As filed with the Securities and Exchange Commission on February 14, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FROZEN FOOD EXPRESS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Texas 75-1031831
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1145 Empire Central Place 75247-4309
Dallas, Texas (Zip Code)
(Address of Executive Offices)
Employee Stock Option Plan
(Full Title of the Plan)
Stoney M. Stubbs, Jr.
Frozen Food Express Industries, Inc.
1145 Empire Central Place
Dallas, Texas 75247-4309
(Name and address of agent for service)
(214) 630-8090
(Telephone number, including area code, of agent for service)
Copy To:
Bryan E. Bishop, Esq.
Locke Purnell Rain Harrell
(A Professional Corporation)
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title Proposed Maximum Proposed Maximum
Of Securities Amount To Offering Price Aggregate Offering Amount of
To Be Registered Be Registered Per Share (1) Price (1) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 shares $9.25 $13,875,000.00 $4,204.55
$1.50 Par Value
</TABLE>
(1) Estimated in accordance with Rule 457 under the Act solely for purposes of
calculating the registration fee, based on the average of the high and low
prices reported on the Nasdaq National Market on February 11, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information specified by Item 1 of Part I of Form S-8 is omitted from
this filing in accordance with the provisions of Rule 428 under the Securities
Act of 1933, as amended, (the "Securities Act"), and the introductory note to
Part I of Form S-8. The document(s) containing the information specified in
Part I will be sent or given to employees as specified by Rule 428(b)(1).
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information specified in Item 2 of Part I of Form S-8 is omitted from
this filing in accordance with the provisions of Rule 428 under the Securities
Act and the introductory note of Part I of Form S-8. The document(s)
containing the information specified in Part I will be sent or given to
employees as specified by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are incorporated by reference in this
Registration Statement. All documents subsequently filed by Frozen Food
Express Industries, Inc. (the "Company") pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be part hereof from the date of filing of such
documents.
1. The Company's Annual Report on Form 10-K for fiscal year ended
December 31, 1995.
2. The Company's Proxy Statement dated March 29, 1996 in connection
with the Annual Meeting of Stockholders of the Company held on April
25, 1996.
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
4. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1996.
5. The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996.
6. The description of the Common Stock which is contained in the
Company's Registration Statement on Form 8-A filed on April 26, 1972
pursuant to Section 12 of the Exchange Act, and all amendments
thereto and reports which have been filed for the purpose of updating
such description.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act ("TBCA") provides
that a Texas corporation may indemnify officers and directors who are, or are
threatened to be made, named defendants or respondents in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, in any appeal of such an action, suit or
proceeding or in any inquiry or investigation that could lead to such an
action, suit or proceeding, by reason of the fact that such person is or was a
director or officer, but only if it is determined that the person (i) conducted
himself in good faith, (ii) reasonably believed (a) in the case of conduct in
his official capacity as an officer or director of the corporation, that his
conduct was in the best interest of the corporation and (b) in all other cases,
that his conduct was not opposed to the best interests of the corporation, and
(iii) in the case of any criminal proceeding, had no reasonable cause to
believe his conduct was unlawful. Subject to certain exceptions, officers and
directors may not be indemnified in connection with any proceeding in which the
person is found liable on the basis that the person improperly received
personal benefit or in which the person is found liable to the corporation.
The TCBA permits indemnification for all judgments, penalties (including excise
and similar taxes), fines, settlements and reasonable expenses actually
incurred in connection with the proceeding in question; provided, however, that
in situations where an officer or director is found liable on the basis that
the person improperly received personal benefit or is found liable to the
corporation, indemnification (x) is limited to reasonable expenses actually
incurred by the person in connection with the proceeding and (y) is not
permitted in any proceeding in which the person is found liable for willful or
intentional misconduct in the performance of his duties to the corporation. If
an officer or director is successful on the merits, or otherwise, in the
defense of the proceeding, the corporation must indemnify him for all
reasonable expenses actually incurred in connection therewith.
Article Twelve of the Company's Articles of Incorporation provides that,
to the full extent permitted by Texas law, the Company is required (i) to
indemnify any officer or director against judgments, penalties (including
excise and similar taxes), fines, settlements and reasonable expenses,
including court costs and attorney's fees, actually incurred by such person if
such person was, is or is threatened to be named a defendant or respondent in a
proceeding because that person is or was an officer or director of the Company
and (ii) to advance such person reasonable expenses actually incurred in
connection therewith.
Article Fourteen of the Company's Articles of Incorporation provides that,
to the extent permitted by Texas law, a director of the Company shall not be
liable to the Company or its shareholders for monetary damages for an act or
omission in the director's capacity as a director.
-3-
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to officers,
directors or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the Securities
and Exchange Commission (the "SEC") such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Frozen Food Express Industries, Inc. Employee Stock Option Plan.
5.1 Opinion of Locke Purnell Rain Harrell (A Professional
Corporation).
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Locke Purnell Rain Harrell (A Professional
Corporation) (included in opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
-4-
<PAGE>
Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment referred to in
paragraph (1) shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of
such issue.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Company certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas on February
12, 1997.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By:/s/ Stoney M. Stubbs, Jr.
_________________________________________
Stoney M. Stubbs, Jr
Chairman of the Board, President and
Chief Executive Officer
-6-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Stoney M. Stubbs, Jr. his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------- ------------------------------------- ---------------
<S> <C> <C>
/s/ Stoney M. Stubbs, Jr. Chairman of the Board of Directors, February 12, 1997
- ------------------------- President and Chief Executive Officer
Stoney M. Stubbs, Jr. (Principal ExecutiveOfficer)
/s/ Edgar O. Weller Vice Chairman of the Board of February 12, 1997
- ------------------------- Directors
Edgar O. Weller
/s/ Burl G. Cott Senior Vice President, February 12, 1997
- ------------------------- Chief Financial Officer and Director
Burl G. Cott (Principal Financial and Accounting
Officer)
/s/ Charles G. Robertson Executive Vice President, February 12, 1997
- ------------------------- Chief Operating Officer and Director
Charles G. Robertson
Director February 12, 1997
- -------------------------
W. Grogan Lord
/s/ Leroy Hallman Director February 12, 1997
- -------------------------
Leroy Hallman
Director February 12, 1997
- -------------------------
Brian R. Blackmarr
Director February 12, 1997
- -------------------------
T. Michael O'Connor
</TABLE>
-7-
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
<TABLE>
<CAPTION>
<S> <C>
4.1 Frozen Food Express Industries, Inc.
Employee Stock Option Plan
5.1 Opinion of Locke Purnell Rain
Harrell (A Professional
Corporation)
23.1 Consent of Arthur Andersen LLP,
Independent Public Accountants
23.2 Consent of Locke Purnell Rain
Harrell (A Professional
Corporation) (included in opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (included on
the signature page of this
Registration Statement)
</TABLE>
-8-
<PAGE>
EXHIBIT 4.1
Frozen Food Express Industries, Inc.
Employee Stock Option Plan
I. GENERAL
1. PURPOSE. The Frozen Food Express Industries, Inc. Employee Stock
Option Plan (the "Plan") has been established by Frozen Food Express
Industries, Inc. (the "Company") to:
(a) motivate participating employees, by means of
appropriate incentive, to achieve long-range goals; and
(b) further identify Participants' interests with those of
the Company's other shareholders through compensation based on
the Company's common stock;
and thereby encourage the judgment, initiative and efforts of participating
employees for the successful conduct of the Company's business.
2. EFFECTIVE DATE. The Plan shall be effective as of January 1, 1997.
No option shall be granted hereunder after July 1, 2001.
3. DEFINITIONS. The following definitions are applicable to the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the Committee appointed by the Board to administer the
Plan.
"Disability" means a physical or mental condition of an Employee which
appears to permanently prevent him from satisfactorily performing his usual
duties for the Company or any Subsidiary, or such other duties which the
Company makes available to him and for which he is qualified by reason of his
training, education or experience. Determination of a Disability shall be made
by the Board in its sole discretion based upon medical reports and other
evidence satisfactory to the Board.
"Early Retirement" means termination of employment after attainment of age
fifty-five (55) and completion of at least ten (10) Years of Service with the
Company or any Subsidiary in accordance with the Company's standard retirement
policies.
"Employee" means a salaried or hourly employee as determined based on the
payroll records of the Company or a Subsidiary; provided, however, that the
following shall not be considered "Employees" for purposes of the Plan: (a) any
employee who is a leased employee within the meaning of Code Section 414(n);
(b) any employee whose terms and conditions of employment are governed by
<PAGE>
a collective bargaining agreement and with respect to whom inclusion in the
Plan has not been specifically provided for in such collective bargaining
agreement; (c) any employee who is an officer of the Company or who is subject
to Section 16 of the Exchange Act as of a Grant Date; and (d) any individual
who is an independent contractor (including any individual who is
recharacterized by the Internal Revenue Service as a common law employee, for
periods during which such individual was treated as an independent contractor
by the Company or a Subsidiary). If a Participant ceases to be an Employee by
virtue of his or her becoming an Ineligible Person, his or her rights under any
then outstanding options issued under the Plan will not be affected, even
though such person would not be eligible for future grants.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" of any Stock means (a) if the Stock is listed on a
national securities exchange, the closing price on the Stock on a given date;
(b) if the Stock is traded on an exchange or market in which prices are
reported on a bid and asked price, the average of the mean between the closing
bid and asked price for the Stock on a given date; and (c) if the Stock is not
listed on a national securities exchange nor traded on the over-the-counter
market, such value as the Board, in good faith, shall determine.
"Grant Date" means, with respect to any Stock Option, the date of grant
specified by the Board or the Committee or, if no date of grant is specified,
the date on which the Board or the Committee awards the Stock Option.
"Ineligible Person" means any person not considered an Employee for
purposes of the Plan due to the fact that he or she is (i) an employee whose
terms and conditions of employment are governed by a collective bargaining
agreement and with respect to whom inclusion in the Plan has not been
specifically provided for in such collective bargaining agreement or (ii) an
employee who is an officer of the Company or is subject to Section 16 of the
Exchange Act as of a Grant Date.
"Participant" means any Employee of the Company or any Subsidiary of the
Company.
"Retirement" means termination of employment after attainment of age sixty-
five (65) in accordance with the Company's standard retirement policies.
"Savings Plan" means the Savings Plan for Employees of Frozen Food Express
Industries, Inc. (as amended and restated from time to time).
"Stock" means Frozen Food Express Industries, Inc. common stock, $1.50 par
value.
"Stock Option" means the right of a Participant to purchase Stock pursuant
to a Stock Option awarded in accordance with the provisions of the Plan.
-2-
<PAGE>
"Subsidiary" means any corporation (i) during any period of which 50% or
more of the total combined voting power of all classes of stock entitled to
vote is owned, directly or indirectly, by the Company and (ii) that is
designated a participating employer in the Plan by the Board.
"Year of Service" means a completed calendar year in which an Employee
completes one thousand (1,000) Hours of Service. Hours of Service shall be
computed in accordance with the provisions of the Company's Savings Plan.
4. ADMINISTRATION. The authority to manage and control the operation
and administration of the Plan shall be vested in the Board. The Board is
authorized to interpret the Plan, to establish, amend, and rescind any rules
and regulations relating to the Plan, to determine the terms and provisions of
any agreements made pursuant to the Plan, and to make all other determinations
that may be necessary or advisable for the administration of the Plan.
The Board, in its discretion, may delegate any or all of its authority,
powers and discretion under this Plan to the Committee, and the Board in its
discretion may revest any or all such authority, powers and discretion in
itself at any time. If appointed, the Committee shall function as follows: A
majority of the Committee shall constitute a quorum, and the acts of a majority
of the members present at any meeting at which a quorum is present, or acts
approved in writing by all members of the Committee, shall be the acts of the
Committee, unless provisions to the contrary are embodied in the Company's
Bylaws or resolutions duly adopted by the Board. All actions taken and
decisions and determinations made by the Board or the Committee pursuant to the
Plan shall be binding and conclusive on all persons interested in the Plan. No
member of the Board or the Committee shall be liable for any action or
determination taken or made in good faith with respect to the Plan.
5. SHARES SUBJECT TO THE PLAN. The shares of Stock with respect to
which awards may be made under the Plan shall be either authorized and unissued
shares or issued shares held in treasury (including, in the discretion of the
Board, shares purchased in the market). Subject to the provisions of paragraph
9, the number of shares of Stock available under the Plan for the grant of
Stock Options shall not exceed 1,500,000 shares in the aggregate. If for any
reason any shares as to which options have been granted cease to be subject to
purchase hereunder, then the shares in respect of which such option was granted
shall become available for subsequent awards under the Plan to the extent
permitted by applicable law.
6. COMPLIANCE WITH APPLICABLE LAWS AND WITHHOLDING OF TAXES.
Notwithstanding any other provision of the Plan, the Company shall have no
liability to issue any shares of Stock under the Plan unless such issuance
would comply with all applicable laws and the applicable requirements of any
securities exchange or similar entity. Prior to the issuance of any shares of
Stock under the Plan, the Company may require a written statement that the
recipient is acquiring the shares for
-3-
<PAGE>
investment and not for the purpose or with the intention of distributing the
shares. All awards and payments under the Plan are subject to withholding of
all applicable taxes, which withholding obligations may be satisfied, with the
consent of the Board, through the surrender of shares of Stock which the
Participant already owns, or to which a Participant is otherwise entitled under
the Plan. The Company shall have the right to deduct from all amounts paid in
cash in consequence of the exercise of a Stock Option under the Plan any taxes
required by law to be withheld with respect to such cash payments. Where an
Employee or other person is entitled to receive shares of Stock pursuant to the
exercise of a Stock Option pursuant to the Plan, the Company shall have the
right to require the Employee or such other person to pay to the Company the
amount of any taxes that the Company is required to withhold with respect to
such shares, or, in lieu thereof, to retain, or sell without notice, a
sufficient number of such shares to cover the amount required to be withheld.
7. TRANSFERABILITY. Stock Options awarded under the Plan are not
transferable except as designated by the Participant by will or by the laws of
descent and distribution. Stock Options may be exercised during the lifetime
of the Participant only by the Participant or his guardian or legal
representative.
8. EMPLOYMENT AND STOCKHOLDER STATUS. The Plan does not constitute a
contract of employment, and no Participant will have the right to be retained
in the employ of the Company or any Subsidiary. No award under the Plan shall
confer upon the holder thereof any right as a stockholder of the Company prior
to the date on which he fulfills all service requirements and other conditions
for receipt of shares of Stock.
9. ADJUSTMENTS TO NUMBER OF SHARES SUBJECT TO THE PLAN. The terms of a
Stock Option and the number of shares of Stock authorized pursuant to paragraph
5 hereof for issuance under the Plan shall be subject to adjustment, from time
to time, in accordance with the following provisions:
(a) If at any time or from time to time, the Company shall
subdivide as a whole (by reclassification, by a stock split, by
the issuance of a distribution on Stock payable in Stock or
otherwise) the number of shares of Stock then outstanding into a
greater number of shares of Stock, then (i) the maximum number
of shares of Stock available for the Plan as provided in
Paragraph 5 shall be increased proportionately, and the kind of
shares or other securities available for the Plan shall be
appropriately adjusted, (ii) the number of shares of Stock (or
other kind of shares or securities) that may be acquired under
any Stock Option shall be increased proportionately, and (iii)
the price for each share of Stock (or other kind of shares or
unit of other securities) subject to then outstanding Stock
Options shall be reduced proportionately, without changing the
aggregate purchase price or value as to which outstanding Stock
Options remain exercisable.
-4-
<PAGE>
(b) If at any time or from time to time, the Company shall
consolidate as a whole (by reclassification, reverse stock
split, or otherwise) the number of shares of Stock then
outstanding into a lesser number of shares of Stock, (i) the
maximum number of shares of Stock available for the Plan as
provided in Paragraph 5 shall be decreased proportionately, and
the kind of shares or other securities available for the Plan
shall be appropriately adjusted, (ii) the number of shares of
Stock (or other kind of shares or securities) that may be
acquired under any Stock Option shall be decreased
proportionately, and (iii) the price for each share of Stock (or
other kind of shares or unit of other securities) subject to
then outstanding Stock Options shall be increased
proportionately, without changing the aggregate purchase price
or value as to which outstanding Stock Options remain
exercisable.
(c) If at any time or from time to time, the Company shall
engage in a spinoff, recapitalization, merger, combination,
exchange of shares, sale of all or substantially all of its
assets, voluntary liquidation or other similar change, the Board
or the Committee, in its sole discretion, may equitably adjust
(i) the aggregate number of shares of Stock with respect to
which awards may be made under the Plan, (ii) the number of
shares of Stock that may be acquired under any Stock Option,
(iii) the price for each share of Stock subject to then
outstanding Stock Options, (iv) the schedule according to which
Stock Options shall vest, (v) the Expiration Date of any Stock
Option (including, without limitation, an acceleration of the
Expiration Date to coincide with the closing or effective date
of such a transaction) and (vi) any other characteristics of the
Stock Options or provision of the Plan which the Board or the
Committee, in its sole discretion, deems necessary. If
provision is not otherwise made in writing in connection with
such transaction for the substitution of securities of another
issuer, other securities of the Company, cash or other property,
and without the necessity of any action by the Board, each
holder of an outstanding Stock Option shall be entitled,
immediately prior to the effective date of such transaction, to
purchase the number of shares of Stock that are then vested and
exercisable, and the unexercised portion of any Stock Option
shall be deemed cancelled and terminated as of the effective
date of such transaction.
(d) Adjustments hereunder shall be made by the Board, and
its determination as to what adjustments shall be made and the
extent thereof shall be final, binding and conclusive. No
fractional interest shall be issued under the Plan on account of
any such adjustments.
-5-
<PAGE>
10. CHANGE IN CONTROL. Notwithstanding any other provision of the Plan,
in the event of a change in control, all outstanding Stock Options will
automatically become fully exercisable and/or vested. For purposes of this
paragraph 10, the term "change in control" means a change in the beneficial
ownership of the Company's voting stock or a change in the composition of the
Board which occurs as follows:
(a) any "person" (as such term is used in Section 13(d)
and 14(d)(2) of the Exchange Act), other than the Company, a
wholly-owned subsidiary of the Company, any employee benefit
plan of the Company or of a Subsidiary or any trustee of such a
plan, is or becomes, without the prior approval of the Board, a
beneficial owner, directly or indirectly, of stock of the
Company representing 35 percent or more of the total voting
power of the Company's then outstanding voting stock.
(b) a tender offer (for which a filing has been made with
the Securities Exchange Commission ("SEC") which purports to
comply with the requirements of Section 14(d) of the Exchange
Act and the corresponding SEC rules) is made for the stock of
the Company, which has not been negotiated and approved by the
Board, provided that in case of a tender offer described in this
paragraph (b), the change in control will be deemed to have
occurred upon the first to occur of (i) any time during the
offer when the person (using the definition in (a) above) making
the offer owns or has accepted for payment stock of the Company
with 35 percent of the total voting power of the Company's stock
or (ii) three business days before the offer is to terminate
unless the offer is withdrawn first, if the person making the
offer could own, by the terms of the offer plus any shares owned
by this person, stock with 35 percent or more of the total
voting power of the Company's stock when the offer terminates;
or
(c) individuals who were the Board's nominees for election
as directors of the Company immediately prior to a meeting of
the stockholders of the Company involving a contest for the
election of directors shall not constitute a majority of the
Board following the election.
For purposes hereof, a person will be deemed to be the beneficial owner of any
voting securities of the Company which it would be considered to beneficially
own under SEC Rule 13d-3 (or any similar or superseding statute or rule) from
time to time in effect.
11. NOTICE OF STOCK OPTION AWARDS. As soon as practicable following each
Grant Date under the Plan, the Company will provide written notice to each
Participant who is awarded a Stock Option of the award and the terms and
conditions of the Plan.
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<PAGE>
12. AMENDMENT AND TERMINATION OF PLAN. Subject to the following
provisions of this paragraph 12, the Board may at any time and in any way
amend, suspend or terminate the Plan. If stockholder approval of an amendment
to the Plan increasing the total number of shares of Stock with respect to
which awards may be made under the Plan, materially increasing the benefits
accruing to Participants under the Plan or materially modifying the
requirements as to eligibility for participation in the Plan is a condition of
SEC Rule 16b-3 or the Code at the time such amendment is adopted, no such
amendment shall be adopted and, except as provided in paragraph 9, no action
shall be taken by the Board unless such amendment or action be approved by the
stockholders of the Company in accordance with Rule 16b-3 or applicable
provisions of the Code. No amendment, suspension or termination of the Plan
shall alter or impair any Stock Option previously awarded under the Plan
without the consent of the holder thereof.
II. NON-QUALIFIED STOCK OPTIONS
1. DEFINITION; STOCK OPTION PRICE. The award of a Non-Qualified Stock
Option under the Plan entitles the Participant to purchase shares of Stock at a
price equal to one hundred percent (100%) of the Fair Market Value of the Stock
on the Grant Date of such option.
2. ELIGIBILITY; DISCRETION TO AWARD STOCK OPTIONS. Participants who, as
of the Grant Date, have both (a) been continuously employed by the Company or a
Subsidiary for the immediately preceding six months, and (b) completed a
minimum of 500 Hours of Service during the immediately preceding six months
("Eligible Participants") shall be eligible to receive an award of options on
the Grant Date. Hours of Service under the Plan shall be determined in the
same manner as under the Company's Savings Plan. Service as a trainee shall be
considered as service with the Company.
The Board or the Committee may authorize from time to time in its sole
discretion, by adoption of a resolution, the award of Stock Options. The Board
or the Committee may award to Eligible Participants such number of Stock
Options covering such number of shares of Common Stock as it may determine in
its sole discretion.
3. EXERCISE OF STOCK OPTIONS. A Stock Option may be exercised at any
time or from time to time as to any or all shares of Stock as to which the
Stock Option has become exercisable; PROVIDED, HOWEVER, that a Stock Option
shall not be exercised at any time as to less than one hundred (100) shares of
Stock (or less than the number of shares of Stock as to which the Stock Option
is then exercisable, if that number is less than one hundred (100) shares of
Stock). To the extent provided by the Board, the full purchase price of each
share of Stock purchased upon the exercise of any Stock Option shall be paid in
cash or its equivalent at the time of such exercise and, as soon as practicable
thereafter, a certificate representing the shares so purchased shall be
delivered to the person entitled thereto. Participants also may elect to pay,
unless restricted by the Board, the purchase price, in whole or in part, of
shares of Stock purchased upon the exercise of Stock Options through (i) the
Company's withholding of shares of
-7-
<PAGE>
Stock (valued at Fair Market Value as of the day of exercise) that would
otherwise be issuable upon exercise of such Stock Options equivalent to the
purchase price of such Stock Options and/or (ii) actual or constructive
delivery of shares of Stock with a Fair Market Value equal to the purchase
price as of the close of business on the day immediately preceding the date of
exercise, and, as soon as practicable thereafter, a certificate representing
the net number of shares so purchased shall be delivered to the person entitled
thereto.
4. VESTING OF STOCK OPTIONS. Each Stock Option shall become and be
exercisable in accordance with the following schedule, based on the number of
full Years of Service completed subsequent to the Grant Date:
Years of Service Vested Percentage
---------------- -----------------
0 0%
1 0%
2 0%
3 0%
4 0%
5 60%
6 80%
7 100%
Notwithstanding the foregoing, each Stock Option shall be 100% vested and
exercisable upon a Change in Control, and upon a Participant's Retirement,
Early Retirement, Disability or death.
5. STOCK OPTION EXPIRATION DATE. The "Expiration Date" with respect to
a Stock Option awarded to a Participant under the Plan means the earliest of:
(a) the date that is ten (10) years following the Grant
Date of the Stock Option;
(b) the date the Participant's employment with the Company
and all Subsidiaries is terminated for reasons other than
Retirement, Early Retirement, Disability or death; or
(c) the date that is ninety (90) days after the date the
Participant's employment with the Company and all Subsidiaries
is terminated by reason of Retirement, Early Retirement,
Disability or death.
All rights to purchase shares of Stock pursuant to a Stock Option shall cease
as of such option's Expiration Date.
-8-
<PAGE>
IN WITNESS WHEREOF, FROZEN FOOD EXPRESS INDUSTRIES, INC. has caused this
instrument to be executed in its name and on its behalf, by the officers
thereunto duly authorized, as of this 1st day of January, 1997.
ATTEST/WITNESS: FROZEN FOOD EXPRESS INDUSTRIES, INC.
/s/ Leonard W. Bartholomew By: /S/ Stoney M. Stubbs, Jr.
Name: Stoney M. Stubbs, Jr.
Print Name: Leonard W. Bartholomew Title: Chairman, President and
Chief Executive Officer
[SEAL]
Date: January 1, 1997
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<PAGE>
EXHIBIT 5.1
February 12, 1997
Frozen Food Express Industries, Inc.
1145 Empire Central Place
Dallas, Texas 75247-4309
Dear Ladies and Gentlemen:
This firm has acted as counsel for Frozen Food Express Industries, Inc., a
Texas corporation (the "Company"), in connection with the registration,
pursuant to the Company's Registration Statement on Form S-8 (the "Registration
Statement"), of the offer and sale of an aggregate of 1,500,000 shares of
common stock, $1.50 par value per share, of the Company (the "Common Stock"),
as that number of shares may be adjusted from time to time pursuant to the
provisions of the Plan (hereinafter defined), that may be issued pursuant to
stock options ("Stock Options") granted under the Frozen Food Express
Industries, Inc. Employee Stock Option Plan adopted on November 13, 1996, by
the Company's Board of Directors (the "Plan"). Unless otherwise defined
herein, each term used herein that is defined in the Plan has the meaning given
such term in the Plan.
In reaching the opinions set forth herein, this firm has reviewed the
Plan, the Company's Articles of Incorporation and Bylaws, and, except as set
forth below, certificates of public officials and officers of the Company, and
matters of law that this firm deemed relevant.
Based on the subject to the foregoing and subject further to the
assumptions, exceptions, and qualifications hereinafter stated, this firm is of
the opinion that each share of Common Stock registered pursuant to the
Registration Statement, when and if issued in accordance with the terms of the
Plan and the relevant option, will be legally issued, fully paid and non-
assessable.
The opinion expressed above is subject to the following assumptions,
exceptions, and qualifications:
1. This firm has assumed that (i) all information contained in all
documents reviewed by this firm is true and correct, (ii) all signatures on all
documents reviewed by this firm are genuine, (iii) all documents submitted to
this firm as originals are true and complete, (iv) all documents submitted as
copies are true and complete copies of the originals thereof, (v) each natural
person signing any document reviewed by this firm had the legal capacity to do
so, (vi) each person signing in a representative capacity any document reviewed
by this firm had authority to sign in such capacity, and (vii) the laws of any
jurisdiction other than Texas that govern any of the documents reviewed by this
firm do not modify the terms that appear in any such document.
<PAGE>
Frozen Foods Express Industries, Inc.
February 12, 1997
Page 2
2. This firm also has assumed that the Company will receive the full
amount and type of consideration (as specified in the Plan and each applicable
stock option) for each of the shares of Common Stock registered pursuant to the
Registration Statement before the issuance of each of those shares of Common
Stock pursuant to the applicable option and that each grant of a Stock Option
pursuant to the Plan will be duly authorized.
The opinion expressed above is limited to the laws of the State of Texas
and the federal laws of the United States of America.
This opinion letter may be filed as an exhibit to the Registration
Statement. In giving this consent, this firm does not thereby admit that it
comes within the category of persons whose consent is required under section 7
of the Security Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ Bryan E. Bishop
------------------------
Bryan E. Bishop
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 15, 1996,
incorporated by reference in Frozen Food Express Industries, Inc.'s Form 10-K
for the year ended December 31, 1995, and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
February 12, 1997
