SUPPLEMENT TO 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 L.P.
ICAHN PARTNERS MASTER FUND III L.P.
AND
HIGH RIVER LIMITED PARTNERSHIP
----------------------------
- --------------------------------------------------------------------------------
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")
- --------------------------------------------------------------------------------
IMPORTANT
Icahn Partners LP, a Delaware limited partnership, Icahn Partners Master
Fund LP, a Cayman Islands exempted limited partnership, Icahn Partners Master
Fund II L.P., a Cayman Islands exempted limited partnership, Icahn Partners
Master Fund III L.P., a Cayman Islands exempted limited partnership, and High
River Limited Partnership, a Delaware limited partnership (collectively, the
"Offeror"), hereby supplement and amend their Offer to Purchase, dated March 23,
2007. The Offeror is offering to purchase any and all of the outstanding shares
of common stock of WCI Communities, Inc. ("WCI" or the "Company") and the rights
to purchase certain preferred stock associated with the shares of common stock
issued pursuant to the Rights Agreement, dated as of January 30, 2007 (as
amended, the "Rights Agreement"), between WCI and Computershare Trust Company,
N.A., as rights agent (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 (i) the Offer to Purchase, dated March 23, 2007, (ii)
this Supplement thereto (such Offer to Purchase as amended and supplemented by
this Supplement, the "Offer to Purchase") and (iii) the related Letter of
Transmittal (which collectively constitute the "Offer"). Unless the context
otherwise requires, capitalized terms used in this Supplement but not defined
herein shall have the meanings ascribed to them in the Offer to Purchase.
As used herein, the term Offeror refers to Icahn Partners LP, Icahn
Partners Master Fund LP, Icahn Partners Master Fund II L.P., Icahn Partners
Master Fund III L.P. and High River Limited Partnership, collectively.
Accordingly, each of the Offerors is making the Offer collectively.
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 APRIL 30,
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.
May 11, 2007
SUMMARY TERM SHEET
The response to the question DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE
PAYMENT? is hereby amended by adding the following sentence thereto:
"The Offeror currently does not have any alternative financing plans."
The response to the question ARE THERE ANY CONSEQUENCES OF THE OFFER ON THE
INDEBTEDNESS OF THE COMPANY OF WHICH I SHOULD BE AWARE? is hereby amended and
restated in its entirety as follows:
"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 and, in the case of the
senior subordinated notes described below, their nomination or
election is not approved by 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. To obviate the
necessity to refinance the Company's senior subordinated notes, the current
board of directors may approve the nomination or election to the board of
directors of our nominees so as to avoid the repurchase obligations of the
Company in respect of the senior subordinated notes as described above. We
believe that the fiduciary duties of the board may require them to do so. 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, we
intend to consummate the offer if all the conditions to the offer are met."
The last sentence to the response to the question WHAT ARE YOUR PURPOSES FOR THE
OFFER AND PLANS FOR THE COMPANY AFTER THE OFFER IS CONSUMMATED? is hereby
amended and restated in its entirety as follows:
"If elected, we expect the slate nominated by us, in a manner consistent with
their fiduciary duties, to properly marshal these unique assets through the
current residential housing industry downturn."
THE TENDER OFFER
2. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES.
The following sentence is hereby added to the end of the paragraph under the
heading "DETERMINATION OF VALIDITY":
"Notwithstanding anything herein to the contrary, security holders may challenge
a determination made by the Offeror in a court of competent jurisdiction and a
final, non-appealable order or judgment of a court of competent jurisdiction
will be final and binding on all parties."
3. WITHDRAWAL RIGHTS.
The following sentence is hereby added to the final paragraph of this section:
"Notwithstanding anything herein to the contrary, security holders may challenge
a determination made by the Offeror in a court of competent jurisdiction and a
final, non-appealable order or judgment of a court of competent jurisdiction
will be final and binding on all parties."
5. MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.
The first sentence of this section is hereby amended and restated in its
entirety as follows:
"This section contains a summary of material U.S. federal income tax
consequences of the sale of Shares pursuant to the Offer."
The first sentence under the heading "EXCHANGE OF SHARES FOR CASH" is hereby
amended and restated in its entirety as follows:
"A stockholder of the Company who holds Shares as "capital assets" within the
meaning of Section 1221 of the Code at the effective time of the sale of Shares
and who receives cash pursuant to the Offer will recognize capital 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."
The second sentence under the heading "EXCHANGE OF SHARES FOR CASH" is hereby
deleted.
The sentence immediately prior to the bullet point list under the heading
"FOREIGN STOCKHOLDERS; SPECIAL RULES FOR SALE OF SHARES IN UNITED STATES REAL
PROPERTY HOLDING COMPANIES" is hereby amended and restated in its entirety as
follows:
"Any gain realized by a foreign stockholder on the sale of Shares pursuant to
the Offer will not be subject to United States federal income tax unless:"
9. SOURCE AND AMOUNT OF FUNDS.
The following sentence is hereby added to the end of this section:
"The Offeror currently does not have any alternative financing plans."
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY.
The last sentence under the heading "PLANS FOR THE COMPANY" is hereby amended
and restated in its entirety as follows:
"If elected, the Offeror expects the slate nominated by the Icahn Parties, in a
manner consistent with their fiduciary duties, to properly marshal these unique
assets through the current residential housing industry downturn."
12. CERTAIN EFFECTS OF THE OFFER.
The disclosure under the heading "EFFECT ON THE INDEBTEDNESS OF THE COMPANY" is
hereby amended and restated in its entirety as follows:
"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, in the case of the senior subordinated notes described below, 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. To obviate the necessity to refinance the
Company's senior subordinated notes, the current board of directors may approve
the nomination or election to the board of directors of the Offeror's nominees
so as to avoid the repurchase obligations of the Company in respect of the
senior subordinated notes as described above. The Offeror believes that the
fiduciary duties of the board may require them to do so. 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."
14. CERTAIN CONDITIONS OF THE OFFER.
Condition (d) of this section is hereby amended and restated in its entirety as
follows:
"(d) there shall have been threatened, in writing, 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;"
Condition (g) of this section is hereby amended and restated in its entirety as
follows:
"(g) any change or development shall have occurred 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;"
The second sentence of the last paragraph of this section is hereby amended and
restated in its entirety as follows:
"The failure by the Offeror at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any right prior to the consummation of the
Offer, 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 prior to the consummation of the
Offer. All conditions to the Offer must be satisfied or waived prior to the
Expiration Date."
May 11, 2007
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 By Hand:
Courier: Transmission
(for eligible
institutions only):
- --------------------------------------------------------------------------------
American Stock Transfer American Stock Transfer American Stock Transfer
& Trust Company & Trust Company & Trust Company
Attention: Reorganization Attention: 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