-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NpRp6yMrwf4JOS48YoOZZfYflrPMF9SYExTvEh0fQsNH3OYPc+u3ghYneSNotW9Y df/8kL0O7bu40ZeTIyq73w== 0000928475-07-000135.txt : 20070511 0000928475-07-000135.hdr.sgml : 20070511 20070511172616 ACCESSION NUMBER: 0000928475-07-000135 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20070511 DATE AS OF CHANGE: 20070511 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WCI COMMUNITIES INC CENTRAL INDEX KEY: 0001137778 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 592857021 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78427 FILM NUMBER: 07843387 BUSINESS ADDRESS: STREET 1: 24301 WALDEN CENTER DRIVE STREET 2: SUITE 300 CITY: BONITA SPRINGS STATE: FL ZIP: 34134 BUSINESS PHONE: 2394988605 MAIL ADDRESS: STREET 1: 24301 WALDEN CENTER DR CITY: BONITA SPRINGS STATE: FL ZIP: 34134 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WCI COMMUNITIES INC CENTRAL INDEX KEY: 0001137778 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 592857021 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78427 FILM NUMBER: 07843388 BUSINESS ADDRESS: STREET 1: 24301 WALDEN CENTER DRIVE STREET 2: SUITE 300 CITY: BONITA SPRINGS STATE: FL ZIP: 34134 BUSINESS PHONE: 2394988605 MAIL ADDRESS: STREET 1: 24301 WALDEN CENTER DR CITY: BONITA SPRINGS STATE: FL ZIP: 34134 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C ET AL CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 BUSINESS PHONE: 2127024300 MAIL ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 SC TO-T/A 1 schtota051007.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------- SCHEDULE TO/A Tender Offer Statement Under Section 14(d)(1) or 13(e)(1) of the Securities Exchange Act of 1934 (Amendment No. 1) -------------------------- WCI COMMUNITIES, INC. (Name of Subject Company (Issuer)) 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 (Names of Filing Persons (Offerors)) Common Stock, Par Value $.01 (Title of Class of Securities) 92923C104 (CUSIP Number of Class of Securities) Marc Weitzen, Esq. General Counsel Icahn Associates Corp. & affiliated companies 767 Fifth Avenue, 47th Floor New York, New York 10153 (212) 702-4388 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on behalf of Filing Persons) CALCULATION OF FILING FEE TRANSACTION VALUATION(1) AMOUNT OF FILING FEE(2) $789,302,954 $157,860.60 - ------------------------- (1) Estimated solely for the purpose of calculating the fee in accordance with the Rule 0-11 of the Securities Exchange Act of 1934. (2) The amount of the fee is based upon the product of 35,877,407 shares of common stock of WCI Communities, Inc. at a price of $22.00 per share. |X| Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount Previously Paid: $157,860.60 Form or Registration No.: Schedule TO-T Filing Party: Icahn Partners LP, Icahn Date Filed: March 23, 2007 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. and Carl C. Icahn |_| Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: |X| third-party tender offer subject to Rule 14d-1. |_| issuer tender offer subject to Rule 13e-4. |_| going-private transaction subject to Rule 13e-3 |X| amendment to Schedule 13D under Rule 13d-2 Check the following box if the filing is a final amendment reporting the results of the tender offer: |_| COMBINED SCHEDULE TO AND SCHEDULE 13D This Amendment No.1 amends and supplements the Tender Offer Statement on Schedule TO filed on March 23, 2007 (the "Schedule TO"), by Icahn Partners LP, a Delaware limited partnership ("Icahn Partners"), Icahn Partners Master Fund LP, a Cayman Island exempted limited partnership ("Icahn Master"), Icahn Partners Master Fund II L.P., a Cayman Island exempted limited partnership ("Icahn Master II"), Icahn Partners Master Fund III L.P., a Cayman Island exempted limited partnership ("Icahn Master III"), High River Limited Partnership, a Delaware limited partnership ("High River" and collectively with Icahn Partners, Icahn Master, Icahn Master II and Icahn Master III, the "Offeror"), Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore"), CCI Onshore Corp., a Delaware corporation ("CCI Onshore"), Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"), CCI Offshore Corp., a Delaware corporation ("CCI Offshore"), Hopper Investments LLC, a Delaware limited liability company ("Hopper"), Barberry Corp., a Delaware corporation ("Barberry"), and Carl C. Icahn ("Icahn" and collectively with the Offeror, Icahn Onshore, CCI Onshore, Icahn Offshore, CCI Offshore, Hopper and Barberry, the "Filing Persons"), relating to the offer by the Offeror to purchase (i) any and all outstanding shares of common stock, par value $0.01 per share (the "WCI Shares"), of WCI Communities, Inc., a Delaware corporation ("WCI"); and (ii) the associated rights (the "Rights" and together with the WCI Shares, the "Shares") to purchase certain preferred stock issued under 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, net to the seller in cash, without interest, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated March 23, 2007, as amended by the Supplement to Offer to Purchase, dated May 11, 2007, (the "Offer Supplement") and in the related Letter of Transmittal, dated March 23, 2007, including the Instructions thereto, as it may be supplemented or amended from time to time. Capitalized terms used herein and not otherwise defined have the respective meanings ascribed thereto in the Schedule TO. Unless otherwise stated below, the information set forth in the Schedule TO, as amended by this Amendment No. 1, including all schedules and annexes thereto, is hereby expressly incorporated herein by reference in response to Items 1-9 and Item 11 of this Amendment No. 1 to Schedule TO. You should read this Amendment No. 1 to Schedule TO together with the Schedule TO filed March 23, 2007. As permitted by General Instruction G to Schedule TO, this Amendment No. 1 to Schedule TO is also an amendment to the joint statement on Schedule 13D filed on October 28, 2005 by the Filing Persons, as amended by the Schedule TO-C filed on March 13, 2007 by the Filing Persons, and as amended by the Schedule TO filed on March 23, 2007 by the Filing Persons. Item 12. Exhibits Exhibit Description - ----------- ------------------------------------------------------------------- (a)(1)(vii) Supplement to Offer to Purchase,dated May 11, 2007 (filed herewith) CUSIP No. 92923C104 1 NAME OF REPORTING PERSON High River Limited Partnership S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 1,279,725 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,279,725 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,279,725 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.05% 14 TYPE OF REPORTING PERSON* PN CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Hopper Investments LLC S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 1,279,725 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,279,725 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,279,725 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.05% 14 TYPE OF REPORTING PERSON* OO CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Barberry Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 1,279,725 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,279,725 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,279,725 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.05% 14 TYPE OF REPORTING PERSON* CO CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Icahn Partners Master Fund LP S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 1,914,558 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,914,558 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,914,558 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.56% 14 TYPE OF REPORTING PERSON* PN CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Icahn Offshore LP S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 1,914,558 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,914,558 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,914,558 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.56% 14 TYPE OF REPORTING PERSON* PN CUSIP No. 92923C104 1 NAME OF REPORTING PERSON CCI Offshore Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 1,914,558 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,914,558 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,914,558 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.56% 14 TYPE OF REPORTING PERSON* CO CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Icahn Partners LP S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 2,901,892 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 2,901,892 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,901,892 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.91% 14 TYPE OF REPORTING PERSON* PN CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Icahn Onshore LP S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 2,901,892 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 2,901,892 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,901,892 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.91% 14 TYPE OF REPORTING PERSON* PN CUSIP No. 92923C104 1 NAME OF REPORTING PERSON CCI Onshore Corp. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 2,901,892 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 2,901,892 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,901,892 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.91% 14 TYPE OF REPORTING PERSON* CO CUSIP No. 92923C104 1 NAME OF REPORTING PERSON Carl C. Icahn S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / / (b) / / 3 SEC USE ONLY 4 SOURCE OF FUNDS* OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) / / 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH: 7 SOLE VOTING POWER 0 8 SHARED VOTING POWER 6,096,175 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 6,096,175 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,096,175 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / / 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 14.51% 14 TYPE OF REPORTING PERSON* IN SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: May 11, 2007 ICAHN PARTNERS LP By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director ICAHN ONSHORE LP By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director CCI ONSHORE CORP. By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director ICAHN PARTNERS MASTER FUND LP By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director ICAHN PARTNERS MASTER FUND II L.P. By: Icahn Offshore LP, managing general partner By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director ICAHN PARTNERS MASTER FUND III L.P. By: Icahn Offshore LP, managing general partner By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director [Signature page to the Schedule TO Amendment No. 1 Re: Supplement to Offer to Purchase] ICAHN OFFSHORE LP By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director CCI OFFSHORE CORP. By: /s/ Keith A. Meister -------------------- Name: Keith A. Meister Title: Managing Director HIGH RIVER LIMITED PARTNERSHIP By: Hopper Investments LLC, general partner By: Barberry Corp., sole member By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory HOPPER INVESTMENTS LLC By: Barberry Corp., sole member By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory BARBERRY CORP. By: /s/ Edward E. Mattner --------------------- Name: Edward E. Mattner Title: Authorized Signatory [Signature page to the Schedule TO Amendment No. 1 Re: Supplement to Offer to Purchase] /s/ Carl C. Icahn - ----------------- CARL C. ICAHN [Signature page to the Schedule TO Amendment No. 1 Re: Supplement to Offer to Purchase] EXHIBIT INDEX Exhibit Description - ------------ ----------------------------------------------------------------- (a)(1)(i) Offer to Purchase, dated March 23, 2007 (previously filed) (a)(1)(ii) Letter of Transmittal (previously filed) (a)(1)(iii) Notice of Guaranteed Delivery (previously filed) (a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (previously filed) (a)(1)(v) Letter to Clients (previously filed) (a)(1)(vi) Guidelines for Certification of Taxpayer Identification Number (previously filed) (a)(1)(vii) Supplement to Offer to Purchase, dated May 11, 2007 (filed herewith) (a)(5)(i) Summary Advertisement of the Offeror, dated March 23, 2007 (previously filed) EX-99 2 exh99051007.txt SUPPLEMENT TO OFFER TO PURCHASE FOR CASH ANY AND ALL OF THE OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK) OF WCI COMMUNITIES, INC. AT $22.00 NET PER SHARE BY ICAHN PARTNERS LP ICAHN PARTNERS MASTER FUND LP ICAHN PARTNERS MASTER FUND II L.P. ICAHN PARTNERS MASTER FUND III L.P. AND HIGH RIVER LIMITED PARTNERSHIP ---------------------------- - -------------------------------------------------------------------------------- THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MAY 18, 2007, UNLESS THE OFFER IS EXTENDED (THE "EXPIRATION DATE") - -------------------------------------------------------------------------------- IMPORTANT Icahn Partners LP, a Delaware limited partnership, Icahn Partners Master Fund LP, a Cayman Islands exempted limited partnership, Icahn Partners Master Fund II L.P., a Cayman Islands exempted limited partnership, Icahn Partners Master Fund III L.P., a Cayman Islands exempted limited partnership, and High River Limited Partnership, a Delaware limited partnership (collectively, the "Offeror"), hereby supplement and amend their Offer to Purchase, dated March 23, 2007. The Offeror is offering to purchase any and all of the outstanding shares of common stock of WCI Communities, Inc. ("WCI" or the "Company") and the rights to purchase certain preferred stock associated with the shares of common stock issued pursuant to the Rights Agreement, dated as of January 30, 2007 (as amended, the "Rights Agreement"), between WCI and Computershare Trust Company, N.A., as rights agent (the "Rights" and, together with the common stock, the "Shares") for $22.00 per share in cash, upon the terms and subject to the conditions set forth in (i) the Offer to Purchase, dated March 23, 2007, (ii) this Supplement thereto (such Offer to Purchase as amended and supplemented by this Supplement, the "Offer to Purchase") and (iii) the related Letter of Transmittal (which collectively constitute the "Offer"). Unless the context otherwise requires, capitalized terms used in this Supplement but not defined herein shall have the meanings ascribed to them in the Offer to Purchase. As used herein, the term Offeror refers to Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II L.P., Icahn Partners Master Fund III L.P. and High River Limited Partnership, collectively. Accordingly, each of the Offerors is making the Offer collectively. THIS OFFER REFERS TO A POSSIBLE PROXY SOLICITATION. THIS OFFER TO PURCHASE IS NOT INTENDED TO AND DOES NOT CONSTITUTE (I) A SOLICITATION OF A PROXY, CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO THE ANNUAL MEETING OR ANY SPECIAL MEETING OF THE COMPANY'S STOCKHOLDERS OR (II) A SOLICITATION OF A CONSENT OR AUTHORIZATION IN THE ABSENCE OF ANY SUCH MEETING. ANY SUCH SOLICITATION WHICH OFFEROR MAY MAKE WILL BE MADE ONLY PURSUANT TO PROXY OR CONSENT SOLICITATION MATERIALS COMPLYING WITH ALL APPLICABLE REQUIREMENTS OF SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER. SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO SOLICITATION OF PROXIES BY MR. ICAHN AND HIS AFFILIATES FROM THE STOCKHOLDERS OF WCI COMMUNITIES, INC. FOR USE AT ITS ANNUAL MEETING WHEN AND IF THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN ANY SUCH PROXY SOLICITATION. WHEN AND IF COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WHICH WILL BE MAILED TO STOCKHOLDERS OF WCI COMMUNITIES, INC. AND WILL BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV. INFORMATION RELATING TO THE POTENTIAL PARTICIPANTS IN A POTENTIAL PROXY SOLICITATION IS CONTAINED IN EXHIBIT 1 TO THE SCHEDULE 14A FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 2007. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE OFFER, PASSED UPON ITS MERITS OR FAIRNESS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED IN THIS OFFER TO PURCHASE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The Information Agent for the Offer is: MacKenzie Partners, Inc. May 11, 2007 SUMMARY TERM SHEET The response to the question DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT? is hereby amended by adding the following sentence thereto: "The Offeror currently does not have any alternative financing plans." The response to the question ARE THERE ANY CONSEQUENCES OF THE OFFER ON THE INDEBTEDNESS OF THE COMPANY OF WHICH I SHOULD BE AWARE? is hereby amended and restated in its entirety as follows: "o If we become the owner of more than 50% of common stock, including as a result of the consummation of the offer, or o If our nominees to the board are elected and, in the case of the senior subordinated notes described below, their nomination or election is not approved by the current board; The lenders under the Company's senior credit facilities will have the right to cause all unpaid amounts to be immediately due and payable. We believe there is currently approximately $1.1 billion outstanding under these facilities. In addition, the holders of various senior subordinated notes of the Company will have the right to require the Company to repurchase these notes generally within ninety days or more, at, in most cases, 101% of the par value of such notes plus accrued interest. We believe there is currently approximately $650 million of these notes outstanding. In addition, generally, if the Company fails to pay the outstanding indebtedness under any of its senior credit facilities when due, including as a result of an acceleration of the maturity dates as described above, there will occur an event of default under the indentures governing these notes which will enable the holders to declare the notes to become immediately due and payable. We are currently exploring various refinancing options with respect to this indebtedness, however, we are unable to ascertain the terms and conditions of any refinancing because of the current inability of potential financing sources to conduct a comprehensive due diligence review of the Company without the consent of the current board of directors. Notwithstanding, we are highly confident that adequate refinancing options will be available to the Company once potential financing sources are permitted to conduct a due diligence review. In addition, we expect that if our nominees are elected to the board, they will, subject to their fiduciary duties, allow potential financing sources to conduct a due diligence review. The inability to obtain any refinancing on acceptable terms could result in the bankruptcy of the Company or could otherwise have a material adverse effect on the Company. To obviate the necessity to refinance the Company's senior subordinated notes, the current board of directors may approve the nomination or election to the board of directors of our nominees so as to avoid the repurchase obligations of the Company in respect of the senior subordinated notes as described above. We believe that the fiduciary duties of the board may require them to do so. The foregoing description of the Company's indebtedness is qualified in its entirety by reference to the definitive documents governing that indebtedness, copies of which have been filed by the Company with the Securities and Exchange Commission. We take no responsibility for the accuracy or completeness of those filings. See Section 7. Notwithstanding the foregoing possible effects, we intend to consummate the offer if all the conditions to the offer are met." The last sentence to the response to the question WHAT ARE YOUR PURPOSES FOR THE OFFER AND PLANS FOR THE COMPANY AFTER THE OFFER IS CONSUMMATED? is hereby amended and restated in its entirety as follows: "If elected, we expect the slate nominated by us, in a manner consistent with their fiduciary duties, to properly marshal these unique assets through the current residential housing industry downturn." THE TENDER OFFER 2. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES. The following sentence is hereby added to the end of the paragraph under the heading "DETERMINATION OF VALIDITY": "Notwithstanding anything herein to the contrary, security holders may challenge a determination made by the Offeror in a court of competent jurisdiction and a final, non-appealable order or judgment of a court of competent jurisdiction will be final and binding on all parties." 3. WITHDRAWAL RIGHTS. The following sentence is hereby added to the final paragraph of this section: "Notwithstanding anything herein to the contrary, security holders may challenge a determination made by the Offeror in a court of competent jurisdiction and a final, non-appealable order or judgment of a court of competent jurisdiction will be final and binding on all parties." 5. MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES. The first sentence of this section is hereby amended and restated in its entirety as follows: "This section contains a summary of material U.S. federal income tax consequences of the sale of Shares pursuant to the Offer." The first sentence under the heading "EXCHANGE OF SHARES FOR CASH" is hereby amended and restated in its entirety as follows: "A stockholder of the Company who holds Shares as "capital assets" within the meaning of Section 1221 of the Code at the effective time of the sale of Shares and who receives cash pursuant to the Offer will recognize capital gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the amount of cash received and the holder's adjusted tax basis in the Shares surrendered." The second sentence under the heading "EXCHANGE OF SHARES FOR CASH" is hereby deleted. The sentence immediately prior to the bullet point list under the heading "FOREIGN STOCKHOLDERS; SPECIAL RULES FOR SALE OF SHARES IN UNITED STATES REAL PROPERTY HOLDING COMPANIES" is hereby amended and restated in its entirety as follows: "Any gain realized by a foreign stockholder on the sale of Shares pursuant to the Offer will not be subject to United States federal income tax unless:" 9. SOURCE AND AMOUNT OF FUNDS. The following sentence is hereby added to the end of this section: "The Offeror currently does not have any alternative financing plans." 11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY. The last sentence under the heading "PLANS FOR THE COMPANY" is hereby amended and restated in its entirety as follows: "If elected, the Offeror expects the slate nominated by the Icahn Parties, in a manner consistent with their fiduciary duties, to properly marshal these unique assets through the current residential housing industry downturn." 12. CERTAIN EFFECTS OF THE OFFER. The disclosure under the heading "EFFECT ON THE INDEBTEDNESS OF THE COMPANY" is hereby amended and restated in its entirety as follows: "In the event that (i) the Offeror becomes the beneficial owner, directly or indirectly, of more than 50% of the Shares of Common Stock, including as a result of the consummation of the Offer, or (ii) the Offeror's nominees have been elected to the Company's board and constitute a majority of the Company's board and, in the case of the senior subordinated notes described below, the nomination or election of the Offeror's nominees to the Company's board is not approved by the current board of directors, (a) under each of the Company's senior credit facilities (under which the Offeror believes there is an aggregate of approximately $1.1 billion outstanding indebtedness), the respective lenders holding at least two-thirds of the outstanding indebtedness under such credit facility will have the right to immediately cause all unpaid amounts under such credit facility to be immediately due and payable and (b) the holders of various senior subordinated notes of the Company (of which the Offeror believes there are approximately $650 million outstanding in the aggregate) will have the right to require the Company to repurchase such notes generally within ninety days or more, at, in most cases, 101% of the par value of such notes plus accrued interest. In addition, generally, if the Company fails to pay the outstanding indebtedness under any of its senior credit facilities when due, including as a result of an acceleration of the maturity dates as described above, there will occur an event of default under the indentures governing the Company's senior subordinated notes which will enable the holders of such notes to declare such notes to become immediately due and payable. The Offeror is currently exploring various refinancing options with respect to this indebtedness, however, the Offeror is unable to ascertain the terms and conditions of any such refinancing because of the current inability of potential financing sources to conduct a comprehensive due diligence review of the Company without the consent of the current board of directors. Notwithstanding, the Offeror is highly confident that adequate refinancing options will be available to the Company once potential financing sources are permitted to conduct such a due diligence review. In addition, the Offeror expects that if the Offeror's nominees are elected to the board, they will, subject to their fiduciary duties, allow potential financing sources to conduct such a due diligence review. There can be no assurance that the Company will be able to obtain any such refinancing or that the terms and conditions of any such refinancing will be acceptable to the Company. The inability to obtain any such refinancing on acceptable terms could result in the bankruptcy of the Company or could otherwise have a material adverse effect on the Company. To obviate the necessity to refinance the Company's senior subordinated notes, the current board of directors may approve the nomination or election to the board of directors of the Offeror's nominees so as to avoid the repurchase obligations of the Company in respect of the senior subordinated notes as described above. The Offeror believes that the fiduciary duties of the board may require them to do so. The foregoing description of the indebtedness of the Company is qualified in its entirety by reference hereto to the definitive documents governing such indebtedness, copies of which have been filed by the Company with the SEC. The Offeror takes no responsibility for the accuracy or completeness of the Company's filings with the SEC. See Section 7. NOTWITHSTANDING THE FOREGOING POSSIBLE EFFECTS ON THE COMPANY'S INDEBTEDNESS, THE OFFEROR INTENDS TO CONSUMMATE THE OFFER IF ALL THE CONDITIONS TO THE OFFER ARE MET." 14. CERTAIN CONDITIONS OF THE OFFER. Condition (d) of this section is hereby amended and restated in its entirety as follows: "(d) there shall have been threatened, in writing, instituted or pending any action or proceeding before any court or governmental agency or other regulatory or administrative agency or commission or by any other person, challenging the acquisition of any Shares pursuant to the Offer or otherwise directly or indirectly relating to the Offer;" Condition (g) of this section is hereby amended and restated in its entirety as follows: "(g) any change or development shall have occurred since the date of the Offer to Purchase in the business, properties, assets, liabilities, financial condition, operations, results of operations, or prospects for the business of the Company which is outside the ordinary course of the Company's business or may be materially adverse to the Company, or the Offeror shall have become aware of any fact that has not been previously publicly disclosed by the Company that could reasonably be expected to have a material adverse effect on the value of the Shares;" The second sentence of the last paragraph of this section is hereby amended and restated in its entirety as follows: "The failure by the Offeror at any time to exercise any of the foregoing rights shall not be deemed a waiver of any right prior to the consummation of the Offer, the waiver of such right with respect to any particular facts or circumstances shall not be deemed a waiver with respect to any other facts or circumstances, and each right shall be deemed an ongoing right which may be asserted at any time and from time to time prior to the consummation of the Offer. All conditions to the Offer must be satisfied or waived prior to the Expiration Date." May 11, 2007 Manually signed facsimile copies of the Letter of Transmittal will be accepted. Letters of Transmittal and certificates for Shares and certificates, if any, for the associated Rights, should be sent or delivered by each stockholder of the Company or his broker, dealer, commercial bank, trust company or other nominee to the Depositary at one of its addresses set forth below: THE DEPOSITARY FOR THE OFFER IS: American Stock Transfer & Trust Company By Mail or Overnight By Facsimile By Hand: Courier: Transmission (for eligible institutions only): - -------------------------------------------------------------------------------- American Stock Transfer American Stock Transfer American Stock Transfer & Trust Company & Trust Company & Trust Company Attention: Reorganization Attention: Reorganization Attn: Reorganization Department Department Department 6201 15th Avenue Facsimile: 718-234-5001 59 Maiden Lane Brooklyn, NY 11219 To confirm: 1-877-248-6417 Plaza Level New York, NY 10038 - -------------------------------------------------------------------------------- DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSIONS OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY. Any questions or requests for assistance may be directed to the Information Agent at its address and telephone numbers set forth below. Requests for additional copies of this Offer to Purchase and the Letter of Transmittal may be directed to the Information Agent or the Depositary. Stockholders may also contact their brokers, dealers, commercial banks, trust companies or other nominees for assistance concerning the Offer. THE INFORMATION AGENT FOR THE OFFER IS: MacKenzie Partners, Inc. 105 Madison Avenue New York, New York 10016 (212) 929-5500 (Call Collect) or CALL TOLL-FREE (800) 322-2885 Email: wci@mackenziepartners.com -----END PRIVACY-ENHANCED MESSAGE-----