NON-COMPETITION AGREEMENT
This
Non-Competition Agreement, dated as of August __, 2007, is
between American Real Estate Partners, L.P. (“
AREP ”),
and Carl C. Icahn (“
Icahn” ).
Capitalized terms used and not otherwise defined herein shall have
the meaning ascribed to them in the Contribution and Exchange
Agreement (as defined below).
WHEREAS,
Icahn is the indirect owner of interests in entities engaged
in the business of providing investment management and related
services (the “
Business ”);
WHEREAS,
pursuant to the Contribution and Exchange Agreement, dated as
of August __, 2007 (the “
Contribution and Exchange Agreement ”)
by and among CCI Offshore Corp. (“
CCI Offshore ”),
CCI Onshore Corp. (“
CCI Onshore ”),
Icahn Management LP (“
Icahn Management ”
and together with CCI Onshore and CCI Offshore, the “
Contributors ”),
Icahn, and AREP, the Contributors will transfer 100% of their
interests in certain limited partnerships constituting the Business
(the “
Companies ”)
to AREP;
WHEREAS,
Icahn holds significant direct or indirect economic interests
in CCI Offshore, CCI Onshore and Icahn
Management;
WHEREAS,
one of the conditions to the consummation by AREP of the
transactions contemplated by the Contribution and Exchange
Agreement is that Icahn enters into this Non-Competition
Agreement for the purpose of preserving for AREP’s
benefit the goodwill associated with the
Business;
NOW,
THEREFORE, to induce AREP to enter into and consummate the
transactions contemplated by the Contribution and Exchange
Agreement and to preserve the value of the Business (and, in
particular, the goodwill associated therewith that is being
transferred to AREP pursuant to the Contribution and Exchange
Agreement), and in consideration of the mutual covenants and
agreements herein contained, the parties hereto do hereby
agree as follows:
1.
Non- Competition .
During
the period commencing on the date hereof and ending on the tenth
anniversary of the Closing Date (the “
Non-Compete Period ”),
Icahn, shall not, without AREP’s prior written consent,
directly or indirectly, for his own account, or in any capacity on
behalf of any other third person or entity, whether as an officer,
director, employee, partner, joint venturer, consultant, investor
or otherwise, engage, or assist others engaged, in whole or in
part, in any business deriving more than 25% of its revenues or
income from providing investment management services (a
“
Competing Business ”);
provided that
ownership of stock of a business shall not be deemed a violation of
this Section 1 if and for so long as (
x )
the stock of such business is publicly traded, (
y )
such ownership does not exceed 5% of the aggregate outstanding
equity interest of such business and (
z )
Icahn does not otherwise participate in the management, operations
or affairs of such business. Notwithstanding the foregoing, nothing
in this Non-Competition Agreement shall be construed to prohibit
Icahn from rendering services to, acquiring an economic interest in
or otherwise providing assistance to the Companies, AREP or any of
their controlled Affiliates or any pooled investment vehicle which
is advised or subadvised by AREP, the Companies or any of their
controlled Affiliates, or providing investment management services
(whether personally or as an employee or partner of a business
formed for this purpose) solely on his own behalf or on behalf of
one or more of his family members, including trusts of which his
family members are the principal beneficiaries and corporations,
limited partnerships, limited liability companies or similar
entities established solely for the benefit of, and wholly owned
by, his family members. Furthermore, Icahn may notify AREP of any
proposed activity for the purpose of soliciting a conclusion as to
whether such activity would violate this Section 1. AREP agrees
that it shall approve or disapprove Icahn’s proposal within
30 days of receipt of such notice. If AREP approves such activity
for purposes of this Section 1, then such activity, as disclosed in
Icahn’s request for approval, will not constitute a violation
of this Section 1.
2.
Non-solicitation .
During the Non-Compete Period, Icahn shall not, directly or
indirectly, whether through his own efforts, or through the
efforts, or in any way assisting or employing the assistance, of
any other person or entity (including through any consultant or any
person employed by or associated with any entity with whom he may
be employed or associated), do any of the following: (
a )
solicit or otherwise attempt to establish a Competing Business with
any person, firm, corporation or other entity that was an investor
in the Funds, or prospective investor in the Funds to whom any of
the Companies has made a proposal within the six months prior to
Icahn’s termination of employment or (
b )
solicit for employment, hire or otherwise engage in any capacity in
any Competing Business any investment professional or executive who
is or has within the previous one year been an employee or partner
of the Companies or any of their controlled Affiliates, or solicit
any such person to terminate his or her employment by the Companies
or any of their controlled Affiliates.
3.
Certain Acknowledgments .
Icahn
acknowledges that (
i )
the past services rendered by him to the Companies are of a special
and unusual character that have and have had a unique value to the
Companies, (
ii ) he
possesses relations, contacts, information and other know-how that
would permit him to compete with the Companies or an Affiliate
thereof, and reduce the value of the Business and the interests
being transferred to AREP pursuant to the Contribution and Exchange
Agreement and (
iii ) the
covenants set forth in Sections 1 and 2 constitute a material
inducement to AREP to consummate the transactions contemplated by
the Contribution and Exchange Agreement and AREP would not have
agreed to enter into or consummate the transactions contemplated by
the Contribution and Exchange Agreement unless Icahn had agreed to
the covenants set forth herein.
4.
Miscellaneous .
(a)
Blue-Pencil .
If any of the agreements set forth in this
Non-Competiti
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