STOCK PURCHASE AGREEMENT
dated as of
August 4, 2004
between
FLORIDA EAST COAST INDUSTRIES, INC.
and
XXXXXX X. XXXXXX TESTAMENTARY TRUST
and
THE NEMOURS FOUNDATION
relating to the purchase and sale
of
SHARES OF COMMON STOCK
of
FLORIDA EAST COAST INDUSTRIES, INC.
STOCK PURCHASE AGREEMENT
AGREEMENT dated as of August 4, 2004 between Florida East Coast
Industries, Inc., a Florida corporation ("BUYER"), and Xxxxxx X. xxXxxx
Testamentary Trust ("TRUST") and the Nemours Foundation ("FOUNDATION")
(collectively "SELLER").
W I T N E S S E T H:
WHEREAS, Seller desires to sell to Buyer 5,500,000 shares of the
Buyer's Common Stock, no par value, beneficially owned by the Seller (the
"SHARES"), and Buyer desires to purchase the Shares from Seller, upon the terms
and subject to the conditions hereinafter set forth;
The parties hereto agree as follows:
ARTICLE 1
PURCHASE AND SALE
Section 1.01 . Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Shares at the Closing as follows: 2,316,657 Shares
to be acquired from the Foundation and 3,183,343 Shares to be acquired from the
Trust. The purchase price for the Shares (the "PURCHASE PRICE") is $34.50 per
share totaling One Hundred Eighty Nine Million, Seven Hundred Fifty Thousand
Dollars ($189,750,000) in the aggregate in cash. The Purchase Price shall be
paid as provided in Section 1.02.
Section 1.02 . Closing. The closing (the "CLOSING") of the purchase and
sale of the Shares hereunder shall occur on August 13, 2004, after satisfaction
of the conditions set forth in Article 6, or at such other time or place as
Buyer and Seller may agree. At the Closing:
(a) Buyer shall deliver to Seller in immediately available
funds by wire transfer to one or more accounts of Seller with a bank(s)
designated by Seller the following amounts: Seventy Nine Million, Nine
Hundred Twenty Four Thousand, Six Hundred Sixty Six Dollars and Fifty
cents ($79,924,666.50) to the Foundation and One Hundred Nine Million,
Eight Hundred Twenty Five Thousand, Three Hundred Thirty Three Dollars
and Fifty cents ($109,825,333.50) to the Trust by notice to Buyer,
which notice shall be delivered not later than two Business Days prior
to the Closing Date (or if not so designated, then by certified or
official bank check payable in immediately available funds to the order
of Seller in such amount) and:
(b) Seller shall deliver to Buyer certificates for the Shares
duly endorsed or accompanied by stock powers duly endorsed in blank,
with any required transfer stamps affixed thereto.
ARTICLE 2
BOARD REPRESENTATION
After the Closing Seller will beneficially own 3,085,930 shares of the
Common Stock of the Buyer. Seller agrees that, effective no later than August
20, 2004, all of Seller's representatives on the Buyer's Board of Directors
(Messrs. Xxxxxxxx, Xxxxxx and Lord) shall resign.
ARTICLE 3
LOCKUP
The Seller hereby agrees that it will not, during the period from the
date of the Closing and ending January 1, 2005, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise.
The restrictions contained in this preceding paragraph shall not apply
to (A) the Shares sold hereunder, or (B) the sale by the Seller of shares of
Common Stock to the Company. Section 3.01 of Article 3 of the Shareholders
Agreement dated as of October 26, 1999 among Xxxxxx X. xxXxxx Testamentary
Trust, Nemours Foundation and Florida East Coast Industries, Inc. is hereby
amended to reduce the number of Demand Registrations from three to one, which
Demand Registration shall not be available until January 1, 2005.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof and as of
the Closing Date that:
Section 4.01. Authorization. The execution, delivery and performance by
Seller of this Agreement and the consummation of the transactions contemplated
hereby are within Seller's powers and have been duly authorized by all necessary
action on the part of Seller. This Agreement constitutes a valid and binding
agreement of Seller.
Section 4.02. Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
governmental body, agency or official other than (i) compliance by the Seller
with any applicable requirements of the Securities Exchange Act of 1934, and
(ii) compliance with other regulatory approvals required for Seller.
Section 4.03. Noncontravention. The execution, delivery and performance
by Seller of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate any instruments governing
the creation or operation of Seller, (ii) assuming compliance with the matters
referred to in Section 4.02, violate any applicable law, rule, regulation,
judgment, injunction, order or decree, (iii) require any consent or other action
by any Person.
Section 4.04. Ownership of Shares. Seller is the record and beneficial
owner of the Shares, free and clear of any mortgage, lien, pledge, charge,
security interest, encumbrance or other adverse claim of any kind (a "LIEN") and
any other limitation or restriction (including any restriction on the right to
vote, sell or otherwise dispose of the Shares), and will transfer and deliver to
Buyer at the Closing valid title to the Shares free and clear of any Lien and
any such limitation or restriction.
Section 4.05. Litigation. There is no action, suit, investigation or
proceeding (or any basis therefor) pending against, or to the knowledge of
Seller, threatened against or affecting, Seller, which in any manner challenges
or seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
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Section 4.06. Finders' Fees. Except for Xxxxxxxx Xxxxxxx of Wachovia
Securities whose fees will be paid by Seller, there is no investment banker,
broker, finder or other intermediary which has been retained by or is authorized
to act on behalf of Seller who might be entitled to any fee or commission from
Buyer in connection with the transactions contemplated by this Agreement.
Section 4.07. Adequate Information; Non-reliance. Buyer has made
available to Seller all information regarding the Buyer and the business,
financial conditions, or results of operation of the Buyer in order to make an
informed decision with regard to the sale of the Shares. Seller acknowledges
that (i) Buyer necessarily possesses information relating to Buyer which is not
available to Seller, any or all of which may be material and (ii) Seller is not
relying on any disclosure of any such information to Seller.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as of the date hereof and as of
the Closing Date that:
Section 5.01. Corporate Existence and Power. Buyer is a corporation
duly incorporated, validly existing and in good standing under the laws of
Florida.
Section 5.02. Corporate Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby are within the corporate powers of Buyer and have been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement constitutes a valid and binding agreement of Buyer.
Section 5.03. Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby require no material action by or in respect of, or material
filing with, any governmental body, agency or official.
Section 5.04. Noncontravention. The execution, delivery and performance
by Buyer of this Agreement and the consummation of the transactions contemplated
hereby do not and will not violate the articles of incorporation or bylaws of
Buyer or Florida Business Corporation Act or any applicable law, rule,
regulation, judgment, injunction, order or decree or require any consent or
other action by any person.
Section 5.05. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Buyer threatened against or
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affecting, Buyer before any court or arbitrator or any governmental body, agency
or official which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
Section 5.06. Finders' Fees. Except for Xxxxxx Xxxxxxx and The
Blackstone Group whose fees will be paid by Buyer, there is no investment
banker, broker, finder or other intermediary which has been retained by or is
authorized to act on behalf of Buyer who might be entitled to any fee or
commission from Seller or any of its Affiliates upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 6
CONDITIONS TO CLOSING
Section 6.01. Conditions to Obligation of Buyer. The obligation of
Buyer to consummate the Closing is subject to the satisfaction of the following
conditions:
(a) (i) Seller shall have performed in all material respects all of its
obligations hereunder required to be performed by it on or prior to the Closing
Date and, (ii) the representations and warranties of Seller contained in this
Agreement shall be true in all material respects at and as of the Closing Date
as if made at and as of such date.
(b) There shall not be threatened, instituted or pending any action or
proceeding by any person before any court or governmental authority or agency,
domestic or foreign, seeking to restrain, prohibit, challenge the fairness of or
otherwise interfere with the purchase of the Shares.
Section 6.02. Conditions to Obligation of Seller. The obligation of
Seller to consummate the Closing is subject to the satisfaction of the following
conditions:
(a) (i) Buyer shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the Closing
Date and, (ii) the representations and warranties of Buyer contained in this
Agreement shall be true in all material respects at and as of the Closing Date
as if made at and as of such date.
(b) There shall not be threatened, instituted or pending any action or
proceeding by any person before any court or governmental authority or agency,
domestic or foreign, seeking to restrain, prohibit, challenge the fairness of or
otherwise interfere with the purchase of the shares.
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ARTICLE 7
MISCELLANEOUS
Section 7.01. Termination. This Agreement may be terminated by either
Buyer or Seller if the Closing shall not have been consummated on or before
August 31, 2004.
Section 7.02. Expenses. Except as otherwise provided herein, all costs
and expenses incurred in connection with this Agreement shall be paid by the
party incurring such cost or expense.
Section 7.03. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of Florida, without regard to
the conflicts of law rules of such state.
Section 7.04. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in the United States District Court for the
Middle District of Florida or the Circuit Court of Florida sitting in Xxxxx
County, so long as one of such courts shall have subject matter jurisdiction
over such suit, action or proceeding, and that any cause of action arising out
of this Agreement shall be deemed to have arisen from a transaction of business
in the State of Florida, and each of the parties hereby irrevocably consents to
the jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of the venue of any such suit, action or proceeding in any such
court or that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within or
without the jurisdiction of any such court.
Section 7.05. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 7.06. Counterparts; Effectiveness; Third Party Beneficiaries.
This Agreement may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by all of the
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other parties hereto. Until and unless each party has received a counterpart
hereof signed by the other party hereto, this Agreement shall have no effect and
no party shall have any right or obligation hereunder (whether by virtue of any
other oral or written agreement or other communication). No provision of this
Agreement is intended to confer any rights, benefits, remedies, obligations, or
liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
Section 7.07. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements and understandings, both oral and
written, between the parties with respect to the subject matter of this
Agreement.
Section 7.08. Specific Performance. The parties hereto agree that
irreparable damage would occur if any provision of this Agreement were not
performed in accordance with the terms hereof and that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
or to enforce specifically the performance of the terms and provisions hereof,
in addition to any other remedy to which they are entitled at law or in equity.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
FLORIDA EAST COAST INDUSTRIES, INC.
BY:
---------------------------------
Name:
Title:
XXXXXX X. XXXXXX TESTAMENTARY TRUST
BY:
---------------------------------
Name:
Title:
THE NEMOURS FOUNDATION
BY:
---------------------------------
Name:
Title:
