AMENDMENT IN RELATION TO MANAGEMENT FEE PARTICIPATION
AMENDMENT
IN RELATION TO
MANAGEMENT
FEE PARTICIPATION
This
Amendment In Relation to Management Fee Participation (this “Amendment”)
is
entered into effective as of 12.01 a.m. on August 8, 2007 (the “Effective
Date”)
by and
between Icahn Management LP, a Delaware limited partnership (the “Original
Management Company”),
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”).
RECITALS:
The
parties hereto executed an Agreement dated as of December 31, 2004, which was
subsequently amended pursuant to Amendment No. 1 effective as of January 1,
2006
and pursuant to letter agreements dated June 1, 2005, March 14, 2006, April
11,
2006, February 1, 2007 and April 19, 2007 (together, the “Agreement”).
Except
as
otherwise provided herein, capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement.
Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as
of
August 8, 2007 between the Original Management Company and Icahn Capital
Management LP (the “Assignment”),
the
Original Management Company assigned, transferred and conveyed to Icahn Capital
Management LP, effective as of the Effective Date, all of its right, title
and
interest in and to the Agreement, and Icahn Capital Management LP assumed and
agreed to perform the liabilities and obligations (the “Assumed
Obligations”)
of the
Original Management Company 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”).
Pursuant
to the Agreement, payment of 100% of Employee’s Management Fee Participation
(which for the avoidance of doubt does not include the 1.5% of the Net
Management Fees required to be paid to Employee currently) with respect to
each
of the 2005, 2006 and 2007 calendar years has been deferred to January 30,
2012,
subject to earlier payment upon a Terminating Event, as set forth in Section
12
and Schedule A of the Agreement.
The
parties hereto desire to enter into this Amendment to amend, effective as of
the
Effective Date, that portion of the Agreement that was not subject to the
Assignment (the “Original
Employment Agreement”).
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. Provision
of Services.
Effective on and following the Effective Date, Employee shall cease to provide
services to the Original Management Company, but shall remain a limited partner
of the Original Management Company. Effective on and following the Effective
Date, Employee shall provide services to Icahn Capital Management LP, the Fund
GPs and the Icahn Related Entities pursuant to the Agreement, as assigned
pursuant to the Assignment and as amended by the Amendment to the Agreement
effective as of the Effective Date between Icahn Capital Management LP, the
Fund
GPs and Employee.
2. Receipt
of Distributions and Payments.
The
parties agree and acknowledge that (i) Employee has received from the Original
Management Company all distributions and other payments with respect to his
1.5%
non-deferred interest in the Net Management Fees earned prior to the Effective
Date; (ii) Employee will continue to retain, subject to the terms of the
Agreement, his interest in his Management Fee Participation earned prior to
the
Effective Date, together with hypothetical gains and losses on his deferred
Management Fee Participation as if invested in the Master Fund, Master Fund
II
and Master Fund III consistent with past practice, including gains and losses
accruing after the Effective Date, and the Original Management Company will
continue to be responsible for payment thereof; (iii) except as contemplated
in
clause (ii) of this Section 2, Employee will not accrue any further Management
Fee Participation on and after the Effective Date with respect to the Original
Management Company; (iv) Icahn Capital Management LP shall have no liability
with respect to Employee’s Management Fee Participation earned prior to the
Effective Date or hypothetical gains and losses thereon; (v) Icahn Capital
Management LP 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; and (vi) the terms of the Original
Employment Agreement relating to the calculation, deferral, vesting, withdrawal
and nature of, and all of Employee’s rights with respect to, the Management Fee
Participation, shall continue to apply, as hereby amended, to the Management
Fee
Participation earned prior to the Effective Date, and all hypothetical gains
and
losses thereon.
3. Vesting.
Following the Effective Date, Employee’s right to receive from the Original
Management Company any amount or payments in respect of the Management Fee
Participation earned prior to the Effective Date, as deferred, shall continue
to
vest in accordance with Section 11 of the Agreement, taking into account for
such purpose Employee’s periods of service with the Original Management Company
and the Icahn Related Entities commencing January 1, 2005 through the Effective
Date, and Employee’s periods of service with Icahn Capital Management LP 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 the
Original Management Company as of the Effective Date shall result in the
accelerated vesting of such Management Fee Participation pursuant to Section
11
of the Agreement.
4. Relationship
Between Employee and Original Management Company.
Effective on and after the Effective Date, the relationship between the Original
Management Company and Employee shall be governed exclusively by the Original
Employment Agreement, as hereby amended, and by the Amended and Restated Limited
Partnership Agreement of the Original Management Company dated as of January
1,
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2006,
as
it may be amended from time to time. For the avoidance of doubt, Employee agrees
and acknowledges that (i) he has not and shall not have any rights, claim or
interest, whether as an allocation of the profits and losses or otherwise,
in or
in relation to depository units representing limited partnership interests
in
American Real Estate Partners, L.P. (“AREP”)
that
the Original Management Company may receive pursuant to that certain
Contribution and Exchange Agreement dated August 8, 2007 by and among the
Original Management Company, CCI Offshore Corp., CCI Onshore Corp., Xxxx X.
Icahn and AREP (the “Contribution
Agreement”),
or
any other right to or interest in the Contribution Agreement or any agreement,
document or instrument related thereto, or any proceeds of any of the foregoing
or any dividends, earnings or profits thereon, or any earnings or profits
derived from any of the foregoing; and (ii) his rights as a limited partner
in
the Original Management Company includes those (and only those) set forth in
his
Original Employment Agreement and in this Amendment.
5. Aggregate
Rights Undiminished.
The
parties agree that the Assignment, which resulted in the separation of the
Agreement into two elements (the Original Employment Agreement remaining with
the Original Management Company and the balance being assumed by Icahn Capital
Management LP) 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, the
Original Management Company is responsible for performing all of the Retained
Obligations, and Icahn Capital Management LP is responsible for performing
all
of the Assumed Obligations. The parties agree and acknowledge that the
Assignment shall not 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 Icahn Capital Management LP and its Affiliates. In particular,
no
incremental cost, if any, that may be incurred by Icahn Capital Management
LP
and that is attributable to the compensation, bonus or expenses of Xxxx X.
Icahn
under his employment agreement entered into pursuant to 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 Icahn Capital
Management LP will be owned by AREP and its Affiliates following the Effective
Date (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.
6. Term.
The
Original Employment Agreement, as hereby amended, shall continue in full force
and effect until the earlier of (i) the date on which Employee’s Management Fee
Participation earned prior to the Effective Date, as deferred, shall have been
paid in
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full
to
Employee, or (ii) the expiration of the Term of the Agreement pursuant to
Section 6 of the Agreement, as assigned to Icahn Capital Management
LP.
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. Original
Employment Agreement in Force.
Except
as specifically amended by this Amendment, all terms and provisions of the
Original Employment Agreement shall remain and continue in full force and effect
with respect to the Management Fee Participation earned prior to the Effective
Date, as deferred.
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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/
Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
Icahn
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
[Signature
page to Amendment to Xxxxx Xxxxxxx Employment Agreement to reflect the fact
that
he will remain a limited partner in Icahn Management LP but that he will also
become a limited partner of Icahn Capital Management LP]
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