Exhibit 10.11 (a)
AMENDMENT NO. 1 TO
SPLIT DOLLAR AGREEMENT
STUBBS TRUST
Reference is made to that certain Split Dollar Agreement dated as of March 2,1995 (the"Agreement"), by and between Frozen Food Express Industries, Inc., a Texas corporation (the"Corporation"), and Stoney Russell Stubbs, as Trustee("Trustee") of The Stubbs Irrevocable1995 Trust (the"Trust").
PRELIMINARY STATEMENTS
A.The Agreement may be amended in accordance with Section 11 of the Agreement.
B.Capitalized terms used in this amendment (the"Amendment"), but not otherwisedefined, have the meaning for them set forth in the Agreement.
C.The parties desire to amend the Agreement to terminate any obligationof theCorporation to make Premium (as defined below) payments under the Agreement with respect to the Policy.
D.The parties also desire to grant the Trust the right to repay the Corporation directlyfor any Premiums due to be repaid to the Corporation by the Trust under the Agreement withoutthe Trust having to wait to surrender the Policy for its cash value or receipt of deathbenefitsunder the Policy.
AMENDMENT
The parties, intending to be legally bound, hereby agree as follows:
1.Termination of Premium Payment Obligations. Notwithstanding anything to thecontrary in the Agreement (including under Section 3 of the Agreement),the parties herebyagree that the Corporation shall no longer have any obligation topay Premiums under the Agreement with respect to the Policy and that as of the date hereof the Trustshall be solelyobligated to make any and all Premium payments under or with respect to the Policy.For theavoidance of doubt, Section 3 of the Agreement is hereby deleted in its entirety from the Agreement and shall be of no further force or effect.
2.Repayment of Premiums. Notwithstanding anything to the contraryin theAgreement (including Sections 2 and 5 of the Agreement), the Trust shall have the right,at itssole and absolute discretion, to repay Premiums owed to the Corporation under the Agreement(including under Section 2) at any time prior to the Trust surrendering the Policyfor its cash value or receipt of death proceeds under the Policy. Nothing in this Amendment, however, shalllimit or diminish the Trust's obligation to repay any unpaid Premiums in full no later than as provided in Section 5 of the Agreement.As used herein and in the context of the Agreement,
"Premiums" shallmean the total amount paid toward the premiums on the Policyby theCorporation under the Agreement prior to the date hereof andthe total amount that theCorporation previously paid toward premiums on the Massachusetts Life Insurance Policy(lessany sums previously received by the Corporation with respectto the Massachusetts LifeInsurance Policy), which Premium amounts currently owing total in the aggregate $1,328,435,asfurther described onExhibit A.
3.Ownership Rights. Nothing in this Amendment shall alter the ownership rights in the Policy, which ownership rights shall remain with the Trust, subject only to the Corporation's collateral assignment rights set forthinthe Agreement, which collateral assignment rights shallterminate on the earlier of repayment in full of the Premiums or as otherwise providedin theAgreement.
4. Succession. This Amendment shall lie binding upon and inure to the benefit ofthe parties to this Amendment and their respective successors and permitted assigns.
5.Counterparts. This Amendment may be executed in one or more counterparts,each of which shall be deemed an original but all of which together will constitute oneand thesame instrument.
6.Governing Law. This Amendment shall be governed by and construed inaccordance with the laws of the State of Texas without giving effect to any choice or conflictoflaw provision or rule (whether of the State of Texas or any other jurisdiction).
7.Severability. Any term or provision of this Amendment that is invalidorunenforceable in any situation in any jurisdiction shall not affect the validity or enforceability ofthe remaining terms and provisions hereof or the validity or enforceability of the offendingtermor provision in any other situation or in any other jurisdiction.
8.Ratification. This Amendment shall not affect any terms or provisions of theAgreement other than those amended hereby and is only intended to amend, alter or modifythe Agreement as expressly stated herein. Except as amended hereby, the Agreement remains ineffect, enforceable against each of the parties, and is hereby ratified and acknowledged byeachof the parties. In the event of a conflict between this Amendment and the Agreement,the terms of this Amendment shall control.
9.Further Assurances. While the Corporation and the Trust are the only parties tothe Agreement, both parties agree to take such actions as may be required by the Insurer, or which the parties may reasonably request, to modify, amend or alter the collateralassignmentdocuments previously executed by the partiesin conjunction with the execution of the Agreement, all in such manner as would be in furtherance with the spirit of this Amendment.
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The parties hereto have executed this Amendment on November 12, 2003.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By:/s/ F. Dixon McElwee, Jr.
Name: F. Dixon McElwee, Jr.
Title: Senior VP and CFO
THE STUBBS IRREVOCABLE 1995 TRUST
By:/s/ Stoney Russell Stubbs
Name: Stoney Russell Stubbs
Title:Trustee of The Stubbs Irrevocable 1995 Trust
EXHIBITA
Outstanding Premiums
as of November 12, 2003
Analysis of Split Dollar Premium Payments
Year | Amount | ||
1992 | 59, 355.00 | ||
1993 | 59,355.00 | ||
1994 | - | ||
1995 | 152,000.00 | ||
1995 | (6,275.73) | ||
1996 | 152, 000.00 | ||
1.997 | 152,000.00 | ||
1998 | 152,000.00 | ||
1999 | 152,000.00 | ||
2000 | 152,000.00 | ||
2001 | 152,000.00 | ||
2002 | 152,000.00 | ||
1,328,434.27 | |||