EXHIBIT (a)(1)(i)
OFFER TO PURCHASE FOR CASH
ANY AND ALL OF THE
OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
WCI COMMUNITIES, INC.
AT
$22.00 NET PER SHARE
BY
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
AND
HIGH RIVER LIMITED PARTNERSHIP
----------------------------
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00
MIDNIGHT, NEW YORK CITY TIME, ON MAY 18, 2007, UNLESS THE
OFFER IS EXTENDED (THE "EXPIRATION DATE").
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THE OFFER IS BEING MADE BY ICAHN PARTNERS LP, A DELAWARE LIMITED
PARTNERSHIP, ICAHN PARTNERS MASTER FUND LP, A CAYMAN ISLANDS EXEMPTED LIMITED
PARTNERSHIP, ICAHN PARTNERS MASTER FUND II LP, A CAYMAN ISLANDS EXEMPTED LIMITED
PARTNERSHIP, ICAHN PARTNERS MASTER FUND III LP, A CAYMAN ISLANDS EXEMPTED
LIMITED PARTNERSHIP AND HIGH RIVER LIMITED PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP (COLLECTIVELY, THE "OFFEROR"), TO PURCHASE ANY AND ALL OF THE
OUTSTANDING SHARES OF COMMON STOCK OF WCI COMMUNITIES, INC. (THE "COMPANY") AND
THE RIGHTS TO PURCHASE CERTAIN PREFERRED STOCK ASSOCIATED WITH THE SHARES OF
COMMON STOCK (THE "RIGHTS" AND, TOGETHER WITH THE COMMON STOCK, THE "SHARES")
FOR $22.00 PER SHARE IN CASH, UPON THE TERMS AND SUBJECT TO THE CONDITIONS SET
FORTH IN THIS OFFER TO PURCHASE AND IN THE RELATED LETTER OF TRANSMITTAL (WHICH,
TOGETHER WITH ANY AMENDMENTS OR SUPPLEMENTS HERETO OR THERETO, COLLECTIVELY
CONSTITUTE THE "OFFER").
THE FOLLOWING THREE CONDITIONS APPLY TO THE OFFER. (I) THE RIGHTS (KNOWN AS
THE "POISON PILL") HAVE BEEN REDEEMED AND ARE OTHERWISE INAPPLICABLE TO THE
OFFER AND THE OFFEROR (THE "POISON PILL CONDITION"). (II) THE COMPANY'S BOARD
HAS TAKEN ACTION SUCH THAT THE PROVISIONS OF SECTION 203 OF THE DELAWARE GENERAL
CORPORATION LAW WOULD NOT, FOLLOWING CONSUMMATION OF THE OFFER, PROHIBIT OR
RESTRICT ANY BUSINESS COMBINATION, AS DEFINED THEREIN, INVOLVING THE COMPANY AND
THE OFFEROR OR ANY AFFILIATE OR ASSOCIATE OF THE OFFEROR (THE "DELAWARE 203
CONDITION"). (III) IN THE EVENT THAT THE NUMBER OF SHARES TENDERED AND NOT
WITHDRAWN PLUS THE NUMBER OF SHARES BENEFICIALLY OWNED BY THE OFFEROR EXCEEDS
50% OF THE OUTSTANDING SHARES, AND THE OFFEROR'S NOMINEES DO NOT YET CONSITITUTE
A MAJORITY OF THE COMPANY'S BOARD, THE CURRENT DIRECTORS OF THE COMPANY HAVE
RESIGNED AND APPOINTED THE OFFEROR'S NOMINEES TO THE BOARD SUCH THAT THEY
CONSTITUTE ALL OF THE COMPANY'S BOARD OF DIRECTORS. THE OFFER IS ALSO SUBJECT TO
OTHER CUSTOMARY CONDITIONS. SEE SECTION 14. THE OFFER IS NOT CONDITIONED UPON
THE OFFEROR OBTAINING FINANCING OR ANY DUE DILIGENCE REVIEW.
IF, ON THE EXPIRATION DATE, MAY 18, 2007, OR AS IT IS EXTENDED, THE
COMPANY'S BOARD HAS NOT SATISFIED THE FOREGOING CONDITIONS BUT THE OFFEROR'S
NOMINEES CONSTITUTE AT LEAST A MAJORITY OF THE BOARD, THE OFFEROR INTENDS TO
EXTEND THE EXPIRATION DATE TO AT LEAST JUNE 18, 2007, TO ALLOW THE NEW BOARD OF
DIRECTORS, SUBJECT TO THEIR FIDUCIARY DUTIES, TO CAUSE THE POISON PILL TO BE
REDEEMED AND SECTION 203 TO BE INAPPLICABLE.
IF, ON MAY 18, 2007, THE FOREGOING CONDITIONS HAVE NOT BEEN MET AND THE
COMPANY HAS YET TO CONCLUDE ITS 2007 ANNUAL MEETING, THE OFFEROR CURRENTLY DOES
NOT INTEND TO EXTEND THE EXPIRATION DATE OF THE OFFER.
FOR CERTAIN POSSIBLE EFFECTS OF THE OFFER ON THE INDEBTEDNESS OF THE
COMPANY, SEE SECTION 12. NOTWITHSTANDING THE POSSIBLE EFFECTS ON THE COMPANY'S
INDEBTEDNESS, THE OFFEROR INTENDS TO CONSUMMATE THE OFFER IF ALL THE CONDITIONS
TO THE OFFER ARE MET.
THIS OFFER REFERS TO A POSSIBLE PROXY SOLICITATION. THIS OFFER TO PURCHASE
IS NOT INTENDED TO AND DOES NOT CONSTITUTE (I) A SOLICITATION OF A PROXY,
CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO THE ANNUAL MEETING OR ANY
SPECIAL MEETING OF THE COMPANY'S STOCKHOLDERS OR (II) A SOLICITATION OF A
CONSENT OR AUTHORIZATION IN THE ABSENCE OF ANY SUCH MEETING. ANY SUCH
SOLICITATION WHICH OFFEROR MAY MAKE WILL BE MADE ONLY PURSUANT TO PROXY OR
CONSENT SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF
SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER. 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 TO THE SCHEDULE 14A FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 16, 2007.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE OFFER, PASSED UPON ITS MERITS OR
FAIRNESS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED IN
THIS OFFER TO PURCHASE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The Information Agent for the Offer is:
MACKENZIE PARTNERS, INC.
March 23, 2007
IMPORTANT
The Offeror will accept for purchase any and all Shares that are validly
tendered and not properly withdrawn prior to the Expiration Date, subject to the
terms and conditions set forth herein. If the Offeror purchases any Shares in
the Offer, the Offeror will purchase in the Offer all Shares validly tendered
and not withdrawn prior to the Expiration Date. The Rights are presently
evidenced by the certificates for the Common Stock. However, in the future the
Company may issue separate certificates representing the Rights. Until such time
as any such certificates are issued, a tender by a stockholder of such
stockholder's Shares of Common Stock will also constitute a tender of the
associated Rights. After such time as any such certificates representing Rights
are issued, a stockholder will also be required to tender such certificates
representing the associated Rights in connection with a tender by such
stockholder of such stockholder's Shares of Common Stock. Unless the context
requires otherwise, all references in this Offer to Purchase to "Shares" shall
include the associated Rights.
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (1) complete and sign the Letter of Transmittal (or a
facsimile thereof) in accordance with the instructions in the Letter of
Transmittal, mail or deliver it and any other required documents to the
Depositary indicated thereon and either deliver the certificate(s) for such
tendered Shares and the certificate(s), if any, for the associated Rights, to
the Depositary along with the Letter of Transmittal or tender such Shares
pursuant to the procedures for book-entry transfer set forth in Section 2 of
this Offer to Purchase, or (2) request such stockholder's broker, dealer,
commercial bank, trust company or other nominee to effect the transaction for
the stockholder. Stockholders having Shares registered in the name of a broker,
dealer, commercial bank, trust company or other nominee must contact such
broker, dealer, commercial bank, trust company or other nominee if they desire
to tender such Shares.
A stockholder who desires to tender Shares and whose certificate(s) for
Shares or certificate(s), if any, for the associated Rights, is not immediately
available, or who cannot comply with the procedures for book-entry transfer on a
timely basis, may tender such Shares by following the procedures for guaranteed
delivery set forth in Section 2 of this Offer to Purchase.
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number set forth on the back cover of this
Offer to Purchase. Requests for additional copies of this Offer to Purchase, the
Letter of Transmittal and the Notice of Guaranteed Delivery may also be directed
to the Information Agent. The Offeror will not pay any fee or commission to any
broker or dealer or to any other person (other than to the Depositary and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer.
SUMMARY TERM SHEET
Icahn Partners LP, a Delaware limited partnership, Icahn Partners Master
Fund LP, a Cayman Islands exempted limited partnership, Icahn Partners Master
Fund II LP, a Cayman Islands exempted limited partnership, Icahn Partners Master
Fund III LP, a Cayman Islands exempted limited partnership, and High River
Limited Partnership, a Delaware limited partnership (collectively, the
"Offeror"), are offering to purchase any and all of the outstanding shares of
common stock of WCI Communities, Inc. and the rights to purchase preferred stock
associated with the shares for $ 22.00 per share in cash. The following are some
of the questions that you, as a stockholder of WCI Communities, Inc., may have
and the answers to those questions. We urge you to read carefully the remainder
of this offer to purchase and the letter of transmittal because the information
in this summary term sheet is not complete. Additional important information is
contained in the remainder of this offer to purchase and the letter of
transmittal.
WHO IS OFFERING TO BUY MY SECURITIES?
The entities offering to buy your securities are Icahn Partners LP, a
Delaware limited partnership, Icahn Partners Master Fund LP, a Cayman Islands
exempted limited partnership, Icahn Partners Master Fund II LP, a Cayman Islands
exempted limited partnership, Icahn Partners Master Fund III LP, a Cayman
Islands exempted limited partnership, and High River Limited Partnership, a
Delaware limited partnership. These entities were not formed for the purpose of
making this offer. All of these entities are controlled by Carl C. Icahn. See
Section 8.
WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
We are offering to purchase any and all shares of the outstanding common
stock of WCI Communities, Inc. and the rights to purchase preferred stock
associated with such shares. See the "Introduction" and Section 1.
HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I HAVE TO
PAY ANY FEES OR COMMISSIONS?
We are offering to pay $ 22.00 per share, net to you, in cash. If you are
the record owner of your shares and you tender your shares to us in the offer,
you will not have to pay brokerage fees or similar expenses. If you own your
shares through a broker or other nominee, and your broker tenders your shares on
your behalf, your broker or nominee may charge you a fee for doing so. You
should consult your broker or nominee to determine whether any charges will
apply. See the "Introduction."
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Yes. We are able to provide 100% of the funds required to pay for the
shares tendered from our working capital and available lines of credit,
revolvers, margin borrowings and from our ability to realize cash upon the sale
of liquid securities. In addition, we may seek additional financing, which we
may not be able to obtain and which may be secured by our assets, including the
shares of WCI Communities, Inc. now owned by us and the shares we purchase in
the offer. However, the offer is not conditioned upon any financing
arrangements. See Section 9.
IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not think our financial condition is relevant to your decision
whether to tender in the offer because the form of payment consists solely of
cash and we have all of the financial resources necessary to complete the offer.
See Section 9.
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, New York City time, on May 18,
2007 to tender your shares in the offer. Further, if you cannot deliver
everything that is required in order to make a valid tender by that time, you
may be able to use a guaranteed delivery procedure described in Sections 1 and 2
of the offer.
We may elect to provide a "subsequent offering period" for the offer. A
subsequent offering period, if one is included, will be an additional period of
time beginning after we have purchased shares tendered during the offer, during
which stockholders may tender, but not withdraw, their shares and receive the
offer consideration. We do not currently intend to include a subsequent offering
period, although we reserve the right to do so. See Section 1.
CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
We can extend the offer from time to time and for any reason. We may extend
the offer in the following circumstances:
o If any of the conditions to the offer have not been satisfied or waived, we
can extend the offer until such time as they are satisfied or waived; or
o We may extend the offer for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission or its
staff or as required by applicable law.
See Section 1.
If, on the expiration date, May 18, 2007, or as it is extended, the
Company's board has not satisfied the conditions relating to the poison pill or
Section 203 of the Delaware General Corporation Law but our nominees constitute
at least a majority of the board, we intend to extend the expiration date to at
least June 18, 2007, to allow the new board of directors, subject to their
fiduciary duties, to cause the poison pill to be redeemed and Section 203 to be
inapplicable.
If, on May 18, 2007, the conditions have not been met and the Company has
yet to conclude its 2007 annual meeting, we currently do not intend to extend
the expiration date of the offer.
HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform American Stock Transfer & Trust
Company (which is the depositary for the offer) of that fact and will make a
public announcement of the extension, not later than 9:00 a.m., New York City
time, on the next business day after the day on which the offer was scheduled to
expire. See Section 1.
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
o We are not obligated to purchase any shares unless the poison pill has been
redeemed and is otherwise inapplicable to the offer.
o We are not obligated to purchase any shares unless the Company's board has
taken action such that the provisions of Section 203 of the Delaware
General Corporation Law would not, following consummation of the offer,
prohibit or restrict any business combination, as defined in Section 203,
involving the Company and us or any of our affiliates or associates.
o In the event that the number of shares tendered and not withdrawn plus the
number of shares that we beneficially own exceeds 50% of the outstanding
shares, and our nominees do not yet constitute a majority of the Company's
board, then we are not obligated to purchase any shares unless the current
directors of the Company have resigned and appointed our nominees to the
board so that they constitute all of the Company's board of directors.
The offer is also subject to other conditions. See Section 14. The Offer is
not conditioned upon our obtaining financing or conducting any due diligence
review.
If, on the expiration date, May 18, 2007, or as it is extended, the
Company's board has not satisfied the conditions relating to the poison pill or
Section 203 of the Delaware General Corporation Law but our nominees constitute
at least a majority of the board, we intend to extend the expiration date to at
least June 18, 2007, to allow the new board of directors, subject to their
fiduciary duties, to cause the poison pill to be redeemed and Section 203 to be
inapplicable.
If, on May 18, 2007, the conditions have not been met and the Company has
yet to conclude its 2007 annual meeting, we currently do not intend to extend
the expiration date of the offer.
ARE THERE ANY CONSEQUENCES OF THE OFFER ON THE INDEBTEDNESS OF THE COMPANY OF
WHICH I SHOULD BE AWARE?
o If we become the owner of more than 50% of common stock, including as a
result of the consummation of the offer, or
o If our nominees to the board are elected without the approval of the
current board;
The lenders under the Company's senior credit facilities will have the right to
cause all unpaid amounts to be immediately due and payable. We believe there is
currently approximately $1.1 billion outstanding under these facilities. In
addition, the holders of various senior subordinated notes of the Company will
have the right to require the Company to repurchase these notes generally within
ninety days or more, at, in most cases, 101% of the par value of such notes plus
accrued interest. We believe there is currently approximately $650 million of
these notes outstanding. In addition, generally, if the Company fails to pay the
outstanding indebtedness under any of its senior credit facilities when due,
including as a result of an acceleration of the maturity dates as described
above, there will occur an event of default under the indentures governing these
notes which will enable the holders to declare the notes to become immediately
due and payable. We are currently exploring various refinancing options with
respect to this indebtedness, however, we are unable to ascertain the terms and
conditions of any refinancing because of the current inability of potential
financing sources to conduct a comprehensive due diligence review of the Company
without the consent of the current board of directors. Notwithstanding, we are
highly confident that adequate refinancing options will be available to the
Company once potential financing sources are permitted to conduct a due
diligence review. In addition, we expect that if our nominees are elected to the
board, they will, subject to their fiduciary duties, allow potential financing
sources to conduct a due diligence review. The inability to obtain any
refinancing on acceptable terms could result in the bankruptcy of the Company or
could otherwise have a material adverse effect on the Company. In addition,
under certain circumstances, we may request that the current board of directors
approve the nomination or election to the board of directors of our nominees so
as to avoid the acceleration of the indebtedness and the repurchase obligations
of the Company as described above. We believe that the fiduciary duties of the
board may require them to consent to such requests. The foregoing description of
the Company's indebtedness is qualified in its entirety by reference to the
definitive documents governing that indebtedness, copies of which have been
filed by the Company with the Securities and Exchange Commission. We take no
responsibility for the accuracy or completeness of those filings. See Section 7.
Notwithstanding the foregoing possible effects on the Company's indebtedness, we
intend to consummate the offer if all the conditions to the offer are met.
WHAT ARE YOUR PURPOSES FOR THE OFFER AND PLANS FOR THE COMPANY AFTER THE OFFER
IS CONSUMMATED?
The purpose of the offer is to acquire any and all shares validly tendered
and not properly withdrawn prior to the expiration date of the offer and thereby
provide immediate liquidity at a premium for those stockholders who are
concerned with the current housing industry downturn while also providing the
opportunity for those stockholders who, like us, believe in the long-term
prospects of the Company to realize any potential upside. We believe that the
board and CEO of the Company have not enabled the Company to maximize the
potential of its unique set of assets which trade at approximately their GAAP
book value. If elected, we expect the slate nominated by us, in a manner
consistent with their fiduciary duties, to ensure these unique assets are
properly marshaled through the current residential housing industry downturn.
See Section 11.
HOW DO I TENDER MY SHARES?
To tender shares, you must deliver the certificates representing your
shares and the certificates, if any, representing the associated Rights,
together with a completed letter of transmittal, to American Stock Transfer &
Trust Company, the depositary for the offer, not later than the time the tender
offer expires. If your shares are held in street name, the shares can be
tendered by your nominee through The Depository Trust Company. If you cannot get
any document or instrument that is required to be delivered to the depositary by
the expiration of the tender offer, you may get a little extra time to do so by
having a broker, a bank or other fiduciary which is a member of the Securities
Transfer Agents Medallion Program or other eligible institution guarantee that
the missing items will be received by the depositary within three NYSE trading
days after the date of the notice of guaranteed delivery. For the tender to be
valid, however, the depositary must receive the missing items within that three
trading day period. See Section 2.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw shares at any time until the offer has expired and, if we
have not accepted your shares for payment by May 22, 2007, you can withdraw them
at anytime until we accept shares for payment. You may not, however, withdraw
shares tendered during a subsequent offering period, if one is included. See
Sections 1 and 3.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the depositary while you
still have the right to withdraw the shares. See Section 3.
WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On March 12, 2007, the last trading day before we publicly announced our
intention to commence the tender offer, the closing price of WCI Communities,
Inc. common stock reported on the New York Stock Exchange was $18.97 per share.
On March 22, 2007, the last trading day before we commenced the tender offer,
the closing price of WCI Communities, Inc. common stock reported on the New York
Stock Exchange was $22.35 per share. We advise you to obtain a recent quotation
for shares of WCI Communities, Inc. common stock in deciding whether to tender
your shares. See Section 6.
WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call MacKenzie Partners, Inc. at (800) 322-2885 (toll free).
MacKenzie Partners, Inc. is acting as the information agent for our tender
offer. See the back cover of this offer to purchase.
To the Holders of Common Stock
of WCI COMMUNITIES, INC.:
INTRODUCTION
Icahn Partners LP, a Delaware limited partnership, Icahn Partners Master
Fund LP, a Cayman Islands exempted limited partnership, Icahn Partners Master
Fund II LP, a Cayman Islands exempted limited partnership, Icahn Partners Master
Fund III LP, a Cayman Islands exempted limited partnership, and High River
Limited Partnership, a Delaware limited partnership and High River Limited
Partnership, a Delaware limited partnership (collectively, the "Offeror") hereby
offer to purchase any and all outstanding shares of common stock, par value
$0.01 per share (the "Common Stock"), of WCI Communities, Inc., a Delaware
corporation (the "Company"), together with the associated rights to purchase
preferred stock issued pursuant to the Rights Agreement, dated as of January 30,
2007 (as amended through the date hereof, the "Rights Agreement"), between the
Company and Computershare Trust Company, N.A., as Rights Agent (the "Rights"
and, together with the Common Stock, the "Shares"), at a price of $ 22.00 per
share (the "Offer Price"), net to the selling stockholder in cash, without
interest, less the amount of any distribution per each Share to the extent in
excess of the usual cash dividend, upon the terms and subject to the conditions
set forth in this Offer to Purchase and in the related Letter of Transmittal
(which, together with any amendments or supplements hereto or thereto,
collectively constitute the "Offer"). ALL REFERENCES HEREIN TO RIGHTS SHALL
INCLUDE ALL BENEFITS THAT MAY INURE TO HOLDERS OF THE RIGHTS PURSUANT TO THE
RIGHTS AGREEMENT AND, UNLESS THE CONTEXT OTHERWISE REQUIRES, ALL REFERENCES
HEREIN TO SHARES SHALL INCLUDE THE RIGHTS.
Stockholders of record who hold Shares registered in their own name and
tender their Shares directly to the Depositary (as defined below) will not be
obligated to pay brokerage fees, commissions, solicitation fees or, subject to
Instruction 6 of the Letter of Transmittal, stock transfer taxes, if any, on the
purchase of Shares by the Offeror pursuant to the Offer. Stockholders who hold
their Shares through a bank or broker should check with such institution as to
whether they will be charged any service fees. The Offeror will pay all charges
and expenses of MacKenzie Partners, Inc., as Information Agent (the "Information
Agent"), and American Stock Transfer & Trust Company, as Depositary (the
"Depositary"), incurred in connection with the Offer. See Section 16.
The following three conditions apply to the Offer. (i) The Rights (known as
the "Poison Pill") have been redeemed and are otherwise inapplicable to the
Offer and the Offeror. (ii) The Company's board has taken action such that the
provisions of Section 203 of the Delaware General Corporation Law would not,
following consummation of the Offer, prohibit or restrict any Business
Combination, as defined therein, involving the Company and the Offeror or any
affiliate or associate of the Offeror. (iii) In the event that the number of
Shares tendered and not withdrawn plus the number of Shares beneficially owned
by the Offeror exceeds 50% of the outstanding Shares, and the Offeror's nominees
do not yet constitute a majority of the Company's board, the current directors
of the Company have resigned and appointed the Offeror's nominees to the board
such that they constitute all of the Company's board of directors. The Offer is
also subject to other conditions. See Section 14. The Offer is not conditioned
upon the Offeror obtaining financing or any due diligence review.
If, on the Expiration Date, May 18, 2007, or as it is extended, the
Company's board has not satisfied the foregoing conditions but the Offeror's
nominees constitute at least a majority of the board, the Offeror intends to
extend the Expiration Date to at least June 18, 2007, to allow the new board of
directors, subject to their fiduciary duties, to cause the poison pill to be
redeemed and Section 203 to be inapplicable.
If, on May 18, 2007, the foregoing conditions have not been met and the
Company has yet to conclude its 2007 annual meeting, the Offeror currently does
not intend to extend the Expiration Date of the Offer.
THIS OFFER REFERS TO A POSSIBLE PROXY SOLICITATION. THIS OFFER TO PURCHASE
IS NOT INTENDED TO AND DOES NOT CONSTITUTE (I) A SOLICITATION OF A PROXY,
CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO THE ANNUAL MEETING OR ANY
SPECIAL MEETING OF THE COMPANY'S STOCKHOLDERS OR (II) A SOLICITATION OF A
CONSENT OR AUTHORIZATION IN THE ABSENCE OF ANY SUCH MEETING. ANY SUCH
SOLICITATION WHICH THE OFFEROR MAY MAKE WILL BE MADE ONLY PURSUANT TO PROXY OR
CONSENT SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF
SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER. 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 TO THE SCHEDULE 14A FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 16, 2007.
The Shares are registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Accordingly, the Company is subject to the
informational filing requirements of the Exchange Act and, in accordance
therewith, is obligated to file periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "SEC") relating to
its business, financial condition and other matters. Information, as of
particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company is required to be disclosed in such proxy statements and
distributed to the Company's stockholders and filed with the SEC. Such reports,
proxy statements and other information should be available for inspection at the
public reference facilities at the SEC's principal office at 100 F Street, NE,
Washington DC 20549. The SEC maintains a site on the World Wide Web, and the
reports, proxy statements and other information filed by the Company with the
SEC may be accessed electronically on the World Wide Web at http://www.sec.gov.
Copies of such material may also be obtained by mail, upon payment of the SEC's
customary fees, from the SEC's principal office at 100 F Street, NE, Washington
DC 20549.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or is based upon
reports and other documents on file with the SEC or otherwise publicly
available. Although the Offeror has no knowledge that would indicate that any
statements contained herein based upon such reports and documents are untrue,
the Offeror takes no responsibility for the accuracy or completeness of the
information contained in such reports and other documents or for any failure by
the Company to disclose events that may have occurred and may affect the
significance or accuracy of any such information but that are unknown to the
Offeror.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND YOU SHOULD READ THEM IN THEIR ENTIRETY BEFORE MAKING
ANY DECISION WITH RESPECT TO THE OFFER.
THE TENDER OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Offeror will accept for payment and pay for Shares which are
validly tendered and not properly withdrawn on or prior to the Expiration Date,
as soon as practicable after the Expiration Date. If the Offeror purchases any
Shares in the Offer, the Offeror will purchase in the Offer all Shares validly
tendered and not withdrawn prior to the Expiration Date.The term "Expiration
Date" means 12:00 midnight, New York City time, on May 18, 2007, unless and
until the Offeror shall have extended the period of time for which the Offer is
open, in which event the term "Expiration Date" shall mean the latest time and
date at which the Offer, as so extended by the Offeror, shall expire prior to
the purchase of any Shares by the Offeror.
If any Shares are validly tendered and not properly withdrawn on or prior
to the Expiration Date, the Offeror will, upon the terms and subject to the
conditions of the Offer, accept for payment and pay for any and all of the
Shares so tendered. If the Offeror purchases any Shares in the Offer, the
Offeror will purchase in the Offer all Shares validly tendered and not withdrawn
prior to the Expiration Date.
The Offer is subject to the conditions set forth in Section 14
(collectively, the "Offer Conditions"). The Offeror reserves the right (but in
no event shall be obligated), in its sole discretion, to waive any or all of the
Offer Conditions. If, on or prior to the Expiration Date, any or all of the
Offer Conditions have not been satisfied or waived, the Offeror reserves the
right to: (i) decline to purchase any of the Shares tendered, terminate the
Offer and return all tendered Shares to tendering stockholders; (ii) waive all
the unsatisfied Offer Conditions (subject to the terms of Section 14 hereof)
and, subject to complying with applicable rules and regulations of the SEC,
purchase all Shares validly tendered; (iii) extend the Offer and, subject to the
right of stockholders to withdraw Shares until the Expiration Date, retain the
Shares that have been tendered during the period or periods for which the Offer
is extended; and (iv) amend the Offer.
The Offeror expressly reserves the right, in its sole discretion, at any
time and from time to time: (i) to extend the period of time during which the
Offer is open and thereby delay acceptance for payment of, and the payment for,
any Shares; (ii) upon the occurrence of any of the Offer Conditions, to delay
the acceptance for payment of, or payment for, any Shares not already accepted
for payment or paid for; (iii) to impose conditions to the Offer in addition to
the Offer Conditions; (iv) except as required by any rule, regulation,
interpretation or position of the SEC, to change the Expiration Date; (v) to
waive or amend any of the Offer Conditions or otherwise amend the Offer in any
respect (including, without limitation, by increasing or decreasing the
consideration offered, the number of Shares being sought, or both) by giving
oral or written notice of such delay, termination, waiver or amendment to the
Depositary and making a public announcement thereof. In addition, Offeror may
extend the Offer for any period required by any rule, regulation, interpretation
or position of the SEC or its staff or as required by applicable law.
The rights reserved by the Offeror in the preceding paragraphs are in
addition to the Offeror's rights pursuant to Section 14. Any extension, delay,
termination or amendment of the Offer will be followed as promptly as
practicable by public announcement thereof, such announcement in the case of an
extension to be issued no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date, in accordance with
the public announcement requirements of Rule 14e-1(d) under the Exchange Act.
If the Offeror makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, the Offeror will disseminate additional tender offer materials (including
by public announcement as set forth above) and extend the Offer to the extent
required by Rules 14d-4(d) and 14e-1 under the Exchange Act. The minimum period
during which an offer must remain open following material changes in the terms
of the Offer, other than a change in price, percentage of securities sought or
inclusion of or change to a dealer's soliciting fee, will depend upon the facts
and circumstances, including the materiality, of the changes. In the SEC's view,
an offer should remain open for a minimum of five (5) business days from the
date the material change is first published, sent or given to stockholders, and,
if material changes are made with respect to information that approaches the
significance of price and share levels, a minimum of ten (10) business days
maybe required to allow for adequate dissemination and investor response. With
respect to a change in price or, subject to certain limitations, a change in the
percentage of securities sought or inclusion of or change to a dealer's
soliciting fee, a minimum ten (10) business day period from the date of such
change is generally required to allow for adequate dissemination to
stockholders. Accordingly, if, prior to the Expiration Date, the Offeror changes
the number of Shares being sought or increases or decreases the consideration
offered pursuant to the Offer, and if the Offer is scheduled to expire at
anytime earlier than the tenth business day from the date that notice of such
increase or decrease is first published, sent or given to stockholders, the
Offer will be extended at least until the expiration of such tenth business day.
For purposes of the Offer, a "business day" means any day other than a Saturday,
Sunday or a federal holiday and consists of the time period from 12:01 a.m.
through 12:00 midnight, New York City time.
After the expiration of the Offer, the Offeror may, but is not obligated
to, include a subsequent offering period of between three (3) and twenty (20)
business days to permit additional tenders of Shares (a "Subsequent Offering
Period"). Pursuant to Rule 14d-11 under the Exchange Act, the Offeror may
include a Subsequent Offering Period so long as, among other things, (i) the
Offer remains open for a minimum of twenty (20) business days and has expired,
(ii) the Offeror accepts and promptly pays for all Shares validly tendered
during the Offer, (iii) the Offeror announces the results of the Offer,
including the approximate number and percentage of Shares deposited in the
Offer, no later than 9:00 A.M., New York City time, on the next business day
after the Expiration Date and immediately begins the Subsequent Offering Period
and (iv) the Offeror immediately accepts and promptly pays for Shares as they
are tendered during the Subsequent Offering Period. In addition, the Offeror may
extend any initial Subsequent Offering Period by any period or periods, provided
that the aggregate of the Subsequent Offering Period (including extensions
thereof) is no more than twenty (20) business days. No withdrawal rights apply
to Shares tendered in a Subsequent Offering Period, and no withdrawal rights
apply during a Subsequent Offering Period with respect to Shares previously
tendered in the Offer and accepted for payment. The same price paid in the Offer
will be paid to stockholders tendering Shares in the Offer or in a Subsequent
Offering Period, if one is included. The Offeror does not currently intend to
include a Subsequent Offering Period, although the Offeror reserves the right to
do so. If the Offeror elects to include or extend a Subsequent Offering Period,
the Offeror will make a public announcement of such inclusion or extension no
later than 9:00 A.M., New York City time, on the next business day after the
Expiration Date or date of termination of any prior Subsequent Offering Period.
A request is being made to the Company for the use of its stockholder list
and security position listing for the purposes of disseminating the Offer to
Purchase (and the related Letter of Transmittal and other relevant materials) to
the holders of Shares. Upon compliance by the Company with such request, this
Offer to Purchase, the related Letter of Transmittal and other relevant
materials will be mailed to registered holders of Shares and will be furnished
to brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the stockholder list or, if
applicable, who are listed as participants in a clearing agency's security
position listing, for subsequent transmittal to beneficial owners of Shares.
2. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES.
VALID TENDERS. Except as set forth below, in order for Shares to be validly
tendered pursuant to the Offer, the Letter of Transmittal (or a facsimile
thereof), properly completed and duly executed, together with any required
signature guarantees, or an Agent's Message (as hereinafter defined) in
connection with a book-entry transfer of Shares, and any other documents
required by the Letter of Transmittal, must be received by the Depositary at one
of its addresses set forth on the back cover of this Offer to Purchase on or
prior to the Expiration Date, and either (i) certificates representing tendered
Shares and the certificate, if any, representing the associated Rights, must be
received by the Depositary, or such Shares must be tendered pursuant to the
procedure for book-entry transfer set forth below (and confirmation of receipt
of such delivery must be received by the Depositary), in each case on or prior
to the Expiration Date, or (ii) the guaranteed delivery procedures set forth
below must be complied with. No alternative, conditional or contingent tenders
will be accepted.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (i) if such Letter of Transmittal is signed by the registered holder
of the Shares tendered therewith, unless such holder has completed either the
box entitled "Special Delivery Instructions" or the box entitled "Special
Payment Instructions" in the Letter of Transmittal, or (ii) if Shares are
tendered for the account of a firm that is a member in good standing of the
Security Transfer Agent's Medallion Program, the New York Stock Exchange
Medallion Signature Program or the Stock Exchange Medallion Program (each being
hereinafter referred to as an "Eligible Institution"). In all other cases, all
signatures on a Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 1 of the Letter of Transmittal.
If a certificate representing Shares or a certificate, if any, representing
the associated Rights, is registered in the name of a person other than the
signatory of the Letter of Transmittal (or a facsimile thereof), or if payment
is to be made, or Shares not accepted for payment or not tendered are to be
registered in the name of a person other than the registered holder, the
applicable certificate must be endorsed or accompanied by an appropriate stock
power, in either case signed exactly as the name(s) of the registered holder(s)
appears on the certificate, with the signature(s) on the certificate or stock
power guaranteed by an Eligible Institution. If the Letter of Transmittal or
stock powers are signed or any certificate is endorsed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing and, unless waived by the Offeror, proper evidence
satisfactory to the Offeror of their authority to so act must be submitted. See
Instruction 5 of the Letter of Transmittal.
BOOK-ENTRY TRANSFER. The Depositary will establish accounts with respect to
the Shares at The Depository Trust Company ("DTC") for purposes of the Offer
within two (2) business days after the date of this Offer to Purchase, and any
financial institution that is a participant in DTC's system may make book-entry
delivery of the Shares by causing DTC to transfer such Shares into the
Depositary's account in accordance with DTC's procedure for such transfer.
However, although delivery of Shares may be effected through book-entry transfer
at DTC, a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), with any required signature guarantees, or an Agent's
Message and any other required documents, must, in any case, be transmitted to
and received by the Depositary at one of its addresses set forth on the back
cover of this Offer to Purchase prior to the Expiration Date, or the guaranteed
delivery procedures described below must be complied with. The term "Agent's
Message" means a message transmitted through electronic means by DTC to, and
received by, the Depositary and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the
participant in DTC tendering the Shares that such participant has received, and
agrees to be bound by, the terms of the Letter of Transmittal. DELIVERY OF
DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates representing Shares or
certificates, if any, representing the associated Rights, are not immediately
available (or the procedures for book-entry transfer cannot be completed on a
timely basis) or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such Shares may nevertheless be
tendered, PROVIDED that all of the following conditions are satisfied:
(a) such tender is made by or through an Eligible Institution;
(b) the Depositary receives, prior to the Expiration Date, a properly
completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Offeror; and
(c) the certificates representing all tendered Shares and the
certificates, if any, representing all the associated Rights, in
proper form for transfer (or confirmation of a book-entry transfer of
such Shares into the Depositary's account at DTC), together with a
properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees (or, in
connection with a book-entry transfer, an Agent's Message) and any
other documents required by the Letter of Transmittal are received by
the Depositary within three trading days after the date of such Notice
of Guaranteed Delivery. A "trading day" is any day on which the New
York Stock Exchange is open for business.
The Notice of Guaranteed Delivery may be delivered by hand, or may be
transmitted by facsimile transmission or mail, to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES
AND CERTIFICATES, IF ANY, FOR THE ASSOCIATED RIGHTS, IS AT THE OPTION AND RISK
OF THE TENDERING STOCKHOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL
WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
DETERMINATION OF VALIDITY. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for payment
of any tendered Shares will be determined by the Offeror, in its sole
discretion, and its determination shall be final and binding on all persons. The
Offeror reserves the absolute right to reject any or all tenders of any Shares
that it determines are not in appropriate form or the acceptance for payment of
or payment for which may, in the opinion of the Offeror's counsel, be unlawful.
The Offeror also reserves the absolute right to waive any defect or irregularity
in any tender with respect to any particular Shares or any particular
stockholder, and the Offeror's interpretation of the terms and conditions of the
Offer will be final and binding on all persons. No tender of Shares will be
deemed to have been validly made until all defects or irregularities relating
thereto have been expressly waived or cured to the satisfaction of the Offeror.
None of the Offeror, the Depositary, the Information Agent or any other person
will be under any duty to give notification of any defects or irregularities in
tenders, nor shall any of them incur any liability for failure to give any such
notification.
BACKUP WITHHOLDING. Under U.S. federal income tax laws, backup withholding
at a rate of 28% will apply to any payments made pursuant to the Offer unless
you provide the Depositary with your correct taxpayer identification number and
certify that you are not subject to such backup withholding by completing the
Substitute Form W-9 included in the Letter of Transmittal. If you are a
non-resident alien or foreign entity not subject to backup withholding, you must
give the Depositary a completed applicable Form W-8 before receipt of any
payment.
OTHER REQUIREMENTS. By executing the Letter of Transmittal as set forth
above, a tendering stockholder irrevocably appoints designees of the Offeror as
such stockholder's proxy, in the manner set forth in the Letter of Transmittal,
with full power of substitution, to the full extent of such stockholder's rights
with respect to the Shares tendered by such stockholder and accepted for payment
by the Offeror (and any and all other Shares or other securities or rights
issued or issuable in respect of such Shares on or after the date of this Offer
to Purchase), effective if, when and to the extent that the Offeror accepts such
Shares for payment pursuant to the Offer. Upon such acceptance for payment, all
prior proxies given by such stockholder with respect to such Shares or other
securities accepted for payment will, without further action, be revoked, and no
subsequent proxies may be given by such stockholder nor any subsequent written
consents executed (and, if given or executed, will not be deemed effective).
Such designees of the Offeror will, with respect to such Shares and other
securities or rights issuable in respect thereof, be empowered to exercise all
voting and other rights of such stockholder as it, in its sole discretion, may
deem proper in respect of any annual, special or adjourned meeting of the
Company's stockholders, action by written consent in lieu of any such meeting or
otherwise. The Offeror reserves the right to require that, in order for Shares
to be deemed validly tendered, the Offeror must be able to exercise full voting
rights with respect to the Shares accepted by the Offeror for payment
immediately upon such acceptance.
The Offeror's acceptance for payment of Shares tendered pursuant to any of
the procedures described above will constitute a binding agreement between the
tendering stockholder and the Offeror upon the terms and subject to the
conditions of the Offer.
3. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer will be irrevocable, except
that Shares tendered may be withdrawn at any time prior to the Expiration Date,
and, unless theretofore accepted for payment by the Offeror as provided herein,
may also be withdrawn on or after May 22, 2007.
For a withdrawal of Shares tendered to be effective, a written,
telegraphic, telex or facsimile transmission notice of withdrawal must be timely
received by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase. Any notice of withdrawal must specify the name of the
person who tendered the Shares to be withdrawn, the number of Shares to be
withdrawn and the name(s) in which the certificate(s) representing such Shares
and the certificate(s), if any, representing the associated Rights, are
registered, if different from that of the person who tendered such Shares. If
certificates for Shares or the certificates, if any, for the associated Rights
to be withdrawn have been delivered or otherwise identified to the Depositary,
the name of the registered holder and the serial numbers shown on the particular
certificates evidencing such Shares or associated Rights, as applicable, to be
withdrawn must also be furnished to the Depositary prior to the physical release
of the Shares to be withdrawn. The signature(s) on the notice of withdrawal must
be guaranteed by an Eligible Institution (except in the case of Shares tendered
by an Eligible Institution). If Shares have been tendered pursuant to the
procedures for book-entry transfer set forth in Section 2, any notice of
withdrawal must specify the name and number of the account at DTC to be credited
with such withdrawn Shares and must otherwise comply with DTC's procedures.
If the Offeror extends the Offer, is delayed in its acceptance for payment
of any Shares tendered, or is unable to accept for payment or pay for Shares
tendered pursuant to the Offer, for any reason whatsoever, then, without
prejudice to the Offeror's rights set forth herein, the Depositary may,
nevertheless, on behalf of the Offeror, retain tendered Shares, and such Shares
may not be withdrawn except to the extent that the tendering stockholder is
entitled to and duly exercises withdrawal rights as described in this Section.
Any such delay will be accompanied by an extension of the Offer to the extent
required by law.
Withdrawals of tenders of Shares may not be rescinded, and Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following the
procedures described in Section 2 at any time prior to the Expiration Date.
If the Offeror includes a Subsequent Offering Period (as described in more
detail in Section 1) following the Offer, no withdrawal rights will apply to
Shares tendered in such Subsequent Offering Period and no withdrawal rights
apply during such Subsequent Offering Period with respect to Shares previously
tendered in the Offer and accepted for payment.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Offeror, in its sole discretion,
and its determination will be final and binding on all persons. None of the
Offeror, the Depositary, the Information Agent or any other person will be under
any duty to give notification of any defects or irregularities in any notice of
withdrawal, nor shall any of them incur any liability for failure to give any
such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any extension or
amendment), the Offeror will accept for payment and will pay for Shares validly
tendered prior to the Expiration Date and not properly withdrawn, as soon as
practicable after the Expiration Date. If the Offeror purchases any Shares in
the Offer, the Offeror will purchase in the Offer all Shares validly tendered
and not withdrawn prior to the Expiration Date. The Offeror expressly reserves
the right to delay acceptance for payment of, or payment for, Shares in order to
comply in whole or in part with any applicable law. If the Offeror desires to
delay payment for Shares accepted for payment pursuant to the Offer, and such
delay would otherwise be in contravention of Rule 14e-1(c) of the Exchange Act,
the Offeror will extend the Offer. See Section 1.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates
representing such Shares and certificates, if any, representing the associated
Rights (or a timely confirmation of a book-entry transfer of such Shares into
the Depositary's account at DTC, as described in Section 2), (ii) a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) with
any required signature guarantees (or, in connection with a book-entry transfer,
an Agent's Message), and (iii) any other documents required by the Letter of
Transmittal.
For purposes of the Offer, the Offeror will be deemed to have accepted for
payment, and thereby purchased, Shares tendered prior to the Expiration Date
when, as and if the Offeror gives oral or written notice to the Depositary, as
agent for the tendering stockholders, of the Offeror's acceptance for payment of
such Shares. Payment for Shares so accepted for payment will be made by the
deposit of the purchase price therefor with the Depositary, which will act as
agent for the tendering stockholders for the purpose of receiving such payment
from the Offeror and transmitting such payment to tendering stockholders. If,
for any reason whatsoever, acceptance for payment of any Shares tendered
pursuant to the Offer is delayed, or the Offeror is unable to accept for payment
Shares tendered pursuant to the Offer, then, without prejudice to the Offeror's
rights under Section 1, the Depositary may, nevertheless, on behalf of the
Offeror, retain tendered Shares, and such Shares may not be withdrawn, except to
the extent that the tendering stockholders are entitled to: (i) withdrawal
rights as described in Section 3; and (ii) as otherwise required by Rule
14e-1(c) under the Exchange Act. Under no circumstances will interest be paid on
the purchase price by reason of any delay in making such payments.
If, prior to the Expiration Date, the Offeror increases the consideration
to be paid for Shares pursuant to the Offer, the Offeror will pay such increased
consideration for all Shares accepted for payment or paid for pursuant to the
Offer, whether or not such Shares have been tendered, accepted for payment or
paid for prior to such increase in the consideration.
Each Offeror reserves the right to transfer or assign in whole or in part
to one or more of the other Offerors or one or more affiliates of any Offeror
the rights of such Offeror to purchase Shares tendered pursuant to the Offer,
but any such transfer or assignment will not relieve any Offeror of its
obligations under the Offer and will in no way prejudice the rights of tendering
stockholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
5. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.
This section contains a summary of certain U.S. federal income tax
consequences of the sale of Shares pursuant to the Offer. This summary is based
on (i) the Internal Revenue Code of 1986, as amended, which is referred to
herein as the "Code", (ii) regulations promulgated under the Code, (iii)
administrative rulings by the Internal Revenue Service and (iv) court decisions
now in effect. All of these authorities are subject to change, possibly with
retroactive effect so as to result in tax consequences different from those
described below. This summary does not address all of the U.S. federal income
tax consequences of the sale of Shares pursuant to the Offer that may be
applicable to a particular stockholder. In addition, this summary does not
address the U.S. federal income tax consequences of the sale of Shares to
stockholders who are subject to special treatment under U.S. federal income tax
law, including, for example, banks and other financial institutions, insurance
companies, tax-exempt investors, dealers in securities, holders who hold their
Shares as part of a hedge, straddle or conversion transaction, holders who
acquired Shares through the exercise of employee stock options or other
compensatory arrangements, holders who are subject to the alternative minimum
tax provisions of the Code, and holders who do not hold their Shares as "capital
assets" within the meaning of Section 1221 of the Code. This summary does not
address the tax consequences of the sale of Shares under state, local or foreign
tax laws.
THIS SUMMARY IS PROVIDED FOR GENERAL INFORMATION PURPOSES ONLY AND IS NOT
INTENDED AS A SUBSTITUTE FOR INDIVIDUAL TAX ADVICE. EACH STOCKHOLDER SHOULD
CONSULT THE STOCKHOLDER'S INDIVIDUAL TAX ADVISORS ABOUT THE PARTICULAR TAX
CONSEQUENCES OF THE SALE OF SHARES PURSUANT TO THE OFFER TO THAT STOCKHOLDER,
INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL, FOREIGN OR OTHER TAX
LAWS AND THE POSSIBLE EFFECT OF CHANGES TO SUCH LAWS.
Except for the discussion under "Foreign Stockholders; Special Rules for
sale of Shares in United States real property holding companies," this summary
only applies to a stockholder who is a U.S. holder. A U.S. holder is a
beneficial owner of shares of Shares who is, for U.S. federal income tax
purposes:
o an individual citizen or resident of the United States;
o a corporation, or other entity treated as a corporation for U.S.
federal income tax purposes, that is created or organized under the
laws of the United States or any political subdivision of the United
States;
o an estate whose income is subject to U.S. federal income taxation
regardless of its source; or
o a trust (1) if a U.S. court is able to exercise primary supervision
over the trust's administration and one or more U.S. persons have the
authority to control all the trust's substantial decisions or (2) that
has made an election to be treated as a United States person.
If a partnership or other pass-through entity holds Shares, then the tax
treatment of a partner or owner of the entity will generally depend on the
status of the partner or owner and the activities of the partnership or
pass-through entity. Accordingly, partnerships and other pass-through entities
that hold Shares and partners or owners in such partnerships or pass-through
entities are urged to consult their tax advisors about the particular tax
consequences of the Offer to those stockholders.
EXCHANGE OF SHARES FOR CASH. A stockholder of the Company who receives cash
pursuant to the Offer generally will recognize gain or loss for U.S. federal
income tax purposes in an amount equal to the difference between the amount of
cash received and the holder's adjusted tax basis in the Shares surrendered. Any
such gain or loss generally will be capital gain or loss if the Shares are held
as a capital asset at the effective time of the sale of Shares pursuant to the
Offer. Any capital gain or loss will be taxed as long-term capital gain or loss
if the holder has held the Shares for more than one year prior to the effective
time of the sale of Shares. If the holder has held the Shares for one year or
less prior to the effective time of the sale of Shares, any capital gain or loss
will be taxed as short-term capital gain or loss. Currently, long-term capital
gain for non-corporate taxpayers is taxed at a maximum federal tax rate of 15%.
The deductibility of capital losses is subject to certain limitations.
FOREIGN STOCKHOLDERS; SPECIAL RULES FOR SALE OF SHARES IN UNITED STATES
REAL PROPERTY HOLDING COMPANIES. The following discussion applies only to
foreign stockholders. Foreign stockholders are beneficial owners of Shares
(other than partnerships) who are not U.S. holders as defined above.
Any gain realized by a foreign stockholder on the sale of Shares pursuant
to the Offer generally will not be subject to United States federal income tax
unless:
o the gain is effectively connected with a trade or business of the
foreign stockholder in the United States (and, if required by an
applicable treaty, is attributable to a United States permanent
establishment);
o the foreign stockholder is an individual who is present in the United
States for 183 days or more in the taxable year of the disposition,
and certain other conditions are met; or
o the stock disposed of pursuant to the Offer is considered a United
States real property interest, which is referred to herein as a USRPI.
Shares disposed of by a foreign stockholder pursuant to the Offer will be
considered a USRPI if (i) the Company is a United States real property holding
corporation and (ii) the foreign stockholder owns, or has owned within the
five-year period ending on the effective date of the sale of Shares, more than
5% of the Company's common stock. Thus, if a foreign stockholder owns, or has
owned during the five-year period ending on the effective date of the sale of
Shares, more than 5% of the Shares, and if the Company is a United States real
property holding corporation, such foreign stockholder will be subject to U.S.
federal income tax on the gain realized on the sale of Shares.
A stockholder whose Shares are purchased in the Offer may be subject to
backup withholding unless certain information is provided to the Depositary or
an exemption applies. See Section 2 - Backup Withholding.
6. PRICE RANGE OF SHARES.
PRICE RANGE OF SHARES. The Company's Common Stock is listed and traded on
the New York Stock Exchange and traded under the symbol "WCI." The following
table sets forth, for the fiscal periods indicated, the high and low sales
prices for the Common Stock on the New York Stock Exchange, as reported by
published financial sources.
FISCAL YEAR HIGH LOW
- ----------- -------- --------
FISCAL 2005
First Quarter..................................... $36.30 $26.83
Second Quarter.................................... $35.50 $26.75
Third Quarter..................................... $35.96 $26.89
Fourth Quarter.................................... $28.75 $23.73
FISCAL 2006
First Quarter..................................... $29.76 $24.10
Second Quarter.................................... $28.52 $17.69
Third Quarter..................................... $20.14 $13.73
Fourth Quarter.................................... $19.79 $14.41
FISCAL 2007
First Quarter through March 22, 2007)........ $24.20 $18.65
The Rights currently trade together with the Common Stock. On March 12,
2007, the last trading day before the Offeror publicly announced its intention
to commence the Offer, the closing price of the Common Stock reported on the New
York Stock Exchange was $18.97 per share. On March 22, 2007, the last full
trading day before the commencement of the Offer, the closing price of the
Common Stock reported on the New York Stock Exchange was $22.35 per share.
STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
7. CERTAIN INFORMATION CONCERNING THE COMPANY.
The Company is a Delaware corporation with its principal executive offices
located at 24301 Walden Center Drive, Bonita Springs, Florida 34134 where its
telephone number is (239) 947-2600.
According to the Company's Annual Report on Form 10-K filed with the
Securities and Exchange Commission (the "SEC") on February 28, 2007 (the "Form
10-K"), there were 41,973,582 Shares outstanding as of February 23, 2007.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or is based upon
reports and other documents on file with the SEC or otherwise publicly
available. Although the Offeror has no knowledge that would indicate that any
statements contained herein based upon such reports and documents are untrue,
the Offeror takes no responsibility for the accuracy or completeness of the
information contained in such reports and other documents or for any failure by
the Company to disclose events that may have occurred and may affect the
significance or accuracy of any such information but that are unknown to the
Offeror.
8. CERTAIN INFORMATION CONCERNING THE OFFEROR.
Icahn Partners LP ("Icahn Partners") is a Delaware limited partnership.
Icahn Partners' general partner is Icahn Onshore LP, a Delaware limited
partnership ("Icahn Onshore"). The general partner of Icahn Onshore is CCI
Onshore Corp., a Delaware corporation ("CCI Onshore"). CCI Onshore is 100% owned
by Mr. Carl C. Icahn, a United States citizen. Icahn Partners Master Fund LP
("Icahn Master") is a Cayman Islands exempted limited partnership. Icahn
Partners Master Fund II LP ("Icahn Master II") is a Cayman Islands exempted
limited partnership. Icahn Partners Master Fund III LP ("Icahn Master III") is a
Cayman Islands exempted limited partnership. The general partner of each of
Icahn Master, Icahn Master II and Icahn Master III is Icahn Offshore LP, a
Delaware limited partnership ("Icahn Offshore"). The general partner of Icahn
Offshore is CCI Offshore Corp., a Delaware corporation ("CCI Offshore"). CCI
Offshore is 100% owned by Mr. Carl C. Icahn. High River Limited Partnership
("High River") is a Delaware limited partnership. High River's general partner
is Hopper Investments LLC, a Delaware limited liability company ("Hopper"). The
sole member of Hopper is Barberry Corp., a Delaware corporation ("Barberry").
Barberry is 100% owned by Mr. Icahn. The business address of Mr. Icahn is c/o
Icahn Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York, 10153,
where the business phone number is (212) 702-4300. The business address of each
of Icahn Master, Icahn Master II and Icahn Master III is c/o Walkers SPV
Limited, P.O. Box 908GT, 87 Mary Street, George Town, Grand Cayman, Cayman
Islands. The business address of each of Icahn Partners, Icahn Onshore, CCI
Onshore, Icahn Offshore, CCI Offshore, High River, Hopper and Barberry is White
Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601, where
the business phone number is (914) 614-7000.
Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III are
principally engaged in the business of investing in securities. Icahn Onshore is
primarily engaged in the business of acting as the general partner of Icahn
Partners. CCI Onshore Corp. is primarily engaged in the business of acting as
the general partner of Icahn Onshore. Icahn Offshore is primarily engaged in the
business of acting as the general partner of Icahn Master, Icahn Master II and
Icahn Master III. CCI Offshore is primarily engaged in the business of acting as
the general partner of Icahn Offshore. High River is principally engaged in the
business of investing in securities. Hopper is primarily engaged in the business
of acting as the general partner of High River. Barberry is primarily engaged in
the business of investing in securities.
Mr. Icahn's current principal occupation or employment is set forth on
Schedule I attached hereto and is incorporated by reference herein. Also set
forth on Schedule I and incorporated by reference herein are Mr. Icahn's
material occupations, positions, offices or employments during the past five
years, including the principal business and address of any business corporation
or other organization in which such occupation, position, office or employment
was carried on. The name, position, citizenship, business address, current
principal occupation or employment, material occupations, positions, offices or
employments during the past five years and the principal business and address of
any business corporation or other organization in which such occupation,
position, office or employment was carried on, of each executive officer and
director of Icahn Partners, Icahn Onshore, CCI Onshore Corp., High River, Hopper
and Barberry are set forth on Schedule I attached hereto and incorporated by
reference herein.
None of Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III,
High River, Icahn Onshore, CCI Onshore, Icahn Offshore, CCI Offshore, Hopper,
Barberry, Mr. Icahn nor, to their respective knowledge, any of the persons
listed on Schedule I hereto, have been, during the past five years: (a)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors; or (b) a party to any judicial or administrative proceeding
(except for matters that were dismissed without sanction or settlement) that
resulted in a judgment, decree or final order enjoining the person from future
violations of, or prohibiting activities subject to, federal or state securities
laws, or a finding of any violation of federal or state securities laws.
Except as set forth in this Offer to Purchase, none of Icahn Partners,
Icahn Master, Icahn Master II, Icahn Master III, High River, Icahn Onshore, CCI
Onshore, Icahn Offshore, CCI Offshore, Hopper, Barberry, Mr. Icahn nor, to their
respective knowledge, any of the persons listed on Schedule I hereto, has had
any transaction that occurred during the past two years with the Company or any
of its executive officers, directors or affiliates that is required to be
reported under the rules and regulations of the SEC applicable to the Offer.
Except as set forth in this Offer to Purchase, there have been no negotiations,
transactions or material contacts during the past two years between Icahn
Partners, Icahn Master, Icahn Master II, Icahn Master III, High River, Icahn
Onshore, CCI Onshore, Icahn Offshore, CCI Offshore, Hopper, Barberry, Mr. Icahn
or any of their respective subsidiaries or, to their respective knowledge, any
of the persons listed in Schedule I to this Offer to Purchase, on the one hand,
and the Company or its affiliates, on the other hand, concerning any merger,
consolidation or acquisition, tender offer for or other acquisition of any class
of the Company's securities, election of the Company's directors or sale or
other transfer of a material amount of the Company's assets.
As of the date of this Offer to Purchase, Icahn Partners, Icahn Master,
Icahn Master II, Icahn Master III, High River, Icahn Onshore, CCI Onshore, Icahn
Offshore, CCI Offshore, Hopper, Barberry, Mr. Icahn and their respective
affiliates listed on Schedule I hereto, and each associate and majority-owned
subsidiary of those persons, beneficially own 6,096,175 Shares, in the
aggregate, representing approximately 14.52% of the outstanding Shares. Of these
6,096,175 Shares, (i) Icahn Partners is the direct beneficial owner of 2,901,892
Shares, representing approximately 6.91% of the outstanding Shares; (ii) High
River is the direct beneficial owner of 1,279,725 Shares, representing
approximately 3.05% of the outstanding Shares and (iii) Icahn Master is the
direct beneficial owner of 1,914,558 shares of Common Stock, representing
approximately 4.56% of the outstanding shares of Common Stock. Each of the
foregoing percentages is based upon the 41,973,582 shares of Common Stock stated
to be outstanding as of February 23, 2007 by the Company in the Form 10-K.
Of the Shares described above, (i) Icahn Partners has sole voting power and
sole dispositive power with regard to 2,901,892 Shares and each of Icahn
Onshore, CCI Onshore and Carl C. Icahn has shared voting power and shared
dispositive power with regard to such Shares; (ii) High River has sole voting
power and sole dispositive power with regard to 1,279,725 Shares and each of
Hopper, Barberry and Carl C. Icahn has shared voting power and shared
dispositive power with regard to such Shares; and (iii) Icahn Master has sole
voting power and sole dispositive power with regard to 1,914,558 Shares and each
of Icahn Offshore, CCI Offshore and Carl C. Icahn has shared voting power and
shared dispositive power with regard to such Shares. 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. 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.
None of Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III,
High River, Icahn Onshore, CCI Onshore, Icahn Offshore, CCI Offshore, Hopper,
Barberry, Mr. Icahn nor, to their respective knowledge, any of the persons
listed on Schedule I hereto, has effected any transaction in the Shares during
the past 60 days.
9. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by the Offeror to purchase Shares
pursuant to the Offer is estimated to be approximately $789,302,954 million. The
Offeror will obtain such funds from working capital and available lines of
credit, revolvers, margin borrowings and from its ability to realize cash upon
sale of liquid securities. In addition, the Offeror may seek additional
financing, which it may not be able to obtain and which may be secured by its
assets, including Shares now owned by the Offeror and the Shares the Offeror
purchases in the Offer. The Offer is not conditioned on any financing
arrangements.
10. BACKGROUND OF THE OFFER; PAST CONTACTS OR NEGOTIATIONS WITH THE COMPANY.
Icahn Partners, High River and Icahn Master (collectively, the "Icahn
Parties") filed a Schedule 13D with the SEC on January 12, 2007 (the "13D")
disclosing an aggregate beneficial ownership of 6,096,175 Shares. The Icahn
Parties stated in the 13D that they acquired the Shares believing them to be
undervalued. In the 13D, the Icahn Parties also disclosed their intention to
contact the Company with a view to having a series of discussions regarding the
business and prospects of the Company and seeking the Company's views on how to
unlock the inherent value of the Shares. Shortly thereafter, representatives of
the Icahn Parties contacted representatives of the Company to arrange a meeting.
On January 24, 2007, representatives of the Icahn Parties met with
representatives of the Company, including Don Ackerman, the Company's Chairman,
at the offices of the Icahn Parties. At that meeting, the parties discussed the
Company's views on the current state of the Company's business and its future
prospects. The representatives of the Company stated that they believed that now
was not the right time for the Company to be sold but that they would consider a
sale of the Company in one year, if the Icahn Parties and their affiliates would
enter into a standstill agreement not to launch a proxy fight or make an
unsolicited bid for the Company before mid-2008. The Icahn Parties refused this
request. Immediately following that meeting, the Company's board adopted a
poison pill. Thereafter, representatives of the Company, including Mr. Ackerman,
continued to have telephone discussions with the Icahn Parties. During one such
discussion, Mr. Ackerman indicated that the Company would be willing to offer a
board seat to a nominee of the Icahn Parties if the Icahn Parties and their
affiliates would enter into the standstill agreement described above. The Icahn
Parties believed that this course of action, together with the board's recently
implemented poison pill, would only further adversely affect shareholder rights
and would do nothing to change the unacceptable status quo. Mr. Icahn indicated
that any proposal by the Company should address the recently adopted poison pill
and the restrictions of Section 203 of the Delaware General Corporation Law. He
indicated that this was important to the Icahn Parties because they might want
to increase their ownership position.
During a subsequent discussion, Mr. Ackerman indicated that the Company
would be willing to offer one board seat to a nominee of the Icahn Parties and
another board seat to a nominee of another large unaffiliated stockholder
subject again to the standstill agreement described above and would be willing
to raise the threshold trigger on the poison pill from 15% to 20%. However, Mr.
Ackerman indicated that no proposal by the Company would address the
restrictions of Section 203 of the Delaware General Corporation Law. Mr. Icahn
reaffirmed that he was not looking to be treated differently from other
stockholders and that the Company should structure a proposal regarding the
restrictions of Section 203 of the Delaware General Corporation Law that would
treat all stockholders equally. The Company did not structure such a proposal.
On February 16, 2007, the Icahn Parties delivered a letter to the Company,
notifying the Company that the Icahn Parties intend to appear at the Company's
2007 Annual Meeting, in person or by proxy, to nominate and seek to elect 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
and Hugh F. Culverhouse as members of the board of directors of the Company. A
copy of that letter was filed by the Icahn Parties with the SEC on February 16,
2007.
On March 13, 2007, Mr. Icahn issued the following press release:
"Carl Icahn today announced that his affiliated entities, High River
Limited Partnership and entities managed by Icahn Management LP, intend to
initiate an "any and all" tender offer, not subject to any minimum
condition, for the common stock of WCI Communities, Inc. at $22.00 per
share.
Closing of the tender offer will be subject to, among other things, the
redemption of the Company's recently adopted "poison pill" by the board.
Mr. Icahn indicated that to the extent the current board prevents the
conditions from being satisfied, he intends to leave the tender offer open
and intends that our proposed nominees, if elected, would, subject to their
fiduciary duties, cause the conditions to be met so that the $22.00 "any
and all" tender offer can be consummated. The tender offer will not be
subject to due diligence or financing.
Mr. Icahn stated that "we believe that the board and CEO of WCI have not
enabled the Company to maximize the potential of its unique set of assets
which trade at a discount to their GAAP book value. If elected, we expect
our slate, in a manner consistent with their fiduciary duties, to ensure
these unique assets are properly marshaled through the current residential
housing industry downturn."
WCI's board and CEO have stated emphatically and more than once that now is
not the time to sell the Company. Mr. Icahn commented, "this is one of the
very few times that management has been correct about anything." Mr. Icahn
continued "while clearly now is not the right time to sell, in my opinion
Mr. Starkey and the current board are not qualified to navigate WCI through
the difficult industry conditions that lie ahead. We question whether Mr.
Starkey and the current board have the ability or the expertise to take
advantage of the complex strategic opportunities that I believe may present
themselves. Additionally, mergers, including the possible sale of the
company in the future at the right time and price, may be overlooked by the
current board." o
Carl Icahn concluded that "this tender offer will be in the best interests
of all shareholders in that it would provide immediate liquidity at a
premium for those shareholders who are concerned with the current housing
industry downturn while also providing the opportunity for those
shareholders who, like us, believe in the long-term prospects of the
company to realize any potential upside.""
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY.
PURPOSE OF THE OFFER. The purpose of the Offer is to acquire any and all
Shares validly tendered and not properly withdrawn prior to the Expiration Date
and thereby provide immediate liquidity at a premium for those stockholders who
are concerned with the current housing industry downturn while also providing
the opportunity for those stockholders who, like the Offeror, believe in the
long-term prospects of the Company to realize any potential upside.
PLANS FOR THE COMPANY. The Offeror believes that the board and CEO of the
Company have not enabled the Company to maximize the potential of its unique set
of assets which trade at approximately their GAAP book value. If elected, the
Offeror expects the slate nominated by the Icahn Parties, in a manner consistent
with their fiduciary duties, to ensure these unique assets are properly
marshaled through the current residential housing industry downturn.
While the Offeror believes that now is not the right time to sell the
Company, in the Offeror's opinion, the current board is not qualified to
navigate the Company through the difficult industry conditions that lie ahead.
The Offeror questions whether the current board has the ability or the expertise
to take advantage of the complex strategic opportunities that the Offeror
believes may present themselves. Additionally, the Offeror is concerned that
mergers, including the possible sale of the company in the future at the right
time and price, may be overlooked by the current board.
Except as described in this Offer to Purchase, the Offeror does not have
any present plans or proposals that would relate to or result in (i) any
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries, (ii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries, (iii) any change in the Board or management, (iv) any material
change in the Company's capitalization, indebtedness or dividend policy, (v) any
other material change in the Company's corporate structure or business, (vi) a
class of securities of the Company being delisted from a national securities
exchange or ceasing to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association or (vii) a class of
equity securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g) of the Exchange Act.
12. CERTAIN EFFECTS OF THE OFFER.
EFFECT ON THE INDEBTEDNESS OF THE COMPANY. In the event that (i) the
Offeror becomes the beneficial owner, directly or indirectly, of more than 50%
of the Shares of Common Stock, including as a result of the consummation of the
Offer, or (ii) the Offeror's nominees have been elected to the Company's board
and constitute a majority of the Company's board and the nomination or election
of the Offeror's nominees to the Company's board is not approved by the current
board of directors, (a) under each of the Company's senior credit facilities
(under which the Offeror believes there is an aggregate of approximately $1.1
billion outstanding indebtedness), the respective lenders holding at least
two-thirds of the outstanding indebtedness under such credit facility will have
the right to immediately cause all unpaid amounts under such credit facility to
be immediately due and payable and (b) the holders of various senior
subordinated notes of the Company (of which the Offeror believes there are
approximately $650 million outstanding in the aggregate) will have the right to
require the Company to repurchase such notes generally within ninety days or
more, at, in most cases, 101% of the par value of such notes plus accrued
interest. In addition, generally, if the Company fails to pay the outstanding
indebtedness under any of its senior credit facilities when due, including as a
result of an acceleration of the maturity dates as described above, there will
occur an event of default under the indentures governing the Company's senior
subordinated notes which will enable the holders of such notes to declare such
notes to become immediately due and payable. The Offeror is currently exploring
various refinancing options with respect to this indebtedness, however, the
Offeror is unable to ascertain the terms and conditions of any such refinancing
because of the current inability of potential financing sources to conduct a
comprehensive due diligence review of the Company without the consent of the
current board of directors. Notwithstanding, the Offeror is highly confident
that adequate refinancing options will be available to the Company once
potential financing sources are permitted to conduct such a due diligence
review. In addition, the Offeror expects that if the Offeror's nominees are
elected to the board, they will, subject to their fiduciary duties, allow
potential financing sources to conduct such a due diligence review. There can be
no assurance that the Company will be able to obtain any such refinancing or
that the terms and conditions of any such refinancing will be acceptable to the
Company. The inability to obtain any such refinancing on acceptable terms could
result in the bankruptcy of the Company or could otherwise have a material
adverse effect on the Company. In addition, under certain circumstances, the
Offeror may request that the current board of directors approve the nomination
or election to the board of directors of the Offeror's nominees so as to avoid
the acceleration of the indebtedness and the repurchase obligations of the
Company in respect of the senior subordinated notes, in each case, as described
above. The Offeror believes that the fiduciary duties of the board may require
them to consent to such requests. The foregoing description of the indebtedness
of the Company is qualified in its entirety by reference hereto to the
definitive documents governing such indebtedness, copies of which have been
filed by the Company with the SEC. The Offeror takes no responsibility for the
accuracy or completeness of the Company's filings with the SEC. See Section 7.
NOTWITHSTANDING THE FOREGOING POSSIBLE EFFECTS ON THE COMPANY'S INDEBTEDNESS,
THE OFFEROR INTENDS TO CONSUMMATE THE OFFER IF ALL THE CONDITIONS TO THE OFFER
ARE MET.
EFFECT ON THE MARKET FOR THE SHARES. The purchase of Shares pursuant to the
Offer will reduce the number of holders of Shares and the number of Shares that
might otherwise trade publicly. Consequently, depending upon the number of
Shares purchased and the number of remaining holders of Shares, the purchase of
Shares pursuant to the Offer may adversely affect the liquidity and market value
of the remaining Shares held by the public. The Offeror cannot predict whether
the reduction in the number of Shares that might otherwise trade publicly would
have an adverse or beneficial effect on the market price for, or marketability
of, the Shares or whether it would cause future market prices to be greater or
less than the Offer Price.
STOCK QUOTATIONS. The Shares are currently listed and traded on the New
York Stock Exchange, which constitutes the principal trading market for the
Shares. Depending upon the aggregate market value and the number of Shares not
purchased pursuant to the Offer, the Shares may no longer meet the standards for
continued listing on the New York Stock Exchange. According to its published
guidelines, the New York Stock Exchange would give consideration to delisting
the Shares if, among other things, the number of publicly held Shares falls
below 100,000, the number of holders of Shares falls below 100 or the aggregate
market value of such publicly held Shares falls below $1,000,000. Shares held by
officers or directors of the Company or their immediate families, or by any
beneficial owner of more than 10% or more of the Shares, ordinarily will not be
considered as being publicly held for this purpose.
If, as a result of the purchase of Shares pursuant to the Offer, the Shares
no longer meet the requirements for continued listing on the New York Stock
Exchange, the market for the Shares could be adversely affected. In the event
the Shares are no longer eligible for listing on the New York Stock Exchange,
quotations might still be available from other sources. The extent of the public
market for the Shares and the availability of such quotations would, however,
depend upon the number of holders of such Shares at such time, the interest in
maintaining a market in such Shares on the part of securities firms, the
possible termination of registration of such Shares under the Exchange Act as
described below and other factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application of the
Company to the SEC if such Shares are not listed on a national securities
exchange and there are fewer than 300 holders of record of the Shares. The
termination of the registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company to
its stockholders and to the SEC, and would make certain of the provisions of the
Exchange Act, such as the short-swing profit recovery provisions of Section
16(b) and the requirement of furnishing a proxy statement in connection with
stockholders meetings and the related requirement of an annual report to
stockholders, and the requirements of Rule 13e-3 with respect to going private
transactions, no longer applicable with respect to the Shares or to the Company.
Furthermore, if registration of the Shares under the Exchange Act were
terminated, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities pursuant to
Rule 144 promulgated under the Securities Act of 1933, as amended, may be
impaired or, with respect to certain persons, eliminated. If the Shares were no
longer registered under the Exchange Act, the Shares would no longer be eligible
for New York Stock Exchange listing.
MARGIN SECURITIES. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on such Shares as collateral. Depending on factors
similar to those described above regarding listing and market quotations, it is
possible the Shares would no longer constitute "margin securities" for purposes
of the Federal Reserve Board's margin regulations and therefore could no longer
be used as collateral for loans made by brokers. If registration of the Shares
under the Exchange Act were terminated, the Shares would no longer be "margin
securities."
13. DIVIDENDS AND DISTRIBUTIONS.
If, on or after the date of this Offer to Purchase, the Company should (i)
split, combine or otherwise change the Shares or its capitalization, (ii)
acquire or otherwise cause a reduction in the number of outstanding Shares or
(iii) issue or sell any additional Shares, shares of any other class or series
of capital stock, other voting securities or any securities convertible into, or
options, rights or warrants, conditional or otherwise, to acquire, any of the
foregoing, then, without prejudice to the Offeror's rights under "Section 14.
Certain Conditions of the Offer," the Offeror, in its sole discretion, may make
such adjustments to the Offer Price and other terms of the Offer (including the
number and type of securities to be purchased) as it deems appropriate to
reflect such split, combination or other change.
If, on or after the date of this Offer to Purchase, the Company should
declare or pay any dividend on the Shares or make any other distribution
(including the issuance of additional shares of capital stock pursuant to a
stock dividend or stock split, the issuance of other securities or the issuance
of rights for the purchase of any securities) with respect to the Shares that is
payable or distributable to stockholders of record on a date prior to the
transfer to the name of the Offeror or its nominee or transferee on the
Company's stock transfer records of the Shares purchased pursuant to the Offer,
then, without prejudice to the Offeror's rights under "Section 14. Certain
Conditions of the Offer," (i) the purchase price per Share payable by the
Offeror pursuant to the Offer will be reduced to the extent any such dividend in
excess of the usual cash dividend or distribution is payable in cash and (ii)
any non-cash dividend, distribution or right shall be received and held by the
tendering stockholder for the account of the Offeror and will be required to be
promptly remitted and transferred by each tendering stockholder to the
Depositary for the account of the Offeror, accompanied by appropriate
documentation of transfer. Pending such remittance and subject to applicable
law, the Offeror will be entitled to all the rights and privileges as owner of
any such non-cash dividend, distribution or right and may withhold the entire
purchase price or deduct from the purchase price the amount or value thereof, as
determined by the Offeror, in its sole discretion.
14. CERTAIN CONDITIONS OF THE OFFER.
The following three conditions apply to the Offer. (i) The Rights (known as
the "Poison Pill") have been redeemed and are otherwise inapplicable to the
Offer and the Offeror (the "Poison Pill Condition"). (ii) The Company's board
has taken action such that the provisions of Section 203 of the Delaware General
Corporation Law would not, following consummation of the Offer, prohibit or
restrict any Business Combination, as defined therein, involving the Company and
the Offeror or any affiliate or associate of the Offeror (the "Delaware 203
Condition"). (iii) In the event that the number of Shares tendered and not
withdrawn plus the number of Shares beneficially owned by the Offeror exceeds
50% of the outstanding Shares, and the Offeror's nominees do not yet constitute
a majority of the Company's board, the current directors of the Company have
resigned and appointed the Offeror's nominees to the board such that they
constitute all of the Company's board of directors (the "Board Condition").
If, on the Expiration Date, May 18, 2007, or as it is extended, the
Company's board has not satisfied the foregoing conditions but the Offeror's
nominees constitute at least a majority of the board, the Offeror intends to
extend the Expiration Date to at least June 18, 2007, to allow the new board of
directors, subject to their fiduciary duties, to cause the poison pill to be
redeemed and Section 203 to be inapplicable.
If, on May 18, 2007, the foregoing conditions have not been met and the
Company has yet to conclude its 2007 annual meeting, the Offeror currently does
not intend to extend the Expiration Date of the Offer.
Notwithstanding any other provision of the Offer, and in addition to (and
not in limitation of) the Offeror's rights to extend and amend the Offer at
anytime, in its sole discretion, the Offeror shall not be required to accept for
payment or pay for any Shares tendered pursuant to the Offer, and may terminate
or amend the Offer and may postpone the acceptance for payment of and payment
for, Shares tendered, if (i) any one or more of the Poison Pill Condition, the
Delaware 203 Condition or the Board Condition shall not have been satisfied or
(ii), if at any time prior to the expiration of the Offer, any of the following
conditions shall occur:
(a) a preliminary or permanent injunction or other order of any
federal or state court, government or governmental authority or agency
shall have been issued and shall remain in effect which: (i) makes illegal,
delays or otherwise directly or indirectly restrains or prohibits the
making of the Offer or the acceptance for payment, purchase of or payment
for any Shares by the Offeror; (ii) imposes or confirms limitations on the
ability of the Offeror effectively to exercise full rights of ownership of
any Shares, including, without limitation, the right to vote any Shares
acquired by the Offeror pursuant to the Offer or otherwise on all matters
properly presented to the Company's stockholders; (iii) imposes or confirms
limitations on the ability of the Offeror to fully exercise the voting
rights conferred pursuant to its appointment as proxy in respect of all
tendered Shares which it accepts for payment; or (iv) requires divestiture
by the Offeror of any Shares;
(b) there shall be any action taken, or any statute, rule, regulation
or order proposed, enacted, enforced, promulgated, issued or deemed
applicable to the Offer by any federal or state court, government or
governmental authority or agency, which might, directly or indirectly,
result in any of the consequences referred to in clauses (i) through (iv)
of paragraph (a) above;
(c) there shall have occurred: (i) any general suspension of trading
in, or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market in the United States; (ii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States; (iii) any limitation by any
governmental authority on, or other event which might affect, the extension
of credit by lending institutions or result in any imposition of currency
controls in the United States; (iv) a commencement of a war or armed
hostilities or other national or international calamity directly or
indirectly involving the United States; (v) a material change in United
States or other currency exchange rates or a suspension or a limitation on
the markets thereof; or (vi) in the case of any of the foregoing existing
at the time of the commencement of the Offer, a material acceleration or
worsening thereof;
(d) there shall have been threatened, instituted or pending any action
or proceeding before any court or governmental agency or other regulatory
or administrative agency or commission or by any other person, challenging
the acquisition of any Shares pursuant to the Offer or otherwise directly
or indirectly relating to the Offer;
(e) the Offeror shall have become aware of any untrue statement of a
material fact, or an omission to state a material fact that is required to
be stated or that is necessary to make a statement not misleading in the
light of the circumstances in which it was made and at the date it was made
(after giving effect to all subsequent filings prior to the date of the
Offer in relation to all matters covered in earlier filings), in any
document filed by or on behalf of the Company or any of its entities with
the SEC which the Offeror shall have determined in its reasonable judgment
is materially adverse to the Company;
(f) there shall have occurred since the date of the Offer to Purchase,
any change in the compensation paid or payable by the Company or its
entities to their directors, officers or employees, including the granting
of additional shares, stock options or bonuses, in each case outside the
ordinary course of business or not consistent with past practice, or the
adoption of additional severance or other payments payable in the event of
a termination of employment or change of control;
(g) any change or development shall have occurred or been threatened
since the date of the Offer to Purchase in the business, properties,
assets, liabilities, financial condition, operations, results of
operations, or prospects for the business of the Company which is outside
the ordinary course of the Company's business or may be materially adverse
to the Company, or the Offeror shall have become aware of any fact that has
not been previously publicly disclosed by the Company that could reasonably
be expected to have a material adverse effect on the value of the Shares;
(h) the Company shall have: (i) issued, or authorized or proposed the
issuance of, any securities of any class, or any securities convertible
into, or rights, warrants or options to acquire, any such securities or
other convertible securities other than pursuant to the exercise or
conversion of currently outstanding stock options or convertible
securities; or (ii) issued or authorized or proposed the issuance of any
other securities, in respect of, in lieu of, or in substitution for, all or
any of the presently outstanding Shares;
(i) the Company, or its board of directors or any of the Company's
subsidiary entities or any governing body thereof shall have authorized,
proposed or announced its intention to propose any material change to its
articles of incorporation or bylaws, any merger, consolidation or business
combination or reorganization transaction, acquisition of assets,
disposition of assets or material change in its capitalization or
indebtedness, or any comparable event not in the ordinary course of
business;
(j) a tender offer or exchange offer for some or all of the Shares
shall have been made or publicly announced or proposed to be made,
supplemented or amended by any person other than the Offeror; or
(k) all waiting periods and any extensions thereof applicable to the
Offer under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, shall have not have expired or terminated.
The foregoing conditions are for the sole benefit of the Offeror and may be
asserted by the Offeror regardless of the circumstances giving rise to any such
condition, and, may be waived by the Offeror, in whole or in part, at any time
and from time to time, in the sole discretion of the Offeror. The failure by the
Offeror at any time to exercise any of the foregoing rights shall not be deemed
a waiver of any right, the waiver of such right with respect to any particular
facts or circumstances shall not be deemed a waiver with respect to any other
facts or circumstances, and each right shall be deemed an ongoing right which
may be asserted at any time and from time to time. Should the Offer be
terminated pursuant to the foregoing provisions, all tendered Shares not
theretofore accepted for payment pursuant thereto shall forthwith be returned to
the tendering stockholders.
15. CERTAIN LEGAL MATTERS.
GENERAL. Except as described in this Section 15, based on a review of
publicly available filings by the Company with the SEC and other publicly
available information concerning the Company, the Offeror is not aware of any
license or regulatory permit that appears to be material to the business of the
Company and that might be adversely affected by the Offeror's acquisition of
Shares pursuant to the Offer, or of any approval or other action by any
governmental, administrative or regulatory agency or authority, domestic or
foreign, that would be required for the acquisition or ownership of Shares by
the Offeror pursuant to the Offer. Should any such approval or other action be
required, it is presently contemplated that such approval or action would be
sought, except as described below under "--State Takeover Laws." While the
Offeror does not currently intend to delay acceptance for payment of Shares
tendered pursuant to the Offer pending the outcome of any such matter, there can
be no assurance that any such approval or other action, if required, would be
obtained without substantial conditions or that adverse consequences would not
result to the Company's business or that certain parts of the Company's business
would not have to be disposed of in the event that such approvals were not
obtained or such other actions were not taken or in order to obtain any such
approval or other action. If certain types of adverse action are taken with
respect to the matters discussed below, the Offeror may decline to accept for
payment or pay for any Shares tendered. See Section 14.
STATE TAKEOVER LAWS. A number of states have adopted laws which purport, to
varying degrees, to apply to attempts to acquire corporations that are
incorporated in, or which have substantial assets, stockholders, principal
executive offices or principal places of business or whose business operations
otherwise have substantial economic effects in, such states. The Company,
directly or through subsidiaries, conducts business in a number of states
throughout the United States, some of which have enacted such laws. Except as
described herein, the Offeror does not know whether any of these laws will, by
their terms, apply to the Offer or any merger or other business combination
between the Offeror or any of the Offeror's subsidiaries or affiliates and the
Company, and the Offeror has not complied with any such laws. If any government
official or third party seeks to apply any state takeover law to the Offer or
any merger or other business combination between the Offeror or any of the
Offeror's subsidiaries or affiliates and the Company, the Offeror may take any
action as then appears desirable, which action may include challenging the
applicability or validity of such statute in appropriate court proceedings. If
it is asserted that one or more state takeover statutes is applicable to the
Offer or any such merger or other business combination and an appropriate court
does not determine that it is inapplicable or invalid as applied to the Offer or
any such merger or other business combination, the Offeror might be required to
file certain information with, or to receive approvals from, the relevant state
authorities or holders of Shares, and the Offeror may be unable to accept for
payment or pay for Shares tendered pursuant to the Offer, or be delayed in
continuing or consummating the Offer or any such merger or other business
combination. In such case, the Offeror may not be obligated to accept for
payment or pay for any tendered Shares. See Section 14.
The Company is incorporated under the laws of the State of Delaware. In
general, Section 203 of the DGCL ("Section 203") prohibits an "interested
stockholder" (which includes a person who owns or has the right to acquire 15%
or more of the corporation's outstanding voting stock) from engaging in a
"business combination" (defined to include mergers and certain other
transactions) with a Delaware corporation for a period of three years following
the date such person became an interested stockholder unless certain conditions
are met. The Offer is conditioned upon, among other things, the Company's board
having taken action such that the provisions of Section 203 would not, following
consummation of the Offer, prohibit or restrict any business combination, as
defined therein, involving the Company and the Offeror or any affiliate or
associate of the Offeror. See Section 14.
The Offeror has not determined whether any other state takeover laws and
regulations will by their terms apply to the Offer, and, except as set forth
above, the Offeror has presently sought to comply with any state takeover
statute or regulation. The Offeror reserves the right to challenge the
applicability or validity of any state law or regulation purporting to apply to
the Offer, and neither anything in this Offer to Purchase nor any action taken
in connection herewith is intended as a waiver of such right. In the event it is
asserted that one or more state takeover statutes is applicable to the Offer and
an appropriate court does not determine that such statute is inapplicable or
invalid as applied to the Offer, the Offeror might be required to file certain
information with, or to receive approval from, the relevant state authorities,
and the Offeror might be unable to accept for payment or pay for Shares tendered
pursuant to the Offer, or be delayed in consummating the Offer.
ANTITRUST. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission (the "FTC"), certain acquisition
transactions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and certain waiting period requirements have been
satisfied. The purchase of Shares pursuant to the Offer is subject to such
requirements. See Section 14.
Pursuant to the requirements of the HSR Act, the Offeror intends to file a
Notification and Report Form with respect to the Offer with the Antitrust
Division and the FTC on March 27, 2007. As a result, the waiting period
applicable to the purchase of Shares pursuant to the Offer is scheduled to
expire at 11:59 p.m., New York City time, fifteen (15) days after such filing.
However, prior to such time, the Antitrust Division or the FTC may extend the
waiting period by requesting additional information or documentary material
relevant to the Offer from the Offeror. If such a request is made, the waiting
period will be extended until 11:59 p.m., New York City time, on the tenth day
after substantial compliance by the Offeror with such request. Thereafter, such
waiting period can be extended only by court order.
Shares will not be accepted for payment or paid for pursuant to the Offer
until the expiration or early termination of the applicable waiting period under
the HSR Act. See Section 14. Any extension of the waiting period will not give
rise to any withdrawal rights not otherwise provided for by applicable law. See
Section 3. If the Offeror's acquisition of Shares is delayed pursuant to a
request by the Antitrust Division or the FTC for additional information or
documentary material pursuant to the HSR Act, the Offer will be extended in
certain circumstances. See Section 1.
The Antitrust Division and the FTC scrutinize the legality under the
antitrust laws of transactions such as the acquisition of Shares by the Offeror
pursuant to the Offer. At any time before or after the consummation of any such
transactions, the Antitrust Division or the FTC could take such action under the
antitrust laws of the United States as it deems necessary or desirable in the
public interest, including seeking to enjoin the purchase of Shares pursuant to
the Offer or seeking divestiture of the Shares so acquired or divestiture of
substantial assets of the Company. Private parties (including individual States)
may also bring legal actions under the antitrust laws of the United States. The
Offeror does not believe that the consummation of the Offer will result in a
violation of any applicable antitrust laws. However, there can be no assurance
that a challenge to the Offer on antitrust grounds will not be made, or if such
a challenge is made, what the result will be. See Section 14 for certain
conditions to the Offer, including conditions with respect to certain
governmental actions.
16. FEES AND EXPENSES.
Offeror has retained MacKenzie Partners, Inc. to be the Information Agent
and American Stock Transfer & Trust Company to be the Depositary in connection
with the Offer. The Information Agent may contact holders of Shares by mail,
telephone, telecopy, telegraph and personal interview and may request banks,
brokers, dealers and other nominees to forward materials relating to the Offer
to beneficial owners of Shares.
The Information Agent and the Depositary each will receive reasonable and
customary compensation for their respective services in connection with the
Offer, will be reimbursed for reasonable out-of-pocket expenses, and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under federal securities laws.
The Offeror will not pay any fees or commissions to any broker or dealer or
to any other person (other than to the Depositary and the Information Agent) in
connection with the solicitation of tenders of Shares pursuant to the Offer.
Brokers, dealers, commercial banks and trust companies will, upon request, be
reimbursed by the Offeror for customary mailing and handling expenses incurred
by them in forwarding offering materials to their customers.
17. MISCELLANEOUS.
The Offer is being made to all holders of Shares. The Offeror is not aware
of any jurisdiction where the making of the Offer is prohibited by
administrative or judicial action pursuant to any valid state statute. If the
Offeror becomes aware of any valid state statute prohibiting the making of the
Offer or the acceptance of Shares pursuant thereto, the Offeror will make a good
faith effort to comply with any such state statute or seek to have such statute
declared inapplicable to the Offer. If, after such good faith effort, the
Offeror cannot comply with any such state statute, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) the holders of Shares in
such state. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer will be
deemed to be made on behalf of Offeror by one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF THE OFFEROR NOT CONTAINED IN THIS OFFER TO PURCHASE
OR IN THE RELATED LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
The Offeror has filed with the SEC a Tender Offer Statement on Schedule TO,
together with all exhibits thereto ("Schedule"), pursuant to Rule 14d-3 of the
General Rules and Regulations under the Exchange Act (the "Exchange Act Rules"),
furnishing certain additional information with respect to the Offer. Such
Schedule(s) and any amendments thereto, including exhibits, should be available
for inspection at the public reference facilities at the SEC's principal office
at 100 F Street, NE, Washington DC 20549. The SEC maintains a site on the World
Wide Web, and the Schedule filed by the Offeror with the SEC may be accessed
electronically on the World Wide Web at http://www.sec.gov. Copies of such
material may also be obtained by mail, upon payment of the SEC's customary fees,
from the SEC's principal office at 100 F Street, NE, Washington DC 20549.
March 23, 2007
SCHEDULE I
EXECUTIVE OFFICER(S) AND DIRECTOR(S)
OF
ICAHN PARTNERS, ICAHN ONSHORE, CCI ONSHORE, ICAHN MASTER, ICAHN MASTER II,
ICAHN MASTER III, ICAHN OFFSHORE, CCI OFFSHORE, HIGH RIVER, HOPPER AND BARBERRY
The name and positions of the executive officers and directors of Icahn
Partners, Icahn Onshore, CCI Onshore Corp., Icahn Offshore, CCI Offshore, High
River, Hopper and Barberry Corp. are set forth below. The following sets forth
with respect to each executive officer and director such person's (a) name, (b)
present principal occupation or employment and the name and principal business
of any corporation or other organization in which such employment or occupation
is conducted and (c) material occupations, positions, offices or employments
during at least the last five years, giving the starting and ending dates of
each and the name and principal business of any business corporation or other
organization in which such occupation, position, office or employment was
carried on. Each such executive officer and/or director: (i) is a citizen of the
United States of America; and (ii) such principal business address is c/o Icahn
Associates Corp., 767 Fifth Avenue, Suite 4700, New York, New York, 10153, where
the business phone number is (212) 702-4300.
Icahn Partners
Keith A. Meister - Managing Director
Icahn Onshore
Keith A. Meister - Managing Director
CCI Onshore
Carl C. Icahn - Director
Keith A. Meister - Managing Director
Vincent J. Intrieri - Managing Director
Jordan Bleznick - Vice President/Taxes
Icahn Partners Master
Keith A. Meister - Managing Director
Icahn Partners Master II
Icahn Offshore - Managing General Partner
Icahn Partners Master III
Icahn Offshore - Managing General Partner
Icahn Offshore
Keith A. Meister - Managing Director
CCI Offshore
Carl C. Icahn - Director
Keith A. Meister - Managing Director
Vincent J. Intrieri - Managing Director
Jordan Bleznick - Vice President/Taxes
High River Limited Partnership
Hopper Investments LLC - General Partner
Hopper Investments LLC
Barberry Corp. - Sole Member
Barberry Corp.
Carl C. Icahn - Director, Chairman of the Board and President
Jordan Bleznick - Vice President/Taxes
Gail Golden - Vice President
Vincent J. Intrieri - Vice President
Keith Cozza - Secretary and Treasurer
CARL C. ICAHN. Mr. Icahn has served as chairman of the board and a director of
Starfire Holding Corporation ("Starfire"), 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. ("CCI Onshore") and CCI Offshore
Corp. ("CCI Offshore"), Mr. Icahn's principal occupation is managing private
investment funds, including Icahn Partners and Icahn Master Fund LP ("Icahn
Master"). Since February 2005, Mr. Icahn has served as a director of CCI Onshore
and CCI Offshore, 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. ("ARI"),
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 ARI 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. and its predecessor ("XO") since January 2003. XO 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.
VINCENT J. INTRIERI. Since August 2005, Mr. Intrieri has served as a director of
American Railcar Industries, Inc. ("ARI"), a publicly owned company of which Mr.
Icahn is a principal beneficial stockholder that is primarily engaged in the
business of manufacturing covered hopper and tank railcars. From March 2005 to
December 2005, Mr. Intrieri was a Senior Vice President, the Treasurer and the
Secretary of ARI. Mr. Intrieri has been a director of American Property
Investors, Inc., which is the general partner of American Real Estate Partners,
L.P. ("AREP"). AREP, a majority of the depositary units of which are held by
Carl C. Icahn, is a diversified holding company engaged in a variety of
businesses, including gaming, real estate and home fashion, as well as
investments in equity and debt securities. Since November 2004, Mr. Intrieri has
been a Senior Managing Director of Icahn Partners and Icahn Partners Master Fund
LP, private investment funds controlled by Mr. Icahn. Since January 1, 2005, Mr.
Intrieri has been Senior Managing Director of Icahn Associates Corp. and High
River Limited Partnership. From March 2003 to December 2004, Mr. Intrieri was a
Managing Director of High River Limited Partnership and from 1998 to March 2003
served as portfolio manager for Icahn Associates Corp. Each of Icahn Associates
Corp. and High River Limited Partnership is owned and controlled by Mr. Icahn
and is primarily engaged in the business of holding and investing in securities.
Since April 2005, Mr. Intrieri has been the President and Chief Executive
Officer of Philip Services Corporation, a metal recycling and industrial
services company affiliated with Mr. Icahn. Mr. Intrieri has served as a
director of XO Holdings Inc. and its predecessor ("XO"), a publicly owned
telecommunications company in which Mr. Icahn holds a majority interest, since
January 2003. Since April 2003, Mr. Intrieri has been Chairman of the Board and
a director of Viskase Companies, Inc., a publicly owned producer of cellulosic
and plastic casings used in preparing and packaging processed meat products, in
which Mr. Icahn has an interest through the ownership of securities. Since
November 2006, Mr. Intrieri has been a director of Lear Corporation, a publicly
owned supplier of automotive interior systems and components, in which Mr. Icahn
has an interest through the ownership of securities. Since December 2006, Mr.
Intrieri has been a director of National Energy Group, Inc., a publicly owned
company engaged in the business of managing the exploration, production and
operations of natural gas and oil properties, a majority of the common stock of
which is held by AREP. Mr. Intrieri is a certified public accountant. Mr.
Intrieri received a BS in Accounting from The Pennsylvania State University.
KEITH MEISTER. Since March 2006, Mr. Meister has served as Principal Executive
Officer and Vice Chairman of the Board of American Property Investors, Inc.
("API"), the general partner of American Real Estate Partners, L.P. ("AREP").
AREP is a NYSE-listed diversified holding company engaged in a variety of
businesses that is majority-owned by various entities controlled by Carl C.
Icahn. Since December 2003, Mr. Meister has served as a director of American
Entertainment Properties Corp., which is an indirect subsidiary of AREP which is
engaged in the gaming industry. Mr. Meister has served as a director of American
Railcar Industries, Inc., a publicly traded company that is primarily engaged in
the business of manufacturing covered hopper and tank railcars since August
2005. Mr. Meister also serves as a senior investment analyst of High River
Limited Partnership, a company owned and controlled by Mr. Icahn, a position he
has held since June 2002. Mr. Meister is also a Senior Investment Analyst of
Icahn Partners. He is also a director of Icahn Fund Ltd., which is the feeder
fund of Icahn Partners Master Fund LP. Icahn Partners LP and Icahn Partners
Master Fund LP are private investment funds controlled by Mr. Icahn. Mr. Meister
served as President of API from August 2003 until July 2005. Mr. Meister served
as Chief Executive Officer of API from August 2003 until March 2006. He also
serves on the Boards of Directors of the following companies: XO Holdings, Inc.,
a telecommunications company that is majority-owned by various entities
controlled by Mr. Icahn and BKF Capital Group, Inc., a NYSE-listed investment
management firm. Mr. Meister, served as a director of ADVENTRX Pharmaceuticals,
Inc., an AMEX-listed biopharmaceutical company from August 2005 to October 2006.
Mr. Meister received an A.B. in government, cum laude, from Harvard College in
1995.
KEITH COZZA. Mr. Cozza has been the Chief Financial Officer of Icahn Associates
Corp., since December 2006. Icahn Associates Corp. is an indirect wholly owned
entity of Mr. Icahn primarily engaged in the business of acting as a holding
company. Mr. Cozza has been the Vice President and Treasurer of Icahn & Co. LLC
and its predecessor ("Icahn & Co") since November 23, 2005. Icahn & Co. is an
indirectly wholly owned entity of Mr. Icahn and was a registered broker-dealer
and member of the National Association of Securities Dealers from 1968 to 2005.
Since 2004, Mr. Cozza has served as an officer of various entities controlled by
Mr. Icahn. From 2000 to 2004 Mr. Cozza was employed by Grant Thornton LLP, a
public accounting firm. Mr. Cozza received his B.S. in Accounting from the
University of Dayton in 2000
JORDAN BLEZNICK. Mr. Bleznick has been the Vice President/Taxes of CCI Onshore
Corp. and CCI Offshore Corp. since February 2005. CCI Onshore and CCI Offshore
are wholly-owned entities of Mr. Icahn, which are in the business of managing
private investment funds. Mr. Bleznick has been the Vice President/Taxes of
Starfire Holding Corporation, a privately-held holding company of Mr. Icahn,
since September 2002. He has been the senior tax counsel for various affiliates
of Mr. Icahn since April 15, 2002. From March 2000 through March 2002, Mr.
Bleznick was a partner in the New York City office of the law firm of Piper
Rudnick LLP. Mr. Bleznick received a B.A. in Economics from the University of
Cincinnati, a J.D. from The Ohio State University College of Law and an LL.M. in
Taxation from the New York University School of Law.
GAIL GOLDEN. Ms. Golden's present principal occupation is acting as an officer
of various entities controlled by Mr. Icahn. Since 1978, Ms. Golden has served
in various capacities at Icahn & Co., LLC and its predecessor ("Icahn& Co")
formerly a registered broker-dealer and a member of the National Association of
Securities Dealers, from 1968 to 2005. Ms Golden served as the Chief Executive
Officer of Maupintour, LLC, a tour operator formerly indirectly wholly-owned by
Mr. Icahn from 1999 to December 2005. Ms. Golden is married to Carl C. Icahn.
Manually signed facsimile copies of the Letter of Transmittal will be accepted.
Letters of Transmittal and certificates for Shares and certificates, if any, for
the associated Rights, should be sent or delivered by each stockholder of the
Company or his broker, dealer, commercial bank, trust company or other nominee
to the Depositary at one of its addresses set forth below:
THE DEPOSITARY FOR THE OFFER IS:
American Stock Transfer & Trust Company
By Mail or Overnight By Facsimile Transmission By Hand:
Courier: (for eligible institutions
only):
- --------------------------------------------------------------------------------
American Stock Transfer American Stock Transfer American Stock Transfer
& Trust Company & Trust Company & Trust Company
Attn: Reorganization Attn: Reorganization Attn: Reorganization
Department Department Department
6201 15th Avenue Facsimile: 718-234-5001 59 Maiden Lane
Brooklyn, NY 11219 To confirm: 1-877-248-6417 Plaza Level
New York, NY 10038
- --------------------------------------------------------------------------------
DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSIONS OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY TO THE
DEPOSITARY.
Any questions or requests for assistance may be directed to the Information
Agent at its address and telephone numbers set forth below. Requests for
additional copies of this Offer to Purchase and the Letter of Transmittal may be
directed to the Information Agent or the Depositary. Stockholders may also
contact their brokers, dealers, commercial banks, trust companies or other
nominees for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
Email: wci@mackenziepartners.com