, postage and registry fees prepaid. Such
          notices
          shall be deemed to have been duly given upon receipt, if personally delivered,
          and, if mailed, upon three (3) days after the date of mailing (two days
          in the
          case of overnight mail), in each case addressed to the parties at the following
          addresses or at such other addresses as shall be specified in writing and
          in
          accordance with this Section:

         

        If
          to
          FFE:                                 Charles
          G. Robertson

        Executive
          Vice President and Chief Operating Officer

        Frozen
          Food Express Industries, Inc.

        1145
          Empire Central Place

        Dallas,
          Texas 75247-4309

         

        If
          to
          Consultant:                       
F.
          Dixon
          McElwee, Jr.

        7354
          Lane
          Park Drive

        Dallas,
          Texas 75225

        


        17.  Entire
          Agreement:
          The
          matters set forth in this Agreement, along with the Severance Agreement
          between
          the parties, dated November 29, 2005, constitute the entire agreement between
          Consultant and the Company and supersede all prior agreements, negotiations,
          and
          discussions between the parties hereto and/or their respective counsel
          with
          respect to the subject matter hereof. No other representations, covenants,
          undertakings, or other prior or contemporaneous agreements, oral or written,
          regarding the matters set forth in this Agreement shall be deemed to exist
          or
          bind any of the parties hereto. Each party understands and agrees that
          it has
          not relied on any statement or representation by the other party or any
          of its
          representatives in entering into this Agreement.

         

        18.  Assignment.
          FFE
          shall have the right to assign this Agreement and its obligations hereunder
          to
          any successor in interest. The rights, duties, and benefits to Consultant
          hereunder are personal to Consultant and no such right or benefit may be
          assigned by Consultant.

         

        19.  Governing
          Law.
          This
          Agreement shall be governed by, and construed in accordance with, the laws
          of
          the State of Texas.

         

        20.  Counterparts.
          This
          Agreement may be executed in counterparts, each of which will constitute
          one
          document.

         

        21.  Headings.
          The
          captions, headings, and arrangements used in this Agreement are for convenience
          only and do not in any way affect, limit, amplify, or modify the terms
          and
          provisions hereof.

         

        IN
          WITNESS WHEREOF, the parties hereto have executed this Agreement effective
          as of
          the date written above.

        


        CONSULTANT:

        


        


        
          	 /s/ F.
                  Dixon McElwee, Jr.
	 F. Dixon McElwee, Jr.


        

         

        Date


         

        FROZEN
          FOOD EXPRESS INDUSTRIES, INC.:

         

        


        
          	 By:  	 /s/ Stoney
                  M. Stubbs, Jr.
	 Its:  	 President, Chairman and Chief Executive
                  Officer


        

        
           

        

        Date