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 Keith Meister residing at 525
        West
        22nd
        Street,
        New York, NY 10011 (“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).

       

      Pursuant
        to an Assignment dated January 1, 2008, the Employee has assigned,
        transferred and conveyed to the Fund GPs, effective as of the Effective Date,
        all his right, title and interest in and to his partnership interests in
        ICM.

       

      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
                1.5% interest in the net management fees paid during the Term by
                the Funds
                from and after January 1, 2006 (being the management fee net of expenses
                of the Management Company), such amount to be distributed promptly
                following each payment of such management fees to the Management 
                Company;

            


       

      	b)  	
              a
                2.5% interest in management fees earned between November 3, 2004 and
                the last day of the Term (which amount will be calculated with respect
                to
                management fees for periods from and after January 1, 2006 net of
                expenses
                of the Management Company), vesting as set forth in the
                Agreement;

            


       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      	c)  	
              a
                1.5% participation in the incentive allocations from the Funds made
                during
                the Term on and after December 31, 2006, such 1.5% to be distributed
                promptly following each December 31 during the
                Term:

            


       

      	d)  	
              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  (d) 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”. 

       

      
        
          
          

        

        
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      C.  “The
        Fund
        GPs’ Net 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 less the
        smaller of: (a) the sum of (i) the costs and expenses borne directly or
        indirectly by the Fund GPs and their affiliates in providing administrative
        and
        back office services to the Funds pursuant to the Fund LPAs (as reasonably
        determined and, to the extent applicable, consistent with past practices
        of the
        Fund GPs and their affiliates) plus (ii) the amount of all Incentive Allocations
        and Fund GPs’ Net Special Profit Interest Allocations allocated to Aegis Capital
        Corp. (“Aegis”) pursuant to the agreement among, inter alia, Aegis and the Fund
        GPs dated April 1, 2006 as amended and (b) the amount of the Annual Expense
        Cap in effect with respect to such year pursuant to the Agreement (collectively,
        the “Fund GP Expenses”). Without limiting the generality of the parenthetical
        contained in clause (a)(i) above, 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.  Cash
        Compensation.
        For all
        periods from and after January 1, 2008, Section 7 of the Agreement is hereby
        amended to provide that the Employee shall be entitled to receive additional
        Cash Compensation (that is, in addition to his base salary and Bonus as
        presently provided pursuant to Section 7) each quarter during the Term,
        commencing with January 1, 2008, equal to 1.5% of (a) minus (b) where (a)
        equals
        the aggregate Target Special Profits Interest Amounts (as defined in the
        Fund
        LPAs) of the limited partners in the Funds and (b) equals the Fund GP
        Expenses for such quarter. Such additional Cash Compensation shall be paid
        in
        advance on the first business day of each quarter based on a good faith estimate
        of the Fund GP Expenses that will be incurred by the Fund GPs during such
        quarter. If, due to any miscalculation or mis-estimation of Fund GP Expenses
        or
        any other reason, the Employee shall have been paid in cash more or less
        than he
        is entitled to under the Agreement, then an appropriate adjustment shall
        be
        made.

       

      5.  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:

       

      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’ Net Special Profits Interest
        Allocations and 4.0% (2.5% of which is subject to vesting and 1.5% of which
        will
        be paid annually as provided in paragraph 9(iv) below) 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.


       

      
        
          
          

        

        
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      ii)  The
        Employee’s participation in the Fund GPs’ Net 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’ Net Special Profits
        Interest Allocations (the “Employee’s Net 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’ Net 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’ Net Special Profits Interest Allocations or
        Incentive Allocations allocated thereafter, nor will he have any ongoing
        rights
        or interest in respect of the Fund GPs’ Net 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’ Net 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 Net Special Profits Interest
        Allocation Participation and Incentive Allocation Participation under this
        Agreement will include a pro rated portion of 4.0% of the immediately following
        Fund GPs’ Net 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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      iv)  Employee’s
        1.5% share of the Incentive Allocations allocated to the Fund GPs during
        the
        period from January 1, 2008 through the last day of the Term pursuant to
        paragraph 9(i) above shall be distributed to the Employee promptly following
        each December 31 occurring during the Term.

       

      6.  Prior
        Rights Undiminished.
        The
        parties agree and acknowledge that (i) except as provided in Section 7 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) neither the Assignment nor this Amendment shall 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.

       

      7.  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 to be payable to the Employee
        upon the termination of Management Agreements.

       

      8.  Change
        in Character.
        For all
        periods from and after January 1, 2008, and after giving effect to Section
        7
        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 6
        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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      9.  Vesting.
        Employee’s right to receive any amount or payments in respect of the Profit
        Participation (other than his 1.5% share of Incentive Allocations payable
        pursuant to Section 9(iv) of the Agreement) 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 Assignment, 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. Section 11(C) of the Agreement
        is
        amended to substitute “Employer” for the reference to “Management
        Company”.

       

      10.  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)”.

       

      11.  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. 

       

      12.  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.

       

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

       

       

      


       

      [INTENTIONALLY
        LEFT BLANK]

       

      
        
          
          

        

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

       

       

      /s/
        Keith Meister            

      Keith
        Meister

       

      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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