As filed with the Securities and Exchange Commission on January 3, 2001
Registration No. 333-____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FLORIDA EAST COAST INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Florida 59-2349968
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
One Malaga Street
St. Augustine, Florida 32085-1048
(Address, including zip code, of Registrant's principal executive offices)
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STOCK INCENTIVE PLAN
(Full title of the Plan)
-----------------------
HEIDI J. EDDINS
Executive Vice President,
Secretary and General Counsel
Florida East Coast Industries, Inc.
One Malaga Street
St. Augustine, FL 32085-1048
(904) 826-2260
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(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Winthrop B. Conrad, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
<TABLE>
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed
Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Unit(1) Offering Price(1) Registration Fee
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, no par
value per share.................... 1,000,000 shares(2) $ 34.44 $ 34,440,000 $ 8,610
=====================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the amount of the
registration fee pursuant to Rule 457 under the Securities Act of 1933,
based on the average of the high and low share prices reported on the New
York Stock Exchange for December 27, 2000.
(2) Plus an additional number of shares of Common Stock as may be issued
pursuant to the anti-dilution provisions of the Plan. The Common Stock
also includes certain rights under the registrant's Rights Plan which,
until the occurrence of certain events specified in the Rights Plan, will
not be exercisable or evidenced separately from the Common Stock.
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement on Form S-8 will be sent or given to employees as
specified by Rule 428(b)(1). Such documents are not required to be and are not
filed with the Securities and Exchange Commission (the "Commission") either as
part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Company's Registration Statement on Form S-8, Registration No.
333-76577, filed with respect to the Company's 1998 Stock Incentive Plan.
(b) Registrant's Annual Report filed with the Commission on Form 10-K
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (Exchange Act File No. 001-08723) for year ended
December 31, 1999.
(c) The Registrant's Quarterly Reports on Form 10-Q (Exchange Act File No.
001-08723) filed with the Commission for the quarters ended June 30, 2000,
March 31, 2000 and September 30, 2000.
(d) The Registrant's Current Reports on Form 8-K (Exchange Act File No.
001-08723) dated October 5, 2000 and November 13, 2000.
(e) The description of the Company's Class A common stock ("Common
Stock"), no par value, contained in the Registrant's Exchange Act registration
statement on Form 8-A (Exchange Act File No. 001-08723) filed with the
Commission, including any amendment or report filed for the purpose of updating
such description.
(f) The description of the Company's Rights Plan contained in the
Registrant's Exchange Act registration statement on Form 8-A (Exchange Act File
No. 001-08723) filed with the Commission, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the Registrant after the date of this Registration
Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment that indicates that all
Common Stock offered hereby has been sold or which deregisters such Common
Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or so superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
See Item 3, above.
2
<PAGE>
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Article X of Amended and Restated Articles of Incorporation of the
Registrant, a Florida corporation, provides for the indemnification of
directors and officers to the fullest extent permitted by the Florida Business
Corporation Act. In addition, the Amended and Restated Articles of
Incorporation provide for indemnification when a person is threatened to be
made a party or otherwise involved in any action, suit or proceeding.
Section 607.0850 of the Florida Business Corporation Act authorizes
indemnification when a person is or was made a party to any proceeding by
reason of the fact that such person is or was a director, officer, employee or
agent or is or was serving as a director, officer, employee or agent of another
enterprise, at the request of the corporation, and if such person acted in good
faith and in a manner reasonably believed by him or her to be in, or not
opposed to, the best interests of the corporation. With respect to any criminal
proceeding, such person must have had no reasonable cause to believe that his
or her conduct was unlawful. If it is determined that the conduct of such
person meets these standards, he or she may be indemnified for judgments,
settlements, penalties, fines (including an excise tax assessed with respect to
any employee benefit plan), and expenses (including counsel fees) actually and
reasonably incurred with respect to a proceeding.
If such a proceeding is brought by or in the right of the corporation
(i.e. a derivative suit), such person may be indemnified against expenses and
amounts paid in settlement not exceeding, in the judgment of the board of
directors, the estimated expenses of litigating the proceeding to a conclusion,
actually and reasonably incurred in connection with the defense or settlement
of such proceeding, including any appeal thereof, if he or she acted in good
faith and in a manner reasonably believed by him or her to be in, or not
opposed to, the best interests of the corporation. There can be no
indemnification with respect to any matter as to which such person is adjudged
to be liable to the corporation; however, a court may, in such case, allow such
indemnification of such person for such expenses as the court deems proper.
Where such person is successful in any such proceeding, he or she is
entitled to be indemnified against expenses actually and reasonably incurred by
him or her. In all other cases, indemnification is made by the corporation upon
determination by it that indemnification of such person is proper because such
person has met the applicable standard of conduct.
The Registrant maintains an errors and omissions liability policy for the
benefit of its officers and directors, which may cover certain liabilities of
such individuals to the Registrant.
Item 7. Exemptions From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
------- -----------
5 Opinion regarding legality of shares to be offered.
23(i) Consent of KPMG LLP.
23(ii) Consent of Counsel (set forth in Exhibit 5).
24 Power of Attorney authorizing execution of registration
statement of Form S-8 on behalf of certain officers and
directors of Registrant (set forth on the signature pages
hereof).
3
<PAGE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) To include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; (iii) To include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
under "Item 6 -- Indemnification of Directors and Officers" above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of St. Augustine, State of Florida, on
this 29th day of December, 2000.
By /s/ Robert W. Anestis
-------------------------------
Robert W. Anestis
Chairman, President, and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of Florida East Coast Industries, Inc., a corporation organized under
the laws of the state of Florida (the "Company"), hereby constitutes and
appoints Robert W. Anestis and Heidi J. Eddins (with full power to each of them
to act alone), as his or her true and lawful attorneys-in-fact and agents for
him and her on his or her behalf and in his or her name, place and stead, in
all cases with full power of substitution and resubstitution, in any hand and
all capacities, to sign, execute and affix his or her seal to and file with the
Securities and Exchange Commission (or any other governmental or regulatory
authority) a Registration Statement on Form S-8 or any other appropriate form
and all amendments or supplements (including post-effective amendments) thereto
with all exhibits and any and all documents required to be filed with respect
thereto, relating to the registration of shares of common stock, no par value,
of the Company, and grants to each of them full power and authority to do and
to perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully and to all
intents and purposes as he himself or she herself might or could do if
personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS HEREOF, the undersigned director and or officer has
hereunto set his or her hand and seal, as of the date specified.
Signature Title Date
--------- ----- ----
/s/ Robert W. Anestis Chairman, President and Chief December 29, 2000
---------------------------- Executive Officer
Robert W. Anestis
/s/ Mark Leininger Principal Accounting Officer December 29, 2000
----------------------------
Mark Leininger
/s/ Richard S. Elwood Director December 29, 2000
----------------------------
Richard S. Elwood
Director December , 2000
----------------------------
J. Nelson Fairbanks
5
<PAGE>
/s/ David M. Foster Director December 29, 2000
----------------------------
David M. Foster
/s/ A. C. Harper Director December 29, 2000
----------------------------
A. C. Harper
Director December , 2000
----------------------------
Adolfo Henriques
Director December , 2000
----------------------------
Gilbert Lamphere
/s/ Joseph Nemec Director December 22, 2000
----------------------------
Joseph Nemec
/s/ Herbert Peyton Director December 29, 2000
----------------------------
Herbert Peyton
/s/ W. L. Thornton Director December 26, 2000
----------------------------
W. L. Thornton
6
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page Number
------- ----------- -----------
5 Opinion regarding legality of shares to be offered.
23(i) Consent of KPMG LLP.
23(ii) Consent of Counsel (set forth in Exhibit 5).
24 Power of Attorney authorizing execution of registration
statement of Form S-8 on behalf of certain officers and
directors of Registrant (set forth on the signature pages
hereof).
7
