exh10_2.htm


    EXHIBIT
10.2

    THIRD
AMENDMENT TO THE

     

    FROZEN
FOOD EXPRESS INDUSTRIES, INC. 401(K) SAVINGS PLAN

     

    This
Amendment is adopted by FROZEN
FOOD EXPRESS INDUSTRIES, INC. (the “Company”), a Texas Corporation,
having its principal office in Dallas, Texas.

    R
e c i t a l s:

     

    WHEREAS, the Company has
previously established the Frozen Food Express Industries, Inc. 401(k) Savings
Plan, as amended and restated, effective January 1, 2007 (the “Plan”), for the
benefit of those employees who qualify thereunder and for their beneficiaries;
and

     

    WHEREAS, the Company desires
to amend the Plan to (i) provide for discretionary matching contributions and
(ii) reflect provisions of Treasury Regulations under Section 415 of the
Internal Revenue Code, as amended (the “Code”) that are effective for Plan Years
beginning on and after January 1, 2008.

     

    NOW, THEREFORE, pursuant to
Section 15.1 of the Plan, the Plan is hereby amended as follows, effective on
the dates set forth below:

     

    1.           Section
4.3(a) of the Plan is hereby amended to be and read as follows, effective
January 1, 2009:

     

    Section
4.3           Employer
Contributions.

     

    
      	
               
      

            	
              (a)

            	
              Matching Employer
      Contributions.  In addition to the total amount of
      Savings Contributions elected for each month pursuant to Section 4.1, but
      subject to the limits of Section 4.3(c), each Employer may make a Matching
      Employer Contribution to the Plan in such amount as the Employer shall
      from time to time authorize. If a Matching Employer Contribution is made
      to the Plan, the Employer shall pay to the Trustee for each calendar
      quarter an amount equal to a percentage of each Participant’s Savings
      Contributions and Roth Savings Contributions for each payroll period
      pursuant to Section 4.1 hereof which does not exceed four percent (4%) of
      his Compensation for such payroll period.  Matching Employer
      Contributions may be made in either Company Stock in accordance with the
      closing market price on the business day immediately preceding the day
      such Contributions are made or in cash.  In accordance with
      Section 7.2(a), such Contributions may be re-invested by the Trustee in
      accordance with Participant
direction.

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    2.           Section
5.6A is added to the Plan to be and read as follows, effective as stated
herein:

     

    Section
5.6A         Final Section 415
Regulations.

     

    
      	
               
      

            	
              (a)

            	
              Effective Date.
      The provisions of this Section 5.6A shall apply in Limitation Years
      beginning on or after July 1, 2007, except as otherwise provided
      herein.  The provisions of this Section 5.6A shall supersede the
      provisions of Section 5.6 to the extent they are inconsistent therewith
      commencing upon the effective date.

            


    

     

    
      	
               
      

            	
              (b)

            	
              Incorporation by
      Reference. Notwithstanding anything contained in the Plan to the
      contrary, the limitations, adjustments, and other requirements prescribed
      in the Plan shall comply with the provisions of Code Section 415 and the
      final Regulations promulgated thereunder, the terms of which are
      specifically incorporated herein by reference as of the effective date of
      this Section 5.6A, except where an earlier effective date is otherwise
      provided in the final Regulations or in this Amendment. However, where the
      final Regulations permit the Plan to specify an alternative option to a
      default option set forth in the Regulations, and the alternative option
      was available under statutory provisions, Regulations, and other published
      guidance relating to Code Section 415 as in effect prior to April 5, 2007,
      and the Plan provisions in effect as of April 5, 2007 incorporated the
      alternative option, said alternative option shall remain in effect as a
      Plan provision for Limitation Years beginning on or after July 1, 2007
      unless another permissible option is provided in this Section
      5.6A.

            


    

     

    
      	
               
      

            	
              (c)

            	
              Compensation Paid
      after Severance from Employment. For Limitation Years beginning on
      or after July 1, 2007, or such earlier date as specified below,
      compensation for a Limitation Year, within the meaning of Code Section
      415(c)(3) (“415 Compensation”), shall also include the following types of
      compensation paid by the later of 21⁄2 months after a Participant’s
      severance from employment with the employer maintaining the Plan or the
      end of the Limitation Year that includes the date of the Participant’s
      severance from employment with the employer maintaining the Plan. Any
      other payment of compensation paid after severance of employment that is
      not described in the following types of compensation is not considered 415
      Compensation, even if payment is made within the time period specified
      above.

            


    

     

    
      	
               
      

            	
              (i)

            	
              Regular Pay after
      Severance from Employment. 415 Compensation shall include regular
      pay after severance of employment
if:

            


    

     

    
      	
               
      

            	
              (A)

            	
              The
      payment is regular compensation for services during the Participant’s
      regular working hours, or compensation for services outside the
      Participant’s regular working hours (such as overtime or shift
      differential), commissions, bonuses, or other similar payments;
      and

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
               
      

            	
              (B)

            	
              The
      payment would have been paid to the Participant prior to a severance from
      employment if the Participant had continued in employment with the
      employer.

            


    

     

    
      	
               
      

            	
              (ii)

            	
              Leave Cashouts and
      Deferred Compensation. Leave cashouts and deferred compensation
      shall not be included in 415
Compensation.

            


    

     

    
      	
               
      

            	
              (iii)

            	
              Salary Continuation
      Payments for Military Service Participants. 415 Compensation does
      not include payments to an individual who does not currently perform
      services for the employer by reason of qualified military service (as that
      term is used in Code Section
414(u)(1)).

            


    

     

    
      	
               
      

            	
              (iv)

            	
              Salary Continuation
      Payments for Disabled Participants. 415 Compensation does not
      include compensation paid to a Participant who is permanently and totally
      disabled (as defined in Code Section
22(e)(3)).

            


    

     

    
      	
               
      

            	
              (d)

            	
              Administrative
      Delay. With regard to a Participant who has not incurred a
      severance from employment, 415 Compensation shall not include amounts
      earned but not paid during the Limitation Year solely because of the
      timing of pay periods and pay
dates.

            


    

     

    
      	
               
      

            	
              (e)

            	
              Inclusion of Certain
      Nonqualified Deferred Compensation Amounts. If the Plan's
      definition of Compensation for purposes of Code Section 415 is the
      definition in Regulation Section 1.415(c)-2(b) and the simplified
      compensation definition of Regulation 1.415(c)-2(d)(2) is not used, then
      415 Compensation shall include amounts that are includible in the gross
      income of a Participant under the rules of Code Section 409A or Code
      Section 457(f)(1)(A) or because the amounts are constructively received by
      the Participant.

            


    

     

    
      	
               
      

            	
              (f)

            	
              Definition of Annual
      Additions.  The Plan's definition of "annual additions"
      is modified as follows:

            


    

     

    
      	
               
      

            	
              (i)

            	
              Restorative
      Payments. Annual additions for purposes of Code Section 415 shall
      not include restorative payments. A restorative payment is a payment made
      to restore losses to a plan resulting from actions by a fiduciary for
      which there is reasonable risk of liability for breach of a fiduciary duty
      under ERISA or under other applicable federal or state law, where
      participants who are similarly situated are treated similarly with respect
      to the payments. Generally, payments are restorative payments only if the
      payments are made in order to restore some or all of the plan's losses due
      to an action (or a failure to act) that creates a reasonable risk of
      liability for such a breach of fiduciary duty (other than a breach of
      fiduciary duty arising from failure to remit contributions to the Plan).
      This includes payments to a plan made pursuant to a Department of Labor
      order, the Department of Labor's Voluntary Fiduciary Correction Program,
      or a court approved settlement, to restore losses to a qualified defined
      contribution plan on account of the breach of fiduciary duty (other than a
      breach of fiduciary duty arising from failure to remit contributions to
      the Plan). Payments made to the Plan to make up for losses due merely to
      market fluctuations and other payments that are not made on account of a
      reasonable risk of liability for breach of a fiduciary duty under ERISA
      are not restorative payments and generally constitute contributions that
      are considered annual additions.

            


    

     

    
      	
               
      

            	
              (ii)

            	
              Other Amounts.
      Annual additions for purposes of Code Section 415 shall not include: (1)
      The direct transfer of a benefit or employee contributions from a
      qualified plan to this Plan; (2) Rollover contributions (as described in
      Code Sections 401(a)(31), 402(c)(1), 403(a)(4), 403(b)(8), 408(d)(3), and
      457(e)(16)); (3) Repayments of loans made to a Participant from the Plan;
      and (4) Repayments of amounts described in Code Section 411(a)(7)(B) (in
      accordance with Code Section 411(a)(7)(C)) and Code Section 411(a)(3)(D)
      or repayment of contributions to a governmental plan (as defined in Code
      Section 14(d)) as described in Code Section 415(k)(3), as well as Employer
      restorations of benefits that are required pursuant to such
      repayments.

            


    

     

    
      	
               
      

            	
              (g)

            	
              Change of Limitation
      Year. The Limitation Year may only be changed by a Plan amendment.
      Furthermore, if the Plan is terminated effective as of a date other than
      the last day of the Plan's Limitation Year, then the Plan is treated as if
      the Plan had been amended to change its Limitation
  Year.

            


    

     

    
      	
               
      

            	
              (h)

            	
              Excess Annual
      Additions. Notwithstanding any provision of the Plan to the
      contrary, if the annual additions (within the meaning of Code Section 415)
      are exceeded for any Participant, then the Plan may only correct such
      excess in accordance with the Employee Plans Compliance Resolution System
      (EPCRS) as set forth in Revenue Procedure 2008-50 or any superseding
      guidance, including, but not limited to, the preamble of the final Section
      415 Regulations.

            


    

     

    
      	
               
      

            	
              (i)

            	
              Aggregation and
      Disaggregation of Plans.

            


    

     

    
      	
               
      

            	
              (i)

            	
              For
      purposes of applying the limitations of Code Section 415, all defined
      contribution plans (without regard to whether a plan has been terminated)
      ever maintained by the Employer (or a "predecessor employer") under which
      the Participant receives annual additions are treated as one defined
      contribution plan. The "Employer" means the Employer that adopts this Plan
      and all members of a controlled group or an affiliated service group that
      includes the Employer (within the meaning of Code Section 414(b), (c), (m)
      or (o)), except that for purposes of this Section, the determination shall
      be made by applying Code Section 415(h), and shall take into account tax
      exempt organizations under Regulation Section 1.414(c)-5, as modified by
      Regulation Section 1.415(a)-1(f)(1). For purposes of this
      Section:

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
               
      

            	
              (A)

            	
              A
      former employer is a "predecessor employer" with respect to a participant
      in a plan maintained by an Employer if the Employer maintains a plan under
      which the participant had accrued a benefit while performing services for
      the former Employer, but only if that benefit is provided under the plan
      maintained by the Employer. For this purpose, the formerly affiliated plan
      rules in Regulation Section 1.415(f)-1(b)(2) apply as if the Employer and
      predecessor Employer constituted a single employer under the rules
      described in Regulation Section 1.415(a)-1(f)(1) and (2) immediately prior
      to the cessation of affiliation (and as if they constituted two, unrelated
      employers under the rules described in Regulation Section 1.415(a)-1(f)(1)
      and (2) immediately after the cessation of affiliation) and cessation of
      affiliation was the event that gives rise to the predecessor employer
      relationship, such as a transfer of benefits or plan
      sponsorship.

            


    

     

    
      	
               
      

            	
              (B)

            	
              With
      respect to an Employer of a Participant, a former entity that antedates
      the Employer is a "predecessor employer" with respect to the Participant
      if, under the facts and circumstances, the employer constitutes a
      continuation of all or a portion of the trade or business of the former
      entity.

            


    

     

    
      	
               
      

            	
              (ii)

            	
              Break-Up of an
      Affiliate Employer or an Affiliated Service Group. For purposes of
      aggregating plans for Code Section 415, a "formerly affiliated plan" of an
      employer is taken into account for purposes of applying the Code Section
      415 limitations to the employer, but the formerly affiliated plan is
      treated as if it had terminated immediately prior to the "cessation of
      affiliation." For purposes of this paragraph, a "formerly affiliated plan"
      of an employer is a plan that, immediately prior to the cessation of
      affiliation, was actually maintained by one or more of the entities that
      constitute the employer (as determined under the employer affiliation
      rules described in Regulation Section 1.415(a)-1(f)(1) and (2)), and
      immediately after the cessation of affiliation, is not actually maintained
      by any of the entities that constitute the employer (as determined under
      the employer affiliation rules described in Regulation Section
      1.415(a)-1(f)(1) and (2)). For purposes of this paragraph, a "cessation of
      affiliation" means the event that causes an entity to no longer be
      aggregated with one or more other entities as a single employer under the
      employer affiliation rules described in Regulation Section
      1.415(a)-1(f)(1) and (2) (such as the sale of a subsidiary outside a
      controlled group), or that causes a plan to not actually be maintained by
      any of the entities that constitute the employer under the employer
      affiliation rules of Regulation Section 1.415(a)-1(f)(1) and (2) (such as
      a transfer of plan sponsorship outside of a controlled
    group).

            


    

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    
      	
               
      

            	
              (iii)

            	
              Midyear
      Aggregation. Two or more defined contribution plans that are not
      required to be aggregated pursuant to Code Section 415(f) and the
      Regulations thereunder as of the first day of a Limitation Year do not
      fail to satisfy the requirements of Code Section 415 with respect to a
      Participant for the Limitation Year merely because they are aggregated
      later in that Limitation Year, provided that no annual additions are
      credited to the Participant's account after the date on which the plans
      are required to be aggregated.

            


    

     

    IN WITNESS WHEREOF, FROZEN FOOD EXPRESS INDUSTRIES,
INC. has caused this Third Amendment to be executed this 25 day of
February, 2009, effective as of the dates set forth herein, by the undersigned
duly appointed and authorized officer.

    
      
        
          
            
              	 
      	
                      FROZEN
      FOOD EXPRESS INDUSTRIES, INC.

                    
	 
      	
                      By:  
      /s/ Stoney M. Stubbs
    Jr.

                    
	 
      	
                      Name:   
      Stoney M. Stubbs
  Jr.

                    
	 
      	
                      Title:  
      President  and
      CEO