5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
5
|
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
|
/ /
|
12
|
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
|
/ /
|
Exhibit 1
|
The Agreement, dated May 29, 2012, by and between Icahn Enterprises Holdings, LP and Eric Ende
|
Exhibit 2
|
The Agreement, dated May 29, 2012, by and between High River Limited Partnership and Eric Ende
|
(a)
|
If as of the Final Date Ende is entitled to a payment under this Section 3, then 10 days following the calculation of such payment by Icahn Enterprises, Ende shall be paid the contents of the escrow account, up to the amount of the payment due under this Section 3, (such payment to be treated for all purposes as a payment by Icahn Enterprises of the Ende Payment) and all remaining funds in the escrow agreement shall immediately be released from such escrow account and paid to Icahn Enterprises; and
|
(b)
|
If, on any date, the funds in the escrow account exceed the amount that would be payable to Ende as the Ende Payment if such date was the Final Date, all such excess funds shall immediately be released from such escrow account and paid to Icahn Enterprises.
|
Event
|
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
Shares held as of 5/25/2012
|
26,361,686
|
$ 1,252,180,085.00
|
|
|
|
||
Sale
|
5/17/2013
|
26,361,686
|
$ 1,318,084,300.00
|
||||
$ 1,252,180,085.00
|
$ 1,318,084,300.00
|
$ 65,904,215.00
|
$659,042.15
|
||||
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
26,361,686
|
$ 1,252,180,085.00
|
|
|
|||
Sale
|
5/17/2013
|
26,361,686
|
$ 1,054,467,440.00
|
||||
$ 1,252,180,085.00
|
$ 1,054,467,440.00
|
$ (197,712,645.00)
|
$0.00
|
||||
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
26,361,686
|
$ 1,252,180,085.00
|
|
|
|
||
Sale
|
5/17/2013
|
13,000,000
|
$ 650,000,000.00
|
||||
Shares held as of
Final Date
|
13,361,686
|
$ 634,680,085.00*
|
|||||
$ 1,252,180,085.00
|
$1,284,680,085.00
|
$32,500,000.00
|
$ 325,000.00
|
||||
Event
|
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
Shares held as of 5/25/2012
|
26,361,686
|
$1,252,180,085.00
|
|
|
|
||
Additional purchases
|
10,000,000
|
$ 475,000,000.00**
|
8/10/2012
|
|
|
|
|
Sale
|
5/17/2013
|
26,361,686
|
$ 1,318,084,300.00
|
||||
Shares held as of
Final Date
|
10,000,000
|
$ 300,000,000.00***
|
|||||
$1,727,180,085.00
|
$ 1,618,084,300.00
|
$(109,095,785.00)
|
$0.00
|
||||
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
26,361,686
|
$1,252,180,085.00
|
|
|
|
||
Additional purchases
|
10,000,000
|
$ 475,000,000.00**
|
4/12/2013
|
|
|
|
|
Sale
|
5/17/2013
|
26,361,686
|
$ 1,318,084,300.00
|
||||
Shares held as of
Final Date
|
10,000,000
|
$ 600,000,000.00****
|
|||||
$1,727,180,085.00
|
$ 1,918,084,300.00
|
$190,904,215.00
|
$1,909,042.15
|
||||
Quantity
|
Cost
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
26,361,686
|
$ 1,252,180,085.00
|
|
|
|||
Shares held as of
Final Date
|
26,361,686
|
||||||
$ 1,252,180,085.00
|
$ 1,449,892,730*****
|
$ 197,712,645
|
$1,977,126.45
|
(a)
|
If as of the Final Date Ende is entitled to a payment under this Section 3, then 10 days following the calculation of such payment by High River, Ende shall be paid the contents of the escrow account, up to the amount of the payment due under this Section 3, (such payment to be treated for all purposes as a payment by High River of the Ende Payment) and all remaining funds in the escrow agreement shall immediately be released from such escrow account and paid to High River; and
|
(b)
|
If, on any date, the funds in the escrow account exceed the amount that would be payable to Ende as the Ende Payment if such date was the Final Date, all such excess funds shall immediately be released from such escrow account and paid to High River.
|
(i)
|
High River and its Affiliates (other than Icahn Enterprises Holdings LP and its subsidiaries) beneficially owns 5,272,335 Forest Securities as of the date of this Agreement.
|
(ii)
|
Icahn Enterprises Holdings LP and its subsidiaries beneficially own 21,089,351 Forest Securities as of the date of this Agreement.
|
(iii)
|
Entities owned by Carl Icahn (other than Icahn Enterprises Holdings and its subsidiaries) are investors in subsidiaries of Icahn Enterprises Holdings LP that directly or indirectly own Forest Securities (the “Icahn Enterprises Subsidiaries”).
|
(iv)
|
High River is responsible for payments under this Agreement only with respect to Forest Securities (and profits thereon) owned by High River and its Affiliates other than Icahn Enterprises Holdings LP and its subsidiaries and (for the avoidance of doubt) not for any Forest Securities owned by the Icahn Enterprises Subsidiaries.
|
(v)
|
Icahn Enterprises Holdings LP is responsible for payments under the Icahn Enterprises Agreement only with respect to Forest Securities and profits thereon owned by Icahn Enterprises Holdings LP and its subsidiaries including the Icahn Enterprises Subsidiaries, and not for any Forest Securities owned by High River and its Affiliates (other than Icahn Enterprises Holdings LP and its subsidiaries).
|
(vi)
|
In making all calculations and payments under this Agreement and the Icahn Enterprises Agreement, Ende will not be entitled to any double counting of profit or any payment based upon double counting.
|
(vii)
|
In no event and under no circumstances will the total, aggregate amounts paid to Ende under this Agreement and the Icahn Enterprises Agreement, exceed the amount that would be paid to Ende if there was only one holder of all Forest Securities beneficially owned by Carl C. Icahn and his Affiliates, and a single agreement with that one holder (rather than this Agreement and the Icahn Enterprises Agreement).
|
Event
|
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
Shares held as of 5/25/2012
|
5,272,335
|
$ 250,435,912.00
|
|
|
|
||
Sale
|
5/17/2013
|
5,272,335
|
$ 263,616,750.00
|
||||
$ 250,435,912.00
|
$ 263,616,750.00
|
$ 13,180,838.00
|
$ 131,808.38
|
||||
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
5,272,335
|
$ 250,435,912.00
|
|
|
|||
Sale
|
5/17/2013
|
5,272,335
|
$ 210,893,400.00
|
||||
$ 250,435,912.00
|
$ 210,893,400.00
|
$ (39,542,512.00)
|
$0.00
|
||||
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in “Icahn Profit” definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
5,272,335
|
$ 250,435,912.00
|
|
|
|
||
Sale
|
5/17/2013
|
2,600,000
|
$ 130,000,000.00
|
||||
Shares held as of
Final Date
|
2,672,335
|
$ 126,935,912.50*
|
|||||
$ 250,435,912.00
|
$ 256,935,912.50
|
$ 6,500,000.50
|
$ 65,000.01
|
||||
Event
|
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
Shares held as of 5/25/2012
|
5,272,335
|
$250,435,912.00
|
|
|
|
||
Additional purchases
|
2,000,000
|
$ 95,000,000.00**
|
8/10/2012
|
|
|
|
|
Sale
|
5/17/2013
|
5,272,335
|
$ 263,616,750.00
|
||||
Shares held as of
Final Date
|
2,000,000
|
$ 60,000,000.00***
|
|||||
$ 345,435,912.00
|
$ 323,616,750.00
|
$ (21,819,162.00)
|
$0.00
|
||||
Quantity
|
Agreed Fixed Cost - $47.50 per share
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
5,272,335
|
$250,435,912.00
|
|
|
|
||
Additional purchases
|
2,000,000
|
$ 95,000,000.00**
|
4/12/2013
|
|
|
|
|
Sale
|
5/17/2013
|
5,272,335
|
$ 263,616,750.00
|
||||
Shares held as of
Final Date
|
2,000,000
|
$ 120,000,000****
|
|||||
$ 345,435,912.00
|
$ 383,616,750.00
|
$ 38,180,838.00
|
$ 381,808.00
|
||||
Quantity
|
Cost
|
Event Date
|
# of shares sold
|
Total of item (i) in "Icahn Profit" definition
|
Icahn Profit/(Loss)
|
Profit Sharing Payment to Ende
|
|
Shares held as of 5/25/2012
|
5,272,335
|
$ 250,435,912.00
|
|
|
|||
Shares held as of
Final Date
|
5,272,335
|
||||||
$ 250,435,912.00
|
$ 289,978,425.00*****
|
$ 39,542,513.00
|
$ 395,425.13
|