Form of Amended and Restated Change in Control Agreement


    EXHIBIT 10.1

     

    

      FORM
        OF

      AMENDED
        AND RESTATED

      CHANGE
        IN CONTROL AGREEMENT

      


      


      THIS
        AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this
“Agreement”) is made as of DATE by and between Frozen Food Express
        Industries, Inc., a Texas corporation (the “Company”) and NAME (the
“Executive”).

      


      


      RECITALS

      


      A. The
        Board of Directors of Company (the “Board”) has
        determined that the interests of the Company will be advanced by providing
        the
        key executives of the Company with certain benefits in the event of the
        termination of employment of any such executive in connection with or following
        a Change in Control (as hereinafter defined).

      


      B. The
        Board believes that such benefits will enable the
        Company to continue to attract and retain competent and qualified executives,
        will assure continuity and cooperation of management and will encourage such
        executives to diligently perform their duties without personal financial
        concerns, thereby enhancing shareholder value and ensuring a smooth transition.
        

      


      C. The
        Executive is a key executive of the Company.

      


      D. The
        Company and the Executive previously entered into a
        Change in Control Agreement dated as of _______________ (the “Original
        Agreement”).

      


      E. The
        Company and the Executive desire to amend and restate
        the Original Agreement.

      


      AGREEMENTS

      


      NOW,
        THEREFORE, for good and valuable consideration, including the
        mutual covenants set forth herein, the parties hereto agree as follows:

      


      1. Definitions.
        The following terms shall have the following
        meanings for purposes of this Agreement.

      


      “Affiliate”
means
        any entity controlled by, controlling or under
        common control with, the Company.

      


      “Annual
        Pay” means the sum of (a) an amount equal to the sum of
        the current annual base salary, the current annual car allowance and Christmas
        bonus payable to the Executive by the Company or any Related Corporation
        at the
        time of the termination of his employment, provided such base salary shall
        not
        be less than the base salary of the Executive at the time of Change in Control,
        plus (b) an amount equal to the Bonus for the Executive for the fiscal year
        in
        which his termination of employment occurs.

      


      



      “Bonus”
means
        the sum of (a) an amount equal to ninety percent
        (90%) of the Executive’s base pay for the year of termination of his employment
        plus (b) an amount equal to the Incentive Bonus Plan’s total incentive bonus
        payable to the Executive under the plan for the year of termination of his
        employment.

      


      “Cause”
means
        the Executive’s (a) willful and intentional material
        breach of this Agreement, (b) willful and intentional misconduct or gross
        negligence in the performance of or willful neglect of, the Executive’s duties,
        which has caused material injury (monetary or otherwise) to the Company or
        any
        Related Corporation, or (c) conviction of, or plea of nolo contendere to,
        a
        felony; provided, however, that no act or omission shall constitute “Cause” for
        purposes of this Agreement unless the Board or the Chief Executive Officer
        of
        the Company provides to the Executive (i) written notice clearly and fully
        describing the particular acts or omissions which the Board or the Chief
        Executive Officer of the Company reasonably believes in good faith constitutes
        “Cause” and (ii) an opportunity, within thirty (30) days following his receipt
        of such notice, to meet in person with the Board or the Chief Executive Officer
        of the Company to explain or defend the alleged acts or omissions relied
        upon by
        the Board or the Chief Executive Officer of the Company and, to the extent
        practicable to cure such acts or omissions. Further, no act or omission shall
        be
        considered as “willful” or “intentional” if the Executive reasonably believed
        such acts or omissions were in the best interests of the Company.

      


      “Change
        in Control” means (a) any “person” (as such term is used
        in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
        (the “Exchange Act”)) that does not currently own a five percent (5%) or
        greater equity interest in the Company or any Related Corporation who becomes
        the “beneficial owner” (as determined pursuant to Rule 13d-3 under the Exchange
        Act), directly or indirectly, of securities of the Company or any Related
        Corporation representing fifteen percent (15%) or more of the combined voting
        power of the Company’s or Related Corporation’s, as the case may be, then
        outstanding voting securities; or (b) a change in the composition of the
        Board
        occurring within a two (2) year period, as a result of which fewer than a
        majority of the directors are Incumbent Directors; or (c) the Company or
        any
        Related Corporation shall merge with or consolidate into any other corporation,
        other than a merger or consolidation which would result in the holders of
        the
        voting securities of the Company or any Related Corporation, as the case
        may be,
        outstanding immediately prior thereto holding immediately thereafter securities
        representing more than sixty percent (60%) of the combined voting power of
        the
        voting securities of the Company or any Related Corporation, as the case
        may be,
        or such surviving entity (or its ultimate parent, if applicable) outstanding
        immediately after such merger or consolidation; or (d) the equity holders
        of the
        Company or any Related Corporation approve a plan of complete liquidation
        of the
        Company or any Related Corporation or the consummation of an agreement for
        the
        sale or disposition by the Company or any Related Corporation of all or
        substantially all of the Company’s or Related Corporation’s assets and such plan
        or agreement becomes effective, other than liquidation or sale which would
        result in the Company directly or indirectly owning such interest or
        assets.

      


      “Code”
means
        the Internal Revenue Code of 1986, as amended.

      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

      



      “Confidential
        Information” means all information, whether oral or
        written, previously or hereafter developed, acquired or used by the Company
        or
        any Affiliate and relating to the business of the Company or any Affiliate
        that
        is not generally known to others in the Company’s area of business, including
        without limitation trade secrets, methods or practices developed by the Company
        or any Affiliate, financial results or plans, customer or client lists,
        personnel information, information relating to negotiations with clients
        or
        prospective clients, proprietary software, databases, programming or data
        transmission methods, or copyrighted materials (including without limitation,
        brochures, layouts, letters, art work, copy, photographs or illustrations).
        It
        is expressly understood that the foregoing list shall be illustrative only
        and
        is not intended to be an exclusive or exhaustive list of “Confidential
        Information.”

      


      “First
        Window Period” shall mean the ten (10) day period
        immediately following a Change in Control.

      


      “Good
        Reason” means any of the following events occurring, without
        the Executive’s prior written consent specifically referring to this Agreement,
        within the Transition Period following a Change in Control:

      


      (a) (i)
        any reduction in the amount of the Executive’s Annual
        Pay, (ii) any reduction in the amount of Executive’s other long-term aggregate
        incentive compensation opportunities, or (iii) any significant reduction
        in the
        aggregate value of the Executive’s benefits as in effect from time to time
        (unless in the case of either (ii) or (iii), such reduction is pursuant to
        a
        general change in compensation or benefits applicable to all similarly situated
        employees of the Company and its Affiliates);

      


      (b) (i)
        the removal of the Executive from the position held
        by him immediately prior to the Change in Control, or (ii) any other significant
        reduction in the nature or status of the Executive’s duties or responsibilities
        from those in effect immediately prior to the Change in Control;

      


      (c) the
        failure by the Company or Related Corporation to pay
        Executive any portion of Executive’s current compensation, or to pay Executive
        any portion of an installment of deferred compensation under any compensation
        program of the Company or Related Corporation within seven (7) days of the
        date
        such compensation is due;

      


      (d) the
        failure by the Company or Related Corporation to
        provide Executive with the number of paid vacation days to which Executive
        is
        entitled on the basis of years of service with the Company or Related
        Corporation in accordance with the Company’s or Related Corporation’s normal
        vacation policy in effect at the time of the Change in Control; 

      


      (e) transfer
        of the Executive’s principal place of employment
        to a metropolitan area other than that of the Executive’s place of employment
        immediately prior to the Change in Control without the Executive’s consent;
        or

      


      (f) failure
        by the Company or Related Corporation to obtain
        the assumption agreement referred to in Section 11 of this Agreement prior
        to
        the effectiveness of any succession referred to therein, unless the purchaser,
        successor or assignee referred to therein is bound to perform this Agreement
        by
        operation of law.

      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      “Incumbent
        Directors” means directors who either (a) are directors
        of the Company as of the date hereof or (b) are elected, or nominated for
        election, to the Board with the affirmative votes of at least a majority
        of the
        Incumbent Directors at the time of such election or nomination (but shall
        not
        include an individual whose election or nomination is in connection with
        an
        actual or threatened proxy contest relating to the election of directors
        of the
        Company).

      


      “Related
        Corporation” shall mean FFE, Inc., a Delaware corporation
        and wholly owned subsidiary of the Company, and FFE Transportation Services,
        Inc., a Delaware corporation and wholly owned subsidiary of FFE, Inc.

      


      “Second
        Window Period” shall mean the thirty (30) day period
        immediately following the Transition Period.

      


      “Termination
        Pay” means a payment made by the Company to the
        Executive pursuant to Sections 2(a)(ii) and (iii).

      


      “Transition
        Period” shall mean the six (6) month period
        immediately following a Change in Control.

      


      “Without
        Cause” means a termination of the Executive’s employment
        by the Company or Related Corporation other than due to disability or for
        Cause.


      


      2. Termination
        Payment and Benefits. 

      


      (a) Termination
        Following Change in Control. In the
        event that the Executive’s employment with the Company or Related Corporation is
        terminated during the Transition Period by the Company or Related Corporation
        Without Cause, or by the Executive for Good Reason during the Transition
        Period
        or in the event the Executive terminates his employment for any reason during
        the First Window Period or the Second Window Period, the Executive shall
        be
        entitled to the following payments and other benefits:

      


      (i) A
        cash payment in an amount equal to the sum of (a) the
        Executive’s accrued and unpaid base salary, car allowance and Christmas bonus as
        the date of termination plus (b) his accrued and unpaid bonus, if any, for
        the
        prior fiscal year plus (c) a percentage of the year worked times the Bonus
        for
        the current year. This amount shall be paid on the date of the Executive’s
        termination of employment.

      


      (ii) A
        cash payment in an amount equal to two and nine-tenths
        (2.9) times the Executive’s Annual Pay. This amount shall be paid in accordance
        with Section 2(c) hereof.

      


      (iii) A
        cash payment in an amount equal to the Executive’s
        unvested account balance under the Company’s or Related Corporation’s 401(k)
        Savings Plan and 401(k) Wrap Plan. This amount shall be paid in accordance
        with
        Section 2(c) hereof.

      


      



      (iv) Executive
        and his eligible dependents shall be entitled
        for a period of two (2) years following his date of termination of employment
        to
        continued coverage, at the same premium rate charged when actively employed,
        under the Company’s or any Related Corporation’s group health, dental, long-term
        disability, Exec-U-Care Medical Reimbursement Insurance Plan and life insurance
        as in effect from time to time (but not any other welfare benefit plans or
        any
        retirement plans); provided that coverage under any particular benefit plan
        shall expire with respect to the period after the Executive becomes covered
        under another employer’s plan providing for a similar type of benefit. In the
        event the Company or Related Corporation is unable to provide such coverage
        on
        account of any limitations under the terms of any applicable contract with
        an
        insurance carrier or third party administrator, the Company or Related
        Corporation shall pay the Executive an amount equal to the cost of such
        coverage.

      


      (v) All
        of the
        Executive’s unvested options, restricted stock, stock units, performance share
        or other awards, if any, based on or related to equity securities of the
        Company
        or its Affiliates under any plan in which the Executive participates and
        which
        was identified as an executive compensation plan in the exhibits to the
        Company’s most recent filing with the SEC that shall automatically vest on a
        Change in Control (as defined in the applicable plan). The Company shall
        promptly cause any related award agreements to be amended as necessary to
        provide for such accelerated vesting. In the event of any conflict between
        this
        provision and the provisions of any stock option, restricted or similar award
        agreements entered into before or after the effective date of this Agreement,
        the foregoing provision shall control. 

       

      


      (b) No
        Duplication; Other Severance Pay. There shall
        be no duplication of severance pay in any manner. In this regard, the Executive
        shall not be entitled to termination payments hereunder for more than one
        position with the Company and its Affiliates. If the Executive is entitled
        to
        any notice or payment in lieu of any notice of termination of employment
        required by Federal, state or local law, including but not limited to the
        Worker
        Adjustment and Restraining Notification Act, the severance compensation to
        which
        the Executive would otherwise be entitled under this Agreement shall be reduced
        by the amount of any such payment, in lieu of notice. If Executive is entitled
        to any severance or termination payments under any employment or other agreement
        with the Company or any of its Affiliates, the severance compensation to
        which
        Executive would otherwise be entitled under this Agreement shall be reduced
        by
        the amount of such payment. Except as set forth above, the foregoing payments
        and benefits shall be in addition to and not in lieu of any payments or benefits
        to which the Executive and his dependents may otherwise be entitled to under
        the
        Company’s or Related Corporation’s compensation and employee benefit plans.
        Nothing herein shall be deemed to restrict the right of the Company or Related
        Corporation from amending or terminating any such plan in a manner generally
        applicable to similarly situated active employees of the Company and its
        Affiliates, in which event the Executive shall be entitled to participate
        on the
        same basis (including payment of applicable contributions) as similarly situated
        active executives of the Company and its Affiliates.

      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      (c) Mutual
        Release. Termination Pay shall be
        conditioned upon the execution by the Executive and the Company of a valid
        mutual release, in the form attached hereto as Exhibit A, pursuant to which
        the
        Executive and the Company shall each mutually release each other, to the
        maximum
        extent permitted by law, from any and all claims either party may have against
        the other as of the date of termination that relate to or arise out of the
        employment or termination of employment of the Executive, except such claims
        arising under this Agreement, any employee benefit plan, or any other written
        plan or agreement (a “Mutual Release”). The full amount of Termination
        Pay shall be paid in a lump sum in cash to the Executive within ten (10)
        days
        following receipt by the Company of a Mutual Release which is properly executed
        by the Executive; provided, however, that in the event applicable law allows the
        Executive to revoke the Mutual Release for a period of time, and the Mutual
        Release is not revoked during such period, the full amount of Termination
        Pay
        shall be paid to the Executive following the expiration of such period.

      


      


      3.
 
Additional
        Change in Control Benefits. Except to the
        extent released under the terms of the Mutual Release, Executive shall be
        entitled to such additional change in control benefits as are provided under
        the
        Frozen Food Express Industries, Inc. 2005 Stock Incentive Plan, the FFE
        Transportation Services, Inc. Supplemental Executive Retirement Plan, the
        FFE
        Transportation Services, Inc. 1999 Executive Bonus and Phantom Stock Plan,
        the
        FFE Transportation Services, Inc. 2005 Executive Bonus and Restricted Stock
        Plan
        , the FFE Transportation Services, Inc. 1994 Incentive Bonus Plan, Frozen
        Food
        Express Industries, Inc. 401(k) Savings Plan and the FFE Transportation
        Services, Inc. 401(k) Wrap Plan, as approved and adopted by the Board.

      


      4.
 Excise
        Taxes.

      


      (a) Gross-Up
        Payment. Anything in this Agreement to
        the contrary notwithstanding and except as set forth below, if it is determined
        that any payment or distribution (a “Payment”) by the Company to or for
        the benefit of the Executive (whether paid or payable or distributed or
        distributable pursuant to the terms of this Agreement or otherwise) including,
        without limitation, vesting of options, would be subject to the excise tax
        imposed by Section 4999 of the Code, or if any interest or penalties are
        incurred by the Executive with respect to such excise tax (such excise tax,
        together with any such interest and penalties, being hereinafter collectively
        referred to as the “Excise Tax”), then the Executive shall be entitled to
        receive an additional payment (a “Gross-Up Payment”) in an amount
        sufficient to pay all taxes (including any interest or penalties imposed
        with
        respect to such taxes), including, without limitation, any income taxes (and
        any
        interest and penalties imposed with respect thereto) and Excise Tax imposed
        upon
        the Gross-Up Payment.

      


      



      (b) Calculation
        of Gross-Up Payment. Subject to the
        provisions of paragraph (c) of this Section 5, all determinations required
        to be made under this Section 5, including whether and when a Gross-Up Payment
        is required and the amount of such Gross-Up Payment and the assumptions to
        be
        used in arriving at such determination, shall be made by a certified public
        accounting firm selected by the Company and reasonably acceptable to the
        Executive (the “Accounting Firm”), which shall be retained to provide
        detailed supporting calculations both to the Company and the Executive. If
        the
        Accounting Firm is serving as accountant or auditor for the individual, entity
        or group effecting the Change in Control, the Executive shall have the right
        to
        appoint another nationally recognized accounting firm to make the determinations
        required hereunder (which accounting firm shall then be referred to as the
        Accounting Firm hereunder). All fees and expenses of the Accounting Firm
        shall
        be paid solely by the Company. Any Gross-Up Payment, as determined pursuant
        to
        this Section 5, shall be paid by the Company to the Executive within five
        (5)
        days of the receipt of the Accounting Firm’s determination. Any determination by
        the Accounting Firm shall be binding upon the Company and the Executive.
        As a
        result of the uncertainty in the application of Section 4999 of the Code
        at the
        time of the initial determination by the Accounting Firm hereunder, it is
        possible that Gross-Up Payments which should have been made will not have
        been
        made by the Company (“Underpayment”), consistent with the calculations
        required to be made hereunder. If the Company exhausts its remedies pursuant
        to
        paragraph (c) of this Section 5 and the Executive thereafter is required
        to pay
        an Excise Tax in an amount that exceeds the Gross-Up Payment received by
        the
        Executive, the Accounting Firm shall determine the amount of the Underpayment
        that has occurred and any such Underpayment shall be paid by the Company
        to or
        for the benefit of the Executive.

      


      (c) Contested
        Taxes. The Executive shall notify the
        Company in writing of any claim by the Internal Revenue Service that, if
        successful, would result in an Underpayment. Such notification shall be given
        as
        soon as practicable but not later than ten (10) business days after the
        Executive is informed in writing of such claim and shall apprise the Company
        of
        the nature of such claim and the date on which such claim is requested to
        be
        paid or appealed. The Executive shall not pay such claim prior to the expiration
        of the 30-day period following the date on which it gives such notice to
        the
        Company (or such shorter period ending on the date that any payment of taxes
        with respect to such claim is due). If the Company notifies the Executive
        in
        writing prior to the expiration of such period that it desires to contest
        such
        claim, the Executive shall:

      


      (i) give
        the Company any information reasonably requested by
        the Company relating to such claim,

      


      (ii) take
        such action in connection with contesting such
        claims as the Company shall reasonably request in writing from time to time,
        including, without limitation, accepting legal representation with respect
        to
        such claim by an attorney reasonably selected by the Company,

      


      (iii) cooperate
        with the Company in good faith in order to
        effectively contest such claim, and

      


      (iv) permit
        the Company to participate in any proceedings
        relating to such claim;

      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      provided,
        however, that the Company shall bear and pay
        directly all costs and expenses (including additional interest and penalties)
        incurred in connection with such contest and shall indemnify and hold the
        Executive harmless, on an after-tax basis, for any Excise Tax or income tax
        (including interest and penalties with respect thereto) imposed as a result
        of
        such representation and payment of costs and expenses. Without limitation
        on the
        foregoing provisions of this paragraph (c), the Company shall control all
        proceedings taken in connection with such contest and, at its sole option,
        may
        pursue or forego any and all administrative appeals, proceedings, hearings
        and
        conferences with the taxing authority in respect of such claim and may, at
        its
        sole option, either direct the Executive to pay the tax claimed and sue for
        a
        refund or to contest the claim in any permissible manner, and the Executive
        agrees to prosecute such contest to a determination before any administrative
        tribunal, in a court of initial jurisdiction and in one or more appellate
        courts, as the Company shall determine; provided, however, that if the
        Company directs the Executive to pay such claim and sue for a refund, the
        Company shall advance the amount of such payment to the Executive, on an
        interest-free basis, and shall indemnify and hold the Executive harmless,
        on an
        after-tax basis, from any Excise Tax or indemnity and hold the Executive
        harmless, on an after-tax basis, from any Excise Tax or income tax (including
        interest or penalties with respect thereto) imposed with respect to such
        advance
        or with respect to any imputed income with respect to such advance; and
further provided that any extension of the statute of limitations
        relating to payment of taxes for the taxable year of the Executive with respect
        to which such contested amount is claimed to be due is limited solely to
        such
        contested amount. Furthermore, the Company’s control of the contest shall be
        limited to issues with respect to the amount of the Gross-Up Payment, and
        the
        Executive shall be entitled to settle or contest, as the case may be, any
        other
        issue raised by the Internal Revenue Service or any other taxing
        authority.

      


      (d) Refunds.
        If, after the receipt by the Executive of
        an amount advanced by the Company pursuant to this Section 5, the Executive
        becomes entitled to receive any refund with respect to such claim, the Executive
        shall promptly pay to the Company the amount of such refund (together with
        any
        interest paid or credited thereon after taxes applicable thereto).

      


      5.
        Legal Fees. The Company shall reimburse the Executive for all
        legal fees and other costs incurred in enforcing this Agreement.
  

      


      6.
        Certain Covenants by the Executive.

      


      



      (a) Covenant
        Not to Compete. For the consideration
        described in this Agreement to be paid to Executive, Executive agrees that
        during the term of his employment with the Company or Related Corporation
        and
        for a period of one (1) year following the close of business on the date
        of the
        termination his of employment he will not (except as a consultant to the
        Company
        or an Affiliate), jointly or independently, directly or indirectly, engage
        in
        and/or participate in the cold-storage warehousing business or the motor
        carrier
        business for transportation of dry (non-perishable and non-temperature
        controlled), perishable and/or temperature controlled truckload,
        less-than-truckload (“LTL”) and/or distribution shipments rated as LTL
        shipments or distribution shipments, respectively, according to the provisions
        of tariffs and shipper contracts to which the Company or an Affiliate is
        a
        party, either as a common motor carrier, contract motor carrier, freight
        transportation broker, third-party logistics provider or otherwise, in
        interstate commerce, in intrastate commerce and/or in international commerce
        (the “Competing Business”) within the forty-eight (48) contiguous states
        of the continental United States. It is recognized and agreed that Executive
        has
        conducted motor carrier operations in interstate commerce, in intrastate
        commerce and in international commerce for several years and has accumulated
        expertise and familiarity with operations involving the Competing Business
        on a
        national and international basis. Executive further agrees, acknowledges
        and
        solemnly declares that he has appreciable knowledge, experience and expertise
        in
        the motor freight business, the freight transportation broker business and
        the
        third-party logistics provider business, and that his being in competition
        with
        the Company or any Affiliate would be extremely detrimental to the Company
        or
        the Affiliate, and accordingly, Executive covenants, warrants and agrees
        that
        during the term of his employment and during the one (1) year period described
        herein, he will not, jointly or independently, directly or indirectly, take
        or
        permit to be taken on his behalf any action making use of such expertise,
        knowledge or information in a Competing Business (provided that the Executive
        shall not be restricted hereby from owning or acquiring 5% or less of the
        outstanding voting securities of a public company that engages in such
        business), provided that, the foregoing restriction will terminate immediately
        if the Executive’s employment with the Company or Related Corporation is
        terminated by the Company or the Related Corporation Without Cause or by
        the
        Executive for Good Reason. The foregoing provision is not intended to override,
        supersede, reduce, modify or affect in any manner any other noncompetition
        covenant or agreement entered into between Executive and the Company or any
        of
        its Affiliates. Any such covenant or agreement shall remain in full force
        and
        effect in accordance with its terms. Executive agrees that at any time during
        the non-competition period he will not, without the prior written consent
        of the
        Company:

      


      
        	 	
                (i)

              	
                request
                  or advise any customer or client of the Company or
                  of any Affiliate (including but not limited to any customers or
                  clients of
                  the Company or of any Affiliate who are shippers, receivers, freight
                  transportation brokers or third-party logistics providers) having
                  or
                  expected to have business dealings with the Company or any Affiliate
                  pertaining to the Competing Business to withdraw, curtail or cancel
                  such
                  business or business dealings, or to take any business to a competitor
                  of
                  the Company or any Affiliate; or

              


      

      


      
        	 	
                (ii)

              	
                provide
                  any person a partial or complete list, whether
                  orally or in writing, of customers having business dealings with
                  the
                  Company or any Affiliate pertaining to the Competing Business or
                  who are
                  known to him to have had business dealings with the Company or
                  the
                  Affiliate pertaining to the Competing
                  Business.

              


      

      


      (b) Protection
        of Confidential Information. The
        Executive agrees that he will not at any time during or following his employment
        by the Company or Related Corporation, without the Company’s or Related
        Corporation’s prior written consent, divulge any Confidential Information to any
        other person or entity or use any Confidential Information for his own benefit.
        Upon termination of employment, for any reason whatsoever, regardless of
        whether
        either party may be at fault, the Executive will return to the Company or
        Related Corporation all physical Confidential Information in the Executive’s
        possession.

      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      


      (c) Non-Solicitation
        of Employees. The Executive
        agrees, for so long as the Executive remains employed by the Company or Related
        Corporation, and for a period of two years following termination of the
        Executive’s employment, that the Executive shall not, either for the Executive’s
        own account, or on behalf of any other person or entity, solicit, suggest
        or
        request that any other person employed by the Company or one of the Affiliates
        leave such employment for the purpose of becoming employed by the Executive
        or
        any other person or entity, or in any way violate any agreement between the
        Company or the Affiliate and such person.

      


      (d)
 Extent
        of Restrictions. If the scope of any
        restriction contained in this non-competition agreement is found by any Court
        of
        competent jurisdiction to be too broad to permit enforcement of such restriction
        to its full extent, then such restriction shall be enforced to the maximum
        extent permitted by law, and Executive agrees and consents that such scope
        may
        be judicially modified accordingly in any proceeding brought to enforce such
        restriction. Executive acknowledges that any breach of the agreements contained
        in this non-competition agreement would cause irreparable injury to the Company
        and/or a Related Corporation and that the remedy at law for any breach would
        be
        inadequate, and agrees and consents that temporary and injunctive relief
        may be
        granted in any proceeding which may be brought to enforce any provision of
        this
        non-competition agreement without the necessity of proof of actual damages.
        Executive hereby acknowledges that the Company or Related Corporation would
        be
        entitled to enforce all of the agreements and covenants contained in this
        non-competition agreement for the Company or a Related Corporation’s own benefit
        or for the benefit of any of the Affiliates. Nothing contained in this
        non-competition agreement shall prevent the Company or a Related Corporation
        or
        any Affiliates from bringing an action at law and recovering actual damages
        to
        the extent the same are provable, as all remedies herein granted shall each
        be
        independent causes of action. The invalidity of any provision of this Agreement
        or of this non-competition agreement shall not affect the validity of any
        other
        provisions of this non-competition agreement. “Affiliate” for purposes of this
        Section 7 shall mean the Company and all of its present or future direct
        and
        indirect subsidiaries. For purposes of this Section 7 “Person” includes
        individuals, firms, partnerships, associations, corporations, companies,
        entities, enterprises, joint ventures and any other business
        organizations.

      


      7. Joinder
        for Limited Purposes. For purposes under Sections
        2, 3, 4, 5 and 6 the term “Company” shall also include “Related Corporations”
who will be jointly and severally liable for the obligations under such
        provisions of this Agreement. 

      


      8. Tax
        Withholdings. Each payment to the Executive under this
        Agreement will be subject to the withholding of all taxes imposed on Executive
        with respect to such payment and required by applicable law to be withheld
        by
        the Company.

      


      9. Severability.
        In the event that any provision or portion
        of this Agreement shall be determined to be invalid or unenforceable for
        any
        reason, the remaining provisions of this Agreement shall be unaffected thereby
        and shall remain in full force and effect.

       

      10. Successors.
        This Agreement shall be binding upon and
        inure to the benefit of the Company and any successor of the Company. The
        Company and any Related Corporation will require any successor to all or
        substantially all of the business and/or assets of the Company or any Related
        Corporation, as the case may be to expressly assume and agree to perform
        this
        Agreement in the same manner and to the same extent that the Company or any
        Related Corporation would be required to perform if no succession had taken
        place.

      


      11. Entire
        Agreement, Replacement of Original Agreement. This
        Agreement constitutes the entire agreement between the parties hereto with
        respect to the subject matter hereof and amends and replaces the Original
        Agreement. This Agreement may not be modified in any manner except by a written
        instrument signed by both the Company and the Executive.

      


      12. Notices.
        Any notice required under this Agreement shall
        be in writing and shall be delivered by certified mail return receipt requested
        to each of the parties as follows:

      


      To
        the Executive:

      


      Name

      Address

      Address

      


      To
        the Company:

      


      Frozen
        Food Express Industries, Inc.

      1145
        Empire Central Place

      Dallas,
        Texas 75247-4309

      Attention:
        President 

      


      13. Governing
        Law. The provisions of this Agreement shall be
        construed in accordance of the laws of the State of Texas, except to the
        extent
        preempted by ERISA or other federal laws, as applicable, without reference
        to
        the conflicts of laws provisions thereof.

      


      


      
        
           

        

        
           

          
            

          

        

        
           

        

      

      



      IN
        WITNESS WHEREOF, the Executive and the Company have executed
        this Amended and Restated Change in Control Agreement as of the date and
        year
        first above written and the Related Corporations join for the purposes specified
        in Section 8.

      


      COMPANY

      


      FROZEN
        FOOD EXPRESS INDUSTRIES, INC.

      


      


      


      By:


      Its:
        President

      


      


      


      


      RELATED
        CORPORATIONS

      


      FFE,
        INC. 

      


      


      


      By:


      Its:
        President

      


      


      FFE
        TRANSPORTATION SERVICES, INC. 

      


      


      


      By:


      Its:
        President

      


      


      


      EXECUTIVE

      


      


      


      Name