Exhibit 10.1
First through Fourth Amendments
To the Frozen Food Express Industries, Inc.
401(k) Savings Plan
AMENDMENT NUMBER ONE TO THE
FROZEN FOOD EXPRESS INDUSTRIES, INC.
401(K) SAVINGS PLAN
This amendment, is hereby adopted by Frozen Food Express
Industries, Inc. (the "Corporation"), a Texas Business Corporation
organized under the laws of the State of Texas, having its principal
office in Dallas, Texas.
RECITALS
WHEREAS, the Corporation previously adopted the Frozen Food Express
Industries, Inc. 401(k) Plan (the "Plan"); and
WHEREAS, the Corporation desires to amend the Plan in order to
change the effective date of certain provisions of the Plan;
NOW, THEREFORE, pursuant to Section 15.1 of the Plan, the following
provisions shall be effective as of September 10, 1987.
1. Section 3.4 shall be restated to hereinafter be and read as
follows:
"Section 3.4 Notification of Eligibility and Commencement of
Participation.
As soon as administratively feasible prior to each
Entrance Date, the Employers shall furnish the Committee
with a list of all Employees who become eligible or re-
eligible to participate in the Plan as of that Entrance
Date. The Committee shall promptly notify each such
Employee of his prospective participation and provide each
such Employee with such explanation of the Plan as the
Committee may provide for that purpose, together with such
forms as the Committee may prescribe for elections to
participate in the Plan. Such forms shall include
elections for (1) Savings Contributions (via payroll
deduction); (2) investment direction of a Participant's
accounts and (3) Beneficiary designation. Each Employee
shall be eligible to have Savings Contributions made on his
behalf as of the Entrance Date concurrent with or next
following the date on which he (1) becomes a Participant in
accordance with Plan Section 3.1, and (2) has signed and
returned all election forms as required by the Employer.
In accordance with Plan Section 4.1(b), if the Employee has
not submitted all election forms as of the Entrance Date
concurrent with or next following the date on which he
becomes a Participant, the Employee shall be eligible to
have Savings Contributions made on his behalf as of the
payroll period concurrent with or next following the date
the Employee submits such election forms."
2. Section 4.1(b) shall be restated to hereinafter be and read as
follows:
"(b) A Participant who does not have an election to
have Savings Contributions made on his behalf in effect, or
any Participant who would like to amend his election, may
make such election or amend such election, effective as of
the next following payroll period by filing an election
with the Plan Administrator within a reasonable time prior
to commencement of such payroll period. The Plan
Administrator may permit a participant to make an election
under this Section through any written, electronic or
telephonic means authorized by the Committee. Any such
election or amendment of an election shall be effective
only with respect to Compensation payable after the Plan
Administrator receives such election."
IN WITNESS WHEREOF, this instrument was executed on this the 23 day
of February, 2001.
EMPLOYER:
FROZEN FOOD EXPRESS INDUSTRIES, INC.
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By: /s/ Stoney M. Stubbs, Jr .
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Name: Stoney M. Stubbs, Jr.
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Its: President and Chairman of the Board
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Second Amendment to
Frozen Food Express Industries, Inc.
401(k) Savings Plan
This Amendment is adopted by Frozen 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 (the "Plan") for the benefit
of those employees who qualify thereunder and for their beneficiaries;
and
WHEREAS, the Company desires to amend the Plan to provide that if
an employee terminates employment and is subsequently re-employed after
incurring a Break in Service, Service prior to the Break in Service will
be taken into account immediately upon re-employment; and
WHEREAS, the Company desires to amend the Plan to provide that if a
participant who was not entitled to any vested percentage prior to a
Break in Service later resumes employment, he will be credited with pre-
break Years of Service; and
WHEREAS, the Company desires to amend the Plan to provide that a
participant who receives a hardship withdrawal from the Plan will neither
be required to suspend Savings Contributions (as defined in the Plan) for
12 months after receipt of the hardship distribution nor be limited in
the amount of Savings Contributions he may make in the taxable year
following the taxable year of the distribution, other than the otherwise
applicable limit in Internal Revenue Code Section 402(g); and
WHEREAS, the Company desires to amend the Plan to provide that
hardship distributions are not eligible rollover distributions;
NOW, THEREFORE, pursuant to Section 15.1 of the Plan, the following
amendments are hereby made and shall be effective January 1, 2001, or as
otherwise indicated:
1. Section 2.68 of the Plan is amended to hereafter be and read as
follows:
"2.68 Year of Service.
(a) For purposes of eligibility, a Year of Service means the
twelve (12) consecutive month period commencing on an
Employee's Employment Commencement Date and ending on the
anniversary of the Employee's Employment Commencement Date.
If an Employee fails to complete a Year of Service on the
first anniversary of the Employment Commencement Date, the
Employee shall be deemed to complete a Year of Service upon
the completion of twelve (12) months of Service. An
Employee shall receive credit for the aggregate of all time
periods commencing with the first day the Employee is
entitled to credit for an Hour of Service, including the
Re-Employment Commencement Date, and ending on the date a
Break in Service begins. An Employee also shall receive
credit for any Period of Severance of less than twelve (12)
consecutive months. Fractional periods of a year shall be
expressed in terms of months, with credit for a month of
service being given for each thirty (30) days of Elapsed
Time.
(b) For purposes of vesting, and subject to Section 6.3, a Year
of Service means twelve (12) months of Service. For
purposes of determining an Employee's Years of Service for
vesting purposes, an Employee shall receive credit for the
aggregate of all time periods commencing on an Employee's
Employment Commencement Date, including the Re-Employment
Commencement Date, and ending on the date a Break in
Service begins. An Employee also shall receive credit for
any Period of Severance of less than twelve (12) consecutive
months. Fractional periods of a year shall be expressed in
terms of months, with credit for a month of service being
given for each thirty (30) days of Elapsed Time. In computing
an Employee's Years of Service, the following rules shall
apply:
(i) For an Employee who terminates employment and is
subsequently re-employed after incurring a Break in
Service, Service prior to the Break in Service shall
be taken into account immediately upon re-employment.
(ii) For a Participant who terminates employment and who
subsequently is re-employed after incurring five (5)
consecutive Breaks in Service, Years of Service after
the Break in Service shall not be taken into account
for purposes of determining the Nonforfeitable
percentage of an Employee's Account Balance derived
from Employer Contributions which accrued before the
Break in Service.
(iii) For a Participant who terminates employment without
any vested right to his Discretionary Employer
Contribution Account or Matching Employer
Contribution Account and who is re-employed after a
Break in Service, Service before the Break in Service
shall be taken into account for purposes of
determining the Nonforfeitable percentage of an
Employee's Account Balance derived from Employer
Contributions which accrue after the Break in
Service.
(iv) Years of Service, for purposes of vesting, shall
include all Years of Service of the Employee with any
Predecessor Employer.
(v) Years of Service with the Employer before a
Participant enters the Plan shall be considered for
purposes of vesting.
(vi) If the Employer is a member of a group of Related
Employers, then Year of Service for purposes of
vesting shall include Service with any Related
Employer.
(vii) For purposes of determining Years of Service for
vesting, the following definitions shall apply:
(A) Employment Commencement Date means the date on
which an Employee is first entitled to credit
for an Hour of Service.
(B) Period of Severance means the period of time
commencing on the Severance from Service Date
and ending on the date on which the Employee
again performs an Hour of Service for the
Employer.
(C) Re-Employment Commencement Date means the first
date, following a Period of Severance which is
not required to be considered under the Service
rules, on which the Employee performs an Hour
of Service for the Employer.
(D) Severance from Service Date means the date on
which occurs the earlier of: (i) the date on
which an Employee quits, retires, is discharged
or dies; or (ii) the first anniversary of the
first date of a period in which an Employee
remains absent from Service, with or without
pay, with the Employer for any other reason,
such as vacation, holiday, sickness,
disability, leave of absence or layoff.
(c) For purposes of vesting, an Employee's years of service
with W & B Refrigeration Service Co., Inc. shall be counted
as Years of Service under this Plan to the extent that such
service was counted as years of service under the W & B
Refrigeration Service Co., Inc. Employees' Profit Sharing
Plan and Trust.
(d) For purposes of determining vesting of a Participant's ESOP
Transfer Account, the Service crediting provisions of
Section 2.56 of the Plan shall apply.
(e) The terms defined in this Section 2.68 shall include Years
of Service performed by an Employee prior to the Effective
Date."
2. Section 6.3 of the Plan is amended to hereafter be and read as
follows:
"6.3 Computation of Years of Service for Vesting.
(a) General. For purposes of computing a Participant's or
Former Participant's Vested Percentage of his Discretionary
Employer Contribution Account, Matching Employer
Contribution Account, and ESOP Transfer Account, each
Participant or Former Participant shall be credited with
all Years of Service to which he is entitled pursuant to
Section 2.68.
(b) Forfeitures. When a Participant has Separated from
Service, his Matching Employer Contribution, Discretionary
Employer Contribution, and ESOP Transfer Accounts shall be
divided into two portions, one representing the vested
portion, and the other representing the forfeiture portion,
of such accounts. Such accounts shall continue to receive
income allocations pursuant to Section 5.2 until
distributed in full. A Participant shall forfeit the
forfeiture portion of his Matching Employer Contribution,
Discretionary Employer Contribution, and ESOP Transfer
Accounts on the earlier of the date on which the
Participant incurs five (5) consecutive one year Breaks-in-
Service or the date on which the Participant receives a
Cashout Distribution. A "Cashout Distribution" means a lump
sum distribution pursuant to Section 11.1 that occurs
concurrently with or at any time subsequent to the date on
which the Participant separates from Service. For purposes
of this Section, a Participant who separates from Service
without a nonforfeitable percentage in the Participant's
Matching Employer Contribution, Discretionary Employer
Contribution, and ESOP Transfer Accounts shall be deemed to
have received a distribution of such Accounts on the date
of separation from Service, or if the Participant is
entitled to an allocation of Matching Employer
Contributions for the Plan Year in which he separates from
Service, on the last day of that Plan Year. The amount
forfeited under this Section shall remain in the Trust Fund
and shall be allocated as provided in Section 5.5.
(c) Benefit Accruals and Repayments.
(i) For purposes of determining a Participant's Vested
Percentage under the Plan, the Plan will disregard
service performed by the Participant with respect to
which he has received a distribution if the present
value of his entire Vested Percentage of such
distribution was not more than $5,000. This
paragraph (i) shall apply, however, only if such
distribution was made on termination of the
Participant's participation in the Plan.
(ii) For purposes of determining a Participant's Vested
Percentage under the Plan, the Plan will not
disregard service as provided in paragraph (c)(i)
above if the Participant repays the full amount of
the distribution described in such paragraph (c)(i).
Upon such repayment, the Participant's account
balance prior to the distribution will be restored
(unadjusted by any gains or losses between the time
of distribution and the time of repayment) and his
Vested Percentage will be recomputed by taking into
account service so disregarded. This paragraph (ii)
shall apply, however, only in the case of a
Participant who --
(A) resumes employment before the date on which he
would have incurred five (5) consecutive
Breaks-in-Service; and
(B) repays the full amount of such distribution
before the date on which he would have incurred
five (5) consecutive Breaks-in-Service.
The Employer will make a special restoration contribution
to the Plan in order to restore any account balances hereunder.
For purposes of Plan Section 5.6 and Code Section 415(c),
the repayment by the Participant and the restoration will
not be treated as "annual additions.""
3. Section 10.1(a)(i)(C) of the Plan is amended to hereafter be and
read as follows:
"(C) In addition to the conditions above, any hardship
withdrawal to a Participant made pursuant to this
Section shall be increased by an amount equal to the
lesser of:
(1) all federal, state, and local income taxes and
associated penalties (including, if applicable,
the additional income tax described in Code
Section 72(t) imposed with respect to such
hardship withdrawal); or
(2) the amount, if any, in such Participant's
Savings Account in excess of such hardship
withdrawal."
4. Effective January 1, 1999, Section 11.5(b)(i) of the Plan is
amended as underlined to hereafter be and read as follows:
"(i) An eligible rollover distribution is any distribution
of all or any portion of the balance to the credit of
the distributee, except that an eligible rollover
distribution does not include: any distribution that
is one of a series of substantially equal periodic
payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or
the joint lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution
is required under Code Section 401(a)(9); the portion of
any distribution that is not includable in gross income
(determined without regard to the exclusion for net
unrealized appreciation with respect to Employer Securities);
and, effective January 1, 1999, hardship distributions
made pursuant to Section 10.1(a)(i)."
IN WITNESS WHEREOF, FROZEN FOOD EXPRESS INDUSTRIES, INC. has caused
this First Amendment to be executed on this 22 day of June, 2001,
effective as of January 1, 2001, by the undersigned duly appointed and
authorized officer.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
-----------------------------------------
By: /s/ Stoney M. Stubbs, Jr.
------------------------------------
Name: Stoney M. Stubbs, Jr.
------------------------------------
Title: President and Chairman of the Board
------------------------------------
Third Amendment to
Frozen Food Express Industries, Inc.
401(k) Savings Plan
This Amendment is adopted by Frozen 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 (the "Plan") for the benefit
of those employees who qualify thereunder and for their beneficiaries;
and
WHEREAS, the Company desires to amend the Plan to provide,
effective January 1, 2001, that the Plan Administrator shall be the
Company;
NOW, THEREFORE, pursuant to Section 15.1 of the Plan, the following
amendment is hereby made and shall be effective January 1, 2001:
Section 2.3 of the Plan is amended to hereafter be and read as follows:
"2.3 Administrator.
Administrator means the Company, unless the Company
designates another person to hold the position of
Administrator by written action."
IN WITNESS WHEREOF, FROZEN FOOD EXPRESS INDUSTRIES, INC. has caused
this Third Amendment to be executed on this 31 day of October, 2001,
effective as of January 1, 2001, by the undersigned duly appointed and
authorized officer.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
------------------------------------------
By: /s/ Stoney M. Stubbs, Jr.
-----------------------------------
Name: Stoney M. Stubbs, Jr.
-----------------------------------
Title: President and Chairman of the Board
-----------------------------------
Fourth Amendment to
Frozen Food Express Industries, Inc.
401(k) Savings Plan
This Amendment is adopted by Frozen 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 (the "Plan") for the benefit
of those employees who qualify thereunder and for their beneficiaries;
and
WHEREAS, the Company desires to amend the Plan to provide,
effective November 1, 2001, that employer matching contributions to the
Plan will equal fifty percent (50%) of each participant's savings
contribution for each payroll period that does not exceed four percent
(4%) of such participant's compensation for the payroll period; and
WHEREAS, the Company desires to further amend the Plan to provide,
effective November 1, 2001, that employer matching contributions to the
Plan will be made in Company Stock (as defined in the Plan), not cash;
NOW, THEREFORE, pursuant to Section 15.1 of the Plan, Section
4.2(a) of the Plan is amended as underlined to be and read as follows,
effective November 1, 2001:
"(a) Matching Employer Contributions. In addition to the
total amount of Savings Contributions elected for
each month pursuant to Section 4.1, but subject to
the limits of Section 4.2(c), each Employer shall, as
a Matching Employer Contribution to the Plan, pay to
the Trustee for each calendar quarter an amount equal
to fifty percent (50%) of each Participant's Savings
Contributions for each payroll period pursuant to
Section 4.1 hereof which does not exceed four percent
(4%) of his Compensation for such payroll period.
Matching Employer Contributions shall be made in
Company Stock in accordance with the closing market
price on the business day immediately preceding the
day such Contributions are made. In accordance with
Section 7.2(a), such Contributions may be re-invested
by the Trustee in accordance with Participant
direction."
IN WITNESS WHEREOF, FROZEN FOOD EXPRESS INDUSTRIES, INC. has caused
this Fourth Amendment to be executed on this 31 day of October 2001,
effective as of November 1, 2001, by the undersigned duly appointed and
authorized officer.
FROZEN FOOD EXPRESS INDUSTRIES, INC.
------------------------------------------
By: /s/ Stoney M. Stubbs, Jr.
-----------------------------------
Name: Stoney M. Stubbs, Jr.
-----------------------------------
Title: President and Chairman of the Board
-----------------------------------