Exhibit 10 (c).3
RESTRICTED STOCK AGREEMENT
(LONG TERM INCENTIVE)
BETWEEN
FLORIDA EAST COAST INDUSTRIES, INC.
AND
XXXXXX XXXXXXXXX
DATED: MARCH 28, 2005
THIS AGREEMENT dated March 28, 2005, by and between Florida East Coast
Industries, Inc. (the "Corporation"), and Xxxxxx Xxxxxxxxx (the "Employee").
The parties agree as follows:
1. Grant of Restricted Stock. The Corporation hereby grants to the
Employee, subject to the terms and conditions herein set forth, Eighty
Thousand (80,000) shares of the Corporation's Common Stock (the
"Restricted Stock").
2. Terms and Conditions. The Restricted Stock is subject to the
following terms and conditions:
(a) Limited Nontransferability. This Restricted Stock shall be
nontransferable during the term of the Restrictions (as hereinafter set
forth) except by will or by the laws of descent and distribution.
(b) Restrictions and Lapse of Restrictions. The Restricted
Stock shall be subject to the Employee's continued employment by the
Corporation or a parent or subsidiary corporation (the "Restrictions"),
which restrictions shall lapse in equal amounts on each of the first
three anniversary dates of the Effective Date of Employee's Employment
Agreement.
Notwithstanding the foregoing, (i) upon the occurrence of a termination
without Cause (including by reason of death or Disability (as defined
in Employee's Employment Agreement)) or Resignation with Good Reason
(in each case as defined in the Employee's Employment Agreement) or
(ii) if Employee's employment is terminated without cause or Employee
resigns with Good Reason (in each case as defined in the Change in
Control Agreement) within the time periods set forth in such Change in
Control Agreement and due to such Change in Control, all Restrictions
shall lapse upon the effective date of the termination or resignation.
3. Forfeiture of Restricted Stock Upon Termination of Employment. The
rights of the Employee and his successors in interest in Restricted
Stock on which the Restrictions have not lapsed pursuant to paragraph
2(b) shall terminate in full when the Employee's employment with the
Corporation or a parent or subsidiary corporation is terminated by the
Corporation for Cause (as defined in the Employment Agreement or the
Change in Control Agreement), or by the Employee without Good Reason
(as defined in the Employment Agreement or the Change in Control
Agreement).
4. Dividends/Distributions. The Corporation shall pay to the Employee any
dividends or other distributions payable with respect to the Restricted
Stock, notwithstanding the Restrictions, beginning on the date hereof
but not beyond the date of any forfeiture thereof pursuant to the
provisions of paragraph 3.
5. Withholding. The Employee agrees to make arrangements satisfactory
to the Corporation to comply with any income tax withholding
requirements that may apply upon the lapse of the Restrictions on the
Restricted Stock. The Employee will be entitled to elect to satisfy his
tax withholding obligation by the withholding by the Corporation, at
the appropriate time, of shares of the Corporation's Common Stock from
the Restricted Stock in a number sufficient, based upon the fair market
value (as defined below) of such Common Stock on the relevant date or
by tendering shares already owned by the Employee for at least six
months to satisfy such tax withholding requirements. For purposes of
this Agreement, "fair market value" means, as of any given date, the
closing price of the Corporation's Common Stock on such date as quoted
in the NYSE Composite Transactions Report in the Wall Street Journal.
If there were no sales
2
reported as of a particular date, fair market value will be computed as
of the last date preceding such date on which a sale was reported.
6. Delivery of Certificates. The Corporation may delay delivery of the
certificate for shares granted hereunder until (i) the admission of
such shares to listing on any stock exchange on which the Corporation's
Common Stock may then be listed, (ii) completion of any registration or
other qualification of such shares under any state or federal law
regulation that the Corporation's counsel shall determine as necessary
or advisable, and (iii) receipt by the Corporation of advice by counsel
that all applicable legal requirements have been complied with.
7. Dispute Resolution. Any dispute or controversy arising under or in
connection with this Agreement shall be settled in accordance with the
dispute resolution provisions of the Employment Agreement, including
the provisions relating to attorney's fees.
8. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, without reference to
principles of conflict of laws. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect. This
Agreement may not be amended or modified otherwise than by a written
agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) This Agreement, the Employment Agreement and the Change in
Control Agreement constitute the entire agreement between the parties
with respect to the subject matter hereof. In the event of any
inconsistency between the provisions of this Agreement and the
provisions of the Plan, the provisions of this Agreement shall govern.
3
(c) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, or by telecopier, or by courier, address as follows: If to the
Employee to: to the last address on the records of the Corporation and
if to the Corporation to: Xxx Xxxxxx Xxxxxx; Xx. Xxxxxxxxx, Xxxxxxx
00000; Attention: Corporate Secretary; Facsimile: 000-000-0000 or to
such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(d) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
(e) The Employee's or the Corporation's failure to insist upon
strict compliance with any provision hereof or any other provision of
this Agreement or the failure to assert any right the Employee or the
Corporation may have hereunder, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this
Agreement.
FLORIDA EAST COAST INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
Chairman, Compensation Committee
Agreed and Accepted:
/s/ Xxxxxx Xxxxxxxxx
---------------------------
Xxxxxx Xxxxxxxxx
4