Employment Agreement
EXHIBIT
10.1
EMPLOYMENT
AGREEMENT dated as of May 1, 2008 (this “Agreement”),
between ICAHN ENTERPRISES HOLDINGS L.P. (the “Company”)
and
Xx. Xxxxxxxx Xxxxxx (“Employee”).
Company and Employee may hereinafter be referred to jointly as the "Parties."
This
Agreement shall become effective on the date appearing on the signature page
of
this Agreement under the Company’s signature ("Effective
Date").
The
Parties to this Agreement, in consideration of the mutual covenants contained
herein, agree upon the following terms of employment of Employee by
Company:
1. Employment.
Upon
the terms and conditions hereinafter set forth, the Company hereby agrees to
employ Employee and Employee hereby agrees to become so employed. During the
Term of Employment (as hereinafter defined), Employee will be employed in the
position of (i) Chief Financial Officer of the Company, and (ii) an officer,
director, advisor or agent to the Company, Icahn Enterprises G.P. Inc., the
general partner of the Company (the “General
Partner”),
and/or Icahn Enterprises, L.P. (“Icahn
Enterprises”),
and
each of their respective direct and/or indirect subsidiaries (each of such
subsidiaries, the "Designated
Affiliates"),
as
such positions may be specified from time to time by the Board of Directors
of
the General Partner (such board or any committee of such board to which such
board delegates its responsibilities with respect hereto being referred to
herein as the “Board”).
In
such capacities Employee shall perform such duties as are specified by any
of
the Board, the Company, the General Partner, Icahn Enterprises, the Designated
Affiliates and the Superiors (as defined below).
During
the Term of Employment, Employee shall (i) report to and be subject to
supervision by each of (A) the Board, (B) Chairman of the Board (the
“Chairman”),
(C)
President of the Company, (D) Chief Executive Officer of the Company, (D)
Principal Executive Officer of the Company, and (E) or such other persons or
entities as shall be specified by the Board from time to time (Persons
specified, and/or in the capacities set forth, in (B) through (E) of this
clause, collectively, the “Superiors”),
(ii)
perform such duties for the Company and its subsidiaries and affiliates, as
are
specified from time to time by the Superiors, the Company and the Board, and
shall serve in such capacities at the pleasure of, the Company and the Board,
subject to the terms hereof, (iii) devote all of his professional attention,
on
a full time basis, to the business and affairs of the Company and shall use
his
best efforts to advance the best interest of the Company and shall comply with
all of the policies and procedures of the Company, including, without
limitation, such policies with respect to legal reporting and compliance,
conflicts of interest, confidentiality and business ethics as are from time
to
time in effect, (iv) not directly or indirectly render services to, or otherwise
act in a business or professional capacity on behalf of or for the benefit
of,
any other “Person” (as defined below) as an employee, advisor, member of a board
or similar governing body, sole proprietor, independent contractor, agent,
consultant, representative or otherwise, whether or not compensated, and (v)
work in the Company’s offices located in New York City on a full time basis and
reside in New York City or its vicinity.
|
Page
1
|
|
The
parties acknowledge that Employee may from time to time also be requested by
Xxxx X. Icahn to act as an officer, director, advisor or agent to entities
with
which he and his affiliates are involved (such entities, other than the Company,
the General Partner, Icahn Enterprises and the Designated Affiliates, are
referred to herein as the "Icahn
Designated Entities")
and
Employee agrees that he will do so. Employee will not receive any additional
compensation in taking on such activities and the Company will be reimbursed
by
the Icahn Designated Entities based on the time spent by Employee in such
activities in accordance with the Company’s policies.
"Person"
or
“person”,
as
used in this Agreement, means any individual, partnership, limited partnership,
corporation, limited liability company, trust, estate, cooperative, association,
organization, proprietorship, firm, joint venture, joint stock company,
syndicate, company, committee, government or governmental subdivision or agency,
or other entity.
2. Term.
The
employment period of Employee hereunder shall commence on the Start Date (as
defined below), and shall continue through December 31, 2011 (December 31,
2011
being the “Expiration Date”), unless earlier terminated as set forth in this
Agreement (the “Term
of Employment”).
Employee
is currently employed by or will be employed by Bear Xxxxxxx Inc. and/or XX
Xxxxxx Chase and their affiliates (the "Existing
Employer").
Employee
has informed the Company that he will continue to work with the Existing
Employer for a transition period and may not be available to commence work
with
the Company prior to August 1, 2008 (the "Final
Date").
Employee agrees that prior to the Final Date, Employee will begin full time
employment with the Company under this Agreement (the date of the commencement
of such employment, the "Start
Date");
it
being understood and agreed by Employee that: (i) failure to begin full time
employment with the Company prior to the Final Date will constitute a breach
of
contract under this Agreement; and (ii) if the Start Date does not occur on
or
prior to the Final Date, then, at the sole and absolute discretion of the
Company, the Company may deliver written notice to Employee terminating this
Agreement, in which event the Company shall have no payment or other obligation
to Employee of any kind or nature (but the provisions of Section 7 and 8 hereof
shall survive any such termination). Employee has informed the Company that
Employee will become eligible to receive a "stay put" type bonus (referred
to
below as the "Transition
Bonus")
from
the Existing Employer, the terms of which are not yet finalized (and which
Employee agrees to act in good faith to negotiate and obtain so as to reduce
the
amount of the Special Bonus Compensation in this Agreement). Employee will
keep
the Company fully informed regarding such negotiations and will allow the
Company to participate in such negotiations if the Existing Employer does not
object. The goal of the Company and Employee in such negotiations will be to
reduce the Special Bonus Compensation by increasing the amount of the Transition
Bonus. The Company will have the right to extend the Final Date from time to
time by giving written notice thereof to Employee and at the request of the
Company, Employee will continue to provide services to the Existing Employer
in
order to maximize the Transition Bonus, or at the request of the Company,
Employee will cease to provide services to the Existing Employer and begin
work
for the Company hereunder, even if it may reduce the amount of the Transition
Bonus, provided Employee may take up to 30 days off following the last day
of
his employment with the Existing Employer before commencing work with the
Company (it being understood that Employee will not be entitled to any
compensation from the Company during such 30 day period and he will not be
an
employee of the Company until the Start Date). The Transition Bonus shall for
all purposes be deemed to equal the gross amount of such Transition Bonus for
which Employee is eligible (before any applicable deductions and
withholdings).
|
Page
2
|
|
3. Compensation.
For
all
services to be performed by Employee under this Agreement, during the Term
of
Employment, Employee shall be compensated in the following manner:
(a) Base
Compensation.
The
Company will pay Employee a salary (the “Base
Salary”)
at an
annual rate of $300,000 per full 365-day year (being approximately $821.92
per
day), which Base Salary may be increased in the sole and absolute discretion
of
the Chairman by up to approximately 10% for the calendar year 2009. The Base
Salary shall be earned and payable in accordance with the normal payroll
practice of the Company.
(b) Bonus
Compensation.
Employee may also be eligible to receive, in the sole and absolute discretion
of
the Chairman, a bonus. A bonus, if any, shall be deemed earned and payable
only
if approved by the Chairman in writing delivered to Employee. Generally, if
a
bonus is so approved, it will be payable at the same time as other employees
of
the Company located in New York City receive their annual bonuses. Employee
will
be entitled to receive a one time bonus in the amount of $1,150,000 for the
calendar year 2008, which will be earned and payable at the same time as other
employees of the Company located in New York City receive their annual bonuses
for 2008, provided that Employee is actively employed on a full time basis
by
the Company on the day such bonus is to be paid. The compensation payable as
contemplated in the preceding sentences of this Section 3(b) is referred to
herein as “Bonus
Compensation”.
(c) Special
Bonus Compensation.
Employee will also be entitled to receive from the Company a special bonus
in
the aggregate amount equal to (which amount can only be a positive number)
(i)
$1,200,000 minus
(ii) the
Transition Bonus; which special bonus will be payable in 3 equal installments
on
the first business day of July, 2009, July, 2010 and July, 2011, provided that
Employee is actively employed on a full time basis by the Company on the day
such installment is to be paid. The compensation payable as contemplated in
the
preceding sentence of this Section 3(c) is referred to herein as “Special
Bonus Compensation”.
Following his receipt of the Transition Bonus from the Existing Employer,
Employee shall promptly provide the Company with a copy of a check stub that
sets forth the amount of the Transition Bonus and any deductions and/or
withholdings applicable thereto.
4. Benefits/Expense
Reimbursement.
Employee shall be eligible to participate in health insurance and 401(k) plans
currently available to the executives of the Company, subject to and on a basis
consistent with the terms, conditions, and overall administration of such plans.
Employee shall be entitled to reasonable reimbursement of all reasonable
business expenses incurred on behalf of the Company, in accordance with the
Company's standard policies and procedures. Employee shall be entitled to 22
paid-time-off days per year to be accrued and used in accordance with the
Company’s standard policies and procedures.
|
Page
3
|
|
5. Termination.
This
Agreement shall terminate (subject to Section 9(f) below (Survival Provision))
and the Term of Employment and the employment of Employee hereunder shall end,
on the first to occur of any of the following:
(a) The
Expiration Date;
(b) The:
(i)
death of Employee or (ii) determination of the Board, that Employee has become
physically or mentally incapacitated so as to be unable to perform the essential
functions of Employee’s duties to the Company for 60 consecutive days or 80 days
in any twelve-month period, (the “Disability”);
(c) The
discharge of Employee by the Company with or without Cause; or
(d) The
resignation of Employee for any reason or no reason (the “Voluntary
Resignation”),
(and
without limiting the effect of such resignation, Employee agrees to provide
the
Company with not less than 60 days prior written notice of his resignation,
and
in any event the Company may, at its option, declare such resignation to be
effective on (x) any day following receipt of such notice or, (y) if such notice
is not received, any day following such resignation).
The
Company may discharge Employee at any time, for any reason or no reason, with
or
without Cause. As used in this Agreement, “Cause”
means:
(i) dishonesty detrimental to the best interests of the Company or any of its
affiliates; (ii) conduct of Employee involving any immoral acts which is
reasonably likely to impair the reputation of the Company or any of its
affiliates; (iii) willful disloyalty to the Company or the Board, (iv) refusal
or failure of Employee to obey the lawful directions of the Board or the
Superiors, (v) neglect of duties and responsibilities assigned to Employee,
(vi)
indictment for a felony or conviction or plea of nolo
contendere
to a
misdemeanor (other than a traffic violation) punishable by imprisonment under
federal, state or local law, (vii)
the
violation, as determined by the Board based on opinion of its counsel, by
Employee of any securities or employment laws or regulations, (viii) the use
by
Employee of a controlled substance without a prescription or the use of alcohol
which impairs Employee’s ability to carry out his duties and responsibilities,
(ix) material violation by Employee of the Company’s policies and procedures or
any breach of any agreement between the Company and Employee, or (x)
embezzlement and/or misappropriation of property of the Company or any of its
affiliates, or any act involving fraud with respect to the Company or any of
its
affiliates.
6. Obligations
of the Company in the Event of Termination.
In the
event of termination of Employee’s employment hereunder, all rights of Employee
under this Agreement, including all rights to compensation, shall end and
Employee shall only be entitled to be paid the amounts set forth in this Section
6 below; provided, that, the obligations of the Company to make any payment
required pursuant to Section 6 (other than any amounts of Employee’s Base Salary
and any amounts payable on account of accrued but unused paid-time-off days),
is
subject to and conditioned upon (i) execution and delivery by Employee to the
Company of a release agreement in favor of the Company, its affiliates and
their
respective officers, directors, employees, agents and equity holders in respect
of Employee’s employment with the Company and the termination thereof
substantially in a form set forth in Exhibit A, attached hereto and as then
provided by the Company to Employee, and (ii) such release agreement, once
executed by Employee and delivered to the Company, becomes irrevocable and
final
under the applicable law.
(a) For
Cause, Death, Disability and Voluntary Termination.
|
A.
|
If
Employee's employment is terminated for Cause or due to Employee’s death
or Disability or because of a Voluntary Resignation, Employee will
then,
in lieu of any other payments of any kind (including without limitation,
any severance payments) be entitled to receive, within thirty (30)
days
following the date on which such termination occurs (the “Section
6A Termination Date”)
the following:
|
|
(1)
|
Payment
of any unpaid Base Salary through the Section 6A Termination
Date;
|
|
(2)
|
Payment
for any paid-time-off days accrued and unused as of the Section 6A
Termination Date, pursuant to Company policy;
and
|
|
(3)
|
Payment
of any Special Bonus Compensation earned and payable through the
Section
6A Termination Date but not yet paid to
Employee.
|
|
B.
|
Coverage
under all of Company's benefit plans and programs in which Employee
is
entitled to participate under Section 4 above will terminate as of
the
Section 6A Termination Date, except to the extent expressly provided
in
such plans, programs, or under applicable
law.
|
(b) Without
Cause Termination.
|
A.
|
If
Employee's employment is terminated without Cause, Employee will
then, in
lieu of any other payments of any kind (including without limitation,
any
severance payments) be entitled to receive, within thirty (30) days
following the date on which such termination occurs (the Section
6B Termination Date)
the following:
|
|
(1)
|
Payment
of any unpaid Base Salary through the Section 6B Termination
Date;
|
|
(2)
|
Payment
for any paid-time-off days accrued and unused as of the Section 6B
Termination Date, pursuant to Company
policy;
|
|
Page
5
|
|
|
(3)
|
Payment
of any Special Bonus Compensation earned and payable through the
Section
6B Termination Date but not yet paid to Employee;
and
|
|
(4)
|
a
continuation of the payment of amounts of Base Salary that Employee
would
have earned through the lesser of (A) the period through the Expiration
Date had he continued to be employed by the Company through the Expiration
Date or (B) the period ending on the 90th
day following the Section 6B Termination Date, to be paid on the
same
schedule as previously paid.
|
|
B.
|
Coverage
under all of Company's benefit plans and programs in which Employee
is
entitled to participate under Section 4 above will terminate as of
the
Section 6B Termination Date, except to the extent expressly provided
in
such plans, programs, or under applicable
law.
|
7. Non-Disclosure.
From
and
after the date hereof, during
the Term of Employment and at all times thereafter, Employee shall hold in
a
fiduciary capacity for the benefit of the Company and each of its affiliates,
all secret or confidential information, knowledge or data, including, without
limitation, trade secrets, sources of supplies and materials, customer lists
and
their identity, designs, production and design techniques and methods, identity
of investments or investors, identity of contemplated investments, business
opportunities, valuation models and methodologies, processes, technologies,
and
any intellectual property relating to the business of the Company or its
affiliates, and their respective businesses, (“Confidential
Information”).
Employee also agrees to keep confidential and not disclose any personal
information regarding any controlling Person of the Company, including Xxxx
X.
Icahn, any Related Persons or any affiliates (and all such personal information
shall be deemed “Confidential Information” for the purposes of this Agreement).
If the Employee receives a request for Confidential Information from a
government agency or pursuant to a subpoena (together with a request a “Order”),
then Employee may comply with such Order, provided,
however,
that
Employee shall first provide written notification to the Company of such Order
requesting disclosure, unless such notification is not permitted under the
Order. Employee shall not, without the prior written consent of the Company
(acting at the direction of the Board): (i) except to the extent compelled
pursuant to the Order or other body having jurisdiction over such matter or
based upon the advice of counsel that such disclosure is legally required,
communicate or divulge any Confidential Information to anyone other than the
Company and those designated by the Company; or, (ii) use any Confidential
Information for any purpose other than the performance of his duties pursuant
to
this Agreement. Employee will assist the Company or its designee, at the
Company’s expense, in obtaining a protective order, other appropriate remedy or
other reliable assurance that confidential treatment will be accorded any
Confidential Information disclosed pursuant to the terms of this Agreement.
Employee agrees not to disparage the Company, its officers and directors, Mr.
Icahn, or Related Persons, or any affiliate of any of the foregoing, in each
case during and/or after his employment hereunder. For the purposes of this
Agreement, “Related
Persons”
means:
(1) Xxxx Xxxxx, any spouse and any child, stepchild, sibling or descendant
of
Xxxx Xxxxx; (2) any estate of Xxxx Xxxxx or of any person referred to in clause
(1); (3) any person who receives a bequest from or beneficial interest, in
any
estate under clause (2); (4) any executor, personal administrator or trustee
who
holds such beneficial interest in the Company for the benefit of, or as
fiduciary for, any person under clauses (1), (2) or (3) to the extent of such
interest; (5) any Person, directly or indirectly owned or controlled by Xxxx
Xxxxx or any other person or persons identified in clauses (1), (2), (3) or
(4),
and (6) any not-for-profit entity not subject to taxation pursuant to Section
501(c)(3) of the Internal Revenue Code or any successor provision to which
Xxxx
Xxxxx or any person identified in clauses (1), (2), or (3) above contributes
his
beneficial interest in the Company or to which such beneficial interest passes
pursuant to such person’s will.
|
Page
6
|
|
All
processes, technologies, intellectual property and inventions (collectively,
“Inventions”)
conceived, developed, invented, made or found by Employee, alone or with others,
during the Term of Employment, whether or not patentable and whether or not
on
the Company’s or any of its subsidiaries’ time or with the use of the Company’s
or any of its subsidiaries’ facilities or materials, shall be the property of
the Company or its respective subsidiary, as the case may be, and shall be
promptly and fully disclosed by Employee to the Company. Employee shall perform
all acts (including, without limitations, executing and delivering any
confirmatory assignments, documents, or instruments requested by the Company
or
any of its subsidiary) to vest title to any such Invention in the Company or
the
applicable subsidiary and to enable to the Company or the applicable subsidiary,
at their expense, to secure and maintain domestic and/or foreign patents or
any
other rights for such Inventions.
8. Non-Compete.
(a) In
addition to, and not in limitation of, all of the other terms and provisions
of
this Agreement, Employee agrees that from and after the date hereof (except
as
specifically contemplated in Section 2 above) and during the Term of Employment,
Employee will comply with the provisions of Section 1 above.
(b) Employee
covenants and agrees that for a period of one (1) year from (x) the date hereof
(except as specifically contemplated in Section 2 above); and (y) for a period
of one (1) year following the last day of the Term of Employment, Employee
will
not, either directly or indirectly, as principal, director, agent, owner,
employee, partner, investor, shareholder (other than solely as a holder of
not
more than 1% of the issued and outstanding shares of any public corporation),
consultant, joint venturer, advisor or otherwise howsoever own, operate, carry
on or engage in the operation of or have any financial interest in or provide,
directly or indirectly, financial assistance to or lend money to or guarantee
the debts or obligations of any Person carrying on or engaged in any business
that is competitive with the business conducted by the Company or any of its
subsidiaries during or on the date of termination of Employee’s
employment.
(c) Employee
covenants and agrees that for a period of one (1) year from (x) the date hereof
(except as specifically contemplated in Section 2 above); and (y) for a period
of one (1) year following the last day of the Term of Employment, Employee
shall
not directly, or indirectly, for herself or for any other Person:
|
Page
7
|
|
|
(i)
|
solicit,
interfere with or endeavor to entice away from the Company or any
of its
subsidiaries or affiliates, any current or prospective customer or
client,
or any Person in the habit of dealing with any of the
foregoing;
|
|
(ii)
|
attempt
to direct or solicit any current or prospective customer or client
away
from the Company or any of its subsidiaries or
affiliates;
|
|
(iii)
|
interfere
with, entice away or otherwise attempt to obtain or induce the withdrawal
of any employee of the Company or any of its subsidiaries or affiliates;
or
|
|
(iv)
|
advise
any Person not to do business with the Company or any of its subsidiaries
or affiliates.
|
Employee
represents to and agrees with the Company that the enforcement of the
restrictions contained in Section 7 and Section 8 (the Non-Disclosure and
Non-Compete sections respectively) would not be unduly burdensome to Employee
and that such restrictions are reasonably necessary to protect the legitimate
interests of the Company. Employee agrees that the remedy of damages for any
breach by Employee of the provisions of either of these sections may be
inadequate and that the Company shall be entitled to injunctive relief, without
posting any bond, and Employee agrees not to oppose granting of such relief.
This section constitutes an independent and separable covenant that shall be
enforceable notwithstanding any right or remedy that the Company may have under
any other provision of this Agreement or otherwise.
9. Miscellaneous.
(a) This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all previous written, and all previous
or contemporaneous oral negotiations, understandings, arrangements, and
agreements, and may be amended, modified or changed only by a written instrument
executed by Employee and the Company. No term or condition of this Agreement
shall be deemed to have been waived, except by a statement in writing signed
by
the party against whom enforcement of the waiver is sought. Any written waiver
shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
(b) This
Agreement and all of the provisions hereof shall inure to the benefit of and
be
binding upon the legal representative, heirs, distributees, successors (whether
by merger, operation of law or otherwise) and assigns of the parties hereto;
provided, however, that Employee may not delegate any of Employee’s duties
hereunder, and may not assign any of Employee’s rights hereunder, and any such
purported or attempted assignment or delegation shall be null and void and
of no
legal effect. In the event the Company assigns this Agreement and its successor
assumes the Company’s obligations hereunder in writing or by operation of law,
all of the references to the Company, and to the Board, shall be deemed to
be
references to the Company’s successor and to the governing body of such
successor, respectively. The Company and all of its subsidiaries shall be and
be
deemed to be third-party beneficiaries of this Agreement.
|
Page
8
|
|
(c) This
Agreement will be interpreted and the rights of the parties determined in
accordance with the laws of the United States applicable thereto and the
internal laws of the State of New York, without giving effect to the conflict
of
law principles thereof. Any unresolved dispute arising out of this Agreement
shall be litigated in any court of competent jurisdiction in the Borough of
Manhattan in New York City; provided that the Company may elect to pursue a
court action to seek injunctive relief in any court of competent jurisdiction
to
terminate the violation of its proprietary rights, including but not limited
to
trade secrets, copyrights or trademarks. Each party shall pay its own costs
and
fees in connection with any litigation hereunder.
(d) Employee
covenants and represents that (i) he is not a party to any contract, commitment
or agreement, nor is he subject to, or bound by, any order, judgment, decree,
law, statute, ordinance, rule, regulation or other restriction of any kind
or
character, which would prevent or restrict him from entering into and performing
his obligations under this Agreement, (ii) he is free to enter into the
arrangements contemplated herein, (iii) he is not subject to any agreement
or
obligation that would limit his ability to act on behalf of the Company or
any
of its subsidiaries, and (iv) his termination of his existing employment, his
entry into the employment contemplated herein and his performance of his duties
in respect thereof, will not violate or conflict with any agreement or
obligation to which he is subject. Employee has delivered to the Company true
and complete copies of any currently effective employment agreement,
non-competitive agreement or similar agreement to which Employee is
subject.
(e) Employee
acknowledges that he has had the opportunity to obtain assistance of legal
counsel in reviewing and negotiating this Agreement.
(f) This
Agreement and all of its provisions (other than the provisions of Section 5,
Section 6, Section 7, Section 8, and Section 9 hereof, which shall survive
termination) shall terminate upon Employee ceasing to be an employee of the
Company for any reason.
(g) All
notices and other communications hereunder shall be in writing; shall be
delivered by hand delivery to the other party or mailed by registered or
certified mail, return receipt requested, postage prepaid or by a nationally
recognized courier service such as Federal Express; shall be deemed delivered
upon actual receipt; and shall be addressed as follows:
|
EMPLOYMENT
AGREEMENT
|
Page
9
|
|
If
to the Company:
|
Chairman
of the Board
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Xxxx
X. Icahn
|
|
With
a copy to:
|
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attention: Legal
|
|
If
to Employee:
|
At
the last known principal residence address reflected in the payroll
records of the Company, or to such other address as either party
shall
have furnished to the other in writing in accordance
herewith.
|
(h) All
amounts paid to Employee under or pursuant to this Agreement, including, without
limitation, the Base Salary, any Bonus Compensation, any Special Bonus
Compensation or any other compensation or benefits, whether in cash or in kind,
shall be subject to federal, state and, if applicable, local or foreign tax
withholding and deductions imposed by any one or more federal, state, local
and
or foreign governments, or pursuant to any foreign or domestic applicable law,
rule or regulation.
(i) In
the
event of any inconsistency between this Agreement and any other agreement,
plan,
program, policy or practice (collectively, “Other
Provision”)
of the
Company, the terms of this Agreement shall control over such Other Provision.
Any calculation, allocation, expense, estimate or other amount, if any, to
be
determined under this Agreement or for the purpose of this Agreement (including
all determinations of eligibility), for any period or portion of a period,
and
any amount payable or allocable to Employee under this Agreement for any period
or portion of a period, shall be determined by the Company, whose determination
shall be final and binding on all parties.
(j) Employee
shall not issue any press release or otherwise make any public statement or
announcement with respect to the Company or this Agreement, including without
limitation, in connection with the provision of the services hereunder, without
the prior written consent of the Company.
(k) Any
termination of Employee's employment with the Company shall constitute an
automatic resignation of Employee as an officer of the Company and each
affiliate of the Company, and an automatic resignation of Employee from the
Board (if applicable), and from the board of directors of any affiliate of
the
Company, and from the board of directors or similar governing body of any
corporation, limited liability company, or other entity in which the Company
or
any affiliate holds an equity interest and with respect to which board or
similar governing body Employee serves as the Company's or such affiliate's
designee or other representative.
|
EMPLOYMENT
AGREEMENT
|
Page
10
|
(l) This
Agreement may be executed in two or more counterparts (and by facsimile), each
of which shall be deemed to be an original, and all of which, taken together,
shall be deemed to be one and the same instrument.
(m) Whenever
possible, each provision of this Agreement will be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal, or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality,
or
unenforceability will not affect any provision in any other jurisdiction, but
this Agreement will be reformed, construed, and enforced in such jurisdiction
as
if such invalid, illegal, or unenforceable provision had never been contained
herein except that any court having jurisdiction shall have the power to reduce
the duration, area, or scope of such invalid, illegal, or unenforceable
provision and, its reduced form, it shall be enforceable. It is the intent
of
the Parties that the provisions of this Agreement be enforceable to the fullest
extent permitted by applicable law. The Parties agree that the language of
all
parts of this Agreement shall in all cases be construed as a whole, according
to
its fair meaning, and not strictly for or against either Party.
[Signature
Page Follows]
|
EMPLOYMENT
AGREEMENT
|
Page
11
|
IN
WITNESS WHEREOF,
the
Parties have executed the Agreement as of the day and year first shown
above.
|
ICAHN
ENTERPRISES HOLDINGS L.P.
|
||
|
By:
|
ICAHN
ENTERPRISES G.P. INC.,
|
|
|
its
general partner
|
||
|
By:
|
/s/
Xxxxx Xxxx
|
|
|
Name:
|
Xxxxx
Xxxx
|
|
|
Title:
|
President
|
|
|
Date:
May 1, 2008
|
||
|
EMPLOYEE:
|
||
|
By:
|
/s/
Xxxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Date:
May 1, 2008
|
||
[Signature
Page to Employment Agreement]
|
EMPLOYMENT
AGREEMENT
|
Page
12
|
[FORM
OF RELEASE]
Exhibit
A
GENERAL
RELEASE OF ALL CLAIMS
This
General Release of All Claims (the “General
Release”)
dated
as of ________ __, 20__ is made in consideration of severance payments and
other
benefits provided to the undersigned employee (“Employee”) under the Employment
Agreement by and between ICAHN
ENTERPRISES HOLDINGS L.P.
(the
“Company”)
and
Employee and dated as of May 1, 2008 (the “Employment
Agreement”).
Unless otherwise defined herein, the terms defined in the Employment Agreement
shall have the same defined meaning in this General Release.
1. For
valuable consideration to be paid to Employee, upon expiration of the seven
day
revocation period provided in Section 8 herein, as provided for in Section
6 of
the Employment Agreement and to which he is not contractually entitled to absent
the execution of this General Release, the adequacy of which is hereby
acknowledged, Employee, for himself, his spouse, heirs, administrators,
children, representatives, executors, successors, assigns, and all other persons
claiming through Employee, if any (collectively, “Releasers”),
does
hereby release, waive, and forever discharge the Company and the Company’s
former, present or future subsidiaries, parents, affiliates and related
organizations, and its and their employees, beneficial owners, officers,
directors, equity holders, attorneys, successors and assigns as well as all
Related Persons (collectively, the “Releasees”)
from,
and does fully waive any obligations of Releasees to Releasers for, any and
all
liability, actions, charges, causes of action, demands, damages, or claims
for
relief, remuneration, sums of money, accounts or expenses (including, without
limitation, attorneys’ fees and costs) of any kind whatsoever, whether known or
unknown or contingent or absolute, which heretofore has been or may have been
suffered or sustained, directly or indirectly, by Releasers in consequence
of,
arising out of, or in any way relating to Employee’s employment with the Company
(whether pursuant to the Employment Agreement or otherwise) or any of its
affiliates and the termination of Employee’s employment. The foregoing release,
discharge and waiver includes, but is not limited to, all claims, and any
obligations or causes of action arising from such claims, under common or
statutory law including, without limitation, any state or federal
discrimination, fair employment practices or any other employment-related
statute or regulation (as they may have been amended through the date of this
General Release) prohibiting discrimination or harassment based upon any
protected status including, without limitation, race, color, religion, national
origin, age, gender, marital status, disability, handicap, veteran status or
sexual orientation. Without limitation, specifically included in this paragraph
are any claims arising under the Federal Rehabilitation Act of 1973, Age
Discrimination in Employment Act of 1967, as amended (“ADEA”),
the
Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of
1964,
as amended by the Civil Rights Act of 1991, the Equal Pay Act, the Americans
With Disabilities Act, the National Labor Relations Act, Employee Retirement
Income Security Act of 1974, the Family Medical Leave Act of 1993, the
Consolidated Omnibus Budget Reconciliation Act of 1985, and any similar state
statutes (all as amended). The foregoing release and discharge also expressly
includes, without limitation, any claims under any state or federal common
law
theory, including, without limitation, wrongful or retaliatory discharge, breach
of express or implied contract, promissory estoppel, unjust enrichment, breach
of covenant of good faith and fair dealing, violation of public policy,
defamation, interference with contractual relations, intentional or negligent
infliction of emotional distress, invasion of privacy, misrepresentation,
deceit, fraud or negligence, claims for alleged physical or personal injury,
emotional distress relating to or arising out of Employee’s employment with the
Company or the termination of that employment; and any claims under the WARN
Act
or any similar law, which requires, among other things, that advance notice
be
given of certain work force reductions. All of the claims, liabilities, actions,
charges, causes of action, demands, damages, remuneration, sums of money,
accounts or expenses described in this Section 1 shall be described,
collectively as the “Released
Claims”.
|
EMPLOYMENT
AGREEMENT
|
Page
13
|
2. Excluded
from this General Release are claims and rights that arise after the date
Employee signs this General Release, any claims which cannot be waived by law
and any claims for accrued vested benefits under any retirement plan in
accordance with the terms of such plan and applicable law. Employee does,
however, waive Employee’s right to any monetary recovery should any agency (such
as the Equal Employment Opportunity Commission) pursue any claims on Employee’s
behalf. Nothing
in this General Release shall be deemed to waive Employee’s right to file a
charge with or participate in any investigation or proceeding conducted by
the
U.S. Equal Employment Opportunity Commission or other government agency, except
that even if Employee files a charge or participates in such an investigation
or
proceeding, Employee will not be able to recover damages or equitable relief
of
any kind from the Releasees with respect to the Released Claims.
3. Any
unresolved dispute arising out of this General Release shall be litigated in
any
court of competent jurisdiction in the Borough of Manhattan in New York City;
provided that the Company may elect to pursue a court action to seek injunctive
relief in any court of competent jurisdiction to terminate the violation of
its
proprietary rights, including but not limited to trade secrets, copyrights
or
trademarks. Each party shall pay its own costs and fees in connection with
any
litigation hereunder.
4. Employee
acknowledges and recites that:
(a) Employee
has executed this General Release knowingly and voluntarily;
(b) Employee
has read and understands this General Release in its entirety;
(c) Employee
has been advised and directed orally and in writing (and this subparagraph
(c)
constitutes such written direction) to seek legal counsel and any other advice
he wishes with respect to the terms of this General Release before executing
it;
(d) Employee’s
execution of this General Release has not been forced by any employee or agent
of the Company, and Employee has had an opportunity to negotiate about the
terms
of this General Release and that the agreements and obligations herein are
made
voluntarily, knowingly and without duress, and that neither the Company nor
its
agents have made any representation inconsistent with the General Release;
and
(e) Employee
has been offered 21 calendar days after receipt of this General Release to
consider its terms before executing it.
5. This
General Release shall be
governed
by, and construed in accordance with, the laws of the United States applicable
thereto and the internal laws of the State of New York, without giving effect
to
the conflicts of law principles thereof.
|
EMPLOYMENT
AGREEMENT
|
Page
14
|
6. Employee
represents that he has returned all property belonging to the Company including,
without limitation, keys, access cards, computer software and any other
equipment or property. Employee further represents that he has delivered to
the
Company all documents or materials of any nature belonging to it, whether an
original or copies of any kind, including any Confidential
Information.
7. Employee
agrees to keep confidential the existence of the Employment Agreement, the
existence of this General Release, as well as all of their terms and conditions
and not to disclose to any person or entity the existence, terms and conditions
of the Employment Agreement or this General Release except as required by law,
to a government agency in connection with any charge or investigation that
such
agency is conducting or may conduct and except to his attorney, financial
advisors and/or members of his immediate family provided they agree to keep
confidential the existence, terms and conditions of the Employment Agreement
and
this General Release. In the event that Employee believes that he is compelled
by law to divulge the existence, terms or conditions of the Employment Agreement
or this General Release in a manner prohibited by the following sentence, he
agrees to notify Company (by notifying counsel to the Company) of the basis
for
the belief before actually divulging such information. Employee hereby confirms
that as of the date of signing this General Release, he has not disclosed the
existence, terms or conditions of the Employment Agreement or this General
Release, except as provided for herein. Nothing
herein shall preclude Employee from providing truthful information to any
government agency concerning this General Release or his employment in
accordance with law.
8. Employee
shall have seven days from the date he signs this General Release to revoke
it
by providing written notice of the revocation to the Company, in accordance
with
Section 9(g) of the Employment Agreement, in which event this General Release
shall be unenforceable and null and void. Provided employee does not revoke
this
General Release, it shall become effective on the eighth day after Employee
signs this General Release
I,
Xxxxxxxx Xxxxxx, represent and agree that I have carefully read this General
Release; that I have been given ample opportunity to consult with my legal
counsel or any other party to the extent, if any, that I desire; and that I
am
voluntarily signing by my own free act.
PLEASE
READ THIS GENERAL RELEASE CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND
UNKNOWN CLAIMS.
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
|
|
|
Date:
|
________________________________________________________________,20___
|
|
