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
Xxxxxxx X. Xxxxxxxx residing at 0000 Xxxx Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx,
XX
00000 (“Employee”).
RECITALS:
The
parties hereto executed an Agreement dated as of December 31, 2004, as
subsequently amended (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
with respect to each of the 2005, 2006 and 2007 calendar years has been deferred
to January 30, 2010, 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 be an
employee of the Original Management Company. Effective on and following the
Effective Date, Employee shall become an employee of Icahn Capital Management
LP
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. Management
Fee Participation.
The
parties agree and acknowledge that (i) 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; (ii) except as
contemplated in clause (i) 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; (iii) 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 or losses thereon;
(iv)
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 (v) 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 employment with the Original Management Company and the
Icahn Related Entities commencing January 1, 2005 through the Effective Date,
and Employee’s employment 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.
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. The Original Management Company shall
perform all of the Retained Obligations when due.
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
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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 their 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 that certain
Contribution and Exchange Agreement dated August 8, 2007 by and among CCI
Offshore Corp., CCI Onshore Corp., the Original Management Company, Mr. Icahn
and American Real Estate Partners, L.P. (“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 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 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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In
WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
written above.
EMPLOYEE
/s/
Xxxxxxx X. Xxxxxxxx
Xxxxxxx
X. Xxxxxxxx
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 Xxxxxxx X. Xxxxxxxx
Employment
Agreement with Icahn Management LP]
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