Ex-10(p)



 







Exhibit 10(p)




RESTRICTED STOCK AGREEMENT




(Long Term Incentive)




between




FLORIDA EAST COAST INDUSTRIES, INC.




and




Jorgé San Miguel




Dated: May 3, 2006




 









 





     THIS AGREEMENT dated May 3, 2006, by and between Florida East Coast Industries, Inc. (the
“Corporation”), and Jorgé San Miguel (the “Employee”).



     The parties agree as follows:



     1. Grant of Restricted Stock. Under the Corporation’s 2002 Stock Incentive Plan (as
amended and restated effective June 2, 2005) (the “Plan”), the Corporation hereby grants to the
Employee, subject to the terms and conditions herein set forth, Seventy Thousand Six Hundred Fifty
Eight (70,658) 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. Prior to the date that restrictions lapse,
Restricted Stock shall not be sold, pledged, assigned, hypothecated, transferred or disposed of in
any manner other than by will or by the laws of descent or distribution.




          (b) (i) 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 with respect to (i) twenty-five
percent (25%) of the Restricted Stock on the first anniversary of the date hereof and (ii) the
remaining seventy-five percent (75%) of the Restricted Stock on the third anniversary of the date
hereof. Notwithstanding the foregoing, upon the occurrence of a termination without Cause or for
Good Reason both as defined herein (i) prior to the first anniversary of the date hereof, the
restrictions shall lapse with respect to twenty-five percent (25%) of the Restricted Stock and (ii)
after the first anniversary of the




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date hereof, the restrictions shall lapse pro rata from the date
of this Agreement to the date of termination provided that if a termination occurs after the first
anniversary of the date hereof, the additional number of shares that will vest pro rata shall be
calculated based on the original number of shares granted hereunder without regard to whether
any such shares granted were previously vested and the number of additional shares that vest
on termination will be reduced by the number of shares previously vested.




          By way of example, if 1,000 shares were granted and termination occurs on the second
anniversary, the pro rata amount which would vest upon termination is 416 (666 pro rata vesting
minus 250 shares which vested on the first anniversary.)




          Upon the occurrence of a termination by reason of death or disability (as defined herein), the
restrictions shall lapse with respect to any restrictions as of the date of termination.




     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 (“Corporation”) is terminated by the Corporation
for Cause or by the Employee for any reason other than death, Disability or Good Reason.



     4. No Employment Rights. Nothing in this Agreement will confer upon the employee any
right to continue in the employ or service of the Corporation or any of its subsidiaries or affect
the right of the Corporation to terminate the employment of the employee at any time.



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     5. 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.



     6. 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 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.



     7. Delivery of Certificates. The Company does not intend to issue stock certificates
for the shares referenced in paragraph 2(b)(i). The shares of common stock will exist in book
entry format with Wachovia Bank, NA (the Company’s transfer agent). Once restrictions lapse, the
following alternatives will be available to the Employee through the Director of Human Resources of
the Corporation:



          (a) Request the transfer agent send a certificate for the
unrestricted shares

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          (b) Request the transfer agent send the shares electronically to a brokerage account
designated by Employee




     8. Dispute Resolution. Any dispute or controversy arising under or in connection with
this Agreement shall be settled by binding arbitration, which shall be the sole and exclusive
method of resolving any questions, claims or other matters arising under this Agreement. Such
arbitration shall be conducted in Miami, Florida under the then-prevailing Commercial Arbitration
Rules of the American Arbitration Association (“AAA”) to:



       (a) appoint an arbitrator experienced and knowledgeable concerning the
matter then in dispute;




       (b) require the testimony to be transcribed;




       (c) require the award to be accompanied by findings of fact and a statement
of reasons for the decision; and




       (d) request the matter to be handled by and in accordance with the
expedited procedures provided for in the Commercial Arbitration Rules.



The determination of the arbitrators, which shall be based upon de novo interpretation of this
Agreement, shall be final and binding and judgment may be entered on the arbitrator’s award in any
court having jurisdiction.




     9. Recapitalization. The Corporation hereby confirms that in the event the
outstanding shares of Common Stock of the Corporation shall be changed into an increased number of
shares, through a stock dividend or a split-up of shares, or into a decreased number of shares,
through a combination of shares, then immediately after the



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record date for such change, the number
of shares then subject to this Agreement shall be proportionately increased, in case of such stock
dividend or split-up of shares, or proportionately decreased, in case of such combination of
shares.




     10. 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 constitutes 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.
	 
	 	(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 facsimile,
or by overnight mail, addressed as follows:





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	 	If to the Employee to:
	 	If to the Corporation to:
	 
	 	 	 	 
	 

	 	Jorge San Miguel
	 	Florida East Coast Industries, Inc.
	 

	 	123 E. Enid Dr.
	 	One Malaga Street
	 

	 	Key Biscayne, FL 33149
	 	St. Augustine, FL 32084
	 

	 	 	 	Attn: Secretary
	 

	 	 	 	Facsimile: 904/826-2379





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.





     11. Definitions.



          (a) Cause. For purposes of this Agreement “Cause” means:




                    (i) a material breach by the Employee of the obligations under this agreement or any other
written agreement with the Company or (b) a failure to attempt in good faith to perform the
Employee’s duties and responsibilities (other than as a result of incapacity
due to physical or mental illness), which is demonstrably willful and deliberate on the
Employee’s part provided that such breach or failure is not



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remedied within ten (10) days after
receipt of notice from the Company specifying such breach or failure;




                    (ii) the Employee’s conviction for committing a felony or the guilty or nolo contendere plea
by the Employee to a felony (other than as a result of vicarious liability where the Employee was
not involved in and had no material knowledge of the action or inactions leading to the charges or
had such involvement or knowledge but acted upon advise of the Corporation’s counsel as to its
legality);



                    (iii) the (a) insubordination or willful engaging by the Employee in misconduct or (b) the
Employee’s gross negligence, in either case, with regard to the Corporation or the Employee’s
duties, which have, or is likely to have, a material adverse impact on the Corporation; or



                    (iv) a material act of dishonesty or breach of trust on the Employee’s part resulting or
intending to result, directly or indirectly, in material personal or family gain or enrichment at
the expense of the Employer.



     For purposes of this paragraph, no act, or failure to act, on the Employee’s part shall be
considered “willful” unless done or omitted to be done, by the Employee not in good faith and
without reasonable belief that the Employee’s action or omission was in the best interests of the
Corporation. In the event that the Employee alleges that the failure to attempt to perform the
Employee’s duties and responsibilities is due to a physical or mental illness, and thus not “Cause”
as defined above, the Employee shall be required to furnish the Corporation with a written
statement from a licensed physician who is reasonably acceptable to the Corporation which confirms
the Employee’s inability to attempt to perform due to such physical or mental illness.



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     (b) Disability. For purposes of this Agreement, “Disability” shall mean the absence
of the Employee from the Employee’s duties with Corporation on a full-time basis for one hundred
eighty (180) consecutive business days as a result of incapacity due to mental or physical illness
which is determined to be total and permanent by a physician selected by Corporation or its
insurers and acceptable to the Employee or the Employee’s legal representative (such agreement as
to acceptability not to be withheld unreasonably).



     (c) Good Reason. For purposes of this Agreement, “Good Reason” means:



          (i) Corporation materially reduces the Employee’s duties or responsibilities, excluding for
this purpose any isolated and insubstantial action not taken in bad faith and which is remedied by
Corporation promptly after receipt of notice thereof given by the Employee; or




          (ii) Corporation materially reduces the Employee’s base salary or target bonus opportunity
which reduction is not remedied within ten (10) days after receipt of notice from Employee with
respect to such reduction; or




          (iii) Relocation of the Employee to any office or location other than the Miami, Florida
metropolitan area without the consent of the Employee.




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	 	 	FLORIDA EAST COAST INDUSTRIES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Adolfo Henriques
	 

	 	 	 	 
	 	 	Chairman & Chief Executive Officer






	 	 	 
	Agreed and Accepted:
	 	 
	 
	 	 
	/s/ Jorgé San Miguel
 

Jorge San Miguel

	 	 






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