NON-COMPETITION AGREEMENT
This
Non-Competition Agreement, dated as of August __, 2007, is between American
Real
Estate Partners, L.P. (“AREP”),
and
Xxxx X. Icahn (“Icahn”).
Capitalized terms used and not otherwise defined herein shall have the meaning
ascribed to them in the Contribution and Exchange Agreement (as defined
below).
WHEREAS,
Icahn is the indirect owner of interests in entities engaged in the business
of
providing investment management and related services (the “Business”);
WHEREAS,
pursuant to the Contribution and Exchange Agreement, dated as of August __,
2007
(the “Contribution
and Exchange Agreement”)
by and
among CCI Offshore Corp. (“CCI
Offshore”),
CCI
Onshore Corp. (“CCI
Onshore”),
Icahn
Management LP (“Icahn
Management”
and
together with CCI Onshore and CCI Offshore, the “Contributors”),
Icahn, and AREP, the Contributors will transfer 100% of their interests in
certain limited partnerships constituting the Business (the “Companies”)
to
AREP;
WHEREAS,
Icahn holds significant direct or indirect economic interests in CCI Offshore,
CCI Onshore and Icahn Management;
WHEREAS,
one of the conditions to the consummation by AREP of the transactions
contemplated by the Contribution and Exchange Agreement is that Icahn enters
into this Non-Competition Agreement for the purpose of preserving for AREP’s
benefit the goodwill associated with the Business;
NOW,
THEREFORE, to induce AREP to enter into and consummate the transactions
contemplated by the Contribution and Exchange Agreement and to preserve the
value of the Business (and, in particular, the goodwill associated therewith
that is being transferred to AREP pursuant to the Contribution and Exchange
Agreement), and in consideration of the mutual covenants and agreements herein
contained, the parties hereto do hereby agree as follows:
1. Non-
Competition.
During
the period commencing on the date hereof and ending on the tenth anniversary
of
the Closing Date (the “Non-Compete
Period”),
Icahn, shall not, without AREP’s prior written consent, directly or indirectly,
for his own account, or in any capacity on behalf of any other third person
or
entity, whether as an officer, director, employee, partner, joint venturer,
consultant, investor or otherwise, engage, or assist others engaged, in whole
or
in part, in any business deriving more than 25% of its revenues or income from
providing investment management services (a “Competing
Business”);
provided
that
ownership of stock of a business shall not be deemed a violation of this Section
1 if and for so long as (x)
the
stock of such business is publicly traded, (y)
such
ownership does not exceed 5% of the aggregate outstanding equity interest of
such business and (z)
Icahn
does not otherwise participate in the management, operations or affairs of
such
business. Notwithstanding the foregoing, nothing in this Non-Competition
Agreement shall be construed to prohibit Icahn from rendering services to,
acquiring an economic interest in or otherwise providing assistance to the
Companies, AREP or any of their controlled Affiliates or any pooled investment
vehicle which is advised or subadvised by AREP, the Companies or any of their
controlled Affiliates, or providing investment management services (whether
personally or as an employee or partner of a business formed for this purpose)
solely on his own behalf or on behalf of one or more of his family members,
including trusts of which his family members are the principal beneficiaries
and
corporations, limited partnerships, limited liability companies or similar
entities established solely for the benefit of, and wholly owned by, his family
members. Furthermore, Icahn may notify AREP of any proposed activity for the
purpose of soliciting a conclusion as to whether such activity would violate
this Section 1. AREP agrees that it shall approve or disapprove Icahn’s proposal
within 30 days of receipt of such notice. If AREP approves such activity for
purposes of this Section 1, then such activity, as disclosed in Icahn’s request
for approval, will not constitute a violation of this Section 1.
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2. Non-solicitation.
During
the Non-Compete Period, Icahn shall not, directly or indirectly, whether through
his own efforts, or through the efforts, or in any way assisting or employing
the assistance, of any other person or entity (including through any consultant
or any person employed by or associated with any entity with whom he may be
employed or associated), do any of the following: (a)
solicit
or otherwise attempt to establish a Competing Business with any person, firm,
corporation or other entity that was an investor in the Funds, or prospective
investor in the Funds to whom any of the Companies has made a proposal within
the six months prior to Icahn’s termination of employment or (b)
solicit
for employment, hire or otherwise engage in any capacity in any Competing
Business any investment professional or executive who is or has within the
previous one year been an employee or partner of the Companies or any of their
controlled Affiliates, or solicit any such person to terminate his or her
employment by the Companies or any of their controlled Affiliates.
3. Certain
Acknowledgments.
Icahn
acknowledges that (i)
the
past services rendered by him to the Companies are of a special and unusual
character that have and have had a unique value to the Companies, (ii) he
possesses relations, contacts, information and other know-how that would permit
him to compete with the Companies or an Affiliate thereof, and reduce the value
of the Business and the interests being transferred to AREP pursuant to the
Contribution and Exchange Agreement and (iii) the
covenants set forth in Sections 1 and 2 constitute a material inducement to
AREP
to consummate the transactions contemplated by the Contribution and Exchange
Agreement and AREP would not have agreed to enter into or consummate the
transactions contemplated by the Contribution and Exchange Agreement unless
Icahn had agreed to the covenants set forth herein.
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4. Miscellaneous.
(a) Blue-Pencil.
If any
of the agreements set forth in this Non-Competition Agreement shall be held
to
be invalid or unenforceable, the remaining parts thereof shall nevertheless
continue to be valid and enforceable as though the invalid or unenforceable
parts had not been included therein. In the event that any provision of this
Non-Competition Agreement relating to the time period, geographic area, scope
and/or subject matter shall be declared by a court of competent jurisdiction
to
exceed the maximum time period, geographic area, scope and/or subject matter
such court deems enforceable, such time period, geographic area, scope and/or
subject matter shall be deemed to become and thereafter be the maximum time
period, scope and/or subject matter that such court deems enforceable, it being
the intent and express agreement of the parties that the terms of this
Non-Competition Agreement be enforced and interpreted in accordance with the
terms to the greatest extent possible.
(b) Injunctive
Relief.
The
parties agree that the covenants and obligations of Icahn with respect to
non-competition and non-solicitation, and other matters contained herein relate
to special, unique and extraordinary matters and that a violation of any of
the
terms of such covenants and obligations will cause AREP irreparable injury
for
which adequate remedies are not available at law. Therefore, Icahn agrees that
AREP will be entitled to an injunction, restraining order or such other
equitable relief as a court of competent jurisdiction may deem necessary or
appropriate to restrain Icahn from committing any violation of the covenants
and
obligations referred to in this Non-Competition Agreement. Any such injunction
may be obtained without the necessity of posting a bond. These injunctive
remedies are cumulative and in addition to any other rights and remedies AREP
may have at law or in equity.
(c) Construction.
The
terms and conditions of this Non-Competition Agreement are the result of
negotiations between the parties and this Non-Competition Agreement shall not
be
construed in favor of or against any party by reason of the extent to which
any
party or its professional advisors participated in the preparation of this
Non-Competition Agreement.
(d) Assignment.
Icahn
may not assign his rights or obligations hereunder. The rights and obligations
of AREP hereunder shall inure to the benefit of and shall be binding upon AREP,
each of its successors and permitted assigns and may not be assigned without
the
prior written consent of Icahn, such consent not to be unreasonably withheld
or
delayed.
(e) Applicable
Law.
This
Non-Competition Agreement shall be governed in all respects, including as to
validity, interpretation and effect, by the internal laws of the State of New
York, without regard to conflicts of laws principles of such state or any other
state.
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(f) Consent
to Jurisdiction; Etc..
(i) Each
of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of any New York State court
or
federal court of the United States of America sitting in the County of New
York,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Non-Competition Agreement or the transactions
contemplated hereby or for recognition or enforcement of any judgment relating
thereto, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State court or, to the extent permitted by
law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided
by
law.
(ii) Each
of
the parties hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now
or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Non-Competition Agreement or the transactions
contemplated hereby in any New York State or federal court sitting in the County
of New York. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(iii) Each
party to this Non-Competition Agreement irrevocably consents to service of
process in the manner provided for notices in Section 4(i).
Nothing
in this Non-Competition Agreement will affect the right of any party to this
Non-Competition Agreement to serve process in any other manner permitted by
law.
(g) Waiver
of Jury Trial.
(i) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS
NON-COMPETITION AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,
AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT
MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS NON-COMPETITION AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
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(ii) EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (i)
NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVER, (ii)
IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii)
IT
MAKES SUCH WAIVER VOLUNTARILY, AND (iv)
IT HAS
BEEN INDUCED TO ENTER INTO THIS NON-COMPETITION AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4(g).
(h) Amendment;
Waiver.
No
amendment, modification or discharge of this Non-Competition Agreement, and
no
waiver hereunder, shall be valid or binding unless set forth in writing and
duly
executed by the party against whom enforcement of the amendment, modification,
discharge or waiver is sought. Any such waiver shall constitute a waiver only
with respect to the specific matter described in such writing and shall in
no
way impair the rights of the party granting such waiver in any other respect
or
at any other time. Neither the waiver by either party hereto of a breach of
or a
default under any of the provisions of this Non-Competition Agreement nor the
failure by either party, on one or more occasions, to enforce any of the
provisions of this Non-Competition Agreement or to exercise any right or
privilege hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights
or
privileges hereunder. The rights and remedies herein provided are cumulative
and
none is exclusive of any other, or of any rights or remedies that either party
may otherwise have at law or in equity.
(i) Notices.
All
notices, requests, demands and other communications made in connection with
this
Non-Competition Agreement shall be in writing and shall be (a) mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid or (b) transmitted
by hand delivery addressed as follows:
if
to
AREP:
Special
Committee of the
Board
of
Directors of American Property Investors, Inc.
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Xxxxxxx Xxxxxxxxx, Esq.
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with
a
copy (which shall not constitute notice) to:
American
Real Estate Partners, L.P.
000
Xxxxx
Xxxxxxx Xx.
Xx.
Xxxxx, XX 00000
Attention:
Xxxxxxx Xxxxxx, Esq.
and
Proskauer
Rose LLP
0000
Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx, Esq.
and
Debevoise
& Xxxxxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
if
to
Icahn:
Icahn
Associates Corp.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Attention:
Xxxx Xxxxxxx
with
a
copy (which shall not constitute notice) to:
Xxxxxxx
XxXxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx, Esq.
or,
in
each case, such other address as may be specified in writing to the other
parties hereto.
All
such
notices, requests, demands, waivers and other communications shall be deemed
to
have been received (x) if
delivered by first-class, certified or registered mail, on the fifth Business
Day after the mailing thereof, or (y) if
delivered by personal delivery, on the day after such delivery.
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(j) Counterparts.
This
Non-Competition Agreement may be executed in counterparts, each of which shall
constitute an original and all of which shall constitute one and the same
instrument.
(k) Entire
Agreement.
This
Non-Competition Agreement and the other agreements referred to herein constitute
the entire agreement between Icahn and AREP with respect to the subject matter
hereof.
The
signature page follows
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IN
WITNESS WHEREOF, the parties have executed this Non-Competition Agreement as
of
the date first above written.
| AMERICAN REAL ESTATE PARTNERS, L.P. | ||
| |
|
|
| BY: | AMERICAN PROPERTY INVESTORS, INC., ITS GENERAL PARTNER | |
| By: | /s/ Xxxxxx Xxxxx | |
| Name: Title: |
||
| XXXX X. ICAHN | ||
| |
|
|
| /s/ Xxxx X. Icahn | ||
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