SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[ ] Definitive Proxy Statement
[X] 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:
On August 20, 2007, Carl Icahn and certain of his affiliates terminated
their solicitation of proxies in connection with the election of directors to
the Board of Directors (the "Board") of WCI Communities, Inc. ("WCI") at WCI's
2007 Annual Meeting of Stockholders (the "2007 Annual Meeting"), pursuant to an
agreement (the "Agreement"), by and among WCI and Icahn Partners LP, Icahn
Partners Master Fund LP and High River Limited Partnership (collectively, the
"Icahn Parties").
Pursuant to the Agreement, (i) the Board has duly adopted a resolution
providing that immediately prior to the 2007 Annual Meeting the size of the
Board will be decreased from ten to nine members, (ii) the Icahn Parties have
agreed to withdraw their slate of directors in the existing proxy contest with
WCI in connection with the 2007 Annual Meeting and (iii) WCI will nominate for
election and approve at the 2007 Annual Meeting Don E. Ackerman, Charles E.
Cobb, Jr. and Hilliard M. Eure, III, who currently serve on the WCI Board
(collectively and together with their successors, the "Incumbent Nominees"), as
well as three candidates designated by the Icahn Parties, Carl C. Icahn, Keith
Meister and David Schechter (collectively and together with their successors,
the "Icahn Nominees"). In addition, WCI and the Icahn Parties have agreed to
nominate and approve Craig W. Thomas, a Portfolio Manager at S.A.C. Capital
Advisors, LLC, Nick Graziano, a Managing Director of Sandell Asset Management
Corp., and Yale Law professor Jonathan R. Macey (collectively and together with
their successors, the "Other Stockholders Nominees"), each of whom will be
nominated and approved for election as directors by WCI for election at the 2007
Annual Meeting. The Agreement also provides that the Icahn Parties will vote in
favor of such nominees at the 2007 Annual Meeting and the 2008 Annual Meeting of
Stockholders, unless WCI is subject to a proxy contest by a third party
seeking to replace the Icahn Nominees or that would have the effect, if
successful, of decreasing below 1/3, the percentage of the Icahn Nominees'
representation on the Board.
Also, pursuant to the Agreement, WCI has amended its poison pill to raise
the trigger of the pill from 15% to 25% (and to exclude therefrom securities,
including convertible securities, purchased from WCI pursuant to an offering by
WCI to all of its stockholders).
In addition, pursuant to the Agreement, WCI has amended its Third Amended
and Restated By-laws (the "By-laws") to provide, among other things, that from
the date of the 2007 Annual Meeting until immediately prior to the date of WCI's
2009 Annual Meeting of Stockholders (the "2009 Annual Meeting"), the affirmative
vote of 88.88% of the authorized number of directors will be required to
increase or decrease the size of the Board. The amendment to the Bylaws also
established three nominating committees comprised of the Incumbent Nominees, the
Icahn Nominee and the Other Stockholders Nominees that are from time to time
members of the Board, and their successors, as applicable, with the exclusive
power and the authority, from August 31, 2007 to the date immediately prior to
the date of the 2009 Annual Meeting, (i) to each nominate three (3) persons for
election as directors at WCI's 2008 Annual Meeting of Stockholders, and (ii) to
fill any vacancies created in the Board and such committee resulting from the
resignation or other cessation in service of any Incumbent Nominee, Icahn
Nominee or Other Stockholders Nominee, respectively. These amended provisions of
the Bylaws can be amended by the Board only by the affirmative vote of 88.88% of
the total authorized number of directors. The Board of Directors, and not any
committee thereof, will have the power to select the nominees for the management
slate of directors for election at the 2009 Annual Meeting. In addition, the
supermajority voting provisions of the By-laws described above will terminate
prior to the 2009 Annual Meeting.
WCI has also agreed, pursuant to the Agreement, that promptly following
August 20, 2007, but in no event later than four (4) business days following
August 20, 2007, WCI will publicly disclose (in its earnings call or otherwise
in a manner reasonably satisfactory to the Icahn Parties) any and all non-public
information concerning WCI that prior to the date of such public disclosure has
been made available by or on behalf of WCI to the Icahn Parties or any of their
affiliates, representatives, advisors, or financing sources, including without
limitation, via access to WCI's data room site established in connection with
WCI's recent auction process, that constitutes material non-public information
concerning WCI. WCI has advised that all of such information will be posted on
WCI's website promptly following its second quarter earnings release date, which
WCI has previously announced is scheduled for August 22, 2007. Accordingly, any
person wishing to view any such information should visit WCI's website at
www.wcicommunities.com after August 22, 2007.
The Agreement will terminate immediately before the 2009 Annual Meeting, or
immediately following the 2007 Annual Meeting if the Icahn Nominees and the
Other Stockholders Nominees are not elected to the Board or do not constitute
two-thirds of the members of the Board.
WCI and the Icahn Parties issued a joint press release (the "Press
Release") in connection with the foregoing. Copies of each of the Agreement and
the Press Release are filed as Exhibit 1 and Exhibit 2 hereto, respectively, and
each is incorporated herein by reference. Any descriptions herein of the
Agreement or the Press Release are qualified in their entirety by reference to
the Agreement and the Press Release, respectively, filed herewith.
Representatives of the Reporting Persons have expressed to WCI, during
discussions about settling the proxy contest, an interest in exploring the
possibility of WCI making a rights offering to all WCI's stockholders and using
all or a portion of the proceeds of the offering to reduce WCI's senior debt.
The Reporting Persons believe that this may help strengthen WCI's balance sheet
during current difficult economic conditions and which could position WCI to
take advantage of market conditions when they improve, especially given that
WCI's amended agreements with its senior lenders constrain, among other things,
permitted housing inventory, and increases its cost of carrying such senior
loans. However, the Reporting Persons made no firm determination as to the type
of security which would be offered or whether a rights offering should in fact
be made. Reporting Persons do expect that if the Icahn Nominees are elected to
the Board, they will, subject to their fiduciary duties, raise the subject at a
Board meeting.
SECURITY HOLDERS ARE ADVISED TO READ THE DEFINITIVE PROXY STATEMENT, AS AMENDED,
RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN AND CERTAIN OF HIS
AFFILIATES FROM THE STOCKHOLDERS OF WCI COMMUNITIES, INC. FOR USE AT ITS ANNUAL
MEETING BECAUSE IT CONTAINS IMPORTANT INFORMATION, INCLUDING INFORMATION
RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. THE AMENDED DEFINITIVE
PROXY STATEMENT AND A FORM OF PROXY ARE AVAILABLE AT NO CHARGE AT THE SECURITIES
AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV.