FORM OF AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
EXHIBIT 10.1
FORM
OF
AMENDED
AND RESTATED
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 xxx 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 xxx 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:
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(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
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(ii)
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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.
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(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.
0000
Xxxxxx Xxxxxxx Xxxxx
Xxxxxx,
Xxxxx 00000-0000
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
