EXHIBIT 10.1
FORM OF
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (this "Agreement") is made
as of [..........] by and between Frozen Food Express
Industries, Inc., a Texas corporation (the "Company") and
[.............] (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.
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]
[twenty] percent of the Executive's base pay for the year of
termination of his employment] [$120,000] 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 the 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, if
any, to purchase shares of the Company's or its Affiliate's
common stock or other equity interests in the Company or
such Affiliate shall be automatically vested on a Change in
Control (as defined in the 1992 Incentive and Nonstatutory
Option Plan). The Company shall promptly cause such 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 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. Split-Dollar Life Insurance. (Applicable only for S.
M. Stubbs, Jr., and Charles Roberston.) In the event that the
Executive's employment with the Company or Related Corporation is
terminated 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 employment for any reason
during the First Window Period or the Second Window Period, the
Company shall fulfill its funding obligations under the Split
Dollar Agreement dated March 2, 1995 by placing in trust or
escrow an amount sufficient to satisfy its policy premium
obligations under such Split Dollar Agreement. The Company shall
cause such necessary amendments to the Split Dollar Agreement to
be made.
4. 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. 1992 Incentive and Nonstatutory Option Plan, the
FFE Transportation Services, Inc. Supplemental Executive
Retirement Plan, the FFE Transportation Services, Inc. 1999
Executive Bonus and Phantom Stock Plan [alternative if
applicable: Management Phantom Stock Plan], the FFE
Transportation Services, Inc. 1994 Incentive Bonus Plan, and the
1996 FFE Transportation Services, Inc. 401(k) Wrap Plan, as
approved and adopted by the Board.
5. 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).
6. Legal Fees. The Company shall reimburse the
Executive for all legal fees and other costs incurred in
enforcing this Agreement.
7. Certain Covenants by the Executive.
(a) Covenant Not to Compete. [This provisions will be
modified for Steve McKenney] 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. Entire Agreement. This Agreement constitutes the
entire agreement between the parties hereto with respect to the
subject matter hereof. This Agreement may not be modified in any
manner except by a written instrument signed by both the Company
and the Executive.
13. 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:
........................
........................
........................
........................
To the Company:
Frozen Food Express Industries, Inc.
1145 Empire Central Place
Dallas, Texas 75247-4309
Attention:..........................
14. 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 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:................................
RELATED CORPORATIONS
FFE, INC.
By: ..............................
Its:..............................
FFE TRANSPORTATION SERVICES, INC.
By: .............................
Its:.............................
EXECUTIVE
.................................
