EXHIBIT 1
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AGREEMENT
This AGREEMENT, dated as of August 20, 2007 (the "Agreement"), is by and
among WCI Communities, Inc., a Delaware corporation (the "Company"), and Icahn
Partners LP, a Delaware limited partnership, Icahn Partners Master Fund LP, a
Delaware limited partnership, and High River Limited Partnership, a Delaware
limited partnership (collectively, the "Icahn Parties", and together with the
Company, the "parties").
W I T N E S S E T H:
WHEREAS, the Icahn Parties are the beneficial owners of shares of common
stock, par value $0.01 per share, of the Company (the "Common Stock");
WHEREAS, the Company has agreed that at the Company's 2007 annual meeting
of shareholders (the "2007 Annual Meeting") it will cause the Board of Directors
of the Company (the "Board") to nominate for election as a member of the Board
and recommend that the shareholders of the Company vote to elect as directors of
the Company (each, a "Director"), each of the Incumbent Nominees (as defined
herein), the Icahn Nominees (as defined herein) and the Other Stockholders
Nominees (as defined herein), and solicit proxies from the shareholders of the
Company to effect the foregoing; and
WHEREAS, in consideration of the agreements of the Company and the Icahn
Parties set forth herein, among other matters, the Icahn Parties have agreed as
set forth herein to vote for the election of each of the Incumbent Nominees, the
Icahn Nominees and the Other Stockholders Nominees, at the 2007 Annual Meeting
and 2008 annual meeting of shareholders of the Company (the "2008 Annual
Meeting"), in each case as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows: ARTICLE I DEFINITIONS
Section 1.1 Certain Defined Terms. For purposes of this Agreement, the
following terms have the respective meanings set forth below:
"2007 Annual Meeting" shall have the meaning set forth in the Recitals.
"2008 Annual Meeting" shall have the meaning set forth in the Recitals.
"2009 Annual Meeting" shall mean the 2009 annual meeting of shareholders of
the Company.
"Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated by
the Securities and Exchange Commission (the "SEC") under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). Neither the Company
nor the Icahn Parties shall be deemed to be Affiliates of each other as a
result of their execution of this Agreement.
"Agreement" shall have the meaning set forth in the Preamble.
"Beneficial owner" and "Beneficially own" shall have the same meanings as
set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act,
except that a person shall also be deemed to be the beneficial owner of all
shares of Common Stock which such person has the right to acquire pursuant
to the exercise of any rights in connection with any securities or any
agreement, regardless of when such rights may be exercised and whether they
are conditional.
"Board" shall have the meaning set forth in the Recitals.
"Company" shall have the meaning set forth in the Preamble.
"Common Stock" shall have the meaning set forth in the Recitals.
"Continuing Incumbent Director" shall mean an Incumbent Nominee or any
Director approved or nominated for election or elected to the Board with
the approval of the majority of (i) the Incumbent Nominees who were members
of the Board at the time of such nomination or election and (ii) any
replacement Directors of such Incumbent Nominees pursuant to this
Agreement.
"Director" shall have the meaning set forth in the Recitals.
"Icahn Nominating Committee" shall mean a committee of the Board comprised
of the Icahn Nominees that are members of the Board, as it is comprised
from time to time.
"Icahn Nominees" shall mean Carl C. Icahn, Keith Meister and David
Schechter or, if prior to the 2009 Annual Meeting any of such persons is
unable or unwilling to serve, any substitute selected by the Icahn Parties
prior to the 2007 Annual Meeting and selected by the Icahn Nominating
Committee thereafter.
"Icahn Parties" shall have the meaning set forth in the Preamble.
"Incumbent Nominating Committee" shall mean a committee of the Board
comprised of the Continuing Incumbent Directors that are members of the
Board, as it is comprised from time to time.
"Incumbent Nominees" shall mean Don E. Ackerman, Charles E. Cobb and
Hilliard M. Eure, III, or, if prior to the 2007 Annual Meeting any of such
persons is unable or unwilling to serve, any substitute selected by the
Board prior to such meeting.
"Other Stockholders Nominating Committee" shall mean a committee of the
Board comprised of the Other Stockholders Nominees that are members of the
Board, as it is comprised from time to time.
"Other Stockholders Nominees" shall mean Craig Thomas and Nick Graziano,
selected by S.A.C. Capital Advisors, LLC and Sandell Asset Management
Corp., respectively, and Jonathan R. Macey, selected by the mutual
agreement of the Company and the Icahn Parties, or, if prior to the 2007
Annual Meeting any of such persons is unable or unwilling to serve, any
substitute selected by S.A.C. Capital Advisors, LLC, Sandell Asset
Management Corp. and the mutual agreement of the Company and the Icahn
Parties, respectively, and, in the case of any such substitute selected by
S.A.C. Capital Advisors, LLC or Sandell Asset Management Corp., approved by
the Company and the Icahn Parties (such approval not to be unreasonably
withheld or delayed) prior to such meeting; provided, that if either of
S.A.C. Capital Advisors, LLC or Sandell Asset Management Corp. do not
select any such substitute, such substitute shall be selected by the mutual
agreement of the Company and the Icahn Parties.
"Parties" shall have the meaning set forth in the Preamble.
"Shares" shall have the meaning set forth in Section 2.3.
"Waivers" shall have the meaning set forth in Section 2.1.
ARTICLE II
REPRESENTATIONS
Section 2.1 Authority; Binding Agreement. The Company hereby
represents and warrants that (i) this Agreement has been approved and
authorized (by the unanimous vote of all members of the Board in attendance
at the Board meeting approving and authorizing this Agreement) and has been
duly authorized, executed and delivered by the Company, and is a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to creditors' rights generally, and any equitable
remedies, (ii) the Company has obtained waivers, in form and substance
satisfactory to the Icahn Parties, from KeyBank National Association, Bank
of America, N.A., and Wachovia Bank National Association, each as
administrative agent for the respective lenders (collectively, the
"Waivers"), providing that this Agreement and the transactions contemplated
herein do not trigger a "change of control" or other similar provision in
the Senior Term Loan Agreement, dated as of December 23, 2005, the Senior
Unsecured Revolving Credit Agreement, dated as of June 13, 2006, and the
Third Consolidated Amended and Restated Revolving Credit Construction Loan
Agreement, dated September 22, 2005, respectively, in each case, among the
Company and the lender parties thereto, and such waivers have been
delivered to the Icahn Parties and are in full force and effect and (iii)
the Board (by unanimous vote of the members of Board in attendance at the
applicable Board meeting) has amended the Rights Agreement, dated as of
January 30, 2007, as amended (the "Rights Agreement"), to provide that the
applicable percentage in the definition of Acquiring Person (as defined in
the Rights Agreement) is changed from 15% to 25% and to provide that any
increase in percentage of Beneficial Ownership (as defined in the Rights
Agreement) resulting from issuances by the Company in which all
shareholders have the opportunity to participate shall be excluded from the
determination of whether such a participating shareholder is an Acquiring
Person, and such amendment is in form and substance satisfactory to the
Icahn Parties, has been delivered to the Icahn Parties and is in full force
and effect and has not been modified or further amended. The Icahn Parties
represent and warrant that this Agreement has been duly authorized,
executed and delivered by the Icahn Parties and is a valid and binding
obligation of the Icahn Parties, enforceable against the Icahn Parties in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to creditors' rights generally, and any equitable
remedies. Each of the parties hereto represents and warrants that the
execution, delivery and performance of this Agreement by such party does
not and will not violate or conflict with (i) any law, rule, regulation,
order, judgment or decree applicable to such person or (ii) result in any
breach or violation of or constitute a default under or pursuant to any
organizational document of such party.
Section 2.2 Governmental Approval. Except for such filings as may be
required by the rules promulgated by the SEC, each of the parties hereto
represents and warrants that no consent, approval, authorization, license
or clearance of, or filing or registration with, or notification to, any
court, legislative, executive or regulatory authority or agency is required
in order to permit any party to this Agreement to perform such party's
obligations under this Agreement, except for such as have been obtained.
ARTICLE III
COVENANTS
Section 3.1 Directors.
(a) The Board has duly adopted a resolution providing that immediately
prior to the 2007 Annual Meeting, the size of the Board shall be decreased
to 9 members, and such resolution is in full force and effect and shall not
be rescinded or modified. A true and correct copy of such resolution has
been provided to the Icahn Parties. From and after the date hereof until
the completion of the 2007 Annual Meeting, the Company shall take no other
action to (i) otherwise change the size (whether by increase or decrease)
of the Board, other than as contemplated herein, (ii) amend, in any
respect, the certificate of incorporation or bylaws of the Company, other
than as contemplated herein, (iii) issue any of its securities to any
person, other than pursuant to the Company's employee benefits and/or
incentive plans or agreements existing as of the date hereof, in each case,
in the ordinary course of business and consistent with past practice, (iv)
make any change to its capital structure, (v) amend the Rights Plan in any
respect, other than as contemplated herein, or (vi) enter into any
agreement to do any of the foregoing, in each case, without the prior
written consent of the Icahn Parties, which consent shall not be
unreasonably withheld, conditioned or delayed. The Board has also duly
adopted a resolution nominating each of the Incumbent Nominees, the Icahn
Nominees and the Other Stockholders Nominees, for election to the Board at
the 2007 Annual Meeting and directing the Company and its officers and
agents to solicit votes for the election of each of the Incumbent Nominees,
the Icahn Nominees and the Other Stockholders Nominees in the same manner,
and such resolution has not been rescinded or modified. A true and correct
copy of such resolution has been provided to the Icahn Parties. The Board
has duly adopted a resolution in which it recommends to the Company's
shareholders that they vote for each of the Incumbent Nominees, the Icahn
Nominees and the Other Stockholders Nominees as Directors of the Company at
the 2007 Annual Meeting and directing that the Company include this
recommendation in its proxy materials (as amended or supplemented) for the
2007 Annual Meeting, and such resolution has not been rescinded or
modified. A true and correct copy of such resolution has been provided to
the Icahn Parties. The Company shall cause the proxy used for the 2007
Annual Meeting to solicit authority to vote for each of the Incumbent
Nominees, the Icahn Nominees and the Other Stockholders Nominees at the
2007 Annual Meeting. The Company shall use commercially reasonable efforts
to solicit proxies in favor of the election of each of the Incumbent
Nominees, the Icahn Nominees and the Other Stockholders Nominees at the
2007 Annual Meeting. Such nomination, recommendation and solicitation shall
be effected in a reasonable manner and shall be undertaken for each such
nominee in the same manner. The Icahn Parties will provide, as promptly as
reasonably practicable, all information relating to the Icahn Nominees (and
other information, if any) to the extent the Icahn Parties are advised by
their legal counsel that such information is required under applicable law
to be included in the Company's proxy statement and any other solicitation
materials to be delivered to its shareholders in connection with the 2007
Annual Meeting or as may be reasonably requested by the Company. To the
extent possible, the Company's proxy statement and/or soliciting materials
for the 2007 Annual Meeting shall contain the same type of information
concerning the Icahn Nominees and the Other Stockholders Nominees as
provided for the Incumbent Nominees. Notwithstanding anything herein to the
contrary, if at any time prior to the 2007 Annual Meeting, the Board
becomes aware of any fact with respect to any one or more of the Incumbent
Nominees, the Icahn Nominees or the Other Stockholders Nominees that would
be required to be disclosed in the Company's proxy materials (as amended or
supplemented) under the Exchange Act and the applicable rules and
regulations thereof and which fact is not contained in the Company's proxy
materials (as amended or supplemented), the Company shall immediately
notify the Icahn Parties thereof and shall promptly amend or supplement the
Company's proxy materials (as amended or supplemented) as may be required
by the Exchange Act and the applicable rules and regulations thereof.
(b) If, prior to the 2009 Annual Meeting, any of the Icahn Nominees
once elected at the 2007 Annual Meeting or the 2008 Annual Meeting, as
applicable, resigns from the Board or ceases to serve as a Director, then
the Icahn Nominating Committee (and no other person, group or entity) shall
select a replacement Director to fill the vacancy on the Board and the
Icahn Nominating Committee created thereby and shall nominate such
replacement Director at the 2008 Annual Meeting, if applicable, and the
Company shall take any and all action to fill such vacancy with such
replacement Director and the Company shall take any and all action to
nominate such replacement Director at the 2008 Annual Meeting, or, subject
to the rights of the Icahn Nominating Committee described above, to
promptly appoint such replacement director if such vacancy exists after (i)
the 2007 Annual Meeting and before the 2008 Annual Meeting or (ii) the 2008
Annual Meeting and before the 2009 Annual Meeting, if applicable. If, prior
to the 2009 Annual Meeting, any Incumbent Nominee once elected at the 2007
Annual Meeting or Continuing Incumbent Director elected at the 2008 Annual
Meeting, as the case may be, resigns from the Board or ceases to serve as a
Director, then the Incumbent Nominating Committee (and no other person,
group or entity) shall select a replacement Director to fill the vacancy on
the Board and the Incumbent Nominating Committee created thereby and shall
nominate such replacement Director at the 2008 Annual Meeting, as
applicable, and the Company shall take any and all action to fill such
vacancy with such replacement Director and the Company shall take any and
all action to nominate such replacement Director at the 2008 Annual
Meeting, or, subject to the rights of the Incumbent Nominating Committee
described above, to promptly appoint such replacement director if such
vacancy exists after (i) the 2007 Annual Meeting and before the 2008 Annual
Meeting or (ii) the 2008 Annual Meeting and before the 2009 Annual Meeting,
if applicable. If, prior to the 2009 Annual Meeting, any one or more of the
Other Stockholders Nominees once elected at the 2007 Annual Meeting resigns
from the Board or ceases to serve as a Director, then the Other
Stockholders Nominating Committee (and no other person, group or entity)
shall select a replacement Director to fill the vacancy on the Board and
the Other Stockholders Nominating Committee created thereby and shall
nominate such replacement Director at the 2008 Annual Meeting, as
applicable, and the Company shall take any and all action to fill such
vacancy with such replacement Director and the Company shall take any and
all action to nominate such replacement Director at the 2008 Annual
Meeting, or, subject to the rights of the Other Stockholders Nominating
Committee described above, to promptly appoint such replacement director if
such vacancy exists after (i) the 2007 Annual Meeting and before the 2008
Annual Meeting or (ii) the 2008 Annual Meeting and before the 2009 Annual
Meeting, if applicable; provided, that each of the Icahn Nominating
Committee and the Incumbent Nominating Committee shall have approved any
such replacement director(s) by by majority vote of each such committee;
provided, further, that if the Icahn Nominating Committee and the Incumbent
Nominating Committee do not so approve of any such person(s) within one (1)
month after receipt of the name of the proposed person(s) in accordance
with the foregoing proviso, in lieu of the approval right of the Icahn
Nominating Committee and the Incumbent Nominating Committee, the entire
Board of Directors shall have the right to approve of such person(s) by
majority vote. The Company shall take any and all action to nominate such
replacement Director at the 2008 Annual Meeting, or, subject to the rights
of the Other Stockholders Nominating Committee described above, to promptly
appoint such replacement director if such vacancy exists after (i) the 2007
Annual Meeting and before the 2008 Annual Meeting or (ii) the 2008 Annual
Meeting and before the 2009 Annual Meeting, if applicable. From the date
hereof until immediately following the completion of the 2008 Annual
Meeting, the Company shall not oppose or direct, directly or indirectly,
any other shareholder to oppose the Continuing Incumbent Directors, the
Icahn Nominees or the Other Stockholders Nominees for election at the 2007
Annual Meeting or the 2008 Annual Meeting or nominate or direct, directly
or indirectly, any other shareholder to nominate any person for election as
director at the 2007 Annual Meeting or the 2008 Annual Meeting other than
the Incumbent Nominees, the Icahn Nominees and the Other Stockholders
Nominees.
(c) Prior to the completion of the 2007 Annual Meeting, the Company
shall not modify any of the current policies applicable to Directors of the
Company. Promptly following the date of this Agreement, but in no event
later than four (4) business days following the date of this Agreement, the
Company shall publicly disclose (in its earnings call or otherwise in a
manner reasonably satisfactory to the Icahn Parties) the information set
forth on Annex A, which consists of any and all non-public information
concerning the Company that prior to the date of such public disclosure has
been made available by or on behalf of the Company to the Icahn Parties or
any of their affiliates, representatives, advisors, or financing sources,
including without limitation, via access to the Company's data room site
established in connection with the Company's recent auction process, that
constitutes material non-public information concerning the Company.
(d) Promptly following the 2007 Annual Meeting, a majority of the
Board shall appoint the Chairman and Vice Chairman of the Board and the
members of the various committees of the Board.
(e) Each committee of the Board (other than each of the Icahn
Nominating Committee and the Other Stockholders Nominating Committee) will
include at least one member who is an Incumbent Nominee.
(f) From and after the completion of the 2007 Annual Meeting and until
immediately prior to the 2009 Annual Meeting, the Company shall not take
any action to increase or decrease the size of the Board without the
affirmative vote of 88.88% of the authorized number of Directors.
(g) The Company shall cause the 2007 Annual Meeting to be held on
August 30, 2007. The Company shall not postpone or adjourn the 2007 Annual
Meeting, or change the record date thereof, without the prior written
consent of the Icahn Parties. The Company shall not place any item on the
agenda for consideration at the 2007 Annual Meeting (other than the
election of directors and the ratification of the appointment of the
Company's independent registered public accounting firm for 2007) without
the prior written consent of the Icahn Parties.
Section 3.2 Voting Provisions.
(a) From the date hereof until immediately following the 2008 Annual
Meeting, the Icahn Parties shall, and shall cause their Affiliates to, not
oppose or direct, directly or indirectly, any other shareholder to oppose
the Incumbent Nominees for election at the 2007 Annual Meeting or 2008
Annual Meeting or nominate or direct, directly or indirectly, any other
shareholder to nominate any person for election as director at the 2007
Annual Meeting or 2008 Annual Meeting other than the Incumbent Nominees,
the Icahn Nominees and the Other Stockholders Nominees (and the Icahn
Parties will withdraw its slate of directors in the existing proxy contest
with the Company in connection with the 2007 Annual Meeting). Each of the
Icahn Parties will, or will cause the record holder or record holders of
all shares of Common Stock beneficially owned by the Icahn Parties and
their Affiliates to, vote all such shares of the Common Stock as to which
the Icahn Parties and their Affiliates have the right to vote at each of
the 2007 Annual Meeting and the 2008 Annual Meeting, to be present for
quorum purposes and to be voted, at each of the 2007 Annual Meeting and
2008 Annual Meeting or at any adjournments or postponements thereof, in
favor of each of the Incumbent Nominees, the Icahn Nominees and the Other
Stockholders Nominees and against any other shareholder nominations which
are not approved by the Board; provided, that the Icahn Parties shall not
be required to comply with this Section 3.2(a) in the event the Company is
subject to a proxy contest by a third party (including S.A.C. Capital
Advisors, LLC and Sandell Asset Management Corp., and any other third
party, but excluding the Icahn Parties or any Affiliate thereof) seeking to
replace the Icahn Nominees or that would have the effect, if successful, of
decreasing below 1/3 the percentage of the Icahn Nominee's representation
on the Board.
(b) Notwithstanding anything herein to the contrary, the Icahn Parties
shall have no obligations under Section 3.1 or this Section 3.2 if (i) any
of the Company's representations set forth in Section 2.1 are not true and
correct (or were not true and correct when made) or (ii) any of the
Continuing Incumbent Directors do not (A) nominate and support each of the
Continuing Incumbent Directors, the Icahn Nominees and the Other
Stockholders Nominees for election at the 2007 Annual Meeting and the 2008
Annual Meeting, (B) vote, at any meeting of the Board or pursuant to any
written consent in lieu of a meeting of the Board, to direct the Company
and its officers and agents to solicit votes for the election of each of
the Incumbent Nominees, the Icahn Nominees and the Other Stockholders
Nominees at the 2007 Annual Meeting and the 2008 Annual Meeting and (C)
recommend that the shareholders of the Company vote to elect as directors
of the Company each of the Continuing Incumbent Nominees, the Icahn
Nominees and the Other Stockholders Nominees for election at the 2007
Annual Meeting and the 2008 Annual Meeting.
Section 3.3 Additional Undertakings by the Company. The Company shall,
simultaneously with the execution of this Agreement, by action of the
Board, amend the Company's by-laws, in form and substance satisfactory to
the Icahn Parties, to (i) provide that from the date of the 2007 Annual
Meeting until the date of the 2009 Annual Meeting, in addition to any
applicable laws, and except as otherwise provided in this Agreement, the
affirmative vote of 88.88% of the authorized number of Directors shall be
required to increase or decrease the size of the Board; (ii) establish the
Icahn Nominating Committee of the Board, the Incumbent Nominating Committee
of the Board and the Other Stockholders Nominating Committee of the Board
and delegate to the Icahn Nominating Committee, the Incumbent Nominating
Committee and the Other Stockholders Nominating Committee, respectively,
the power and the authority to (A) fill any vacancies created in the Board
and such committee resulting from the resignation or other cessation in
service of any Icahn Nominee, any Continuing Incumbent Director, or any
Other Stockholders Nominee, respectively, in each case, at any time and
from time to time prior to the 2009 Annual Meeting, and (B) nominate for
Director any Icahn Nominee, Continuing Incumbent Director or Other
Stockholders Nominee, respectively, in each case at the 2008 Annual
Meeting; and (iii) provide that the foregoing provisions of the Company's
by-laws can only be amended by the Board and by the affirmative vote of
88.88% of the authorized number of Directors.
Section 3.4 Publicity. Promptly following the execution of this
Agreement, the Company and the Icahn Parties shall prepare and issue a
joint press release in the form attached hereto as Annex B. Thereafter,
except as required by applicable law (as such parties are advised by their
legal counsel), the Company and the Icahn Parties shall use their
reasonable efforts to consult with each other before issuing any press
release or otherwise making any public statement about the execution or
terms of this Agreement.
ARTICLE IV
OTHER PROVISIONS
Section 4.1 Remedies.
(a) Each party hereto hereby acknowledges and agrees that irreparable
harm would occur in the event any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
specific relief hereunder, including, without limitation, an injunction or
injunctions to prevent and enjoin breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in
the Court of Chancery or any federal court in the State of Delaware, in
addition to any other remedy to which they may be entitled at law or in
equity. Any requirements for the securing or posting of any bond with such
remedy are hereby waived.
(b) Each party hereto hereby acknowledges and agrees that any actions,
suits or proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby will be brought solely and exclusively in
the Court of Chancery or any federal court in the State of Delaware (and
the parties agree not to commence any action, suit or proceeding relating
thereto except in such courts), and further agrees that service of any
process, summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 4.4 will be effective service of
process for any such action, suit or proceeding brought against any party
in any such court. Each party, on behalf of itself and its Affiliates and
Associates, irrevocably and unconditionally waives 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 Court of Chancery
or federal courts in the State of Delaware, and hereby further irrevocably
and unconditionally waives and agrees 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 improper or inconvenient forum.
(c) Nothing in this Article IV shall prevent any of the parties hereto
from enforcing its rights under this Agreement or shall impose any
limitation on any of the parties or their respective past, present or
future general partners, Directors, officers, or employees in defending any
claim, action, cause of action, suit, administrative action or proceeding
of any kind, including, without limitation, any federal, state or other
governmental proceeding of any kind, against any of them. The rights and
remedies provided in this Agreement are cumulative and do not exclude any
rights or remedies provided by law.
Section 4.2 Amendments; Termination. Notwithstanding anything herein
to the contrary, both of the Company and the Icahn Parties agree that no
amendment or modification may be made to this Agreement, and this Agreement
may not be terminated, in each case, unless approved in writing by both of
the Company and the Icahn Parties; provided, however, that the approval by
a majority of the Board (which majority shall include a majority of the
Continuing Incumbent Directors) shall be required to approve any of the
foregoing on behalf of the Company; and provided, further, that this
Agreement shall immediately terminate and be of no further force or effect
if the Icahn Nominees and the Other Stockholders Nominees are not elected
to the Board at the 2007 Annual Meeting or do not constitute, collectively,
2/3 of the members of the Board immediately following the 2007 Annual
Meeting, other than as a result of such nominees refusing to stand for
election at the 2007 Annual Meeting.
Section 4.3 Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof. The
parties hereto may not amend or modify this Agreement except in such manner
as may be agreed upon by a written instrument executed by all of the
parties hereto, provided that such amendment or modification is in
accordance with Section 4.2. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any right, power or privilege.
Section 4.4 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal
process in regard hereto shall be in writing and delivered (i) personally
during normal business hours, (ii) by overnight courier or (iii) facsimile
(with a PDF or other copy by electronic mail), and shall be deemed duly
given on the date of delivery. All notices hereunder shall be delivered as
set forth below, or pursuant to such other instructions as may be
designated in writing by the party to receive such notice.
If to the Company: WCI Communities, Inc.
24301 Walden Center Drive
Bonita Springs, Florida 34134
Attention: Vivien Hastings, Esq.
Fax: (239) 498-8277
Email: vivienhastings@wcicommunities.com
with a copy to: Simpson Thacher & Bartlett LLP
425 Lexington Ave.
New York, New York 10017
Attention: Mario A. Ponce, Esq.
Avrohom J. Kess, Esq.
Fax: (212) 455-2502
Email: mponce@stblaw.com
akess@stblaw.com
If to the Icahn Parties: Icahn Capital Management LP
c/o Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
Attention: General Counsel
Fax: 212-688-1158
Email: mweitzen@sfire.com
Section 4.5 Severability. If any terms, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated; provided, that the parties use their best efforts to agree
upon and substitute a valid and enforceable term, provision, covenant or
restriction for any of such that is held invalid, void or enforceable by a
court of competent jurisdiction.
Section 4.6 Expenses. In the event of any litigation among any of the
parties hereto concerning this Agreement or the transactions contemplated
hereby, the prevailing party in such litigation shall be entitled to
reimbursement from the party opposing such prevailing party of all
reasonable attorneys' fees and costs incurred in connection therewith.
Except as provided in the preceding sentence, all costs and expenses
incurred in connection with this Agreement, including in connection with
the 2007 Annual Meeting, shall be paid by the party incurring such cost or
expense.
Section 4.7 Term. Unless earlier terminated in accordance with Section
4.2, this Agreement shall remain in full force and effect from the date
hereof until immediately prior to the 2009 Annual Meeting and shall
thereafter terminate and be of no further force or effect.
Section 4.8 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware, without regard to any conflict of laws provisions thereof.
Section 4.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that no party may assign,
delegate or otherwise transfer any of its obligations under this Agreement
without the prior written consent of the other parties hereto.
Section 4.10 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement,
or caused the same to be executed by its duly authorized representative as of
the date first above written.
WCI COMMUNITIES, INC.
/s/ Jerry Starkey
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Name: Jerry Starkey
Title: CEO
[Agreement Signature Page]
ICAHN PARTNERS LP
/s/ Keith A. Meister
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Name: Keith A. Meister
Title: Managing Director
ICAHN PARTNERS MASTER FUND LP
/s/ Keith A. Meister
--------------------
Name: Keith A. Meister
Title: Managing Director
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC,
its general partner
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory