Unassociated Document


    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
      Keith Meister residing at 525 West 22nd
      Street,
      New York, NY 10011 (“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., Carl C.
      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 Carl C.
      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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    In
      WITNESS WHEREOF, undersigned have executed this Agreement as of the date first
      written above.

     

    EMPLOYEE

     

     

    /s/
      Keith Meister        

    Keith
      Meister

     

     

    Icahn
      Management LP

     

     

    By:
      /s/ Edward Mattner    

    Name:
      Edward Mattner

    Title:  
      Authorized Signatory

     

     

    Icahn
      Onshore LP

     

     

    By:
      /s/ Edward Mattner    

    Name:
      Edward Mattner

    Title:  
      Authorized Signatory

     

     

    Icahn
      Offshore LP

     

     

    By:
      /s/ Edward Mattner    

    Name:
      Edward Mattner

    Title:  
      Authorized Signatory

    


    


     

    [Signature
      page to Amendment to Keith Meister 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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