Unassociated Document


    EXHIBIT
10.56A

    


    FORM
OF VINCENT J. INTRIERI

    AMENDMENT
IN RELATION TO

    SECTION 409A OF THE INTERNAL
REVENUE CODE

    


    This
Amendment In Relation to Section 409A of the Internal Revenue Code (this “Amendment”) is
entered into this _____ day of December, 2008 by and between Icahn Management
LP, a Delaware limited partnership (the “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
Vincent J. Intrieri, residing at 1365 York Avenue, Apartment 28A, New York, NY
10128 (“Employee”).

     

    RECITALS:

     

    The
parties hereto executed an Agreement dated as of December 31, 2004, as
subsequently amended, including pursuant to an Amendment in Relation to
Management Fee Participation dated August 8, 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 the Agreement, Employee was entitled to receive an amount (the “Management Fee
Participation”) equal to a portion of the Management Fees earned by the
Management Company from certain funds to which it provided management services,
including Icahn Fund Ltd., Icahn Fund II Ltd. and Icahn Fund III Ltd. (together,
the “Funds”).

     

    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 was deferred and
payable, together with hypothetical gains and losses thereon as if invested in
the Master Fund, Master Fund II and Master Fund III (together, the “Master Funds”), on
January 30, 2010, subject to earlier payment upon a Terminating Event, as set
forth in Section 12 and Schedule A of the Agreement.

     

    Pursuant
to a Management Contribution, Assignment and Assumption Agreement dated as of
August 8, 2007 between the Management Company and Icahn Capital Management LP
(the “Assignment”), the
Management Company assigned to Icahn Capital Management LP, effective as of
August 8, 2007, all of its right, title and interest in the Agreement, and Icahn
Capital Management LP assumed and agreed to perform the liabilities and
obligations (the “Assumed Obligations”)
of the Management Company under the Agreement, other than liabilities and
obligations arising prior to August 8, 2007, including the liabilities and
obligations of the Management Company with respect to Employee’s deferred
Management Fee Participation.

    


    The
Management Company, Employee and the other parties hereto wish to amend the
terms of that portion of the Agreement that was not subject to the Assignment
(the “Original
Employment Agreement”) that relate to Employee’s deferred Management Fee
Participation: (i) to comply with the requirements of Section 409A of the Code;
and (ii) to permit Employee, with the consent of the Management Company and
pursuant to Section 409A of the Code, to further extend the period of deferral
of the Management Fee Participation.

    


    In
consideration of the premises, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties agree
to amend the Original Employment Agreement, effective as of January 1, 2009
except as expressly set forth below, as follows:

     

    1.             Section
12(i) of the Original Employment Agreement shall be deleted in its entirety and
replaced with the following:

     

    
      
        
        

      

      
        A-1

        
          

        

      

      
        
        

      

    

    
      	
               
      

            	
              i)

            	
              Indexation and Payment
      of Management Fee Participation.  The deferred Management
      Fee Participation shall be indexed to the return of the Master Fund,
      Master Fund II and Master Fund III, as applicable, in accordance with the
      methodology set forth in the Deferred Management Fee Agreements (each, a
      “Deferred Fee
      Agreement”) between the Management Company and each of (A) Icahn
      Fund Ltd. dated December 29, 2004; (B) (A) Icahn Fund II Ltd. dated
      February 1, 2007; and (C) Icahn Fund III Ltd. dated April 1, 2007; provided
      however that, if indexation against the return of any of the Master Fund,
      Master Fund II or Master Fund III is impossible or impracticable, the
      applicable portion of the deferred Management Fee Participation shall be
      indexed to the return of U.S. Treasury obligations with duration as close
      as practicable to the remaining anticipated duration of the
      deferral.  The Vested Amounts of the deferred Management Fee
      Participation, as so indexed (the “Applicable
      Amounts”), shall be paid to Employee in cash on the earliest of the
      following:

            


    

     

    
      	
            	
              A)  

            	
              following
      the last day of the respective deferral period thereof as follows: (i) 95%
      of the Management Company’s estimate of the amount due shall be paid 10
      days after the last day of the deferral period; and (ii) the balance shall
      be paid promptly (but not more than 10 days) after the completion of the
      preparation of the audited financial statements of the Funds for the year
      in which the deferral period ends, but in any event within the calendar
      year following the year in which the deferral period ends;
    and

            


    

     

    
      	
            	
              B)  

            	
              as
      set forth in Schedule A hereto in respect of any Terminating Event (as
      contemplated in Schedule A) to the extent permissible under applicable law
      including, without limitation, the New Law (as defined in Section 21(xi)
      below); and

            


    

     

    
      	
            	
              C)  

            	
              if
      and to the extent determined by the Management Company in its sole
      discretion, upon any of the events set forth in Schedule A(c)
      hereto.

            


    

     

    Employee
acknowledges that payments are to be made to Employee under this Section 12(i)
or otherwise in respect of the Management Fee Participation only with respect to
Vested Amounts of the Management Fee Participation and that the term “Applicable
Amounts” used herein includes only Vested Amounts of the Management Fee
Participation.

    


    2.             Section
12 of the Original Employment Agreement shall be amended by adding the following
as clause (ii) of Section 12, by renumbering the current clauses (ii) through
(iv) of Section 12 accordingly, and by changing the reference to “clause (iv)”
in renumbered clause (iii) (entitled “Incentive Allocation Participation”) to
“clause (v)”:

     

    
      	
               
      

            	
              ii)

            	
              Redeferrals.  In
      accordance with Section 409A(a)(4)(C) of the Code, on or after January 1,
      2009, Employee, subject to the consent of the Management Company, may
      elect to extend the deferral period with respect to all or any portion of
      the deferred Management Fee Participation by filing a written election
      notice with the Management Company; provided that the
      following conditions are met:

            


    

     

    
      	
               
      

            	
              A)

            	
              the
      election may not take effect until at least twelve months after the date
      on which such election is made;

            


    

     

    
      	
               
      

            	
              B)

            	
              except
      in the case of payments upon Employee’s death or Disability, the payment
      with respect to which such election is made must be deferred for a period
      of not less than five years from the date such payment would otherwise
      have been made; and

            


    

     

    
      	
               
      

            	
              C)

            	
              the
      election must be made at least twelve months prior to the scheduled
      payment date.

            


    

     

    3.             Section
12(iv) of the Original Employment Agreement shall be renumbered as Section 12(v)
and shall be amended by adding the following sentence at the end
thereof:

     

    This
Section 12(v) shall not apply to the payment of any portion of the Management
Fee Participation.

    


    4.             Section
21(ix) and (x) of the Original Employment Agreement shall be amended by
substituting the term “Management Fee Participation” for the term “Management
Fees” wherever it appears.

     

    5.             Schedule
A to the Original Employment Agreement shall be deleted in its entirety and
replaced with the following:

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    Schedule
A

    


    Terminating Events and
Accelerated Payments

    


    


    (a)           If
a Terminating Event occurs, amounts shall be paid to Employee as
follows:

    


    
      	
               
      

            	
              (I)

            	
              Ninety-five
      percent (95%) of the Applicable Amounts shall be paid to Employee by the
      end of the second month following the month in which a Terminating Event,
      as described in subsections b(I), (II) or (III) below,
      occurs.  The remainder of such amounts shall be paid to Employee
      promptly after the completion of the audited financial statements of the
      Funds for the year in which such Terminating Event occurs, but in any
      event within the calendar year following the calendar year in which such
      Terminating Event occurs.

            


    

    


    
      	
               
      

            	
              (II)

            	
              The
      Applicable Amounts shall be paid to Employee by the end of the second
      month following the month in which a Terminating Event, as described in
      subsection b(V) below, occurs.

            


    

    


    
      	
               
      

            	
              (III)

            	
              Upon
      the occurrence of a Terminating Event described in subsection b(IV)
      hereof, the amount determined by the Management Company pursuant to that
      subsection to be the amount necessary to satisfy the financial need giving
      rise to such Terminating Event shall be paid to Employee as soon as
      administratively practicable after such Terminating Event
      occurs.

            


    

    


    (b)           The
following events shall each constitute “Terminating
Events”:

    


    
      	
               
      

            	
              (I)

            	
              the
      death of Employee;

            


    

    


    
      	
               
      

            	
              (II)

            	
              Employee’s
      Disability, where “Disability”
      means Employee’s inability to engage in any substantial gainful activity
      by reason of any medically determinable physical or mental impairment that
      can be expected to result in death or can be expected to last for a
      continuous period of not less than 12
months;

            


    

    


    
      	
               
      

            	
              (III)

            	
              the
      separation from service, as such term is defined in Treas. Reg. Section
      1.409A-1(h), of Employee from the Management Company and all other
      entities considered a single “employer” with the Management Company under
      the default provisions of Treas. Reg. Section
    1.409A-1(h)(3);

            


    

    


    
      	
               
      

            	
              (IV)

            	
              upon
      an “Unforeseeable
      Emergency,” as such term is defined in Treas. Reg. Section
      1.409A-3(i)(3), of Employee: (A) with respect only to amounts reasonably
      necessary to satisfy the emergency need, including amounts necessary to
      pay any Federal, state, local, or foreign income taxes or penalties
      reasonably anticipated to result from the distribution; and (B) if and to
      the extent permitted by the Management Company in its sole discretion;
      and

            


    

    


    
      	
               
      

            	
              (V)

            	
              with
      respect to that portion of the deferred Management Fee Participation that
      is attributable to a particular Fund, and only if and to the extent
      permitted by Section 409A of the Code, the separation from service, as
      such term is defined in Treas. Reg. Section 1.409A-1(h), of the Management
      Company from such Fund that occurs on or after January 1,
      2009.

            


    

    


    (c)           Notwithstanding
anything in this Agreement to the contrary, the Management Company, in its sole
discretion, may accelerate payment of all or any Applicable Amounts upon the
occurrence of any of the events described in Treas. Reg. Section 1.409A-3(j)(4),
including, without limitation, the events described in subsections(c)(I), (II),
(III) and (IV) below.

     

    
      	
               
      

            	
              (I)

            	
              Payment Upon Income
      Inclusion Under Section 409A.  The
      Management Company may accelerate payment of all or any portion of the
      Applicable Amounts if this Agreement fails to meet the requirements of
      Section 409A of the Code; provided that
      any payment made pursuant to this subsection c(I) may not exceed the
      amount required to be included by Employee in income as a result of the
      failure to comply with the requirements of Code Section
    409A.

            


    

    


    
      	
               
      

            	
              (II)

            	
              Payment of State,
      Local or Foreign Taxes.  The
      Management Company may accelerate payment of all or any portion of the
      Applicable Amounts for payment of state, local, or foreign tax obligations
      of Employee arising from participation by Employee in this Agreement and
      applicable to amounts deferred under this Agreement before they are paid
      or made available to Employee.  The total payments under this
      subsection c(II) shall not exceed the aggregate of the state, local, and
      foreign tax amounts and the income tax withholding related to such state,
      local, and foreign tax amount.  Any such payment shall be made,
      in the Management Company’s discretion, either by: (A) distributions to
      Employee in the form of withholding pursuant to provisions of applicable
      state, local, or foreign law; or (B) distribution directly to
      Employee.

            


    

    


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    
      	
               
      

            	
              (III)

            	
              Payment of Employment
      Taxes.  The
      Management Company may accelerate payment of all or any portion of the
      Applicable Amounts to pay: (A) the Federal Insurance Contributions Act
      (“FICA”)
      tax imposed under Code Sections 3101 and 3121(a) and (v)(2) on deferred
      Management Fee Participation amounts (the “FICA Amount”);
      and/or (B) income tax at source on wages imposed under Code Section 3401
      or the corresponding withholding provisions of applicable state, local, or
      foreign tax laws as a result of the payment of the FICA Amount, and the
      additional income tax at source on wages attributable to the pyramiding
      Code Section 3401 wages and taxes; provided,
      however, that the total payment under this subsection c(III) shall not
      exceed the aggregate of the FICA Amount and the income tax withholding
      related to such FICA Amount.

            


    

    


    
      	
               
      

            	
              (IV)

            	
              Termination of the
      Agreement.
      The Management Company may accelerate payment of all Applicable
      Amounts upon termination of this Agreement in accordance with Treas. Reg.
      Section 1.409A-3(j)(4)(ix).

            


    

    


    6.             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.

     

    7.             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.

     

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        4

        
          

        

      

      
        
        

      

    

    In
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.

     

    EMPLOYEE

     

    


    _________________________

    Vincent
J. Intrieri

    


    


    ICAHN
MANAGEMENT LP

    


    


    By:
______________________

    Name:

    Title:

    


    


    ICAHN
ONSHORE LP

    


    


    By:  ______________________

    Name:

    Title:

    


    


    ICAHN
OFFSHORE LP

    


    


    By:  ______________________

    Name:

    Title:

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    [Signature
page to Amendment to Vincent J. Intrieri Employment Agreement

    to
reflect the provisions of Section 409A of the Internal Revenue
Code]

     

    
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