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SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of
Report (Date of earliest event reported): January 1, 2008
Icahn
Enterprises L.P.
(Exact
name of registrant as specified in its charter)
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Delaware
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1-9516
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13-3398766
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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767
Fifth Avenue, Suite 4700, New York, NY 10153
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(Address
of Principal Executive Offices) (Zip
Code)
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Registrant’s
Telephone Number, Including Area Code: (212)
702-4300
(Former
Name or Former Address, if Changed Since Last Report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
| o |
Written
communication pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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Item
5.02 Departure of Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers
Effective
January 1, 2008, the management agreements (the “Management
Agreements”)
between Icahn Capital Management LP (“Icahn
Capital Management”)
and
Icahn Partners LP, Icahn Master Fund LP and other private funds to which
Icahn
Capital Management provided administrative and back office services (the
“Funds”)
were
terminated, as were the Funds’ obligations to pay management fees (the
“Management
Fees”)
thereunder to Icahn Capital Management. In addition, the limited partnership
agreements of certain of the Funds (the “Fund
LPAs”)
were
amended to provide that, as of January 1, 2008, the general partners of the
Funds (Icahn Onshore LP and Icahn Offshore LP, the “Fund
GPs”)
will
provide or cause their affiliates to provide such administrative and back
office
services to the Funds formerly provided by Icahn Capital Management (the
“Services”)
and
the Fund GPs will therefore receive special profits interest allocations
(“Special
Profits Interest Allocations”)
from
the applicable Funds.
As
a
result of the amendments to the Management Agreements and the Fund LPAs,
effective January 1, 2008, Icahn Enterprises L.P. (the “Company”)
amended the previously reported Contribution and Exchange Agreement (as defined
below) and certain employment agreements to which it is a party to reflect
the
termination of the Management Agreements, the Funds’ obligations to pay the
Management Fees, the Services to be provided by the Fund GPs and the Special
Profits Interest Allocations the Fund GPs will now receive. The amendments
to
the Contribution and Exchange Agreement and the employment agreements to
which
the Company is a party are described as follows:
(1) Effective
January 1, 2008, the Company entered into an agreement (the “Icahn
Amendment Agreement”)
with
Carl C. Icahn (“Carl
Icahn”),
CCI
Onshore Corp. (“CCI
Onshore”),
CCI
Offshore Corp. (“CCI
Offshore”),
Icahn
Management LP (“Icahn
Management”)
and
Icahn Capital Management. The Icahn Amendment Agreement amends certain
provisions of (A) the Contribution and Exchange Agreement, dated as of August
8,
2007 (the “Contribution
and Exchange Agreement”),
by
and among CCI Offshore, CCI Onshore, Icahn Management, Carl Icahn and the
Company and (B) the Employment Agreement, dated as of August 8, 2007 (the
“Icahn
Employment Agreement”),
by
and among the Company, Icahn Capital Management and Carl Icahn. Pursuant
to the
Icahn Amendment Agreement, in the definition of “Hedge Fund Earnings” in the
Contribution and Exchange Agreement, the reference to “(i) management fees
payable to Icahn Capital Management with respect to the Funds pursuant to
the
Management Agreements” was deleted and replaced with “(i) Special Profits
Interest Allocation made to the Onshore GP and the Offshore GP with respect
to
the Master Funds pursuant to the limited partnership agreement of each Master
Fund in effect from time to time.” Pursuant to the Icahn Amendment Agreement,
the references in the Icahn Employment Agreement in Section 1(a) and Section
2(a) in Exhibit A to “management fee” were deleted and replaced with “Special
Profits Interest Allocation.” Furthermore, in the Icahn Amendment Agreement, the
parties thereto that are also parties to the Icahn Employment Agreement agreed
that, notwithstanding the fact that the management fees payable to Icahn
Capital
Management were terminated effective as of January 1, 2008 (with no payment
of
such fees being due on such date or any date thereafter), the obligation
of Carl
Icahn to pay a 2% management fee in the circumstances set forth in Section
6 of
the Icahn Employment Agreement and in Section 3 in Exhibit A to the Icahn
Employment Agreement shall remain in effect as an obligation to pay a 2%
fee.
2
(2) Effective
January 1, 2008, Keith Meister entered into an amendment (the “Meister
Amendment Agreement”)
with
Icahn Capital Management, Icahn Management, Icahn Capital LP (“Icahn
Capital”),
the
Fund GPs, the Company and the Related Entities (as defined therein) amending
his
Agreement, dated December 31, 2004 with (among others) Icahn Management,
the
Fund GPs and the Related Entities (as amended, the “Amended
Meister Employment Agreement”).
The
Amended Meister Employment Agreement provides that Mr. Meister’s former right to
receive 4.0% of the Management Fees earned by Icahn Capital Management (net
of
its expenses incurred to provide the Services) is terminated, and for all
periods from and after January 1, 2008, Mr. Meister is entitled to receive
(i)
from Icahn Capital as additional Cash Compensation (as defined in the Meister
Amendment Agreement) on the first day of each quarter during the term of
Mr.
Meister’s employment, commencing with January 1, 2008, 1.5% of the “Target
Special Profits Amounts” of the limited partners of the Funds net of the Fund
GPs’ expenses incurred in providing the Services to the Funds (which term is
defined such that the 1.5% Mr. Meister will receive is computed in the same
manner as the 1.5% interest in the net Management Fees Mr. Meister was entitled
to receive under the Management Agreements) and, (ii) from the Fund GPs,
2.5% of
their Special Profits Interest Allocations, if any, net of the Fund GPs’ and/or
their affiliates’ expenses incurred in providing the Services to the
Funds.
(3) On
January 1, 2008, Vince J. Intrieri entered into an amendment (the “Intrieri
Amendment Agreement”)
with
Icahn Capital Management, Icahn Management, Icahn Capital, the Fund GPs,
the
Company and the Related Entities (as defined therein) amending his Agreement,
dated December 31, 2004 with (among others) Icahn Management, the Fund GPs
and
the Related Entities (as amended, the “Amended
Intrieri Employment Agreement”).
The
Amended Intrieri Employment Agreement provides that Mr. Intrieri’s former right
to receive 2.5% of the gross Management Fees earned by Icahn Capital Management
is terminated and, for all periods from and after January 1, 2008, Mr. Intrieri
is entitled to receive from the Fund GPs 2.5% of their Special Profits Interest
Allocations, if any.
The
Icahn
Amendment Agreement is filed herewith as Exhibit 10.1 and is incorporated
by
reference in this Item 5.02(e).
The
following agreements are filed herewith as Exhibits 10.2, 10.3, 10.4, 10.5,
10.6, 10.7, 10.8, 10.9, 10.10 and 10.11, and are incorporated by reference
in
this Item 5.02(e): the Amended Meister Employment Agreement, the Letter
Agreement, dated June 1, 2005 (the “June
1, 2005 Meister Amendment”),
Amendment No. 1 of Agreement made as of December 31, 2004, dated January
1, 2006
(the “January
1, 2006 Meister Amendment”),
the
Letter Agreement, dated March 14, 2006 (the “March
14, 2006 Meister Amendment”),
the
Letter Agreement, dated April 11, 2006 (the “April
11, 2006 Meister Amendment”),
the
Letter Agreement, dated February 1, 2007 (the “February
1, 2007 Meister Amendment”),
the
Memorandum, dated April 19, 2007 (the “April
19, 2007 Meister Amendment”),
the
Amendment, dated August 8, 2007 (the “1st
August 8, 2007 Meister Amendment”),
the
Amendment in Relation to Management Fee Participation, dated August 8, 2007
(the
“2nd
August 8, 2007 Meister Amendment”)
and
the Meister Amendment Agreement.
The
following agreements are filed herewith as Exhibits 10.12, 10.13, 10.14,
10.15,
10.16 and 10.17, and are incorporated by reference in this Item 5.02(e):
the
Amended Intrieri Employment Agreement, the Letter Agreement, dated February
1,
2007 (the “February
1, 2007 Intrieri Amendment”),
the
Memorandum, dated April 19, 2007 (the “April
19, 2007 Intrieri Amendment”),
the
Amendment, dated August 8, 2007 (the “1st
August 8, 2007 Intrieri Amendment”),
the
Amendment in Relation to Management Fee Participation, dated August 8, 2007
(the
“2nd
August 8, 2007 Intrieri Amendment”)
and
the Intrieri Amendment Agreement.
3
Item
9.01. Financial Statements and Exhibits
(d)
Exhibit
10.1 - Icahn Amendment Agreement
Exhibit
10.2 - Amended Meister Employment Agreement
Exhibit
10.3 - June 1, 2005 Meister Amendment
Exhibit
10.4 - January 1, 2006 Meister Amendment
Exhibit
10.5 - March 14, 2006 Meister Amendment
Exhibit
10.6 - April 11, 2006 Meister Amendment
Exhibit
10.7 - February 1, 2007 Meister Amendment
Exhibit
10.8 - April 19, 2007 Meister Amendment
Exhibit
10.9 - 1st
August
8, 2007 Meister Amendment
Exhibit
10.10 - 2nd
August
8, 2007 Meister Amendment
Exhibit
10.11 - Meister Amendment Agreement
Exhibit
10.12 - Amended Intrieri Employment Agreement
Exhibit
10.13 - February 1, 2007 Intrieri Amendment
Exhibit
10.14 - April 19, 2007 Intrieri Amendment
Exhibit
10.15 - 1st
August
8, 2007 Intrieri Amendment
Exhibit
10.16 - 2nd
August
8, 2007 Intrieri Amendment
Exhibit
10.l7 - Intrieri Amendment Agreement
[remainder
of page intentionally left blank; signature page follows]
4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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ICAHN
ENTERPRISES L.P.
(Registrant)
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By: |
Icahn
Enterprises G.P. Inc. its General Partner |
| By: | /s/ Keith A. Meister | |
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Keith A. Meister |
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| Principal Executive Officer | ||
Date: January
7, 2008
5
January
1, 2008
Reference
is made to (i) the Contribution and Exchange Agreement (“Contribution
Agreement”) made as of the 8th day of August, 2007, by and among CCI Offshore
Corp., a Delaware corporation, CCI Onshore Corp., a Delaware corporation,
Icahn
Management LP, a Delaware limited partnership, Carl C. Icahn, an individual
(“Icahn”), and Icahn Enterprises LP (f/k/a American Real Estate Partners, L.P.),
a Delaware limited partnership (“Icahn Enterprises”) and (ii) the Employment
Agreement (the “Employment Agreement”) made
as
of the 8th
day of
August, 2007, by and between Icahn Enterprises, Icahn’ and Icahn Capital
Management LP, a Delaware limited partnership (‘‘Icahn Capital
Management”).
Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Contribution Agreement.
Effective
as of January 1, 2008, the Master Funds and the Feeder Funds are terminating
the
Management Agreements, pursuant to which Agreements the management fees are
payable to Icahn Capital Management. The termination will have the effect
of
terminating the management fees. Pursuant to the amended and restated limited
partnership agreement of each Master Fund, a “Special Profits Interest
Allocation” (as such term is defined therein) will be made to the managing
general partner of each Master Fund.
In
furtherance thereof, and for good and valuable consideration, the receipt
and
sufficiency of which is hereby acknowledged, the parties hereto agree, effective
as of January 1, 2008, as follows:
1. The
parties hereto that are parties to the Contribution Agreement agree that
in the
definition of “Hedge Fund Earnings” in the Contribution Agreement, the reference
to “(i) management fees payable to Icahn Capital Management with respect to the
Funds pursuant to the Management Agreements” shall be deleted and replaced with
“(i) Special Profits Interest Allocation made to the Onshore GP and the Offshore
GP with respect to the Master Funds pursuant to the limited partnership
agreement of each Master Fund in effect from time to time.” For purposes of
clarity, this change will become effective on January 1, 2008 and the management
fees paid to Icahn Capital Management prior to such date shal continue to
counted in Hedge Fund Earnings.
2. The
parties hereto that are parties to the Employment Agreement agree that the
references to “management fee” in section 1(a) and section 2(a) in Exhibit A
therein shall be deleted and replaced with “Special Profits Interest
Allocation.”
3. The
parties hereto that are parties to the Employment Agreement acknowledge and
agree that notwithstanding the fact that the management fee is being terminated,
the obligation to pay a 2% management fee as set forth in Section 6 of the
Employment Agreement and in Section 3 in Exhibit A therein shall remain in
effect as an obligation to pay a 2% fee.
4. Except
as
specifically provided herein, the Employment Agreement and the Contribution
Agreement remain in full force and effect. This instrument may be executed
in
any number of counterparts, each of which will be deemed an original, but
all of
which together will constitute one and the same instrument.
IN
WITNESS WHEREOF, this instrument has been duly executed and delivered by
the
parties hereto as of the date first above written.
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ICAHN
ENTERPRISES L.P.
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By:
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Icahn
Enterprises G.P. Inc., its general partner
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By:
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/s/ Andrew Skobe |
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Name:
Andrew Skobe
Title: Chief
Financial Officer
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CCI
ONSHORE CORP.
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By:
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/s/ Edward Mattner |
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Name:
Edward Mattner
Title: Authorized
Signatory
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CCI
OFFSHORE CORP.
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By:
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/s/ Edward Mattner |
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Name:
Edward Mattner
Title: Authorized
Signatory
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ICAHN
MANAGEMENT LP
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By:
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CCI
Manager LLC, its general partner
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By:
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/s/ Edward Mattner |
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Name:
Edward Mattner
Title: Authorized
Signatory
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ICAHN
CAPITAL MANAGEMENT LP
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By:
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Icahn
Capital LP, its general partner
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By:
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IPH
GP LLC, its general partner
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By:
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Icahn
Enterprises Holding L.P., its sole member
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By:
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Icahn
Enterprises G.P. Inc., its general partner
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By:
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/s/ Andrew Skobe |
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Name:
Andrew Skobe
Title: Chief
Financial Officer
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/s/
Carl C. Icahn
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Carl
C. Icahn
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AMENDMENT
THIS
AMENDMENT is made this 8th
day of
August 2007 by and between Icahn Capital Management LP (the “Management
Company”
or
“Employer”),
Icahn
Onshore LP (the “Onshore
GP”)
and
Icahn Offshore LP (the “Offshore
GP”
and
together with the Onshore GP, the “Fund
GPs”),
and
Keith Meister residing at 525 West 22nd
Street,
New York, NY 10011 (“Employee”
or
“you”).
RECITALS:
Employee
executed an Agreement dated as of December 31, 2004, as amended (the
“Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement) with Icahn Management LP, the Onshore GP, the
Offshore GP and the Icahn Related Entities, as defined therein.
Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as
of
August 8, 2007 between Icahn Management LP and the Management Company (the
“Assignment”),
Icahn
Management LP assigned, transferred and conveyed to the Management Company,
effective as of 12:01 a.m., August 8, 2007 (the “Effective
Date”),
all
of its right, title and interest in and to the Agreement, and the Management
Company assumed and agreed to perform the liabilities and obligations (the
“Assumed
Obligations”)
of
Icahn Management LP under the Agreement, other than liabilities and obligations
arising prior to the Effective Date, including, without limitation, liabilities
and obligations with respect to Employee’s Management Fee Participation arising
prior to the Effective Date (those liabilities and obligations arising prior
to
the Effective Date, the “Retained
Obligations”).
Each
of
Employer, the Onshore GP and the Offshore GP is owned indirectly by American
Real Estate Holdings Limited Partnership, a Delaware limited partnership
(“AREH”).
The
sole limited partner of AREH is American Real Estate Partners, L.P., a Delaware
limited partnership (“AREP”).
The
parties wish to amend the Agreement, as so assigned, such amendments to be
effective as of the Effective Date.
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Consent.
Employee hereby consents to the assignment of the Agreement pursuant to the
Assignment.
2. Obligations
of Icahn Management LP.
Employee
acknowledges and agrees that his right, title and interest to, and his
obligations with respect to, the Management Fee Participation earned pursuant
to
the Agreement prior to the Effective Date were not assigned to the Management
Company pursuant to the Assignment, and that the portion of the Agreement that
relates to such Management Fee Participation has been amended pursuant to the
Amendment In Relation to Management Fee Participation dated as of August 8,
2007
between Icahn Management LP, the Fund GPs, the Icahn Related Entities and
Employee. Employee further agrees and acknowledges that the Management Company
shall have no liability with respect to Employee’s Management Fee Participation
earned prior to the Effective Date.
3. Management
Company.
As of
and following the Effective Date, all references in the Agreement to “Management
Company” or “Employer” shall be deemed to be references to Icahn Capital
Management LP. Notwithstanding the foregoing, Employee acknowledges and agrees
that the payments made to him by Icahn Management LP prior to the Effective
Date
pursuant to his right to distribution and payment of an amount equal to 1.5%
of
the Net Management Fees for the fiscal quarter of the Funds during which the
Effective Date occurs shall also be deemed to satisfy, to the extent applicable,
the corresponding obligation of the Management Company with respect to
Management Fees attributable to the period from the Effective Date through
to
the end of such fiscal quarter.
4. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (a portion of the Agreement remaining with Icahn
Management LP and the balance being assumed by the Management Company) shall
not, in the aggregate, diminish or expand the rights or obligations of Employee
and, in particular, will not diminish or expand his right to receive payments
or
other economic rights, in the aggregate. The parties agree that in addition
to
any other obligations they may have, Icahn Management LP is responsible for
performing all of the Retained Obligations, and the Management Company is
responsible for performing all of the Assumed Obligations. The parties agree
and
acknowledge that neither the Assignment nor this Amendment shall release the
Other Parties from their obligations under the Agreement, as assigned, and
the
Other Parties will continue to be responsible for the obligations under the
Agreement, as assigned, to the extent they are not performed by the Management
Company and its Affiliates. In particular, no incremental cost, if any, that
may
be incurred by the Management Company and that is attributable to the
compensation, bonus or expenses of Carl C. Icahn under his employment agreement
entered into pursuant to that certain Contribution and Exchange Agreement dated
August 8, 2007 by and among Icahn Management LP, CCI Offshore Corp., CCI Onshore
Corp., Carl C. Icahn and AREP (the “Contribution Agreement”), or to the earn-out
payable to Mr. Icahn and his Affiliates under the Contribution Agreement, or
to
any expenses incurred because the Management Company will be owned by AREP
and
its Affiliates (that is, dealing with AREP’s accounting and reporting
requirements), will diminish any amounts to be accrued or paid to Employee
pursuant to the Agreement, as assigned. Attached hereto as Annex A is a schedule
showing Employee’s accrued but unpaid Profit Participation, including unpaid
amounts with respect to his deferred Management Fee Participation and amounts
standing to the credit of the Employee Capital Account in respect of his
Incentive Allocation Participation, updated through August 4, 2007. The parties
agree that, absent manifest error, Annex A accurately sets forth the Profit
Participation of the Employee to the date hereof and methodology for the
calculation of the matters set forth therein.
5. Admission
as Limited Partner.
Section
2 of the Agreement shall be amended as of the Effective Date by the addition
of
the following sentence at the end of Section 2:
Employee
has also been admitted as a limited partner of the Management Company effective
as of the August 8, 2007 (all of which partnership interest and all related
rights, powers and privileges shall, without any further act or deed, cease
and
terminate in all respects on the last day of the Term). References in this
Agreement to the “employment” of Employee by the Management Company shall refer
to Employee’s limited partnership interest in, and his provision of services as
a limited partner to, the Management Company, and all payments to Employee
by
the Management Company provided for herein shall be reported to Employee by
the
Management Company on a Form K-1. The rights of Employee as a limited partner
of
the Management Company, and the duties of the Management Company and its
respective partners to Employee as limited partner of the Management Company,
shall be limited to those expressly set forth in the Agreement, as hereby
amended and as further amended from time to time, and Employee shall have no
other rights as a limited partner of the Management Company, whether by virtue
of applicable statutory law or otherwise. Employee expressly waives and
disclaims any other rights or obligations in favor of Employee.
2
6. Deferral
of Management Fee Participation. As
of and
following the Effective Date, all references in the Agreement to the “Management
Fee Participation” shall mean Employee’s Management Fee Participation earned
hereunder in respect of periods from and after the Effective Date (which for
the
avoidance of doubt does not include the 1.5% of the Net Management Fees required
to be paid to Employee currently). Such deferred Management Fee Participation
shall be deemed to be hypothetically invested in the Offshore Fund, and accruals
and payments to Employee under the Agreement with respect to such deferred
Management Fee Participation shall be equal to the amount hypothetically
invested as the same may be increased or decreased by the actual returns on
the
amounts hypothetically invested in the Offshore Fund. The Management Company
shall be responsible for payment of Employee’s Management Fee Participation
earned on and following the Effective Date, together with all hypothetical
gains
and losses thereon.
7. Vesting.
Employee’s right to receive any amount or payments in respect of the Profit
Participation earned after the Effective Date shall vest in accordance with
Section 11 of the Agreement, taking into account for such purpose Employee’s
periods of service with Icahn Management LP and the Icahn Related Entities
commencing January 1, 2005 through the Effective Date, and Employee’s periods of
service with the Management Company and the Icahn Related Entities from and
after the Effective Date. For the avoidance of doubt, neither the Assignment
nor
Employee’s ceasing to provide services to Icahn Management LP as of the
Effective Date shall result in the accelerated vesting of the Profit
Participation pursuant to Section 11 of the Agreement.
8. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
3
9. Agreement
in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Agreement, as assigned, shall remain and continue in full force and
effect.
10. Responsibility
of AREP.
AREP
shall be jointly and severally responsible for the obligations of the Management
Company hereunder.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
| EMPLOYEE | |
| /s/ Keith Meister | |
| Keith Meister | |
| Icahn Capital Management LP | |
| By: Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory | |
| Icahn Onshore LP | |
| By: Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory | |
| Icahn Offshore LP | |
| By: Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory | |
| AMERICAN REAL ESTATE PARTNERS, L.P. | |
| By: Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory |
[Signature
page to Amendment to Keith Meister Employment Agreement
4
AMENDMENT
IN RELATION TO
MANAGEMENT
FEE PARTICIPATION
This
Amendment In Relation to Management Fee Participation (this “Amendment”)
is
entered into effective as of 12.01 a.m. on August 8, 2007 (the “Effective
Date”)
by and
between Icahn Management LP, a Delaware limited partnership (the “Original
Management Company”),
Icahn
Onshore LP (the “Onshore
GP”)
and
Icahn Offshore LP (the “Offshore
GP”
and,
together with the Onshore GP, the “Fund
GPs”),
and
Keith Meister residing at 525 West 22nd
Street,
New York, NY 10011 (“Employee”).
RECITALS:
The
parties hereto executed an Agreement dated as of December 31, 2004, which was
subsequently amended pursuant to Amendment No. 1 effective as of January 1,
2006
and pursuant to letter agreements dated June 1, 2005, March 14, 2006, April
11,
2006, February 1, 2007 and April 19, 2007 (together, the “Agreement”).
Except
as
otherwise provided herein, capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement.
Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as
of
August 8, 2007 between the Original Management Company and Icahn Capital
Management LP (the “Assignment”),
the
Original Management Company assigned, transferred and conveyed to Icahn Capital
Management LP, effective as of the Effective Date, all of its right, title
and
interest in and to the Agreement, and Icahn Capital Management LP assumed and
agreed to perform the liabilities and obligations (the “Assumed
Obligations”)
of the
Original Management Company under the Agreement, other than liabilities and
obligations arising prior to the Effective Date, including, without limitation,
liabilities and obligations with respect to Employee’s Management Fee
Participation arising prior to the Effective Date (those liabilities and
obligations arising prior to the Effective Date, the “Retained
Obligations”).
Pursuant
to the Agreement, payment of 100% of Employee’s Management Fee Participation
(which for the avoidance of doubt does not include the 1.5% of the Net
Management Fees required to be paid to Employee currently) with respect to
each
of the 2005, 2006 and 2007 calendar years has been deferred to January 30,
2012,
subject to earlier payment upon a Terminating Event, as set forth in Section
12
and Schedule A of the Agreement.
The
parties hereto desire to enter into this Amendment to amend, effective as of
the
Effective Date, that portion of the Agreement that was not subject to the
Assignment (the “Original
Employment Agreement”).
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Provision
of Services.
Effective on and following the Effective Date, Employee shall cease to provide
services to the Original Management Company, but shall remain a limited partner
of the Original Management Company. Effective on and following the Effective
Date, Employee shall provide services to Icahn Capital Management LP, the Fund
GPs and the Icahn Related Entities pursuant to the Agreement, as assigned
pursuant to the Assignment and as amended by the Amendment to the Agreement
effective as of the Effective Date between Icahn Capital Management LP, the
Fund
GPs and Employee.
2. Receipt
of Distributions and Payments.
The
parties agree and acknowledge that (i) Employee has received from the Original
Management Company all distributions and other payments with respect to his
1.5%
non-deferred interest in the Net Management Fees earned prior to the Effective
Date; (ii) Employee will continue to retain, subject to the terms of the
Agreement, his interest in his Management Fee Participation earned prior to
the
Effective Date, together with hypothetical gains and losses on his deferred
Management Fee Participation as if invested in the Master Fund, Master Fund
II
and Master Fund III consistent with past practice, including gains and losses
accruing after the Effective Date, and the Original Management Company will
continue to be responsible for payment thereof; (iii) except as contemplated
in
clause (ii) of this Section 2, Employee will not accrue any further Management
Fee Participation on and after the Effective Date with respect to the Original
Management Company; (iv) Icahn Capital Management LP shall have no liability
with respect to Employee’s Management Fee Participation earned prior to the
Effective Date or hypothetical gains and losses thereon; (v) Icahn Capital
Management LP shall be responsible for payment of Employee’s Management Fee
Participation earned on and following the Effective Date, together with all
hypothetical gains and losses thereon; and (vi) the terms of the Original
Employment Agreement relating to the calculation, deferral, vesting, withdrawal
and nature of, and all of Employee’s rights with respect to, the Management Fee
Participation, shall continue to apply, as hereby amended, to the Management
Fee
Participation earned prior to the Effective Date, and all hypothetical gains
and
losses thereon.
3. Vesting.
Following the Effective Date, Employee’s right to receive from the Original
Management Company any amount or payments in respect of the Management Fee
Participation earned prior to the Effective Date, as deferred, shall continue
to
vest in accordance with Section 11 of the Agreement, taking into account for
such purpose Employee’s periods of service with the Original Management Company
and the Icahn Related Entities commencing January 1, 2005 through the Effective
Date, and Employee’s periods of service with Icahn Capital Management LP and the
Icahn Related Entities from and after the Effective Date. For the avoidance
of
doubt, neither the Assignment nor Employee’s ceasing to provide services to the
Original Management Company as of the Effective Date shall result in the
accelerated vesting of such Management Fee Participation pursuant to Section
11
of the Agreement.
4. Relationship
Between Employee and Original Management Company.
Effective on and after the Effective Date, the relationship between the Original
Management Company and Employee shall be governed exclusively by the Original
Employment Agreement, as hereby amended, and by the Amended and Restated Limited
Partnership Agreement of the Original Management Company dated as of January
1,
2
2006,
as
it may be amended from time to time. For the avoidance of doubt, Employee agrees
and acknowledges that (i) he has not and shall not have any rights, claim or
interest, whether as an allocation of the profits and losses or otherwise,
in or
in relation to depository units representing limited partnership interests
in
American Real Estate Partners, L.P. (“AREP”)
that
the Original Management Company may receive pursuant to that certain
Contribution and Exchange Agreement dated August 8, 2007 by and among the
Original Management Company, CCI Offshore Corp., CCI Onshore Corp., Carl C.
Icahn and AREP (the “Contribution
Agreement”),
or
any other right to or interest in the Contribution Agreement or any agreement,
document or instrument related thereto, or any proceeds of any of the foregoing
or any dividends, earnings or profits thereon, or any earnings or profits
derived from any of the foregoing; and (ii) his rights as a limited partner
in
the Original Management Company includes those (and only those) set forth in
his
Original Employment Agreement and in this Amendment.
5. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (the Original Employment Agreement remaining with
the Original Management Company and the balance being assumed by Icahn Capital
Management LP) shall not, in the aggregate, diminish or expand the rights or
obligations of Employee and, in particular, will not diminish or expand his
right to receive payments or other economic rights, in the aggregate. The
parties agree that in addition to any other obligations they may have, the
Original Management Company is responsible for performing all of the Retained
Obligations, and Icahn Capital Management LP is responsible for performing
all
of the Assumed Obligations. The parties agree and acknowledge that the
Assignment shall not release the Other Parties from their obligations under
the
Agreement, as assigned, and the Other Parties will continue to be responsible
for the obligations under the Agreement, as assigned, to the extent they are
not
performed by Icahn Capital Management LP and its Affiliates. In particular,
no
incremental cost, if any, that may be incurred by Icahn Capital Management
LP
and that is attributable to the compensation, bonus or expenses of Carl C.
Icahn
under his employment agreement entered into pursuant to the Contribution
Agreement, or to the earn-out payable to Mr. Icahn and his Affiliates under
the
Contribution Agreement, or to any expenses incurred because Icahn Capital
Management LP will be owned by AREP and its Affiliates following the Effective
Date (that is, dealing with AREP’s accounting and reporting requirements), will
diminish any amounts to be accrued or paid to Employee pursuant to the
Agreement, as assigned. Attached hereto as Annex A is a schedule showing
Employee’s accrued but unpaid Profit Participation, including unpaid amounts
with respect to his deferred Management Fee Participation and amounts standing
to the credit of the Employee Capital Account in respect of his Incentive
Allocation Participation, updated through August 4, 2007. The parties agree
that, absent manifest error, Annex A accurately sets forth the Profit
Participation of the Employee to the date hereof and methodology for the
calculation of the matters set forth therein.
6. Term.
The
Original Employment Agreement, as hereby amended, shall continue in full force
and effect until the earlier of (i) the date on which Employee’s Management Fee
Participation earned prior to the Effective Date, as deferred, shall have been
paid in
3
full
to
Employee, or (ii) the expiration of the Term of the Agreement pursuant to
Section 6 of the Agreement, as assigned to Icahn Capital Management
LP.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
8. Original
Employment Agreement in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Original Employment Agreement shall remain and continue in full force and effect
with respect to the Management Fee Participation earned prior to the Effective
Date, as deferred.
[The
remainder of this page is intentionally left blank]
4
In
WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
written above.
EMPLOYEE
/s/
Keith Meister
Keith
Meister
Icahn
Management LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
Icahn
Onshore LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
Icahn
Offshore LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
[Signature
page to Amendment to Keith Meister Employment Agreement to reflect the fact
that
he will remain a limited partner in Icahn Management LP but that he will also
become a limited partner of Icahn Capital Management LP]
5
AMENDMENT
TO
AGREEMENT
DATED DECEMBER 31, 2004
THIS
AMENDMENT (this “Amendment”)
is
made this 1st day of January 2008 by and between Icahn Capital Management
LP
(“ICM”),
Icahn
Management LP, Icahn Capital LP (the “Employer”),
Icahn
Onshore LP (the “Onshore
GP”),
Icahn
Offshore LP (the “Offshore
GP”
and
together with the Onshore GP, the “Fund
GPs”),
Icahn
Enterprises L.P. (“IELP”),
the
Icahn Related Entities (as defined below) and Keith Meister residing at 525
West
22nd
Street,
New York, NY 10011 (“Employee”
or
“you”).
RECITALS:
Employee
executed an Agreement dated as of December 31, 2004 (as amended to date
including by this Amendment, the “Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement as amended)
with,
among others, Icahn Management LP, the Onshore GP, the Offshore GP and the
Icahn
Related Entities (as defined in the Agreement).
The
Agreement was assigned by Icahn Management LP to ICM on August 8,
2007.
Icahn
Management LP and ICM have provided administrative and back office services
to
Icahn Partners LP, Icahn Master Fund LP and certain other fund clients (the
“Funds”)
in
consideration of the payment of management fees by the Funds. The management
agreements providing for such management fees (the “Management
Agreements”)
were
terminated during the first day of January 2008.
The
limited partnership agreements of the Funds (the “Fund
LPAs”)
were
amended to provide that as of January 1, 2008 (the “Effective
Date”)
(i)
the Fund GPs will provide administrative and back office services to the
Funds
and (ii) the Fund GPs will receive Special Profits Interest Allocations (as
defined in the Fund LPAs).
Pursuant
to an Assignment dated January 1, 2008, the Employee has assigned,
transferred and conveyed to the Fund GPs, effective as of the Effective Date,
all his right, title and interest in and to his partnership interests in
ICM.
Each
of
ICM, the Onshore GP, the Offshore GP and the Employer is owned indirectly
by
IELP.
Under
the
Agreement, prior to the amendments contemplated herein, Employee is, generally
speaking, entitled to the following during the Term:
| a) |
a
1.5% interest in the net management fees paid during the Term by
the Funds
from and after January 1, 2006 (being the management fee net of expenses
of the Management Company), such amount to be distributed promptly
following each payment of such management fees to the Management
Company;
|
| b) |
a
2.5% interest in management fees earned between November 3, 2004 and
the last day of the Term (which amount will be calculated with respect
to
management fees for periods from and after January 1, 2006 net of
expenses
of the Management Company), vesting as set forth in the
Agreement;
|
| c) |
a
1.5% participation in the incentive allocations from the Funds made
during
the Term on and after December 31, 2006, such 1.5% to be distributed
promptly following each December 31 during the
Term:
|
| d) |
a
2.5% participation in the incentive allocations from the Funds made
between November 3, 2004 and the last day of the Term, vesting as set
forth in the Agreement.
|
Pursuant
to the various agreements contemplated above, the management agreement and
the
management fees are being terminated and the general partners of the Funds
are
going to be receiving Special Profits Interest Allocations from the Funds
(together, the “Termination
and Allocation”).
The parties are entering into this Amendment with the intent of maintaining
their economic rights and obligations under the Agreement, as generally
summarized above in paragraphs (a) through (d) taking into account the
Termination and Allocation and this Amendment should be interpreted to
maintain the substance of the rights and obligations set forth in such
paragraphs (it being understood by the parties however that under the
Agreement as amended hereby the 2.5% interest in management fees will instead
come only out of profits (through the Special Profits Interest Allocations)
earned by the Funds, if any.
The
parties wish the amendments to the Agreement effected hereby to be effective
as
of the Effective Date.
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, effective as
of the
Effective Date the parties agree as follows:
1. Management
Agreements Termination.
The
Employee agrees that although the Management Agreements were in effect for
a
portion of January 1, 2008 and were then terminated, he is not entitled to
any payment in respect of the management fees that were payable thereunder
prior
to termination for 2008 (or thereafter) inasmuch as the parties to the
Management Agreements have agreed that no management fees were accrued or
earned
thereunder after December 31, 2007.
2. Employment.
Icahn
Capital LP shall be an “Icahn Entity” for all purposes of the Agreement. All
references to “Employer” in the Agreement shall be references to Icahn Capital
LP.
3. Amendments
to Defined Terms.
For all
periods from and after January 1, 2008:
A. All
references in the Agreement to “the Management Company” shall be references to
“the Fund GPs”.
B. All
references in the Agreement to “Management Fees” shall be references to “the
Fund GPs’ Special Profits Interest Allocations” and all references to
“Management Fee Participation” shall be to “Employee’s Special Profits Interest
Allocation Participation”.
2
C. “The
Fund
GPs’ Net Special Profits Interest Allocations” shall mean in respect of each
year of the Term commencing on or after the Effective Date, each of Onshore
GP’s
and Offshore GP’s Special Profits Interest Allocations in the Funds less the
smaller of: (a) the sum of (i) the costs and expenses borne directly or
indirectly by the Fund GPs and their affiliates in providing administrative
and
back office services to the Funds pursuant to the Fund LPAs (as reasonably
determined and, to the extent applicable, consistent with past practices
of the
Fund GPs and their affiliates) plus (ii) the amount of all Incentive Allocations
and Fund GPs’ Net Special Profit Interest Allocations allocated to Aegis Capital
Corp. (“Aegis”) pursuant to the agreement among, inter alia, Aegis and the Fund
GPs dated April 1, 2006 as amended and (b) the amount of the Annual Expense
Cap in effect with respect to such year pursuant to the Agreement (collectively,
the “Fund GP Expenses”). Without limiting the generality of the parenthetical
contained in clause (a)(i) above, no incremental cost, if any, that may be
incurred by the Fund GPs and that is attributable to the compensation, bonus
or
expenses of Carl C. Icahn under his employment agreement dated August 8,
2007,
as amended from time to time, with ICM and IELP or to the earn-out payable
to
Mr. Icahn and his Affiliates under the Contribution Agreement executed on
August
8, 2007 in connection therewith, or to any expenses incurred because the
Fund
GPs will be owned by IELP and its Affiliates (that is, dealing with IELP’s
accounting and reporting requirements), will diminish any amounts to be accrued
or paid to Employee pursuant to the Agreement.
4. Cash
Compensation.
For all
periods from and after January 1, 2008, Section 7 of the Agreement is hereby
amended to provide that the Employee shall be entitled to receive additional
Cash Compensation (that is, in addition to his base salary and Bonus as
presently provided pursuant to Section 7) each quarter during the Term,
commencing with January 1, 2008, equal to 1.5% of (a) minus (b) where (a)
equals
the aggregate Target Special Profits Interest Amounts (as defined in the
Fund
LPAs) of the limited partners in the Funds and (b) equals the Fund GP
Expenses for such quarter. Such additional Cash Compensation shall be paid
in
advance on the first business day of each quarter based on a good faith estimate
of the Fund GP Expenses that will be incurred by the Fund GPs during such
quarter. If, due to any miscalculation or mis-estimation of Fund GP Expenses
or
any other reason, the Employee shall have been paid in cash more or less
than he
is entitled to under the Agreement, then an appropriate adjustment shall
be
made.
5. Restatement.
For all
periods from and after January 1, 2008, Section 9 of the Agreement is hereby
amended and restated in its entirety as follows:
9. Profit
Participation.
i) Subject
to all of the terms and provisions of this Agreement (including, without
limitation, those relating to vesting and forfeiture) the Employee shall
be
entitled to receive 2.5% of the Fund GPs’ Net Special Profits Interest
Allocations and 4.0% (2.5% of which is subject to vesting and 1.5% of which
will
be paid annually as provided in paragraph 9(iv) below) of the Incentive
Allocations allocated to the Fund GPs during the period from January 1,
2008 through the last day of the Term. If, due to any miscalculation or any
other reason, the Employee shall have been allocated more or less than he
is
entitled to under the Agreement, then an appropriate adjustment shall be
made.
3
ii) The
Employee’s participation in the Fund GPs’ Net Special Profits Interest
Allocations and Incentive Allocations for each year shall be reflected by
the
establishment of capital accounts (the “Employee Capital Accounts”) in the name
of Employee, as a limited partner, under the Partnership Agreements. As
contemplated by the Fund LPAs, all amounts credited to each Employee Capital
Account in respect of the Fund GPs’ Net Special Interest Allocations and
Incentive Allocations will be invested by the Onshore GP in the Onshore Fund
and
by the Offshore GP in Icahn Partners Master Fund LP, Icahn Partners Master
Fund
II LP and Icahn Partners Master Fund III LP (collectively, the “Offshore
Funds”), in each case for the benefit of the Employee Capital Account
established in the Onshore GP or Offshore GP, as the case may be. The right
of
the Employee to participate in each of the Fund GPs’ Net Special Profits
Interest Allocations (the “Employee’s Net Special Profits Interest Allocation
Participation”) and the Incentive Allocations (the “Employee’s Incentive
Allocation Participation”), subject to and in accordance with the terms of this
Agreement, and in any investment made in respect thereof in accordance with
the
terms of this Agreement and all returns, earnings and profits thereon, are
referred to collectively herein as the “Profit Participation”.
iii) Subject
to the final sentence of this paragraph 9(iii), Employee acknowledges and
agrees
that pursuant to the terms of this Agreement, Employee will only participate
in
the Fund GPs’ Net Special Profits Interest Allocations and Incentive Allocations
allocated from January 1, 2008 until he ceases to be employed hereunder and
that
if such employment ceases for any reason he will not accrue any further benefit
in respect of the Fund GPs’ Net Special Profits Interest Allocations or
Incentive Allocations allocated thereafter, nor will he have any ongoing
rights
or interest in respect of the Fund GPs’ Net Special Profits Interest Allocations
or Incentive Allocations allocated on or prior to the date such employment
ceases other than the right to Vested Amounts (as defined below) in respect
of
Fund GPs’ Net Special Profits Interest Allocations and Incentive Allocations
allocated on or prior to the date such employment ceases (and any investment
made in respect thereof, and all returns, earnings and profits thereon, made
in
accordance with the terms of this Agreement). Because the Fund GPs’ Net Special
Interest Allocations and Incentive Allocations are made as of year end (other
than in the event of dissolution, partner withdrawal or other events specified
in the Fund LPAs, in which event such allocations are made as of the date
prior
to year end specified in such agreement (the periods in respect of which
such
allocations are made, each a “Short Period”)), in the event that the employment
of Employee hereunder ceases, the Employee’s Net Special Profits Interest
Allocation Participation and Incentive Allocation Participation under this
Agreement will include a pro rated portion of 4.0% of the immediately following
Fund GPs’ Net Special Profits Interest Allocations and Incentive Allocations
(based upon the number of days elapsed in the one year period beginning on
January 1 of the year in which such employment ceases, divided by 365 (and
in
the case of a Short Period during which such employment ceases, the number
of
days elapsed from January 1 of the Short Period until such employment ceases,
divided by the total number of days in the Short Period).
4
iv) Employee’s
1.5% share of the Incentive Allocations allocated to the Fund GPs during
the
period from January 1, 2008 through the last day of the Term pursuant to
paragraph 9(i) above shall be distributed to the Employee promptly following
each December 31 occurring during the Term.
6. Prior
Rights Undiminished.
The
parties agree and acknowledge that (i) except as provided in Section 7 below,
the Employee’s rights under the Agreement with respect to periods prior to the
Effective Date (including, without limitation, with respect to management
fees
and incentive allocations earned and allocated prior to such date) remain
intact
and are not amended, affected or diminished in any way by this Amendment
and
(ii) neither the Assignment nor this Amendment shall release the Other Parties
from their obligations under the Agreement, and the Other Parties will continue
to be responsible for the obligations under the Agreement, to the extent
they
are not performed by the Fund GPs, the Employer or their
affiliates.
7. Deferral
Termination Trigger. The
Agreement, including without limitation Section 10 and Section(b)(I) of Schedule
A thereof and Section 5 of the February 1, 2007 amendment thereof, is amended
pursuant to transition relief promulgated under Section 409A of the Internal
Revenue Code of 1986, as amended, and contained in Internal Revenue Service
Notices 2005-1, 2006-79 and 2007-86 and Section XI(C) of the preamble to
REG-158080-04, 2005-43 I.R.B. 786, dated October 4, 2005 (Application of
Section
409A to Nonqualified Deferred Compensation Plans), to delete all provisions
that
would permit or cause any portion of the deferred Management Fee Participation
owing by Icahn Management LP or ICM to Employee to be payable to the Employee
upon the termination of Management Agreements.
8. Change
in Character.
For all
periods from and after January 1, 2008, and after giving effect to Section
7
above, Sections 10 and 21(ix) and Section(b)(I) of Schedule A of the Agreement
and Section 5 of the February 1, 2007 amendment to the Agreement are
deleted in their entirety except with respect to the portions of the Management
Fee Participation that were properly deferred pursuant to the Agreement prior
to
January 1, 2008. For the avoidance of doubt and without limiting Section 6
above, such sections (exclusive of the third sentence of Section 5 of the
February 1, 2007 amendment to the Agreement which is deleted for all
purposes) shall continue to be applicable to the portions of the Management
Fee
Participation that were properly deferred pursuant to the Agreement in respect
of periods to January 1, 2008.
5
9. Vesting.
Employee’s right to receive any amount or payments in respect of the Profit
Participation (other than his 1.5% share of Incentive Allocations payable
pursuant to Section 9(iv) of the Agreement) allocated from and after the
Effective Date shall vest in accordance with Section 11 of the Agreement,
taking
into account for such purpose Employee’s periods of service with Icahn
Management LP, ICM and the other Icahn Related Entities commencing January
1,
2005 through the date preceding the Effective Date, and Employee’s periods of
service with the Employer and the other Icahn Related Entities from and after
the Effective Date. For the avoidance of doubt, none of the Assignment, the
execution of this Amendment, the termination of the Management Agreements
or the
Employee’s ceasing to provide services to ICM as of the Effective Date shall
accelerate vesting of the Profit Participation payable by Icahn Management
LP or
ICM pursuant to Section 11 of the Agreement. Section 11(C) of the Agreement
is
amended to substitute “Employer” for the reference to “Management
Company”.
10. Withdrawal.
Sections 12(ii) and 13 of the Agreement are amended to delete the following
text
in both places where it appears: “(calculated in accordance with the methodology
set forth in the Partnership Agreement of the applicable Fund GP)”.
11. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws
of the
State of New York applicable to agreements made and/or to be performed in
that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
12. Agreement
in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Agreement, shall remain and continue in full force and effect.
13. Responsibility
of IELP.
IELP
shall be jointly and severally responsible for the obligations of the Employer
and the Fund GPs under the Agreement.
[INTENTIONALLY
LEFT BLANK]
6
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
/s/
Keith Meister
Keith
Meister
ICAHN
CAPITAL MANAGEMENT LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
ICAHN
MANAGEMENT LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
ICAHN
CAPITAL LP
By:
IPH
GP LLC, its general partner
By:
Icahn
Enterprises Holding L.P.
By:
Icahn
Enterprises G.P. Inc.
By:
/s/ Andrew Skobe
Name:
Andrew Skobe
Title:
Chief Financial Officer
ICAHN
ONSHORE LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
ICAHN
OFFSHORE LP
By: /s/
Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
7
ICAHN
ENTERPRISES L.P.
By:
Icahn
Enterprises G.P. Inc., its general partner
By:
/s/ Andrew Skobe
Name:
Andrew Skobe
Title:
Chief Financial Officer
ICAHN
RELATED ENTITIES
By:
/s/ Carl Icahn
Name:
Carl Icahn
Title: Authorized
Signatory
8
AMENDMENT
THIS
AMENDMENT is made this 8th day of August 2007 by and between Icahn Capital
Management LP (the “Management
Company”
or
“Employer”),
Icahn
Onshore LP (the “Onshore
GP”)
and
Icahn Offshore LP (the “Offshore
GP”
and
together with the Onshore GP, the “Fund
GPs”),
and
Vincent J. Intrieri residing at 1365 York Avenue, Apartment 21B, New York,
NY
10128 (“Employee”
or
“you”).
RECITALS:
Employee
executed an Agreement dated as of December 31, 2004, as amended (the
“Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement) with Icahn Management LP, the Onshore GP, the
Offshore GP and the Icahn Related Entities, as defined therein.
Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as
of
August 8, 2007 between Icahn Management LP and the Management Company (the
“Assignment”),
Icahn
Management LP assigned, transferred and conveyed to the Management Company,
effective as of 12:01 a.m., August 8, 2007 (the “Effective
Date”),
all
of its right, title and interest in and to the Agreement, and the Management
Company assumed and agreed to perform the liabilities and obligations (the
“Assumed
Obligations”)
of
Icahn Management LP under the Agreement, other than liabilities and obligations
arising prior to the Effective Date, including, without limitation, liabilities
and obligations with respect to Employee’s Management Fee Participation arising
prior to the Effective Date (those liabilities and obligations arising prior
to
the Effective Date, the “Retained
Obligations”).
Each
of
Employer, the Onshore GP and the Offshore GP is owned indirectly by American
Real Estate Holdings Limited Partnership, a Delaware limited partnership
(“AREH”).
The
sole limited partner of AREH is American Real Estate Partners, L.P., a Delaware
limited partnership (“AREP”).
The
parties wish to amend the Agreement, as so assigned, such amendments to be
effective as of the Effective Date.
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Consent.
Employee hereby consents to the assignment of the Agreement pursuant to the
Assignment.
2. Obligations
of Icahn Management LP.
Employee
acknowledges and agrees that his right, title and interest to, and his
obligations with respect to, the Management Fee Participation earned pursuant
to
the Agreement prior to the Effective Date were not assigned to the Management
Company pursuant to the Assignment, and that the portion of the Agreement that
relates to such Management Fee Participation has been amended pursuant to the
Amendment In Relation to Management Fee Participation dated as of August 8,
2007
between Icahn Management LP, the Fund GPs, the Icahn Related Entities and
Employee. Employee further agrees and acknowledges that the Management Company
shall have no liability with respect to Employee’s Management Fee Participation
earned prior to the Effective Date.
3. Management
Company.
As of
and following the Effective Date, all references in the Agreement to “Management
Company” or “Employer” shall be deemed to be references to Icahn Capital
Management LP.
4. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (a portion of the Agreement remaining with Icahn
Management LP and the balance being assumed by the Management Company) shall
not, in the aggregate, diminish or expand the rights or obligations of Employee
and, in particular, will not diminish or expand his right to receive payments
or
other economic rights, in the aggregate. The parties agree that in addition
to
any other obligations they may have, Icahn Management LP is responsible for
performing all of the Retained Obligations, and the Management Company is
responsible for performing all of the Assumed Obligations. The parties agree
and
acknowledge that neither the Assignment nor this Amendment shall release the
Other Parties from their obligations under the Agreement, as assigned, and
the
Other Parties will continue to be responsible for their obligations under the
Agreement, as assigned, to the extent they are not performed by the Management
Company and its Affiliates. In particular, no incremental cost, if any, that
may
be incurred by the Management Company and that is attributable to the
compensation, bonus or expenses of Carl C. Icahn under his employment agreement
entered into pursuant to that certain Contribution and Exchange Agreement dated
August 8, 2007 by and among CCI Offshore Corp., CCI Onshore Corp., Icahn
Management LP, Mr. Icahn and AREP (the “Contribution
Agreement”),
or to
the earn-out payable to Mr. Icahn and his Affiliates under the Contribution,
or
to any expenses incurred because the Management Company will be owned by AREP
and its Affiliates (that is, dealing with AREP’s accounting and reporting
requirements), will diminish any amounts to be accrued or paid to Employee
pursuant to the Agreement, as assigned. Attached hereto as Annex A is a schedule
showing Employee’s accrued but unpaid Profit Participation, including unpaid
amounts with respect to his deferred Management Fee Participation and amounts
standing to the credit of the Employee Capital Account in respect of his
Incentive Allocation Participation, updated through August 4, 2007. The parties
agree that, absent manifest error, Annex A accurately sets forth the Profit
Participation of the Employee to the date hereof and methodology for the
calculation of the matters set forth therein.
5. Deferral
of Management Fee Participation. As
of and
following the Effective Date, all references in the Agreement to the “Management
Fee Participation” shall mean Employee’s Management Fee Participation earned
hereunder in respect of periods from and after the Effective Date. Such deferred
Management Fee Participation shall be deemed to be hypothetically invested
in
the Offshore Fund, or in such other Funds that the Management Company may select
from time to time, and accruals and payments to Employee under the Agreement
with respect to such deferred Management Fee Participation shall be equal to
the
amount hypothetically invested as the same may be increased or decreased by
the
actual returns on the amounts hypothetically invested in the Offshore Fund.
The
Management Company shall be responsible for payment of Employee’s Management Fee
Participation earned on and following the Effective Date, together with all
hypothetical gains and losses thereon.
2
6. Vesting.
Employee’s right to receive any amount or payments in respect of the Profit
Participation earned after the Effective Date shall vest in accordance with
Section 11 of the Agreement, taking into account for such purpose Employee’s
periods of service with Icahn Management LP and the Icahn Related Entities
commencing January 1, 2005 through the Effective Date, and Employee’s periods of
service with the Management Company and the Icahn Related Entities from and
after the Effective Date. For the avoidance of doubt, neither the Assignment
nor
Employee’s ceasing to provide services to Icahn Management LP as of the
Effective Date shall result in the accelerated vesting of the Profit
Participation pursuant to Section 11 of the Agreement.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
8. Agreement
in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Agreement, as assigned, shall remain and continue in full force and
effect.
9. Responsibilities
of AREP.
If any
amount required to be paid to Employee by Employer hereunder is not paid when
due, following written demand by Employee to AREP, AREP shall be responsible
for
paying all such amounts to Employee.
[The
remainder of this page is intentionally left blank]
3
In
WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
written above.
| EMPLOYEE | |
| /s/ Vincent J. Intrieri | |
| Vincent J. Intrieri | |
| Icahn Capital Management LP | |
| By: /s/ Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory | |
| Icahn Onshore LP | |
| By: /s/ Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory | |
| Icahn Offshore LP | |
| By: /s/ Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory | |
| American Real Estate Partners, L.P. | |
| By: /s/ Edward Mattner | |
| Name: Edward Mattner | |
| Title: Authorized Signatory |
[Signature
page to Amendment to Vincent J. Intrieri
Employment Agreement]
4
AMENDMENT
IN RELATION TO
MANAGEMENT
FEE PARTICIPATION
This
Amendment In Relation to Management Fee Participation (this “Amendment”)
is
entered into effective as of 12.01 a.m. on August 8, 2007 (the “Effective
Date”)
by and
between Icahn Management LP, a Delaware limited partnership (the “Original
Management Company”),
Icahn
Onshore LP (the “Onshore
GP”)
and
Icahn Offshore LP (the “Offshore
GP”
and,
together with the Onshore GP, the “Fund
GPs”),
and
Vincent J. Intrieri residing at 1365 York Avenue, Apartment 21B, New York,
NY
10128 (“Employee”).
RECITALS:
The
parties hereto executed an Agreement dated as of December 31, 2004, as
subsequently amended (the “Agreement”).
Except as otherwise provided herein, capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the
Agreement.
Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as
of
August 8, 2007 between the Original Management Company and Icahn Capital
Management LP (the “Assignment”),
the
Original Management Company assigned, transferred and conveyed to Icahn Capital
Management LP, effective as of the Effective Date, all of its right, title
and
interest in and to the Agreement, and Icahn Capital Management LP assumed and
agreed to perform the liabilities and obligations (the “Assumed
Obligations”)
of the
Original Management Company under the Agreement, other than liabilities and
obligations arising prior to the Effective Date, including, without limitation,
liabilities and obligations with respect to Employee’s Management Fee
Participation arising prior to the Effective Date (those liabilities and
obligations arising prior to the Effective Date, the “Retained
Obligations”).
Pursuant
to the Agreement, payment of 100% of Employee’s Management Fee Participation
with respect to each of the 2005, 2006 and 2007 calendar years has been deferred
to January 30, 2010, subject to earlier payment upon a Terminating Event, as
set
forth in Section 12 and Schedule A of the Agreement.
The
parties hereto desire to enter into this Amendment to amend, effective as of
the
Effective Date, that portion of the Agreement that was not subject to the
Assignment (the “Original
Employment Agreement”).
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Provision
of Services.
Effective on and following the Effective Date, Employee shall cease to be an
employee of the Original Management Company. Effective on and following the
Effective Date, Employee shall become an employee of Icahn Capital Management
LP
pursuant to the Agreement, as assigned pursuant to the Assignment
and
as
amended by the Amendment to the Agreement effective as of the Effective Date
between Icahn Capital Management LP, the Fund GPs and Employee.
2. Management
Fee Participation.
The
parties agree and acknowledge that (i) Employee will continue to retain, subject
to the terms of the Agreement, his interest in his Management Fee Participation
earned prior to the Effective Date, together with hypothetical gains and losses
on his deferred Management Fee Participation as if invested in the Master Fund,
Master Fund II and Master Fund III consistent with past practice, including
gains and losses accruing after the Effective Date, and the Original Management
Company will continue to be responsible for payment thereof; (ii) except as
contemplated in clause (i) of this Section 2, Employee will not accrue any
further Management Fee Participation on and after the Effective Date with
respect to the Original Management Company; (iii) Icahn Capital Management
LP
shall have no liability with respect to Employee’s Management Fee Participation
earned prior to the Effective Date or hypothetical gains or losses thereon;
(iv)
Icahn Capital Management LP shall be responsible for payment of Employee’s
Management Fee Participation earned on and following the Effective Date,
together with all hypothetical gains and losses thereon; and (v) the terms
of
the Original Employment Agreement relating to the calculation, deferral,
vesting, withdrawal and nature of, and all of Employee’s rights with respect to,
the Management Fee Participation, shall continue to apply, as hereby amended,
to
the Management Fee Participation earned prior to the Effective Date, and all
hypothetical gains and losses thereon.
3. Vesting.
Following the Effective Date, Employee’s right to receive from the Original
Management Company any amount or payments in respect of the Management Fee
Participation earned prior to the Effective Date, as deferred, shall continue
to
vest in accordance with Section 11 of the Agreement, taking into account for
such purpose Employee’s employment with the Original Management Company and the
Icahn Related Entities commencing January 1, 2005 through the Effective Date,
and Employee’s employment with Icahn Capital Management LP and the Icahn Related
Entities from and after the Effective Date. For the avoidance of doubt, neither
the Assignment nor Employee’s ceasing to provide services to the Original
Management Company as of the Effective Date shall result in the accelerated
vesting of such Management Fee Participation.
4. Relationship
Between Employee and Original Management Company.
Effective on and after the Effective Date, the relationship between the Original
Management Company and Employee shall be governed exclusively by the Original
Employment Agreement, as hereby amended. The Original Management Company shall
perform all of the Retained Obligations when due.
5. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (the Original Employment Agreement remaining with
the Original Management Company and the balance being assumed by Icahn Capital
Management LP) shall not, in the aggregate, diminish or expand the rights or
obligations of Employee and, in particular, will not diminish or expand his
right to receive payments or other economic rights, in the aggregate.
The
2
parties
agree that in addition to any other obligations they may have, the Original
Management Company is responsible for performing all of the Retained
Obligations, and Icahn Capital Management LP is responsible for performing
all
of the Assumed Obligations. The parties agree and acknowledge that the
Assignment shall not release the Other Parties from their obligations under
the
Agreement, as assigned, and the Other Parties will continue to be responsible
for their obligations under the Agreement, as assigned, to the extent they
are
not performed by Icahn Capital Management LP and its Affiliates. In particular,
no incremental cost, if any, that may be incurred by Icahn Capital Management
LP
and that is attributable to the compensation, bonus or expenses of Carl C.
Icahn
under his employment agreement entered into pursuant to that certain
Contribution and Exchange Agreement dated August 8, 2007 by and among CCI
Offshore Corp., CCI Onshore Corp., the Original Management Company, Mr. Icahn
and American Real Estate Partners, L.P. (“AREP”) (the “Contribution Agreement”),
or to the earn-out payable to Mr. Icahn and his Affiliates under the
Contribution Agreement, or to any expenses incurred because Icahn Capital
Management LP will be owned by AREP and its Affiliates following the Effective
Date (that is, dealing with AREP’s accounting and reporting requirements), will
diminish any amounts to be accrued or paid to Employee pursuant to the
Agreement, as assigned. Attached hereto as Annex A is a schedule showing
Employee’s accrued but unpaid Profit Participation, including unpaid amounts
with respect to his deferred Management Fee Participation and amounts standing
to the credit of the Employee Capital Account in respect of his Incentive
Allocation Participation, updated through August 4, 2007. The parties agree
that, absent manifest error, Annex A accurately sets forth the Profit
Participation of the Employee to the date hereof and methodology for the
calculation of the matters set forth therein.
6. Term.
The
Original Employment Agreement, as hereby amended, shall continue in full force
and effect until the earlier of (i) the date on which Employee’s Management Fee
Participation earned prior to the Effective Date, as deferred, shall have been
paid in full to Employee, or (ii) the expiration of the Term of the Agreement
pursuant to Section 6 of the Agreement, as assigned to Icahn Capital Management
LP.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
8. Original
Employment Agreement in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Original Employment Agreement shall remain and continue in full force and effect
with respect to the Management Fee Participation earned prior to the Effective
Date, as deferred.
[The
remainder of this page is intentionally left blank]
3
In
WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
written above.
EMPLOYEE
/s/
Vincent J. Intrieri
Vincent
J. Intrieri
Icahn
Management LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
Icahn
Onshore LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
Icahn
Offshore LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
[Signature
page to Amendment to Vincent J. Intrieri
Employment
Agreement with Icahn Management LP]
4
AMENDMENT
TO
AGREEMENT
DATED DECEMBER 31, 2004
THIS
AMENDMENT (this “Amendment”)
is
made this 1st day of January 2008 by and between Icahn Capital Management LP
(“ICM”),
Icahn
Management LP, Icahn Capital LP (the “Employer”),
Icahn
Onshore LP (the “Onshore
GP”),
Icahn
Offshore LP (the “Offshore
GP”
and
together with the Onshore GP, the “Fund
GPs”),
Icahn
Enterprises L.P. (“IELP”),
the
Icahn Related Entities (as defined below) and Vincent J. Intrieri residing
at
1675 York Avenue, Unit 4K, New York, NY 10128 (“Employee”
or
“you”).
RECITALS:
Employee
executed an Agreement dated as of December 31, 2004 (as amended to date
including by this Amendment, the “Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement as amended) with, among others, Icahn Management
LP,
the Onshore GP, the Offshore GP and the Icahn Related Entities (as defined
in
the Agreement).
The
Agreement was assigned by Icahn Management LP to ICM on August 8,
2007.
Icahn
Management LP and ICM have provided administrative and back office services
to
Icahn Partners LP, Icahn Master Fund LP and certain other fund clients (the
“Funds”)
in
consideration of the payment of management fees by the Funds. The management
agreements providing for such management fees (the “Management
Agreements”)
were
terminated during the first day of January 2008.
The
limited partnership agreements of the Funds (the “Fund
LPAs”)
were
amended to provide that as of January 1, 2008 (the “Effective
Date”)
(i)
the Fund GPs will provide administrative and back office services to the Funds
and (ii) the Fund GPs will receive Special Profits Interest Allocations (as
defined in the Fund LPAs).
Each
of
ICM, the Onshore GP, the Offshore GP and the Employer is owned indirectly by
IELP.
Under
the
Agreement, prior to the amendments contemplated herein, Employee is, generally
speaking, entitled to the following during the Term:
| a) |
a
2.5% interest in management fees paid between November 3, 2004 and
the
last day of the Term, vesting as set forth in the
Agreement;
|
| b) |
a
2.5% participation in the incentive allocations from the Funds made
between November 3, 2004 and the last day of the Term, vesting as
set
forth in the Agreement.
|
Pursuant
to the various agreements contemplated above, the management agreement and
the
management fees are being terminated and the general partners of the Funds
are
going to be receiving Special Profits Interest Allocations from the Funds
(together, the “Termination
and Allocation”).
The parties are entering into this Amendment with the intent of maintaining
their economic rights and obligations under the Agreement, as generally
summarized above in paragraphs (a) through (b) taking into account the
Termination and Allocation and this Amendment should be interpreted to
maintain the substance of the rights and obligations set forth in such
paragraphs (it being understood by the parties however that under the
Agreement as amended hereby the 2.5% interest in management fees will instead
come only out of profits (through the Special Profits Interest Allocations)
earned by the Funds, if any.
The
parties wish the amendments to the Agreement effected hereby to be effective
as
of the Effective Date.
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, effective as of
the
Effective Date the parties agree as follows:
1. Management
Agreements Termination.
The
Employee agrees that although the Management Agreements were in effect for
a
portion of January 1, 2008 and were then terminated, he is not entitled to
any payment in respect of the management fees that were payable thereunder
prior
to termination for 2008 (or thereafter) inasmuch as the parties to the
Management Agreements have agreed that no management fees were accrued or earned
thereunder after December 31, 2007.
2. Employment.
Icahn
Capital LP shall be an “Icahn Entity” for all purposes of the Agreement. All
references to “Employer” in the Agreement shall be references to Icahn Capital
LP.
3. Amendments
to Defined Terms.
For all
periods from and after January 1, 2008:
A. All
references in the Agreement to “the Management Company” shall be references to
“the Fund GPs”.
B. All
references in the Agreement to “Management Fees” shall be references to “the
Fund GPs’ Special Profits Interest Allocations” and all references to
“Management Fee Participation” shall be to “Employee’s Special Profits Interest
Allocation Participation”.
C. “The
Fund GPs’ Special Profits Interest Allocations”
shall
mean in respect of each year of the Term commencing on or after the Effective
Date, each of Onshore GP’s and Offshore GP’s Special Profits Interest
Allocations in the Funds. For the avoidance of doubt, no incremental cost,
if
any, that may be incurred by the Fund GPs and that is attributable to the
compensation, bonus or expenses of Carl C. Icahn under his employment agreement
dated August 8, 2007, as amended from time to time, with ICM and IELP or to
the
earn-out payable to Mr. Icahn and his Affiliates under the Contribution
Agreement executed on August 8, 2007 in connection therewith, or to any expenses
incurred because the Fund GPs will be owned by IELP and its Affiliates (that
is,
dealing with IELP’s accounting and reporting requirements), will diminish any
amounts to be accrued or paid to Employee pursuant to the
Agreement.
4. Restatement.
For all
periods from and after January 1, 2008, Section 9 of the Agreement is hereby
amended and restated in its entirety as follows:
2
9. Profit
Participation.
i) Subject
to all of the terms and provisions of this Agreement (including, without
limitation, those relating to vesting and forfeiture) the Employee shall be
entitled to receive 2.5% of the Fund GPs’ Special Profits Interest Allocations
and 2.5% of the Incentive Allocations allocated to the Fund GPs during the
period from January 1, 2008 through the last day of the Term. If, due to
any miscalculation or any other reason, the Employee shall have been allocated
more or less than he is entitled to under the Agreement, then an appropriate
adjustment shall be made.
ii) The
Employee’s participation in the Fund GPs’ Special Profits Interest Allocations
and Incentive Allocations for each year shall be reflected by the establishment
of capital accounts (the “Employee Capital Accounts”) in the name of Employee,
as a limited partner, under the Partnership Agreements. As contemplated by
the
Fund LPAs, all amounts credited to each Employee Capital Account in respect
of
the Fund GPs’ Net Special Interest Allocations and Incentive Allocations will be
invested by the Onshore GP in the Onshore Fund and by the Offshore GP in Icahn
Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners
Master Fund III LP (collectively, the “Offshore Funds”), in each case for the
benefit of the Employee Capital Account established in the Onshore GP or
Offshore GP, as the case may be. The right of the Employee to participate in
each of the Fund GPs’ Special Profits Interest Allocations (the “Employee’s
Special Profits Interest Allocation Participation”) and the Incentive
Allocations (the “Employee’s Incentive Allocation Participation”), subject to
and in accordance with the terms of this Agreement, and in any investment made
in respect thereof in accordance with the terms of this Agreement and all
returns, earnings and profits thereon, are referred to collectively herein
as
the “Profit Participation”.
iii) Subject
to the final sentence of this paragraph 9(iii), Employee acknowledges and agrees
that pursuant to the terms of this Agreement, Employee will only participate
in
the Fund GPs’ Special Profits Interest Allocations and Incentive Allocations
allocated from January 1, 2008 until he ceases to be employed hereunder and
that
if such employment ceases for any reason he will not accrue any further benefit
in respect of the Fund GPs’ Special Profits Interest Allocations or Incentive
Allocations allocated thereafter, nor will he have any ongoing rights or
interest in respect of the Fund GPs’ Special Profits Interest Allocations or
Incentive Allocations allocated on or prior to the date such employment ceases
other than the right to Vested Amounts (as defined below) in respect of Fund
GPs’ Special Profits Interest Allocations and Incentive Allocations allocated on
or prior to the date such employment ceases (and any investment made in respect
thereof, and all returns, earnings and profits thereon, made in accordance
with
the terms of this Agreement). Because the Fund GPs’ Net Special Interest
Allocations and Incentive Allocations are made as of year end (other than in
the
event of dissolution, partner withdrawal or other events specified in the Fund
LPAs, in which event such allocations are made as of the date prior to year
end
specified in such agreement (the periods in respect of which such allocations
are made, each a “Short Period”)), in the event that the employment of Employee
hereunder ceases, the Employee’s Special Profits Interest Allocation
Participation and Incentive Allocation Participation under this Agreement will
include a pro rated portion of 2.5% of the immediately following Fund GPs’
Special Profits Interest Allocations and Incentive Allocations (based upon
the
number of days elapsed in the one year period beginning on January 1 of the
year
in which such employment ceases, divided by 365 (and in the case of a Short
Period during which such employment ceases, the number of days elapsed from
January 1 of the Short Period until such employment ceases, divided by the
total
number of days in the Short Period).
3
5. Prior
Rights Undiminished.
The
parties agree and acknowledge that (i) except as provided in Section 6 below,
the Employee’s rights under the Agreement with respect to periods prior to the
Effective Date (including, without limitation, with respect to management fees
and incentive allocations earned and allocated prior to such date) remain intact
and are not amended, affected or diminished in any way by this Amendment and
(ii) this Amendment shall not release the Other Parties from their obligations
under the Agreement, and the Other Parties will continue to be responsible
for
the obligations under the Agreement, to the extent they are not performed by
the
Fund GPs, the Employer or their affiliates.
6. Deferral
Termination Trigger. The
Agreement, including without limitation Section 10 and Section(b)(I) of Schedule
A thereof and Section 5 of the February 1, 2007 amendment thereof, is amended
pursuant to transition relief promulgated under Section 409A of the Internal
Revenue Code of 1986, as amended, and contained in Internal Revenue Service
Notices 2005-1, 2006-79 and 2007-86 and Section XI(C) of the preamble to
REG-158080-04, 2005-43 I.R.B. 786, dated October 4, 2005 (Application of Section
409A to Nonqualified Deferred Compensation Plans), to delete all provisions
that
would permit or cause any portion of the deferred Management Fee Participation
owing by Icahn Management LP or ICM to Employee with respect to periods prior
to
the Effective Date to be payable to the Employee upon the termination of
Management Agreements.
7. Change
in Character.
For all
periods from and after January 1, 2008, and after giving effect to Section
6
above, Sections 10 and 21(ix) and Section(b)(I) of Schedule A of the Agreement
and Section 5 of the February 1, 2007 amendment to the Agreement are
deleted in their entirety except with respect to the portions of the Management
Fee Participation that were properly deferred pursuant to the Agreement prior
to
January 1, 2008. For the avoidance of doubt and without limiting Section 5
above, such sections (exclusive of the third sentence of Section 5 of the
February 1, 2007 amendment to the Agreement which is deleted for all
purposes) shall continue to be applicable to the portions of the Management
Fee
Participation that were properly deferred pursuant to the Agreement in respect
of periods to January 1, 2008.
4
8. Vesting.
Employee’s right to receive any amount or payments in respect of the Profit
Participation allocated from and after the Effective Date shall vest in
accordance with Section 11 of the Agreement, taking into account for such
purpose Employee’s periods of service with Icahn Management LP, ICM and the
other Icahn Related Entities commencing January 1, 2005 through the date
preceding the Effective Date, and Employee’s periods of service with the
Employer and the other Icahn Related Entities from and after the Effective
Date.
For the avoidance of doubt, none of the execution of this Amendment, the
termination of the Management Agreements or the Employee’s ceasing to provide
services to ICM as of the Effective Date shall accelerate vesting of the Profit
Participation payable by Icahn Management LP or ICM pursuant to Section 11
of
the Agreement.
9. Withdrawal.
Sections 12(ii) and 13 of the Agreement are amended to delete the following
text
in both places where it appears: “(calculated in accordance with the methodology
set forth in the Partnership Agreement of the applicable Fund GP)”.
10. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
11. Agreement
in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Agreement, shall remain and continue in full force and effect.
12. Responsibility
of IELP.
IELP
shall be jointly and severally responsible for the obligations of the Employer
and the Fund GPs under the Agreement.
[INTENTIONALLY
LEFT BLANK]
5
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
first written above.
/s/
Vincent J. Intrieri
Vincent
J. Intrieri
ICAHN
CAPITAL MANAGEMENT LP
By: /s/
Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
ICAHN
MANAGEMENT LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
ICAHN
CAPITAL LP
By:
IPH
GP LLC, its general partner
By:
Icahn
Enterprises Holding L.P.
By:
Icahn
Enterprises G.P. Inc.
By:
/s/ Andrew Skobe
Name:
Andrew Skobe
Title:
Chief Financial Officer
ICAHN
ONSHORE LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
ICAHN
OFFSHORE LP
By:
/s/ Edward Mattner
Name:
Edward Mattner
Title:
Authorized Signatory
6
ICAHN
ENTERPRISES L.P.
By:
Icahn
Enterprises G.P. Inc., its general partner
By: /s/
Andrew Skobe
Name:
Andrew Skobe
Title:
Chief Financial Officer
ICAHN
RELATED ENTITIES
By:
/s/ Carl Icahn
Name:
Carl Icahn
Title: Authorized
Signatory
7