Exhibit 10.6 (c)
THIRD AMENDMENT TO THE
FROZEN FOOD EXPRESS INDUSTRIES, INC. 401(K) SAVINGS PLAN
This Amendment is adopted byFROZEN FOOD EXPRESS INDUSTRIES, INC. (the “Company”), a Texas Corporation, having its principal office in Dallas, Texas.
R e c i t a l s:
WHEREAS, the Company has previously established the Frozen Food Express Industries, Inc. 401(k) Savings Plan, as amended and restated, effective January 1, 2001 (the “Plan”), for the benefit of those employees who qualify thereunder and for their beneficiaries; and
WHEREAS,in accordance with Revenue Procedure 2002-29, the Company desires to adopt a model amendment as the Third Amendment to the Plan in order to ensure the Plan’s compliance with final regulations adopted with respect to required minimum distributions under section 401(a)(9) of the Internal Revenue Code of 1986, as amended (the “Code”);
NOW, THEREFORE, pursuant to Section 15.1 of the Plan, the Plan is hereby amended as follows, effective January 1 , 2003:
“Model Plan Amendment for Final Regulations Relating to
Internal Revenue Code Section 401(a)(9)
Section 1. General Rules.
| 1.1. | Effective Date. The provisions of this amendment will apply for purposes of determining required minimum distributions for calendar years beginning with the 2003 calendar year. |
| 1.2. | Precedence. The requirements of this amendment will take precedence over any inconsistent provisions of the plan. |
| 1.3. | Requirements of Treasury Regulations Incorporated. All distributions required under this amendment will be determined and made in accordance with the Treasury regulations undersection 401(a)(9) of the Internal Revenue Code. |
| 1.4. | TEFRASection 242(b)(2) Elections. Notwithstanding the other provisions of this amendment, distributions may be made under a designation made before January 1, 1984, in accordance withsection 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the plan that relate tosection 242(b)(2) of TEFRA. |
Section 2. Time and Manner of Distribution.
| 2.1. | Required Beginning Date. The participant's entire interest will be distributed, or begin to be distributed, to the participant no later than the participant's required beginning date. |
| 2.2. | Death of Participant Before Distributions Begin. If the participant dies before distributions begin, the participant's entire interest will be distributed, and begin to be distributed, no later than as follows: |
| | (a) | If the participant's surviving spouse is the participant's sole designated beneficiary, then distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the participant died, or by December 31 of the calendar year in which the participant would have attained age 70½, if later. |
| | (b) | If the participant's surviving spouse is not the participant's sole designated beneficiary, then distributions to the designated beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the participant died. |
| | (c) | If there is no designated beneficiary as of September 30 of the year following the year of the participant's death, the participant's entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the participant's death. |
| | (d) | If the participant's surviving spouse is the participant's sole designated beneficiary and the surviving spouse dies after the participant but before distributions to the surviving spouse begin, this section 2.2, other than section 2.2(a), will apply as if the surviving spouse were the participant. |
For purposes of this section 2.2 andsection 4, unless section 2.2(d) applies, distributions are considered to begin on the participant's required beginning date. If section 2.2(d) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under section 2.2(a). If distributions under an annuity purchased from an insurance company irrevocably commence to the participant before the participant's required beginning date (or to the participant's surviving spouse before the date distributions are required to begin to the surviving spouse under section 2.2(a)), the date distributions are considered to begin is the date distributions actually commence.
| 2.3. | Forms of Distribution. Unless the participant's interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance withsections 3 and4 of this amendment. If the participant's interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements ofsection 401(a)(9) of the Code and the Treasury regulations. |
Section 3. Required Minimum Distributions During Participant's Lifetime.
| 3.1. | Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: |
| | (a) | the quotient obtained by dividing the participant's account balance by the distribution period in the Uniform Lifetime Table set forth insection 1.401(a)(9)-9 of the Treasury regulations, using the participant's age as of the participant's birthday in the distribution calendar year; or |
| | (b) | if the participant's sole designated beneficiary for the distribution calendar year is the participant's spouse, the quotient obtained by dividing the participant's account balance by the number in the Joint and Last Survivor Table set forth insection 1.401(a)(9)-9 of the Treasury regulations, using the participant's and spouse's attained ages as of the participant's and spouse's birthdays in the distribution calendar year. |
| 3.2. | Lifetime Required Minimum Distributions Continue Through Year of Participant's Death. Required minimum distributions will be determined under thissection 3 beginning with the first distribution calendar year and up to and including the distribution calendar year that includes the participant's date of death. |
Section 4. Required Minimum Distributions After Participant's Death.
4.1. Death On or After Date Distributions Begin.
| | (a) | Participant Survived by Designated Beneficiary. If the participant dies on or after the date distributions begin and there is a designated beneficiary, the minimum amount that will be distributed for each distribution calendar year after the year of the participant's death is the quotient obtained by dividing the participant's account balance by the longer of the remaining life expectancy of the participant or the remaining life expectancy of the participant's designated beneficiary, determined as follows: |
| | (1) | The participant's remaining life expectancy is calculated using the age of the participant in the year of death, reduced by one for each subsequent year. |
| | (2) | If the participant's surviving spouse is the participant's sole designated beneficiary, the remaining life expectancy of the surviving spouse is calculated for each distribution calendar year after the year of the participant's death using the surviving spouse's age as of the spouse's birthday in that year. For distribution calendar years after the year of the surviving spouse's death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving spouse as of the spouse's birthday in the calendar year of the spouse's death, reduced by one for each subsequent calendar year. |
(3) If the participant's surviving spouse is not the participant's sole designated beneficiary, the designated beneficiary's remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the participant's death, reduced by one for each subsequent year.
| | (b) | No Designated Beneficiary. If the participant dies on or after the date distributions begin and there is no designated beneficiary as of September 30 of the year after the year of the participant's death, the minimum amount that will be distributed for each distribution calendar year after the year of the participant's death is the quotient obtained by dividing the participant's account balance by the participant's remaining life expectancy calculated using the age of the participant in the year of death, reduced by one for each subsequent year. |
4.2. Death Before Date Distributions Begin.
| | (a) | Participant Survived by Designated Beneficiary. If the participant dies before distributions begin and there is a designated beneficiary, the participant’s entire interest will be distributed, and begin to be distributed, to the designated beneficiary by December 31 of the calendar year containing the fifth anniversary of the participant’s death. If the participant’s surviving spouse is the participant’s sole designated beneficiary and the surviving spouse dies after the participant but before distributions to either the participant or the surviving spouse begin, this paragraph will apply as if the surviving spouse were the participant. |
| | (b) | No Designated Beneficiary. If the participant dies before the date distributions begin and there is no designated beneficiary as of September 30 of the year following the year of the participant's death, distribution of the participant's entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the participant's death. |
| | (c) | Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the participant dies before the date distributions begin, the participant's surviving spouse is the participant's sole designated beneficiary, and the surviving spouse dies before distributions are required to begin to the surviving spouse, this section 4.2 will apply as if the surviving spouse were the participant. |
Section 5. Definitions.
| 5.1. | Designated beneficiary. The individual who is designated as the beneficiary under section 8.1 of the plan and is the designated beneficiary undersection 401(a)(9) of the Internal Revenue Code andsection 1.401(a)(9)-1, Q&A-4, of the Treasury regulations. |
| 5.2. | Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginning before the participant's death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the participant's required beginning date. For distributions beginning after the participant's death, the first distribution calendar year is the calendar year in which distributions are required to begin under section 2.2. The required minimum distribution for the participant's first distribution calendar year will be made on or before the participant's required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the participant's required beginning date occurs, will be made on or before December 31 of that distribution calendar year. |
| 5.3. | Life expectancy. Life expectancy as computed by use of the Single Life Table insection 1.401(a)(9)-9 of the Treasury regulations. |
| 5.4. | Participant's account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the account balance as of dates in the valuation calendar year after the valuation date and decreased by distributions made in the valuation calendar year after the valuation date. The account balance for the valuation calendar year includes any amounts rolled over or transferred to the plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year. |
5.5 Required beginning date. The date specified in section 8.3(c) of the plan.”
IN WITNESS WHEREOF, FROZEN FOOD EXPRESS INDUSTRIES, INC. has caused this Third Amendment to be executed on December 30, 2003, by the undersigned duly appointed and authorized officer, effective as of January 1, 2003.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
By:/s/ Stoney M. Stubbs, Jr.
Name: Stoney M. Stubbs, Jr.
Title: Chairman, President and CEO
