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
Xxxxxxx X. Xxxxxxxx residing at 0000 Xxxx Xxxxxx, Xxxxxxxxx 00X, 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.
4. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (a portion of the Agreement remaining with Icahn
Management LP and the balance being assumed by the Management Company) shall
not, in the aggregate, diminish or expand the rights or obligations of Employee
and, in particular, will not diminish or expand his right to receive payments
or
other economic rights, in the aggregate. The parties agree that in addition
to
any other obligations they may have, Icahn Management LP is responsible for
performing all of the Retained Obligations, and the Management Company is
responsible for performing all of the Assumed Obligations. The parties agree
and
acknowledge that neither the Assignment nor this Amendment shall release the
Other Parties from their obligations under the Agreement, as assigned, and
the
Other Parties will continue to be responsible for their obligations under the
Agreement, as assigned, to the extent they are not performed by the Management
Company and its Affiliates. In particular, no incremental cost, if any, that
may
be incurred by the Management Company and that is attributable to the
compensation, bonus or expenses of Xxxx X. Icahn under his employment agreement
entered into pursuant to that certain Contribution and Exchange Agreement dated
August 8, 2007 by and among CCI Offshore Corp., CCI Onshore Corp., Icahn
Management LP, Mr. Icahn and AREP (the “Contribution
Agreement”),
or to
the earn-out payable to Mr. Icahn and his Affiliates under the Contribution,
or
to any expenses incurred because the Management Company will be owned by AREP
and its Affiliates (that is, dealing with AREP’s accounting and reporting
requirements), will diminish any amounts to be accrued or paid to Employee
pursuant to the Agreement, as assigned. Attached hereto as Annex A is a schedule
showing Employee’s accrued but unpaid Profit Participation, including unpaid
amounts with respect to his deferred Management Fee Participation and amounts
standing to the credit of the Employee Capital Account in respect of his
Incentive Allocation Participation, updated through August 4, 2007. The parties
agree that, absent manifest error, Annex A accurately sets forth the Profit
Participation of the Employee to the date hereof and methodology for the
calculation of the matters set forth therein.
5. Deferral
of Management Fee Participation. As
of and
following the Effective Date, all references in the Agreement to the “Management
Fee Participation” shall mean Employee’s Management Fee Participation earned
hereunder in respect of periods from and after the Effective Date. Such deferred
Management Fee Participation shall be deemed to be hypothetically invested
in
the Offshore Fund, or in such other Funds that the Management Company may select
from time to time, and accruals and payments to Employee under the Agreement
with respect to such deferred Management Fee Participation shall be equal to
the
amount hypothetically invested as the same may be increased or decreased by
the
actual returns on the amounts hypothetically invested in the Offshore Fund.
The
Management Company shall be responsible for payment of Employee’s Management Fee
Participation earned on and following the Effective Date, together with all
hypothetical gains and losses thereon.
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6. Vesting.
Employee’s right to receive any amount or payments in respect of the Profit
Participation earned after the Effective Date shall vest in accordance with
Section 11 of the Agreement, taking into account for such purpose Employee’s
periods of service with Icahn Management LP and the Icahn Related Entities
commencing January 1, 2005 through the Effective Date, and Employee’s periods of
service with the Management Company and the Icahn Related Entities from and
after the Effective Date. For the avoidance of doubt, neither the Assignment
nor
Employee’s ceasing to provide services to Icahn Management LP as of the
Effective Date shall result in the accelerated vesting of the Profit
Participation pursuant to Section 11 of the Agreement.
7. Governing
Law.
This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements made and/or to be performed in that
State, without regard to any choice of law provisions thereof. All disputes
arising out of or related to this Amendment shall be submitted to the state
and
federal courts of New York, and each party irrevocably consents to such personal
jurisdiction and waives all objections thereto, but does so only for the
purposes of this Amendment.
8. Agreement
in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Agreement, as assigned, shall remain and continue in full force and
effect.
9. Responsibilities
of AREP.
If any
amount required to be paid to Employee by Employer hereunder is not paid when
due, following written demand by Employee to AREP, AREP shall be responsible
for
paying all such amounts to Employee.
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remainder of this page is intentionally left blank]
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In
WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
written above.
| EMPLOYEE | |
| /s/ Xxxxxxx X. Xxxxxxxx | |
| Xxxxxxx X. Xxxxxxxx | |
| Icahn Capital Management LP | |
| By: /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory | |
| Icahn Onshore LP | |
| By: /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory | |
| Icahn Offshore LP | |
| By: /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory | |
| American Real Estate Partners, L.P. | |
| By: /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | |
| Title: Authorized Signatory |
[Signature
page to Amendment to Xxxxxxx X. Xxxxxxxx
Employment Agreement]
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