Amendment No. 3 to 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, RGWj0YIX9BQMe3575n5+dhgdlVxVib6yUb/XO29GyJvh7VG7vEnB2VDfmznfMuhw MI8Azs5xXQnLYcBx6LFoXA== 0001193125-04-141672.txt : 20040816 0001193125-04-141672.hdr.sgml : 20040816 20040816151315 ACCESSION NUMBER: 0001193125-04-141672 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20040816 GROUP MEMBERS: HERBERT H. PEYTON GROUP MEMBERS: HUGH M. DURDEN GROUP MEMBERS: JOHN F. PORTER III GROUP MEMBERS: JOHN S. LORD GROUP MEMBERS: THE NEMOURS FOUNDATION GROUP MEMBERS: W. T. THOMPSON III GROUP MEMBERS: WACHOVIA BANK, N.A. GROUP MEMBERS: WINFRED L. THORNTON SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FLORIDA EAST COAST INDUSTRIES INC CENTRAL INDEX KEY: 0000740796 STANDARD INDUSTRIAL CLASSIFICATION: RAILROADS, LINE-HAUL OPERATING [4011] IRS NUMBER: 592349968 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-36860 FILM NUMBER: 04978256 BUSINESS ADDRESS: STREET 1: ONE MALAGA STREET CITY: ST AUGUSTINE STATE: FL ZIP: 32084 BUSINESS PHONE: 9043966600 MAIL ADDRESS: STREET 1: ONE MALAGA STREET CITY: ST AUGUSTINE STATE: FL ZIP: 32084 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DUPONT ALFRED I TESTAMENTARY TRUST CENTRAL INDEX KEY: 0001051094 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1650 PRUDENTIAL DR STREET 2: SUITE 300 CITY: JACKSONVILLE STATE: FL ZIP: 32207 BUSINESS PHONE: 9048583121 MAIL ADDRESS: STREET 1: 1650 PRUDENTIAL DR STREET 2: SUITE 300 CITY: JACKSONVILLE STATE: FL ZIP: 32207 SC 13D/A 1 dsc13da.htm AMENDMENT NO. 3 TO SCHEDULE 13D Amendment No. 3 to Schedule 13D

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 3)

Florida East Coast Industries, Inc.

(Name of Issuer)

Common Stock, no par value

(Title of Class of Securities)

340632108

(CUSIP Number)

Winfred L. Thornton

Alfred I. duPont Testamentary Trust

4600 Touchton Road, East

Building 200, Suite 500

Jacksonville, Florida 32246

(904) 232-4148

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

August 13, 2004

(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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

Page 2 of 24


1	Names of Reporting Person: Alfred I. duPont Testamentary Trust I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* WC
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization Florida

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

-0-

8 Shared voting power

3,085,930

9 Sole dispositive power

-0-

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,085,930
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.8%	¨
14	Type of Reporting Person* OO

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 3 of 24


1	Names of Reporting Person: The Nemours Foundation I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) ¨
3	SEC use only
4	Source of Funds* WC
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization Florida

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

-0-

8 Shared voting power

-0-

9 Sole dispositive power

-0-

10 Shared dispositive power

-0-


11	Aggregate Amount Beneficially Owned by Each Reporting Person -0-
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 0.0%	¨
14	Type of Reporting Person* OO

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 4 of 24


1	Names of Reporting Person: Winfred L. Thornton I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF/PF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States Citizen

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

29,078

8 Shared voting power

3,085,930

9 Sole dispositive power

29,078

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,115,008
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.9%	¨
14	Type of Reporting Person* IN

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 5 of 24


1	Names of Reporting Person: Wachovia Bank, N.A., a subsidiary of Wachovia Corporation, as Corporate Trustee I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

132,792

8 Shared voting power

3,085,930

9 Sole dispositive power

132,792

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,218,722
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 10.2%	¨
14	Type of Reporting Person* BK

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 6 of 24


1	Names of Reporting Person: Hugh M. Durden I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States Citizen

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

-0-

8 Shared voting power

3,085,930

9 Sole dispositive power

-0-

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,085,930
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.8%	¨
14	Type of Reporting Person* IN

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 7 of 24


1	Names of Reporting Person: John S. Lord I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States Citizen

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

1,412

8 Shared voting power

3,085,930

9 Sole dispositive power

1,412

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,087,342
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.8%	¨
14	Type of Reporting Person* IN

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 8 of 24


1	Names of Reporting Person: Herbert H. Peyton I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF/PF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States Citizen

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

23,736

8 Shared voting power

3,085,930

9 Sole dispositive power

23,736

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,109,666
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.9%	¨
14	Type of Reporting Person* IN

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 9 of 24


1	Names of Reporting Persons: John F. Porter III I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States Citizen

Number of

beneficially

owned by

each

reporting

person

with

7 Sole voting power

-0-

8 Shared voting power

3,085,930

9 Sole dispositive power

-0-

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,085,930
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.8%	¨
14	Type of Reporting Person* IN

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 10 of 24


1	Names of Reporting Person: W. T. Thompson III I.R.S. Identification No. of Above Person (entity only)
2	Check the Appropriate Box if a Member of a Group* (a) ¨ (b) x
3	SEC use only
4	Source of Funds* AF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e)	:
6	Citizenship or Place of Organization United States Citizen

Number of

beneficially

owned by

each

Reporting

person

with

7 Sole voting power

800

8 Shared voting power

3,085,930

9 Sole dispositive power

800

10 Shared dispositive power

3,085,930


11	Aggregate Amount Beneficially Owned by Each Reporting Person 3,086,730
12	Check box if the Aggregate Amount in Row (11) Excludes Certain Shares*	¨
13	Percent of Class Represented by Amount in Row (11) 9.8%	¨
14	Type of Reporting Person* IN

• SEE INSTRUCTIONS BEFORE FILLING OUT!

Page 11 of 24

This Amendment No. 3 amends the Statement on Schedule 13D dated October 19, 2000, filed by the Reporting Persons relating to the Common Stock, no par value (“Common Stock”), of Florida East Coast Industries, Inc., a Florida corporation (the “Issuer”).

Items 4, 5, 6 and 7 are hereby amended as set forth below.

Item 4. Purpose of Transaction.

Item 4 is hereby amended by adding the following paragraphs:

“For information concerning the sale by the Trust on July 16, 2004 of 5,200,000 shares of Common Stock on the terms contained in a confirmation statement dated June 9, 2004, see Items 5 and 6 of this Statement.

“For information concerning the sale by the Trust and the Foundation of 5,500,000 shares of Common Stock to the Company on the terms of the August 2004 Agreement (as hereinafter defined), see Items 5 and 6 of this Statement.

“In accordance with the terms of the August 2004 Agreement, it is presently contemplated that Messrs. Lord, Peyton and Thornton will resign from the Company’s Board of Directors on August 16, 2004. Upon such resignation, they will each forfeit 1,412 shares of Common Stock granted to them on June 3, 2004 pursuant to the Company’s stock incentive plan for directors.

“None of the Reporting Persons has any present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D except as set forth herein, subject to reevaluation as a result of changes in market or general economic conditions or other considerations.

“As a result of the sale by the Foundation of all its shares of Common Stock pursuant to the August 2004 Agreement on August 13, 2004, the Foundation has no further direct or indirect beneficial ownership of shares of Common Stock and on that date ceased to be a Reporting Person.”

Item 5. Interest in Securities of the Issuer.

Paragraphs (a) and (b) of Item 5 are hereby amended and restated in its entirety to read as follows:

“(a) As of the close of business on the date hereof, the Trust directly owned 3,085,930 shares of Common Stock, which represented 9.8% of the issued and outstanding shares of Common Stock. As of such date, the Foundation directly owned no shares of Common Stock. By virtue of their status as trustees, the Trustees may be deemed to have indirect beneficial ownership of Common Stock

Page 12 of 24

owned by the Trust. In addition, as of such date, Mr. Thornton beneficially owns 29,078 shares of Common Stock (including 20,241 shares as to which Mr. Thornton has the right to acquire and 2,583 shares held in a retirement account for his benefit), and Mr. Peyton beneficially owns 23,736 shares of Common Stock (including 17,600 shares as to which Mr. Peyton has the right to acquire), and Mr. Lord beneficially owns 1,412 shares of Common Stock. In addition, as of such date, Wachovia Bank, N.A., may be deemed to have beneficial ownership over 132,972 shares of Common Stock of the Issuer held in fiduciary and investment capacities.

“(b) By virtue of their status as trustees, the Trustees have the power to vote or direct the vote (to the extent votable) and the power to dispose or direct the disposition of the shares of Common Stock owned by the Trust.

“Each of Messrs. Lord, Peyton and Thornton has the sole power to vote or direct the vote and dispose or direct the disposition of the other shares of Common Stock that he beneficially owns. Wachovia Bank, N.A., has sole voting and dispositive power over the other shares of Common Stock beneficially owned by it.

Paragraph (c) of Item 5 is hereby amended by adding the following:

“(c) In the sixty days prior to the filing of Amendment No. 3 to this Schedule 13D, none of the Reporting Persons effected any transactions in the Issuer’s Common Stock, except as follows:

“On July 16, 2004, the Trust sold certain advisory funds of Franklin Mutual Advisers, LLC (“Franklin”), 5,200,000 shares of Common Stock for cash in an amount equal to $174,200,000.00 (the “Initial Purchase Amount”), or $33.50 per share, plus approximately $130,000.00 in interest, pursuant to the previously reported agreement between Trust and Foundation.

“Pursuant to a Stock Purchase Agreement dated August 4, 2004 (the “August 2004 Agreement”) with the Company, on August 13, 2004 (i) the Trust sold 3,183,343 shares of Common Stock, and the Foundation sold all 2,316,657 shares of Common Stock owned by it, to the Company, and the Company purchased such shares, for an aggregate of $189,750,000.00 in cash, or $34.50 per share. Also pursuant to the August 2004 Agreement, the Trust agreed that Messrs. Lord, Peyton and Thornton would resign from the Company’s board of directors, effective no later than August 20, 2004, and the Trust agreed not to sell additional shares of Common Stock until January 1, 2005.

Page 13 of 24

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended by adding the following paragraph:

“For a description of the August 2004 Agreement reached on August 4, 2004, pursuant to which the Trust and the Foundation sold 5,500,000 shares of Common Stock to the Company, see Item 5 hereof.”

Item 7. Material to be Filed as Exhibits.

Item 7 is hereby amended by adding the following:

“ 5. Stock Purchase Agreement dated August 4, 2004.”

Page 14 of 24

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: August 13, 2004


ALFRED I. duPONT TESTAMENTARY TRUST

By:		/s/ Winfred L. Thornton
		Winfred L. Thornton Chairman

THE NEMOURS FOUNDATION

By:		/s/ W. T. Thompson III
		W. T. Thompson III Chairman

WACHOVIA BANK, N.A., as Corporate Trustee

By:		/s/ Charlotte A. Borland
		Charlotte A. Borland Senior Vice President

/s/ Hugh M. Durden
Hugh M. Durden, Individually

Page 15 of 24

/s/ John S. Lord

John S. Lord, Individually

/s/ Herbert H. Peyton

Herbert H. Peyton, Individually

/s/ John F. Porter

John F. Porter III, Individually

/s/ W. T. Thompson

W. T. Thompson III, Individually

/s/ Winfred L. Thornton

Winfred L. Thornton, Individually

EXHIBIT INDEX


Exhibit		Description
5		Stock Purchase Agreement dated August 4, 2004

EX-5 2 dex5.htm STOCK PURCHASE AGREEMENT Stock Purchase Agreement

Exhibit 5

STOCK PURCHASE AGREEMENT

dated as of

August 4, 2004

between

Florida East Coast Industries, Inc.

and

Alfred I. duPont Testamentary Trust

and

The Nemours Foundation

relating to the purchase and sale

Shares of Common Stock

Florida East Coast Industries, Inc.

STOCK PURCHASE AGREEMENT

AGREEMENT dated as of August 4, 2004 between Florida East Coast Industries, Inc., a Florida corporation (“Buyer”), and Alfred I. duPont Testamentary Trust (“Trust”) and the Nemours Foundation (“Foundation”) (collectively “Seller”).

W I T N E S S E T H:

WHEREAS, Seller desires to sell to Buyer 5,500,000 shares of the Buyer’s Common Stock, no par value, beneficially owned by the Seller (the “Shares”), and Buyer desires to purchase the Shares from Seller, upon the terms and subject to the conditions hereinafter set forth;

The parties hereto agree as follows:

ARTICLE 1

PURCHASE AND SALE

Section 1.01. Purchase and Sale. Upon the terms and subject to the conditions of this Agreement, Seller agrees to sell to Buyer, and Buyer agrees to purchase from Seller, the Shares at the Closing as follows: 2,316,657 Shares to be acquired from the Foundation and 3,183,343 Shares to be acquired from the Trust. The purchase price for the Shares (the “Purchase Price”) is $34.50 per share totaling One Hundred Eighty Nine Million, Seven Hundred Fifty Thousand Dollars ($189,750,000) in the aggregate in cash. The Purchase Price shall be paid as provided in Section 1.02.

Section 1.02. Closing. The closing (the “Closing”) of the purchase and sale of the Shares hereunder shall occur on August 13, 2004, after satisfaction of the conditions set forth in Article 6, or at such other time or place as Buyer and Seller may agree. At the Closing:

(a) Buyer shall deliver to Seller in immediately available funds by wire transfer to one or more accounts of Seller with a bank(s) designated by Seller the following amounts: Seventy Nine Million, Nine Hundred Twenty Four Thousand, Six Hundred Sixty Six Dollars and Fifty cents ($79,924,666.50) to the Foundation and One Hundred Nine Million, Eight Hundred Twenty Five Thousand, Three Hundred Thirty Three Dollars and Fifty cents ($109,825,333.50) to the Trust by notice to Buyer, which notice shall be delivered not later than two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of Seller in such amount) and:

(b) Seller shall deliver to Buyer certificates for the Shares duly endorsed or accompanied by stock powers duly endorsed in blank, with any required transfer stamps affixed thereto.

E - 3

ARTICLE 2

BOARD REPRESENTATION

After the Closing Seller will beneficially own 3,085,930 shares of the Common Stock of the Buyer. Seller agrees that, effective no later than August 20, 2004, all of Seller’s representatives on the Buyer’s Board of Directors (Messrs. Thornton, Peyton and Lord) shall resign.

ARTICLE 3

LOCKUP

The Seller hereby agrees that it will not, during the period from the date of the Closing and ending January 1, 2005, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.

The restrictions contained in this preceding paragraph shall not apply to (A) the Shares sold hereunder, or (B) the sale by the Seller of shares of Common Stock to the Company. Section 3.01 of Article 3 of the Shareholders Agreement dated as of October 26, 1999 among Alfred I. duPont Testamentary Trust, Nemours Foundation and Florida East Coast Industries, Inc. is hereby amended to reduce the number of Demand Registrations from three to one, which Demand Registration shall not be available until January 1, 2005.

E - 4

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLER

Seller represents and warrants to Buyer as of the date hereof and as of the Closing Date that:

Section 4.01. Authorization. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby are within Seller’s powers and have been duly authorized by all necessary action on the part of Seller. This Agreement constitutes a valid and binding agreement of Seller.

Section 4.02. Governmental Authorization. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby require no action by or in respect of, or filing with, any governmental body, agency or official other than (i) compliance by the Seller with any applicable requirements of the Securities Exchange Act of 1934, and (ii) compliance with other regulatory approvals required for Seller.

Section 4.03. Noncontravention. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby do not and will not (i) violate any instruments governing the creation or operation of Seller, (ii) assuming compliance with the matters referred to in Section 4.02, violate any applicable law, rule, regulation, judgment, injunction, order or decree, (iii) require any consent or other action by any Person.

Section 4.04. Ownership of Shares. Seller is the record and beneficial owner of the Shares, free and clear of any mortgage, lien, pledge, charge, security interest, encumbrance or other adverse claim of any kind (a “Lien”) and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Shares), and will transfer and deliver to Buyer at the Closing valid title to the Shares free and clear of any Lien and any such limitation or restriction.

Section 4.05. Litigation. There is no action, suit, investigation or proceeding (or any basis therefor) pending against, or to the knowledge of Seller, threatened against or affecting, Seller, which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Agreement.

Section 4.06. Finders’ Fees. Except for Wellford Sanders of Wachovia Securities whose fees will be paid by Seller, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of Seller who might be entitled to any fee or commission from Buyer in connection with the transactions contemplated by this Agreement.

Section 4.07. Adequate Information; Non-reliance. Buyer has made available to Seller all information regarding the Buyer and the business, financial conditions, or results of operation

E - 5

of the Buyer in order to make an informed decision with regard to the sale of the Shares. Seller acknowledges that (i) Buyer necessarily possesses information relating to Buyer which is not available to Seller, any or all of which may be material and (ii) Seller is not relying on any disclosure of any such information to Seller.

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the date hereof and as of the Closing Date that:

Section 5.01. Corporate Existence and Power. Buyer is a corporation duly incorporated, validly existing and in good standing under the laws of Florida.

Section 5.02. Corporate Authorization. The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of Buyer and have been duly authorized by all necessary corporate action on the part of Buyer. This Agreement constitutes a valid and binding agreement of Buyer.

Section 5.03. Governmental Authorization. The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby require no material action by or in respect of, or material filing with, any governmental body, agency or official.

Section 5.04. Noncontravention. The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby do not and will not violate the articles of incorporation or bylaws of Buyer or Florida Business Corporation Act or any applicable law, rule, regulation, judgment, injunction, order or decree or require any consent or other action by any person.

Section 5.05. Litigation. There is no action, suit, investigation or proceeding pending against, or to the knowledge of Buyer threatened against or affecting, Buyer before any court or arbitrator or any governmental body, agency or official which in any manner challenges or seeks to prevent, enjoin, alter or materially delay the transactions contemplated by this Agreement.

Section 5.06. Finders’ Fees. Except for Morgan Stanley and The Blackstone Group whose fees will be paid by Buyer, there is no investment banker, broker, finder or other intermediary which has been retained by or is authorized to act on behalf of Buyer who might be entitled to any fee or commission from Seller or any of its Affiliates upon consummation of the transactions contemplated by this Agreement.

E - 6

ARTICLE 6

CONDITIONS TO CLOSING

Section 6.01. Conditions to Obligation of Buyer. The obligation of Buyer to consummate the Closing is subject to the satisfaction of the following conditions:

(a) (i) Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to the Closing Date and, (ii) the representations and warranties of Seller contained in this Agreement shall be true in all material respects at and as of the Closing Date as if made at and as of such date.

(b) There shall not be threatened, instituted or pending any action or proceeding by any person before any court or governmental authority or agency, domestic or foreign, seeking to restrain, prohibit, challenge the fairness of or otherwise interfere with the purchase of the Shares.

Section 6.02. Conditions to Obligation of Seller. The obligation of Seller to consummate the Closing is subject to the satisfaction of the following conditions:

(a) (i) Buyer shall have performed in all material respects all of its obligations hereunder required to be performed by it at or prior to the Closing Date and, (ii) the representations and warranties of Buyer contained in this Agreement shall be true in all material respects at and as of the Closing Date as if made at and as of such date.

ARTICLE 7

MISCELLANEOUS

Section 7.01. Termination. This Agreement may be terminated by either Buyer or Seller if the Closing shall not have been consummated on or before August 31, 2004.

Section 7.02. Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense.

Section 7.03. Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Florida, without regard to the conflicts of law rules of such state.

Section 7.04. Jurisdiction. The parties hereto agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in the United States

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District Court for the Middle District of Florida or the Circuit Court of Florida sitting in Duval County, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Florida, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

Section 7.05. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 7.06. Counterparts; Effectiveness; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties hereto and their respective successors and assigns.

Section 7.07. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement.

Section 7.08. Specific Performance. The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.


FLORIDA EAST COAST INDUSTRIES, INC.

BY:
		Name:
		Title:


ALFRED I. DUPONT TESTAMENTARY TRUST

BY:
		Name:
		Title:


THE NEMOURS FOUNDATION

BY:
		Name:
		Title:

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