PERSONAL AND CONFIDENTIAL
June 5, 2007
ICAHN ASSOCIATES CORP.
Ladies and Gentlemen:
In connection with your consideration of a possible transaction between WCI
Communities, Inc. (the "Company") and you or any of your affiliates, you have
requested information concerning the Company. As a condition to your being
furnished such information, you agree to treat any information concerning the
Company (whether prepared by the Company, its advisors or otherwise irrespective
of the form of communication and whether such information is so furnished on or
after the date hereof) which is furnished to you by or on behalf of the Company
and all analyses, compilations, data, studies, notes, translations, memoranda or
other documents prepared by you or your Representatives (as defined below)
containing, referencing, or based in whole or in part on any such furnished
information (herein collectively referred to as the "Evaluation Material") in
accordance with the provisions of this agreement and to take or abstain from
taking certain other actions herein set forth. The term "Evaluation Material"
does not include information which (i) is already in your possession, provided
that such information is not known by you to be subject to another
confidentiality agreement with or other obligation of secrecy to the Company,
(ii) becomes generally available to the public other than as a result of a
disclosure by you or your Representatives in violation of this agreement, or
(iii) becomes available to you on a non-confidential basis from a source other
than the Company or its advisors, provided that such source is not known by you
to be bound by a confidentiality agreement with or other obligation of secrecy
to the Company.
You hereby agree that the Evaluation Material will be used solely for the
purpose of evaluating a possible transaction between the Company and you or any
of your affiliates, that such information will be kept confidential by you and
your advisors; provided, however, that (i) any of such information may be
disclosed to your affiliates, directors, officers, employees, debt financing
sources, and your legal, financial and accounting advisers (collectively, your
"Representatives") who need to know such information for the purpose of
evaluating any such possible transaction between the Company and you or any of
your affiliates; provided, further, that you shall be responsible for any breach
of this agreement by such of your Representatives (it being understood that such
Representatives shall be informed by you of the confidential nature of such
information) who do not enter into a similar agreement with the Company, (ii)
any disclosure of such information may be made to which the Company consents in
writing and (iii) any disclosure of such information may be made pursuant to the
immedialy following two paragraphs. If requested by you or any of your
affiliates, the Company will use its reasonable best efforts to enter into an
agreement, in form and substance similar to this agreement, with any 1 or more
of your Representatives.
In the event that at the behest of a third party, you or your Representatives
are requested or required (by law, rule, regulation, deposition,
interrogatories, requests for information or documents in legal proceedings,
subpoena, civil investigative demand or other similar process (collectively,
"Legal Process")) to disclose any of the Evaluation Material, as soon as
reasonably practicable thereafter, you shall notify the Company in writing of
the existence, terms and circumstances of any such request or requirement so
that the Company may, in its sole and absolute discretion, seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this agreement. You agree that you and your Representatives shall reasonably
cooperate with the Company, at the Company's sole cost and expense, in seeking
such protective order or other appropriate remedy. In addition, if you or any of
your Representatives are advised by your legal counsel, that you or such
Representative is legally required to disclose Evaluation Material by Legal
Process, you or your Representative may, without liability hereunder, disclose
such Evaluation Material to the extent that such counsel advises you is legally
required to be disclosed.
Notwithstanding the foregoing, for a period of one month following the date
hereof, neither you nor any of your affiliates will acquire or agree to acquire
or dispose of or agree to dispose of, including by way of merger, any shares of
the Company's common stock, if you are advised by your legal counsel that
effecting such transaction would require the public disclosure of any Evaluation
Material that constitutes material non-public information concerning the
Company, without the Company's prior written consent. However, commencing on
July 4, 2007, you or your affiliates may effect any such transaction and in
connection therewith disclose any Evaluation Material that you are advised by
counsel may legally be required to be disclosed in that context.
You agree that, for a period of one year from the date of this agreement,
without the prior written consent of the Company, neither you nor any of your
affiliates will, directly or indirectly, solicit to hire or hire (or cause or
seek to cause to leave the employ of the Company): (i) any management-level
employee of the Company or any subsidiary; or (ii) any other employee of the
Company or any subsidiary of the Company with whom you have had contact or who
(or whose performance) became known to you in connection with the process
contemplated by this agreement; provided, however, that the foregoing provision
will not prevent you from hiring any such person (a) who contacts you in
response to a bona fide public advertisement for employment placed by you and
not specifically targeted at the Company's employees or (b) who has been
terminated by the Company or such subsidiary or (c) who has resigned from the
Company or such subsidiary prior to any such soliciation.
You hereby acknowledge that you and your affiliates are aware that the United
States securities laws prohibit any person who has received from an issuer
material, non-public information from purchasing or selling securities of such
issuer.
In addition, without the prior written consent of the Company or as you are
advised by counsel is required by law, you will not, and will direct your
Representatives not to, disclose to any person (other than your Representatives)
any terms or conditions of any definitive purchase or merger agreement being
negotiated by you and the Company regarding a possible transaction, in each case
during the period beginning when you have commenced such negotiations with the
Company and ending when you or the Company has ceased such negotiations.
In the event that you do not proceed with the transaction which is the subject
of this agreement within a reasonable time, you shall promptly notify the
Company of your determination and, at the time of such notice, or if, at any
earlier time, the Company so direct (whether you determine to pursue a possible
transaction), you and your Representatives will, at your expense, (a) redeliver
to the Company all written Evaluation Material and any other written material
containing or reflecting any information in the Evaluation Material and will not
retain any copies, extracts or other reproductions in whole or in part of such
written material or (b) destroy such written Evaluation Material and such other
written material, and such destruction shall be certified in writing to the
Company by an authorized officer supervising such destruction. All documents,
memoranda, notes and other writings whatsoever prepared by you or your advisors
based on the information in the Evaluation Material shall be destroyed, and such
destruction shall be certified in writing to the Company by an authorized
officer supervising such destruction. Notwithstanding the foregoing, you shall
be entitled to retain one copy of any such written Evaluation Material or any
such other written material for your internal record keeping purposes; provided,
that such material shall remain subject to the confidentiality provisions of
this agreement.
You understand and acknowledge that the Company shall have the right, in its
sole discretion, to determine what information to make available to you and that
the Company believes that none of the Company or any of its representatives is
under any obligation to make any particular information available to you or to
supplement or update any Evaluation Material previously furnished. You further
understand and acknowledge that neither the Company nor any of its
Representatives is making any representation or warranty, express or implied, as
to the accuracy or completeness of the Evaluation Material, and neither the
Company nor any of its representatives will have any liability to you or any
other person resulting from your use of the Evaluation Material. Only those
representations or warranties that are made to you in a definitive agreement
executed by the Company regarding any transaction referred to in the first
paragraph of this agreement (a "Definitive Agreement") when, as, and if it is
executed, and subject to such limitations and restrictions as may be specified
in such Definitive Agreement, will have any legal effect. The term "Definitive
Agreement" does not include an executed letter of intent or any other
preliminary written agreement, nor does it include any written or oral
acceptance of any offer or bid on your part.
You agree that unless and until a Definitive Agreement has been executed and
delivered, neither the Company nor you will be under any legal obligation of any
kind whatsoever with respect to such a transaction by virtue of this or any
written or oral expression with respect to such a transaction by any of the
Company's directors, officers, employees, agents, representatives or advisors or
by your Representatives except, in the case of this agreement, for the matters
specifically agreed to herein. The agreement set forth in this paragraph may be
modified or waived only by a separate writing by the Company and you expressly
so modifying or waiving such agreement.
You understand that (i) the Company and its directors, officers, employees,
agents, representatives and advisors shall be free to conduct any process for
any possible transaction as they in their sole discretion shall determine
(including negotiating with any of the prospective parties to such possible
transaction (or any other transaction), terminating discussions and negotiations
with you or any of your Representatives with respect to a possible transaction
and entering into a definitive agreement, without prior notice to you or any
other person), (ii) any procedures relating to a possible transaction may be
changed at any time without notice to you or any other person and (iii) the
Company may discontinue any process related to a possible transaction. You
hereby confirm that you are not acting as a broker for or representative or
agent of any person and are considering the possible transaction only for your
own account or for the account of your affiliates.
You also agree that the Company shall be entitled to equitable relief, including
injunction in addition to all other remedies that may be granted in law or in
equity, in the event of any breach of the provisions of this agreement and that
you shall not oppose the granting of such relief.
You agree that no failure or delay by the Company in exercising any right, power
or privilege hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any right, power or privilege hereunder.
If any provision of this agreement is found to violate any statute, regulation,
rule, order or decree of any governmental authority, court, agency or exchange,
such invalidity shall not be deemed to affect any other provision hereof or the
validity of the remainder of this agreement, and such invalid provision shall be
deemed deleted herefrom to the minimum extent necessary to cure such violation.
You agree that you and your Representatives and affiliates shall not contact,
directly or indirectly, any directors, officers, employees, customers, suppliers
or affiliates of the Company for any purpose relating to the possible
transaction or the Evaluation Material without the Company's prior written
consent and that all (i) contacts by you or your Representatives with the
Company regarding the possible transaction or the Evaluation Material, (ii)
requests for additional Evaluation Material, (iii) requests for facility tours
or management meetings and (iv) discussions or questions regarding procedures
shall be made through Goldman, Sachs & Co., or as any representative of such
firm may otherwise direct.
The parties hereby irrevocably and unconditionally consent to submit to the
nonexclusive jurisdiction of the courts of the Southern District of New York and
of the United States of America located in the Southern District of New York
with respect to any actions, suits or proceedings arising out of or relating to
this agreement and the transactions contemplated hereby, and further agree that
service of any process, summons, notice or document by U.S. registered mail to
the respective addresses set forth on the signature page of this agreement shall
be effective service of process for any action, suit or proceeding brought
against the parties in any such court. The parties hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this agreement or the transactions contemplated
hereby, in the courts of the Southern District of New York and of the United
States of America located in the Southern District of New York, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
This agreement is for the benefit of the Company and its directors, officers,
employees, representatives and agents and their respective successors and
assigns and will be governed by and construed in accordance with the laws of the
State of New York.
This agreement and any and all obligations of the parties hereunder shall
terminate and be of no further force or effect on the earlier of (i) the date on
which a possible transaction with the Company and you or your affiliates is
consummated and (ii) one year following the date of this letter agreement.
Very truly yours,
WCI COMMUNITIES, INC.
By: /s/ Vivien Hastings, Senior Vice President
------------------------------------------
WCI Communities, Inc.
Address:
Confirmed and Agreed to:
ICAHN ASSOCIATES CORP.
By: /s/ Edward E. Mattner, Treasurer
--------------------------------
Date: _____________________
Address:
767 Fifth Avenue, 47th Floor
New York, NY 10153
Fax: (212) 688-1158
Attn: General Counsel