AMENDMENT
AMENDMENT
THIS
AMENDMENT is made this 8th
day of
August 2007 by and between Icahn Capital Management LP (the “Management
Company”
or
“Employer”),
Icahn
Onshore LP (the “Onshore
GP”)
and
Icahn Offshore LP (the “Offshore
GP”
and
together with the Onshore GP, the “Fund
GPs”),
and
Xxxxx Xxxxxxx residing at 000 Xxxx 00xx
Xxxxxx,
Xxx Xxxx, XX 00000 (“Employee”
or
“you”).
RECITALS:
Employee
executed an Agreement dated as of December 31, 2004, as amended (the
“Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Agreement) with Icahn Management LP, the Onshore GP, the
Offshore GP and the Icahn Related Entities, as defined therein.
Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as
of
August 8, 2007 between Icahn Management LP and the Management Company (the
“Assignment”),
Icahn
Management LP assigned, transferred and conveyed to the Management Company,
effective as of 12:01 a.m., August 8, 2007 (the “Effective
Date”),
all
of its right, title and interest in and to the Agreement, and the Management
Company assumed and agreed to perform the liabilities and obligations (the
“Assumed
Obligations”)
of
Icahn Management LP under the Agreement, other than liabilities and obligations
arising prior to the Effective Date, including, without limitation, liabilities
and obligations with respect to Employee’s Management Fee Participation arising
prior to the Effective Date (those liabilities and obligations arising prior
to
the Effective Date, the “Retained
Obligations”).
Each
of
Employer, the Onshore GP and the Offshore GP is owned indirectly by American
Real Estate Holdings Limited Partnership, a Delaware limited partnership
(“AREH”).
The
sole limited partner of AREH is American Real Estate Partners, L.P., a Delaware
limited partnership (“AREP”).
The
parties wish to amend the Agreement, as so assigned, such amendments to be
effective as of the Effective Date.
In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Consent.
Employee hereby consents to the assignment of the Agreement pursuant to the
Assignment.
2. Obligations
of Icahn Management LP.
Employee
acknowledges and agrees that his right, title and interest to, and his
obligations with respect to, the Management Fee Participation earned pursuant
to
the Agreement prior to the Effective Date were not assigned to the Management
Company pursuant to the Assignment, and that the portion of the Agreement that
relates to such Management Fee Participation has been amended pursuant to the
Amendment In Relation to Management Fee Participation dated as of August 8,
2007
between Icahn Management LP, the Fund GPs, the Icahn Related Entities and
Employee. Employee further agrees and acknowledges that the Management Company
shall have no liability with respect to Employee’s Management Fee Participation
earned prior to the Effective Date.
3. Management
Company.
As of
and following the Effective Date, all references in the Agreement to “Management
Company” or “Employer” shall be deemed to be references to Icahn Capital
Management LP. Notwithstanding the foregoing, Employee acknowledges and agrees
that the payments made to him by Icahn Management LP prior to the Effective
Date
pursuant to his right to distribution and payment of an amount equal to 1.5%
of
the Net Management Fees for the fiscal quarter of the Funds during which the
Effective Date occurs shall also be deemed to satisfy, to the extent applicable,
the corresponding obligation of the Management Company with respect to
Management Fees attributable to the period from the Effective Date through
to
the end of such fiscal quarter.
4. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (a portion of the Agreement remaining with Icahn
Management LP and the balance being assumed by the Management Company) shall
not, in the aggregate, diminish or expand the rights or obligations of Employee
and, in particular, will not diminish or expand his right to receive payments
or
other economic rights, in the aggregate. The parties agree that in addition
to
any other obligations they may have, Icahn Management LP is responsible for
performing all of the Retained Obligations, and the Management Company is
responsible for performing all of the Assumed Obligations. The parties agree
and
acknowledge that neither the Assignment nor this Amendment shall release the
Other Parties from their obligations under the Agreement, as assigned, and
the
Other Parties will continue to be responsible for the obligations under the
Agreement, as assigned, to the extent they are not performed by the Management
Company and its Affiliates. In particular, no incremental cost, if any, that
may
be incurred by the Management Company and that is attributable to the
compensation, bonus or expenses of Xxxx X. Icahn under his employment agreement
entered into pursuant to that certain Contribution and Exchange Agreement dated
August 8, 2007 by and among Icahn Management LP, CCI Offshore Corp., CCI Onshore
Corp., Xxxx X. Icahn and AREP (the “Contribution Agreement”), or to the earn-out
payable to Mr. Icahn and his Affiliates under the Contribution Agreement, or
to
any expenses incurred because the Management Company will be owned by AREP
and
its Affiliates (that is, dealing with AREP’s accounting and reporting
requirements), will diminish any amounts to be accrued or paid to Employee
pursuant to the Agreement, as assigned. Attached hereto as Annex A is a schedule
showing Employee’s accrued but unpaid Profit Participation, including unpaid
amounts with respect to his deferred Management Fee Participation and amounts
standing to the credit of the Employee Capital Account in respect of his
Incentive Allocation Participation, updated through August 4, 2007. The parties
agree that, absent manifest error, Annex A accurately sets forth the Profit
Participation of the Employee to the date hereof and methodology for the
calculation of the matters set forth therein.
5. Admission
as Limited Partner.
Section
2 of the Agreement shall be amended as of the Effective Date by the addition
of
the following sentence at the end of Section 2:
Employee
has also been admitted as a limited partner of the Management Company effective
as of the August 8, 2007 (all of which partnership interest and all related
rights, powers and privileges shall, without any further act or deed, cease
and
terminate in all respects on the last day of the Term). References in this
Agreement to the “employment” of Employee by the Management Company shall refer
to Employee’s limited partnership interest in, and his provision of services as
a limited partner to, the Management Company, and all payments to Employee
by
the Management Company provided for herein shall be reported to Employee by
the
Management Company on a Form K-1. The rights of Employee as a limited partner
of
the Management Company, and the duties of the Management Company and its
respective partners to Employee as limited partner of the Management Company,
shall be limited to those expressly set forth in the Agreement, as hereby
amended and as further amended from time to time, and Employee shall have no
other rights as a limited partner of the Management Company, whether by virtue
of applicable statutory law or otherwise. Employee expressly waives and
disclaims any other rights or obligations in favor of Employee.
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6. Deferral
of Management Fee Participation. As
of and
following the Effective Date, all references in the Agreement to the “Management
Fee Participation” shall mean Employee’s Management Fee Participation earned
hereunder in respect of periods from and after the Effective Date (which for
the
avoidance of doubt does not include the 1.5% of the Net Management Fees required
to be paid to Employee currently). Such deferred Management Fee Participation
shall be deemed to be hypothetically invested in the Offshore Fund, and accruals
and payments to Employee under the Agreement with respect to such deferred
Management Fee Participation shall be equal to the amount hypothetically
invested as the same may be increased or decreased by the actual returns on
the
amounts hypothetically invested in the Offshore Fund. The Management Company
shall be responsible for payment of Employee’s Management Fee Participation
earned on and following the Effective Date, together with all hypothetical
gains
and losses thereon.
7. Vesting.
Employee’s right to receive any amount or payments in respect of the Profit
Participation earned after the Effective Date shall vest in accordance with
Section 11 of the Agreement, taking into account for such purpose Employee’s
periods of service with Icahn Management LP and the Icahn Related Entities
commencing January 1, 2005 through the Effective Date, and Employee’s periods of
service with the Management Company and the Icahn Related Entities from and
after the Effective Date. For the avoidance of doubt, neither the Assignment
nor
Employee’s ceasing to provide services to Icahn Management LP as of the
Effective Date shall result in the accelerated vesting of the Profit
Participation pursuant to Section 11 of the Agreement.
8. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
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9. Agreement
in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Agreement, as assigned, shall remain and continue in full force and
effect.
10. Responsibility
of AREP.
AREP
shall be jointly and severally responsible for the obligations of the Management
Company hereunder.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
| EMPLOYEE | |
| /s/ Xxxxx Xxxxxxx | |
| Xxxxx Xxxxxxx | |
| Icahn Capital Management LP | |
| By: Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory | |
| Icahn Onshore LP | |
| By: Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory | |
| Icahn Offshore LP | |
| By: Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory | |
| AMERICAN REAL ESTATE PARTNERS, L.P. | |
| By: Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory |
[Signature
page to Amendment to Xxxxx Xxxxxxx Employment Agreement
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