Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DFCbUKVPxd5SbG4jftP9iSNc61qgEYN3gsztzLysn1Z/f7abf2YDW+BAeuse5G7o pYTiG2axPS/UUBFQianlwQ== 0001193125-06-103421.txt : 20060508 0001193125-06-103421.hdr.sgml : 20060508 20060508153120 ACCESSION NUMBER: 0001193125-06-103421 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20060508 DATE AS OF CHANGE: 20060508 GROUP MEMBERS: C/COUNTYLINE, LLC GROUP MEMBERS: C/WDL, LTD. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Florida East Coast Industries, Inc. CENTRAL INDEX KEY: 0001360951 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 204427296 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81779 FILM NUMBER: 06816546 BUSINESS ADDRESS: STREET 1: ONE MALAGA STREET CITY: ST. AUGUSTINE STATE: FL ZIP: 32085 BUSINESS PHONE: (904)829-3421 MAIL ADDRESS: STREET 1: ONE MALAGA STREET CITY: ST. AUGUSTINE STATE: FL ZIP: 32085 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CODINA ARMANDO M CENTRAL INDEX KEY: 0001026934 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O BELLSOUTH CORP. STREET 2: 1155 PEACHTREE STREET, NE, STE. 1800 CITY: ATLANTA STATE: GA ZIP: 30309-3610 BUSINESS PHONE: 4042493875 MAIL ADDRESS: STREET 1: 355 ALHAMBRE CIRCLE STREET 2: SUITE 900 CITY: CORAL GABLES STATE: FL ZIP: 33134 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D


CUSIP No. 340632 10 8		13D		Page 1 of 11 Pages

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

RULE 13d-2(a)

FLORIDA EAST COAST INDUSTRIES, INC.

(Name of Issuer)

Common Stock, no par value

(Title of Class of Securities)

340632 10 8

(CUSIP Number)

Armando Codina, 355 Alhambra Circle, Suite 900, Coral Gables FL 33134

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

April 27, 2006

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13-1(g) check the following box ¨

(Continued on following pages)


CUSIP No. 340632 10 8		13D		Page 2 of 11 Pages


1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

	Armando Codina N/A
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) x
	(b) ¨
3	SEC USE ONLY


4	SOURCE OF FUNDS

	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)	¨


6	CITIZENSHIP OR PLACE OF ORGANIZATION

	USA


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:		7 SOLE VOTING POWER

		3,008,830
		8 SHARED VOTING POWER

		0
		9 SOLE DISPOSITIVE POWER

		1,542,088
		10 SHARED DISPOSITIVE POWER

		0


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	3,008,830
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	¨


13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	8.2%
14	TYPE OF REPORTING PERSON

	IN


CUSIP No. 340632 10 8		13D		Page 3 of 11 Pages


1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

	C/WDL, Ltd. 65-0978263
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) x
	(b) ¨
3	SEC USE ONLY


4	SOURCE OF FUNDS

	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)	¨


6	CITIZENSHIP OR PLACE OF ORGANIZATION

	FLORIDA


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:		7 SOLE VOTING POWER

		819,797
		8 SHARED VOTING POWER

		0
		9 SOLE DISPOSITIVE POWER

		737,817
		10 SHARED DISPOSITIVE POWER

		0


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	819,797
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x


13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	2.2%
14	TYPE OF REPORTING PERSON

	PN


CUSIP No. 340632 10 8		13D		Page 4 of 11 Pages


1	NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON

	C/Countyline, LLC 20-4760736
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) x
	(b) ¨
3	SEC USE ONLY


4	SOURCE OF FUNDS

	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E)	¨


6	CITIZENSHIP OR PLACE OF ORGANIZATION

	FLORIDA


NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:		7 SOLE VOTING POWER

		960,658
		8 SHARED VOTING POWER

		0
		9 SOLE DISPOSITIVE POWER

		228,669
		10 SHARED DISPOSITIVE POWER

		0


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

	960,658
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	x


13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

	2.6%
14	TYPE OF REPORTING PERSON

	OO


CUSIP No. 340632 10 8		13D		Page 5 of 11 Pages

Item 1. SECURITY AND ISSUER.

This Schedule 13D (this “Statement”) relates to the Common Stock, no par value (the “Common Stock”), of Florida East Coast Industries, Inc., a corporation formed and organized under the laws of Florida, which has its principal executive offices located at One Malaga St., St. Augustine, FL 32084 (“FECI”).

Item 2. IDENTITY AND BACKGROUND.

(a)

Pursuant to Rule 13d-1(a) of Regulation 13D-G of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (the “Act”), this Statement is filed jointly by (i) Armando Codina, (ii) C/WDL, Ltd., a Florida limited partnership, and (iii) C/Countyline, LLC, a Florida limited liability company (collectively, the “Reporting Persons”). In addition, pursuant to General Instruction C of Schedule 13D, the information called for by Items 2-6, inclusive, is given with respect to (i) C/WDL, Inc., a Florida corporation, (ii) C/Beacon Countyline, LLC, a Florida limited liability company, (iii) Codina Holdings III, Ltd., a Florida limited partnership, and (iv) Codina Holdings III, Inc., a Florida corporation (collectively, the “Non-Reporting Persons”).

The Reporting Persons have included as Exhibit 99.1 to this Statement an agreement in writing that this Statement is filed on behalf of each of them.

(b) & (c)

Armando Codina:

The present principal occupation or employment of Mr. Codina is serving as the President and Chief Executive Officer of Flagler Development Company and the Codina Group, Inc., both subsidiaries of FECI. In addition, Mr. Codina is the sole director and President, Treasurer and Secretary of C/Countyline, LLC, C/Beacon Countyline, LLC, Codina Holdings III, Inc. and C/WDL, Inc. Mr. Codina’s business address is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.

C/WDL, Ltd.:

C/WDL, Ltd. is a Florida limited partnership principally engaged in holding equity securities. The principal office of C/WDL, Ltd. is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.

C/Countyline, LLC:

C/Countyline, LLC is a Florida limited liability company principally engaged in holding equity securities. The principal office of C/Countyline, LLC is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.

C/WDL, Inc.:

C/WDL, Inc. is a Florida corporation principally engaged in holding equity securities. C/WDL, Inc. is the General Partner of C/WDL, Ltd. The principal office of C/WDL, Inc. is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.

C/Beacon Countyline, LLC:

C/Beacon Countyline, LLC is a Florida limited liability company principally engaged in holding equity securities. C/Beacon Countyline, LLC is the sole member of C/Countyline, LLC. The principal office of C/Beacon Countyline, LLC is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.


CUSIP No. 340632 10 8		13D		Page 6 of 11 Pages

Codina Holdings III, Ltd.:

Codina Holdings III, Ltd. is a Florida limited partnership principally engaged in holding equity securities. Codina Holdings III, Ltd. is the sole member of C/Beacon Countyline, LLC. The principal office of Codina Holdings III, Ltd. is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.

Codina Holdings III, Inc.:

Codina Holdings III, Inc. is a Florida corporation principally engaged in holding equity securities. Codina Holdings III, Inc. is the General Partner of Codina Holdings III, Ltd. The principal office of Codina Holdings III, Inc. is 355 Alhambra Circle, Suite 900, Coral Gables FL 33134.

(d) & (e)

During the last five years, none of the Reporting Persons or the Non-Reporting Persons has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) and none of the Reporting Persons or the Non-Reporting Persons is a party to a civil proceeding of a judicial or administrative body of competent jurisdiction such that, as a result of such proceeding, such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, federal or state securities laws or finding any violation with respect to such laws.

(f)

Mr. Codina is a citizen of the United States of America.

Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

On April 27, 2006, FECI completed the acquisition of Codina Group, Inc., its subsidiaries, additional land parcels and various entities which directly or indirectly own interests in real property or that have contractual rights to acquire an interest in real property, from Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC pursuant to an Agreement and Plan of Merger and Contribution, dated as of January 5, 2006, among Florida East Coast Industries, Inc., FECI, Foxx Merger Sub, Inc., Mr. Codina, C/Countyline, LLC and C/WDL, Ltd. (the “Merger and Contribution Agreement”). In exchange for the shares of Codina Group, Inc. and the real property owning entities that were contributed to FECI, Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC received 639,557, 819,797 and 254,077 shares of Common Stock, respectively. Of these shares, 63,955, 81,980 and 25,408, respectively, are held in escrow pursuant to an Escrow and Indemnification Procedure Agreement, dated April 27, 2006, among Florida East Coast Industries, Inc., FECI, Mr. Codina, C/Countyline, LLC, C/WDL, Ltd. and SunTrust Bank, as escrow agent (the “Escrow Agreement”), pending various post-closing adjustments.

In addition, (i) 706,581 shares of Common Stock were placed in escrow pursuant to the Escrow Agreement and will be released to C/Countyline, LLC upon the occurrence of certain land use approval events described in Section I of Schedule D to the Merger and Contribution Agreement, (ii) 471,055 shares of Common Stock were placed in escrow pursuant to the Escrow Agreement and will be released to Mr. Codina upon the occurrence of certain cumulative improvements in the price of the Common Stock over the next five years as described in Section II of Schedule D to the Merger and Contribution Agreement, and (iii) 117,763 shares of Common Stock were placed in escrow pursuant to the Escrow Agreement and will be released to Mr. Codina upon the occurrence of certain events related to the undertaking of a proposed residential development by FECI as described in Section III of Schedule D to the Merger and Contribution Agreement.


CUSIP No. 340632 10 8		13D		Page 7 of 11 Pages

Item 4. PURPOSE OF TRANSACTION.

Although none of the Reporting Persons or the Non-Reporting Persons, together or individually, have any immediate intention to effect any additional transactions in the shares of Common Stock, they may acquire additional shares of Common Stock or dispose of some or all of the shares of Common Stock based upon a number of factors, including their evaluation of FECI’s business prospects and financial condition, the market for FECI’s shares, general economic and stock market conditions and other investment opportunities.

Item 5. INTEREST IN SECURITIES OF THE ISSUER.

The Reporting Person’s believe that as of May 8, 2006, the total number of issued and outstanding shares of Common Stock was 36,590,132, which number is equal to the sum of (i) 33,292,782, the number of shares of common stock, no par value, of Florida East Coast Industries, Inc. issued and outstanding as of March 31, 2006, as reported by FECI in its Form 10-Q filed with the Securities and Exchange Commission on April 28, 2006, each of which were converted into shares of Common Stock on April 27, 2006 upon the consummation of the merger of Florida East Coast Industries, Inc. with and into Foxx Merger Sub, Inc., a wholly owned subsidiary of FECI, as contemplated by the Merger and Contribution Agreement, (ii) 3,008,830, the number of shares of Common Stock issued to the Reporting Persons or placed in escrow for their benefit under the Escrow Agreement on April 27, 2006 upon the consummation of the transactions described in Item 3, and (iii) 288,520, the number of restricted shares of Common Stock issued to certain employees of Codina Group, Inc. on April 27, 2006 as contemplated by the Merger and Contribution Agreement.

(a) & (b)

Armando Codina:

Mr. Codina owns and has the sole power to vote 575,602 shares of Common Stock, representing 1.6% of the issued and outstanding Common Stock.

As described in Item 3, Mr. Codina has the right to receive, upon the satisfaction of certain conditions stated in the Merger and Contribution Agreement, up to 652,773 shares of Common Stock, representing 1.8% of the issued and outstanding Common Stock, held in escrow pursuant to the Escrow Agreement (the “Codina Escrow Shares”). Mr. Codina has no power to dispose of the Codina Escrow Shares unless and until they are distributed to Mr. Codina pursuant to the terms of the Escrow Agreement. Mr. Codina will become the sole beneficial owner of such of the Codina Escrow Shares as are distributed to Mr. Codina pursuant to the terms of the Escrow Agreement. Mr. Codina has the sole power to vote of the Codina Escrow Shares unless and until they are distributed to FECI pursuant to the terms of the Escrow Agreement.

Mr. Codina is the sole director and shareholder and the President, Treasurer and Secretary of C/WDL, Inc., the General Partner of C/WDL, Ltd. As a result, Mr. Codina indirectly has the sole power to vote and dispose of 737,817 shares of Common Stock, representing 2.0% of the issued and outstanding Common Stock, owned by C/WDL, Ltd.

In addition, Mr. Codina indirectly has the sole power to vote 81,980 shares of Common Stock, representing 0.2% of the issued and outstanding Common Stock, held in escrow pursuant to the Escrow Agreement (the “C/WDL Escrow Shares”), unless and until they are distributed to FECI pursuant to the terms of the Escrow Agreement and, upon the distribution to C/WDL, Ltd. of any of the C/WDL Escrow Shares pursuant to the terms of the Escrow Agreement, Mr. Codina indirectly will have the sole power to dispose of such C/WDL Escrow Shares.

Mr. Codina is the sole director and shareholder and the President, Treasurer and Secretary of Codina Holdings III, Inc. Codina Holdings III, Inc. is the General Partner of


CUSIP No. 340632 10 8		13D		Page 8 of 11 Pages

Codina Holdings III, Ltd. Codina Holdings III, Ltd. is the sole member of C/Beacon Countyline, LLC. C/Beacon Countyline, LLC is the sole member of C/Countyline, LLC. As a result, Mr. Codina indirectly has the sole power to vote and dispose of 228,669 shares of Common Stock, representing 0.6% of the issued and outstanding Common Stock, owned by C/Countyline, LLC.

In addition, Mr. Codina indirectly has the sole power to vote 731,989 shares of Common Stock representing 2.0% of the issued and outstanding Common Stock, held in escrow pursuant to the Escrow Agreement (the “C/Countyline Escrow Shares”), unless and until they are distributed to FECI pursuant to the terms of the Escrow Agreement and, upon the distribution to C/Countyline, LLC of any of the C/Countyline Escrow Shares pursuant to the terms of the Escrow Agreement, Mr. Codina indirectly will have the sole power to dispose of such C/Countyline Escrow Shares.

C/WDL, Ltd.:

C/WDL, Ltd. owns and has the sole power to vote 737,817 shares of Common Stock, representing 2.0% of the issued and outstanding Common Stock.

As described in Item 3, C/WDL, Ltd. has the right to receive, upon the satisfaction of certain conditions stated in the Merger and Contribution Agreement, the C/WDL Escrow Shares. C/WDL, Ltd. has no power to dispose of the C/WDL Escrow Shares unless and until they are distributed to C/WDL, Ltd. pursuant to the terms of the Escrow Agreement. C/WDL, Ltd. will become the sole beneficial owner of such of the C/WDL Escrow Shares as are distributed to C/WDL, Ltd. pursuant to the terms of the Escrow Agreement. C/WDL, Ltd. has the sole power to vote of the C/WDL Escrow Shares unless and until they are distributed to FECI pursuant to the terms of the Escrow Agreement.

Pursuant to Rule 13d-5(b)(1), C/WDL, Ltd. is deemed to beneficially own all shares of Common Stock owned by each of the other Reporting Persons. As a result, C/WDL, Ltd. is deemed to beneficially own 3,008,830 shares of Common Stock, representing 8.2% of the issued and outstanding Common Stock. C/WDL, Ltd. disclaims beneficial ownership of (i) the shares of the Common Stock held by Mr. Codina, and (ii) the shares of the Common Stock held by C/Countyline, LLC.

C/Countyline, LLC:

C/Countyline, LLC owns and has the sole power to vote 228,669 shares of Common Stock, representing 0.6% of the issued and outstanding Common Stock.

As described in Item 3, C/Countyline, LLC has the right to receive, upon the satisfaction of certain conditions stated in the Merger and Contribution Agreement, the C/Countyline Escrow Shares. C/Countyline, LLC has no power to dispose of the C/Countyline Escrow Shares unless and until they are distributed to C/Countyline, LLC pursuant to the terms of the Escrow Agreement. C/Countyline, LLC will become the sole beneficial owner of such of the C/Countyline Escrow Shares as are distributed to C/Countyline, LLC pursuant to the terms of the Escrow Agreement. C/Countyline, LLC has the sole power to vote of the C/Countyline Escrow Shares unless and until they are distributed to FECI pursuant to the terms of the Escrow Agreement.

Pursuant to Rule 13d-5(b)(1), C/Countyline, LLC is deemed to beneficially own all shares of Common Stock owned by each of the other Reporting Persons. As a result, C/Countyline, LLC is deemed to beneficially own 3,008,830 shares of Common Stock, representing 8.2% of the issued and outstanding Common Stock. C/Countyline, LLC disclaims beneficial ownership of (i) the shares of the Common Stock held by Mr. Codina, and (ii) the shares of the Common Stock held by C/WDL, Ltd.


CUSIP No. 340632 10 8		13D		Page 9 of 11 Pages

C/WDL, Inc.:

C/WDL, Inc. is the General Partner of C/WDL, Ltd. As a result, C/WDL, Inc. indirectly has the sole power to vote and dispose of the 737,817 shares of Common Stock, representing 2.0% of the issued and outstanding Common Stock, owned by C/WDL, Ltd. In addition, C/WDL, Inc. indirectly has the sole power to vote the C/WDL Escrow Shares, representing 0.2% of the issued and outstanding Common Stock.

C/Beacon Countyline, LLC:

C/Beacon Countyline, LLC is the sole member of C/Countyline, LLC. As a result, C/Beacon Countyline, LLC indirectly has the sole power to vote and dispose of the 228,669 shares of Common Stock, representing 0.6% of the issued and outstanding Common Stock, owned by C/Countyline, LLC. In addition, C/Beacon Countyline, LLC indirectly has the sole power to vote the C/Countyline Escrow Shares, representing 2.0% of the issued and outstanding Common Stock.

Codina Holdings III, Ltd.:

Codina Holdings III, Ltd. is the sole member of C/Beacon Countyline, LLC. As a result, Codina Holdings III, Ltd. indirectly has the sole power to vote and dispose of the 228,669 shares of Common Stock, representing 0.6% of the issued and outstanding Common Stock, owned by C/Countyline, LLC. In addition, Codina Holdings III, Ltd. indirectly has the sole power to vote the C/Countyline Escrow Shares, representing 2.0% of the issued and outstanding Common Stock.

Codina Holdings III, Inc.:

Codina Holdings III, Inc. is the General Partner of Codina Holdings III, Ltd. As a result, Codina Holdings III, Inc. indirectly has the sole power to vote and dispose of the 228,669 shares of Common Stock, representing 0.6% of the issued and outstanding Common Stock, owned by C/Countyline, LLC. In addition, Codina Holdings III, Inc. indirectly has the sole power to vote the C/Countyline, Escrow Shares, representing 2.0% of the issued and outstanding Common Stock.

(c)

Except as set forth in this Statement, none of the Reporting Persons or the Non-Reporting Persons has effected any transaction in shares of Common Stock during the past sixty days.

(d)

Not applicable.

(e)

Not applicable.

Item 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

Pursuant to the Escrow Agreement, (i) an aggregate of 171,343 shares of Common Stock are subject to forfeiture by Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC in satisfaction of certain purchase price adjustments and/or indemnity claims brought by FECI pursuant to the terms of the Merger and Contribution Agreement, and (ii) an aggregate of 1,295,399 shares of Common Stock are subject to forfeiture by Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC if certain events set forth on Schedule D to the Merger and Contribution Agreement do not occur. In addition, pursuant to the Escrow Agreement, Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC are permitted to vote the Codina Escrow Shares, the C/WDL Escrow Shares and the C/Countyline Escrow Shares, respectively, prior to the release of these shares of Common Stock from escrow.


CUSIP No. 340632 10 8		13D		Page 10 of 11 Pages

Pursuant to a Lock-up and Registration Rights Agreement, dated as of April 27, 2006, among FECI, Mr. Codina, each of the limited partners of Codina Doral, Ltd., C/Countyline, LLC and C/WDL, Ltd. (the “Lock-up and Registration Rights Agreement”), Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC have agreed, subject to certain limited exceptions, that they will not transfer any of the shares of Common Stock received by them in the transactions described in Item 3 prior to April 27, 2008. In addition, Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC have agreed that following April 27, 2008, transfers by each of them will be limited no more than 25% of the shares of Common Stock such shareholder received on or prior to April 27, 2009, no more than 50% of the shares of Common Stock such shareholder received on or prior to April 27, 2010, and no more than 75% of the shares of Common Stock such shareholder received on or prior to April 27, 2011. The transfer restrictions set forth in the Lock-up and Registration Rights Agreement will expire on April 27, 2011.

Under the Lock-up and Registration Rights Agreement, Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC have agreed that if any of them desires to transfer shares in any 90-day period that represent more than 0.08% of the outstanding shares of Common Stock, such shareholder will first offer such shares to FECI for repurchase.

Under the Lock-up and Registration Rights Agreement, FECI has agreed to register the resales of the shares of Common Stock held by Mr. Codina, C/WDL, Ltd. and C/Countyline, LLC under the Securities Act of 1933 on a shelf registration statement on or prior to April 27, 2008.

Other than as disclosed herein and in Item 3 of this Statement, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the Reporting Persons, the Non-Reporting Persons and between such persons and any person with respect to the Common Stock.

Item 7. MATERIAL TO BE FILED AS EXHIBITS.


Exhibit No.		Exhibit
99.1		Joint Filing Agreement, dated May 8, 2006.

99.2		Agreement and Plan of Merger and Contribution, dated January 5, 2006, among Florida East Coast Industries, Inc., FECI, Foxx Merger Sub, Inc., Armando Codina, C/Countyline, LLC and C/WDL, Ltd. (incorporated by reference to Exhibit 2.1 to the Current Report of Florida East Coast Industries, Inc. on Form 8-K, filed January 11, 2006).

99.3		Schedule D to Agreement and Plan of Merger and Contribution, dated January 5, 2006, among Florida East Coast Industries, Inc., FECI, Foxx Merger Sub, Inc., Armando Codina, C/Countyline, LLC and C/WDL, Ltd..

99.4		Escrow and Indemnification Procedure Agreement, dated April 27, 2006, among Florida East Coast Industries, Inc., FECI, Armando Codina, C/Countyline, LLC, C/WDL, Ltd. and SunTrust Bank, as escrow agent.

99.5		Lock-up and Registration Rights Agreement, dated as of April 27, 2006, among FECI, Mr. Codina, each of the limited partners of Codina Doral, Ltd., C/Countyline, LLC and C/WDL, Ltd.


CUSIP No. 340632 10 8		13D		Page 11 of 11 Pages

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.

Date: May 8, 2006


ARMANDO CODINA

/s/ Armando Codina

C/WDL, LTD.

By C/WDL, INC., its General Partner

	By	/s/ Armando Codina
	Name:	Armando Codina
	Title:	President

C/COUNTYLINE, LLC

By	/s/ Armando Codina
Name:	Armando Codina
Title:	President

EX-99.1 2 dex991.htm JOINT FILING AGREEMENT Joint Filing Agreement

Exhibit 99.1

Joint Filing Agreement

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below acknowledge and agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including amendments thereto) with respect to the Common Stock, no par value, of Florida East Coast Industries, Inc. This Joint Filing Agreement shall be included as an exhibit to such filing. In evidence thereof, each of the undersigned, being duly authorized where appropriate, hereby executes this Joint Filing Agreement as of the 8th day of May, 2006.


ARMANDO CODINA

/s/ Armando Codina

C/WDL, LTD.

By C/WDL, INC., its General Partner

	By	/s/ Armando Codina
	Name:	Armando Codina
	Title:	President

C/COUNTYLINE, LLC

By	/s/ Armando Codina
Name:	Armando Codina
Title:	President

EX-99.3 3 dex993.htm SCHEDULE D TO AGREEMENT AND PLAN OF MERGE Schedule D to Agreement and Plan of Merge

Exhibit 99.3

SCHEDULE D

Contingent Consideration

Section I.

Beacon Countyline

Within seven (7) Business Days following (i) the final determination by the appropriate Governmental Entity moving the Miami-Dade County Urban Development Boundary to encompass the CC Property and BN Expansion property and changing the designation of the CC Property and the BN Expansion property from Open Land to Industrial and Office, and (ii) the expiration of all periods for appeal or other legal challenge of such determination which appeal or challenge could result in the reversal of such determination or a modification of such determination in a manner which is materially adverse to the commercial feasibility of the CC Property or the BN Expansion property or the financial return anticipated therefrom, 706,581 shares of Parent Stock shall be released from escrow to Mr. Codina in accordance with the Escrow Agreement. As provided in the Escrow Agreement, in the event such determination does not occur on or before the fifth anniversary of the Closing Date, the CC Escrow shall be released to Parent for cancellation.

Section II.

Additional Consideration

Additional shares shall be released from escrow pursuant to the terms of the Escrow Agreement within thirty (30) days following the end of any 60-calendar day period which begins after the Closing Date (any such 60 calendar day period, a “Measurement Period”) and ends on or prior to the fifth anniversary of the Closing Date during which the Average Closing Price of Parent Stock (as defined below) is at least the amount shown on the following table, provided that, no such payment shall be made more than once for a given stock price. In the event of a Change of Control (as defined below) of Parent following the Closing, all of the Additional Escrow Shares shall be released to the Contributors. As provided in the Escrow Agreement, in the event any shares of Parent Stock have not been released as of the fifth anniversary of the Closing Date, such shares shall be released to Parent for cancellation.


Number of Shares	Parent Stock Price
94,211 Shares^1,2	$	47.44²
94,211 Shares^1,2	$	52.44²
94,211 Shares^1,2	$	57.44²
94,211 Shares^1,2	$	63.44²
94,211 Shares^1,2	$	69.44²

Plus the proportionate amount of any Parent Stock, other securities of Parent, securities of any other entity, or other property paid or payable as a dividend or other distribution on (or in connection with any redemption or repurchase of) the Additional Escrow Shares or any of the foregoing securities.

²	As proportionately adjusted for any reclassification, recapitalization, stock split, combination, stock dividend, exchange of shares or similar event.

For purposes of this Section II, “Average Closing Price of Parent Stock” means the sum of (i) the average closing Price of Parent Stock during a Measurement Period as reported on the New York Stock Exchange (or other principal stock market on which Parent Stock is then traded (as adjusted pursuant to footnote 2 above) plus (ii) the amount of cash and the Fair Market Value (as defined below) of any assets (including securities other than Parent Stock) distributed as an extraordinary dividend or other distribution (including a spin off or split up) after the date of this Agreement upon a share of Parent Stock (as adjusted pursuant to footnote 2 above).

The “Fair Market Value” of any publicly traded security, shall be the average closing price of such security on the principal market on which such security is traded for the 60 calendar days ending on the last day of the Measurement Period (or such shorter period if such security has not been listed for trading for at least 60 calendar days prior to the last day of the Measurement Period (as adjusted pursuant to footnote 2 above). The Fair Market Value of any security that is not publicly traded shall be as determined in good faith by the board of directors of Parent.

For purposes of this Section II, “Change of Control” means the:

(1) Consummation of a tender offer, exchange offer, reorganization, merger, consolidation or other business combination (any of the foregoing, a “Business Combination”) of Parent by or with any other corporation, in any case with respect to which the individuals and entities that directly or indirectly beneficially owned (as such term is defined pursuant to Rule 13d-3 under the 1934 Act) the shares of outstanding Parent common stock immediately prior to such Business Combination are not, immediately following such Business Combination, the direct or indirect beneficial owners in substantially the same proportions of more than fifty percent (50%) of the outstanding common stock of the resulting, surviving or acquiring entity (or any ultimate parent thereof); or

(2) Any “person” or group (as such term is used in Sections 13(d) and 14(d) of the 1934 Act), in any case excluding Franklin Mutual Advisers, LLC and any of its Affiliates becomes the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act) directly or indirectly, of securities representing more than fifty percent (50%) of the total voting power represented by the Parent’s then outstanding equity voting securities.

(3) Consummation by Parent of a sale or other disposition of all or substantially all of the assets of Parent, other than to a corporation with respect to which, following such sale or other disposition, more than fifty percent (50%) of the then outstanding shares of common stock of such corporation is then beneficially owned, directly or indirectly, by all or substantially all of the individuals and entities who were the beneficial owners of the shares of Parent common stock outstanding immediately prior to such sale or other disposition in substantially the same proportion as their ownership, immediately prior to such sale or other disposition, of the such Parent.

The term “the sale or disposition by Parent of all or substantially all of the assets of Parent” shall mean a sale or other disposition transaction or series of related transactions (e.g., the Parent determines to exit the real estate business and pursuant to such plan, sells its real estate in

multiple transactions to multiple buyers) involving assets of Parent or of any direct or indirect subsidiary of Parent (including the stock of any direct or indirect subsidiary of Parent) in which the value of the assets or stock being sold or otherwise disposed of (as measured by the purchase price being paid therefor or by such other method as the board of directors of Parent determines is appropriate in a case where there is no readily ascertainable purchase price) constitutes more than sixty-six and two-thirds percent (66 2/3%) of the fair market value of Parent (as hereinafter defined). The “fair market value of Parent” shall be the aggregate market value of the then outstanding Parent common stock plus the aggregate market value of Parent’s other outstanding equity securities. The aggregate market value of the shares of outstanding Parent common stock shall be determined by multiplying the number of such shares outstanding on the date of the execution and delivery of a definitive agreement with respect to the transaction or series of related transactions or the adoption of a plan to dispose of such assets if the sale will be made through a series of sales or transaction (the “Transaction Date”) by the average closing price of such shares on the New York Stock Exchange or any other principal stock market on which such shares are then listed or included for trading for the ten trading days immediately preceding the Transaction Date. The aggregate market value of any other equity securities of Parent shall be determined in a manner similar to that prescribed in the immediately preceding sentence for determining the aggregate market value of the shares of outstanding Parent common stock or by such other method as the board of directors of Parent shall determine is appropriate.

Section III

Red Road Escrow

In the event that on or prior to December 31, 2006, (i) the transactions contemplated by the Agreement for Sale and Purchase of Real Property, dated May 7, 2004, between Commerce Lane Enterprises, Inc. and Mr. Codina and the Option to Purchase Agreement, dated as of August 2, 2001, between Anthony Abraham and the purchaser thereunder are consummated, (ii) the Ground Lease between the optionholder and Codina/Fairfield I, LLC, in a form acceptable to FECI, is executed and delivered by all parties thereto with the decision to proceed to be in Parent’s sole discretion, and (iii) if required by that certain Agreement to Lease, dated November 16, 2004, between Codina Fairfield I, LLC and the optionholder, as amended, the optionholder consents to the Transactions and in the event an Affiliate of Fairfield Properties, Inc. becomes a member of Codina/Fairfield I, LLC, such Affiliate of Fairfield Properties, Inc. consents to the Transactions; 117,763 shares of Parent Stock shall be released from escrow and delivered to Mr. Codina. As provided in the Escrow Agreement, if such transactions have not occurred prior to December 31, 2006, such shares shall be released to Parent for cancellation.

EX-99.4 4 dex994.htm ESCROW AND INDEMNIFICATION PROCEDURE AGREEMENT Escrow and Indemnification Procedure Agreement

Exhibit 99.4

Execution Version

ESCROW AND INDEMNIFICATION PROCEDURE AGREEMENT

This Escrow and Indemnification Procedure Agreement (this “Agreement”) is made as of the 27th day of April, 2006 among Florida East Coast Industries, Inc., a Florida corporation (“FECI”), Foxx Holdings, Inc., a Florida corporation and a wholly owned subsidiary of FECI (“Parent”), Armando Codina (“Codina”), C/Countyline, LLC, a Florida limited liability company (“CC”), and C/WDL, Ltd., a Florida limited partnership (“C/WDL” and together with Codina and CC, the “Contributors” with each being referred to herein as a “Contributor”) and SunTrust Bank, a Georgia banking corporation, as escrow agent (“Escrow Agent”).

WHEREAS, FECI, Parent and the Contributors have entered into that certain Agreement and Plan of Merger and Contribution dated as of January 5, 2006 (the “Merger and Contribution Agreement”), a copy of which is attached hereto as Exhibit A, pursuant to which the Contributors will receive, among other consideration, shares of common stock, no par value, of Parent (“Parent Stock”).

WHEREAS, pursuant to the terms of the Merger and Contribution Agreement, a portion of the shares of Parent Stock to be received by the Contributors is to be deposited into the escrow fund pursuant to this Agreement.

WHEREAS, unless otherwise specified herein, all capitalized terms used but not defined herein shall have the meanings provided in the Merger and Contribution Agreement, which meanings are incorporated herein by reference.

NOW, THEREFORE, in consideration of the premises and of the mutual provisions, agreements and covenants contained herein, the parties hereto agree as follows:

1. Escrow Shares

a. Delivery of Working Capital Escrow Shares and Indemnification Escrow Shares. At the Effective Time (as defined in Section 2.02 of the Merger and Contribution Agreement), Parent shall deposit in an account with the Escrow Agent 171,343 shares of Parent Stock equaling ten percent (10%) of the Initial Contribution Consideration (such shares, the “Initial Escrow Shares”, and such account, the “Escrowed Initial Shares Account”), with stock powers related thereto duly endorsed in blank. The Parent shall furnish to the Escrow Agent, at the time of deposit of the Initial Escrow Shares, a written notice stating that such shares shall be deposited in and shall initially constitute the Escrowed Initial Shares Account. The Escrow Agent shall be entitled to rely conclusively and without inquiry upon such written notice.

b. Delivery of the CC Escrow Shares. At the Effective Time, Parent shall deposit in an account with the Escrow Agent 706,581 shares of Parent Stock (the “CC Escrow Shares Account”), with stock powers related thereto duly endorsed in blank.

c. Delivery of the Additional Consideration Escrow Shares. At the Effective Time, Parent shall deposit in an account with the Escrow Agent 471,055 shares of Parent Stock (the “Additional Consideration Escrow Shares Account”), with stock powers related thereto duly endorsed in blank.

d. Delivery of the Red Road Escrow Shares. At the Effective Time, Parent shall deposit in an account with the Escrow Agent 117,763 shares (the “Red Road Shares”) of Parent Stock (the “Red Road Consideration Escrow Shares Account”), with stock powers related thereto duly endorsed in blank.

e. Additional Shares; Cash. In addition to the Escrowed Initial Shares Account, the CC Escrow Shares Account, the Additional Consideration Escrow Shares Account and the Red Road Consideration Escrow Shares Account (collectively, the “Escrow Accounts”), from time to time, Parent may deposit with the Escrow Agent additional shares of Parent Stock or other securities (including shares issued upon stock splits or stock dividends) issued in respect of the shares held in the Escrow Accounts in accordance with Section 7 hereof (such additional shares and securities, the “Additional Shares” and, collectively with the shares deposited at the Effective Time, the “Escrow Shares”). Parent may also, from time to time, declare and pay cash dividends and distributions in respect of the Escrow Shares (collectively, the “Dividends”) to be deposited with the Escrow Agent in accordance with Section 7 hereof (the “Escrow Cash” and together with the Escrow Shares, the “Escrow Fund”). Any shares of Parent Stock, other securities and cash issued or paid on or with respect to any Escrow Shares shall be deposited in the particular Escrow Account in which such Escrow Shares are held (e.g., Dividends paid upon shares of Parent Stock held in the Escrowed Initial Shares Account shall be deemed deposited in such account). Parent shall provide to the Escrow Agent written notice identifying with respect to which Escrow Shares such Parent Stock, other securities or cash is furnished, which notice shall accompany or precede delivery of such Parent Stock, other securities or cash to the Escrow Agent.

2. Rights to Escrow Fund. Except as expressly provided herein, neither the Contributors nor Parent shall have any right, title or interest in or possession of any of the Escrow Fund. As a result, (i) neither the Parent nor any Contributor shall have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Fund unless and until such assets have been disbursed to such party in accordance with this Agreement, and (ii) until disbursed pursuant to this Agreement, the Escrow Agent shall be in sole possession of the Escrow Fund and will not act or be deemed to act as custodian for any party for purposes of perfecting a security interest therein. The Escrow Fund shall be held as an escrow fund in accordance with the terms of this Agreement and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party hereto.

3. Claims, Procedures and Payment from Escrowed Initial Shares Account. Shares of Parent Stock, cash and other securities, if any, in the Escrowed Initial Shares Account shall be held and disposed of by the Escrow Agent as follows:

a. Indemnification.

i) During the applicable survival periods as set forth in Article XI of the Merger and Contribution Agreement (the “Indemnification Survival Period”), Parent and/or FECI, if required by the Merger and Contribution Agreement initially to seek payment of an indemnifiable claim from the Escrowed Initial Shares Account and Initial Escrow Shares are available therefor, shall notify the Escrow Agent and Codina or his Permitted Successor (as defined below), on behalf of the Contributors, in writing of the details of any claim or demand for indemnification in respect of Damages or Tax Losses for which Parent and/or FECI claims it or any other Person (the “Indemnified Parties”) is entitled to indemnification (“Notice of Claim”) from the Contributors under the Merger and Contribution Agreement, subject to the limitations as set forth in Section 11.05 of the Merger and Contribution Agreement. In the event that a Notice of Claim is given by Parent and/or FECI after the date all assets in the Escrowed Initial Shares Account have been distributed, such Notice of Claim shall be delivered only to the Contributors. The Notice of Claim shall set forth the amount of Damages or Tax Losses suffered or, if such amount has not been liquidated prior to the first anniversary of the date of this Agreement (the “Escrowed Initial Shares Account Termination Date”), a good faith estimate of the amount which may be suffered, by the Indemnified Party and in the case of a Notice of Claim delivered by Parent and/or FECI after the date all assets in the Escrowed Initial Shares Account have been delivered to Parent and/or FECI in satisfaction of other indemnification claims, the amount to be paid by the Contributors. For purposes of this Agreement, “Permitted Successor” shall mean a successor representative of the Contributors appointed in accordance with Section 12.13 of the Merger and Contribution Agreement and set forth in a written notice to the Escrow Agent signed by Parent and the Contributors.

ii) Parent and/or FECI and Codina or his Permitted Successor, on behalf of the Contributors, agree to use good faith efforts to resolve amicably, as promptly as practicable, all indemnification claims, to respond to requests made by the other as promptly as is reasonably practicable under the circumstances and to provide each other with all information reasonably requested by the other to enable the other to assess the basis for any indemnification claim (or any objection to the assertion of such a indemnification claim), or the magnitude of any indemnification claim, asserted. Without limiting the foregoing, Codina or his Permitted Successor, on behalf of the Contributors, agrees to respond to Parent (with a copy to the Escrow Agent) in writing (with a copy to each Contributor) to any Notice of Claim (“Contributor Response Notice”) as promptly as is reasonably practicable under the circumstances, but in all events within twenty (20) days after receipt of the Notice of Claim, specifying either that (and the extent to which) the Contributors consent to the payment of such indemnification claim asserted in the Notice of Claim (an “Accepted Claim”) or that the Contributors object to the payment of such indemnification claim asserted in the Notice of Claim and stating its reasons therefor (a “Disputed Claim”).

iii) In the case of Accepted Claims, Parent and Codina or his Permitted Successor, on behalf of the Contributors, shall, if any assets remain in the Escrowed Initial Shares Account, deliver to the Escrow Agent, the Contributor

Response Notice setting forth such acceptance with respect to such indemnification claim (an “Accepted Claim Amount”) and setting forth the Market Value of a share of Parent Stock in accordance with Section 7(a) hereof. Within five (5) Business Days after receiving such Contributor Response Notice, the Escrow Agent shall deliver to Parent cash and shares of Parent Stock having an aggregate Market Value equal to the Accepted Claim Amount, the amount of Parent Stock and cash to be determined in accordance with Section 7(a) of this Agreement. If there are no assets remaining in the Escrowed Initial Shares Account, or if for any reason, the Escrowed Initial Shares Account is insufficient to pay in full the amount due to Parent, then the Contributors, in accordance with the terms of and subject to the limitations set forth in the Merger and Contribution Agreement, shall pay any such deficiency. The Escrow Agent shall be entitled to rely conclusively and without inquiry on any Contributor Response Notice with respect to the directions set forth therein, including but not limited to directions regarding the amount of cash or shares of Parent Stock required to be distributed. The Escrow Agent shall have no duty or obligation to determine whether any Notice of Claim, Contributor Response Notice or other notice or directions conform to the requirements of the Merger and Contribution Agreement.

iv) In the case of Disputed Claims, Parent and/or FECI and the Contributors shall use their respective best efforts to resolve, as promptly as practicable, such Disputed Claim. If the parties are unable to resolve a Disputed Claim within fifteen (15) Business Days after Parent and/or FECI receives the Contributor Response Notice announcing the objection, then either Parent and/or FECI or Codina and his Permitted Successor, on behalf of the Contributors, may submit the Disputed Claim to binding arbitration for settlement and resolution (“Arbitration”). Such Arbitration proceeding shall be conducted by final and binding arbitration before a panel of one arbitrator under the administration of the American Arbitration Association, and in Orlando, Florida or such other location mutually agreed to by the Parent and Codina and his successor, on behalf of the Contributors. The federal and state courts located in the United States of America are hereby given jurisdiction to render judgment upon, and to enforce, each arbitration award, and the parties hereby expressly consent and submit to the jurisdiction of such courts. During the pendency of such arbitration concerning which the Escrow Agent has received written notice, the Escrow Agent shall not make any distributions from the Escrowed Initial Shares Account. No later than five (5) Business Days following the final resolution of the Disputed Claim (whether by decision of the arbitrator, settlement or otherwise), Parent and Codina and his Permitted Successor, on behalf of the Contributors, shall, if any assets remain in the Escrowed Initial Shares Account, deliver a jointly executed letter directing the Escrow Agent regarding payment of such Disputed Claim (as ultimately determined by the arbitrator, settlement or otherwise) and setting forth the Market Value of a share of Parent Stock in accordance with Section 7(a) hereof, and the Escrow Agent shall make payment in cash and shares of Parent Stock in the ratio of the Market Value of the Parent Shares and cash then held in the Escrowed Initial Shares Account in accordance with that letter having an aggregate Market Value equal to the amount to be paid to Parent in accordance with such letter, all determined in accordance with Section 7(a) hereof; provided further, that to the extent that the Disputed Claim is resolved in the Contributors’ favor as set forth in such jointly executed letter, no distribution will be made to Parent and/or FECI with respect to the

portion of the Disputed Claim resolved in the Contributors’ favor and such amount shall remain in the Escrowed Initial Shares Account until distribution is otherwise required hereunder. If there are no assets remaining in the Escrowed Initial Shares Account, or if for any reason, the Escrowed Initial Shares Account is insufficient to pay in full the amount due to Parent, then the Contributors, in accordance with the terms of and subject to the limitations set forth in the Merger and Contribution Agreement shall pay any such deficiency.

v) If Codina or his Permitted Successor fails to respond to the Notice of Claim on behalf of the Contributors within twenty (20) days following the receipt of the Notice of Claim, Parent and/or FECI and the Contributors shall be deemed to have agreed to the validity of the indemnification claim for the full amount thereof and to have consented to the payment thereof. In such case, if any assets remain in the Escrowed Initial Shares Account, Parent may send a letter to the Escrow Agent with a copy to Codina or his Permitted Successor stating such fact and the Escrow Agent shall rely on such letter conclusively and without further inquiry and shall deliver to Parent, within ten (10) Business Days after receipt of such notice, cash and shares of Parent Stock held in the Escrowed Initial Shares Account, having an aggregate Market Value equal to the amount set forth in the Notice of Claim, all as determined in accordance with Section 7(a) hereof. If there are no assets remaining in the Escrowed Initial Shares Account, or if for any reason, the Escrowed Initial Shares Account is insufficient to pay in full the amount due to Parent, then the Contributors, in accordance with the terms of and subject to the limitations set forth in the Merger and Contribution Agreement, shall pay any such deficiency.

b. Closing Working Capital Adjustments. In the event that, in accordance with Section 3.03(d) of the Merger and Contribution Agreement, Parent is entitled to the receipt of shares Parent Stock, Parent and Codina or his Permitted Successor, on behalf of the Contributors, shall, if any assets remain in the Escrowed Initial Shares Account, jointly execute a letter and send it to the Escrow Agent directing the Escrow Agent to release and distribute to Parent from the Escrowed Initial Shares Account (the “Working Capital Direction Letter”), a number of shares of Parent Stock determined in accordance with Section 3.03(d) of the Merger and Contribution Agreement (the “Share Payment”). The Escrow Agent shall rely on such letter conclusively and without further inquiry and shall release and distribute the Share Payment set forth in such letter to Parent within five (5) Business Days following its receipt of the Working Capital Direction Letter. If there are no assets remaining in the Escrowed Initial Shares Account, or if for any reason, the Escrowed Initial Shares Account is insufficient to pay in full the amount due to Parent, then the Contributors, in accordance with the terms of and subject to the limitations set forth in the Merger and Contribution Agreement, shall pay any such deficiency.

c. Other. In addition to the foregoing, the Escrow Agent may make distributions and release the assets from the Escrowed Initial Shares Account (i) at any time pursuant to and upon receipt by the Escrow Agent of a joint letter executed by Parent and Codina or his Permitted Successor, on behalf of the Contributors (any such letter a, “Direction Letter”), or (ii) thirty (30) days after receipt

by the Escrow Agent of any order, judgment, or decree ordering the release of all or a specified portion of the Escrowed Initial Shares Account, accompanied by an opinion of counsel to the party receiving such distribution to the effect that such order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been noticed, filed or perfected (a “Final Order”).

d. Final Release and Pending Claims. Five (5) Business Days after the Escrowed Initial Shares Account Termination Date, the Escrow Agent shall release to the Contributors all shares of Parent Stock, cash and other securities held in the Escrowed Initial Shares Account. The Escrow Agent shall, however, retain in escrow after the Escrowed Initial Shares Account Termination Date an amount of cash and the number of shares of Parent Stock in the Escrowed Initial Shares Account (rounded up to the nearest whole share) having an aggregate Market Value (as of the Escrowed Initial Shares Account Termination Date) equal to the dollar amount of all Disputed Claims and indemnification claims for which the Escrow Agent has received a claim notice as provided herein and which have not been finally determined (“Pending Claims”). The dollar amount of any Pending Claim shall be calculated by Parent, using its good faith reasonable judgment of the maximum possible Damages or Tax Losses and shall be provided in writing to the Escrow Agent prior to the Escrowed Initial Shares Account Termination Date.

4. Payment from the CC Escrow Shares Account. Shares of Parent Stock, cash and other securities in the CC Escrow Shares Account shall be held and disposed of by the Escrow Agent as follows:

a. If the Contributors are entitled to receive the CC Consideration as set forth in Section I of Schedule D to the Merger and Contribution Agreement, during the period commencing on the Closing Date and ending on or before the fifth (5th) anniversary of the date of this Agreement (the “CC Escrow Period”), then the Parent shall deliver to the Escrow Agent a letter executed by the Parent directing the Escrow Agent to release all property held in the CC Escrow Shares Account to CC, with a copy of such letter to Codina or his Permitted Successor (the “CC Direction Letter”). Within ten (10) Business Days after the Escrow Agent’s receipt of the CC Direction Letter, the Escrow Agent shall release the CC Escrow Account to CC.

b. Immediately following the expiration of the CC Escrow Period if a CC Direction Letter has not been delivered to the Escrow Agent, the Escrow Agent shall, without any further action or notice, release to Parent all property held in the CC Escrow Shares Account (unless Codina or his Permitted Successor has, prior to such expiration submitted a letter to the Escrow Agent asserting in good faith that the possession of such account is subject to a dispute between the parties, in which case such account shall be released in accordance with a Direction Letter or pursuant to a Final Order).

c. In addition to the foregoing, the Escrow Agent shall release and distribute the assets held in the CC Escrow Shares Account at any time during the or CC Escrow Period pursuant to and upon receipt by the Escrow Agent of any Direction Letter.

5. Payment from the Additional Consideration Escrow Shares Account. Shares of Parent Stock, cash and other securities in the Additional Consideration Escrow Shares Account shall be held and disposed of by the Escrow Agent as follows:

a. If at any time and from time to time during the period commencing on the Closing Date and ending on or before the fifth (5th) anniversary of the date of this Agreement (the “Additional Consideration Escrow Period”), the Contributors are entitled to receive Additional Consideration in accordance with Section III of Schedule D of the Merger and Contribution Agreement, then Parent shall deliver to the Escrow Agent a letter with a copy of such letter to Codina or his Permitted Successor (an “Additional Consideration Direction Letter”) directing the Escrow Agent to deliver an appropriate number of shares of Parent Stock, as determined in accordance with the Merger and Contribution Agreement, together with any Additional Shares and Escrow Cash in respect thereof (all of which shall be set forth in such Additional Consideration Direction Letter) from the Additional Consideration Escrow Shares Account and, the Escrow Agent shall, within ten (10) Business Days after receipt of such Additional Consideration Direction Letter release the number of shares of Parent Stock together with any Additional Shares and Escrow Cash in respect thereof as specified in the Additional Consideration Direction Letter to Codina, or his Permitted Successor, on behalf of the Contributors.

b. Immediately following the expiration of the Additional Consideration Escrow Period, the Escrow Agent shall, without any further action or notice, release to Parent all shares of Parent Stock and assets held within the Additional Consideration Escrow Shares Account (other than those subject to a pending Additional Consideration Direction Letter or with respect to which Codina or his Permitted Successor has, prior to such expiration delivered a letter to the Escrow Agent asserting that the possession of such account is subject to a dispute between the parties, in which case such account shall not be released except in accordance with a Direction Letter or pursuant to a Final Order).

c. In addition to the foregoing, the Escrow Agent may release and distribute the assets held in the Additional Consideration Escrow Shares Account at any time during the Additional Consideration Escrow Period pursuant to and upon receipt by the Escrow Agent of any Direction Letter.

6. Payment from the Red Road Escrowed Shares Account. Shares of Parent Stock, cash and other securities in the Red Road Consideration Escrowed Shares Account shall be held and disposed of by the Escrow Agent as follows:

a. If at any time and from time to time during the period commencing on the date of this Agreement and ending on December 31, 2006 (the “Red Road Consideration Escrow Period”), the Contributors are entitled to receive Red Road Consideration in accordance with Section III of Schedule D of the Merger and Contribution Agreement, then Parent shall deliver to the Escrow Agent a letter with a copy of such letter to Codina or Permitted Successor (a “Red Road Consideration Direction Letter”) directing the Escrow Agent to deliver the Red Road Shares, together with any Additional Shares and Escrow Cash in respect thereof from the Red Road Consideration Escrow Account and, the Escrow Agent shall, within ten (10) Business Days after receipt of such Red Road Consideration Direction Letter release the number of shares of Parent Stock together with any Additional Shares and Escrow Cash in respect thereof as specified in the Red Road Consideration Direction Letter to Codina, or his Permitted Successor, on behalf of the Contributors.

b. Immediately following the expiration of the Red Road Consideration Escrow Period, the Escrow Agent shall, without any further action or notice, release to Parent all shares of Parent Stock and assets held within the Red Road Consideration Escrow Shares Account (other than those subject to a pending Red Road Consideration Direction Letter or with respect to which Codina or his Permitted Successor has, prior to such expiration delivered a letter to the Escrow Agent asserting that the possession of such account is subject to a dispute between the parties, in which case such account shall not be released except in accordance with a Direction Letter or pursuant to a Final Order).

c. In addition to the foregoing, the Escrow Agent may release and distribute the assets held in the Red Road Consideration Escrow Shares Account at any time during the Additional Consideration Escrow Period pursuant to and upon receipt by the Escrow Agent of any Direction Letter.

7. Distributions; Voting; Investment.

a. For the purposes of this Agreement, “Market Value” as to cash shall mean 100% of the amount of such cash and as to a share of Parent Stock shall mean the average closing price of Parent Stock on the NYSE (or other principal market on which Parent Stock is then traded over the twenty (20) trading days ending on the Business Day immediately prior to the date of any notice given under this Agreement to the Escrow Agent pursuant to which the Escrow Agent shall be obligated to distribute to any party Parent Stock, cash or other securities. If any distribution from an Escrow Account is in an amount equal to less than all of the property deposited in such Escrow Account, then, except as expressly provided otherwise herein, such distribution shall consist of a combination of Parent Stock and cash that bears the same proportion as the aggregate amount of the Parent Stock and cash in such Escrow Account, determined using the Market Value set forth in such notice pursuant to which such distribution is to be made.

b. Any Additional Shares and Dividends in respect of Escrow Shares that have not been released shall be added to the Escrow Fund in accordance with Section 1(d) above and become a part thereof.

c. The Escrow Shares, unless and until delivered to Parent pursuant to this Agreement, shall be registered in the respective names of the applicable Contributor, as notified to the Escrow Agent by Codina or his Permitted Successor on behalf of the Contributors, who shall be entitled to vote their respective Escrow Shares.

d. The Escrow Cash shall be invested and reinvested at the direction of Codina or his Permitted Successor, acting on behalf of the Contributors in (a) obligations issued or guaranteed as to interest and principal by the government of the United States or any agency or instrumentality thereof, (b) certificates of deposit, demand deposits, or the deposits of banks or trust companies that are members of the Federal Deposit Insurance Corporation, including the Escrow Agent, that have combined capital and surplus of at least $1 billion, (c) any repurchase agreement of a bank or trust company, including the Escrow Agent, organized under the United States or any state thereof and fully collateralized by obligations described in (a) above or, (d) the STI Classic U.S. Treasury Securities Money Market Fund. Any interest and other earnings paid on or with respect to any Escrow Cash shall be deemed to be deposited in the particular Escrow Account which generated such amounts. From the date hereof until otherwise directed in writing by Codina or his Permitted Successor, the Escrow Agent shall invest any cash portion of the Escrow Fund in the STI Classic U.S. Treasury Securities Money Market Fund. The Escrow Agent shall have no liability for any loss or diminution in the Escrow Fund resulting from investments made in accordance with the provisions of this Agreement. On or before the execution and delivery of this Agreement, each of the parties of this Agreement shall provide to the Escrow Agent a completed Form W-9 or Form W-8, whichever is appropriate. Notwithstanding anything to the contrary herein provided, the Escrow Agent shall have no duty to prepare or file any federal or state tax report or return with respect to the Escrow Fund or any income earned thereon.

8. Duties of, and Reliance by, the Escrow Agent.

To induce the Escrow Agent to act hereunder, it is further agreed that:

a. The Parent and the Contributors hereby appoint and engage the Escrow Agent, and by its execution hereof the Escrow Agent hereby agrees, to hold, invest and administer the Escrow Fund in accordance with the terms of this Escrow Agreement and represents that it has the legal power and authority to enter into this Escrow Agreement and perform its obligations hereunder. The Escrow Agent agrees that its documents and records with respect to the transactions contemplated hereby shall be available for examination by the authorized representatives of the Parent and the Contributors.

b. The Escrow Agent may act in reliance upon any writing, instrument or signature that it, in good faith, believes to be genuine, and may assume the

validity and accuracy of any statement or assertion contained in such writing or instrument.

c. The Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any written instrument delivered to it, nor as to the identity, authority or rights of any person executing such written instrument.

d. The duties of the Escrow Agent shall be limited to compliance with the written terms of this Agreement and to delivery of the Escrow Fund in accordance with the terms hereof. In performing its duties under this Agreement, or upon the claimed failure to perform its duties, the Escrow Agent shall have no liability except for the Escrow Agent’s willful misconduct or gross negligence. In no event shall the Escrow Agent be liable for incidental, indirect, special, consequential or punitive damages. The Escrow Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein or in any notices given to it in accordance with the notice provisions of this Agreement. The Escrow Agent shall not be required to take notice of the Merger and Contribution Agreement and shall have no duty or responsibility to take any action pursuant to the terms thereof. The Escrow Agent shall have no liability with respect to the transfer or distribution of any funds effected by the Escrow Agent pursuant to wiring or transfer instructions provided to the Escrow Agent by any party to this Agreement. The Escrow Agent shall be entitled to seek the advice of legal counsel with respect to any matter arising under this Agreement and the Escrow Agent shall have no liability and shall be fully protected with respect to any action taken or omitted pursuant to the advice of such legal counsel. The Escrow Agent shall not be obligated to take any legal action or to commence any proceedings in connection with the Escrow Accounts, the Escrow Fund or this Agreement, or to appear in, prosecute or defend in any such legal action or proceedings.

e. The Escrow Agent is hereby authorized to rely, and shall be protected in relying, upon any written direction, request, waiver, consent, certificate or other paper or document furnished to it and signed by Parent or any Contributor, notwithstanding that such direction may be or appear to be in conflict with, or supplemental to, the terms of this Agreement.

f. The parties shall not require the Escrow Agent to resolve issues regarding the interpretation of the substantive provisions of this Agreement or any other agreement among the parties; rather, the parties intend only that the Escrow Agent hold the Escrow Fund in escrow and deliver the Escrow Fund pursuant to this Agreement.

9. Tax Matters. The Escrow Agent does not have any interest in the Escrow Fund deposited hereunder but is serving only as escrow holder and having only possession thereof. The Contributors shall be responsible for the payment of taxes related to the Escrow Fund and any income or interest earned on, or distribution of, the Escrow Fund. Any payments of income from the Escrow Fund shall be subject to

withholding regulations then in force with respect to Taxes. For purposes of Taxes based on income, the applicable Contributor shall be treated as the owner of the Escrow Fund and that the applicable Contributor will report all income, if any, that is earned on, or derived from, the Escrow Fund as such Contributor’s income in the taxable year or years in which such income is properly includable and pay any taxes attributable thereto. Not later than 30 days after the date of this Agreement, the parties hereto will provide the Escrow Agent with all appropriate information to enable the Escrow Agent to report any interest or other income accrued hereunder pursuant to Internal Revenue Code Section 1099, including, without limitation, the interest of each Contributor in each Escrow Account. This Section 8 shall survive the termination of this Agreement or resignation of the Escrow Agent.

10. Right to Interplead.

If the parties, including the Escrow Agent, are in disagreement about the interpretation of this Agreement, or about the rights and obligations of the propriety of any action contemplated by the Escrow Agent under this Agreement, or if the Escrow Agent receives any conflicting demands or claims regarding any shares of Parent Stock, monies, instruments or documents delivered to or to be delivered by the Escrow Agent, the Escrow Agent may, but shall not be required to, file an action in interpleader to resolve any disagreement in a court of competent jurisdiction in Miami-Dade, Florida. In the event of a disagreement as described above, Escrow Agent shall also have the right, in addition to the rights described above and at the election of Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all money and property comprising the Escrow Fund and may take such other legal action as may be appropriate or necessary, in the reasonable opinion of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent shall be discharged from all further duties under this Agreement; provided, however, that the filing of any such legal proceedings shall not deprive Escrow Agent of its compensation hereunder earned prior to such filing and discharge of Escrow Agent of its duties hereunder. The Escrow Agent shall be indemnified for all costs, including without limitation reasonable attorneys’ fees and expenses (including but not limited to all fees and costs incident to any appeals that may result), in connection with any interpleader action, and shall be fully protected in suspending all or a part of its activities under this Agreement until a final and unappealable judgment or order in the interpleader action is received.

11. Liability of the Escrow Agent.

The Escrow Agent and its officers, directors, shareholders, affiliates, employees, successors and assigns shall not be liable for anything which they may do or refrain from doing in connection herewith or for the loss of any monies or other components of the Escrow Fund held by the Escrow Agent, provided that such party has not acted with willful, intentional or grossly negligent misconduct.

12. Termination of the Escrow Agent’s Duties and Liability.

Upon the Escrow Agent’s delivery of the entire Escrow Fund, the escrow established hereby shall terminate and the Escrow Agent shall thereafter be released of all duties, obligations and liabilities hereunder.

13. Indemnification of the Escrow Agent.

The parties hereto hereby jointly and severally agree to indemnify, defend and hold the Escrow Agent, each of its officers, directors, shareholders, affiliates, employees, successors and assigns, harmless from and against any causes of action, claims, counterclaims, demands, lawsuits, costs, expenses, obligations, damages and deficiencies, including interest, penalties and attorneys’ fees and paraprofessional fees and expenses (including those related to appeals), and all other expenses and liabilities of every kind and nature which the Escrow Agent or such persons may sustain or incur directly or indirectly in connection with this Agreement unless resulting from such person’s willful misconduct or gross negligence. The Escrow Agent shall be vested with a lien on the Escrow Fund deposited under this Agreement for the indemnification contemplated hereby, and the Escrow Agent shall have the right regardless of the instructions to hold the Escrow Fund until and unless its costs, expenses and attorneys’ fees are fully paid. This section shall survive the termination of the this Agreement and any resignation or removal of this Escrow Agent other than due to willful misconduct or gross negligence.

14. Resignation of the Escrow Agent.

The Escrow Agent may resign upon thirty (30) days prior written notice to Parent and the Contributors, and such resignation shall be effective on the date specified in the notice. Upon the delivery of the Escrow Fund by the Escrow Agent to a successor escrow agent appointed by the written agreement of Parent and the Contributors, the Escrow Agent shall be released from all liability and obligation hereunder. In the event Parent and Codina or his Permitted Successor, acting on behalf of the Contributors, fail to agree on a successor escrow agent within thirty (30) days after such resignation, the Escrow Agent shall be entitled to tender into the custody of any court of competent jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Agreement. The Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.

15. Escrow Agent Fees and Expenses.

The Escrow Agent shall be entitled to the compensation described on Exhibit B hereof for all services rendered hereunder and to reimbursement of reasonable out-of-pocket expenses incurred by it in the performance of its obligations hereunder as set forth in said Exhibit B. The Escrow Agent’s fees and expenses shall be a joint and several obligation of Parent and Contributors, provided, however, that solely as among Parent and Contributors shall be borne one-half by Parent and one-half by the Contributors.

16. Miscellaneous.

a. Notices. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing

(including electronic transmission) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, or mailed (airmail if international) by registered or certified U.S. mail (postage prepaid), return receipt requested, addressed to:


if to Escrow Agent, to:		SunTrust Bank Corporate Trust Division 225 East Robinson Street Suite 250 Orlando, FL 32801 Attention: Gloria Reyes Telephone No.: (407) 237-4240 Facsimile No.: (407) 237-5299 Email: Gloria.Reyes@Suntrust.com

if to FECI, to:		Florida East Coast Industries, Inc. One Malaga Street St. Augustine, FL 32084-1048 Attention: Heidi Eddins, Esq. Telephone No.: (904) 826-2398 Facsimile No.: (904) 826-2379

with a copy to:		Greenberg Traurig, P.A. 1221 Brickell Avenue Miami, FL 33131 Attention: Ira Rosner Telephone No.: (305) 579-0844 Facsimile No.: (305) 579-0717

if to the Contributors, to:		Armando Codina 355 Alhambra Circle Suite 900 Coral Gables, Florida 33134 Facsimile No.: (305) 520-2400

with a copy to:		White & Case LLP 200 South Biscayne Boulevard Suite 4900 Miami, Florida 33131 Attention: K. Lawrence Gragg Telephone No.: (305) 995-5209 Facsimile No.: (305) 358-5744

or to such other address(es) as any party may designate by written notice complying with the terms of this Section. All such notices, requests, consents and other communications shall be deemed received on the date of receipt by the recipient thereof.

b. Acknowledgement of Action. The parties hereto acknowledge and agree that Codina or his Permitted Successor shall be the Contributors’ representative in connection with this Agreement and shall have complete and irrevocable authority act for and on behalf of the Contributors. Notwithstanding anything to the contrary provided in this Agreement, the Escrow Agent shall be entitled to rely conclusively and without further inquiry on any notice, direction or other action taken by Codina as constituting the action of the Contributors and the Escrow Agent shall not be required to take any notice of any direction, notice, or other communication provided by any Contributor other than Codina or his Permitted Successor.

c. Waiver and Modification. Except as otherwise provided herein, the waiver of any term, provision or condition of this Agreement shall be effective only if in writing and signed by the parties hereto, and then only in the specified instance and for the particular purpose for which it was given. No failure to exercise or any delay in exercising any right or power hereunder shall operate as a waiver thereof. No modification or amendment hereof shall be valid and binding unless it is in writing and signed by the parties hereto.

d. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective administrators, executors, heirs, legal representatives, successors and assigns, whether so expressed or not.

e. Governing Law. This Agreement and all transactions contemplated by this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida without regard to the principles of conflict of laws that would cause the laws of another jurisdiction to apply.

f. Headings. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of the Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.

g. Severability. If any provision of this Agreement or any other agreement entered into pursuant hereto is contrary to, prohibited by or deemed invalid under applicable law or regulation, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder hereof shall not be invalidated thereby and shall be given full force and effect so far as possible. If any provision of this Agreement may be construed in two or more ways, one of which would render the provision invalid or otherwise voidable or unenforceable and another of which would render the provision valid and enforceable, such provision shall have the meaning that renders it valid and enforceable.

h. Jurisdiction and Venue. To the extent that any dispute or claim arising hereunder cannot be settled by arbitration, 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, the transactions

contemplated hereby or upon an arbitration award hereunder may be brought in the Circuit Court of the State of Florida, Miami-Dade County, and each of the parties hereby irrevocably consents to the jurisdiction of such court (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 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 such court. Without limiting the foregoing, each party agrees that service of process on such party as provided in Section 16(a) shall be deemed effective service of process on such party.

i. Entire Agreement; Assignment. This Agreement represents the entire understanding and agreement among the parties with respect to the subject matter hereof, and supersedes all other negotiations, understandings and representations (if any) made by and among such parties. The parties hereto acknowledge and agree that the Escrow Agent is not a party to the Merger and Contribution Agreement and shall not be required to take any notice thereof and shall have no duties or obligations thereunder. This Agreement shall not be assigned except by operation of the laws of inheritance or intestacy.

j. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. The parties hereto acknowledge that facsimile signatures of this Agreement shall have the same force and effect as original signatures.

k. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. EACH PARTY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTIES TO ENTER INTO THIS AGREEMENT AND AGREES NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE WAIVED.

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


FOXX HOLDINGS, INC.

By:	/s/ Heidi J. Eddins
	Name:	Heidi J. Eddins
	Title:	Vice President & Secretary
	Tax I.D. No. 20-4427296


FLORIDA EAST COAST INDUSTRIES, INC.

By:	/s/ Heidi J. Eddins
	Name:	Heidi J. Eddins
	Title:	Executive Vice President, Secretary & General Counsel
	Tax I.D. No. 59-2349968

ARMANDO CODINA

/s/ Armando Codina

Armando Codina

Tax I.D. No. [Intentionally Omitted]


C/COUNTYLINE, LLC

By:	/s/ Kolleen O.P. Cobb
	Name:	Kolleen O.P. Cobb
	Title:	Vice President
	Tax I.D. No. 20-4760736


C/WDL, LTD

By:	C/WDL, Inc., its general partner

By:	/s/ Kolleen O.P. Cobb
	Name:	Kolleen O.P. Cobb
	Title:	Vice President
	Tax I.D. No. 65-0978263


SUNTRUST BANK, A GEORGIA BANKING CORPORATION, AS ESCROW AGENT

By:		/s/ Gloria Reyes
Name:		Gloria Reyes
Title:		Assistant Vice President

EX-99.5 5 dex995.htm LOCK-UP AND REGISTRATION RIGHTS AGREEMENT Lock-up and Registration Rights Agreement

Exhibit 99.5

LOCK-UP AND REGISTRATION RIGHTS AGREEMENT

THIS LOCKUP AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of April 27, 2006, by and among Foxx Holdings Inc, a Florida corporation (the “Company”), Armando Codina (“Codina”), each of the limited partners of Codina Doral, Ltd., a Florida limited partnership listed on the signature pages hereto (the “CDL Limited Partners”, C/Countyline, LLC, a Florida limited liability company (“CC”), and C/WDL, Ltd., a Florida limited partnership (“C/WDL” and together with Codina, the CDL Limited Partners and CC, the “Shareholders” and each, individually, a “Shareholder”).

WHEREAS, (i) pursuant to the Agreement and Plan of Merger and Contribution dated as of January 5, 2006 (the “Contribution Agreement”) among Florida East Coast Industries, Inc., a Florida corporation, the Company, Foxx Merger Sub, Inc., a Florida corporation, and certain of the Shareholders, certain of the Shareholders received an aggregate of 3,008,830 shares of Parent Stock (as defined in the Contribution Agreement), certain of which shares of Parent Stock have been deposited into escrow pursuant to the terms of an Escrow Agreement entered into on the date hereof, (ii) pursuant to the Contribution Agreement, the Shareholders (other than certain of the CDL Limited Partners) may receive additional shares of Parent Stock, and (iii) pursuant to that certain Amended and Restated Limited Partnership Agreement to be dated as of the Closing Date and to be entered into by Flagler Doral, LLC and the CDL Limited Partners (the “Partnership Agreement” and, together with the Contribution Agreement, the “Transaction Agreements”), the CDL Limited Partners, may receive shares of Parent Stock (all such shares of Parent Stock set forth in the preceding clauses (i) through (iii) and any equity securities issued with respect to any of such shares by way of stock dividend, stock split or in connection with a combination of stock, recapitalization, merger, consolidation or other reorganization, collectively, the “Shares”);

WHEREAS, the Company desires to limit the resales of the Shares and acquire the option to repurchase such shares in the event that the Shareholders determine to sell the Shares;

WHEREAS, the Shareholders have agreed to the lock-up provisions contained herein and to grant the Company the right of first refusal contained herein;

WHEREAS, the Shareholders desire to have liquidity with respect to the Shares following the expiration of the Lock-up Period (as defined herein);

WHEREAS, to facilitate such sales of the Shares, the Company has agreed to afford the Shareholders certain registration rights with respect to the Shares.

NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements contained herein and in the Transaction Agreements and other good and

valuable consideration, receipt of which the parties hereby acknowledge, the parties agree as follows:

Section 1. Definitions.

(a) Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to such terms in the Contribution Agreement.

(b) For purposes of this Agreement, the following terms shall have the following meanings:

“Prospectus” means the prospectus included in any Registration Statement at the time the same becomes effective, as amended or supplemented by any prospectus supplement deemed to be part of such Registration Statement and any post-effective amendments to such Registration Statement, and all material incorporated by reference in the prospectus.

“Registrable Securities” means the Shares; provided, however, that a Share shall be a Registrable Security only for so long as the Share continues to be a Restricted Security. For purposes of this Agreement, each Share shall be a “Restricted Security” at the date of this Agreement. A Share shall cease to be a Restricted Security on the earliest of the following dates: (i) the date the Company has effectively registered the Share under the 1933 Act and the Shareholder who owns it has disposed of the Share in accordance with the Registration Statement covering the Share, or (ii) the date the Shareholder who owns it shall be eligible to sell all Shares owned by such Shareholder to the public pursuant to Rule 144 (or any similar provisions then in force) under the 1933 Act, or (iii) the date the Shareholder has otherwise transferred the Share (except for transfers complying with the provisions of Section 11(i)).

“Registration Statement” means a registration statement on Form S-3 (or any successor form under the 1933 Act ), including, to the extent available to the Company, an “automatic shelf registration statement” (as that term is defined in Rule 405 under the 1933 Act) of the Company which covers all of the Registrable Securities, including all post-effective amendments thereto, the Prospectus and supplements thereto, all exhibits and all material incorporated by reference in the registration statement.

Section 2. Lock-Up.

(a) Each Shareholder agrees not to, directly or indirectly, offer to sell, sell, transfer, exchange, pledge, contract to sell or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition by the Shareholder (“Transfer”), any Shares for a period of two years beginning on the Closing Date and ending on the second anniversary of the Closing Date (such two year period, the “Lock-Up Period”). Each Shareholder shall have the right to Transfer Shares owned by such Shareholder to members of his or her family or trusts for

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the benefit of such family members and direct or indirect owners (as of the Closing Date) of equity interests in a Shareholder, provided that prior to any such Transfer the transferee shall join in this Agreement and agree to be bound by its terms. Any Transfer made pursuant to the foregoing sentence shall not be deemed a Transfer for purposes of applying subsection (b) of this Section 2. In addition, for purposes of subsection (a) and (b) of this Section 2, the annual transfer by the Shareholders of Shares valued in an aggregate amount not in excess of $1,000,000 (valued at the closing price of a Share as reported on the Stock Market (as defined below) on the trading day prior to any such transfer) to an organization which is described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, shall not be deemed Transfers hereunder.

(b) Following the date on which the Lock-Up Period expires (the “Expiration Date”), each Shareholder agrees not to, directly or indirectly, Transfer any Shares, other than:

(i) during the period beginning on the Expiration Date and expiring on the first anniversary of the Expiration Date, Shares which together with all Shares previously Transferred by such Shareholder represent no more than 25% of all Shares issued to such Shareholder under the Transaction Agreements prior to the date of such Transfer;

(ii) during the period beginning on the Expiration Date and expiring on the second anniversary of the Expiration Date, Shares which together with all Shares previously Transferred by such Shareholder represent no more than 50% of all Shares issued to such Shareholder under the Transaction Agreements prior to the date of such Transfer;

(iii) during the period beginning on the Expiration Date and expiring on the third anniversary of the Expiration Date, Shares which together with all Shares previously Transferred by such Shareholder represent no more than 75% of all Shares issued to such Shareholder under the Transaction Agreements prior to the date of such Transfer; and

(iv) after the third anniversary of the Expiration Date, any Shares then owned by such Shareholder.

Section 3. Right of First Offer. If any Shareholder desires to Transfer Shares as permitted in Section 2, in any 90 day period following the expiration of the Lock Up Period, Shares representing more than 0.08% of the outstanding shares of the Company on or prior to the beginning of such 90 day period (such excess Shares, the “Offered Stock”), such Shareholder shall first give written notice (a “Transfer Notice”) thereof to the Company, stating:

(a) the proposed transferee or registered broker-dealer through whom the Offered Stock will be sold on the NYSE or any other principal exchange or

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stock market upon which Parent Stock is then listed or included for trading (the “Stock Market”);

(b) the number of Shares sought to be Transferred;

(c) the proposed per share purchase price (such proposed purchase price, the “Offered Price”, it being understood that in the case of a proposed sale on the Stock Market, the Offered Price shall be the closing price per share as reported on the Stock Market on the date of the Transfer Notice);

(d) the terms of the proposed transaction including the proposed transaction date and a copy of any written offer or other writing setting forth the terms and conditions of the proposed transaction.

Such Transfer Notice shall constitute an irrevocable offer by such Shareholder to sell all of the Offered Stock to the Company or its designee at the Offered Price and upon the same terms and conditions as such Shareholder is willing to sell the Offered Stock to the proposed transferee or via the broker-dealer. Within the seven Business Day period following receipt of the Transfer Notice (the “Offer Period”), the Company may elect, by giving written notice of such election to such Shareholder (such notice, the “Acceptance Notice”), to purchase all, but not less than all, of the Offered Stock. If the Company does not elect, by the giving of an Acceptance Notice to such Shareholder within the Offer Period, to purchase the Offered Stock, then such Shareholder shall be free to dispose the Offered Stock to the original proposed transferee (or through the Stock Market if set forth in the Transfer Notice), at a price not lower than the Offered Price or, if the Transfer Notice sets forth an intent to sell through the Stock Market, the price of a share of Parent Stock prevailing from time to time on the Stock Market, and upon the terms stipulated in the Transfer Notice in all material respects.

Section 4. Exchange Fund Transfer Exception. Notwithstanding anything to the contrary set forth in Section 3, each Shareholder may, subject to the volume limitation set forth in Section 2, Transfer Shares following the expiration of the Lock-Up Period to an “exchange fund” that is sponsored by a registered broker-dealer firm without first providing the Company a Transfer Notice or having such Shares be deemed to be Offered Stock.

Section 5. Restricted Securities.

(a) Each Shareholder acknowledges that in addition to the restrictions imposed under this letter agreement, the Shareholder’s ability to Transfer any shares of Parent Stock following the expiration of the Lock-Up Period shall remain subject to any restrictions imposed by applicable federal and state securities laws. Specifically, the Shareholder acknowledges that the Shares Stock are “restricted securities” for purposes of the 1933 Act and the Shareholder shall not Transfer any such shares unless (i) such Shares are registered under the 1933 Act, (ii) such Transfer is permitted pursuant to Rule 144 under the 1933 Act or (iii) counsel representing the Shareholder, which counsel shall

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be White & Case LLP or such other counsel reasonably satisfactory to Parent, shall have advised Parent in a written opinion letter satisfactory to Parent and Parent’s legal counsel that no registration under the 1933 Act or applicable state securities laws would be required in connection with the proposed Transfer.

(b) Each Shareholder hereby agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent against the transfer of any Shares in violation of this Agreement. Each Shareholder further agrees that certificates representing Shares issued to such Shareholder under the Transaction Agreements may contain a legend appropriately referencing this Agreement and the restrictions on transfer described herein; provided that certificates representing such Shares not bearing any legend referring to such restrictions shall be issued to the transferee of such shares upon any Transfer in which the transferee would not acquire restricted securities within the meaning of Rule 144.

Section 6. Registration. On or prior to the Expiration Date, and following the Expiration Date, on or prior to the date on which the Shareholders are prohibited from offering or selling Registrable Securities under any previously effective Registration Statement, the Company shall prepare and file a Registration Statement providing for the sale of the Registrable Securities by the Shareholders pursuant to Rule 415 of the 1933 Act and/or any similar rule that may be adopted by the SEC. Each Shareholder agrees that notwithstanding the foregoing, the Company shall not be required to file such Registration Statement, nor will such Shareholder offer or sell Registrable Shares registered under the Registration Statement during any period (a “Delay Period”) specified by the Company if the Company shall furnish to the Shareholders a certificate signed by an officer of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be seriously detrimental to the Company for such Registrable Shares to be offered and sold under the Registration Statement during such Delay Period; provided that no Delay Period will be longer than the period during which the Company’s officers and directors are restricted by Company policy or directives from trading in Parent Stock and the Registration Statement shall be filed expeditiously after the end of the Delay Period; provided, further, that in no event shall the Shareholders be prevented from making sales of Registrable Securities pursuant to the Registration Statement for more than 120 days in any twelve month period. In the event that the Company is not, as of the Expiration Date, or thereafter eligible to use Form S-3 (or any successor form under the 1933 Act), the Company and the Shareholder will amend this Agreement to provide the Shareholders with the registration rights approximating as nearly as possible the registration rights set forth in this Agreement.

Section 7. Registration Procedures. In connection with the Company’s registration obligations pursuant to Section 6 of this Agreement, the Company shall use its reasonable efforts to effect the registration and sale of the Registrable Securities in accordance with the method of distribution described on the attached Schedule 1 and, pursuant thereto, the Company shall:

(a) on or prior to the Expiration Date, and following the Expiration Date, on or prior to the date on which any Shareholder is prohibited from offering or selling Registrable Securities under any previously effective Registration Statement, prepare and file with the SEC a Registration Statement and pay the applicable registration fee with respect to all of the Registrable Securities;

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(b) prepare and file with the SEC such reports and other documents and information as may be necessary to keep such Registration Statement continuously effective for a period expiring on the earlier of (i) the date on which all of the Registrable Securities covered by the Registration Statement have been sold pursuant thereto, (ii) the date on which all Registrable Securities are eligible for immediate resale pursuant to Rule 144 under the 1933 Act, and (iii) the date that a subsequent Registration Statement has been filed pursuant to Section 7(a);

(c) furnish to each Shareholder, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated by reference therein and all exhibits (including those incorporated by reference);

(d) deliver to each Shareholder, without charge, as many copies of the Prospectus and any amendment or supplement thereto as they may reasonably request, but only while the Company is required to cause the Registration Statement to remain effective;

(e) use its reasonable efforts to register or qualify such Registrable Securities for offer and sale under the securities or blue sky laws of such states or possessions as any Shareholder may reasonably request (the “Blue Sky Laws”) and do any and all other acts or things necessary or advisable to enable such Shareholders to consummate the disposition in such jurisdictions of Registrable Securities owned by such Shareholders; provided, however, that in no event shall the Company be obligated to qualify generally to do business in any jurisdiction where it is not now qualified or to take any action which would subject it to the service of process in suits other than those arising out of the offer or sale of the securities covered by such Registration Statement in any jurisdictions where it is not now so subject;

(f) cooperate with each Shareholder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, free of any and all restrictive legends, which certificates shall be in such denominations and registered in such names as such Shareholder may request;

(g) use its commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on the Stock Market;

(h) notify each Shareholder at any time when a Prospectus relating thereto is required to be delivered under the 1933 Act, of the happening of any

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event as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such Shareholder, the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; provided, however, that the Company need not prepare any such supplement or amendment during a Delay Period;

(i) advise each Shareholder, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use all reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; and

(j) make available for inspection by Codina as the representative of each Shareholder (whose appointment and powers as such representative is hereby approved by the Shareholders as if the provisions of Section 12.13 of the Contribution Agreement were set forth herein substituting “Shareholder” where the word “Contributor” appears therein), and his permitted successor (the “Representative”), and any attorney or accountant retained by the Representative all reasonably requested financial and other records, pertinent corporate documents and properties of the Company; provided that such Persons shall keep confidential any records, information or documents of the Company unless a court or administrative agency requires the disclosure of the records, information or documents or such records, information or documents (A) become generally available to the public other than as result of a disclosure by any such Persons, (B) were available to such Persons on a non-confidential basis prior to the disclosure of such records, information or documents pursuant to this Agreement, or (C) become available to such Persons on a non-confidential basis from a source other than the Company or its agents, advisors or representatives.

The Company may require each Shareholder to furnish to the Company information regarding such Shareholder and the distribution of the Registrable Securities as the Company may from time to time reasonably request in writing and as necessary for the registration of the Shares. Nothing contained in this Agreement shall be construed to require the Company to enter into any underwriting agreement, sales agency agreement or other securities distribution agreement.

Each Shareholder agrees that, upon receipt of any notice from the Company of the happening of any of the following: (i) the SEC’s issuance of any stop order denying or suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceeding for that purpose, (ii) the Company’s receipt of any stop order denying registration or suspending the qualification of the Registrable Securities for sale or the

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initiation or threatening of any proceeding for such purpose, (iii) the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated by reference therein untrue or which requires any change in the Registration Statement, the Prospectus or any document incorporated by reference therein to make the statements not include an untrue statement of material fact or not omit any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, such Shareholder shall discontinue the disposition of Registrable Securities until such Shareholder receives a supplemented or amended Prospectus from the Company or until the Company advises such Shareholder in writing that such Shareholder may resume the use of the Prospectus, and have received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus. If the Company so directs, each Shareholder will deliver to the Company (at the Company’s expense) all copies, other than permanent file copies then in such Shareholder’s possession, of the Prospectus covering the Registrable Securities at the time such Shareholder received the notice. Notwithstanding anything to the contrary contained in this Agreement, each Shareholder that is an Affiliate of Codina agrees that so long as Codina is an employee or director of the Company, that such Shareholder shall comply with the Company’s insider trading policy as in effect from time to time and shall not Transfer any Shares in violation thereof.

Section 8. Registration Expenses. Regardless of when the Registration Statement is filed, the Company shall bear all costs and expenses incident to the Company’s performance of, or compliance with, this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with the Blue Sky Laws, printing expenses, messenger, telephone and delivery expenses, NYSE qualification and listing fees, and fees and disbursements of counsel for the Company, all independent certified public accountants of the Company and fees and expenses of other Persons retained by the Company relating to the distribution of the Registrable Securities (all such expenses being herein called “Registration Expenses”). The Shareholders shall pay all discounts and commissions attributable to the Registrable Securities, all transfer taxes relating to the sale or disposition of the Registrable Securities and any fees of any attorney or accountant retained by the Shareholders or the Represenative.

Section 9. Disclosure. With a view to making available registration on Form S-3 and the benefits of Rule 144 under the 1933 Act, the Company agrees, for a period commencing on the Expiration Date and ending on the date on which all Shares have been Transferred by the Shareholders, to:

(a) Use commercially reasonable efforts to make and keep current public information available within the meaning of Rule 144(c) of the 1933 Act.

(b) Use commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents and information required of the Company under the 1934 Act, and take such other actions as may be necessary to

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assure the availability of Form S-3 for use in connection with the registration rights provided in this Agreement.

(c) Furnish to each Shareholder promptly upon request a written statement as to the Company’s compliance with the reporting requirements of Rule 144 and the 1934 Act, a copy of the Company’s most recent annual and quarterly reports, and such other reports, documents and other information in the possession of or reasonably obtainable by the Company as such Shareholder may reasonably request in availing itself of Rule 144.

Section 10. Indemnification.

(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless, to the full extent permitted by law, the Shareholders against all losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and expenses) to which the Shareholders may become subject under federal or state securities laws or otherwise which arise out of, or are caused by, the Company’s violation of any federal or state securities laws, including, but not limited to, any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or preliminary prospectus or in any application or other request that the Company files under the Blue Sky Laws or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, (under the circumstances in which such statements are made in the case of any Prospectus), not misleading, except insofar as the same are caused by or contained in any written information furnished to the Company by any of the Shareholders expressly for use therein or by any Shareholder’s failure to deliver a copy of the Registration Statement or Prospectus after the Company has furnished the participating Shareholders with a sufficient number of copies of the same.

(b) Indemnification by Shareholders. In connection with any Registration Statement, the Shareholders shall furnish to the Company such information and affidavits as the Company reasonably requests for use in connection with any Registration Statement or Prospectus and agree to indemnify and hold harmless, to the full extent permitted by law, the Company, its officers, directors and each Person who controls the Company (within the meaning of Section 20 of the 1933 Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and expenses) resulting from any untrue or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated in the Registration Statement, Prospectus or any application filed under the Blue Sky Laws or necessary to make the statements therein, (under the circumstances in which such statements are made in the case of any Prospectus), not misleading, but only to the extent that the untrue statement or omission is contained in any written information or affidavit so furnished by any Shareholder to the Company expressly for inclusion in the Registration Statement, Prospectus or application filed under the Blue Sky Laws; provided, however, that the obligation to indemnify under this Section 10(b) shall be joint and several among such Shareholders and shall be limited to the net amount of proceeds

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received by the Shareholders from the sale of Registrable Securities pursuant to such Registration Statement. The Company shall be entitled to receive indemnities from underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, to the same extent as provided above with respect to information so furnished by the Persons specifically for inclusion in any Prospectus or Registration Statement.

(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder shall (i) promptly notify the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. Any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of the claim, but the fees and expenses of the counsel shall be at the expense of the Person unless (A) the indemnifying party has agreed to pay the fees or expenses, (B) the indemnifying party shall have failed to assume the defense of the claim and employ counsel reasonably satisfactory to the Person, or (C) in the reasonable judgment of the Person, based upon advice of its counsel, a conflict of interest may exist between the Person and the indemnifying party with respect to the claims (in which case, if the Person notifies the indemnifying party in writing that the Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of the claim on behalf of the Person). If the indemnifying party assumes the defense, the indemnified party will not be subject to any liability for any settlement made without its consent, which consent will not be unreasonably withheld. No indemnified party will be required to consent to the entry of any judgment or to enter into any settlement which does not include as an unconditional term the claimant’s or plaintiff’s release of the indemnified party from all liability in respect to the claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel in any jurisdiction for all parties indemnified by the indemnifying party with respect to the claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to the claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels.

(d) Contribution. If for any reason the indemnification provided for in the Section 10(a) and (b) is unavailable to an indemnified party or insufficient to hold it harmless as contemplated by Section 10(a) and (b), then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of the loss, claim, damage, liability or expense in the proportion as is appropriate to reflect (i) the relative fault of the indemnified party and the indemnifying party, and (ii) any other relevant equitable considerations. Notwithstanding the foregoing, no Shareholder shall be required to contribute any amount in excess of the net amount of proceeds received by such holder from the sale of Registrable Securities giving rise to the loss, claim, damage, liability or expense.

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(e) Survival. The indemnities provided in this Section 10 shall survive the Shareholders’ transfer of any Registrable Securities.

Section 11. Miscellaneous.

(a) No Inconsistent Agreements. The Company shall not on or after the date of this Agreement enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Shareholders in this Agreement or otherwise conflicts with the provisions of this Agreement. The Company represents and warrants that the rights granted to the Shareholders under this Agreement do not in any way conflict with and are not inconsistent with any rights granted under any other agreement concerning the Company’s securities.

(b) Amendments and Waivers. No amendment, modification, supplement or waiver of any provision of this Agreement will be binding on any party unless the party consents in writing thereto. The provisions of this Agreement may not be amended or modified without the prior written consent of the Company and holders of a majority of the then outstanding shares of Registrable Securities.

(c) Remedies. 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.

(d) Notices. All notices or other communications given under this letter agreement shall be given as set forth in Section 11.01 of the Contribution Agreement.

(e) Governing Law. This letter agreement shall be governed by and construed in accordance with the laws of the State of Florida (without giving effect to its conflict of laws provisions that would cause the laws of another jurisdiction to apply).

(f) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

(g) Interpretation. The Section headings contained in this Agreement are for the purposes of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement.

(h) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected,

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impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

(i) Binding Effect; Assignment. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 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 permitted assigns. The Company may not assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of prior written consent of the holders of a majority of the then outstanding shares of Registrable Securities, such consent not to be unreasonably withheld; provided, however that such prohibition on assignment, delegation and transfer shall not apply in the case of the sale of all or substantially all of the Company’s assets (whether by merger, consolidation, recapitalization, asset sale or otherwise) and this Agreement is assumed either by operation of law or otherwise by such purchaser or successor. Other with respect to transferees who acquire shares under Section 2(a) who agree to join in this Agreement and agree to be bound by its terms, the rights and obligations of the Shareholders pursuant to this Agreement shall not be assignable except with the prior written consent of the Company, which consent may be given or denied in the Company’s sole and absolute discretion.

(j) No Presumption. Each party has agreed to the use of the particular language in the provisions of this Agreement, and any questions of doubtful interpretation shall not be resolved by any rule or interpretation against the draftsman, but rather in accordance with the fair meaning thereof, having due regard to the benefits and rights intended to be conferred upon the parties and the limitations and restrictions upon such rights and benefits intended to be provided.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


FOXX HOLDINGS, INC.

By:	/s/ Heidi J. Eddins
	Name:	Heidi J. Eddins
	Title:	Vice President and Secretary

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C/COUNTYLINE, LLC

By:	/s/ Kolleen O.P. Cobb
	Name:	Kolleen O.P. Cobb
	Title:	Vice President


C/WDL, LTD

By:	C/WLD, Inc., its general partner

By:	/s/ Kolleen O.P. Cobb
	Name:	Kolleen O.P. Cobb
	Title:	Vice President

ARMANDO CODINA (in his individual capacity, as Representative and as a CDL Limited Partner)

/s/ Armando Codina

Armando Codina

CDL LIMITED PARTNERS

/s/ Ana Marie Codina Barlick

Ana Marie Codina Barlick

/s/ Alexandra Margarita Codina

Alexandra Margarita Codina

/s/ Andria Codina Miyares

Andria Codina Miyares

/s/ Amanda Marcia Codina

Amanda Marcia Codina

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SCHEDULE 1

TO REGISTRATION RIGHTS AGREEMENT

The shares offered hereby may be sold from time to time by the Selling Shareholders, or by pledgees, donees, transferees or other permitted successors in interest of the Selling Shareholders. Such sales may be made on the NYSE, or otherwise, at prices and on terms then prevailing or at prices related to the then-current market prices, or in negotiated transactions at negotiated prices. The shares may be sold by one or in a combination of the following: (a) a block trade in which the broker or dealer so engaged will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus; and (c) ordinary brokerage transaction and transactions in which the broker solicits purchasers. In effecting sales, brokers or dealers engaged by the Selling Shareholders may arrange for other brokers or dealers to participate.

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