SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to ss. 240.14a-12
WCI Communities, Inc.
(Name of Registrant as Specified In Its Charter)
ICAHN PARTNERS LP
ICAHN ONSHORE LP
CCI ONSHORE CORP.
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
ICAHN OFFSHORE LP
CCI OFFSHORE CORP.
HIGH RIVER LIMITED PARTNERSHIP
HOPPER INVESTMENTS LLC
BARBERRY CORP.
CARL C. ICAHN
DAVID SCHECHTER
JONATHAN R. MACEY
PETER C. CLAPMAN
AUGUSTE E. RIMPEL, JR.
HOWARD LORBER
MICHAEL L. ASHNER
JEROME M. BECKER
SUMNER BAYE
HUGH F. CULVERHOUSE
KEITH A. MEISTER
VINCENT J. INTRIERI
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
2007 ANNUAL MEETING OF STOCKHOLDERS
OF
WCI COMMUNITIES, INC.
-------------------
PROXY STATEMENT
OF
ICAHN PARTNERS LP,
ICAHN PARTNERS MASTER FUND LP
AND
HIGH RIVER LIMITED PARTNERSHIP
-------------------
To Our Fellow WCI Stockholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to stockholders ("Stockholders") of WCI Communities, Inc. ("WCI") in
connection with the solicitation of proxies by Carl C. Icahn and certain of his
affiliates and associates, to be used at the 2007 Annual Meeting (the "Annual
Meeting") of Stockholders of WCI which is scheduled to be held at 10:00 a.m.
(EDT) on Friday, June 15, 2007, at the Hyatt Regency Coconut Point, 5001 Coconut
Road, Bonita Springs, Florida 34134, and at any adjournments, postponements or
continuations thereof. This Proxy Statement and the GOLD proxy card are first
being furnished to Stockholders on or about May 25, 2007.
At the Annual Meeting, the Participants (as hereinafter defined) will seek
to elect to the Board of Directors of WCI a slate of ten nominees, comprised of
Carl C. Icahn, David Schechter, Jonathan R. Macey, Peter C. Clapman, Auguste E.
Rimpel, Jr., Howard Lorber, Michael L. Ashner, Jerome M. Becker, Sumner Baye and
Hugh F. Culverhouse. Each of the nominees (each a "Nominee" and, collectively,
the "Nominees") has consented to being named in this Proxy Statement and to
serve as a director, if elected.
The Nominees and each of the other Participants have no interest in WCI
other than (i) through the beneficial ownership (if any) of shares of Common
Stock, par value $0.01 per share (the "Common Stock"), of WCI or other
securities (if any) of WCI as disclosed herein and (ii) in the case of the
Nominees other than Mr. Icahn, pursuant to the agreement pursuant to which the
Icahn Parties (as defined below) have agreed to pay certain fees to each such
Nominee (other than Mr. Schechter) and to indemnify each such Nominee with
respect to certain costs incurred by each such Nominee in connection with the
proxy contest relating to the Annual Meeting (such agreement, the "Nominee
Agreement"). In addition, on March 23, 2007, certain entities affiliated with
Mr. Icahn commenced a tender offer in which they sought to purchase any and all
outstanding shares of Common Stock, together with the associated rights to
purchase preferred 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, at a price of $ 22.00 per
share in cash, upon the terms and subject to the conditions set forth in the
applicable Offer to Purchase, as amended, Letter of Transmittal and related
documents filed with the Securities and Exchange Commission by Mr. Icahn and
certain affiliated entities on each of March 23, 2007, May 11, 2007, May 17,
2007 and May 21, 2007. The tender offer expired at midnight, Friday, May 18,
2007, with none of the approximately 10.8 million shares tendered being
purchased by the Icahn Parties. This resulted from the failure by WCI to redeem
the poison pill and meet the condition regarding Section 203 of the Delaware
General Corporation Law. The foregoing description of the tender offer and to
such documents is qualified in its entirety by the copies of such documents
which have been filed with the Securities and Exchange Commission by Mr. Icahn
and certain affiliated entities on each of March 23, 2007, May 11, 2007, May 17,
2007 and May 21, 2007 and are available at www.sec.gov.
THE NOMINEES ARE COMMITTED TO ACTING IN THE BEST INTEREST OF THE STOCKHOLDERS OF
WCI. WE BELIEVE THAT YOUR VOICE IN THE FUTURE OF WCI CAN BEST BE EXPRESSED
THROUGH THE ELECTION OF THE NOMINEES. ACCORDINGLY, WE URGE YOU TO VOTE YOUR GOLD
PROXY CARD FOR CARL C. ICAHN, DAVID SCHECHTER, JONATHAN R. MACEY, PETER C.
CLAPMAN, AUGUSTE E. RIMPEL, JR., HOWARD LORBER, MICHAEL L. ASHNER, JEROME M.
BECKER, SUMNER BAYE AND HUGH F. CULVERHOUSE.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK NOMINEE OR
OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES AND ONLY UPON
RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT THE PERSON
RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR BEHALF
THE GOLD PROXY CARD AS SOON AS POSSIBLE.
IMPORTANT
The election of the Nominees requires the affirmative vote of a plurality
of the votes cast, assuming a quorum is present or otherwise represented at the
Annual Meeting. As a result, your vote is extremely important in deciding the
future of WCI. We urge you to mark, sign, date and return the enclosed GOLD
proxy card to vote FOR the election of Carl C. Icahn, David Schechter, Jonathan
R. Macey, Peter C. Clapman, Auguste E. Rimpel, Jr., Howard Lorber, Michael L.
Ashner, Jerome M. Becker, Sumner Baye and Hugh F. Culverhouse.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY WCI. IF YOU HAVE ALREADY
DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED GOLD PROXY CARD
IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, OR BY VOTING IN PERSON AT THE ANNUAL
MEETING. SEE "VOTING PROCEDURES" AND "PROXY PROCEDURES" BELOW.
If you have any questions or require any assistance in executing your
proxy, please call:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
CALL TOLL-FREE (800) 322-2885
Only holders of record of WCI's voting securities as of the close of
business on April 30, 2007 (the "Record Date") are entitled to notice of, and to
attend and to vote at, the Annual Meeting and any adjournments, postponements or
continuations thereof. According to the proxy statement of WCI filed with the
Securities and Exchange Commission ("WCI's Proxy Statement"), as of the Record
Date, there were outstanding 42,010,175 shares of Common Stock. Stockholders of
record at the close of business on the Record Date will be entitled to one vote
at the Annual Meeting for each share of Common Stock of WCI held on the Record
Date.
As of the Record Date, the Participants and their affiliates beneficially
owned an aggregate of 6,106,275 shares of Common Stock, representing
approximately 14.54% of the outstanding shares of Common Stock.(1) The
Participants and their affiliates intend to vote such shares FOR the election of
the Nominees.
PLEASE VOTE FOR CARL C. ICAHN, DAVID SCHECHTER, JONATHAN R. MACEY, PETER C.
CLAPMAN, AUGUSTE E. RIMPEL, JR., HOWARD LORBER, MICHAEL L. ASHNER, JEROME M.
BECKER, SUMNER BAYE AND HUGH F. CULVERHOUSE BY RETURNING YOUR COMPLETED GOLD
PROXY TODAY.
- --------------------
1) These amounts do not include shares of Common Stock referenced in the cash
settled derivative agreements described on Attachment 1 to Appendix I, as these
agreements do not give the Icahn Parties or any other of the Participants direct
or indirect voting, investment or dispositive control over the shares of Common
Stock to which these agreements relate. Accordingly, the Icahn Parties and the
other Participants disclaim any beneficial ownership in the shares of Common
Stock to which these agreements relate.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are Carl C. Icahn, David Schechter,
Jonathan R. Macey, Peter C. Clapman, Auguste E. Rimpel, Jr., Howard Lorber,
Michael L. Ashner, Jerome M. Becker, Sumner Baye and Hugh F. Culverhouse), the
participants in the solicitation of proxies (the "Participants") are Icahn
Partners LP ("Icahn Partners"), Icahn Partners Master Fund LP ("Icahn Master"),
Icahn Partners Master Fund II L.P. ("Icahn Master II"), Icahn Partners Master
Fund III L.P. ("Icahn Master III"), High River Limited Partnership ("High
River"), Mr. Keith A. Meister and Mr. Vincent J. Intrieri.
Icahn Partners, Icahn Master, Icahn Master II, Icahn Master III and High
River (collectively, the "Icahn Parties") are entities controlled by Carl C.
Icahn. Keith A. Meister and Vincent J. Intrieri are employees and/or officers or
directors of the Icahn Parties and various other entities controlled by Mr.
Icahn. Each of Keith A. Meister and Vincent J. Intrieri may also participate in
soliciting proxies from WCI stockholders. Neither Mr. Meister nor Mr. Intrieri
own beneficially any interest in securities of WCI, and will not receive any
special compensation in connection with such solicitation. In connection with
their employment by Mr. Icahn and his affiliated companies, Messrs. Meister and
Intrieri, among other employees, each has a participatory interest in the
profits and fees derived by Mr. Icahn and/or his affiliated entities from Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III (collectively, the
"Funds"). Because only a portion of such profit interests are distributed and
because of their other investments in the Funds, each of Mr. Meister and Mr.
Intrieri also has capital accounts in the Funds. In the aggregate: (i) Mr.
Meister's profit interests and capital accounts in the Funds entitle him to less
than 2% of the profits generated by the Funds; and (ii) Mr. Intrieri's profit
interests and capital accounts in the Funds entitle him to less than 2% of the
profits generated by the Funds.
Icahn Partners is a Delaware limited partnership principally engaged in the
business of investing in securities. Icahn Onshore LP ("Icahn Onshore") is a
Delaware limited partnership primarily engaged in the business of acting as the
general partner of Icahn Partners. CCI Onshore Corp. ("CCI Onshore") is a
Delaware corporation primarily engaged in the business of acting as the general
partner of Icahn Onshore. CCI Onshore is wholly owned by Mr. Icahn.
Each of Icahn Master, Icahn Master II and Icahn Master III is a Cayman
Islands exempted limited partnership principally engaged in the business of
investing in securities. Icahn Offshore LP ("Icahn Offshore") is a Delaware
limited partnership primarily engaged in the business of acting as the general
partner of each of Icahn Master, Icahn Master II and Icahn Master III. CCI
Offshore Corp. ("CCI Offshore") is a Delaware corporation primarily engaged in
the business of acting as the general partner of Icahn Offshore. CCI Offshore is
wholly owned by Mr. Icahn.
High River is a Delaware limited partnership principally engaged in the
business of investing in securities. Hopper Investments LLC ("Hopper") is a
Delaware limited liability company that serves as the general partner of High
River. Barberry Corp. ("Barberry") is a Delaware corporation that serves as the
sole member of Hopper. Each of Hopper and Barberry is primarily engaged in the
business of investing in securities. Barberry is wholly owned by Mr. Icahn.
Keith A. Meister and Vincent J. Intrieri are employees and/or officers or
directors of the Icahn Parties and various other entities controlled by Mr.
Icahn.
The address of each of Messrs. Icahn, Meister and Intrieri is c/o Icahn
Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153. The
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 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.
Mr. Icahn, through his control of the Icahn Parties, may be deemed to be
the beneficial owner of 6,096,175 shares of Common Stock, which represents
approximately 14.51% of the outstanding shares of Common Stock.(2)
- --------------------
(2) Except as otherwise noted herein, all share amounts are reported as of the
close of business on May 24, 2007.
High River is the beneficial owner of 1,279,725 shares of the Common Stock,
Icahn Master is the beneficial owner of 1,914,558 shares of the Common Stock,
and Icahn Partners is the beneficial owner of 2,901,892 shares of the Common
Stock. Hopper, as the general partner of High River, and Barberry, as the sole
member of Hopper, are each deemed to be the beneficial owner of the shares of
Common Stock beneficially owned by High River. Icahn Offshore, as the general
partner of Icahn Master, and CCI Offshore, as the general partner of Icahn
Offshore, are each deemed to be the beneficial owner of the shares of Common
Stock beneficially owned by Icahn Master. Icahn Onshore, as the general partner
of Icahn Partners, and CCI Onshore, as the general partner of Icahn Onshore, are
each deemed to be the beneficial owner of the shares of Common Stock
beneficially owned by Icahn Partners. Carl C. Icahn, as the sole stockholder of
Barberry and the sole member of each of CCI Offshore and CCI Onshore, is deemed
to be the beneficial owner of the shares of Common Stock beneficially owned by
High River, Icahn Master and Icahn Partners.
The purchase of the 6,096,175 shares of Common Stock owned by the Icahn
Parties was made with the respective general working capital of the purchasers
and, with respect to High River, pursuant to a margin account in the regular
course of business. High River's margin account includes positions in securities
in addition to the shares of Common Stock. The indebtedness of the margin
account as of May 23, 2007 was approximately $595,798,478.
All transactions in the securities of WCI effected within the past 2 years
by the Icahn Parties, Mr. Icahn and each other Participant are contained in
Appendix I attached hereto.
On March 23, 2007, the Icahn Parties commenced a tender offer to purchase
any and all outstanding shares of Common Stock, together with the associated
rights to purchase preferred stock issued pursuant to the Rights Agreement,
dated as of January 30, 2007, between WCI and Computershare Trust Company, N.A.,
as Rights Agent, as amended, at a price of $22.00 per share in cash, upon the
terms and subject to the conditions set forth in the applicable Offer to
Purchase, as amended, Letter of Transmittal and related documents filed with the
Securities and Exchange Commission by Mr. Icahn, the Icahn Parties and certain
affiliated entities on each of March 23, 2007, May 11, 2007, May 17, 2007 and
May 21, 2007.
The tender offer was conditioned on, among other things, the board
redeeming the poison pill and providing relief from the restrictions of Section
203 of the Delaware General Corporation Law, which restricts any business
combination, as defined in Section 203, involving WCI and the Icahn Parties or
any of their affiliates or associates. The tender offer expired at midnight,
Friday, May 18, 2007, with none of the approximately 10.8 million shares
tendered being purchased by the Icahn Parties. This resulted from the failure by
WCI to redeem the poison pill and meet the condition regarding Section 203 of
the Delaware General Corporation Law (as described above).
The foregoing description of the tender offer and to such documents is
qualified in its entirety by the copies of such documents which have been filed
with the Securities and Exchange Commission by Mr. Icahn and certain affiliated
entities on each of March 23, 2007, May 11, 2007, May 17, 2007 and May 21, 2007
and are available at www.sec.gov.
ELECTION OF DIRECTORS
According to WCI's Proxy Statement, WCI's board of directors intends to
nominate ten candidates for election as directors at the Annual Meeting. The
Participants propose that WCI stockholders elect Carl C. Icahn, David Schechter,
Jonathan R. Macey, Peter C. Clapman, Auguste E. Rimpel, Jr., Howard Lorber,
Michael L. Ashner, Jerome M. Becker, Sumner Baye and Hugh F. Culverhouse as
directors of WCI at the Annual Meeting. Each Nominee, if elected, would hold
office until the 2008 annual meeting of Stockholders and until a successor has
been duly elected and qualified. If less than all of the Nominees are elected,
the Participants believe that those Nominees that are elected will serve with
the nominees of WCI's current board of directors that are elected. However, in
such case, there is no assurance that all of the nominees of WCI's current board
of directors that are elected will serve with the Nominees that are elected.
Instead, all or some of such nominees of WCI's current board of directors may
resign, in which case such nominees of WCI's current board of directors who are
elected and choose not to resign, together with the Nominees that are elected,
will constitute all of the members of the board of directors. Under WCI's Second
Restated Certificate of Incorporation and WCI's Third Amended and Restated
By-laws, any vacancy created by any such resignation could be filled by a
majority of the remaining members of the board (though less than a quorum).
In the event that the Nominees have been elected to WCI's board of
directors and constitute a majority of the board and, in the case of the senior
subordinated notes described below, the nomination or election of the Nominees
to WCI's board of directors is not approved by WCI's current board of directors,
(a) under each of WCI's senior credit facilities (under which the Icahn Parties
believe 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, as applicable, 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 WCI (of which the Icahn Parties believe there are
approximately $650 million outstanding in the aggregate) will have the right to
require WCI 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 WCI 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 WCI's senior subordinated notes which
will enable the holders of such notes to declare such notes to become
immediately due and payable. Mr. Icahn and certain of his affiliates are
currently exploring various refinancing options with respect to this
indebtedness, however, Mr. Icahn and such affiliates are 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
WCI without the consent of WCI's current board of directors. Notwithstanding,
Mr. Icahn and such affiliates are highly confident that adequate refinancing
options will be available to WCI once potential financing sources are permitted
to conduct such a due diligence review. In addition, Mr. Icahn and such
affiliates expect that if the 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 WCI will be able to
obtain any such refinancing or that the terms and conditions of any such
refinancing will be acceptable to WCI. The inability to obtain any such
refinancing on acceptable terms could result in the bankruptcy of WCI or could
otherwise have a material adverse effect on WCI. To obviate the necessity to
refinance WCI's senior subordinated notes, the current board may approve the
nomination or election of the Nominees to WCI's board of directors so as to
avoid the repurchase obligations of WCI in respect of the senior subordinated
notes as described above. Mr. Icahn and such affiliates believe that the
fiduciary duties of the board may require them to do so. The foregoing
description of the indebtedness of WCI is qualified in its entirety by reference
hereto to the definitive documents governing such indebtedness, copies of which
have been filed by WCI with the Securities and Exchange Commission. The
Participants take no responsibility for the accuracy or completeness of WCI's
filings with the Securities and Exchange Commission.
The Icahn Parties expect the Nominees, in a manner consistent with their
fiduciary duties, to properly marshal WCI's unique assets through the current
residential housing industry downturn.
Background information about the Nominees is set forth below. Except as
described herein, the Nominees are not receiving any compensation from any of
the Participants or any of their affiliates in connection with this proxy
solicitation.
CARL C. ICAHN, age 71, has served as chairman of the board and a director of
Starfire Holding Corporation, a privately-held holding company, and chairman of
the board and a director of various subsidiaries of Starfire, since 1984.
Through his entities CCI Onshore Corp. and CCI Offshore Corp., Mr. Icahn's
principal occupation is managing private investment funds, including Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III. Since February
2005, Mr. Icahn has served as a director of CCI Onshore Corp. and CCI Offshore
Corp., which are in the business of managing private investment funds, and from
September 2004 to February 2005, Mr. Icahn served as the sole member of their
predecessors, CCI Onshore LLC and CCI Offshore LLC, respectively. Mr. Icahn was
also chairman of the board and president of Icahn & Co., Inc., a registered
broker-dealer and a member of the National Association of Securities Dealers,
from 1968 to 2005. Since 1994, Mr. Icahn has been the principal beneficial
stockholder of American Railcar Industries, Inc., currently a publicly traded
company that is primarily engaged in the business of manufacturing covered
hopper and tank railcars, and has served as chairman of the board and as a
director of American Railcar Industries, Inc. since 1994. Since November 1990,
Mr. Icahn has been chairman of the board of American Property Investors, Inc.,
the general partner of American Real Estate Partners, L.P., a public limited
partnership controlled by Mr. Icahn that is engaged in a variety of businesses,
including gaming, real estate and home fashion, as well as investments in equity
and debt securities. From October 1998 through May 2004, Mr. Icahn was the
president and a director of Stratosphere Corporation, which operates the
Stratosphere Hotel and Casino. Mr. Icahn has been chairman of the board and a
director of XO Holdings, Inc. since February 2006 and was chairman of the board
and a director of XO Communications, Inc. (XO Holdings' predecessor) from
January 2003 to February 2006. XO Holdings, Inc. is a publicly traded
telecommunications services provider controlled by Mr. Icahn. Mr. Icahn has
served as a Director of Cadus Corporation, a publicly traded company engaged in
the ownership and licensing of yeast-based drug discovery technologies since
July 1993. In May 2005, Mr. Icahn became a director of Blockbuster Inc., a
publicly traded provider of in-home movie rental and game entertainment. In
September 2006, Mr. Icahn became a director of ImClone Systems Incorporated, a
publicly traded biopharmaceutical company, and since October 2006 has been the
chairman of the board of ImClone Systems. Mr. Icahn received his B.A. from
Princeton University. The business address of Mr. Icahn is c/o Icahn Associates
Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153.
Mr. Icahn indirectly owns WCI securities as described herein. In addition, Mr.
Icahn and his affiliates beneficially own (as described herein) the following
equity securities of WCI:
(1) Title of (2) Name of (3) Amount and (4) Percent of
Class Beneficial and Nature of Class (4)
Owner(3) Beneficial
Ownership
- -------------------- ----------------- ------------------ ----------------------
Common Stock, par High River 1,279,725 3.05%
value $0.01 per
share
- --------------------------- ----------------------------------------------------
Common Stock, par Icahn Master 1,914,558 4.56%
value $0.01 per
share
- --------------------------- ----------------------------------------------------
Common Stock, par Icahn Partners 2,901,892 6.91%
value $0.01 per
share
- --------------------------------------------------------------------------------
- --------------------
(3) Please note that each Participant listed in this table is, as of May 24,
2007, the beneficial owner of the shares of Common Stock set forth under the
heading "(3) Amount of Beneficial Ownership" and that certain affiliates of such
Participant are also deemed to be the beneficial owner of such shares of Common
Stock as described herein.
(4) Please note that percentages of ownership set forth in this column were
calculated based on the amount of shares of Common Stock stated to be
outstanding in WCI's Proxy Statement.
DAVID SCHECHTER, age 31, has, since September 2004, served as a Director and
Senior Investment Analyst for Icahn Management LP, the entity through which Carl
C. Icahn manages third party private investment funds, and from January 2004 to
August 2004, Mr. Schechter served as an investment analyst with Icahn Associates
Corp. and High River Limited Partnership, entities owned and controlled by Mr.
Icahn that are primarily engaged in the business of holding and investing in
securities. Prior to joining Mr. Icahn in January 2004, Mr. Schechter last
served as vice president of global special situations at Citigroup, a unit
responsible for making proprietary investments in distressed situations. Prior
to joining global special situations in June 1999, Mr. Schechter was a financial
analyst in the investment bank at Citigroup since July 1997. He was named to the
board of WestPoint International, a manufacturer of bed and bath home fashion
products affiliated with Mr. Icahn, in January 2007. Mr. Schechter received a
B.S. in Economics, cum laude, from the Wharton School at the University of
Pennsylvania in May 1997. In addition, in connection with his employment by Mr.
Icahn and his affiliated companies, Mr. Schechter, among other employees, has a
participatory interest in the profits and fees derived by Mr. Icahn and/or his
affiliates from the Funds. Because only a portion of such profit interests are
distributed, Mr. Schechter also has capital accounts in the Funds. In the
aggregate, Mr. Schechter's profit interests and capital accounts in the Funds
entitle him to less than 1% of the profits generated by the Funds. Mr. Schechter
also is a party to a Nominee Agreement as described above. The business address
of Mr. Schechter is c/o Icahn Associates Corp., 767 Fifth Avenue, 47th Floor,
New York, New York 10153.
JONATHAN R. MACEY, age 52, has, since 2004, been the Sam Harris Professor of
Corporate Law, Corporate Finance and Securities Law at the Yale Law School, and
Professor in the Yale School of Management. Professor Macey is currently a
member of the Legal Advisory Committee to the Board of Directors of the New York
Stock Exchange. Professor Macey is also currently the President of the
non-profit Yale Law Journal Corporation. Professor Macey is currently a member
of the Yale University Advisory Committee on Investor Responsibility, which
develops recommendations for presentation to the Yale Corporation concerning the
voting of Yale's stock at annual corporate meetings. From 1990 to 2004,
Professor Macey was the J. DuPratt White Professor of Law at Cornell Law School,
and from 2002 to 2004, Professor of Law & Business Administration at the Johnson
Graduate School of Business at Cornell University. Professor Macey has also been
a Visiting Professor at a number of law schools, including, the Stockholm School
of Economics, the University of Chicago, the University of Tokyo and the
University of Virginia. From 1982 to 1983, Professor Macey was law clerk to the
Honorable Henry J. Friendly, United States Court of Appeals, Second Circuit.
From 1998 to 1999, Professor Macey was a director of Telxon Corporation, a
designer, manufacturer, integrator and marketer of wireless and portable
tele-transaction computers and systems. For ten years, Professor Macey served as
Reporter for the American Bar Association's Committee on Corporate Laws' Model
Business Corporation Act Revision Project, the principal professional body
concerned with reforming and improving the statutes that govern corporate
entities. In 1977, Professor Macey received a Bachelor of Arts degree in
Economics, cum laude, from Harvard College, and in 1982, a Juris Doctor degree
from the Yale Law School. In 1996, Professor Macey received a Ph.D. (Law)
(honoris causa) from the Stockholm School of Economics. On February 14, 2007,
Professor Macey purchased 100 shares of Common Stock. Professor Macey also is a
party to a Nominee Agreement as described above. The business address of
Professor Macey is Yale Law School, 127 Wall Street, New Haven, CT 06525.
In addition, as of May 24, 2007, Professor Macey beneficially owned the
following equity securities of WCI:
(1) Title of (2) Name of (3) Amount and (4) Percent of
Class Beneficial and Nature of Class (4)
Owner(3) Beneficial
Ownership
- -------------------- ----------------- ------------------ ----------------------
Common Stock, par Jonathan R. 100 Less than 1%
value $0.01 per Macey
share
- --------------------------------------------------------------------------------
PETER C. CLAPMAN, age 71, retired as senior vice president and chief counsel for
TIAA-CREF, a financial services provider, in 2005 after 32 years of service. Mr.
Clapman is currently Chairman of the Board and Trustee of AARP Mutual Funds, a
mutual fund company, and chief executive officer of Governance for Owners USA,
Inc., which provides corporate governance consulting services. Mr. Clapman is
active in many organizations specializing in corporate governance and director
education. He is a board member of the National Association of Corporate
Directors and a faculty member for its Corporate Directors Institute programs.
Mr. Clapman is also on the corporate governance advisory boards of the
University of Delaware Business School and the Yale School of Management, and is
chairman of Stanford Law School's Committee on Institutional Investor
Governance. Mr. Clapman is a member of the NASDAQ Listing Council. Mr. Clapman
has been on the London Stock Exchange Primary Markets Group and the New York
Stock Exchange Legal Advisory Committee and has been a board member of the
Investor Responsibility Research Center. In 1993, Mr. Clapman was elected as
member of the American Law Institute. Mr. Clapman is a graduate of Princeton
University and received a juris doctor from Harvard Law School. Mr. Clapman also
is a party to a Nominee Agreement as described above. The business address of
Mr. Clapman is 3 Valley Road, Scarsdale, NY 10583.
AUGUSTE E. RIMPEL, JR., age 67, has been a retired partner of
PricewaterhouseCoopers LLP ("PwC") since 2000. He was with PwC and its
predecessor firm, Price Waterhouse, since 1983, most recently as Managing
Partner of International Consulting services for the Washington Consulting
Practice of the firm. Prior to his tenure at PwC, Dr. Rimpel served as a Partner
with Booz Allen & Hamilton, Inc., a management consulting firm and as a Vice
President of Arthur D. Little International, Inc., a management consulting firm.
Dr. Rimpel's consulting focus has been in the area of strategic planning and
management. In addition, Dr. Rimpel currently serves as Chairman of the Board of
Trustees of the University of the Virgin Islands. Since April 25, 2001, he has
served as a member of the Audit Committee and Board of Directors of GB Holdings,
Inc., an entity controlled by Carl C. Icahn that owns an interest in Atlantic
Coast Entertainment Holdings, Inc., which indirectly owned and operated The
Sands Hotel and Casino in Atlantic City, New Jersey prior to its sale in
November 2006. Dr. Rimpel also served as a member of the Board of Directors and
the Audit Committee of Atlantic Coast Entertainment Holdings, Inc. Dr. Rimpel
received graduate degrees in chemical engineering from M.I.T. (M.S.) and
Carnegie Institute of Technology (PhD.) and was an International Fellow at
Columbia University Graduate School of Business. Mr. Rimpel also is a party to a
Nominee Agreement as described above. The business address of Mr. Rimpel is 30
Border Road, Concord MA 01742.
HOWARD LORBER, age 58, has since January 2006, been the President and Chief
Executive Officer of Vector Group Limited, a publicly traded holding company
principally engaged in the cigarettes business and the real estate business, in
which Mr. Icahn indirectly holds a minority interest, and has served as a
director of Vector Group Limited since January 2001. He served as President and
Chief Operating Officer of Vector Group Limited from January 2001 to December
2005. From November 1994 to December 2005, Mr. Lorber served as President, Chief
Operating Officer and a director of New Valley Corporation, the subsidiary
through which Vector Group Limited conducts its real estate business. Mr. Lorber
was Chairman of the Board of Directors of Hallman & Lorber Assoc. Inc.,
consultants and actuaries of qualified pension and profit sharing plans, and
various of its affiliates from 1975 through 2004 and has been a consultant to
these entities since January 2005. In addition, Mr. Lorber has been a
stockholder and a registered representative of Aegis Capital Corp., a
broker-dealer and a member firm of the National Association of Securities
Dealers, since 1984. Since 1987, Mr. Lorber has been the Chairman of the Board
of Directors, and from 1993 to 2006, the Chief Executive Officer, of Nathan's
Famous, Inc., a chain of fast food restaurants. Effective January 2007, Mr.
Lorber became the Executive Chairman of the Board of Nathan's Famous. Mr. Lorber
has also been a director and member of the Audit Committee of United Capital
Corp., a real estate investment and diversified manufacturing company, since
1991; and the Chairman of the Board of Ladenburg Thalmann Financial Services
Inc., a corporation that provides a variety of investment banking, asset
management, and research services to corporate, institutional, and retail
clients, from 2001 to 2006. Effective July 2006, Mr. Lorber became the Vice
Chairman of the Board of Ladenburg Thalmann. He is also a graduate and trustee
of Long Island University. Mr. Lorber and an entity of which he is the Chief
Executive Officer and an 8% beneficial owner each have limited partnership
interests in Icahn Partners. In the aggregate, such limited partnership
interests do not exceed 2% of the capital or profits of Icahn Partners. Mr.
Lorber also is a party to a Nominee Agreement as described above. The business
address of Mr. Lorber is 70 East Sunrise Highway, #411, Valley Stream, NY 11581.
MICHAEL L. ASHNER, age 54, has, since 2004, served as the Chairman and Chief
Executive Officer of Winthrop Realty Trust, formerly known as First Union Real
Estate Equity and Mortgage Investments, a publicly traded real estate investment
trust. In addition, since 1995, Mr. Ashner has held the positions of Chairman,
President and Chief Executive Officer of Winthrop Realty Partners, L.P., a full
service real estate operating company, which manages a portfolio of assets
consisting of 21,000,000 square feet of office and commercial space, as well as
400 hotel rooms. Since 1997, Mr. Ashner has also served as the Executive
Chairman of Lexington Realty Trust (and its predecessor Newkirk Realty Trust,
Inc.), a publicly traded real estate investment trust which owns a $5.5 billion
portfolio of real estate assets. Mr. Ashner is also the Managing Director of
AP-USX LLC, an entity which owns a 2.4 million square foot office tower. Mr.
Ashner had also served as the Chairman and Chief Executive Officer of Shelbourne
Properties I, Inc., Shelbourne Properties II, Inc. and Shelbourne Properties
III, Inc., three separate publicly traded real estate investment trusts listed
on the American Stock Exchange that have been liquidated. Since 1981, Mr. Ashner
has been Chairman of Exeter Capital Corporation, a firm that has organized and
administered real estate limited partnerships. Mr. Ashner also currently serves
on the Board of Directors of NBTY Inc., a publicly traded company that is a
manufacturer, marketer and retailer of nutritional supplements. From 2000 to
2005, Mr. Ashner had served as a director and member of the Audit Committee of
GB Holdings, Inc., an entity controlled by Carl C. Icahn that owns an interest
in Atlantic Coast Entertainment Holdings, Inc., which indirectly owned and
operated The Sands Hotel and Casino in Atlantic City, New Jersey prior to its
sale in November 2006. From 2003 to 2006, Mr. Ashner had also served as a member
of Atlantic Holdings Coast Entertainment Holdings, Inc.'s Board of Directors.
Mr. Ashner graduated cum laude from Cornell University and received a juris
doctor magna cum laude from University of Miami School of Law. On February 21,
2007, Mr. Ashner purchased 10,000 shares of Common Stock. Mr. Ashner also is a
party to a Nominee Agreement as described above. The business address of Mr.
Ashner is Two Jericho Plaza, Suite 111-Wing A, Jericho, NY 11753.
In addition, as of May 24, 2007, Mr. Ashner beneficially owned the following
equity securities of WCI:
(1) Title of (2) Name of (3) Amount and (4) Percent of
Class Beneficial and Nature of Class (4)
Owner(3) Beneficial
Ownership
- -------------------- ----------------- ------------------ ----------------------
Common Stock, par Michael L. 10,000 Less than 1%
value $0.01 per Ashner
share
- --------------------------------------------------------------------------------
JEROME M. BECKER, age 71, currently serves as a Special Disciplinary Referee for
the Appellate Division of the First and Second Judicial Departments, an
assignment he has performed for the past decade, and a Mediator for the Supreme
Court of the State of New York, an assignment he has performed for the past 3
years. In January 2007, he was appointed as a Special Master for the Supreme
Court of the State of New York. From 1995 to 2006, He served as Chairman of the
New York State Housing Finance Agency, Chairman of the New York State Affordable
Housing Agency, Chairman of the New York State Municipal Bond Bank Agency, and
Vice-Chairman of the State of New York Mortgage Agency. Up until 2006, Mr.
Becker also served as a Director of the New York State Housing Trust Fund
Corporation and a Director of the Homeless Housing Assistance Corporation. Prior
to his career in public service, Mr. Becker was engaged in the private practice
of law, specializing in real estate matters. From November 1999 through December
2002, Judge Becker was a director of Stratosphere Corporation, which operates
the Stratosphere Hotel and Casino. Mr. Becker earned a Bachelor of Science from
Hofstra University and received a juris doctor from New York Law School. Mr.
Becker also is a party to a Nominee Agreement as described above. The business
address of Mr. Becker is Two Dogs Farm, PO Box 20, Erwinna, PA 18920.
SUMNER BAYE, age 75, has been President and a Partner of International Hotel
Network, a hospitality consulting firm headquartered in New York City, for more
than 15 years. Mr. Baye has worked in the hospitality industry more than 35
years, including as a Vice President in the sales, marketing and conference
division of Sheraton Hotels and as a Vice President of Travel and Related
Services at American Express. He formed Sumner A. Baye, Inc., a hotel
representative and consulting firm, which was acquired by the American Express
Company. Mr. Baye formed Hotel Network, the predecessor to International Hotel
Network. Mr. Baye also is a party to a Nominee Agreement as described above. The
business address of Mr. Baye is 300 East 71st Street, New York, NY 10021.
HUGH F. CULVERHOUSE, age 58, has, since 2001, owned Palmer Ranch Holdings Ltd.,
an entity that owns a Master Planned Community in Sarasota County Florida.
Palmer Ranch, among other things, engages in land sales to public and local
developers. Since 1989, Mr. Culverhouse has also owned Culverhouse Limited
Partnership, an entity that invests in real estate and securities. From 1997 to
2001, Mr. Culverhouse served as the Head Trustee of Hugh F. Culverhouse Trust,
an entity that managed a portfolio of assets consisting of land holdings, orange
groves, utility companies and other businesses. Prior thereto, Mr. Culverhouse
engaged in the private practice of law and served as an Assistant United States
Attorney, Miami Florida, and a Trial Attorney for the United Securities and
Exchange Commission. From 1991 to 1997, Mr. Culverhouse served on the Board of
Directors and as a member of the Audit Committee of Del Webb Corporation, a
publicly traded real estate development company. Mr. Culverhouse is a graduate
of the University of Florida, received an MBA from New York University and
received a juris doctor from University of Florida. Mr. Culverhouse also is a
party to a Nominee Agreement as described above. The business address of Mr.
Culverhouse is 2601 South Bayshore Drive, SBS Tower, PH1-C, Miami, FL 33133.
WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF CARL C. ICAHN, DAVID SCHECHTER,
JONATHAN R. MACEY, PETER C. CLAPMAN, AUGUSTE E. RIMPEL, JR., HOWARD LORBER,
MICHAEL L. ASHNER, JEROME M. BECKER, SUMNER BAYE AND HUGH F. CULVERHOUSE BY
SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY CARD IN THE POSTAGE PAID
ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT. IF YOU HAVE SIGNED THE GOLD
PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED TO HAVE GIVEN A DIRECTION
TO VOTE ALL THE SHARES REPRESENTED BY THE GOLD PROXY CARD FOR THE ELECTION OF
ALL THE NOMINEES NAMED ON THE GOLD PROXY CARD.
Appendix I attached hereto sets forth, as to each of the Nominees and the
other Participants, all transactions in securities of WCI effected during the
past two years.
With respect to each Participant (other than the Nominees), except as set
forth herein or in any of the Appendices attached hereto, (i) such Participant
is not, nor was within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of WCI, including,
but not limited to, joint ventures, loan or option arrangements, puts or calls,
guarantees against loss or guarantees of profit, division of losses or profits,
or the giving or withholding of proxies; and (ii) neither such Participant nor
any of such Participant's associates have any arrangement or understanding with
any person with respect to (A) any future employment by WCI or its affiliates or
(B) any future transactions to which WCI or any of its affiliates will or may be
a party.
With respect to each Nominee, except as set forth herein or in any of the
Appendices attached hereto, such Nominee has advised us that (i) such Nominee is
not, nor was within the past year, a party to any contract, arrangement or
understanding with any person with respect to any securities of WCI, including,
but not limited to, joint ventures, loan or option arrangements, puts or calls,
guarantees against loss or guarantees of profit, division of losses or profits,
or the giving or withholding of proxies; and (ii) neither such Nominee nor any
of such Nominee's associates have any arrangement or understanding with any
person with respect to (A) any future employment by WCI or its affiliates or (B)
any future transactions to which WCI or any of its affiliates will or may be a
party.
None of the Nominees would be barred from being considered independent
under (i) the applicable standards of the New York Stock Exchange or (ii) the
independence standards applicable to WCI under paragraph (a)(1) of Item 407 of
Regulation S-K under the Securities Exchange Act of 1934, as amended.
With respect to each Nominee (other than Mr. Icahn), such Nominee is party
to a Nominee Agreement, pursuant to which the Icahn Parties have agreed to pay
$25,000 to each such Nominee (other than Mr. Schechter), to pay the costs of the
proxy contest relating to the Annual Meeting for each Nominee, and to indemnify
each Nominee with respect to certain claims, costs and expenses incurred by such
Nominee in connection with the proxy contest relating to the Annual Meeting. The
Nominee Agreement also contains an acknowledgment of the parties that, should
such Nominee be elected to the Board of Directors of WCI, all of the activities
and decisions of such Nominee as a director will be governed by applicable law
and subject to such Nominee's fiduciary duty to the stockholders of WCI and, as
a result, that there is, and can be, no agreement between such Nominee and the
Icahn Parties which governs the decisions which such Nominee will make as a
director of WCI.
In the event that (i) Mr. Icahn (together with his affiliates) becomes the
beneficial owner, directly or indirectly, of more than 50% of the Shares of
Common Stock, or (ii) the Nominees have been elected to WCI's board of directors
and constitute a majority of the board and, in the case of the senior
subordinated notes described below, the nomination or election of the Nominees
to WCI's board of directors is not approved by WCI's current board of directors,
(a) under each of WCI's senior credit facilities (under which the Icahn Parties
believe 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, as applicable, 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 WCI (of which the Icahn Parties believe there are
approximately $650 million outstanding in the aggregate) will have the right to
require WCI 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 WCI 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 WCI's senior subordinated notes which
will enable the holders of such notes to declare such notes to become
immediately due and payable. Mr. Icahn and certain of his affiliates are
currently exploring various refinancing options with respect to this
indebtedness, however, Mr. Icahn and such affiliates are 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
WCI without the consent of WCI's current board of directors. Notwithstanding,
Mr. Icahn and such affiliates are highly confident that adequate refinancing
options will be available to WCI once potential financing sources are permitted
to conduct such a due diligence review. In addition, Mr. Icahn and such
affiliates expect that if the 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 WCI will be able to
obtain any such refinancing or that the terms and conditions of any such
refinancing will be acceptable to WCI. The inability to obtain any such
refinancing on acceptable terms could result in the bankruptcy of WCI or could
otherwise have a material adverse effect on WCI. To obviate the necessity to
refinance WCI's senior subordinated notes, the current board may approve the
nomination or election of the Nominees to WCI's board of directors so as to
avoid the repurchase obligations of WCI in respect of the senior subordinated
notes as described above. Mr. Icahn and such affiliates believe that the
fiduciary duties of the board may require them to do so. The foregoing
description of the indebtedness of WCI is qualified in its entirety by reference
hereto to the definitive documents governing such indebtedness, copies of which
have been filed by WCI with the Securities and Exchange Commission. The
Participants take no responsibility for the accuracy or completeness of WCI's
filings with the Securities and Exchange Commission.
OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to WCI's Proxy Statement, WCI is soliciting proxies with respect
to 1 proposal other than the election of directors. Please refer to WCI's Proxy
Statement for a detailed discussion of this proposal, including various
arguments in favor of and against such proposal. This proposal is discussed
briefly below. EXCEPT AS SET FORTH BELOW, THE PARTICIPANTS MAKE NO
RECOMMENDATION AS TO THIS PROPOSAL AND INTEND TO ABSTAIN FROM VOTING THEREON. IF
YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED
TO HAVE GIVEN A DIRECTION TO ABSTAIN FROM VOTING ALL THE SHARES REPRESENTED BY
THE GOLD PROXY CARD WITH RESPECT TO THIS PROPOSAL, EXCEPT AS SET FORTH BELOW.
ITEM 2 -- RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
At the Annual Meeting, the WCI stockholders will be asked to ratify the
appointment of Ernst & Young LLP as WCI's independent registered public
accounting firm for 2007. WCI's board of directors unanimously recommended a
vote for this proposal. The Participants make no recommendation as to this
proposal.
VOTING ON ITEM 2
The accompanying GOLD proxy card will be voted in accordance with your
instruction on such card. You may vote for or vote against, or abstain from
voting on, Item 2 described above by marking the proper box on the GOLD proxy
card.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to be
presented at the Annual Meeting. If any other matters should properly come
before the Annual Meeting, which are unknown to the Participants a reasonable
time before the solicitation, it is intended that the persons named on the
enclosed GOLD proxy card will vote that proxy on such other matters in
accordance with their judgment.
VOTING PROCEDURES
According to WCI's Proxy Statement, the voting procedures are as set forth
below.
Holders of shares of WCI's Common Stock, at the close of business on April
30, 2007 (the "Record Date") are entitled to notice of, and to vote at, the
Annual Meeting. According to WCI's Proxy Statement, as of the Record Date,
42,010,175 shares of Common Stock were outstanding. The presence, in person or
by proxy, of the holders of a majority of the outstanding shares of Common Stock
entitled to vote constitutes a quorum for transacting business at the Annual
Meeting. Each share of Common Stock outstanding on the Record Date is entitled
to one vote on each matter presented at the Annual Meeting. Accordingly,
assuming there are 42,010,175 shares of Common Stock outstanding as of the
Record Date, the presence, in person or by proxy, of the holders of 21,005,088
shares of Common Stock entitled to vote constitutes a quorum for transacting
business at the Annual Meeting. Directors are elected by a plurality of the
votes cast by the holders of WCI's Common Stock in person or represented by
proxy and entitled to vote at a meeting at which a quorum is present. Plurality
means that the individuals who receive the largest number of votes cast are
elected as directors up to the maximum number of directors to be chosen at the
meeting. Consequently, any shares not voted (whether by abstention, broker
nonvote or otherwise) have no impact in the election of directors.
Assuming a quorum is present, a majority of the votes present in person or
represented by proxy and entitled to vote is necessary to ratify the appointment
of Ernst & Young LLP as WCI's independent registered public accounting firm for
2007. Consequently, any shares that are present in person or represented by
proxy and entitled to vote at the Annual Meeting but are not voted (whether by
abstention or otherwise) have the same effect as a vote against this proposal.
Whether or not you are able to attend the Annual Meeting, you are urged to
complete the enclosed GOLD proxy and return it in the enclosed self-addressed,
prepaid envelope. All valid proxies received prior to the meeting will be voted.
If you specify a choice with respect to any item by marking the appropriate box
on the proxy, the shares will be voted in accordance with that specification. IF
NO SPECIFICATION IS MADE, THE PERSONS NAMED ON THE ENCLOSED GOLD PROXY CARD WILL
VOTE YOUR SHARES FOR CARL C. ICAHN, DAVID SCHECHTER, JONATHAN R. MACEY, PETER C.
CLAPMAN, AUGUSTE E. RIMPEL, JR., HOWARD LORBER, MICHAEL L. ASHNER, JEROME M.
BECKER, SUMNER BAYE AND HUGH F. CULVERHOUSE WITH RESPECT TO PROPOSAL 1, AND WILL
ABSTAIN FROM VOTING WITH RESPECT TO PROPOSAL 2.
In addition, if any other matters should properly come before the Annual
Meeting, which are unknown to the Participants a reasonable time before the
solicitation, it is intended that the persons named on the enclosed GOLD proxy
card will vote that proxy on such other matters in accordance with their
judgment. The Participants and their affiliates know of no other business to be
presented at the Annual Meeting.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK NOMINEE OR
OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES AND ONLY UPON
RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT THE PERSON
RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR BEHALF
THE GOLD PROXY CARD AS SOON AS POSSIBLE.
If you have any questions or require any assistance in executing your
proxy, please call:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
CALL TOLL-FREE (800) 322-2885
PROXY PROCEDURES
IN ORDER FOR YOUR VIEWS TO BE REPRESENTED AT THE ANNUAL MEETING, PLEASE MARK,
SIGN, DATE AND RETURN THE ENCLOSED GOLD PROXY CARD IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.
The accompanying GOLD proxy card will be voted at the Annual Meeting in
accordance with your instructions on such card.
REVOCATION OF PROXIES
Any Stockholder who has mailed a white proxy card to WCI may revoke it
before it is voted by mailing a duly executed GOLD proxy card to the
Participants bearing a date LATER than the white proxy card delivered to WCI.
Proxies may also be revoked at any time prior to voting by: (i) delivering to
the corporate secretary of WCI, a written notice, bearing a date later than the
date of the proxy, stating that the proxy is revoked; (ii) delivering to the
corporate secretary of WCI a duly executed proxy bearing a later date than the
proxy delivered previously; or (iii) attending the Annual Meeting and voting in
person.
Only holders of record as of the close of business on the Record Date will
be entitled to vote. If you were a Stockholder of record on the Record Date, you
will retain your voting rights at the Annual Meeting even if you sell such
shares after the Record Date. Accordingly, it is important that you vote the
shares held by you on the Record Date, or grant a proxy to vote such shares on
the GOLD proxy card, even if you sell such shares after the Record Date.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK NOMINEE OR
OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES AND ONLY UPON
RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT THE PERSON
RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON YOUR BEHALF
THE GOLD PROXY CARD AS SOON AS POSSIBLE.
COST AND METHOD OF SOLICITATION
Solicitation of proxies shall be made by Messrs. Icahn, Meister and
Intrieri.
The Icahn Parties have retained MacKenzie Partners, Inc. ("MacKenzie") to
conduct the solicitation, for which MacKenzie is to receive a fee not to exceed
$250,000, and reimbursement for its reasonable out-of-pocket expenses. The Icahn
Parties have agreed to indemnify MacKenzie against certain liabilities and
expenses, including certain liabilities under the federal securities laws.
Insofar as indemnification for liabilities arising under the federal securities
laws may be permitted to MacKenzie pursuant to the foregoing provisions, we have
been informed that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy and is therefore unenforceable.
Proxies may be solicited by mail, courier services, Internet, advertising,
telephone or telecopier or in person. It is anticipated that MacKenzie will
employ approximately 35 persons to solicit proxies from WCI Stockholders for the
Annual Meeting. The total expenditures in furtherance of, or in connection with,
the solicitation of proxies is approximately $40,000 to date, and is estimated
to be approximately $450,000 in total.
The Icahn Parties intend to seek reimbursement for the costs and expenses
associated with the proxy solicitation in the event that the Nominees are
elected to the Board of Directors of WCI, but do not intend to submit the issue
of reimbursement to a vote of security holders.
ADDITIONAL INFORMATION
Certain information regarding the securities of WCI held by WCI's
Directors, nominees, management and 5% Stockholders is contained in WCI's Proxy
Statement. Information concerning the date by which proposals of security
holders intended to be presented at the next annual meeting of Stockholders of
WCI must be received by WCI for inclusion in WCI's Proxy Statement and form of
proxy for that meeting is also contained in WCI's Proxy Statement. This
information is contained in WCI's public filings. The Participants take no
responsibility for the accuracy or completeness of such information.
Date: May 24, 2007 ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
HIGH RIVER LIMITED PARTNERSHIP
APPENDIX I
SUPPLEMENTAL NOMINEE AND OTHER INFORMATION
Set forth below are the dates, types and amounts of each Participant's purchases
and sales of WCI's securities within the past two years.(5)
Date of Amount of Shares of
Name of Purchase Common Stock
Participant or Sale Purchased (Sold)
- -------------- --------------------------------------- -------------------------
High River August 24, 2006 10,200
- -------------- --------------------------------------- -------------------------
High River August 25, 2006 15,800
- -------------- --------------------------------------- -------------------------
High River August 25, 2006 4,600
- -------------- --------------------------------------- -------------------------
High River August 28, 2006 120
- -------------- --------------------------------------- -------------------------
High River August 29, 2006 35,180
- -------------- --------------------------------------- -------------------------
High River August 30, 2006 18,840
- -------------- --------------------------------------- -------------------------
High River September 5, 2006 40,000
- -------------- --------------------------------------- -------------------------
High River September 6, 2006 60,000
- -------------- --------------------------------------- -------------------------
High River September 7, 2006 22,920
- -------------- --------------------------------------- -------------------------
High River September 8, 2006 41,520
- -------------- --------------------------------------- -------------------------
High River September 11, 2006 60,000
- -------------- --------------------------------------- -------------------------
High River September 12, 2006 60,000
- -------------- --------------------------------------- -------------------------
High River September 13, 2006 25,880
- -------------- --------------------------------------- -------------------------
High River September 14, 2006 19,940
- -------------- --------------------------------------- -------------------------
High River October 30, 2006 (20,000)
- -------------- --------------------------------------- -------------------------
High River December 13, 2006 (30,000)
- -------------- --------------------------------------- -------------------------
High River January 3, 2007 156,000
- -------------- --------------------------------------- -------------------------
High River January 4, 2007 76,580
- -------------- --------------------------------------- -------------------------
High River January 5, 2007 50,000
- -------------- --------------------------------------- -------------------------
High River January 8, 2007 100,000
- -------------- --------------------------------------- -------------------------
High River January 9, 2007 112,040
- -------------- --------------------------------------- -------------------------
High River January 10, 2007 91,125
- -------------- --------------------------------------- -------------------------
High River January 11 2007 42,320
- -------------- --------------------------------------- -------------------------
High River January 12 2007 286,660
- -------------- --------------------------------------- -------------------------
Icahn Partners August 24, 2006 17,507
- -------------- --------------------------------------- -------------------------
Icahn Partners August 25, 2006 7,895
- --------------- --------------------------------------- ------------------------
Icahn Partners August 25, 2006 27,119
- --------------- --------------------------------------- ------------------------
Icahn Partners August 28, 2006 206
- --------------- --------------------------------------- ------------------------
Icahn Partners August 29, 2006 60,382
- --------------- --------------------------------------- ------------------------
Icahn Partners August 30, 2006 32,336
- --------------- --------------------------------------- ------------------------
Icahn Partners September 5, 2006 67,747
- --------------- --------------------------------------- ------------------------
Icahn Partners September 6, 2006 102,349
- --------------- --------------------------------------- ------------------------
Icahn Partners September 7, 2006 39,148
- --------------- --------------------------------------- ------------------------
Icahn Partners September 8, 2006 70,917
- --------------- --------------------------------------- ------------------------
Icahn Partners September 11, 2006 102,482
- --------------- --------------------------------------- ------------------------
Icahn Partners September 12, 2006 102,482
- --------------- --------------------------------------- ------------------------
Icahn Partners September 13, 2006 44,203
- --------------- --------------------------------------- ------------------------
Icahn Partners September 14, 2006 34,058
- --------------- --------------------------------------- ------------------------
Icahn Partners October 30, 2006 (33,951)
- --------------- --------------------------------------- ------------------------
Icahn Partners December 13, 2006 (51,402)
- --------------- --------------------------------------- ------------------------
Icahn Partners January 3, 2007 285,195
- --------------- --------------------------------------- ------------------------
Icahn Partners January 4, 2007 132,516
- --------------- --------------------------------------- ------------------------
Icahn Partners January 5, 2007 113,645
- --------------- --------------------------------------- ------------------------
Icahn Partners January 8, 2007 174,065
- --------------- --------------------------------------- ------------------------
Icahn Partners January 9, 2007 195,023
- --------------- --------------------------------------- ------------------------
Icahn Partners January 10, 2007 158,650
- --------------- --------------------------------------- ------------------------
Icahn Partners January 11, 2007 72,680
- --------------- --------------------------------------- ------------------------
Icahn Partners January 12, 2007 1,146,640
- --------------- --------------------------------------- ------------------------
Icahn Master August 24, 2006 23,293
- --------------- --------------------------------------- ------------------------
Icahn Master August 25, 2006 10,505
- --------------- --------------------------------------- ------------------------
Icahn Master August 25, 2006 36,081
- --------------- --------------------------------------- ------------------------
Icahn Master August 28, 2006 274
- --------------- --------------------------------------- ------------------------
Icahn Master August 29, 2006 80,338
- --------------- --------------------------------------- ------------------------
Icahn Master August 30, 2006 43,024
- --------------- --------------------------------------- ------------------------
Icahn Master September 5, 2006 92,253
- --------------- --------------------------------------- ------------------------
Icahn Master September 6, 2006 137,651
- --------------- -------------------------------------- -------------------------
Icahn Master September 7, 2006 52,532
- --------------- -------------------------------------- -------------------------
Icahn Master September 8, 2006 95,163
- --------------- -------------------------------------- -------------------------
Icahn Master September 11, 2006 137,518
- --------------- -------------------------------------- -------------------------
Icahn Master September 12, 2006 137,518
- --------------- -------------------------------------- -------------------------
Icahn Master September 13, 2006 59,317
- --------------- -------------------------------------- -------------------------
Icahn Master September 14, 2006 45,702
- --------------- -------------------------------------- -------------------------
Icahn Master October 30, 2006 (46,049)
- --------------- -------------------------------------- -------------------------
Icahn Master December 13, 2006 (68,598)
- --------------- -------------------------------------- -------------------------
Icahn Master January 3, 2007 338,805
- --------------- -------------------------------------- -------------------------
Icahn Master January 4, 2007 173,804
- --------------- -------------------------------------- -------------------------
Icahn Master January 5, 2007 86,355
- --------------- -------------------------------------- -------------------------
Icahn Master January 8, 2007 225,935
- --------------- -------------------------------------- -------------------------
Icahn Master January 9, 2007 253,137
- --------------- -------------------------------------- -------------------------
Jonathan R. February 14, 2007 100
Macey
- --------------- -------------------------------------- -------------------------
Michael L. February 21, 2007 10,000
Ashner
- --------------- -------------------------------------- -------------------------
- --------------------
(5) Please refer to Attachment 1 to this Appendix I for a description of certain
cash settled derivative agreements relating to shares of Common Stock entered
into by the respective Icahn Parties.
Part of the purchase price of shares of Common Stock purchased by High River was
obtained through margin borrowing. Shares of Common Stock purchased by High
River are maintained in a margin account that includes positions in securities
in addition to such shares. The indebtedness of the margin account as of May 23,
2007 was approximately $595,798,478.
As of May 24, 2007, (i) High River is the direct beneficial owner of $1,000,000
in aggregate principal amount of the WCI's 9 1/8 Senior Subordinated Notes due
2012 (the "9 1/8 Notes"), (ii) Icahn Partners is the direct beneficial owner of
$1,698,000 in aggregate principal amount of the 9 1/8 Notes and (iii) Icahn
Master is the direct beneficial owner of $2,302,000 in aggregate principal
amount of the 9 1/8 Notes. The date on which each of High River, Icahn Partners
and Icahn Master purchased such 9 1/8 Notes was October 4, 2006.
ATTACHMENT 1 TO APPENDIX I
The Icahn Parties have entered into a number of derivative agreements, commonly
referred to as Total Return Swaps with counterparties, which agreements provide
that the profit to the Icahn Parties shall be based upon the increase in value
of the shares of Common Stock and the loss to the Icahn Parties shall be based
upon the decrease in the value of the shares of Common Stock, during the period
from inception of the applicable agreement to its termination. The agreements
provide that they settle in cash. In addition to the shares of Common Stock
which they beneficially own as described above, the Icahn Parties currently have
long economic exposure to an aggregate of 5,427,113 shares of Common Stock
through such agreements. These agreements do not give the Icahn Parties direct
or indirect voting, investment or dispositive control over the shares of Common
Stock to which these agreements relate and, accordingly the Icahn Parties
disclaim any beneficial ownership in the shares of Common Stock to which these
agreements relate. Of these agreements, (A) Morgan Stanley is the counterparty
with respect to agreements relating to an aggregate of (i) 702,600 reference
shares of Common Stock with High River, (ii) 1,188,374 reference shares of
Common Stock with Icahn Partners and (iii) 1,622,026 reference shares of Common
Stock with Icahn Master and (B) Merrill Lynch is the counterparty with respect
to agreements relating to an aggregate of (i) 322,320 reference shares of Common
Stock with High River, (ii) 568,033 reference shares of Common Stock with Icahn
Partners and (iii) 1,023,760 reference shares of Common Stock with Icahn Master.
The following table indicates the date of each Total Return Swap trade (each
representing the establishment of a long economic exposure position) by the
Participants within the past two years, and the number of shares of Common Stock
referenced in each such trade.
Amount of Reference
Name of Shares of
Participant Date Common Stock
- --------------- --------------------------------- ------------------------------
High River October 4, 2006 83,840
- --------------- --------------------------------- ------------------------------
High River October 6, 2006 45,440
- --------------- --------------------------------- ------------------------------
High River October 9, 2006 3,080
- --------------- --------------------------------- ------------------------------
High River October 11, 2006 2,460
- --------------- --------------------------------- ------------------------------
High River October 13, 2006 50,000
- --------------- --------------------------------- ------------------------------
High River October 16, 2006 100,000
- --------------- --------------------------------- ------------------------------
High River October 17, 2006 43,020
- --------------- --------------------------------- ------------------------------
High River October 18, 2006 32,900
- --------------- --------------------------------- ------------------------------
High River October 19, 2006 29,000
- --------------- --------------------------------- ------------------------------
High River October 20, 2006 21,840
- --------------- --------------------------------- ------------------------------
High River October 23, 2006 41,860
- --------------- --------------------------------- ------------------------------
High River October 24, 2006 41,800
- --------------- --------------------------------- ------------------------------
High River October 25, 2006 72,920
- --------------- --------------------------------- ------------------------------
High River October 26, 2006 55,340
- --------------- --------------------------------- ------------------------------
High River October 27, 2006 35,720
- --------------- --------------------------------- ------------------------------
High River October 30, 2006 43,380
- --------------- --------------------------------- ------------------------------
High River December 12, 2006 34,200
- --------------- --------------------------------- ------------------------------
High River December 13, 2006 63,000
- --------------- --------------------------------- ------------------------------
High River December 14, 2006 22,200
- --------------- --------------------------------- ------------------------------
High River December 15, 2006 95,860
- --------------- --------------------------------- ------------------------------
High River December 18, 2006 53,000
- --------------- --------------------------------- ------------------------------
High River December 19, 2006 53,860
- --------------- --------------------------------- ------------------------------
High River December 20, 2006 200
- --------------- --------------------------------- ------------------------------
Icahn Partners October 4, 2006 137,986
- --------------- --------------------------------- ------------------------------
Icahn Partners October 6, 2006 77,138
- --------------- --------------------------------- ------------------------------
Icahn Partners October 9, 2006 5,228
- --------------- --------------------------------- ------------------------------
Icahn Partners October 11, 2006 4,176
- --------------- --------------------------------- ------------------------------
Icahn Partners October 13, 2006 84,879
- --------------- --------------------------------- ------------------------------
Icahn Partners October 16, 2006 169,757
- --------------- --------------------------------- ------------------------------
Icahn Partners October 17, 2006 73,030
- --------------- --------------------------------- ------------------------------
Icahn Partners October 18, 2006 55,849
- --------------- --------------------------------- ------------------------------
Icahn Partners October 19, 2006 49,230
- --------------- --------------------------------- ------------------------------
Icahn Partners October 20, 2006 37,075
- --------------- --------------------------------- ------------------------------
Icahn Partners October 23, 2006 71,060
- --------------- --------------------------------- ------------------------------
Icahn Partners October 24, 2006 70,958
- --------------- --------------------------------- ------------------------------
Icahn Partners October 25, 2006 123,787
- --------------- --------------------------------- ------------------------------
Icahn Partners October 26, 2006 93,944
- --------------- --------------------------------- ------------------------------
Icahn Partners October 27, 2006 60,637
- --------------- --------------------------------- ------------------------------
Icahn Partners October 30, 2006 73,640
- --------------- --------------------------------- ------------------------------
Icahn Partners December 12, 2006 75,970
- --------------- --------------------------------- ------------------------------
Icahn Partners December 13, 2006 107,944
- --------------- --------------------------------- ------------------------------
Icahn Partners December 14, 2006 36,635
- --------------- --------------------------------- ------------------------------
Icahn Partners December 15, 2006 164,171
- --------------- --------------------------------- ------------------------------
Icahn Partners December 18, 2006 90,749
- --------------- --------------------------------- ------------------------------
Icahn Partners December 19, 2006 92,221
- --------------- --------------------------------- ------------------------------
Icahn Partners December 20, 2006 343
- --------------- --------------------------------- ------------------------------
Icahn Master October 4, 2006 197,374
- --------------- --------------------------------- ------------------------------
Icahn Master October 6, 2006 104,622
- --------------- --------------------------------- ------------------------------
Icahn Master October 9, 2006 7,092
- --------------- --------------------------------- ------------------------------
Icahn Master October 11, 2006 5,664
- --------------- --------------------------------- ------------------------------
Icahn Master October 13, 2006 115,121
- --------------- --------------------------------- ------------------------------
Icahn Master October 16, 2006 230,243
- --------------- --------------------------------- ------------------------------
Icahn Master October 17, 2006 99,050
- --------------- --------------------------------- ------------------------------
Icahn Master October 18, 2006 75,751
- --------------- --------------------------------- ------------------------------
Icahn Master October 19, 2006 66,770
- --------------- --------------------------------- ------------------------------
Icahn Master October 20, 2006 50,285
- --------------- --------------------------------- ------------------------------
Icahn Master October 23, 2006 96,380
- --------------- --------------------------------- ------------------------------
Icahn Master October 24, 2006 96,242
- --------------- --------------------------------- ------------------------------
Icahn Master October 25, 2006 167,893
- --------------- --------------------------------- ------------------------------
Icahn Master October 26, 2006 127,416
- --------------- --------------------------------- ------------------------------
Icahn Master October 27, 2006 82,243
- --------------- --------------------------------- ------------------------------
Icahn Master October 30, 2006 99,880
- --------------- --------------------------------- ------------------------------
Icahn Master December 12, 2006 60,830
- --------------- --------------------------------- ------------------------------
Icahn Master December 13, 2006 144,056
- --------------- --------------------------------- ------------------------------
Icahn Master December 14, 2006 52,165
- --------------- --------------------------------- ------------------------------
Icahn Master December 15, 2006 219,269
- --------------- --------------------------------- ------------------------------
Icahn Master December 18, 2006 121,251
- --------------- --------------------------------- ------------------------------
Icahn Master December 19, 2006 123,219
- --------------- --------------------------------- ------------------------------
Icahn Master December 20, 2006 457
- --------------- --------------------------------- ------------------------------
Icahn Master January 10, 2007 205,853
- --------------- --------------------------------- ------------------------------
Icahn Master January 11, 2007 96,660
- --------------- --------------------------------- ------------------------------
IMPORTANT
1. If your shares are held in your own name, please mark, date and mail the
enclosed GOLD proxy card to our Proxy Solicitor, MacKenzie Partners, Inc.,
in the postage-paid envelope provided.
2. If your shares are held in the name of a brokerage firm, bank nominee or
other institution, only it can vote such shares and only upon receipt of
your specific instructions. Accordingly, you should contact the person
responsible for your account and give instructions for a GOLD proxy card to
be signed representing your shares.
3. If you have already submitted a white proxy card to WCI for the Annual
Meeting, you may change your vote to a vote FOR the election of the
Nominees by marking, signing, dating and returning the enclosed GOLD proxy
card for the Annual Meeting, which must be dated after any proxy you may
have submitted to WCI. ONLY YOUR LATEST DATED PROXY FOR THE ANNUAL MEETING
WILL COUNT AT THE ANNUAL MEETING.
If you have any questions or require any assistance in executing your
proxy, please call:
MacKenzie Partners, Inc.
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
GOLD PROXY CARD
WCI COMMUNITIES, INC.
2007 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED BY
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP AND
HIGH RIVER LIMITED PARTNERSHIP
The undersigned hereby appoints and constitutes each of Carl C. Icahn,
Keith A. Meister and Vincent J. Intrieri (acting alone or together) as proxies,
with full power of substitution and resubstitution in each, to represent the
undersigned at the Annual Meeting of Stockholders of WCI Communities, Inc.
("WCI") to be held on Friday, June 15, 2007 at 10:00 a.m. (EDT), and at --- any
adjournment, postponement or continuation thereof, hereby revoking any proxies
previously given, to vote all shares of Common Stock of WCI held or owned by the
undersigned as directed below, and in their discretion upon such other matters
as may come before the meeting. IF NO DIRECTION IS MADE, THE PERSONS NAMED ON
THIS GOLD PROXY CARD WILL VOTE YOUR SHARES FOR CARL C. ICAHN, DAVID ---
SCHECHTER, JONATHAN R. MACEY, PETER C. CLAPMAN, AUGUSTE E. RIMPEL, JR., HOWARD
LORBER, MICHAEL L. ASHNER, JEROME M. BECKER, SUMNER BAYE AND HUGH F. CULVERHOUSE
WITH RESPECT TO PROPOSAL 1, AND WILL ABSTAIN FROM VOTING WITH RESPECT TO
PROPOSAL 2.
SIGN, DATE AND MAIL YOUR PROXY TODAY
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
ICAHN PARTNERS, ICAHN MASTER AND HIGH RIVER EACH RECOMMEND A VOTE "FOR" THE
ELECTION OF THE NOMINEES LISTED IN PROPOSAL 1 BELOW. NO RECOMMENDATION IS MADE
AS TO THE REMAINING PROPOSALS.
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
STOCKHOLDERS ARE URGED TO DATE, MARK, SIGN, AND RETURN THIS PROXY.
YOUR VOTE IS VERY IMPORTANT TO US.
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) Carl C. Icahn FOR ALL WITHHOLD FOR ALL
(02) David Schechter NOMINEES FROM ALL EXCEPT
(03) Jonathan R. Macey NOMINEES
(04) Peter C. Clapman
(05) Auguste E. Rimpel, Jr.
(06) Howard Lorber
(07) Michael L. Ashner
(08) Jerome M. Becker
(09) Sumner Baye
(10) Hugh F. Culverhouse
NOTE: If you do not wish your shares voted "For" a particular
nominee, mark the "FOR ALL EXCEPT" box and write the name(s) of
the nominee(s) you do not support on the line below. Your shares
will be voted for the remaining nominee(s).
- ----------------------------------------------------------
[ ] [ ] [ ]
2. Ratification of appointment of FOR AGAINST ABSTAIN
Ernst & Young LLP as independent
registered public accounting firm
for 2007.
3. IN THEIR DISCRETION THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER
BUSINESS AS MAY PROPERLY COME BEFORE THE ANNUAL MEETING WHICH ARE UNKNOWN
TO THE PARTICIPANTS A REASONABLE TIME BEFORE THE SOLICITATION.
MARK HERE IF AN ADDRESS CHANGE HAS BEEN [ ]
NOTED ON THE REVERSE SIDE OF THIS CARD
Please be sure to sign and date this Proxy.
------------------------------------------------------ ------------------
SIGNATURE(S) OF STOCKHOLDER(S) DATE
---------------------------------------------------------------------------
TITLE, IF ANY
SIGNATURE (IF HELD JOINTLY): ________________________ ___________
DATE