EX-4.2: FORM OF REGISTRATION RIGHTS AGREEMENT



 




Exhibit 4.2



REGISTRATION RIGHTS AGREEMENT







                  REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of
            
         ,
2002, among WCI COMMUNITIES, INC., a Delaware corporation (the “Company”), Don
E. Ackerman (“Ackerman”), Alfred Hoffman, Jr. (“Hoffman”), Citicorp Venture
Capital (“Citicorp”), John D. and Catherine T. MacArthur Foundation (“MacArthur
Foundation”) and Kamehameha Activities Association (“Kamehameha” and together
with Citicorp and the MacArthur Foundation, the “Business Investor Group”).
Each of Ackerman, the Ackerman Estate, Hoffman, the Hoffman Estate, Citicorp,
MacArthur Foundation and Kamehameha are referred to herein as an “Investor.”
The Company and the Investors are hereinafter collectively referred to as the
“Parties.”







RECITALS



                  As of the date hereof,
Hoffman is the holder of          shares of common
stock, par value $0.01 per share (the “Common Stock”), of the Company, Ackerman
is the holder of          shares of
Common Stock, Citicorp is the holder of          shares of Common Stock,
the MacArthur Foundation is the holder of         
shares of Common Stock and Kamehameha is the holder of         
shares of Common Stock. The Company desires to provide to each Investor rights to registration
under the Securities Act (as defined below) Registrable Securities (as defined
below), on the terms and subject to the conditions set forth herein.



AGREEMENT



                  1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following respective meanings:




		
	 	         “Ackerman Estate”: The executors, administrators, testamentary trustees,
legatees or beneficiaries holding Ackerman’s Registrable Securities upon the
death of Ackerman.
	 
	 	         “Ackerman Trust”: Any trust or custodianship the beneficiaries of which
may include Don Ackerman and his spouse and lineal descendants.
	 
	 	         “Common or Common Equivalent Registrable Securities”: Registrable
Securities which are (i) Common Stock or (ii) securities that are
convertible into or exchangeable or exercisable for Common Stock.
	 
	





	 	         “Demand Party”: (a) The Hoffman Estate provided that such estate
holds Registrable Securities ; (b) the Ackerman Estate providing that
such estate holds Registrable Securities; (c) the Business Investor
Group, provided that at the time of the request, such requesting party
holds 20% or more of the Registrable Securities held by the Business
Investor Group in the aggregate on the date of the demand for
registration; or (d) any other Holder or Holders, including, without
limitation, any Person that may
become an assignee of any Investor’s rights hereunder; provided that
to be a Demand Party under this clause (d), a Holder or Holders must
either individually or in aggregate 
	













 



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	 	with all other Holders with whom it
is acting together to demand registration own at least 20% of the total
number of Registrable Securities.
	





	 
	 	         “Exchange Act”: The Securities Exchange Act of 1934, as amended, or
any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
	 
	 	         “Hoffman Estate”: The executors, administrators, testamentary
trustees, legatees or beneficiaries holding Hoffman’s Registrable
Securities upon the death of Hoffman.
	 
	 	         “Hoffman Trust”: Any trust or custodianship the beneficiaries of
which may include Al Hoffman and his spouse and lineal descendants.
	 
	 	         “Holder”: The Investors and any other holder of Registrable
Securities (including any direct or indirect transferee of the Investors)
who agrees in writing to be bound by the provisions of this Agreement.
	 
	 	         “Person”: Any individual, partnership, joint venture, corporation,
trust, unincorporated organization or government or any department or
agency thereof.
	 
	 	         “Registrable Securities”: Any Common Stock held or acquired by the
Investors (including any Common Stock held by an Ackerman Trust, in the
case of Ackerman, and a Hoffman Trust, in the case of Hoffman) from the
Company, and any Common Stock which may be issued or distributed in
respect thereof by way of stock dividend or stock split or other
distribution, recapitalization or reclassification. Any particular
Registrable Securities that are issued shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale by
the Holder of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) such securities shall
have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) such securities
shall have been otherwise transferred, new certificates for such
securities not bearing a legend restricting further transfer shall have
been delivered by the Company and subsequent disposition of such
securities shall not require registration or qualification of such
securities under the Securities Act or any state securities or blue sky
law then in force, or (iv) such securities shall have ceased to be
outstanding.
	 
	 	         “Registration Expenses”: Any and all expenses incident to
performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. (the “NASD”) registration and filing fees
(including, if applicable, the fees and expenses of any “qualified
independent underwriter,” as such term is defined in Schedule E to the
By-laws of the NASD, and of its counsel), (ii) all fees and expenses of
complying with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities), (iii)
all printing, messenger and delivery expenses, (iv) all fees and expenses
incurred in connection with the listing








 



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	 	of the Registrable Securities on
any securities exchange pursuant to clause (viii) of Section 4 and all
rating agency fees, (v) the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses
of any special audits and/or “cold comfort” letters required by or
incident to such performance and compliance, (vi) the reasonable fees and
disbursements of counsel selected pursuant to Section 7 hereof by the
Holders of the Registrable Securities being registered to represent such
Holders in connection with each such registration, (vii) any fees and
disbursements of underwriters customarily paid by the issuers or sellers
of securities, including liability insurance if the Company so desires or
if the underwriters so require, and the reasonable fees and expenses of
any special experts retained in connection with the requested
registration, but excluding underwriting discounts and commissions and
transfer taxes, if any, and (viii) other reasonable out-of-pocket
expenses of Holders (provided that such expenses shall not include
expenses of counsel other than those provided for in clause (vi) above).
In connection with any Registration Statement hereunder, the Holders of
the Registrable Securities being registered shall bear the discounts,
commissions, or fees of underwriters, selling brokers, dealer managers or
similar securities industry professionals relating to the distribution of
the Registrable Securities.
	 
	 	         “Securities Act”: The Securities Act of 1933, as amended, or any
similar federal statute then in effect, and a reference to a particular
section thereof shall be deemed to include a reference to the comparable
section, if any, of any such similar federal statute.
	 
	 	         “SEC”: The Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act or the Exchange Act.








                  2.
Incidental Registrations. (a) Right to Include Common or Common
Equivalent Registrable Securities. If the Company at any time after the date
hereof proposes to register its Common Stock (or any security which is
convertible into or exchangeable or exercisable for Common Stock) under the
Securities Act (other than a registration on Form S-4 or S-8, or any successor
or other forms promulgated for similar purposes), whether or not for sale for
its own account (but excluding in a registration under Section 3 hereof), in a
manner which would permit registration of Common or Common Equivalent
Registrable Securities for sale to the public under the Securities Act, it
will, at each such time, give prompt written notice to all Holders of Common or
Common Equivalent Registrable Securities of its intention to do so and of such
Holders’ rights under this Section 2. Upon the written request of any such
Holder made within 15 days after the receipt of any such notice (which request
shall specify the Common or Common Equivalent Registrable Securities intended
to be disposed of by such Holder, including Common Stock held by an Ackerman
Trust, in the case of a request by Ackerman, or a Hoffman Trust, in the case of
a request by Hoffman), the Company will use its reasonable best efforts to
effect the registration under the Securities Act of all Common or Common
Equivalent Registrable Securities which the Company has been so requested to
register by the Holders thereof, to the extent requisite to permit the
disposition of the Common or Common Equivalent Registrable Securities so to be
registered; provided that (i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration
statement filed in connection with such registration, the Company shall
determine for any reason not to proceed with the proposed registration of the
securities to be sold by it, the Company may,












 



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at its election, give written notice of such determination to each Holder of Common or Common Equivalent
Registrable Securities and, thereupon, shall be relieved of its obligation to
register any Common or Common Equivalent Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration involves an
underwritten offering, all Holders of Common or Common Equivalent Registrable
Securities requesting to be included in the Company’s registration must sell
their Common or Common Equivalent Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to the
Company, with such differences, including any with respect to indemnification
and liability insurance, as may be customary or appropriate in combined primary
and secondary offerings. If a registration requested pursuant to this Section
2(a) involves an underwritten public offering, any Holder of Common or Common
Equivalent Registrable Securities requesting to be included in such
registration may elect, in writing prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration.



                  (b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Common or Common Equivalent Registrable
Securities requested pursuant to this Section 2.







                  (c) Priority in Incidental Registrations. If a registration pursuant to
this Section 2 involves an underwritten offering and the managing underwriter
advises the Company in writing that, in its opinion, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering, so as to be likely to have an adverse effect on the
price, timing or distribution of the securities offered in such offering as
contemplated by the Company (other than the Common or Common Equivalent
Registrable Securities), then the Company will include in such registration (i)
first, 100% of the securities the Company proposes to sell and (ii) second, to
the extent of the number of Common or Common Equivalent Registrable Securities
requested to be included in such registration pursuant to this Section 2
(including Common Stock held by an Ackerman Trust or Hoffman Trust) which, in
the opinion of such managing underwriter, can be sold without having the
adverse effect referred to above, the number of Common or Common Equivalent
Registrable Securities which the Holders have requested to be included in such
registration, such amount to be allocated pro rata among all requesting Holders
on the basis of the relative number of shares of Common or Common Equivalent
Registrable Securities then held by each such Holder, including Common Stock
held by an Ackerman Trust or Hoffman Trust, (provided that any shares thereby
allocated to any such Holder that exceed such Holder’s request will be
reallocated among the remaining requesting Holders in like manner).











                  3.
Registration on Request. (a) Request by a Demand Party. At any time
after any Common Stock of the Company has been registered after the date hereof
under the Securities Act (other than a registration on Form S-4 or S-8 or any
successor or other form promulgated for similar purposes), upon the written
request of a Demand Party requesting that the Company effect the registration
under the Securities Act of all or part of such Demand Party’s Registrable
Securities and specifying the amount and intended method of disposition
thereof, the Company will promptly give written notice of such requested
registration to all other
Holders of such Registrable Securities, and thereupon will, as
expeditiously as possible, use its reasonable best efforts to effect the
registration under the Securities Act of:












 



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	 	         (i) such Registrable Securities (including, if such request relates
to a security which is convertible into shares of Common Stock, the
shares of Common Stock issuable upon such conversion) which the Company
has been so requested to register by the Demand Party; and




		
	 	         (ii) all other Registrable Securities of the same class or series as
are to be registered at the request of a Demand Party and which the
Company has been requested to register by any other Holder thereof by
written request given to the Company within 15 days after the giving of
such written notice by the Company (which request shall specify the
amount and intended method of disposition of such Registrable
Securities),



all to the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to be
registered; provided that, unless Holders of a majority of the shares of
Registrable Securities held by Holders consent thereto in writing, the Company
shall not be obligated to file a registration statement relating to any
registration request under this Section 3(a) (x) within a period of nine months
after the effective date of any other registration statement relating to any
registration request under this Section 3(a) which was not effected on Form S-3
(or any successor or similar short-form registration statement) or relating to
any registration effected under Section 2, or (y) if, with respect thereto, the
managing underwriter, the SEC, the Securities Act or the rules and regulations
thereunder, or the form on which the registration statement is to be filed,
would require the conduct of an audit other than the regular audit conducted by
the Company at the end of its fiscal year, in which case the filing may be
delayed until the completion of such regular audit (unless the Holders of the
Registrable Securities to be registered agree to pay the expenses of the
Company in connection with such an audit other than the regular audit).
Nothing in this Section 3 shall operate to limit the right of a Holder to (i)
request the registration of Common Stock issuable upon conversion or exercise
of convertible securities held by such Holder notwithstanding the fact that at
the time of request such Holder holds only convertible securities or (ii)
request the registration at one time of both Common Stock and securities
convertible into Common Stock.


                  (b) Number of Requests for Registration; Payment of Registration Expenses.
The Ackerman Estate, the Hoffman Estate and the Business Investor Group may
each make one request for registration pursuant to this Section 3, which
Registration Expenses will be paid for by the Company. The Company shall not
pay any Registration Expenses in connection with any other demand
registrations, including individual demand registrations pursuant to the
immediately succeeding sentence. There shall be no other request for demand
registration other than pursuant to this Section (b).



                  (c) Registration Statement Form. If any registration requested pursuant
to this Section 3 which is proposed by the Company to be effected by the filing
of a registration statement on Form S-3 (or any successor or similar short-form
registration statement) shall be in connection with an underwritten public
offering, and if the managing underwriter shall advise the Company in writing
that, in its opinion, the use of another form of registration statement is of
material importance to the success of such proposed offering, then such
registration shall be effected on such other form.








 



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                  (d) Selection of Underwriters. If a requested registration pursuant to
this Section 3 involves an underwritten offering, the Holders of a majority of
the shares of Registrable Securities which are held by Holders and which the
Company has been requested to register pursuant to this Section 3 shall have
the right to select the investment banker or bankers and managers to administer
the offering; provided, however, that such investment banker or bankers and
managers shall be reasonably satisfactory to the Company.



                  (e) Effective Registration Statement. A registration requested pursuant
to this Section 3 will not be deemed to have been effected unless it has become
effective; provided that if, within 180 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will be deemed not to
have been effected.







                  (f) Priority in Requested Registrations. If a requested registration
pursuant to this Section 3 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceeds the number which
can be sold in such offering, the Company will include in such registration
only the Registrable Securities requested to be included in such registration.
In the event that the number of Registrable Securities of the Demand Party
requested to be included in such registration exceeds the number which, in the
opinion of such managing underwriter, can be sold, the number of such
Registrable Securities to be included in such registration shall be allocated
pro rata among all such requesting Holders on the basis of the relative number
of shares of Registrable Securities then held by each such Holder (provided
that any shares thereby allocated to any such Holder that exceed such Holder’s
request shall be reallocated among the remaining requesting Holders in like
manner). In the event that
the number of Registrable Securities requested to be included in such
registration is less than the number which, in the opinion of the managing
underwriter, can be sold, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of the underwriter, can be sold.







                  (g) Additional Rights. If the Company at any time grants to any other
holders of Common Stock any rights to request the Company to effect the
registration under the Securities Act of any such shares of Common Stock on
terms more favorable to such holders than the terms set forth in this Section
3, the terms of this Section 3 shall be deemed amended or supplemented to the
extent necessary to provide the Holders such more favorable rights and
benefits.



                  4. Registration Procedures. If and whenever the Company is required to
use its reasonable best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in this Agreement,
the Company will, as expeditiously as possible:




		
	 	         (i) prepare and, in any event within 120 days after the end of the
period within which a request for registration may be given to the
Company pursuant to Section 2 or 3, file with the SEC a registration
statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective, provided, however, that the Company may discontinue any
registration 









 



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	 	of its securities which is being effected pursuant to
Section 2 at any time prior to the effective date of the registration
statement relating thereto;




		
	 	         (ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period not in excess of 270 days and to comply with the
provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC thereunder with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement; provided that
before filing a registration statement or prospectus, or any amendments
or supplements thereto, the Company will furnish to counsel selected
pursuant to Section 7 hereof by the Holders of the Registrable Securities
covered by such registration statement to represent such Holders;




		
	 	         (iii) furnish to each seller of such Registrable Securities such
number of copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits filed therewith,
including any documents incorporated by reference), such number of copies
of the prospectus included in such registration statement (including each
preliminary prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request in order to facilitate the disposition of
the Registrable Securities by such seller;




		
	 	         (iv) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration in such jurisdictions
as each seller shall reasonably request, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, except that the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause (iv), it would not be obligated to be so
qualified, to subject itself to taxation in any such jurisdiction or to
consent to general service of process in any such jurisdiction;




		
	 	         (v) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;




		
	 	         (vi) notify each seller of any such Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (ii)
of this Section 4, of the Company’s becoming aware that the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller, prepare and furnish to
such seller a reasonable number of 









 



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	 	copies of an amended or supplemental
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;




		
	 	         (vii) use its reasonable best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable after the effective date of
the registration statement, an earnings statement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;




		
	 	         (viii) (A) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then
listed if such Registrable Securities are not already so listed and if
such listing is then permitted under the rules of such exchange; and (B)
use its reasonable best efforts to provide a transfer agent and registrar
for such Registrable Securities covered by such registration statement
not later than the effective date of such registration statement;




		
	 	         (ix) enter into such customary agreements (including an underwriting
agreement in customary form), which may include indemnification
provisions in favor of underwriters and other persons in addition to, or
in substitution for the provisions of Section 5 hereof, and take such
other actions as sellers of a majority of shares of such Registrable
Securities or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;




		
	 	         (x) obtain a “cold comfort” letter or letters from the Company’s
independent public accounts in customary form and covering matters of the
type customarily covered by “cold comfort” letters as the seller or
sellers of a majority of shares of such Registrable Securities shall
reasonably request (provided that Registrable Securities constitute at
least 25% of the securities covered by such registration statement);




		
	 	         (xi) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties
of the Company, and cause all of the Company’s officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with
such registration statement;
	 
	 	         (xii) notify counsel (selected pursuant to Section 7 hereof) for the
Holders of Registrable Securities included in such registration statement
and the managing underwriter or agent, immediately, and confirm the
notice in writing (A) when the registration statement, or any
post-effective amendment to the registration statement, shall have become
effective, or any supplement to the prospectus or any amendment
prospectus shall have been filed, (B) of the receipt of any comments from
the SEC, (C) of 









 



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	 	any request of the SEC to amend the registration
statement or amend or supplement the prospectus or for additional
information, and (D) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement or of any
order preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the registration statement for
offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes;




		
	 	         (xiii) make every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of the registration statement or
of any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the withdrawal of
any such order at the earliest possible moment;




		
	 	         (xiv) if requested by the managing underwriter or agent or any
Holder of Registrable Securities covered by the registration statement,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or agent or such
Holder reasonably requests to be included therein, including, without
limitation, with respect to the number of Registrable Securities being
sold by such Holder to such underwriter or agent, the purchase price
being paid therefor by such underwriter or agent and with respect to any
other terms of the underwritten offering of the Registrable Securities to
be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable
after being notified of the matters incorporated in such prospectus
supplement or post-effective amendment;




		
	 	         (xv) cooperate with the Holders of Registrable Securities covered by
the registration statement and the managing underwriter or agent, if any,
to facilitate the timely preparation and delivery of certificates (not
bearing any restrictive legends) representing securities to be sold under
the registration statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
agent, if any, or such Holders may request;




		
	 	         (xvi) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions
from counsel for the Company in customary form and in form, substance and
scope reasonably satisfactory to such Holders, underwriters or agents and
their counsel; and




		
	 	         (xvii) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD.



                  Each Holder of Registrable Securities agrees as a condition to the
registration of such Holders Registrable Securities as provided herein to
furnish the Company with such information regarding such seller and pertinent
to the disclosure requirements relating to the registration and the
distribution of such securities as the Company may from time to time reasonably
request in writing.







 



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                  Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (vi) of this Section 4, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder’s receipt of the copies
of the supplemented or amended prospectus contemplated by clause (vi) of this
Section 4, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company’s expense) all copies, other than permanent file copies
then in such Holder’s possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in clause (ii) of this
Section 4 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (vi) of this
Section 4 and including the date when each seller of Registrable Securities
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
4.







                  5.
Indemnification. (a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act pursuant
to Section 2 or 3, the Company will, and it hereby does, indemnify and hold
harmless, to the extent permitted by law, the seller of any Registrable
Securities covered by such registration statement, each affiliate of such
seller and their respective directors and officers or general and limited
partners (including any director, officer, affiliate, employee, agent and
controlling Person of any of the foregoing), each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such seller or any such underwriter within the
meaning of the Securities Act (collectively, the “Indemnified Parties”),
against any and all losses, claims, damages or liabilities, joint or several,
and expenses (including reasonable attorney’s fees and reasonable expenses of
investigation) to which such Indemnified Party may become subject under the
Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether
or not such Indemnified Party is a party thereto) arise out of or are based
upon (a) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (b)
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein (in the case of a
prospectus, in light of the circumstances under which they were made) not
misleading, and the Company will reimburse such Indemnified Party for any legal
or any other expenses reasonably incurred by it in connection with
investigating or defending against any such loss, claim, liability, action or
proceeding; provided that the Company shall not be liable to any Indemnified
Party in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement or amendment or supplement thereto or in
any such preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for use
in the preparation thereof; and provided, further, that the Company will not be
liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, under the indemnity
agreement in this Section 5(a) with












 



11



respect to any preliminary prospectus or
the final prospectus or the final prospectus as amended or supplemented, as the
case may be, to the extent that any such loss, claim, damage or liability of
such underwriter or controlling Person results from the fact that such
underwriter sold Registrable Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
final prospectus or of the final prospectus as then amended or supplemented,
whichever is most recent, if the Company has previously furnished copies
thereof to such underwriter. For purposes of the last proviso to the
immediately
preceding sentence, the term “prospectus” shall not be deemed to
include the documents, if any, incorporated therein by reference, and no Person
who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within
the meaning of the Securities Act, shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in any
preliminary prospectus or the final prospectus to any person other than a
person to whom such underwriter had delivered such incorporated document or
documents in response to a written request therefor. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such seller or any Indemnified Party and shall survive the transfer
of such securities by such seller.



                  (b) Indemnification by the Seller. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective seller of
such Registrable Securities or any underwriter to indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 5(a)) the
Company and all other prospective sellers with respect to any untrue statement
or alleged untrue statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement, if such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company through an
instrument duly executed by such seller or underwriter specifically stating
that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of the Company or any of the prospective sellers, or any of their
respective affiliates, directors, officers or controlling Persons and shall
survive the transfer of such securities by such seller. In no event shall the
liability of any selling Holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.



                  (c) Notices of Claims, Etc. Promptly after receipt by an Indemnified
Party hereunder of written notice of the commencement of any action or
proceeding with respect to
which a claim for indemnification may be made pursuant to this Section 5,
such Indemnified Party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided that the failure of the Indemnified Party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under this Section 5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, unless in such
Indemnified Party’s reasonable judgment a conflict of interest








 



12



between such
Indemnified Party and indemnifying parties may exist in respect of such claim,
the indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly notified
to the extent that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such Indemnified Party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party will consent to entry of any judgment or enter into any settlement which
does not include, as an unconditional term thereof, the giving by the claimant
or plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation.



                  (d) Contribution. If the indemnification provided for in this Section 5
from the indemnifying party is unavailable to an Indemnified Party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and such Indemnified Party in connection with the actions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and such Indemnified Party shall be determined by reference to, among
other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
indemnifying party or Indemnified Parties, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party under this Section 5(d) as a
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.



                  The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.



                  (e) Other Indemnification. Indemnification similar to that specified in
the preceding provisions of this Section 5 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or
other qualification of securities under any federal or state law or
regulation or governmental authority other than the Securities Act.



                  (f) Non-Exclusivity. The obligations of the parties under this Section 5
shall be in addition to any liability which any party may otherwise have to any
other party.



                  6. Rule 144. The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted








 



13



by the SEC thereunder (or, if the Company is not
required to file such reports, it will, upon the request of any Demand Party,
make publicly available such information), and it will take such further action
as any Holder of Registrable Securities (or, if the Company is not required to
file reports as provided above, any Demand Party) may reasonably request, all
to the extent required from time to time to enable such Holder to sell shares
of Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may
deregister under Section 12 of the Exchange Act if it then is permitted to do
so pursuant to the Exchange Act and the rules and regulations thereunder.



                  7. Selection of Counsel. In connection with any registration of
Registrable Securities pursuant to Section 2 or 3 hereof, the Holders of a
majority of the Registrable Securities covered by any such registration may
select one counsel to represent all Holders of Registrable Securities covered
by such registration; provided, however, that in the event that the counsel
selected as provided above is also acting as counsel to the Company in
connection with such registration, the remaining Holders shall be entitled to
select one additional counsel to represent all such remaining Holders.







                  8.
Miscellaneous. (a) Other Investors. The Company may enter into agreements
with other purchasers or holders of Common or Common Equivalent Registrable
Securities making them parties hereto (and thereby giving them all, or a
portion, of the rights, preferences and privileges of an original party hereto)
with respect to additional shares of Common or Common Equivalent Registrable
Securities (the “Supplemental Agreements”); provided, however, that pursuant to
any such Supplemental Agreement, such purchaser expressly agrees to be bound by
all of the terms, conditions and obligations of this Agreement as if such
purchaser were an original party hereto. All shares of Common Stock issued or
issuable pursuant to, or otherwise covered by, such Supplemental Agreements
shall be deemed to be Registrable Securities to the extent provided therein.







                  (b) Holdback Agreement. If any such registration shall be in connection
with an underwritten public offering, each Holder of Registrable Securities
agrees not to effect any
public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public
offering), within seven days before or such period not to exceed 180 days as
the underwriting agreement may require (or such lesser period as the managing
underwriters may permit) after the effective date of such registration, and the
Company hereby also so agrees and agrees to cause each other holder of any
equity security, or of any security convertible into or exchangeable or
exercisable for any equity security, of the Company purchased from the Company
(at any time other than in a public offering) to so agree.



                  (c) Amendments and Waivers. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such








 



14



amendment, action or omission to act, of the Holders of
a majority of the Registrable Securities then outstanding; provided, however,
that no amendment, waiver or consent to the departure from the terms and
provisions of this Agreement that is adverse to the Investors or any of their
respective successors and assigns shall be effective as against any such Person
for so long as such Person holds any Registrable Securities unless consented to
in writing by such Person. Each Holder of any Registrable Securities at the
time or thereafter outstanding shall be bound by any consent authorized by this
Section 8(c), whether or not such Registrable Securities shall have been marked
to indicate such consent.



                  (d) Underwriting Agreement. Notwithstanding the provisions of this
Agreement, to the extent that the Investors, including Additional Investors
pursuant to Section 8, shall enter into an underwriting or similar agreement,
which agreement contains provisions covering one or more issues addressed in
such Sections, the provisions contained in such agreement addressing such issue
or issues shall control.



                  (e) Successors, Assigns and Transferees. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the
benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent Holder of any Registrable
Securities, subject to the provisions contained herein.



                  (f) Notices. All notices and other communications provided for hereunder
shall be in writing and shall be sent by first class mail, telex, telecopier or
hand delivery:




		
	 	         (i) if to the Company, to it:




		
	 	         WCI Communities, Inc.,
         24301
Walden Center Drive, Suite 300
         Bonita
Springs, Florida 34134
         Attention:
Jim D. Cullen, Esq.
         Fax:
(941) 498-8443
	 
	 	         with copies to:
	 
	 	         Simpson Thacher & Bartlett
         425
Lexington Avenue
         New
York, New York 10017
         Attention:
John B. Tehan, Esq.
         Fax:
(212) 455-2502




		
	 	         (ii) if to any Investor or any other holder of Registrable
Securities, to the address of such party as shown in the stock record
book of the Company, or to such other address as any of the above shall
have designated in writing to all of the other above.



                  All such notices and communications shall be deemed to have been given or
made (A) when delivered by hand, (B) five business days after being deposited
in the mail, postage prepaid or (C) when telecopied, receipt acknowledged.







 



15




                  (g) Descriptive Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.



                  (h) Severability. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the remaining provisions, paragraphs,
words, clauses, phrases or sentences hereof shall not be in any way impaired,
it being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.



                  (i) Counterparts. This Agreement may be executed in counterparts, and by
different parties on separate counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.



                  (j) Governing Law; Submission to Jurisdiction. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York. The parties to this Agreement hereby agree to submit to the
jurisdiction of the courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof in any action or proceeding arising out of or relating to this
Agreement.



                  (k) Specific Performance. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, it is agreed that they shall be entitled to
an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of competent jurisdiction in the United States or any state thereof, in
addition to any other remedy to which they may be entitled at law or in equity.



[Continued on next page.]








 



16




                  IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be duly executed on its behalf as of the date first
written above.




	 	 	 
	 	 	
WCI COMMUNITIES, INC.
	 
	 	 	
By:                                               

       Name:

       Title:
	 
	 
	 	 	
                                                     

        Alfred Hoffman, Jr.
	 
	 
	 	 	
                                                     

        Don E. Ackerman
	 
	 
	 
	 	 	
Kamehameha Activities Association
	 
	 	 	
By:                                               

       Name:

       Title:
	 
	 	 	
Citicorp Venture Capital
	 
	 	 	
By:                                               

       Name:

       Title:
	 
	 	 	
John D. and Catherine T. MacArthur

     Foundation
	 
	 	 	
By:                                               

       Name:

       Title: