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): February 11,
2010
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:
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o
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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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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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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
1.01 Entry into a Material Definitive Agreement
On February 11, 2010, Icahn Enterprises
L.P. (“Icahn Enterprises”) entered into an employment agreement (the “Employment
Agreement”) with Daniel A. Ninivaggi, pursuant to which Mr. Ninivaggi will serve
as the President of Icahn Enterprises, Icahn Enterprises Holdings L.P. (“Icahn
Enterprises Holdings”), Icahn Enterprises G.P. Inc. (“Icahn Enterprises GP”),
the sole general partner of Icahn Enterprises and Icahn Enterprises Holdings and
various subsidiaries of Icahn Enterprises Holdings. See Item 5.02 below for a
further description of the Employment Agreement.
Item
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
On February 11, 2010, Icahn
Enterprises entered into the Employment Agreement with Daniel A.
Ninivaggi pursuant to which Mr. Ninivaggi will serve as the President
of Icahn Enterprises, Icahn Enterprises Holdings and Icahn Enterprises
GP. Mr. Ninivaggi will (1) be principally responsible for overseeing
portfolio company operations, generally not including the entities involved with
the hedge funds managed and advised by subsidiaries of Icahn Enterprises
Holdings and (2) be involved with acquisitions, dispositions and financings
engaged in by Icahn Enterprises, Icahn Enterprises Holdings and
subsidiaries.
Mr. Ninivaggi shall commence his duties
under the Employment Agreement on or after March 15, 2010, but in no event later
than April 15, 2010, and his employment thereunder shall continue through
December 31, 2012, unless otherwise terminated earlier pursuant to the terms of
the Employment Agreement.
Pursuant to the Employment Agreement,
Mr. Ninivaggi is entitled to: (i) a base salary at the per annum rate of
$650,000 for the period ending December 31, 2010 and for each of the calendar
years ending December 31, 2011 and 2012; (ii) a bonus in the amount of $550,000
for the period ending on December 31, 2010; and (iii) a bonus of not less than
$450,000 and not more than $650,000 for each of the calendar years ending
December 31, 2011 and 2012. Mr. Ninivaggi will also receive a
relocation payment of $300,000 in connection with the commencement of his
employment.
In addition, on February 11, 2010,
Icahn Enterprises and Mr. Ninivaggi entered into a Class A Option Agreement and
Class B Option Agreement (together, the “Option
Agreements”). Pursuant to terms of the Employment Agreement, Mr.
Ninivaggi was granted Class A options to purchase 100,000 Depositary Units
(“Units”) of Icahn Enterprises with an exercise price of $45.60 per Unit, and
Class B options to purchase 100,000 Units with an exercise price of $55.60 per
Unit. Each of the Class A options and the Class B options
(collectively, the “Options”) shall vest as to 33,334 Options, on December 31,
2010; 33,333 Options on December 31, 2011 and the balance of 33,333 Options on
December 31, 2012. The Options shall expire on December 31, 2014
except as otherwise set forth in the Employment Agreement or the Option
Agreements.
Mr. Ninivaggi, age 45, has served as Of
Counsel to the international law firm of Winston & Strawn LLP since July
2009. From 2003 until July 2009, Mr. Ninivaggi served in a variety of executive
positions at Lear Corporation, a global supplier of automotive seating systems
and electrical power management systems, including as General Counsel from 2003
through 2007, as Senior Vice President from 2004 until 2006, and most recently
as Executive Vice President and Chief Administrative Officer from 2006. Prior to
joining Lear Corporation, from 1998 to 2003, Mr. Ninivaggi was a partner of
Winston & Strawn LLP, specializing in corporate finance, mergers and
acquisitions, and corporate governance. Mr. Ninivaggi has also served as a
director of CIT Group Inc., a bank holding company, since December 18,
2009.
The foregoing description of the
Employment Agreement and the Option Agreements does not purport to be complete
and is qualified in its entirety by reference to the Employment Agreement and
the Option Agreements, which are filed hereto as Exhibit 10.1, Exhibit 10.2 and
Exhibit 10.3 and are herein incorporated into this current report on Form 8-K by
reference.
Item
8.01 Other Event
On
February 16, 2010, Icahn Enterprises issued a press release with respect to the
employment of Mr. Ninivaggi, a copy of which is attached hereto.
Item
9.01. Financial
Statements and Exhibits
(d) Exhibits
10.1 –
Employment Agreement
10.2 –
Class A Option Agreement
10.3
– Class B Option Agreement
99.1
– Press Release, issued February 16, 2010
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 | ||||
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By: | /s/ Dominick Ragone | |
| Dominick Ragone | ||||
| Principal Financial Officer | ||||
Date: February
18, 2010
Exhibit
10.1
AGREEMENT
Agreement
made as of the 11th day of February, 2010 (the “Execution Date”) by and between
Icahn Enterprises L.P., (the “Employer”), and Daniel A. Ninivaggi (the
“Employee”).
Whereas,
Employer wishes to employ Employee as its President and President of Icahn
Enterprises Holdings L.P. (“Holdings”), Employer’s 99% owned subsidiary, to
perform the duties set forth herein and others given to him from time to time
and Employee wishes to become employed by Employer upon the terms and conditions
set forth herein.
Now,
therefore, in consideration of the premises and the mutual promises made herein,
the parties hereto agree as follows:
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1.
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Employment/Title/Benefits: Subject
to the terms of this Agreement, Employer hereby employs Employee to
perform the duties described in Section 3 below, and Employee hereby
accepts such employment. Employee’s title shall be President of
Employer, President of Holdings and President of Icahn Enterprises G.P.
Inc. (“IEGP”), the sole general partner of Employer and
Holdings. Until such time as Employee is no longer employed
hereunder, Employee shall be entitled to an aggregate of 22 days of Paid
Time Off (comprised of vacation, personal and sick days) annually in
accordance with the policies of the Employer and shall participate in all
benefit programs and plans generally made available to Employer’s
executives. Employee shall be required, from and after no later
than the 45th
day after the Effective Date and for the balance of the term of his
employment hereunder, to reside in the New York City metropolitan
area.
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2.
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Term. Employee
shall commence his duties hereunder on March 15, 2010, or such later date
chosen by Employee but not after April 15, 2010, (“Effective Date”) and
his employment shall terminate, unless sooner terminated as provided
herein, on December 31, 2012 (“Expiration Date”), unless the parties
otherwise agree in writing that it should continue and agree upon the
terms and conditions applicable to such
continuance.
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3.
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Duties. As
President of Employer and President of Holdings, Employee shall be
responsible for, among other things (i) oversight of portfolio companies,
(ii) performing duties regarding potential acquisitions and dispositions
of businesses and assets and with respect to financing activities
undertaken from time to time, (iii) providing his expertise in connection
with the current and future business activities of Employer and members of
the Icahn Group (as defined below), (iv) being the liaison with all
members of the Icahn Group and (v) generally representing Employer,
Holdings and IEGP with respect to the executives and other
personnel of Employer and the subsidiaries and controlled companies and
their affiliates of Employer (such entities together with Holdings and
IEGP being the “Icahn Group”), generally except for the activities of the
hedge funds operated by subsidiaries of Employer. Employee will be
responsible to and take direction from and be assigned additional duties
by the Board of Directors of IEGP and its controlling person,
Carl C. Icahn.
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It is
contemplated that Employer shall use its best efforts to have Employee appointed
or elected to the boards of directors or other governing bodies of portfolio
companies for which he has oversight responsibility. So long as Employee remains
employed by Employer or any member of the Icahn Group, Employee
agrees that he will (i) not resign as a director of any public or private
corporation on whose board he is then serving or on which, during his employment
hereunder he begins to serve at the request of Employer, IEGP or its controlling
person, Carl C. Icahn; and (b) resign from any such positions within five (5)
business days following the request of Employer, IEGP or Carl
Icahn that he do so. In addition, he agrees that if during
the term of his employment he is requested by Carl Icahn to serve as Principal
Executive Officer of IEGP., he will so serve and will be paid $100,000 per
annum, which amount shall thereafter be subtracted from the Base Salary that he
is entitled to receive from Employer hereunder.
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4.
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Base
Salary. Until
such time as the employment of Employee hereunder ceases, Employee will be
paid a salary at the per annum rate of $650,000 for the period from the
Effective Date through December 31, 2010 and at the per annum rate
of $650,000 for each of the calendar years 2011 and 2012
(payable every 2 weeks) (the “Base Salary”) in accordance with Employer’s
general payroll practices. All compensation paid to Employee,
whether Base Salary, bonus or otherwise shall be subject to applicable
payroll and withholdings taxes, to the extent required by law, as
determined by Employer.
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5.
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Bonus. Employee
shall be entitled to be paid a bonus in respect of each of the periods
ending on December 31, 2010, December 31, 2011 and December 31,
2012. The bonus for the 2010 period shall be $550,000 and the
bonus for each of the 2011 and 2012 calendar years shall be not less than
$450,000 and not more than $650,000. Employer shall determine the
amount of Employee’s bonus for each of 2011 and 2012 based upon the
performance criteria developed by Employer with the acquiescence of
Employee, which acquiescence shall not be unreasonably
withheld. The bonus for the periods ending December 31, 2010
and December 31, 2011 shall be paid by Employer within the sixty (60) days
following the end of the applicable bonus period. The bonus in
respect of the period ending December 31, 2012 shall be paid by Employer
on December 31, 2012.
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6.
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Relocation
Expenses. Upon the commencement of his employment on the
Effective Date, Employee shall receive from Employer the sum of $300,000
in cash (i) less any amounts reimbursed by Employer to Employee prior to
the Effective Date for tax exempt travel and relocation related expenses
which qualify as moving expenses pursuant to Section 217 of the Internal
Revenue Code of 1986, as amended (“Code”) and (ii) less the applicable
payroll and withholding taxes which shall be withheld by Employer as
required by law on the taxable portion of any such payment based upon
documentation and records submitted by Employee at the time of his receipt
of such payment (or payments, in the event Employee elects to receive such
amount in more than one payment).
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7.
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Options. Employee
is hereby granted, on the date hereof, Class A options to purchase 100,000
Depositary Units of Employer with an exercise price of $ 45.60 per
Unit, and Class B options to purchase 100,000 such Depositary Units with
an exercise price of $ 55.60 per
Unit. Each of the Class A options and the Class B
options (collectively, the “Options”) shall vest as to 33,334
Options, on December 31, 2010; 33,333 Options on December 31, 2011 and the
balance of 33,333 Options on December 31, 2012. Except as
otherwise expressly set forth herein or in the Option Agreements in each
case relating to earlier termination, the Options shall expire on December
31, 2014. The exercise prices of the Options shall be subject
to adjustment in certain events, all as set forth in the respective Option
Agreements. The Options shall be exercisable commencing on the
later of the date on which they vest and the date on which the grant of
the Options shall have been approved by the holders of a majority of the
outstanding Depositary Units. Notwithstanding any other
provision of this Agreement, no Option may be exercised after the close of
business on December 31, 2014.
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8.
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Termination
of Employment.
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(a)
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Power of
Termination. The Employer may terminate the employment
of Employee under this Agreement at any time, with Cause, or in the sole
and absolute discretion of Employer, without Cause. “Cause”
shall mean any of the following:(a) conviction of any felony or the
commencement of a criminal proceeding against Employee alleging fraud or
violation of the federal securities laws; (b) willful failure to follow
the lawful directions given by Employer to Employee or the written
policies or procedures adopted by the Employer from time to time that are
made available to Employee; (c) failure to come to work on a full-time
basis, other than on holidays, vacation days, sick days, or other days off
under Employer's business policies; (d) impairment due to alcoholism, drug
addiction or similar matters; and (e) a material breach of this Agreement.
Prior to termination for “Cause” as a result of failure as contemplated in
clause (b),(c) or (e) above, Employee shall be given written notice
delivered to him by hand or by certified mail return receipt requested
(which shall be deemed given when such mail is delivered or delivery is
attempted by the US Post Office) of his activity giving rise to such
failure and will have 15 business days to correct such activity; provided that
Employer shall only be required to provide notice under this sentence
twice during any calendar year. “Good Reason” shall mean the
existence and continuation of an Uncured Employer Breach. An
Uncured Employer Breach shall mean and be limited to the failure of the
Employer to make any payment required to be made hereunder when due if
such failure continues for 15 business days following written notice
detailing the amount and circumstances of such failure delivered
personally by hand (or by certified mail return receipt requested) by the
Employee to Carl C. Icahn, provided that if such failure is the result of
a good faith dispute, then such failure shall not constitute or be deemed
to constitute an Uncured Employer Breach. An Uncured Employer
Breach shall also include (i) a material change in the duties assigned to
Employee which are so different in responsibility and scope so as to be
materially adverse to Employee to the extent that Employee acting
reasonably would be demeaned by such change, it being understood that any
such change shall not be considered adverse to the extent that Employee’s
duties include oversight over other entities that are or were affiliated
with Icahn Group or (ii) a breach of Employer’s obligations under Section
14(c) which remains uncured 15 business days after Employee delivers
written notice thereof to Carl. C. Icahn (and, in any event, no earlier
than December 31, 2010).
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(b)
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Payment of Earned Base
Salary and Bonus. In the event that Employee’s
employment under this Agreement with Employer ceases (whether: (i) for
Cause; (ii) without Cause; (iii) due to death or disability; or (iv) by
the action of Employee such as resignation or retirement), Employee shall
be entitled to receive any Base Salary earned for periods prior to the
cessation of his employment and not yet paid through the date of cessation
of employment. In addition, Employee shall be entitled to receive any
bonus due for any calendar year ended prior to the cessation of his
employment and not yet paid through the date of cessation of
employment. Such bonus due for the calendar year that had ended
shall not be less than the minimum bonus in respect of that calendar year
as provided in Section 5 hereof. Except as set forth in
subsection (c) of this Section 8, the Option Agreement shall provide that
all Options, whether vested or unvested, shall expire at the close of
business on the 90th
day following the cessation of Employee’s employment (the date on which
Employee is no longer employed by
Employer.
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(c)
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Termination Without
Cause/Termination for Good Reason. In the event of the
cessation of Employee’s employment under this Agreement due to the
employment of Employee being terminated by Employer without Cause or being
terminated by Employee for Good Reason, Employee shall be entitled to
receive the amounts provided in subsection (b) of this Section and in
addition thereto: (i) Employee shall be paid the remaining Base
Salary and the minimum applicable bonuses that would have been due under
this Agreement through the Expiration Date, such payments to be made on
the dates that such payments would otherwise have been due from the date
that the employment ceased through the Expiration Date, and (ii)
Employee’s unvested Options shall vest immediately and Employee shall have
until the close of business on the 180th
day after such cessation to exercise the Options, which shall expire at
such close of business to the extent not then exercised. In the
event that Employee shall remain in the continuous employ of Employer
through the Expiration Date, the Options shall expire on June 30, 2013, or
if he remains employed beyond March 31, 2013, then the Options shall
expire on the earlier to occur of (x) the close of business on the 90th
day after his employment ceases (or 180th
day in the case of Employee being terminated by Employer without Cause or
being terminated by Employee for Good Reason) and (y) December 31,
2014.
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(d)
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Other
Termination. In the event of: (x) Employee’s
death or Disability or Employee’s resignation or other
voluntary termination of employment by Employee (which shall not include a
termination by Employee for Good Reason) prior to the Expiration Date or
of a (y) termination by Employer for Cause, Employee will be paid the
amounts set forth in subsection (b) of this
Section. Except as set forth in subsection (c) of this Section
8, the Option Agreements shall provide that all Options, whether vested or
unvested, shall expire at the close of business on the 90th
day following the cessation of Employee’s employment (the date on which
Employee is no longer employed) by
Employer.
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(e)
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Disability. Disability
shall be deemed to occur if so asserted by Employer in a written notice by
Employer to Employee, following illness or injury or other condition that
results in Employee being unable to perform his duties hereunder at the
offices of Employer for a period of 30 consecutive business days or for 45
business days during any 180 business-day
period.
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(f)
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Resignation. Employee
may resign from his employment hereunder (but will remain subject to
applicable terms of this Agreement, including, without limitation,
Sections 10, 11 and 12 hereof). Any such resignation will not be on less
than two (2) weeks prior written notice to
Employer.
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(g)
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Other
Matters. Employee’s severance benefits under
Section 8(c) shall be reduced to the extent of any cash compensation he
receives or earns during the period prior to the scheduled
Expiration Date (the “Severance Period”) from a new employer if Employee
fails, within 30 business days of receiving a written request therefor
from Employer, to deliver an affidavit to Employer stating that he did not
initiate or engage in substantive discussions with his new employer
regarding employment or similar opportunities with the new employer during
the course of his employment with Employer, other than to decline pursuing
any such employment opportunities. Should Employee
become employed by a new employer during the Severance Period, and it is
determined that the affidavit delivered by Employee was not true and
correct in any material respect, then Employee shall return any
amounts to which he was not entitled pursuant to the first sentence of
this subsection (g).
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9.
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Representations
and Warranties. Employee represents as of the Execution
Date as follows:
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(a)
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To
the best of his knowledge, he is not a party to, or involved in, or under
investigation in, any pending or threatened litigation, proceeding or
investigation of any governmental body or authority or any private person,
corporation or other entity that would interfere with the performance of
his duties under this Agreement. Employee has never been suspended,
censured or otherwise subjected to any disciplinary action or other
proceeding by any State, other governmental entities, agencies or
self-regulatory organizations.
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(b)
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Employee
is not subject to any restriction whatsoever which would cause him to not
be able fully to fulfill his duties under this
Agreement. Employee is a director of CIT Group,
Inc.(“CIT”) and shall comply with CIT’s corporate governance
standards in connection with the change in his employment. Employee shall
be permitted to continue his service on the CIT board of directors,
provided that doing so does not interfere with his duties under this
Agreement.
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10.
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Confidential
Information. During the term of this Agreement and at
all times thereafter, Employee shall hold in a fiduciary capacity for the
benefit of the Employer, members of the Icahn Group and their respective
Affiliates all secret or confidential information, knowledge or data,
including without limitation trade secrets, investments, contemplated
investments, business opportunities, valuation models and methodologies,
relating to the business of Employer, members of the Icahn Group and their
respective Affiliates or relating to the business or personal affairs of
Carl C. Icahn or members of his family in all such cases (i)
obtained by Employee during Employee’s employment hereunder and (ii) not
otherwise in the public domain. Employee shall not, without
prior written consent of the Employer (which may be granted or withheld in
its sole and absolute discretion provided that Employee shall be permitted
to use Confidential Information in connection with the performance of his
duties hereunder without being required to obtain the written consent of
Employer), communicate or divulge any of the types of information
described in the two previous sentences (other than with respect to the
business and personal affairs of Carl C. Icahn or members of his family),
knowledge or data to anyone other than Employer, members of the Icahn
Group and their respective Affiliates and representatives and those
designated by Employer, except to the extent compelled pursuant to the
order of a court or other body having jurisdiction over such matter or
based upon the advice of his counsel that such disclosure is legally
required; provided, however, that Employee will assist Employee, at
Employer expense, in obtaining a protective order, other appropriate
remedy or other reliable assurance that confidential treatment will be
accorded such information so disclosed pursuant to the terms of this
Agreement.
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All
processes, technologies, investments, contemplated investments, business
opportunities, valuation models and methodologies, and inventions (collectively,
“Inventions”), including without limitation new contributions, improvements,
ideas, business plans, discoveries, trademarks and trade names, conceived,
developed, invented, made or found by Employee, or any members of the Icahn
Group, alone or with others, during the period the Employee is employed
hereunder, whether or not patentable and whether or not on the Employer’s time
or with the use of its facilities or materials, shall be the property of
Employer or its designee, and shall be promptly and fully disclosed by Employee
to Employer at Employer’s request. Employee shall perform all
necessary acts (including, without limitation, executing and delivering any
confirmatory assignments, documents, or instruments requested by Employer) to
vest title to any such Invention in Employer or in any person designated by
Employer and to enable such person, at its expense, to secure and maintain
domestic and/or foreign patents or any other rights for such
Inventions.
Without
limiting anything contained above, Employee agrees and acknowledges that all
personal and not otherwise public information about the Employer, members of the
Icahn Group, and their respective Affiliates, including, without limitation,
their respective investments, investors, transactions, historical performance,
or otherwise regarding or concerning Carl Icahn, Mr. Icahn’s family, Employer
and their respective Affiliates, shall constitute confidential information for
purposes of this Agreement. Employee agrees that whether
during or after his employment hereunder, he will not disparage the Employer,
members of the Icahn Group their respective Affiliates or any of their
respective officers, directors or employees and Carl C. Icahn or members of his
family. Employer agrees, on its own behalf and on behalf
of other members of the Icahn Group, not to disparage
Employee during the course of his employment or thereafter.
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11.
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Remedy
for Breach. Employee
hereby acknowledges that the provisions of Sections 10, 11 and 12 of this
Agreement are reasonable and necessary for the protection of Employer and
the Icahn Group and the other persons or entities referred to therein, are
not unduly burdensome to Employee, and the Employee also acknowledges his
obligations under such covenants. Employee further acknowledges
that the Employer and the Icahn Group and the other persons or entities
referred to therein will be irreparably harmed if such covenants are not
specifically enforced. Accordingly, Employee agrees that, in
addition to any other relief to which the Employer may be entitled,
including claims for damages, each of the persons and entities that are
included in the Icahn Group and the other persons and entities referred to
therein shall be entitled to seek and obtain injunctive relief (without
the requirement of any bond) from a court of competent jurisdiction for
the purpose of restraining Employee from an actual or threatened breach of
such covenants.
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12.
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Competitive
Services and Employees. During the period that Employee
is employed under this Agreement and for one year thereafter, Employee
will not, directly or indirectly, solicit or aid in the solicitation of
employees of Employer or any member of the Icahn Group for employment by
any other person or entity. During the course of his employment hereunder,
Employee shall not compete directly or indirectly with the business or
businesses of Employer or of any member of the Icahn
Group. Should Employee’s employment hereunder cease prior to
December 31, 2012, then Employee shall not engage in any activity, whether
as an employee, officer, director, partner, member, holder of more than 5%
of the outstanding stock or any combination thereof, of any person or
entity which directly competes with any Material Business (as defined
below) controlled directly or indirectly by Employer at the time that
Employee’s employment ceased; provided that this prohibition
shall commence on the date that the employment ceased and shall continue
(i) through December 31, 2012, in the event Employee’s employment was
terminated by Employer without Cause or by Employee for Good Reason (and
Employer is in compliance with Section 8(c) and its other material
obligations under this Agreement), or (ii) through the close of business
on the 180th
day after the cessation of Employee’s employment hereunder if such
cessation shall be for any other reason. For purposes of
this Section 12, the term “Material Business” shall mean any business
owned by an operating company of Employer that accounted for
more than 5% of the revenues of Employer during the fiscal year prior to
the cessation of Employee’s employment with Employer.
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13.
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Miscellaneous.
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(a)
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Amendments and
Waivers. No provisions of this Agreement may be amended,
modified, waived or discharged except as agreed to in writing by Employee
and Employer.
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(b)
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Governing
Law. This Agreement 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 Agreement 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 Agreement.
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(c)
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Severability. If
any provision of this Agreement is invalid or unenforceable, the balance
of this Agreement shall remain in
effect.
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(d)
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Judicial
Modification. If any court determines that any of the
covenants in this Agreement or any part of any of them, is invalid or
unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court determines that any of such
covenants, or any part thereof, is invalid or unenforceable because of the
geographic or temporal scope of such provision, such court or arbitrator
shall reduce such scope to the extent necessary to make such covenants
valid and enforceable.
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(e)
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Successors; Binding
Agreement. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of the
Employer. As a condition to the sale or transfer of all or
substantially all of the assets of Employer, or any merger or business
combination involving Employer and any other entity, the successor or
surviving entity shall assume Employer’s obligations under this Agreement.
Employee may not sell, convey, assign, transfer or otherwise dispose of,
directly or indirectly, any of the rights, claims, powers or interests
established hereunder or under any related agreements or documents of the
Employer provided that the same may, upon the death of Employee, be
transferred by will or intestate succession, to his estate, executors,
administrators or heirs, whose rights therein shall for all purposes be
deemed subject to the terms of this
Agreement.
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(f)
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Survival. This
Agreement shall survive the termination of the employment of Employee
hereunder in all circumstances and the provisions hereof (including
Sections 5, 7, 8, 10, 11 and 12), shall be and remain fully effective in
accordance with their terms.
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14.
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Other.
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(a)
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Employee
shall follow all written policies and procedures and written compliance
manuals adopted by or in respect of any or all of Employer and its
Affiliates that have been or will be delivered to Employee, including,
without limitation, those applicable to investments by employees. In
addition, Employee shall not, personally or on behalf of any other person
or entity, invest in or provide advice with respect to, any investment
made or actively being considered by Employer or its Affiliates, unless
disclosed to Employer in writing by Employee and approved in writing by
Employer which approval may be granted or withheld by them in their sole
and absolute discretion, and which approval, if granted, may be with
limitations, including on the amount of any investment which Employee may
make at any time or from time to time and may impose restrictions on the
sale of any such investment.
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(b)
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Employee
agrees to provide to Employer a written list of all existing investments
of Employee, directly or
indirectly.
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(c)
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Employer
agrees to use its best efforts to (i) cause the approval of the grant of
Employee’s Options by the Unitholders and (ii) register the Depositary
Units issuable upon exercise of the Options with the Securities and
Exchange Commission and, except during occasional periods when the
registration statement relating thereto may not be usable, to maintain
such registration so that such Units are freely transferrable, in each
case within a reasonable time after this Agreement is
executed.
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(d)
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The
parties intend that payments and benefits under this Agreement that
constitute deferred compensation subject to Section 409A of
the Code, as amended, and the regulations and guidance
promulgated thereunder ("Section 409A"), shall comply with Section 409A
and that this Agreement shall be interpreted accordingly. For
purposes of payment of deferred compensation upon or commencing upon
Employee’s termination of employment, references to Employee’s termination
of employment shall be deemed to refer to Employee’s "separation from
service," within the meaning of Section 409A, from
Employer. If, on the date of his separation from service with
Employer, Employee is a "specified employee," within the meaning of and
subject to Code Section 409A(a)(2)(B), then all payments of deferred
compensation subject to Section 409A payable on account of such separation
from service within the six month period following his separation from
service shall be aggregated and paid, without interest, upon the earlier
of the first day following the expiration of such six month period and the
Employee’s date of death. For purposes of Section 409A,
Employee’s right to receive any installment payments pursuant to this
Agreement shall be treated as a right to receive a series of separate and
distinct payments. Employer makes no representations
or warranty and shall have no liability to Employee or any other person if
any payments under this Agreement are determined to constitute deferred
compensation subject to Section 409A but not to satisfy the conditions of
that section.
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In
WITNESS WHEREOF, undersigned have executed this Agreement as of February 11,
2010.
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EMPLOYEE
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||
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/s/ Daniel A. Ninivaggi
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Daniel
A. Ninivaggi
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EMPLOYER
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Icahn
Enterprises L.P.
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By:
Icahn Enterprises G.P., Inc., general
partner
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By:
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/s/ Keith Meister
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Name:
Keith Meister
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Title:
Principal Executive Officer
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The
undersigned agrees that he shall vote all his Depositary Units in favor of
the granting of the Options to Employee as set forth
herein.
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/ s/ Carl C. Icahn
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||
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Carl
C. Icahn
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||
Exhibit
10.2
CLASS
A OPTION AGREEMENT
This
Class A Option Agreement (the "Agreement") is entered into
this 11th day of February 2010, by and between, Icahn Enterprises, L.P., a
Delaware master limited partnership (together, with its successors, the "Partnership"), and Daniel Ninivaggi (the
"Optionee'').
In
consideration of the premises, mutual covenants and agreements herein, the
Partnership and the Optionee agree as follows:
1. Grant of Option. On the date
hereof, the Partnership hereby grants to the Optionee a Class A Option to
purchase from the Partnership, at a price of $45.60 per unit (the "Exercise Price"), up to
100,000 depositary (common) units of the type of units currently listed on the
New York Stock Exchange representing common limited partnership interests of the
Partnership (the "Units"), subject to the
provisions of this Agreement (collectively the "Options").
2. Vesting.
(a) In General. All of the
Options will be nonvested and forfeitable as of the Effective Date. Subject to
the Optionee's continued employment with the Partnership or its general partner
(together, with its successors, the "General Partner"), Options
with respect to 33,334 Units will vest at the close of business on December 31,
2010; 33,333 Units at the close of business on December 31, 2011; and 33,333
Units at the close of business on December 31, 2012.
(b) Acceleration of Vesting.
Notwithstanding Section (a), all Options that have not been previously forfeited
or expired shall become fully vested and nonforfeitable upon the earliest to
occur of the following: Termination by the General Partner and the
Partnership of the Optionee's employment with the Partnership and General
Partner without Cause or the termination by Optionee for Good
Reason. However, all Options expire after which they are no longer
exercisable as set forth in Section 3 and 4 hereof.
For
purposes of this Agreement, Cause and Good Reason shall be as defined in his
Optionee’s Employment Agreement of even date with the Partnership (the “Employment Agreement”).
(c) Cessation of Employment or Other
Service Relationship. Except as provided in Section 2(b), all unvested
Options terminate immediately upon the cessation of the Optionee's employment
with the Partnership and the General Partner.
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3.
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(a)
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Term
of Options. Except as set
forth in this Section 3, all Options, whether vested or unvested,
shall expire at the close of business on the 90th
day following the cessation of Optionee’s employment (the date on which
Optionee is no longer employed by Employer). Prior to the Expiration
Date, in the case of Optionee being terminated by the
Partnership and the General Partner without Cause or being terminated by
Optionee for Good Reason, the Option shall expire at the close of business
on the 180th
day following the cessation of Optionee’s
employment.
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(b)
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In
the event that Optionee shall remain in the continuous employ of the
Partnership and the General Partner through the Expiration Date (as
defined in the Employment Agreement to be December 31, 2012), the Option
to purchase the 100,000 Units will expire at 5:00 p.m. Eastern Time (the
“close of business”) on June 30, 2013, or if he remains employed beyond
March 31, 2013, then the Options shall expire on the earlier to occur of
(a) the close of business on the 90th
day after his employment ceases (or the 180th
day in the case of Optionee being terminated by the Partnership and the
General Partner without Cause or being terminated by Optionee for Good
Reason) and (b) December 31, 2014
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4. Exercise of Vested Options.
(a) Right to Exercise. The
Optionee may exercise a vested Option at any time after the later of the
Effective Date and the date on which the required approval of the grant of the
Options has been obtained from the requisite holders of outstanding Partnership
Units and at any time on or before the relevant Expiration Date.
(b) Exercise Period Following Cessation
of Employment. Following cessation of the Optionee's employment with the
Partnership and the General Partner the vested Options shall expire and be of no
further force and effect as set forth in Section
3 hereof.
(c) Exercise Procedure. In order
to exercise the Options, the following items must be delivered to the Secretary
of the General Partner (i) an exercise notice in the form attached hereto as
Appendix B, (ii) full payment of the Exercise Price for such Units, and (iii) an
executed copy of any other agreements or documents reasonably required by the
General Partner or the Partnership. An exercise will not be effective until all
of the foregoing items are received by Secretary of the General
Partner.
(d) Method of Payment. Payment of
the Exercise Price may be made at the election of the Optionee (i) by delivery
of cash, certified or cashier's check, money order or other cash equivalent
acceptable to the Partnership in its discretion, (ii) by a broker-assisted
cashless exercise in accordance with Regulation T of the Board of Governors of
the Federal Reserve System through a brokerage firm approved by the Partnership,
or (iii) by a cashless exercise for purposes of Section 19 of this Agreement, or
(iv) a combination of the foregoing.
(e) Issuance of Units. Upon
exercise of the Options in accordance with the terms of this Agreement, the
Partnership will issue to the Optionee or to the brokerage firm specified in the
Optionee's delivery instructions pursuant to a broker-assisted cashless
exercise, as the case may be, the number of Units so paid for, in the form of
fully paid and nonassessable Depositary Units representing limited partner
interests of the Partnership.
5. Tax Withholding. Upon the
exercise of the Options in accordance with the terms of this Agreement, the
Partnership shall have the right to withhold (and at the Optionee’s election the
Partnership shall withhold) the number of Units issuable in respect of the
Options having an aggregate Fair Market Value as of the date of the withholding
equal to the amount of any federal, state, local or foreign taxes payable as a
result of the vesting or exercise of the Options in whole or in part; provided,
however, that the value of the Units withheld may not exceed the statutory
minimum withholding amount required by law or such additional amount (as
permitted by law) elected by Optionee. The value of any Units
withheld by the Partnership shall be paid by the Partnership to satisfy
Optionee’s tax liabilities.
For
purposes of this Agreement, Fair Market Value means, with respect to
a Unit for any purpose on a particular date, (A) if Units are registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and
listed for trading on a national exchange or market, the average, for the 30-day
period preceding such date, of: (i) the closing price quoted on the New York
Stock Exchange, the American Stock Exchange, or the Nasdaq National Market, as
applicable; (ii) the last sale price quoted on the Nasdaq SmallCap Market; (iii)
the average of the high bid and low asked prices on the Nasdaq OTC Bulletin
Board Service or by the National Quotation Bureau, Inc.; or (iv) if Units are
not quoted by any of the above, the average of the closing bid and asked prices
on the relevant date furnished by a professional market maker for the Units, and
(B) if there are not any quoted bid and asked prices, the value as determined in
good faith by the Board of Directors of the General Partner (the "Board"),
provided, however, that for purposes of calculating Optionee's taxable income
upon exercise of the Options under the circumstances set forth in clause (A)
above, Fair Market Value shall mean the closing price or the last sale price
quoted on the principal exchange or market on which the Units are listed or
traded.
6. Adjustments for Transactions and
Other Events. Adjustments for Transactions and
Other Events. In the event that the Partnership engages
in:
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(a)
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A
split or combination of Units (whether by dividend of Units or otherwise),
a recapitalization, reorganization or other similar change in its capital
structure;
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(b)
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An
Excess Dividend (as defined below);
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(c)
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An
issuance of Units of the Partnership or securities convertible into or
exchangeable for Units of the Partnership, to Mr. Carl C. Icahn or his
affiliates, at a price per Unit less than its Fair Market Value;
or
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(d)
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A
going private transaction with a controlling person of the
Partnership.
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then the
Board shall make such equitable adjustments and modifications to the Options and
the terms of this Agreement, including but not limited to the number or kind of
interests covered by the Options, the Exercise Price, or the manner in which the
Options are to be exercised, as the Board reasonably determines is required or
appropriate in order to prevent the dilution or enlargement of the benefits or
potential benefits provided in respect of Options under this
Agreement.
For the purposes of this
Agreement, the term Excess Dividend shall mean the amount, if any, by which the
aggregate dividends, paid to holders of Units from and after January 1, 2010, in
either cash or other property (valued at fair market value as determined by the
Board, in its reasonable discretion) exceeds the Tax Amount. ‘‘Tax Amount’’ means
the aggregate combined federal, state and local income taxes, for all
periods beginning on or after January 1, 2010, including estimated
taxes, that would be payable by the Partnership if it were a Delaware
corporation filing separate tax returns with respect to its Taxable Income for
such periods and owned 100% of Icahn Enterprises Holdings L.P.; provided, that
in determining the Tax Amount, the effect thereon of any net operating loss
carryforwards or other carryforwards or tax attributes, such as alternative
minimum tax carryforwards, that would have arisen if Partnership were a Delaware
corporation shall be taken into account, but only to the extent such
carryforwards or attributes arise after January 1, 2010; provided,
further that (i) if there is an adjustment in the amount of the Taxable Income
for any period, an appropriate positive or negative adjustment shall be made in
the Tax Amount, and if the Tax Amount is negative, then the Tax Amount for
succeeding periods shall be reduced to take into account such negative amount
until such negative amount is reduced to zero and (ii) any Tax Amount other than
amounts relating to estimated taxes shall be computed by a nationally recognized
accounting firm (but, including in any event, Partnership’s auditors).
Notwithstanding anything to the contrary, the Tax Amount shall not include taxes
resulting from Partnership’s change in the status to a corporation for tax
purposes.‘‘Taxable Income’’
means, for any period, the taxable income or loss of Partnership for such
period for federal income tax purposes.
7. Holder of Options Not a Unitholder.
Until such time, if any, that he exercises the Options, Optionee shall
have no rights as a Unitholder and shall not be owed the duties, if any, that
Unitholders are owed in their capacity as Unitholders.
8. Notices. All notices and
other communications made or given pursuant to this Agreement shall be in
writing and shall be sufficiently made or given if hand delivered or mailed by
certified mail, addressed to the Optionee at the address contained in the
records of the Partnership or General Partner, or addressed to the Partnership
for the attention of the Secretary of the General Partner at its principal
executive office or, if the receiving party consents in advance, transmitted and
received via telecopy or via such other electronic transmission mechanism as may
be available to the parties.
9. Investment Representation. if
at any time the Partnership determines that the delivery of Units under this
Agreement is or may be unlawful under the laws of any applicable jurisdiction,
or federal or state securities laws, the right to exercise the Options or
receive Units pursuant to the Options or exercise of any particular right
hereunder shall be suspended until the Partnership determines that such delivery
is lawful. The Partnership may require that the Optionee, as a condition to
exercise of the Option, and as a condition to the delivery of any Units, make
such written representations (including representations to the effect that such
person will not dispose of the Units so acquired in violation of federal or
state securities laws) and furnish such information as may, in the opinion of
counsel for the Partnership, be appropriate to permit the Partnership to issue
the Units in compliance with applicable federal and state securities
laws. The Partnership shall use its best efforts to register the
Units issuable upon exercise of the Options with the Securities and Exchange
Commission and, except during occasional periods when the registration statement
relating thereto may not be usable to maintain such registration so that such
Units are freely transferrable within a reasonable time following the date
hereof.
10. Entire Agreement. This
Agreement, together with the Employment Agreement, contains the entire agreement
between the parties with respect to the Options granted hereunder. Any oral or
written agreements, representations, warranties, written inducements, or other
communications made prior to the execution of this Agreement with respect to the
Options granted hereunder shall be void and ineffective for all
purposes. Any conflict between this Agreement and the Employment
Agreement with respect to the Options shall be determined as provided in this
Agreement.
11. Intentionally Omitted.
12. Amendment. This Agreement may
be amended from time to time in a written document signed by each of the parties
hereto.
13. Governing Law. The validity,
construction and effect of this Agreement, and of any determinations or
decisions made by the Partnership relating to this Agreement, and the rights of
any and all persons having or claiming to have any interest under this
Agreement, shall be determined exclusively in accordance with the laws of
Delaware without regard to its provisions concerning the applicability of laws
of other jurisdictions. Any suit with respect hereto will be brought in the
federal or state courts in the districts which include courts in Delaware, and
the Optionee hereby agrees and submits to the personal jurisdiction and venue
thereof.
14. Headings. The headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
15. Options Conditioned Upon Unit Holder
Approval. This Agreement and the Options are conditioned upon and subject
to approval thereof by a vote of the depositary unit holders in accordance with
rules under Section 16 of the Securities Exchange Act of 1934, as
amended. Partnership will use its best efforts to cause the
Unitholders to approve the grant of Options to Optionee and Carl C. Icahn has
agreed in connection with the Employment Agreement to vote all his Depositary
Units for the grant of the Options to Optionee.
16. Non-Guarantee of Employment or Other
Service Relationship. Nothing in this Agreement shall alter the
Optionee's at-will or other employment status with the Partnership or the
General Partner, nor be construed as a contract of employment or other service
relationship between the Partnership or the General Partner and the Optionee, or
as a contractual right of the Optionee to continue in the employ of, or in a
service relationship with (or to occupy any particular position with, or receive
any particular benefit or compensation from the Partnership, and any change
thereof shall not be deemed to constitute a termination of employment hereunder)
the Partnership or the General Partner for any period of time, or as a
limitation of the right of the Partnership or the General Partner to discharge
the Optionee at any time with or without cause or notice and whether or not such
discharge results in the forfeiture of any Units.
17. No Rights as a Holder of a
Unit. The Optionee will not have any of the rights of a holder of a Unit
until such Units have been issued to him upon the due exercise of the
Options.
18. Nontransferability of
Options. The Options are nontransferable and may be exercised only by
Optionee except that (a) upon the death of the Optionee, vested Options may be
transferred by will or the laws of descent and distribution or (b) if the
Optionee is under a legal disability, the vested Options may be transferred to
the Optionee's guardian or legal representative. Except as provided above, the
Options may not be assigned, transferred, pledged, hypothecated or disposed of
in any way (whether by operation of law or otherwise) and shall not be subject
to execution, attachment or similar process.
19. Units No Longer Publicly
Traded. In the event that the Units are no longer publicly traded, the
Optionee may exercise the vested Options on a cashless basis, in which event the
Optionee will be paid with respect to each Unit for which the Option is
exercised the amount by which the Fair Market Value of the Unit, on the date of
exercise exceeds, the Exercise Price.
ICAHN
ENTERPRISES L.P
CLASS A OPTION EXERCISE
FORM
TO: Secretary
of ICAHN ENTEROPRISES, L.P.
FROM:
_________________________________
I hereby
irrevocably exercise my option to purchase depositary (common) units
representing limited partner interests of ICAHN ENTERPRISES, L.P. subject to all
the terms and provisions of the Option Grant Agreement as follows:
Date of
Option Grant: ______________________________
Date(s)
of Vesting of
Option: _________________________________
Exercise
Price: $____ per unit
Number of
Units to be
Purchased: _________________________________
Total
Exercise Price Enclosed:
$ _________________________________
Units
should be registered as follows:
¨ In
Optionee's name or the name of another individual:
Name(s) _________________________________________
Address _________________________________________
Social
Security
Number: _____________________________
¨ In
the name of Optionee's
broker _____________________________
Full
payment of the aggregate option exercise price pursuant to Sections 4(c) and (d)
of the Option Grant Agreement is enclosed as follows:
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____
(i)
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Cash,
certified or cashier’s check, money order or other cash equivalent in the
amount of $________, (number of Units being exercised x grant price per
unit)
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____
(ii)
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Broker-assisted
cashless exercise pursuant to Federal Reserve Regulation T in the amount
of $_________ (broker is hereby authorized to make such payment directly
to ICAHN ENTERPRISES, L.P.)
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Contact Information for
Broker:
Name: ___________________________________
Address: ___________________________________
___________________________________
Telephone: ___________________________________
Any broker-assisted cashless exercise
must be in accordance with Federal Reserve Regulation T.
______________________________
Optionee’s Signature
Date: ________________________
IN
WITNESS WHEREOF, the Partnership has caused this Agreement to be executed this
11th
day of February 2010.
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Icahn
Enterprises, L.P.
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||
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By:
Icahn Enterprises G. P. Inc., general
partner
|
||
|
By:
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/s/ Keith Meister
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|
|
Name:
Keith Meister
|
||
|
Title:
Principal Executive Officer
|
||
The
undersigned hereby acknowledges that he has carefully read this Agreement and
agrees to be bound by all of the provisions set forth herein.
|
WITNESS
|
OPTIONEE
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|
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/s/
Daniel A. Ninivaggi
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||
| Daniel A. Ninivaggi |
Exhibit
10.3
CLASS
B OPTION AGREEMENT
This
Class B Option Agreement (the "Agreement") is entered into
this 11th day of February 2010, by and between, Icahn Enterprises, L.P., a
Delaware master limited partnership (together, with its successors, the "Partnership"), and Daniel Ninivaggi (the
"Optionee'').
In
consideration of the premises, mutual covenants and agreements herein, the
Partnership and the Optionee agree as follows:
1. Grant of Option. On the date
hereof, the Partnership hereby grants to the Optionee a Class B Option to
purchase from the Partnership, at a price of $55.60 per unit (the "Exercise Price"), up to
100,000 depositary (common) units of the type of units currently listed on the
New York Stock Exchange representing common limited partnership interests of the
Partnership (the "Units"), subject to the
provisions of this Agreement (collectively the "Options").
2. Vesting.
(a) In General. All of the
Options will be nonvested and forfeitable as of the Effective Date. Subject to
the Optionee's continued employment with the Partnership or its general partner
(together, with its successors, the "General Partner"), Options
with respect to 33,334 Units will vest at the close of business on December 31,
2010; 33,333 Units at the close of business on December 31, 2011; and 33,333
Units at the close of business on December 31, 2012.
(b) Acceleration of Vesting.
Notwithstanding Section (a), all Options that have not been previously forfeited
or expired shall become fully vested and nonforfeitable upon the earliest to
occur of the following: Termination by the General Partner and the
Partnership of the Optionee's employment with the Partnership and General
Partner without Cause or the termination by Optionee for Good
Reason. However, all Options expire after which they are no longer
exercisable as set forth in Section 3 and 4 hereof.
For
purposes of this Agreement, Cause and Good Reason shall be as defined in his
Optionee’s Employment Agreement of even date with the Partnership (the “Employment Agreement”).
(c) Cessation of Employment or Other
Service Relationship. Except as provided in Section 2(b), all unvested
Options terminate immediately upon the cessation of the Optionee's employment
with the Partnership and the General Partner.
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3.
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(a)
|
Term
of Options. Except as set
forth in this Section 3, all Options, whether vested or unvested,
shall expire at the close of business on the 90th
day following the cessation of Optionee’s employment (the date on which
Optionee is no longer employed by Employer). Prior to the Expiration
Date, in the case of Optionee being terminated by the
Partnership and the General Partner without Cause or being terminated by
Optionee for Good Reason, the Option shall expire at the close of business
on the 180th
day following the cessation of Optionee’s
employment.
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|
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(b)
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In
the event that Optionee shall remain in the continuous employ of the
Partnership and the General Partner through the Expiration Date (as
defined in the Employment Agreement to be December 31, 2012), the Option
to purchase the 100,000 Units will expire at 5:00 p.m. Eastern Time (the
“close of business”) on June 30, 2013, or if he remains employed beyond
March 31, 2013, then the Options shall expire on the earlier to occur of
(a) the close of business on the 90th
day after his employment ceases (or the 180th
day in the case of Optionee being terminated by the Partnership and the
General Partner without Cause or being terminated by Optionee for Good
Reason) and (b) December 31, 2014
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4. Exercise of Vested Options.
(a) Right to Exercise. The
Optionee may exercise a vested Option at any time after the later of the
Effective Date and the date on which the required approval of the grant of the
Options has been obtained from the requisite holders of outstanding Partnership
Units and at any time on or before the relevant Expiration Date.
(b) Exercise Period Following Cessation
of Employment. Following cessation of the Optionee's employment with the
Partnership and the General Partner the vested Options shall expire and be of no
further force and effect as set forth in Section
3 hereof.
(c) Exercise Procedure. In order
to exercise the Options, the following items must be delivered to the Secretary
of the General Partner (i) an exercise notice in the form attached hereto as
Appendix B, (ii) full payment of the Exercise Price for such Units, and (iii) an
executed copy of any other agreements or documents reasonably required by the
General Partner or the Partnership. An exercise will not be effective until all
of the foregoing items are received by Secretary of the General
Partner.
(d) Method of Payment. Payment of
the Exercise Price may be made at the election of the Optionee (i) by delivery
of cash, certified or cashier's check, money order or other cash equivalent
acceptable to the Partnership in its discretion, (ii) by a broker-assisted
cashless exercise in accordance with Regulation T of the Board of Governors of
the Federal Reserve System through a brokerage firm approved by the Partnership,
or (iii) by a cashless exercise for purposes of Section 19 of this Agreement, or
(iv) a combination of the foregoing.
(e) Issuance of Units. Upon
exercise of the Options in accordance with the terms of this Agreement, the
Partnership will issue to the Optionee or to the brokerage firm specified in the
Optionee's delivery instructions pursuant to a broker-assisted cashless
exercise, as the case may be, the number of Units so paid for, in the form of
fully paid and nonassessable Depositary Units representing limited partner
interests of the Partnership.
5. Tax Withholding. Upon the
exercise of the Options in accordance with the terms of this Agreement, the
Partnership shall have the right to withhold (and at the Optionee’s election the
Partnership shall withhold) the number of Units issuable in respect of the
Options having an aggregate Fair Market Value as of the date of the withholding
equal to the amount of any federal, state, local or foreign taxes payable as a
result of the vesting or exercise of the Options in whole or in part; provided,
however, that the value of the Units withheld may not exceed the statutory
minimum withholding amount required by law or such additional amount (as
permitted by law) elected by Optionee. The value of any Units
withheld by the Partnership shall be paid by the Partnership to satisfy
Optionee’s tax liabilities.
For
purposes of this Agreement, Fair Market Value means, with respect to
a Unit for any purpose on a particular date, (A) if Units are registered under
Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and
listed for trading on a national exchange or market, the average, for the 30-day
period preceding such date, of: (i) the closing price quoted on the New York
Stock Exchange, the American Stock Exchange, or the Nasdaq National Market, as
applicable; (ii) the last sale price quoted on the Nasdaq SmallCap Market; (iii)
the average of the high bid and low asked prices on the Nasdaq OTC Bulletin
Board Service or by the National Quotation Bureau, Inc.; or (iv) if Units are
not quoted by any of the above, the average of the closing bid and asked prices
on the relevant date furnished by a professional market maker for the Units, and
(B) if there are not any quoted bid and asked prices, the value as determined in
good faith by the Board of Directors of the General Partner (the "Board"),
provided, however, that for purposes of calculating Optionee's taxable income
upon exercise of the Options under the circumstances set forth in clause (A)
above, Fair Market Value shall mean the closing price or the last sale price
quoted on the principal exchange or market on which the Units are listed or
traded.
6. Adjustments for Transactions and
Other Events. Adjustments for Transactions and
Other Events. In the event that the Partnership engages
in:
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(a)
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A
split or combination of Units (whether by dividend of Units or otherwise),
a recapitalization, reorganization or other similar change in its capital
structure;
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(b)
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An
Excess Dividend (as defined below);
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(c)
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An
issuance of Units of the Partnership or securities convertible into or
exchangeable for Units of the Partnership, to Mr. Carl C. Icahn or his
affiliates, at a price per Unit less than its Fair Market Value;
or
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(d)
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A
going private transaction with a controlling person of the
Partnership.
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then the
Board shall make such equitable adjustments and modifications to the Options and
the terms of this Agreement, including but not limited to the number or kind of
interests covered by the Options, the Exercise Price, or the manner in which the
Options are to be exercised, as the Board reasonably determines is required or
appropriate in order to prevent the dilution or enlargement of the benefits or
potential benefits provided in respect of Options under this
Agreement.
For the purposes of this
Agreement, the term Excess Dividend shall mean the amount, if any, by which the
aggregate dividends, paid to holders of Units from and after January 1, 2010, in
either cash or other property (valued at fair market value as determined by the
Board, in its reasonable discretion) exceeds the Tax Amount. ‘‘Tax Amount’’ means
the aggregate combined federal, state and local income taxes, for all
periods beginning on or after January 1, 2010, including estimated
taxes, that would be payable by the Partnership if it were a Delaware
corporation filing separate tax returns with respect to its Taxable Income for
such periods and owned 100% of Icahn Enterprises Holdings L.P.; provided, that
in determining the Tax Amount, the effect thereon of any net operating loss
carryforwards or other carryforwards or tax attributes, such as alternative
minimum tax carryforwards, that would have arisen if Partnership were a Delaware
corporation shall be taken into account, but only to the extent such
carryforwards or attributes arise after January 1, 2010; provided,
further that (i) if there is an adjustment in the amount of the Taxable Income
for any period, an appropriate positive or negative adjustment shall be made in
the Tax Amount, and if the Tax Amount is negative, then the Tax Amount for
succeeding periods shall be reduced to take into account such negative amount
until such negative amount is reduced to zero and (ii) any Tax Amount other than
amounts relating to estimated taxes shall be computed by a nationally recognized
accounting firm (but, including in any event, Partnership’s auditors).
Notwithstanding anything to the contrary, the Tax Amount shall not include taxes
resulting from Partnership’s change in the status to a corporation for tax
purposes.‘‘Taxable Income’’
means, for any period, the taxable income or loss of Partnership for such
period for federal income tax purposes.
7. Holder of Options Not a Unitholder.
Until such time, if any, that he exercises the Options, Optionee shall
have no rights as a Unitholder and shall not be owed the duties, if any, that
Unitholders are owed in their capacity as Unitholders.
8. Notices. All notices and
other communications made or given pursuant to this Agreement shall be in
writing and shall be sufficiently made or given if hand delivered or mailed by
certified mail, addressed to the Optionee at the address contained in the
records of the Partnership or General Partner, or addressed to the Partnership
for the attention of the Secretary of the General Partner at its principal
executive office or, if the receiving party consents in advance, transmitted and
received via telecopy or via such other electronic transmission mechanism as may
be available to the parties.
9. Investment Representation. if
at any time the Partnership determines that the delivery of Units under this
Agreement is or may be unlawful under the laws of any applicable jurisdiction,
or federal or state securities laws, the right to exercise the Options or
receive Units pursuant to the Options or exercise of any particular right
hereunder shall be suspended until the Partnership determines that such delivery
is lawful. The Partnership may require that the Optionee, as a condition to
exercise of the Option, and as a condition to the delivery of any Units, make
such written representations (including representations to the effect that such
person will not dispose of the Units so acquired in violation of federal or
state securities laws) and furnish such information as may, in the opinion of
counsel for the Partnership, be appropriate to permit the Partnership to issue
the Units in compliance with applicable federal and state securities
laws. The Partnership shall use its best efforts to register the
Units issuable upon exercise of the Options with the Securities and Exchange
Commission and, except during occasional periods when the registration statement
relating thereto may not be usable to maintain such registration so that such
Units are freely transferrable within a reasonable time following the date
hereof.
10. Entire Agreement. This
Agreement, together with the Employment Agreement, contains the entire agreement
between the parties with respect to the Options granted hereunder. Any oral or
written agreements, representations, warranties, written inducements, or other
communications made prior to the execution of this Agreement with respect to the
Options granted hereunder shall be void and ineffective for all
purposes. Any conflict between this Agreement and the Employment
Agreement with respect to the Options shall be determined as provided in this
Agreement.
11. Intentionally Omitted.
12. Amendment. This Agreement may
be amended from time to time in a written document signed by each of the parties
hereto.
13. Governing Law. The validity,
construction and effect of this Agreement, and of any determinations or
decisions made by the Partnership relating to this Agreement, and the rights of
any and all persons having or claiming to have any interest under this
Agreement, shall be determined exclusively in accordance with the laws of
Delaware without regard to its provisions concerning the applicability of laws
of other jurisdictions. Any suit with respect hereto will be brought in the
federal or state courts in the districts which include courts in Delaware, and
the Optionee hereby agrees and submits to the personal jurisdiction and venue
thereof.
14. Headings. The headings in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
15. Options Conditioned Upon Unit Holder
Approval. This Agreement and the Options are conditioned upon and subject
to approval thereof by a vote of the depositary unit holders in accordance with
rules under Section 16 of the Securities Exchange Act of 1934, as
amended. Partnership will use its best efforts to cause the
Unitholders to approve the grant of Options to Optionee and Carl C. Icahn has
agreed in connection with the Employment Agreement to vote all his Depositary
Units for the grant of the Options to Optionee.
16. Non-Guarantee of Employment or Other
Service Relationship. Nothing in this Agreement shall alter the
Optionee's at-will or other employment status with the Partnership or the
General Partner, nor be construed as a contract of employment or other service
relationship between the Partnership or the General Partner and the Optionee, or
as a contractual right of the Optionee to continue in the employ of, or in a
service relationship with (or to occupy any particular position with, or receive
any particular benefit or compensation from the Partnership, and any change
thereof shall not be deemed to constitute a termination of employment hereunder)
the Partnership or the General Partner for any period of time, or as a
limitation of the right of the Partnership or the General Partner to discharge
the Optionee at any time with or without cause or notice and whether or not such
discharge results in the forfeiture of any Units.
17. No Rights as a Holder of a
Unit. The Optionee will not have any of the rights of a holder of a Unit
until such Units have been issued to him upon the due exercise of the
Options.
18. Nontransferability of
Options. The Options are nontransferable and may be exercised only by
Optionee except that (a) upon the death of the Optionee, vested Options may be
transferred by will or the laws of descent and distribution or (b) if the
Optionee is under a legal disability, the vested Options may be transferred to
the Optionee's guardian or legal representative. Except as provided above, the
Options may not be assigned, transferred, pledged, hypothecated or disposed of
in any way (whether by operation of law or otherwise) and shall not be subject
to execution, attachment or similar process.
19. Units No Longer Publicly
Traded. In the event that the Units are no longer publicly traded, the
Optionee may exercise the vested Options on a cashless basis, in which event the
Optionee will be paid with respect to each Unit for which the Option is
exercised the amount by which the Fair Market Value of the Unit, on the date of
exercise exceeds, the Exercise Price.
ICAHN
ENTERPRISES L.P
CLASS B OPTION EXERCISE
FORM
TO: Secretary
of ICAHN ENTEROPRISES, L.P.
FROM: _________________________________
I hereby
irrevocably exercise my option to purchase depositary (common) units
representing limited partner interests of ICAHN ENTERPRISES, L.P. subject to all
the terms and provisions of the Option Grant Agreement as follows:
Date of
Option Grant: ______________________________
Date(s)
of Vesting of
Option: _________________________________
Exercise
Price: $____ per unit
Number of
Units to be
Purchased: _________________________________
Total
Exercise Price Enclosed:
$ _________________________________
Units
should be registered as follows:
o In
Optionee's name or the name of another individual:
Name(s) _________________________________________
Address _________________________________________
Social
Security
Number: _____________________________
o In
the name of Optionee's broker
_____________________________
Full
payment of the aggregate option exercise price pursuant to Sections 4(c) and (d)
of the Option Grant Agreement is enclosed as follows:
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____
(i)
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Cash,
certified or cashier’s check, money order or other cash equivalent in the
amount of $________, (number of Units being exercised x grant price per
unit)
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____
(ii)
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Broker-assisted
cashless exercise pursuant to Federal Reserve Regulation T in the amount
of $_________ (broker is hereby authorized to make such payment directly
to ICAHN ENTERPRISES, L.P.)
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Contact Information for
Broker:
Name: ___________________________________
Address: ___________________________________
___________________________________
Telephone: ___________________________________
Any broker-assisted cashless exercise
must be in accordance with Federal Reserve Regulation T.
______________________________
Optionee’s Signature
Date: ________________________
IN
WITNESS WHEREOF, the Partnership has caused this Agreement to be executed this
11th
day of February 2010.
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Icahn
Enterprises, L.P.
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By:
Icahn Enterprises G. P. Inc., general
partner
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By:
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/s/ Keith Meister
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Name:
Keith Meister
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Title:
Principal Executive
Officer
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The
undersigned hereby acknowledges that he has carefully read this Agreement and
agrees to be bound by all of the provisions set forth herein.
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WITNESS
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OPTIONEE
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/s/
Daniel A. Ninivaggi
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| Daniel A. Ninivaggi |
Exhibit
99.1
ICAHN
ENTERPRISES L.P.
For
Immediate Release
Contact:
Susan Gordon
212-702-4333
DANIEL
A. NINIVAGGI ELECTED PRESIDENT OF
ICAHN
ENTERPRISES L.P.
NEW YORK – February 16, 2010 –
Icahn Enterprises L.P. (NYSE: IEP) today
announced that its general partner, Icahn Enterprises G.P. Inc., has elected
Daniel A. Ninivaggi, as the company’s President, effective April 1,
2010. Ninivaggi will also serve as President of the general partner
and certain other affiliated companies.
As
President of Icahn Enterprises L.P., Ninivaggi will oversee the company’s
portfolio company operations and, working with other members of senior
management, develop strategies for enhancing the value of the company’s core
businesses. He will also work with a team on identifying, acquiring
and developing undervalued businesses or assets.
In
commenting on Ninivaggi’s appointment, Carl C. Icahn, Chairman of Icahn
Enterprises G.P. Inc., stated “I have known Dan for a number of years
and have always been impressed by his intelligence, ability and work
ethic. I believe he will be a great addition to the IEP team and look
forward to working with him.”
Speaking
about his appointment, Ninivaggi commented “I’m excited to work with Carl and
the other members of the Icahn organization to realize the full potential of the
businesses of Icahn Enterprises L.P. and its portfolio companies. I believe
there are excellent opportunities to grow the company’s existing operations,
identify new operating platforms and enhance shareholder value.”
Ninivaggi
previously served as Executive Vice President of Lear Corporation (NYSE:LEA), a
leading global supplier of automotive seating and electrical power management
systems. Prior to that, Ninivaggi was a Partner at the law firm of
Winston & Strawn LLP, specializing in mergers and acquisitions and corporate
finance. Ninivaggi also serves as a director of CIT Group Inc.
(NYSE:CIT).
Ninivaggi
received a Bachelor of Arts degree from Columbia University, a Master of
Business Administration from the University of Chicago Graduate School of
Business, and a law degree from Stanford Law School.
Icahn Enterprises L.P. (NYSE: IEP), a
master limited partnership, is a diversified holding company engaged in seven
primary business segments: Investment Management, Automotive, Metals, Real
Estate, Home Fashion, Railcar and Food/Packaging.
This
release contains certain “forward-looking statements” within the meaning of the
Private Securities Litigation Reform Act of 1995, many of which are beyond our
ability to control or predict. Forward-looking statements may be identified by
words such as “expects,” “anticipates,” “intends,” “plans,” “believes,” “seeks,”
“estimates,” “will” or words of similar meaning and include, but are not limited
to, statements about the expected future business and financial performance of
Icahn Enterprises L.P. and its subsidiaries. Among these risks and uncertainties
are risks related to economic downturns, substantial competition and rising
operating costs; risks related to our investment management activities,
including the nature of the investments made by the private funds we manage,
losses in the private funds and loss of key employees; risks related to our
automotive activities, including exposure to adverse conditions in the
automotive industry, and risks related to operations in foreign countries; risks
related to our scrap metals activities, including potential environmental
exposure; risks related to our real estate activities, including the extent of
any tenant bankruptcies and insolvencies; risks related to our home fashion
operations, including changes in the availability and price of raw materials,
and changes in transportation costs and delivery times; and other risks and
uncertainties detailed from time to time in our filings with the SEC. We
undertake no obligation to publicly update or review any forward-looking
information, whether as a result of new information, future developments or
otherwise.