Unassociated Document


     

    


    AMENDMENT
      TO

    AGREEMENT
      DATED DECEMBER 31, 2004

     

    THIS
      AMENDMENT (this “Amendment”)
      is
      made this 1st day of January 2008 by and between Icahn Capital Management LP
      (“ICM”),
      Icahn
      Management LP, Icahn Capital LP (the “Employer”),
      Icahn
      Onshore LP (the “Onshore
      GP”),
      Icahn
      Offshore LP (the “Offshore
      GP”
and
      together with the Onshore GP, the “Fund
      GPs”),
      Icahn
      Enterprises L.P. (“IELP”),
      the
      Icahn Related Entities (as defined below) and Vincent J. Intrieri residing
      at
      1675 York Avenue, Unit 4K, New York, NY 10128 (“Employee”
or
      “you”).

     

    RECITALS:

     

    Employee
      executed an Agreement dated as of December 31, 2004 (as amended to date
      including by this Amendment, the “Agreement”;
      capitalized terms used herein and not otherwise defined shall have the meanings
      set forth in the Agreement as amended) with, among others, Icahn Management
      LP,
      the Onshore GP, the Offshore GP and the Icahn Related Entities (as defined
      in
      the Agreement).

     

    The
      Agreement was assigned by Icahn Management LP to ICM on August 8,
      2007.

     

    Icahn
      Management LP and ICM have provided administrative and back office services
      to
      Icahn Partners LP, Icahn Master Fund LP and certain other fund clients (the
      “Funds”)
      in
      consideration of the payment of management fees by the Funds. The management
      agreements providing for such management fees (the “Management
      Agreements”)
      were
      terminated during the first day of January 2008.

     

    The
      limited partnership agreements of the Funds (the “Fund
      LPAs”)
      were
      amended to provide that as of January 1, 2008 (the “Effective
      Date”)
      (i)
      the Fund GPs will provide administrative and back office services to the Funds
      and (ii) the Fund GPs will receive Special Profits Interest Allocations (as
      defined in the Fund LPAs).

     

    Each
      of
      ICM, the Onshore GP, the Offshore GP and the Employer is owned indirectly by
      IELP.

     

    Under
      the
      Agreement, prior to the amendments contemplated herein, Employee is, generally
      speaking, entitled to the following during the Term:

     

    
      	a)  	
              a
                2.5% interest in management fees paid between November 3, 2004 and
                the
                last day of the Term, vesting as set forth in the
                Agreement;

            


    

     

    
      	b)  	
              a
                2.5% participation in the incentive allocations from the Funds made
                between November 3, 2004 and the last day of the Term, vesting as
                set
                forth in the Agreement.

            


    

     

    Pursuant
      to the various agreements contemplated above, the management agreement and
      the
      management fees are being terminated and the general partners of the Funds
      are
      going to be receiving Special Profits Interest Allocations from the Funds
      (together, the “Termination
      and Allocation”).  
      The parties are entering into this Amendment with the intent of maintaining
      their economic  rights and obligations under the Agreement, as generally
      summarized above in paragraphs (a) through  (b) taking into account the
      Termination and Allocation and this Amendment should be interpreted to
      maintain the substance of the rights and obligations set forth in such
      paragraphs (it being understood by the parties however that under the
      Agreement as amended hereby the 2.5% interest in management fees will instead
      come only out of profits (through the Special Profits Interest Allocations)
      earned by the Funds, if any.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    The
      parties wish the amendments to the Agreement effected hereby 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, effective as of
      the
      Effective Date the parties agree as follows:

     

    1.  Management
      Agreements Termination.
      The
      Employee agrees that although the Management Agreements were in effect for
      a
      portion of January 1, 2008 and were then terminated, he is not entitled to
      any payment in respect of the management fees that were payable thereunder
      prior
      to termination for 2008 (or thereafter) inasmuch as the parties to the
      Management Agreements have agreed that no management fees were accrued or earned
      thereunder after December 31, 2007.

     

    2.  Employment.
      Icahn
      Capital LP shall be an “Icahn Entity” for all purposes of the Agreement. All
      references to “Employer” in the Agreement shall be references to Icahn Capital
      LP. 

     

    3.  Amendments
      to Defined Terms.
      For all
      periods from and after January 1, 2008:

     

    A.  All
      references in the Agreement to “the Management Company” shall be references to
“the Fund GPs”. 

     

    B.  All
      references in the Agreement to “Management Fees” shall be references to “the
      Fund GPs’ Special Profits Interest Allocations” and all references to
“Management Fee Participation” shall be to “Employee’s Special Profits Interest
      Allocation Participation”. 

     

    C.  “The
      Fund GPs’ Special Profits Interest Allocations”
shall
      mean in respect of each year of the Term commencing on or after the Effective
      Date, each of Onshore GP’s and Offshore GP’s Special Profits Interest
      Allocations in the Funds. For the avoidance of doubt, no incremental cost,
      if
      any, that may be incurred by the Fund GPs and that is attributable to the
      compensation, bonus or expenses of Carl C. Icahn under his employment agreement
      dated August 8, 2007, as amended from time to time, with ICM and IELP or to
      the
      earn-out payable to Mr. Icahn and his Affiliates under the Contribution
      Agreement executed on August 8, 2007 in connection therewith, or to any expenses
      incurred because the Fund GPs will be owned by IELP and its Affiliates (that
      is,
      dealing with IELP’s accounting and reporting requirements), will diminish any
      amounts to be accrued or paid to Employee pursuant to the
      Agreement.

     

    4.  Restatement.
      For all
      periods from and after January 1, 2008, Section 9 of the Agreement is hereby
      amended and restated in its entirety as follows:

     

    
      
        
        

      

      
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    9.  Profit
      Participation.
      

     

    i)  Subject
      to all of the terms and provisions of this Agreement (including, without
      limitation, those relating to vesting and forfeiture) the Employee shall be
      entitled to receive 2.5% of the Fund GPs’ Special Profits Interest Allocations
      and 2.5% of the Incentive Allocations allocated to the Fund GPs during the
      period from January 1, 2008 through the last day of the Term. If, due to
      any miscalculation or any other reason, the Employee shall have been allocated
      more or less than he is entitled to under the Agreement, then an appropriate
      adjustment shall be made. 

     

    ii)  The
      Employee’s participation in the Fund GPs’ Special Profits Interest Allocations
      and Incentive Allocations for each year shall be reflected by the establishment
      of capital accounts (the “Employee Capital Accounts”) in the name of Employee,
      as a limited partner, under the Partnership Agreements. As contemplated by
      the
      Fund LPAs, all amounts credited to each Employee Capital Account in respect
      of
      the Fund GPs’ Net Special Interest Allocations and Incentive Allocations will be
      invested by the Onshore GP in the Onshore Fund and by the Offshore GP in Icahn
      Partners Master Fund LP, Icahn Partners Master Fund II LP and Icahn Partners
      Master Fund III LP (collectively, the “Offshore Funds”), in each case for the
      benefit of the Employee Capital Account established in the Onshore GP or
      Offshore GP, as the case may be. The right of the Employee to participate in
      each of the Fund GPs’ Special Profits Interest Allocations (the “Employee’s
      Special Profits Interest Allocation Participation”) and the Incentive
      Allocations (the “Employee’s Incentive Allocation Participation”), subject to
      and in accordance with the terms of this Agreement, and in any investment made
      in respect thereof in accordance with the terms of this Agreement and all
      returns, earnings and profits thereon, are referred to collectively herein
      as
      the “Profit Participation”.

     

    iii)  Subject
      to the final sentence of this paragraph 9(iii), Employee acknowledges and agrees
      that pursuant to the terms of this Agreement, Employee will only participate
      in
      the Fund GPs’ Special Profits Interest Allocations and Incentive Allocations
      allocated from January 1, 2008 until he ceases to be employed hereunder and
      that
      if such employment ceases for any reason he will not accrue any further benefit
      in respect of the Fund GPs’ Special Profits Interest Allocations or Incentive
      Allocations allocated thereafter, nor will he have any ongoing rights or
      interest in respect of the Fund GPs’ Special Profits Interest Allocations or
      Incentive Allocations allocated on or prior to the date such employment ceases
      other than the right to Vested Amounts (as defined below) in respect of Fund
      GPs’ Special Profits Interest Allocations and Incentive Allocations allocated on
      or prior to the date such employment ceases (and any investment made in respect
      thereof, and all returns, earnings and profits thereon, made in accordance
      with
      the terms of this Agreement). Because the Fund GPs’ Net Special Interest
      Allocations and Incentive Allocations are made as of year end (other than in
      the
      event of dissolution, partner withdrawal or other events specified in the Fund
      LPAs, in which event such allocations are made as of the date prior to year
      end
      specified in such agreement (the periods in respect of which such allocations
      are made, each a “Short Period”)), in the event that the employment of Employee
      hereunder ceases, the Employee’s Special Profits Interest Allocation
      Participation and Incentive Allocation Participation under this Agreement will
      include a pro rated portion of 2.5% of the immediately following Fund GPs’
Special Profits Interest Allocations and Incentive Allocations (based upon
      the
      number of days elapsed in the one year period beginning on January 1 of the
      year
      in which such employment ceases, divided by 365 (and in the case of a Short
      Period during which such employment ceases, the number of days elapsed from
      January 1 of the Short Period until such employment ceases, divided by the
      total
      number of days in the Short Period).

     

    
      
        
        

      

      
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    5.  Prior
      Rights Undiminished.
      The
      parties agree and acknowledge that (i) except as provided in Section 6 below,
      the Employee’s rights under the Agreement with respect to periods prior to the
      Effective Date (including, without limitation, with respect to management fees
      and incentive allocations earned and allocated prior to such date) remain intact
      and are not amended, affected or diminished in any way by this Amendment and
      (ii) this Amendment shall not release the Other Parties from their obligations
      under the Agreement, and the Other Parties will continue to be responsible
      for
      the obligations under the Agreement, to the extent they are not performed by
      the
      Fund GPs, the Employer or their affiliates.

     

    6.  Deferral
      Termination Trigger. The
      Agreement, including without limitation Section 10 and Section(b)(I) of Schedule
      A thereof and Section 5 of the February 1, 2007 amendment thereof, is amended
      pursuant to transition relief promulgated under Section 409A of the Internal
      Revenue Code of 1986, as amended, and contained in Internal Revenue Service
      Notices 2005-1, 2006-79 and 2007-86 and Section XI(C) of the preamble to
      REG-158080-04, 2005-43 I.R.B. 786, dated October 4, 2005 (Application of Section
      409A to Nonqualified Deferred Compensation Plans), to delete all provisions
      that
      would permit or cause any portion of the deferred Management Fee Participation
      owing by Icahn Management LP or ICM to Employee with respect to periods prior
      to
      the Effective Date to be payable to the Employee upon the termination of
      Management Agreements.

     

    7.  Change
      in Character.
      For all
      periods from and after January 1, 2008, and after giving effect to Section
      6
      above, Sections 10 and 21(ix) and Section(b)(I) of Schedule A of the Agreement
      and Section 5 of the February 1, 2007 amendment to the Agreement are
      deleted in their entirety except with respect to the portions of the Management
      Fee Participation that were properly deferred pursuant to the Agreement prior
      to
      January 1, 2008. For the avoidance of doubt and without limiting Section 5
      above, such sections (exclusive of the third sentence of Section 5 of the
      February 1, 2007 amendment to the Agreement which is deleted for all
      purposes) shall continue to be applicable to the portions of the Management
      Fee
      Participation that were properly deferred pursuant to the Agreement in respect
      of periods to January 1, 2008.

     

    
      
        
        

      

      
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    8.  Vesting.
      Employee’s right to receive any amount or payments in respect of the Profit
      Participation allocated from and 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, ICM and the
      other Icahn Related Entities commencing January 1, 2005 through the date
      preceding the Effective Date, and Employee’s periods of service with the
      Employer and the other Icahn Related Entities from and after the Effective
      Date.
      For the avoidance of doubt, none of the execution of this Amendment, the
      termination of the Management Agreements or the Employee’s ceasing to provide
      services to ICM as of the Effective Date shall accelerate vesting of the Profit
      Participation payable by Icahn Management LP or ICM pursuant to Section 11
      of
      the Agreement.

     

    9.  Withdrawal.
      Sections 12(ii) and 13 of the Agreement are amended to delete the following
      text
      in both places where it appears: “(calculated in accordance with the methodology
      set forth in the Partnership Agreement of the applicable Fund GP)”.

     

    10.  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. 

     

    11.  Agreement
      in Force.
      Except
      as specifically amended by this Amendment, all terms and provisions of the
      Agreement, shall remain and continue in full force and effect.

     

    12.  Responsibility
      of IELP.
      IELP
      shall be jointly and severally responsible for the obligations of the Employer
      and the Fund GPs under the Agreement.

    


     

    


     

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      LEFT BLANK]

     

    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the undersigned have executed this Amendment as of the date
      first written above.

     

     

    /s/
      Vincent J. Intrieri          

    Vincent
      J. Intrieri

     

    ICAHN
      CAPITAL MANAGEMENT LP

     

    By: /s/
      Edward Mattner        

    Name:
      Edward Mattner

    Title:
      Authorized Signatory

     

    ICAHN
      MANAGEMENT LP

     

    By:
      /s/ Edward Mattner        

    Name:
      Edward Mattner

    Title:
      Authorized Signatory

     

    ICAHN
      CAPITAL LP 

    By:
      IPH
      GP LLC, its general partner

    By:
      Icahn
      Enterprises Holding L.P.

    By:
      Icahn
      Enterprises G.P. Inc.

     

    By:
      /s/ Andrew Skobe        

    Name:
      Andrew Skobe

    Title:
      Chief Financial Officer

     

    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

     

    
      
        
        

      

      
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    ICAHN
      ENTERPRISES L.P.

    By:
      Icahn
      Enterprises G.P. Inc., its general partner

    


    By: /s/
      Andrew Skobe        

    Name:
      Andrew Skobe

    Title:
      Chief Financial Officer

     

    ICAHN
      RELATED ENTITIES

     

    By:
      /s/ Carl Icahn            

    Name:
      Carl Icahn

    Title: Authorized
      Signatory

    


    
      
        
        

      

      
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