FFEX Frozen Food Express Industries, Inc. (MM)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE TO

Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934

(Amendment No. 5)

Frozen Food Express Industries, Inc.

(Name of Subject Company)

DUFF BROTHERS CAPITAL CORPORATION

Owned by: the Thomas Milton Duff Amended and Restated Trust Agreement and

the James Ernest Duff Amended and Restated Trust Agreement

and controlled by Thomas Milton Duff and James Ernest Duff

(Name of Filing Persons [Offerors])

COMMON STOCK, $1.50 PAR VALUE

(Title of Class of Securities)

359360104

(CUSIP Number of Class of Securities)

Thomas Milton Duff

529 Industrial Park Rd.

Columbia, MS 39429

(601) 424-3210

(Name, address, and telephone number of person authorized to receive notices and communications on behalf of filing persons)

Copies to:

Ralph S. Janvey, Esq.

Krage & Janvey, L.L.P.

2100 Ross Avenue

Suite 2600

Dallas, TX 75201

(214) 397-1912

Calculation of Filing Fee

*  Estimated solely for purposes of determining the amount of the filing fee. The transaction valuation was determined by multiplying (a) $2.10, the offer price per share by (b) the sum of: (i) 17,126,094, which is equal to the number of issued and outstanding shares of Frozen Food Express Industries, Inc. common stock (and unvested restricted stock) (18,175,818) minus the shares beneficially owned in the aggregate by the Filing Persons (1,050,124); and (ii) 277,000, the number of shares of Frozen Food Express Industries, Inc. common stock issuable by Frozen Food Express Industries, Inc. pursuant to the exercise of outstanding stock options under Frozen Food Express Industries, Inc.’s stock option plans .  The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for Fiscal Year 2013, issued August 31, 2012, by multiplying the transaction value by 0.0001364.

x   Check the box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid.  Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

o   Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

x   third-party tender offer subject to Rule 14d-1.

o   issuer tender offer subject to Rule 13e-4.

o   going-private transaction subject to Rule 13e-3.

o   amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer:  o

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

o   Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

o   Rule 14d-1(d) (Cross-Border Third Party Tender Offer)

This Amendment No. 5 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO relating to Frozen Food Express Industries, Inc., a Texas corporation (“FFE”) (together with any subsequent amendments and supplements thereto, the “Schedule TO”) filed by Duff Brothers Capital Corporation, a Texas corporation (“Purchaser”).  Purchaser is owned by the Thomas Milton Duff Amended and Restated Trust Agreement and the James Ernest Duff Amended and Restated Trust Agreement.  The Purchaser’s owners are controlled by Thomas Milton Duff and James Ernest Duff as trustee of the respective trust bearing their name.  Together, the Purchaser, the Thomas Milton Duff Amended and Restated Trust Agreement, the James Ernest Duff Amended and Restated Trust Agreement, Thomas Milton Duff, and James Ernest Duff are the Filing Persons of this Schedule TO and the Bidders.  This Schedule TO relates to the offer by the Purchaser to purchase all of the shares of common stock not already owned by its control persons, $1.50 par value per share (the “Shares”), of FFE that are issued and outstanding, at a price of $2.10 per Share, net to the sellers in cash (the “Offer Price”), without interest, less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 22, 2013 (the “Disclosure Document”), and in the related letter of transmittal, copies of which are attached as Exhibits (a)(1)(i) and (a)(1)(ii) to the Schedule TO (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).

All information contained in the Disclosure Document and the related letter of transmittal, including all schedules thereto, is hereby incorporated herein by reference in response to Items 1 through 9 and Item 11 in this Schedule TO.

This Amendment No. 5 is being filed to amend and supplement Item 11 as reflected below.

Item 11. Additional Information

Section 17—“Certain Legal Matters; Regulatory Approvals - Litigation” of the Disclosure Document is amended to add the following disclosures:

On August 6, 2013, a new complaint captioned Smith v. Armstrong , Cause No. DC-13-08585, was filed in the 95 th  Judicial District Court of Dallas County, Texas (the “Smith Litigation”).  The Smith Litigation was removed to the United State District Court, Northern District of Texas on August 7, 2013.  The Smith Litigation was filed against the individual members of the FFE board of directors, Purchaser, and Merger Sub.  It generally alleges, among other things, that the members of the FFE board of directors breached their fiduciary duties by failing to take steps to maximize the value to be paid to FFE’s shareholders, putting their personal interests ahead of the interests of FFE, using allegedly unfair deal protection devices, and by making materially inadequate disclosures and material disclosure omissions.  It alleges that FFE, Purchaser, and Merger Sub aided and abetted the alleged breaches of fiduciary duties.  The plaintiff in the Smith Litigation generally seeks, among other relief, declaratory and injunctive relief prohibiting consummation of the proposed Offer and Merger, rescission of the proposed Offer and Merger if consummated prior to final judgment, attorneys’ fees and expenses, and other forms of relief.  FFE has appointed a Special Litigation Committee to investigate the derivative claims and has filed to stay the proceedings.

On August 7, 2013, the same local counsel that represented Mr. Wheeler, Mr. Britvich, and Mr. Herrley filed a new putative class action complaint captioned Wallis v. Frozen Food Express Industries, Inc ., Civ. No. 3:13-cv-3104 in the United States District Court, Northern District of Texas (the “Wallis Litigation”).  The Wallis Litigation was filed against FFE, the individual members of the FFE board of directors, Purchaser, and Merger Sub.  The Wallis Litigation generally alleges, among other things, that the members of the FFE board of directors breached their fiduciary duties by failing to take steps to maximize the value to be paid to FFE’s shareholders, putting their personal interests ahead of the interests of FFE, avoiding competitive bidding by providing Purchaser with an unfair advantage, and by making materially inadequate disclosures and material disclosure omissions.  The Wallis Litigation also alleges that the FFE board members issued a solicitation/recommendation statement on Schedule 14D-9 (the “Recommendation Statement”) that violates Sections 14(d)(4) and 14(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), because it allegedly omits or misrepresents material facts and alleges that the FFE board members violated Section 20(a) of the Exchange Act with respect to the allegedly misleading Recommendation Statement.  The

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Wallis Litigation also alleges claims for aiding and abetting such alleged breaches of fiduciary duties against FFE, Purchaser, and Merger Sub.  The plaintiff in the Wallis Litigation generally seeks, among other relief, declaratory and injunctive relief prohibiting consummation of the proposed Offer and Merger, rescission of the proposed Offer and Merger if consummated prior to final judgment, damages and attorneys’ fees and expenses, and other forms of relief.  FFE has appointed a Special Litigation Committee to investigate the derivative claims and has filed to stay the proceedings.

On August 8, 2013, FFE and the FFE board members filed a Motion to Dismiss the Herrley Litigation.  The Court has yet to rule on the Motion to Dismiss and various other motions to stay or expedite the proceedings.

Purchaser and Merger Sub believe the Plaintiffs’ allegations in the above lawsuits lack merit and intend to contest them vigorously; however, there can be no assurance that Purchaser and Merger Sub will be successful in their defense.

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete, and correct.

Dated August 13, 2013

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