SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[X] Soliciting Material Pursuant to ss. 240.14a-12
WCI Communities, Inc.
(Name of Registrant as Specified In Its Charter)
Icahn Partners LP
Icahn Onshore LP
CCI Onshore Corp.
Icahn Partners Master Fund LP
Icahn Offshore LP
CCI Offshore Corp.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Carl C. Icahn
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
On February 16, 2007, Icahn Partners LP, Icahn Partners Master Fund LP and
High River Limited Partnership (collectively, the "Nominating Parties") notified
WCI Communities, Inc. (the "Issuer") of their intention to propose the
nomination of a slate of directors for election at the forthcoming 2007 annual
meeting of the Issuer's stockholders by delivering a notice thereof to the
Issuer. A copy of the notification letter delivered to the Issuer is attached
hereto as Exhibit 2.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO SOLICITATION OF PROXIES BY MR. ICAHN AND HIS AFFILIATES FROM THE
STOCKHOLDERS OF WCI COMMUNITIES, INC. FOR USE AT ITS ANNUAL MEETING WHEN AND IF
THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION,
INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN ANY SUCH PROXY
SOLICITATION. WHEN AND IF COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF
PROXY WHICH WILL BE MAILED TO STOCKHOLDERS OF WCI COMMUNITIES, INC. AND WILL BE
AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT
HTTP://WWW.SEC.GOV. INFORMATION RELATING TO THE POTENTIAL PARTICIPANTS IN A
POTENTIAL PROXY SOLICITATION IS CONTAINED IN EXHIBIT 1 HERETO.
EXHIBIT 1
POTENTIAL PARTICIPANTS
In addition to the Nominees named in Exhibit 2 hereto (the contents of
which are incorporated by reference herein), the potential participants in the
potential solicitation of proxies (the "Participants") may include the
following: Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund LP
("Icahn Master"), High River Limited Partnership ("High River"), Mr. Carl C.
Icahn, Mr. Keith Meister and Mr. Vincent Intrieri.
Icahn Partners, Icahn Master and High River (collectively, the "Icahn
Parties") are entities controlled by Carl C. Icahn. Mr. Keith Meister and Mr.
Vincent Intrieri are employees of the Icahn Parties who may also participate in
soliciting proxies from the Issuer's stockholders. Neither Mr. Keith Meister nor
Mr. Vincent Intrieri own beneficially any interest in securities of the Issuer,
and will not receive any special compensation in connection with such
solicitation.
Icahn Partners is a Delaware limited partnership principally engaged in the
business of investing in securities. Icahn Onshore LP ("Icahn Onshore") is a
Delaware limited partnership primarily engaged in the business of acting as the
general partner of Icahn Partners. CCI Onshore Corp. ("CCI Onshore") is a
Delaware corporation primarily engaged in the business of acting as the general
partner of Icahn Onshore. CCI Onshore is wholly owned by Mr. Icahn.
Icahn Master is a Cayman Islands exempted limited partnership principally
engaged in the business of investing in securities. Icahn Offshore LP ("Icahn
Offshore") is a Delaware limited partnership primarily engaged in the business
of acting as the general partner of Icahn Master. CCI Offshore Corp. ("CCI
Offshore") is a Delaware corporation primarily engaged in the business of acting
as the general partner of Icahn Offshore. CCI Offshore is wholly owned by Mr.
Icahn.
High River Limited Partnership is a Delaware limited partnership
principally engaged in the business of investing in securities. Hopper
Investments LLC ("Hopper") is a Delaware limited liability company primarily
engaged in the business of acting as the general partner of High River. Barberry
Corp. ("Barberry") is a Delaware corporation primarily engaged in the business
of acting as the managing member of Hopper. Barberry is wholly owned by Mr.
Icahn.
Carl C. Icahn, through his ownership of CCI Onshore, CCI Offshore and
Barberry, indirectly controls the Icahn Parties.
Keith A. Meister and Vincent J. Intrieri are employees and/or officers or
directors of the Icahn Parties and various other entities controlled by Mr.
Icahn. In connection with their employment by Mr. Icahn and his affiliated
companies, Messrs. Meister and Intrieri, among other employees, each has a
participatory interest in the profits and fees derived by Mr. Icahn and/or his
affiliated entities from Icahn Partners LP and Icahn Partners Master Fund LP
(the "Funds"). Because only a portion of such profit interests are distributed
and because of their other investments in the Funds, each of Mr. Meister and Mr.
Intrieri also has capital accounts in the Funds. In the aggregate: (i) Mr.
Meister's profit interests and capital accounts in the Funds entitle him to less
than 2% of the profits generated by the Funds; and (ii) Mr. Intrieri's profit
interests and capital accounts in the Funds entitle him to less than 2% of the
profits generated by the Funds.
Mr. Icahn, through his control of the Icahn Parties, may be deemed to be
the indirect beneficial owner of 6,096,175 shares of common stock, par value
$0.01 per share ("Common Stock"), of the Issuer, which represents approximately
14.57% of outstanding shares of Common Stock as of the date hereof.
Icahn Master is the direct beneficial owner of 1,914,558 shares of the
Common Stock, Icahn Partners is the direct beneficial owner of 2,901,892 shares
of the Common Stock and High River is the direct beneficial owner of 1,279,725
shares of the Common Stock. Icahn Offshore, as the general partner of Icahn
Master and CCI Offshore, as the general partner of Icahn Offshore may each be
deemed to be the indirect beneficial owner of the shares of Common Stock
directly owned by Icahn Master. Icahn Onshore, as the general partner of Icahn
Partners, and CCI Onshore, as the general partner of Icahn Onshore, may each be
deemed to be the indirect beneficial owner of the shares of Common Stock
directly owned by Icahn Partners. Hopper, as the general partner of High River,
and Barberry, as the managing member of Hopper, may each be deemed to be the
indirect beneficial owner of the shares of Common Stock directly owned by High
River. Carl C. Icahn, as the sole stockholder of each of CCI Offshore, CCI
Onshore and Barberry, may be deemed to be the indirect beneficial owner of the
shares of Common Stock directly owned by Icahn Master, Icahn Partners and High
River.
The Icahn Parties have entered into a number of derivative agreements,
commonly referred to as Total Return Swaps with counterparties, which agreements
provide that the profit to the Icahn Parties shall be based upon the increase in
value of the shares of Common Stock and the loss to the Icahn Parties shall be
based upon the decrease in the value of the shares of Common Stock, during the
period from inception of the applicable agreement to its termination. The
agreements provide that they settle in cash. In addition to the shares of Common
Stock which they beneficially own as described above, as of the date hereof, the
Icahn Parties currently have long economic exposure to an aggregate of 5,427,053
shares of Common Stock through such agreements. These agreements do not give the
Icahn Parties direct or indirect voting, investment or dispositive control over
the shares of Common Stock to which these agreements relate and, accordingly,
the Icahn Parties disclaim any beneficial ownership in the Shares to which these
agreements relate.
As of the date hereof, (i) High River is the direct beneficial owner of
$1,000,000 in aggregate principal amount of the Issuer's 9 1/8 Senior
Subordinated Notes due 2012 (the "9 1/8 Notes"), (ii) Icahn Partners is the
direct beneficial owner of $1,698,000 in aggregate principal amount of the 9 1/8
Notes and (iii) Icahn Master is the direct beneficial owner of $2,302,000 in
aggregate principal amount of the 9 1/8 Notes.
EXHIBIT 2
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
HIGH RIVER LIMITED PARTNERSHIP
c/o Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
New York, NY 10153
February 15, 2007
VIA FEDERAL EXPRESS AND FACSIMILE
- ---------------------------------
WCI Communities, Inc.
24301 Walden Center Drive
Bonita Springs, Florida 34134
Attention: Secretary of the Corporation
Re: Stockholders' Notice for Nomination of Person for Election as Director of
WCI Communities, Inc. (the "Corporation")
-------------------------------------------------------------------------
Ladies and Gentlemen:
Icahn Partners LP, a Delaware limited partnership ("Icahn Partners"), Icahn
Partners Master Fund LP, a Cayman Islands exempted limited partnership ("Icahn
Master"), and High River Limited Partnership, a Delaware limited partnership
("High River" and together with Icahn Partners and Icahn Master, the "Record
Holders" and each of them a "Record Holder") hereby submit this notice (this
"Notice") on the date hereof pursuant to the requirements (the "Bylaw
Requirements") set forth in Article I, Section 11 of the Third Amended and
Restated By-laws of the Corporation, attached as Exhibit 3.2 to the Form 8-K
filed by the Corporation with the Securities and Exchange Commission (the
"SEC"), on May 24, 2005 (the "Bylaws"), for the nomination of the Slate (as
defined below) for election as directors of the Corporation at the 2007 annual
meeting of stockholders of the Corporation (the "Annual Meeting").
The address of Icahn Partners is 767 Fifth Avenue, 47th Floor, New York, NY
10153. The address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands. The address of High
River is White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY
10601.
As of the date of this Notice, (i) each of the Record Holders is the record
owner(1) of 1000 shares of Common Stock, par value $0.01 per share, of the
Corporation (the "Shares"); (ii) Icahn Partners is the direct beneficial owner
of 2,901,892 Shares (including the 1000 Shares of which Icahn Partners is the
stockholder of record); (iii) Icahn Master is the direct beneficial owner of
1,914,558 Shares (including the 1000 Shares of which Icahn Master is the
stockholder of record); and (iv) High River is the direct beneficial owner of
1,279,725 Shares (including the 1000 Shares of which High River is the
stockholder of record), in each case as described in Annex A.
Each Record Holder hereby represents that it intends to appear in person or
by proxy at the Annual Meeting to nominate for election as directors of the
Corporation the following persons (each, a "Nominee" and collectively, the
"Slate"):
Carl C. Icahn
David Schechter
Jonathan R. Macey
Peter C. Clapman
Auguste E. Rimpel, Jr.
Horward Lorber
Michael L. Ashner
Jerome M. Becker
Sumner Baye
Hugh F. Culverhouse
Each Record Holder hereby represents that it intends to solicit proxies in
support of its nomination of the Slate.
- --------------------
(1) Please note that (i) High River's stock certificate was issued in the name
of "High River LP;" (ii) the following address is set forth on the stock
certificate of each of Icahn Partners and Icahn Master as its record address on
the books of the Corporation: 767 Fifth Avenue, 47th Floor, New York, New York
10153; and (iii) the following address is set forth on the stock certificate of
High River as its record address on the books of the Corporation: 767 Fifth
Avenue, 46th Floor, New York, New York 10153-0023. * Mr. Icahn will be 71 years
old on February 16, 2007.
As of the date hereof, based on information contained in the Bylaws, the
Corporation's Web site, recent public announcements by the Corporation and the
Corporation's Proxy Statement on Schedule 14A, filed with the SEC on April 18,
2006, the current Board of Directors of the Corporation ("Board") consists of 10
directors and pursuant to the Corporation's Second Restated Certificate of
Incorporation, as executed on May 18, 2005, filed by the Corporation with the
SEC on May 24, 2005 as Exhibit 3.1 to the Corporation's Registration Statement
on Form 8-K and the Bylaws, the Board shall consist of not less than 3
directors. Based on the size of the Board during 2006, the Record Holders are
assuming that 10 directors are to be elected at the Annual Meeting. If, for any
reason, more than 10 directors are to be elected at the Annual Meeting, the
Record Holders reserve the right to nominate additional persons to be so elected
(each, an "Additional Nominee"). Additionally, if, for any reason, any Nominee
or Additional Nominee is unable to stand for election at the Annual Meeting, the
Record Holders intend to nominate a person in the place of such Nominee or
Additional Nominee (a "Substitute"). Finally, if fewer than 10 directors are to
be elected at the Annual Meeting, the Record Holders will designate which of the
Nominees will be placed in nomination. In any of those events, the Record
Holders at the earliest practicable time will give notice to the Corporation of
any Additional Nominee, the Substitute or the Nominees who will be placed in
nomination.
Pursuant to the Bylaw Requirements: (i) certain information relating to the
Record Holders is set forth in the body of this Notice (including the footnotes
hereto) and Annex A; (ii) certain information relating to each Nominee is set
forth in the body of this Notice (including the footnotes hereto) and Annex A;
and (iii) the written consent of each Nominee to being named in the proxy
statement as a nominee and to serving as a director of the Corporation if
elected is attached as Annex B. Each Nominee (other than Mr. Icahn) is also
party to an agreement substantially in the form attached hereto as Annex C,
pursuant to which the Record Holders have agreed to pay certain fees to such
Nominee (other than Mr. Schechter) and to indemnify each such Nominee with
respect to certain costs incurred by such Nominees in connection with the proxy
contest relating to the Annual Meeting (the "Nominee Agreement").
Each Nominee has an interest in the election of directors at the Annual
Meeting: (i) indirectly through the beneficial ownership (if any) of Shares, as
described on the applicable attachment to Annex A and (ii) pursuant to the
Nominee Agreement, if applicable to such Nominee.
With respect to each Nominee, other than as disclosed in this Notice, (i)
such Nominee is not, nor was within the past year, a party to any contract,
arrangement or understanding with any person with respect to any securities of
the Corporation, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Nominee nor any of such Nominee's associates have any arrangement
or understanding with any person with respect to (A) any future employment by
the Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Nominee, such Nominee is independent under the
independence standards applicable to the Corporation under paragraph (a)(1) of
Item 407 of Regulation S-K.
The Annexes and all attachments thereto are hereby incorporated into and
made a part of this Notice. Accordingly, all matters disclosed in any part of
this Notice, including the Annexes and all attachments thereto should be deemed
disclosed for all purposes of this Notice. All upper case terms appearing in the
Annexes and all attachments thereto that are not defined in such Annexes and
attachments shall have the meanings given in the body of this Notice or the
Annexes, as applicable.
Information is set forth herein as of the date hereof and neither the
delivery of this Notice in accordance with the Bylaw Requirements nor any
delivery by any Record Holder of additional information to the Corporation from
and after the date hereof shall be deemed to constitute an admission by any
Record Holder or any of their respective affiliates that such delivery is
required or that each and every item of information is required by the Bylaws or
as to the legality or enforceability of the Bylaws or any other matter, or a
waiver by any Record Holder or any of their respective affiliates of their right
to contest or challenge, in any way, the validity or enforceability of the
Bylaws or any other matter (including actions taken by the Board in anticipation
of or following receipt of this Notice).
The Record Holders have filed a Schedule 13D under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with the SEC relating to the
Corporation (the "Filing"). The Filing, all attachments thereto and all future
amendments thereto, are hereby incorporated into and made a part of this Notice
(but only to the extent that the information disclosed therein constitutes
information regarding the Record Holders that is required to be set forth in
this Notice pursuant to Bylaw Requirements). Accordingly, all such matters
disclosed in any part of the Filing, including all attachments thereto, should
be deemed disclosed for all purposes of this Notice. The Filing, a copy of which
was previously delivered to the Corporation pursuant to Rule 13d-7 under the
Exchange Act, is available at no charge at the SEC's website at
http://www.sec.gov. If the Corporation requests additional copies of the Filing,
the Record Holders will provide them.
[Signature page follows]
Very truly yours,
ICAHN PARTNERS LP
By: Icahn Onshore LP, its general partner
By: CCI Onshore Corp., its general partner
By: /s/ Keith A. Meister
--------------------
Name: Keith A. Meister
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: Icahn Offshore LP, its general partner
By: CCI Offshore Corp., its general partner
By: /s/ Keith A. Meister
--------------------
Name: Keith A. Meister
Title: Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: /s/ Keith Cozza
--------------------
Name: Keith Cozza
Title: Treasurer and Secretary
[Signature page to Stockholders' Notice of Intent to Nominate
Persons for Election as Directors of WCI Communities, Inc.]
ANNEX A
Certain information about each Nominee is set forth in the attachments to this
Annex A.
ANNEX A
ATTACHMENT 1
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Carl C. Icahn
AGE: 71*
BUSINESS ADDRESS: c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor,
New York, New York 10153
RESIDENCE ADDRESS: 15 West 53rd Street, Penthouse B&C, New York, NY 10019
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Mr. Icahn has an interest in the election of directors at the Annual
Meeting indirectly through the beneficial ownership of securities, as described
below.
Mr. Icahn has served as chairman of the board and a director of Starfire
Holding Corporation, a privately-held holding company, and chairman of the board
and a director of various subsidiaries of Starfire, since 1984. Through his
entities CCI Onshore Corp. and CCI Offshore Corp., Mr. Icahn's principal
occupation is managing private investment funds, including Icahn Partners and
Icahn Master. Since February 2005, Mr. Icahn has served as a director of CCI
Onshore Corp. and CCI Offshore Corp., which are in the business of managing
private investment funds, and from September 2004 to February 2005, Mr. Icahn
served as the sole member of their predecessors, CCI Onshore LLC and CCI
Offshore LLC, respectively. Mr. Icahn was also chairman of the board and
president of Icahn & Co., Inc., a registered broker-dealer and a member of the
National Association of Securities Dealers, from 1968 to 2005. Since 1994, Mr.
Icahn has been the principal beneficial stockholder of American Railcar
Industries, Inc., currently a publicly traded company that is primarily engaged
in the business of manufacturing covered hopper and tank railcars, and has
served as chairman of the board and as a director of American Railcar
Industries, Inc. since 1994. Since November 1990, Mr. Icahn has been chairman of
the board of American Property Investors, Inc., the general partner of American
Real Estate Partners, L.P., a public limited partnership controlled by Mr. Icahn
that invests in real estate and holds various other interests, including the
interests in its subsidiaries that are engaged in, among other things, the
casino entertainment business and the home textile business. From October 1998
through May 2004, Mr. Icahn was the president and a director of Stratosphere
Corporation, which operates the Stratosphere Hotel and Casino. Mr. Icahn has
been chairman of the board and a director of XO Holdings, Inc. since February
2006 and was chairman of the board and a director of XO Communications, Inc. (XO
Holdings' predecessor) from January 2003 to February 2006. XO Holdings, Inc. is
a publicly traded telecommunications services provider controlled by Mr. Icahn.
Mr. Icahn has served as a Director of Cadus Corporation, a publicly traded
company engaged in the ownership and licensing of yeast-based drug discovery
technologies since July 1993. In May 2005, Mr. Icahn became a director of
Blockbuster Inc., a publicly traded provider of in-home movie rental and game
entertainment. In September 2006, Mr. Icahn became a director of ImClone Systems
Incorporated, a publicly traded biopharmaceutical company, and since October
2006 has been the chairman of the board of ImClone Systems. Mr. Icahn received
his B.A. from Princeton University.
- --------------------
* Mr. Icahn will be 71 years old on February 16, 2007.
BENEFICIAL OWNERSHIP OF SECURITIES OF THE CORPORATION AS OF THE DATE OF
THIS NOTICE:
(1) Title of (2) Name of (3) Amount and Nature (4) Percent of
Class Beneficial of Beneficial Class (3)
Owner (2) Ownership
Common Stock, par High River 1,279,725 3.06%
value $0.01 per
share
- ------------------- --------------- ------------------------- ------------------
Common Stock, par Icahn Master 1,914,558 4.57%
value $0.01 per
share
- ------------------- --------------- ------------------------- ------------------
Common Stock, par Icahn Partners 2,901,892 6.93%
value $0.01 per
share
- --------------------
2) Please note that each Record Holder listed in this table is, as of the date
of this Notice, the direct beneficial owner of the Shares set forth under the
heading "(3) Amount of Beneficial Ownership" and that indirect beneficial
ownership of Shares is described below in the text of this Annex B under the
heading "Description of Beneficial Ownership."
(3) Please note that percentages of ownership set forth in this column were
calculated based on the amount of Shares stated to be outstanding in the Form
10-Q.
DESCRIPTION OF BENEFICIAL OWNERSHIP
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River. CCI Offshore Corp., a Delaware corporation
("CCI Offshore"), is the general partner of Icahn Offshore LP, a Delaware
limited partnership ("Icahn Offshore"), which is the general partner of Icahn
Master. CCI Onshore Corp., a Delaware corporation ("CCI Onshore"), is the
general partner of Icahn Onshore LP, a Delaware limited partnership ("Icahn
Onshore"), which is the general partner of Icahn Partners. Each of Barberry, CCI
Offshore and CCI Onshore is 100 percent owned by Carl C. Icahn. As such, Mr.
Icahn is in a position indirectly to determine the investment and voting
decisions made by each of the Record Holders.
The Record Holders may be deemed to beneficially own, in the aggregate,
6,096,175 Shares, representing approximately 14.57% of the Corporation's
outstanding Shares (based upon the 41,853,396 Shares stated to be outstanding as
of November 3, 2006 by the Corporation in the Corporation's Quarterly Report on
Form 10-Q for the quarter ended September 30, 2006, filed with the Securities
and Exchange Commission on November 7, 2006 (the "Form 10-Q")).
High River has sole voting power and sole dispositive power with regard to
1,279,725 Shares. Each of Hopper, Barberry and Carl C. Icahn has shared voting
power and shared dispositive power with regard to such Shares. Icahn Master has
sole voting power and sole dispositive power with regard to 1,914,558 Shares.
Each of Icahn Offshore, CCI Offshore and Carl C. Icahn has shared voting power
and shared dispositive power with regard to such Shares. Icahn Partners has sole
voting power and sole dispositive power with regard to 2,901,892 Shares. Each of
Icahn Onshore, CCI Onshore and Carl C. Icahn has shared voting power and shared
dispositive power with regard to such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to High
River, may be deemed to indirectly beneficially own the Shares which High River
directly beneficially owns. Each of Icahn Offshore, CCI Offshore and Mr. Icahn,
by virtue of their relationships to Icahn Master, may be deemed to indirectly
beneficially own the Shares which Icahn Master directly beneficially owns. Each
of Icahn Onshore, CCI Onshore and Mr. Icahn, by virtue of their relationships to
Icahn Partners, may be deemed to indirectly beneficially own the Shares which
Icahn Partners directly beneficially owns.
TWO YEARS SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares by
Mr. Icahn and his affiliates within the past two years, and the number of shares
in each such purchase and sale:
Name Date Shares Purchased (Sold)
---- ---- -----------------------
High River August 24, 2006 10,200
- ---------------- ---------------------------------- ----------------------------
High River August 25, 2006 15,800
- ---------------- ---------------------------------- ----------------------------
High River August 25, 2006 4,600
- ---------------- ---------------------------------- ----------------------------
High River August 28, 2006 120
- ---------------- ---------------------------------- ----------------------------
High River August 29, 2006 35,180
- ---------------- ---------------------------------- ----------------------------
High River August 30, 2006 18,840
- ---------------- ---------------------------------- ----------------------------
High River September 5, 2006 40,000
- ---------------- ---------------------------------- ----------------------------
High River September 6, 2006 60,000
- ---------------- ---------------------------------- ----------------------------
High River September 7, 2006 22,920
- ---------------- ---------------------------------- ----------------------------
High River September 8, 2006 41,520
- ---------------- ---------------------------------- ----------------------------
High River September 11, 2006 60,000
- ---------------- ---------------------------------- ----------------------------
High River September 12, 2006 60,000
- ---------------- ---------------------------------- ----------------------------
High River September 13, 2006 25,880
- ---------------- ---------------------------------- ----------------------------
High River September 14, 2006 19,940
- ---------------- ---------------------------------- ----------------------------
High River October 30, 2006 (20,000)
- ---------------- ---------------------------------- ----------------------------
High River December 13, 2006 (30,000)
- ---------------- ---------------------------------- ----------------------------
High River January 3, 2007 156,000
- ---------------- ---------------------------------- ----------------------------
High River January 4, 2007 76,580
- ---------------- ---------------------------------- ----------------------------
High River January 5, 2007 50,000
- ---------------- ---------------------------------- ----------------------------
High River January 8, 2007 100,000
- ---------------- ---------------------------------- ----------------------------
High River January 9, 2007 112,040
- ---------------- ---------------------------------- ----------------------------
High River January 10, 2007 91,125
- ---------------- ---------------------------------- ----------------------------
High River January 11 2007 42,320
- ---------------- ---------------------------------- ----------------------------
High River January 12 2007 286,660
- ---------------- ---------------------------------- ----------------------------
Icahn Partners August 24, 2006 17,507
- ---------------- ---------------------------------- ----------------------------
Icahn Partners August 25, 2006 7,895
- ---------------- ---------------------------------- ----------------------------
Icahn Partners August 25, 2006 27,119
- ---------------- ---------------------------------- ----------------------------
Icahn Partners August 28, 2006 206
- ---------------- ---------------------------------- ----------------------------
Icahn Partners August 29, 2006 60,382
- ---------------- ---------------------------------- ----------------------------
Icahn Partners August 30, 2006 32,336
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 5, 2006 67,747
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 6, 2006 102,349
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 7, 2006 39,148
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 8, 2006 70,917
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 11, 2006 102,482
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 12, 2006 102,482
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 13, 2006 44,203
- ---------------- ---------------------------------- ----------------------------
Icahn Partners September 14, 2006 34,058
- ---------------- ---------------------------------- ----------------------------
Icahn Partners October 30, 2006 (33,951)
- ---------------- ---------------------------------- ----------------------------
Icahn Partners December 13, 2006 (51,402)
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 3, 2007 285,195
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 4, 2007 132,516
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 5, 2007 113,645
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 8, 2007 174,065
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 9, 2007 195,023
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 10, 2007 158,650
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 11, 2007 72,680
- ---------------- ---------------------------------- ----------------------------
Icahn Partners January 12, 2007 1,146,640
- ---------------- ---------------------------------- ----------------------------
Icahn Master August 24, 2006 23,293
- ---------------- ---------------------------------- ----------------------------
Icahn Master August 25, 2006 10,505
- ---------------- ---------------------------------- ----------------------------
Icahn Master August 25, 2006 36,081
- ---------------- ---------------------------------- ----------------------------
Icahn Master August 28, 2006 274
- ---------------- ---------------------------------- ----------------------------
Icahn Master August 29, 2006 80,338
- ---------------- ---------------------------------- ----------------------------
Icahn Master August 30, 2006 43,024
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 5, 2006 92,253
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 6, 2006 137,651
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 7, 2006 52,532
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 8, 2006 95,163
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 11, 2006 137,518
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 12, 2006 137,518
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 13, 2006 59,317
- ---------------- ---------------------------------- ----------------------------
Icahn Master September 14, 2006 45,702
- ---------------- ---------------------------------- ----------------------------
Icahn Master October 30, 2006 (46,049)
- ---------------- ---------------------------------- ----------------------------
Icahn Master December 13, 2006 (68,598)
- ---------------- ---------------------------------- ----------------------------
Icahn Master January 3, 2007 338,805
- ---------------- ---------------------------------- ----------------------------
Icahn Master January 4, 2007 173,804
- ---------------- ---------------------------------- ----------------------------
Icahn Master January 5, 2007 86,355
- ---------------- ---------------------------------- ----------------------------
Icahn Master January 8, 2007 225,935
- ---------------- ---------------------------------- ----------------------------
Icahn Master January 9, 2007 253,137
Part of the purchase price of Shares purchased by High River was obtained
through margin borrowing. Shares purchased by High River are maintained in a
margin account that includes positions in securities in addition to the Shares.
The indebtedness of the margin account as of February 14, 2007 was approximately
$306,741,430.
As of the date of this Notice, (i) High River is the direct beneficial owner of
$1,000,000 in aggregate principal amount of the Corporation's 9 1/8 Senior
Subordinated Notes due 2012 (the "9 1/8 Notes"), (ii) Icahn Partners is the
direct beneficial owner of $1,698,000 in aggregate principal amount of the 9 1/8
Notes and (iii) Icahn Master is the direct beneficial owner of $2,302,000 in
aggregate principal amount of the 9 1/8 Notes. Indirect beneficial ownership is
described below in the text of this Annex A under the heading "DESCRIPTION OF
BENEFICIAL OWNERSHIP". The date on which each of High River, Icahn Partners and
Icahn Master purchased such 9 1/8 Notes was October 4, 2006.
The Record Holders have entered into a number of derivative agreements, commonly
referred to as Total Return Swaps with counterparties, which agreements provide
that the profit to Record Holders shall be based upon the increase in value of
the Shares and the loss to Record Holders shall be based upon the decrease in
the value of the Shares, during the period from inception of the applicable
agreement to its termination. The agreements provide that they settle in cash.
In addition to the Shares which they beneficially own as described above, the
Record Holders currently have long economic exposure to an aggregate of
5,427,113 Shares through such agreements. These agreements do not give the
Record Holders direct or indirect voting, investment or dispositive control over
the Shares to which these agreements relate and, accordingly: (i) Shares
referenced in such agreements are not included in the tables set forth above
under the caption "BENEFICIAL OWNERSHIP OF SECURITIES OF THE CORPORATION AS OF
THE DATE OF THIS NOTICE" and "TWO YEARS SUMMARY TABLE" and (ii) the Record
Holders disclaim any beneficial ownership in the Shares to which these
agreements relate. The following tables indicate the date of each Total Return
Swap trade (each representing the establishment of a long economic exposure
position) by Mr. Icahn and his affiliates within the past two years, and the
number of Shares referenced in each such trade.
Name Date No. of Shares Referenced
- ---- ---- ------------------------
High River October 4, 2006 83,840
- --------------- --------------------------------- ----------------------------
High River October 6, 2006 45,440
- --------------- --------------------------------- ----------------------------
High River October 9, 2006 3,080
- --------------- --------------------------------- ----------------------------
High River October 11, 2006 2,460
- --------------- --------------------------------- ----------------------------
High River October 13, 2006 50,000
- --------------- --------------------------------- ----------------------------
High River October 16, 2006 100,000
- --------------- --------------------------------- ----------------------------
High River October 17, 2006 43,020
- --------------- --------------------------------- ----------------------------
High River October 18, 2006 32,900
- --------------- --------------------------------- ----------------------------
High River October 19, 2006 29,000
- --------------- --------------------------------- ----------------------------
High River October 20, 2006 21,840
- --------------- --------------------------------- ----------------------------
High River October 23, 2006 41,860
- --------------- --------------------------------- ----------------------------
High River October 24, 2006 41,800
- --------------- --------------------------------- ----------------------------
High River October 25, 2006 72,920
- --------------- --------------------------------- ----------------------------
High River October 26, 2006 55,340
- --------------- --------------------------------- ----------------------------
High River October 27, 2006 35,720
- --------------- --------------------------------- ----------------------------
High River October 30, 2006 43,380
- --------------- --------------------------------- ----------------------------
High River December 12, 2006 34,200
- --------------- --------------------------------- ----------------------------
High River December 13, 2006 63,000
- --------------- --------------------------------- ----------------------------
High River December 14, 2006 22,200
- --------------- --------------------------------- ----------------------------
High River December 15, 2006 95,860
- --------------- --------------------------------- ----------------------------
High River December 18, 2006 53,000
- --------------- --------------------------------- ----------------------------
High River December 19, 2006 53,860
- --------------- --------------------------------- ----------------------------
High River December 20, 2006 200
- --------------- --------------------------------- ----------------------------
Icahn Partners October 4, 2006 137,986
- --------------- --------------------------------- ----------------------------
Icahn Partners October 6, 2006 77,138
- --------------- --------------------------------- ----------------------------
Icahn Partners October 9, 2006 5,228
- --------------- --------------------------------- ----------------------------
Icahn Partners October 11, 2006 4,176
- --------------- --------------------------------- ----------------------------
Icahn Partners October 13, 2006 84,879
- --------------- --------------------------------- ----------------------------
Icahn Partners October 16, 2006 169,757
- --------------- --------------------------------- ----------------------------
Icahn Partners October 17, 2006 73,030
- --------------- --------------------------------- ----------------------------
Icahn Partners October 18, 2006 55,849
- --------------- --------------------------------- ----------------------------
Icahn Partners October 19, 2006 49,230
- --------------- --------------------------------- ----------------------------
Icahn Partners October 20, 2006 37,075
- --------------- --------------------------------- ----------------------------
Icahn Partners October 23, 2006 71,060
- --------------- --------------------------------- ----------------------------
Icahn Partners October 24, 2006 70,958
- --------------- --------------------------------- ----------------------------
Icahn Partners October 25, 2006 123,787
- --------------- --------------------------------- ----------------------------
Icahn Partners October 26, 2006 93,944
- --------------- --------------------------------- ----------------------------
Icahn Partners October 27, 2006 60,637
- --------------- --------------------------------- ----------------------------
Icahn Partners October 30, 2006 73,640
- --------------- --------------------------------- ----------------------------
Icahn Partners December 12, 2006 75,970
- --------------- --------------------------------- ----------------------------
Icahn Partners December 13, 2006 107,944
- --------------- --------------------------------- ----------------------------
Icahn Partners December 14, 2006 36,635
- --------------- --------------------------------- ----------------------------
Icahn Partners December 15, 2006 164,171
- --------------- --------------------------------- ----------------------------
Icahn Partners December 18, 2006 90,749
- --------------- --------------------------------- ----------------------------
Icahn Partners December 19, 2006 92,221
- --------------- --------------------------------- ----------------------------
Icahn Partners December 20, 2006 343
- --------------- --------------------------------- ----------------------------
Icahn Master October 4, 2006 197,374
- --------------- --------------------------------- ----------------------------
Icahn Master October 6, 2006 104,622
- --------------- --------------------------------- ----------------------------
Icahn Master October 9, 2006 7,092
- --------------- --------------------------------- ----------------------------
Icahn Master October 11, 2006 5,664
- --------------- --------------------------------- ----------------------------
Icahn Master October 13, 2006 115,121
- --------------- --------------------------------- ----------------------------
Icahn Master October 16, 2006 230,243
- --------------- --------------------------------- ----------------------------
Icahn Master October 17, 2006 99,050
- --------------- --------------------------------- ----------------------------
Icahn Master October 18, 2006 75,751
- --------------- --------------------------------- ----------------------------
Icahn Master October 19, 2006 66,770
- --------------- --------------------------------- ----------------------------
Icahn Master October 20, 2006 50,285
- --------------- --------------------------------- ----------------------------
Icahn Master October 23, 2006 96,380
- --------------- --------------------------------- ----------------------------
Icahn Master October 24, 2006 96,242
- --------------- --------------------------------- ----------------------------
Icahn Master October 25, 2006 167,893
- --------------- --------------------------------- ----------------------------
Icahn Master October 26, 2006 127,416
- --------------- --------------------------------- ----------------------------
Icahn Master October 27, 2006 82,243
- --------------- --------------------------------- ----------------------------
Icahn Master October 30, 2006 99,880
- --------------- --------------------------------- ----------------------------
Icahn Master December 12, 2006 60,830
- --------------- --------------------------------- ----------------------------
Icahn Master December 13, 2006 144,056
- --------------- --------------------------------- ----------------------------
Icahn Master December 14, 2006 52,165
- --------------- --------------------------------- ----------------------------
Icahn Master December 15, 2006 219,269
- --------------- --------------------------------- ----------------------------
Icahn Master December 18, 2006 121,251
- --------------- --------------------------------- ----------------------------
Icahn Master December 19, 2006 123,219
- --------------- --------------------------------- ----------------------------
Icahn Master December 20, 2006 457
- --------------- --------------------------------- ----------------------------
Icahn Master January 10, 2007 205,853
- --------------- --------------------------------- ----------------------------
Icahn Master January 11, 2007 96,660
CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO SECURITIES OF THE
CORPORATION:
As indicated above, the Record Holders have entered into a number of derivative
agreements, commonly referred to as Total Return Swaps with counterparties,
which agreements provide that the profit to Record Holders shall be based upon
the increase in value of the Shares and the loss to Record Holders shall be
based upon the decrease in the value of the Shares, during the period from
inception of the applicable agreement to its termination. The agreements provide
that they settle in cash. In addition to the Shares which they beneficially own
as described above, the Record Holders currently have long economic exposure to
an aggregate of 5,427,113 Shares through such agreements. These agreements do
not give the Record Holders direct or indirect voting, investment or dispositive
control over the Shares to which these agreements relate and, accordingly the
Record Holders disclaim any beneficial ownership in the Shares to which these
agreements relate. Of these agreements, (A) Morgan Stanley is the counterparty
with respect to agreements relating to an aggregate of (i) 702,600 reference
Shares with High River, (ii) 1,188,374 reference Shares with Icahn Partners and
(iii) 1,622,026 reference Shares with Icahn Master and (B) Merrill Lynch is the
counterparty with respect to agreements relating to an aggregate of (i) 322,320
reference Shares with High River, (ii) 568,033 reference Shares with Icahn
Partners and (iii) 1,023,760 reference Shares with Icahn Master.
ANNEX A
ATTACHMENT 2
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: David Schechter
AGE: 31
BUSINESS ADDRESS: c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor,
New York, New York 10153
RESIDENCE ADDRESS: 100 West 26th Street, Apt #17A, New York, NY 10001
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Mr. Schechter has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex C.
In connection with his employment by Mr. Icahn and his affiliated companies, Mr.
Schechter, among other employees, has a participatory interest in the profits
and fees derived by Mr. Icahn and/or his affiliates from Icahn Partners LP and
Icahn Partners Master Fund LP (together, the "Funds"). Because only a portion of
such profit interests are distributed, Mr. Schechter also has capital accounts
in the Funds. In the aggregate, Mr. Schechter's profit interests and capital
accounts in the Funds entitle him to less than 1% of the profits generated by
the Funds.
David Schechter currently serves as Director and Senior Investment Analyst for
Icahn Management LP, the entity through which Carl C. Icahn manages third party
private investment funds. Prior to joining Mr. Icahn in January 2004, Mr.
Schechter last served as vice president of global special situations at
Citigroup, a unit responsible for making proprietary investments in distressed
situations. Prior to joining global special situations in June 1999, Mr.
Schechter was a financial analyst in the investment bank at Citigroup since July
1997. He was named to the board of WestPoint International, a manufacturer of
bed and bath home fashion products affiliated with Mr. Icahn, in January 2007.
Mr. Schechter received a B.S. in Economics, cum laude, from the Wharton School
at the University of Pennsylvania in May 1997.
ANNEX A
ATTACHMENT 3
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Jonathan R. Macey
AGE: 51
BUSINESS ADDRESS: Yale Law School
127 Wall Street
New Haven, CT 06525
RESIDENCE ADDRESS: 27 Rimmon Road, Woodbridge, CT 06525
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
CLASS OR SERIES AND NUMBER OF SHARES
OF CAPITAL STOCK OF THE CORPORATION
OWNED BENEFICIALLY OR OF RECORD
AS OF THE DATE OF THIS NOTICE: 100 Shares of the Corporation's Common
Stock, par value $0.01 per share
BENEFICIAL OWNERSHIP OF SECURITIES OF THE CORPORATION AS OF THE DATE OF
THIS NOTICE:
(1) Title of 2) Name of (3) Amount and Nature (4) Percent of
Class Beneficial of Beneficial Class
Owner Ownership
- ------------------ ------------- ---------------------- ---------------
Common Stock, par Jonathan R. 100 %(4)
value $0.01 per Macey
share
On February 14, 2007, Professor Macey purchased 100 shares of the Corporation's
Common Stock, par value $0.01 per share.
Professor Macey has an interest in the election of directors at the Annual
Meeting (i) indirectly through the beneficial ownership of Shares, as described
above and (ii) pursuant to the Nominee Agreement attached hereto as Annex C.
Professor Macey is currently, and has been since 2004, the Sam Harris Professor
of Corporate Law, Corporate Finance and Securities Law at the Yale Law School,
and Professor in the Yale School of Management. Professor Macey is currently a
member of the Legal Advisory Committee to the Board of Directors of the New York
Stock Exchange. Professor Macey is also currently the President of the
non-profit Yale Law Journal Corporation. Professor Macey is currently a member
of the Yale University Advisory Committee on Investor Responsibility, which
develops recommendations for presentation to the Yale Corporation concerning the
voting of Yale's stock at annual corporate meetings. From 1990 to 2004,
Professor Macey was the J. DuPratt White Professor of Law at Cornell Law School,
and from 2002 to 2004, Professor of Law & Business Administration at the Johnson
Graduate School of Business at Cornell University. Professor Macey has also been
a Visiting Professor at a number of law schools, including, the Stockholm School
of Economics, the University of Chicago, the University of Tokyo and the
University of Virginia. From 1982 to 1983, Professor Macey was law clerk to the
Honorable Henry J. Friendly, United States Court of Appeals, Second Circuit.
From 1998 to 1999, Professor Macey was a director of Telxon Corporation, a
designer, manufacturer, integrator and marketer of wireless and portable
tele-transaction computers and systems. For ten years, Professor Macey served as
Reporter for the American Bar Association's Committee on Corporate Laws' Model
Business Corporation Act Revision Project, the principal professional body
concerned with reforming and improving the statutes that govern corporate
entities. In 1977, Professor Macey received a Bachelor of Arts degree in
Economics, cum laude, from Harvard College, and in 1982, a Juris Doctor degree
from the Yale Law School. In 1996, Professor Macey received a Ph.D. (Law)
(honoris causa) from the Stockholm School of Economics.
- -----------------
(4) Less than 1%.
ANNEX A
ATTACHMENT 4
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Peter C. Clapman
AGE: 69
BUSINESS ADDRESS: 3 Valley Road, Scarsdale, NY 10583
RESIDENCE ADDRESS: 3 Valley Road, Scarsdale, NY 10583
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Mr. Clapman has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex C.
Mr. Clapman retired as senior vice president and chief counsel for TIAA-CREF, a
financial services provider, in 2005 after 32 years of service. Mr. Clapman is
currently Chairman of the Board and Trustee of AARP Mutual Funds, a mutual fund
company, and chief executive officer of Governance for Owners USA, Inc., which
provides corporate governance consulting services. Mr. Clapman is active in many
organizations specializing in corporate governance and director education. He is
a board member of the National Association of Corporate Directors and a faculty
member for its Corporate Directors Institute programs. Mr. Clapman is also on
the corporate governance advisory boards of the University of Delaware Business
School and the Yale School of Management, and is chairman of Stanford Law
School's Committee on Institutional Investor Governance. Mr. Clapman is a member
of the NASDAQ Listing Council. Mr. Clapman has been on the London Stock Exchange
Primary Markets Group and the New York Stock Exchange Legal Advisory Committee
and has been a board member of the Investor Responsibility Research Center. In
1993, Mr. Clapman was elected as member of the American Law Institute. Mr.
Clapman is a graduate of Princeton University and received a juris doctor from
Harvard Law School.
ANNEX A
ATTACHMENT 5
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Auguste E. Rimpel, Jr.
AGE: 67
BUSINESS ADDRESS: 30 Border Road, Concord MA 01742
RESIDENCE ADDRESS: 30 Border Road, Concord MA 01742
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Dr. Rimpel has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex C.
Dr. Rimpel has been a retired partner of PricewaterhouseCoopers LLP ("PwC")
since 2000. He was with PwC and its predecessor firm, Price Waterhouse, since
1983, most recently as Managing Partner of International Consulting services for
the Washington Consulting Practice of the firm. Prior to his tenure at PwC, Dr.
Rimpel served as a Partner with Booz Allen & Hamilton, Inc., a management
consulting firm and as a Vice President of Arthur D. Little International, Inc.,
a management consulting firm. Dr. Rimpel's consulting focus has been in the area
of strategic planning and management. In addition, Dr. Rimpel currently serves
as Chairman of the Board of Trustees of the University of the Virgin Islands.
Since April 25, 2001, he has served as a member of the Audit Committee and Board
of Directors of GB Holdings, Inc., an entity controlled by Carl C. Icahn that
owns an interest in Atlantic Coast Entertainment Holdings, Inc., which
indirectly owned and operated The Sands Hotel and Casino in Atlantic City, New
Jersey prior to its sale in November 2006. Dr. Rimpel also served as a member of
the Board of Directors and the Audit Committee of Atlantic Coast Entertainment
Holdings, Inc. Dr. Rimpel received graduate degrees in chemical engineering from
M.I.T. (M.S.) and Carnegie Institute of Technology (PhD.) and was an
International Fellow at Columbia University Graduate School of Business.
ANNEX A
ATTACHMENT 6
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Howard Lorber
AGE: 58
BUSINESS ADDRESS: 70 East Sunrise Highway, #411, Valley Stream, NY 11581
RESIDENCE ADDRESS: 8061 Fisher Island Drive, Fisher Island, FL 33109
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Mr. Lorber has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex C.
Mr. Lorber and an entity of which he is the Chief Executive Office and an 8%
beneficial owner each have limited partnership interests in Icahn Partners LP.
In the aggregate, such limited partnership interests do not exceed 2% of the
capital or profits of Icahn Partners LP.
Since January 2006, Howard M. Lorber has been the President and Chief Executive
Officer of Vector Group Limited, a publicly traded holding company principally
engaged in the cigarettes business and the real estate business, in which Mr.
Icahn indirectly holds a minority interest, and has served as a director of
Vector Group Limited since January 2001. He served as President and Chief
Operating Officer of Vector Group Limited from January 2001 to December 2005.
From November 1994 to December 2005, Mr. Lorber served as President, Chief
Operating Officer and a director of New Valley Corporation, the subsidiary
through which Vector Group Limited conducts its real estate business. Mr. Lorber
was Chairman of the Board of Directors of Hallman & Lorber Assoc. Inc.,
consultants and actuaries of qualified pension and profit sharing plans, and
various of its affiliates from 1975 through 2004 and has been a consultant to
these entities since January 2005. In addition, Mr. Lorber has been a
stockholder and a registered representative of Aegis Capital Corp., a
broker-dealer and a member firm of the National Association of Securities
Dealers, since 1984. Since 1987, Mr. Lorber has been the Chairman of the Board
of Directors, and from 1993 to 2006, the Chief Executive Officer, of Nathan's
Famous, Inc., a chain of fast food restaurants. Effective January 2007, Mr.
Lober became the Executive Chairman of the Board of Nathans Famous. Mr. Lorber
has also been a director and member of the Audit Committee of United Capital
Corp., a real estate investment and diversified manufacturing company, since
1991; and the Chairman of the Board of Ladenburg Thalmann Financial Services
Inc. from 2001 to 2006. Effective July 2006, Mr. Lorber became the Vice Chairman
of the Board of Ladenburg Thalmann. He is also a graduate and trustee of Long
Island University.
ANNEX A
ATTACHMENT 7
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Michael L. Ashner
AGE: 54
BUSINESS ADDRESS: Two Jericho Plaza, Suite 111-Wing A, Jericho, NY 11753
RESIDENCE ADDRESS: 109 Cove Neck Road, Cove Neck, NY 117711
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Mr. Ashner has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex C.
Michael L. Ashner currently serves as the Chairman and Chief Executive Officer
of Winthrop Realty Trust, formerly known as First Union Real Estate Equity and
Mortgage Investments, a publicly traded real estate investment trust, positions
he has held since 2004. In addition, since 1995, Mr. Ashner has held the
positions of Chairman, President and Chief Executive Officer of Winthrop Realty
Partners, L.P., a full service real estate operating company, which manages a
portfolio of assets consisting of 21,000,000 square feet of office and
commercial space, as well as 400 hotel rooms. Since 1997, Mr. Ashner has also
served as the Executive Chairman of Lexington Realty Trust (and its predecessor
Newkirk Realty Trust, Inc.), a publicly traded real estate investment trust
which owns a $5.5 billion portfolio of real estate assets. Mr. Ashner is also
the Managing Director of AP-USX LLC, an entity which owns a 2.4 million square
foot office tower. Mr. Ashner had also served as the Chairman and Chief
Executive Officer of Shelbourne Properties I, Inc., Shelbourne Properties II,
Inc. and Shelbourne Properties III, Inc., three separate publicly traded real
estate investment trusts listed on the American Stock Exchange that have been
liquidated. Since 1981, Mr. Ashner has been Chairman of Exeter Capital
Corporation, a firm that has organized and administered real estate limited
partnerships. Mr. Ashner also currently serves on the Board of Directors of NBTY
Inc., a publicly traded company that is a manufacturer, marketer and retailer of
nutritional supplements. From 2000 to 2005, Mr. Ashner had served as a director
and member of the Audit Committee of GB Holdings, Inc., an entity controlled by
Carl C. Icahn that owns an interest in Atlantic Coast Entertainment Holdings,
Inc., which indirectly owned and operated The Sands Hotel and Casino in Atlantic
City, New Jersey prior to its sale in November 2006. From 2003 to 2006, Mr.
Ashner had also served as a member of Atlantic Holdings Coast Entertainment
Holdings, Inc.'s Board of Directors. Mr. Ashner graduated cum laude from Cornell
University and received a juris doctor magna cum laude from University of Miami
School of Law.
ANNEX A
ATTACHMENT 8
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Jerome M. Becker
AGE: 71
BUSINESS ADDRESS: Two Dogs Farm, PO Box 20, Erwinna, PA 18920
RESIDENCE ADDRESS: Two Dogs Farm, PO Box 20, Erwinna, PA 18920
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Jerome M. Becker has an interest in the election of directors at the Annual
Meeting pursuant to the Nominee Agreement attached hereto as Annex C.
Mr. Becker currently serves as a Special Disciplinary Referee for the Appellate
Division of the First and Second Judicial Departments, an assignment he has
performed for the past decade, and a Mediator for the Supreme Court of the State
of New York, an assignment he has performed for the past 3 years. In January
2007, he was appointed as a Special Master for the Supreme Court of the State of
New York. From 1995 to 2006, He served as Chairman of the New York State Housing
Finance Agency, Chairman of the New York State Affordable Housing Agency,
Chairman of the New York State Municipal Bond Bank Agency, and Vice-Chairman of
the State of New York Mortgage Agency. Up until 2006, Mr. Becker also served as
a Director of the New York State Housing Trust Fund Corporation and a Director
of the Homeless Housing Assistance Corporation. Prior to his career in public
service, Mr. Becker was engaged in the private practice of law, specializing in
real estate matters. Mr. Becker earned a Bachelor of Science from Hofstra
University and received a juris doctor from New York Law School
ANNEX A
ATTACHMENT 9
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Sumner Baye
AGE: 74
BUSINESS ADDRESS: 300 East 71st Street, New York, NY 10021
RESIDENCE ADDRESS: 300 East 71st Street, New York, NY 10021
PRINCIPAL OCCUPATION
OR EMPLOYMENT: See below
Mr. Baye has an interest in the election of directors at the Annual Meeting
pursuant to the Nominee Agreement attached hereto as Annex C.
Mr. Baye has been President and Partner of International Hotel Network, a
hospitality consulting firm headquartered in New York City, for more than 15
years. Mr. Baye has worked in the hospitality industry more than 35 years,
including as a Vice President in the sales, marketing and conference division of
Sheraton Hotels and as a Vice President of Travel and Related Services at
American Express. He formed Sumner A. Baye, Inc., a hotel representative and
consulting firm, which was acquired by the American Express Company. Mr. Baye
formed Hotel Network, the predecessor to International Hotel Network.
ANNEX A
ATTACHMENT 10
INFORMATION ABOUT NOMINEES PURSUANT TO ARTICLE I, SECTION 11 OF THE BYLAWS
NAME: Hugh F. Culverhouse
AGE: 57
BUSINESS ADDRESS: 2601 South Bayshore Drive
SBS Tower, PH1-C
Miami, FL 33133
RESIDENCE ADDRESS: 2601 South Bayshore Dr., SBS Tower, PH1-C, Miami, FL 33133
Principal Occupation
or Employment: See below
Mr. Culverhouse has an interest in the election of directors at the Annual
Meeting pursuant to the Nominee Agreement attached hereto as Annex C.
Since 2001, Mr. Culverhouse has owned Palmer Ranch Holdings Ltd., an entity that
owns a Master Planned Community in Sarasota County Florida. Palmer Ranch, among
other things, engages in land sales to public and local developers. Since 1989,
Mr. Culverhouse has also owned Culverhouse Limited Partnership, an entity that
invests in real estate and securities. From 1997 to 2001, Mr. Culverhouse served
as the Head Trustee of Hugh F. Culverhouse Trust, an entity that managed a
portfolio of assets consisting of land holdings, orange groves, utility
companies and other businesses. Prior thereto, Mr. Culverhouse engaged in the
private practice of law and served as an Assistant United States Attorney, Miami
Florida, and a Trial Attorney for the United Securities and Exchange Commission.
From 1991 to 1997, Mr. Culverhouse served on the Board of Directors and as a
member of the Audit Committee of Del Webb Corporation, a publicly traded real
estate development company. Mr. Culverhouse is a graduate of the University of
Florida, received an MBA from New York University and received a juris doctor
from University of Florida.
ANNEX B
The written consent of each Nominee to being named as a nominee for election as
a director of the Corporation and to serve as a director if elected is attached
to this Annex B. If the Corporation requests original signed statements of
consents, the Record Holders will provide them.
ANNEX B
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 15, 2007
/s/ Carl C. Icahn
- -----------------
Name: Carl C. Icahn
ANNEX B
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ David Schechter
- -------------------
Name: David Schechter
ANNEX B
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ Jonathan R. Macey
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Name: Jonathan R. Macey
ANNEX B
ATTACHMENT 4
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 15, 2007
/s/ Peter C. Clapman
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Name: Peter C. Clapman
ANNEX B
ATTACHMENT 5
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ Auguste E. Rimpel, Jr.
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Name: Auguste E. Rimpel, Jr.
ANNEX B
ATTACHMENT 6
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ Howard Lorber
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Name: Howard Lorber
ANNEX B
ATTACHMENT 7
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 13, 2007
/s/ Michael L. Ashner
- ---------------------
Name: Michael L. Ashner
ANNEX B
ATTACHMENT 8
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ Judge Jerome Becker
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Name: Judge Jerome Becker
ANNEX B
ATTACHMENT 9
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ Sumner Baye
- ---------------
Name: Sumner Baye
ANNEX B
ATTACHMENT 10
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: February 14, 2007
/s/ Hugh F. CulverhousE
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Name: Hugh F. Culverhouse
ANNEX C
Attached to this Annex C is the form of agreement pursuant to which the Record
Holders have agreed to pay certain fees to certain of the Nominees and to
indemnify such Nominees with respect to certain costs incurred by such Nominees
in connection with the proxy contest relating to the Annual Meeting.
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
HIGH RIVER LIMITED PARTNERSHIP
February [__], 2007
[NOMINEE]
Dear Mr. [___________]:
This will confirm our understanding as follows:
You agree that you are willing, should we so elect, to become a member of a
slate of nominees (the "Slate") to stand for election as directors of WCI
Communities, Inc. ("WCI") in connection with a proxy contest with management of
WCI in respect of the election of directors of WCI at the 2007 Annual Meeting of
Stockholders of WCI (the "Annual Meeting"), expected to be held in May 2007, or
a special meeting of stockholders of WCI called for a similar purpose (the
"Proxy Contest").
Icahn Partners LP, Icahn Partners Master Fund LP and High River Limited
Partnership (collectively, "Icahn"), agree to pay the costs of the Proxy
Contest.
[In addition, upon our filing of a preliminary proxy statement with the
SEC, which indicates that Icahn intends to nominate you for election at the
Annual Meeting, you will be paid $25,000 by Icahn.]*
You understand that, pursuant to the By-Laws of WCI, it may be difficult,
if not impossible, to replace nominees who, such as yourself, have agreed to
serve on the Slate and later change their minds and determine not to seek
election. Accordingly, the Slate is relying upon your agreement to seek
election. In that connection, you are being supplied with a questionnaire in
which you will provide Icahn with information necessary for Icahn to make
appropriate disclosure both to WCI and for use in creating the proxy material to
be sent to stockholders of WCI and to be filed with the Securities and Exchange
Commission. You have agreed that (i) you will immediately complete and sign the
questionnaire and return it to Mark DiPaolo, Counsel, Icahn Associates Corp.,
767 Fifth Avenue, Suite 4700, New York, NY 10153, Tel: (212) 702-4361, Fax:
(212) 688-1158, Email: mdipaolo@sfire.com, and (ii) your responses to the
questions contained therein will be true and correct in all respects. In
addition, you have agreed that, concurrently with your execution of this letter,
you will execute the attached instrument directed to WCI informing WCI that you
consent to being nominated by Icahn for election as a director of WCI and, if
elected, consent to serving as a director of WCI. Upon being notified that we
have chosen you, we may forward that consent and your completed questionnaire
(or summaries thereof) to WCI.
Icahn hereby agrees that, so long as you actually serve on the Slate, Icahn
will defend, indemnify and hold you harmless from and against any and all
losses, damages, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (including, without limitation, reasonable attorneys' fees, costs,
expenses and disbursements) incurred by you in the event that (i) you become a
party, or are threatened to be made a party, to any civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal thereof
relating solely to your role as a nominee for director of WCI on the Slate (a
"Proceeding") or (ii) you are called to testify or give a deposition in any
Proceeding (whether or not you are a party or are threatened to be made a party
to such Proceeding), including, in each case, the advancement to you of all
reasonable attorneys' costs and expenses incurred by you in connection with any
Proceeding. Your right of indemnification hereunder shall continue (i) in the
event that Icahn determines to withdraw the Slate or remove you from the Slate
and (ii) after the election has taken place but only for events which occur
prior to such election and subsequent to the date hereof. Anything to the
contrary herein notwithstanding, Icahn is not indemnifying you for any action
taken by you or on your behalf which occurs prior to the date hereof or
subsequent to the Annual Meeting or such earlier time as you are no longer a
nominee of the Slate for election to WCI's Board of Directors or for any actions
taken by you as a director of WCI, if you are elected. Nothing herein shall be
construed to provide you an indemnity: (i) in the event you are found to have
engaged in a violation of any provision of state or federal law in connection
with the Proxy Contest unless you demonstrate that your action was taken in good
faith and in a manner you reasonably believed to be in or not opposed to the
best interests of electing the Slate; or (ii) if you acted in a manner which
constitutes gross negligence or willful misconduct. In the event that you shall
make any claim for indemnification hereunder, you shall promptly notify Icahn in
the event of any third-party claims actually made against you or known by you to
be threatened. In addition, with respect to any such claim, Icahn shall be
entitled to control your defense with counsel chosen by Icahn. Icahn shall not
be responsible for any settlement of any claim against you covered by this
indemnity without its prior written consent. However, Icahn may not enter into
any settlement of any such claim without your consent unless such settlement
includes a release of you from any and all liability in respect of such claim.
- -----------------
*This bracketed provision is not contained in Mr. Schechter's Nominee Agreement.
Each of us recognizes that should you be elected to the Board of Directors
of WCI all of your activities and decisions as a director will be governed by
applicable law and subject to your fiduciary duty to the stockholders of WCI
and, as a result, that there is, and can be, no agreement between you and Icahn
which governs the decisions which you will make as a director of WCI.
Should the foregoing agree with your understanding, please so indicate in
the space provided below, whereupon this letter will become a binding agreement
between us.
Very truly yours,
Icahn Partners LP, by Icahn Onshore LP, its
general partner, by CCI Onshore Corp., its
general partner
By: __________________________
Name:
Title:
Icahn Partners Master Fund LP, by Icahn
Offshore LP, its general partner, by CCI
Offshore Corp., its general partner
By: __________________________
Name:
Title:
High River Limited Partnership, by Hopper
Investments, LLC, its general partner, by
Barberry Corp., its sole member
By: __________________________
Name:
Title:
Agreed to and Accepted as of the date first above written:
- ------------------------
Name:
CONSENT OF NOMINEE
The undersigned hereby consents to being named as a nominee for election as
a director of WCI Communities, Inc. (the "Company"), in the proxy statement to
be filed with the Securities and Exchange Commission and distributed to
stockholders of the Company by Icahn Partners LP, Icahn Partners Master Fund LP
and High River Limited Partnership (collectively, the "Record Holder") and in
other materials in connection with the solicitation of proxies by the Record
Holder from stockholders of the Company to be voted at the 2007 annual meeting
of stockholders of the Company and any adjournment thereof, and further consents
to serve as a director of the Company, if elected.
Dated: _______________
- ------------------------
Name: