UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 21, 2015
CHENIERE ENERGY, INC.
(Exact name of registrant as specified in its charter)
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| Delaware |
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001-16383 |
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95-4352386 |
| (State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
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| 700 Milam Street
Suite 1900 Houston,
Texas |
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77002 |
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(Zip Code) |
Registrant’s telephone number, including area code: (713) 375-5000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01 |
Entry into a Material Definitive Agreement. |
On August 21, 2015, Cheniere Energy, Inc. (the
“Company”) entered into a Nomination and Standstill Agreement (the “Agreement”) with Icahn Partners Master Fund LP, Icahn Partners LP, Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings
LP, Icahn Enterprises G.P. Inc., Beckton Corp., High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Carl C. Icahn, Jonathan Christodoro and Samuel Merksamer (collectively, the “Icahn Group”), pursuant to which the Icahn
Group agreed to certain standstill provisions and the Company agreed to appoint and nominate Mr. Jonathan Christodoro and Mr. Samuel Merksamer (the “Icahn Designees”) to the Company’s Board of Directors (the
“Board”). The following is a summary of the terms of the Agreement and the related Confidentiality Agreement entered into by the Company and each member of the Icahn Group on August 21, 2015 (the “Confidentiality
Agreement”). The summary does not purport to be complete and is qualified in its entirety by reference to the Agreement and the Confidentiality Agreement, copies of which are attached as Exhibits 99.1 and 99.2 and are incorporated herein by
reference.
Under the terms of the Agreement, the Icahn Group has agreed to certain standstill restrictions during the Standstill Period, including
restrictions on the Icahn Group (i) soliciting or granting proxies to vote shares of the Company’s common stock, (ii) initiating stockholder proposals for consideration by the Company’s stockholders, (iii) nominating
directors for election to the Board, (iv) seeking the removal of any member of the Board and (v) submitting proposals for or offers of certain extraordinary transactions involving the Company, in each case, subject to certain exceptions.
The Agreement generally defines the “Standstill Period” as the period beginning August 21, 2015 and ending on the date on which there is no Icahn Designee on the Board. In addition, during the Standstill Period, the Icahn Group has
agreed to vote all of its shares of the Company’s common stock in favor of (A) the election of all directors nominated by the Board and (B) the ratification of the appointment of the Company’s auditors, in each case at the
Company’s 2016 annual meeting of stockholders (the “2016 Annual Meeting”) and future meetings of stockholders.
Pursuant to the terms of
the Agreement, on August 21, 2015, the Company increased the size of its Board from nine to eleven members and appointed the Icahn Designees to the Board. Mr. Christodoro was appointed to the Governance and Nominating Committee of the
Board, and Mr. Merksamer was appointed to the Compensation Committee and the Audit Committee of the Board. In addition, the Company has agreed to include the Icahn Designees in its slate of nominees for election to the Board at the 2016 Annual
Meeting and use its reasonable best efforts to cause their election, including recommending that the Company’s stockholders vote in favor of the Icahn Designees. Pursuant to the terms of the Agreement, so long as an Icahn Designee is a member
of the Board, the Board will not be expanded to more than eleven members.
If at any time the Icahn Group and its controlled affiliates cease to hold a
“net long position” (as defined in the Agreement) of at least (A) 11,612,118 shares of the Company’s common stock, the Icahn Group will cause one Icahn Designee to resign from the Board and the Company will only be required to
include one Icahn Designee in its slate of nominees for the 2016 Annual Meeting and (B) 7,741,412 shares of the Company’s common stock, the Icahn Group will cause both Icahn Designees to resign from the Board and the Company will not be
required to include either Icahn Designee in its slate of nominees for the 2016 Annual Meeting.
In conjunction with the Agreement, the Company and the
Icahn Group have also entered into the Confidentiality Agreement in respect of any information provided to the Icahn Group or its representatives by the Icahn Designees or the Company.
The Icahn Designees will receive the same compensation and indemnification as the Company’s other non-employee directors as described in the
Company’s Proxy Statement on Schedule 14A, filed with the Securities and Exchange Commission on April 24, 2015.
There are no transactions
between Mr. Christodoro and the Company or between Mr. Merksamer and the Company that would be reportable under Item 404(a) of Regulation S-K.
A copy of the press release issued by the Company regarding these events is attached hereto as Exhibit 99.3.
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
The information set forth in Item 1.01 of this Current Report on Form 8-K is incorporated into this Item 5.02 by reference.
| Item 9.01 |
Financial Statements and Exhibits. |
d) Exhibits
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| Exhibit
Number |
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Description |
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| 99.1 |
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Nomination and Standstill Agreement, dated August 21, 2015, by and between Cheniere Energy, Inc., Icahn Partners Master Fund LP, Icahn Partners LP, Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises
Holdings LP, Icahn Enterprises G.P. Inc., Beckton Corp., High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Carl C. Icahn, Jonathan Christodoro and Samuel Merksamer. |
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| 99.2 |
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Confidentiality Agreement, dated August 21, 2015, by and between Cheniere Energy, Inc., Icahn Partners Master Fund LP, Icahn Partners LP, Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises Holdings
LP, Icahn Enterprises G.P. Inc., Beckton Corp., High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Carl C. Icahn, Jonathan Christodoro and Samuel Merksamer. |
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| 99.3 |
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Press Release of Cheniere Energy, Inc. issued on August 24, 2015. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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CHENIERE ENERGY, INC. |
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| Date: August 24, 2015 |
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By: |
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/s/ Michael J. Wortley |
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Name: |
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Michael J. Wortley |
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Title: |
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Senior Vice President and Chief Financial
Officer |
EXHIBIT INDEX
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| Exhibit
Number |
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Description |
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| 99.1 |
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Nomination and Standstill Agreement, dated August 21, 2015, by and between Cheniere Energy, Inc., Icahn Partners Master Fund LP, Icahn Partners LP, Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises
Holdings LP, Icahn Enterprises G.P. Inc., Beckton Corp., High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Carl C. Icahn, Jonathan Christodoro and Samuel Merksamer. |
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| 99.2 |
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Confidentiality Agreement, dated August 21, 2015, by and between Cheniere Energy, Inc., Icahn Partners Master Fund LP, Icahn Partners LP, Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises
Holdings LP, Icahn Enterprises G.P. Inc., Beckton Corp., High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Carl C. Icahn, Jonathan Christodoro and Samuel Merksamer. |
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| 99.3 |
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Press Release of Cheniere Energy, Inc. issued on August 24, 2015. |
Exhibit 99.1
NOMINATION AND STANDSTILL AGREEMENT
This NOMINATION AND STANDSTILL AGREEMENT (the “Agreement”) is made as of August 21, 2015 by and among Cheniere Energy,
Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), and the persons and entities listed on Schedule A hereto (collectively, the “Icahn Group”). In consideration
of the covenants and promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
1.
Certain Definitions. Unless the context otherwise requires, the following terms, for all purposes of this Agreement, shall have the meanings specified in this Section 1:
“13D Group” means any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Stock (or
any securities convertible, exchangeable for or otherwise exercisable to acquire such Voting Stock) which would be required under Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder, to file a statement on
Schedule 13D pursuant to Rule 13d-l(a) or Schedule 13G pursuant to Rule 13d-1(c) with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned (within the meaning set forth
in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act) Voting Stock representing more than 5% of any class of Voting Stock then outstanding.
“2016 Annual Meeting” shall have the meaning set forth in Section 2.2 below.
“Acceptable Person” shall have the meaning set forth in Section 2.3 below.
“Affiliate” shall have the meaning set forth in Rule 12b-2 of the rules and regulations promulgated under the Exchange Act;
provided, however, that for purposes of this Agreement, the members of the Icahn Group and their Affiliates, on the one hand, and the Company and its Affiliates, on the other, shall not be deemed to be “Affiliates” of
one another.
“Beneficially Own,” “Beneficial Owner” or “Beneficial Ownership” shall
have the meaning (or the correlative meaning, as applicable) set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act; provided that, for purposes of Sections 3.2(a) and (b) below, “Beneficially
Own” and “Beneficial Ownership” shall include securities which are beneficially owned, directly or indirectly, by the Icahn Group, as a Receiving Party; provided, however, that the number of shares of Common Stock that a
person is deemed to beneficially own pursuant to this proviso in connection with a particular Derivatives Contract shall not exceed the number of Notional Common Shares with respect to such Derivatives Contract.
“Board” means the Board of Directors of the Company.
“Common Stock” shall mean shares of the Common Stock of the Company, $0.003 par value.
“Confidentiality Agreement” shall have the meaning set forth in Section 5.2
below.
“Derivatives Contract” shall mean a contract between two parties (the “Receiving Party” and the
“Counterparty”) that is designed to produce economic benefits and risks to the Receiving Party that correspond substantially to the ownership by the Receiving Party of a number of shares of Common Stock specified or referenced in
such contract (the number corresponding to such economic benefits and risks, the “Notional Common Shares”), regardless of whether (a) obligations under such contract are required or permitted to be settled through the delivery
of cash, shares of Common Stock or other property or (b) such contract conveys any voting rights in shares of Common Stock, without regard to any short or similar position under the same or any other Derivative Contract. For the avoidance of
doubt, interests in broad-based index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the appropriate federal governmental authority shall not be deemed to be Derivatives Contracts.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Extraordinary Transaction” shall have the meaning set forth in Section 4.1(b) below.
“Icahn Designee” shall have the meaning set forth in Section 2.1 below.
“Net Long Position” shall mean such Common Stock Beneficially Owned, directly or indirectly, that constitute such
person’s net long position as defined in Rule 14e-4 under the Exchange Act; provided that, for the avoidance of doubt, “Net Long Position” shall not include any shares as to which such person has entered into a derivative or
other agreement, arrangement or understanding that hedges or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares.
“Press Release” shall have the meaning set forth in Section 5.1 below.
“Replacement” shall have the meaning set forth in Section 2.3 below.
“Representatives” shall mean the directors, officers, employees and independent contractors, agents or advisors (including
attorneys, accountants and investment bankers) of the specified party or any of its Subsidiaries.
“Rights Plan” shall
have the meaning set forth in Section 3.6 below.
“SEC” or “Commission” means the Securities and
Exchange Commission or any other federal agency at the time administering the Securities Act.
“Section 203” shall have
the meaning set forth in Section 3.7 below.
“Specified Agreements” means (i) the Company’s Amended and
Restated 1997 Stock Option Plan (but solely for purposes of this clause (i), references in Section 3.8 to “effective date” shall instead refer to the date that is two years prior to the date of this Agreement
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and references to “a majority” shall be substituted by references to “at least two thirds”), (ii) the Company’s Amended and Restated 2003 Stock Incentive Plan,
(iii) the Company’s 2011 Incentive Plan, (iv) the Company’s 2015 Long-Term Cash Incentive Plan and the Company’s 2014-2018 Long-Term Cash Incentive Program established thereunder, (v) the Company’s 2011-2013 Bonus
Plan and each award granted thereunder, (vi) the Company’s 2008 Change of Control Cash Payment Plan and each Change of Control Agreement executed thereunder, (vii) each Director Indemnification Agreement based on the form approved by
the Board on December 17, 2008 and (viii) each Officer Indemnification Agreement based on the form approved by the Board on April 2, 2009.
“Standstill Period” shall mean the period beginning on the date hereof and ending on the date when no Icahn Designee is on
the Board (it being understood that if no Icahn Designee is on the Board due to circumstances in which the Icahn Group would be entitled to appoint a Replacement, an Icahn Designee shall be deemed to continue to be a member of the Board for all
purposes under this Agreement until such time as the Icahn Group irrevocably waives in writing its rights (if any) to have the Icahn Designees included on the Company’s slate of nominees for election at the 2016 Annual Meeting and to designate
a Replacement, as applicable).
“Subsidiaries” shall mean each corporation, limited liability company, partnership,
association, joint venture or other business entity of which any party or any of its Affiliates owns, directly or indirectly, more than 50% of the stock or other equity interest entitled to vote on the election of the members of the board of
directors or similar governing body.
“Voting Stock” shall mean shares of the Common Stock and any other securities of
the Company having the ordinary power to vote in the election of members of the Board.
2. Appointment of the Icahn Group’s
Nominees to the Board and Committees of the Board.
2.1 The Company will on the date hereof add Jonathan Christodoro and Samuel
Merksamer (each, an “Icahn Designee” and, together, the “Icahn Designees”) to the Board by increasing the size of the Board by two seats and appointing the Icahn Designees to fill the resulting vacancies. The
Company represents that the only Board committees are: the Audit Committee, the Compensation Committee and the Governance and Nominating Committee. So long as an Icahn Designee is a member of the Board: (1) the Board will not form an executive
committee of the Board or any other committee of the Board with functions similar to those customarily granted to an executive committee unless, in each case, one of the Icahn Designees is a member (if the committee has more than 4 members then both
of the Icahn Designees shall be appointed members thereof); and (2) all Board consideration of, and voting with respect to, Extraordinary Transactions, material financing transactions and appointment and employment of executive officers, will
take place only at the full Board level or in committees of which one of the Icahn Designees is a member (if the applicable committee has more than 4 members then both of the Icahn Designees shall be appointed members thereof). Concurrently with
their appointments to the Board, Jonathan Christodoro will be appointed to the Governance and Nominating Committee of the Board, and Samuel Merksamer will be appointed to the Compensation Committee and the Audit Committee of the Board;
provided that any member of
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the Compensation Committee will be independent as defined in accordance with the rules of the NYSE MKT LLC or any other stock exchange on which the Voting Stock is listed. Each Icahn Designee
will have the same right as other members of the Board to be invited to attend, as an observer and without voting rights, meetings of committees of the Board of which such Icahn Designee is not a member.
2.2 The Company will include the Icahn Designees in its slate of nominees for election as directors of the Company at the Company’s 2016
annual meeting of stockholders (the “2016 Annual Meeting”). The Company will use its reasonable best efforts to cause the election of the Icahn Designees to the Board at the 2016 Annual Meeting (including listing the Icahn Designees
in the proxy statement and proxy card prepared, filed and delivered in connection with the 2016 Annual Meeting and recommending that the Company’s stockholders vote in favor of the election of each of the Icahn Designees (along with all other
Company nominees) and otherwise supporting him or her for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate). As a condition to each Icahn Designee’s
appointment to the Board and nomination for election as a director of the Company at the 2016 Annual Meeting and any subsequent annual meeting, the Icahn Group, including each Icahn Designee, agrees to provide to the Company such information as is
required to be disclosed in proxy statements under applicable law or is otherwise necessary for inclusion of such Icahn Designee on the slate.
2.3 Should either of the Icahn Designees resign from the Board or be rendered unable to, or refuse to be appointed to, or for any other reason
fail to serve on or is not serving on, the Board (other than due to the termination of the obligations to nominate and/or appoint under this Agreement), the Icahn Group shall be entitled to designate, and the Company shall cause to be appointed as a
member of the Board, a replacement (a “Replacement”) that is approved by the Company, such approval not to be unreasonably withheld, conditioned or delayed (an “Acceptable Person”) (and if such proposed designee is
not an Acceptable Person, the Icahn Group shall be entitled to continue designating a recommended Replacement until such proposed designee is an Acceptable Person). Any such Replacement who becomes a Board member in replacement of an Icahn Designee
shall be deemed to be an Icahn Designee for all purposes under this Agreement.
2.4 The Company shall not be obligated to include either
or both of the Icahn Designees on the slate of directors proposed for election at the Company’s annual meeting of stockholders for any meeting other than the 2016 Annual Meeting. For any meeting after the 2016 Annual Meeting, so long as an
Icahn Designee is on the Board, the Company shall notify the Icahn Group in writing no less than 45 calendar days before the advance notice deadline set forth in the Company’s bylaws if an Icahn Designee will not be nominated by the Company for
election as a director at such meeting. If the Icahn Group is so notified by the Company that an Icahn Designee is to be so nominated, the Company shall use reasonable best efforts to cause the election of such Icahn Designee so nominated by the
Company as set forth above (including listing such Icahn Designee in the proxy statement and proxy card prepared, filed and delivered in connection with such meeting and recommending that the Company’s stockholders vote in favor of the election
of such Icahn Designee (along with all other Company nominees) and otherwise supporting him or her for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate).
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2.5(a) The Company’s obligations to include the Icahn Designees on the slate for the 2016
Annual Meeting will terminate as follows:
(i) the Company shall be required to nominate only one Icahn Designee in the
event that the members of the Icahn Group (together with their controlled Affiliates) shall cease to Beneficially Own an aggregate Net Long Position in at least 11,612,118 shares of Common Stock (as adjusted from time to time for any stock
dividends, combinations, splits, recapitalizations and the like); and
(ii) the Company shall not be required to nominate
any Icahn Designee in the event that the members of the Icahn Group (together with their controlled Affiliates) shall cease to Beneficially Own an aggregate Net Long Position in at least 7,741,412 shares of Common Stock (as adjusted from time to
time for any stock dividends, combinations, split, recapitalizations and the like).
(b) In addition, notwithstanding
anything to the contrary in this Agreement, if at any time after the date hereof, the members of the Icahn Group (together with their controlled Affiliates) cease collectively to Beneficially Own an aggregate Net Long Position:
(i) in at least 11,612,118 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits,
recapitalizations and the like), then the Icahn Group shall cause one Icahn Designee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she may be a member; and
(ii) in at least 7,741,412 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits,
recapitalizations and the like), then (x) the Icahn Group shall cause both Icahn Designees to promptly tender their resignations from the Board and any committee of the Board on which they may be members and (y) the Company and the Icahn
Group shall have no further obligations under this Agreement.
In furtherance of the foregoing, each Icahn Designee shall,
prior to his or her appointment to the Board, and each member of the Icahn Group shall cause each Icahn Designee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit A.
2.6 The Company agrees that, from and after the date of this Agreement, so long as an Icahn Designee is a member of the Board, neither the
Company nor the Board shall take any action to, or support any person who is seeking to, increase the size of the Board above 11 directors, each having one vote on all matters.
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3. Representations and Warranties and Covenants.
3.1 Each of the parties hereto represents and warrants to the other parties that:
(a) such party has all requisite corporate or other authority and power necessary to execute and deliver this Agreement and to
consummate the transactions contemplated hereby;
(b) the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by all required corporate or other action on the part of such party and no other proceedings on the part of such party are necessary to authorize the execution and delivery
of this Agreement or to consummate the transactions contemplated hereby;
(c) this Agreement has been duly and validly
executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with its terms; and
(d) this Agreement will not result in a violation of any terms or provisions of any agreements to which such person is a party
or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the Icahn Group jointly represents and warrants that, as of the date of this Agreement, (a) the Icahn Group
Beneficially Owns an aggregate of 19,353,530 shares of Voting Stock of the Company, (b) except for such ownership, no member of the Icahn Group, individually or in the aggregate with all other members of the Icahn Group and its controlled
Affiliates, has any other Beneficial Ownership of any Voting Stock and (c) the Icahn Group, collectively with its controlled Affiliates, has a Net Long Position of 19,353,530 shares of Voting Stock.
3.3 The Company represents that since January 1, 2015, there have been: (i) no amendments to the Company’s bylaws other than as
publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within
five business days of written notice from the Company specifying any such breach, the Company shall not make, or cause to be made, by press release or similar public statement, including to the press or media, or in an SEC filing, any statement or
announcement that disparages (as distinct from objective statements reflecting business criticism) any member of the Icahn Group, the officers or directors of any member of the Icahn Group, or any person who has served as an officer or director of
any member of the Icahn Group in the past.
3.5 From and after the date of this Agreement, the Icahn Designees shall be covered by the
same indemnification and insurance provisions and coverage as are applicable to the individuals that are currently directors of the Company.
3.6 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within
five business days of written notice from the Company specifying any such breach, any Rights Plan adopted by the Company
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shall (A) not have a triggering “Acquiring Person” ownership threshold below 20% of the then-outstanding shares of Common Stock, and (B) automatically expire if not ratified
by stockholders of the Company within one hundred thirty-five (135) days of taking effect. In addition, during the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within
five business days of written notice from the Company specifying any such breach, in the event that the Company adopts a Rights Plan with a triggering “Acquiring Person” ownership threshold above 20% of the then-outstanding shares of
Common Stock and permits any other person or group required to file on Schedule 13D to buy or own pursuant to the terms of, or as a result of being waived through, such Rights Plan an amount higher than the triggering “Acquiring Person”
ownership threshold in such Rights Plan, then the Company shall similarly permit the Icahn Group to buy or own such higher amount pursuant to the terms of, or as a result of being waived through, such Rights Plan. A “Rights Plan”
means any plan or arrangement of the sort commonly referred to as a “rights plan” or “stockholder rights plan” or “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential
acquirer of exceeding the applicable ownership thresholds through the issuance of new rights, common stock or preferred shares (or any other security or device that may be issued to stockholders of the Company other than ratably to all stockholders
of the Company) that carry severe redemption provisions, favorable purchase provisions or otherwise, and any related rights agreement.
3.7 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within
five business days of written notice from the Company specifying any such breach, in the event that the Board approves the acquisition or ownership of any shares of Common Stock by any other person or group required to file on Schedule 13D in order
to except such acquisition or ownership from the application of Section 203 of the Delaware General Corporation Law (“Section 203”), the Company agrees that it will grant similar approval to the Icahn Group under Section 203.
3.8 The Company represents, warrants, covenants and agrees (a) that effective upon entry into this Agreement, Jonathan Christodoro
and Samuel Merksamer will have been appointed to the Board by the Company, (b) that the addition of Jonathan Christodoro and Samuel Merksamer to the Board on the date hereof has been approved and authorized by the Board, each member of which
either was a director on the effective date of each of the Specified Agreements or whose election or nomination for election was previously approved by a majority of such directors or other directors previously so approved and (c) that Jonathan
Christodoro and Samuel Merksamer will be nominated for election at the 2016 Annual Meeting by the Board, each member of which either was a director on the effective date of each of the Specified Agreements or whose election or nomination for
election was previously approved by a majority of such directors or other directors previously so approved.
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4. Covenants of the Icahn Group.
4.1 Standstill. During the Standstill Period, so long as the Company has not materially breached this Agreement and failed to cure such
breach within five business days of written notice from the Icahn Group specifying any such breach, the Icahn Group and its controlled Affiliates will not, without the prior written consent of the Company:
(a) make, or in any way participate, directly or indirectly, in any “solicitation” of “proxies” to vote (as
such terms are used in the rules of the SEC), or seek to advise or influence any person with respect to the voting of, any Voting Stock of the Company (other than in an Icahn Designee’s capacity as a member of the Board in a manner consistent
with the Board’s recommendation in connection with such matter);
(b) separately or in conjunction with any other
person in which it is or proposes to be either a principal, partner or financing source or is acting or proposes to act as broker or agent for compensation, submit a proposal for or offer of (with or without conditions) (including to the Board), any
Extraordinary Transaction; provided that the Icahn Group shall be permitted to sell or tender their Voting Stock of the Company, and otherwise receive consideration, pursuant to any Extraordinary Transaction; and provided further that
(A) if a third party (not a party to this Agreement or an Affiliate of a party) commences a tender offer or exchange offer for all of the outstanding Voting Stock of the Company that is recommended by the Board in its Recommendation Statement
on Schedule 14D-9, then the Icahn Group shall similarly be permitted to commence a tender offer or exchange offer for all of the outstanding Voting Stock of the Company at the same or higher consideration per share, provided that the foregoing
(i) will not relieve the Icahn Group of its obligations under the Confidentiality Agreement and (ii) will not be deemed to require the Company to make any public disclosures and (B) the Company may waive the restrictions in this
Section 4.1(b) with the approval of the Board. “Extraordinary Transaction” means any of the following involving the Company or any of its Subsidiaries or its or their securities or a material amount of the assets or businesses of the
Company or any of its Subsidiaries: any tender offer or exchange offer, merger, acquisition, business combination, reorganization, restructuring, recapitalization, sale or acquisition of material assets, liquidation or dissolution (collectively, an
“Extraordinary Transaction”); provided, however, this subparagraph (b) shall not prevent an Icahn Designee acting in his or her capacity as a director of the Company from raising such matter at the Board;
(c) form, join or in any way participate in a 13D Group (other than the Icahn Group);
(d) present at any annual meeting or any special meeting of the Company’s stockholders or through action by written
consent any proposal for consideration for action by stockholders or (except as explicitly permitted by this Agreement) propose any nominee for election to the Board or seek the removal of any member of the Board, other than through action at the
Board by an Icahn Designee acting in his or her capacity as such;
(e) grant any proxy, consent or other authority to vote
with respect to any matters (other than to the named proxies included in the Company’s proxy card for an annual meeting or a special meeting) or deposit any of the Voting Stock (or any securities convertible, exchangeable for or otherwise
exercisable to acquire such Voting Stock) held by the Icahn Group or its controlled Affiliates in a voting trust or subject them to a voting agreement or other arrangement of similar effect (excluding customary brokerage accounts, margin accounts,
prime brokerage accounts and the like, in each case, of the Icahn Group);
8
(f) make, or cause to be made, by press release or similar public statement,
including to the press or media, or in an SEC filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism) the Company, its officers or its directors or any person who has served as an
officer or director of the Company in the past;
(g) institute, solicit, assist or join, as a party, any litigation,
arbitration or other proceeding against or involving the Company or any of its current or former directors or officers (including derivative actions) other than to enforce the provisions of this Agreement;
(h) make any request under Section 220 of the Delaware General Corporation Law, except as is reasonably necessary to
enable the Icahn Group to effect a tender offer or exchange offer permitted under Section 4.1(b);
(i) request the
Company or any of its Representatives, directly or indirectly, to amend or waive any provision of this Section 4.1; provided that the Icahn Group may confidentially request the Company to amend or waive any provision of this
Section 4.1 in a manner that would not be reasonably likely to require public disclosure; or
(j) direct, instruct,
assist or encourage any of their respective Subsidiaries, Representatives or controlled Affiliates to take any such action.
4.2
Voting. During the Standstill Period, so long as the Company has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Icahn Group specifying any such breach, the Icahn
Group shall, and shall cause its controlled Affiliates, to (a) cause, in the case of all Voting Stock of the Company owned of record, and (b) instruct the record owner, in the case of all Voting Stock of the Company Beneficially Owned but
not owned of record, directly or indirectly, by them, as of the record date for the 2016 Annual Meeting and all future meetings of stockholders (whether annual or special and whether by vote or written consent) at which directors are elected and the
Icahn Designees are on the Company’s slate of nominees, in each case that are entitled to vote at the 2016 Annual Meeting and all such future meetings or at any adjournments or postponements thereof, to be present for quorum purposes, and to be
voted (i) for all directors nominated by the Board for election at all such meetings in accordance with this Agreement and (ii) in accordance with the recommendation of the Board for the ratification of the appointment of the
Company’s independent registered public accounting firm set forth in the Company’s proxy statement for any such meeting.
5.
Miscellaneous.
5.1 Public Announcements. No earlier than 8:00 a.m., New York City time, on the first trading day
after the date hereof, the Company and the Icahn Group shall announce this Agreement and the material terms hereof by means of a press release in the form attached hereto as Exhibit B (the “Press Release”). Neither the
Company nor the Icahn Group shall make any public announcement or statement that is inconsistent with or contrary to the statements made in
9
the Press Release, except as required by law or the rules of any stock exchange or with the prior written consent of the other party which will not be unreasonably withheld. The Company
acknowledges that the Icahn Group intends to file this Agreement and the agreed upon Press Release as an exhibit to its Schedule 13D pursuant to an amendment that the Company shall have the opportunity to review in advance. The Company shall have an
opportunity to review in advance any Schedule 13D filing made by the Icahn Group with respect to this Agreement and the Icahn Group shall have an opportunity to review in advance the Form 8-K to be made by the Company with respect to this Agreement.
5.2 Confidentiality Agreement. The Company hereby agrees that: (a) the Icahn Designees are permitted to and may provide
confidential information subject to and in accordance with the terms of the confidentiality agreement in the form attached hereto as Exhibit C (the “Confidentiality Agreement”) (which the Icahn Group agrees to execute and
deliver to the Company and cause each Icahn Designee to abide by) and (b) the Company will execute and deliver the Confidentiality Agreement to the Icahn Group substantially contemporaneously with execution and delivery thereof by the other
signatories thereto. During the Standstill Period, the Board shall not adopt a policy precluding members of the Board from speaking to Mr. Icahn, and if asked by any Board member, the Company will advise such Board member that he or she may
speak to Mr. Icahn (but subject to the Confidentiality Agreement), if they are willing to do so (but may caution them regarding specific matters, if any, that involve conflicts between the Company and the Icahn Group).
5.3 Governing Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of
the State of Delaware without giving effect to the principles of conflicts of laws. Any legal action or other legal proceeding relating to this Agreement or the enforcement of any provision of this Agreement may be brought or otherwise commenced in
any state or federal court located in the State of Delaware. Each party hereto agrees to the entry of an order to enforce any resolution, settlement, order or award made pursuant to this Section 5.3 by the state and federal courts located in
the State of Delaware and in connection therewith hereby waives, and agrees not to assert by way of motion, as a defense, or otherwise, any claim that such resolution, settlement, order or award is inconsistent with or violative of the laws or
public policy of the laws of the State of Delaware or any other jurisdiction.
5.4 Successors and Assigns. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successor and assigns of the parties hereto.
5.5 Entire Agreement; Amendment. This Agreement and the Confidentiality Agreement constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof. Any previous agreements among the parties relative to the specific subject matter hereof are superseded by this Agreement and the Confidentiality Agreement. Neither this
Agreement nor any provision hereof may be amended, changed, waived, discharged or terminated other than by a written instrument signed by the party against who enforcement of any such amendment, change, waiver, discharge or termination is sought.
10
5.6 Notices, etc. All notices and other communications required or permitted hereunder
shall be effective upon receipt by email to all persons whose email addresses are set forth below, with a copy also sent by express overnight delivery service, to the party to be notified, at the respective addresses set forth below, or at such
other address which may hereinafter be designated in writing:
If to the Icahn Group:
Icahn Associates Holding LLC
767
Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Carl C. Icahn
Facsimile: (212) 750-5807
Email: sgordon@sfire.com
with a
copy to:
Law Department
Icahn Associates Holding LLC
767
Fifth Avenue, 47th Floor
New York, New York 10153
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Attention: |
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Jesse Lynn |
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Louie Pastor |
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Facsimile: |
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(917) 591-3310 |
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(212) 688-1158 |
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Email: |
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jlynn@sfire.com |
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lpastor@sfire.com |
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If to the Company, to:
Cheniere Energy, Inc.
700 Milam
Street, Suite 1900
Houston, TX 77002
Attention: General Counsel
Facsimile: (713) 375-7000
with a copy to:
Cravath,
Swaine & Moore LLP
825 Eighth Avenue
New York, New York 10019
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Attention: |
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Scott A. Barshay, Esq. |
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O. Keith Hallam, III, Esq. |
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Facsimile: |
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(212) 474-3700 |
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(212) 474-3700 |
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Email: |
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sbarshay@cravath.com |
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khallam@cravath.com |
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5.7 Severability. If any provision of this Agreement shall be judicially determined to be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
5.8 Titles and Subtitles. The titles of the Articles and Sections of this Agreement are for convenience of reference only and in no way
define, limit, extend, or describe the scope of this Agreement or the intent of any of its provisions.
11
5.9 Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one instrument.
5.10 Delays or Omissions. It is agreed that
no delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such
breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It
is further agreed that any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement, or any waiver of any provisions or conditions of this Agreement must be in writing and shall be effective only to
the extent specifically set forth in writing, and that all remedies, either under this Agreement, by law or otherwise, shall be cumulative and not alternative.
5.11 Consents. Any permission, consent, or approval of any kind or character under this Agreement shall be in writing and shall be
effective only to the extent specifically set forth in such writing.
5.12 SPECIFIC PERFORMANCE. THE PARTIES HERETO AGREE THAT
IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC INTENT OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE PARTIES SHALL BE ENTITLED TO AN
INJUNCTION OR INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE PROVISIONS OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED BY LAW OR
EQUITY, AND ANY PARTY SUED FOR BREACH OF THIS AGREEMENT EXPRESSLY WAIVES ANY DEFENSE THAT A REMEDY IN DAMAGES WOULD BE ADEQUATE.
5.13
Construction of Agreement. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have preceded the execution of this Agreement, and that it has executed the same with
the advice of said counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto exchanged among the parties shall be
deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this
Agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto, and any controversy over interpretations of this Agreement shall be decided without regards to events of
drafting or preparation. The term “including” shall in all instances be deemed to mean “including without limitation.”
5.14 Section References. Unless otherwise stated, any reference contained herein to a Section or subsection refers to the provisions of
this Agreement.
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5.15 Variations of Pronouns. All pronouns and all variations thereof shall be deemed to
refer to the masculine, feminine, or neuter, singular or plural, as the context in which they are used may require.
[Remainder of Page
Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this NOMINATION AND STANDSTILL AGREEMENT to be duly
executed and delivered by their proper and duly authorized officers as of the day and year first written above.
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| CHENIERE ENERGY, INC. |
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/s/ Michael Wortley |
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Name: |
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Michael Wortley |
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Title: |
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Senior Vice President and Chief Financial Officer |
[Icahn/Cheniere Nomination and Standstill Agreement]
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| HIGH RIVER LIMITED PARTNERSHIP |
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| By: |
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Hopper Investments LLC, its general partner |
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| By: |
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/s/ Edward E. Mattner |
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Name: |
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Edward E. Mattner |
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Title: |
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Authorized Signatory |
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| HOPPER INVESTMENTS LLC |
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| By: |
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/s/ Edward E. Mattner |
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Name: |
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Edward E. Mattner |
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Title: |
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Authorized Signatory |
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| BARBERRY CORP. |
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| By: |
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/s/ Edward E. Mattner |
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Name: |
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Edward E. Mattner |
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Title: |
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Authorized Signatory |
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| ICAHN PARTNERS LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: |
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Edward E. Mattner |
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Title: |
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Authorized Signatory |
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| ICAHN PARTNERS MASTER FUND LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: |
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Edward E. Mattner |
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Title: |
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Authorized Signatory |
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| ICAHN ENTERPRISES G.P. INC. |
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| By: |
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/s/ Keith Cozza |
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Name: |
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Keith Cozza |
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Title: |
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President; Chief Executive Officer |
[Icahn/Cheniere Nomination and Standstill Agreement]
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| ICAHN ENTERPRISES HOLDINGS L.P. |
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| By: |
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Icahn Enterprises G.P. Inc., its general partner |
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| By: |
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/s/ Keith Cozza |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
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| IPH GP LLC |
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| By: |
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Icahn Enterprises Holdings L.P., its sole member |
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| By: |
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Icahn Enterprises G.P. Inc., its general partner |
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| By: |
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/s/ Keith Cozza |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
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| ICAHN CAPITAL LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN ONSHORE LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN OFFSHORE LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
[Icahn/Cheniere Nomination and Standstill Agreement]
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| BECKTON CORP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| CARL C. ICAHN |
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/s/ Carl C. Icahn |
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Name: Carl C. Icahn |
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| JONATHAN CHRISTODORO |
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/s/ Jonathan Christodoro |
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Name: Jonathan Christodoro |
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| SAMUEL MERKSAMER |
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/s/ Samuel Merksamer |
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Name: Samuel Merksamer |
[Icahn/Cheniere Nomination and Standstill Agreement]
SCHEDULE A
ICAHN GROUP
Icahn Partners Master Fund LP
Icahn Partners LP
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises Holdings LP
Icahn Enterprises G.P. Inc.
Beckton Corp.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Carl C. Icahn
Jonathan Christodoro
Samuel Merksamer
EXHIBIT A
RESIGNATION
August 21, 2015
Board of Directors
Cheniere Energy, Inc.
700 Milam Street, Suite 1900
Houston, TX 77002
Re: Resignation
Ladies and Gentlemen:
This irrevocable resignation is delivered pursuant to that certain Nomination and Standstill Agreement, dated as of August 21, 2015,
between Cheniere Energy, Inc. and certain members of the Icahn Group signatory thereto (the “Agreement”). Capitalized terms used herein but not defined shall have the meaning set forth in the Agreement. Effective only upon, and subject to,
such time as the members of the Icahn Group (together with their controlled Affiliates) cease collectively to Beneficially Own an aggregate Net Long Position (i) in at least 11,612,118 shares of Common Stock (as adjusted from time to time for
any stock dividends, combinations, splits, recapitalizations and the like), and the Icahn Group designates me as the Icahn Designee to tender his resignation or (ii) in at least 7,741,412 shares of Common Stock (as adjusted from time to time
for any stock dividends, combinations, splits, recapitalizations and the like), I hereby irrevocably resign from my position as a director of the Company and from any and all committees of the Board on which I serve.
Sincerely,
EXHIBIT B
CHENIERE ENERGY, INC. NEWS RELEASE
Cheniere Reaches Agreement with Carl Icahn: Announces
Appointment of New Board Members
Houston, Texas – August XX, 2015 - Cheniere Energy, Inc. (“Cheniere”) (NYSE MKT: LNG) announced today the appointment of Jonathan
Christodoro and Samuel Merksamer to the Board of Directors, effective immediately. With these additions, the Cheniere Board now comprises eleven directors.
Mr. Christodoro and Mr. Merksamer are Managing Directors of Icahn Capital LP, a subsidiary of Icahn Enterprises L.P. (NASDAQ: IEP).
“We look forward to working with our new board members and will continue to focus on creating value for our shareholders.” said Charif Souki,
Chairman and CEO of Cheniere.
Carl Icahn commented: “As we have done with a number of companies in the past, we hope to contribute meaningfully as
Board members towards enhancing shareholder value at Cheniere.”
Jonathan Christodoro has served as a Managing Director of Icahn Capital LP since
July 2012. He currently serves as a director on the boards of PayPal Holdings, Inc., American Railcar Industries, Inc., Hologic, Inc., Herbalife Ltd., and Enzon Pharmaceuticals, Inc.
Samuel Merksamer is a Managing Director of Icahn Capital LP, where he has been employed since May 2008. He currently serves as a director on the boards of
Transocean Partners LLC, Hertz Global Holdings, Inc., Hologic, Inc., Transocean Ltd. and Navistar International Corporation.
About Cheniere Energy, Inc.
Cheniere Energy, Inc. is a Houston-based energy company primarily engaged in LNG-related businesses and owns and operates the Sabine Pass LNG terminal
and Creole Trail Pipeline in Louisiana. Cheniere is pursuing related business opportunities both upstream and downstream of the Sabine Pass LNG terminal. Through its subsidiary, Cheniere Energy Partners, L.P., Cheniere is developing a liquefaction
project at the Sabine Pass LNG terminal adjacent to the existing regasification facilities for up to six Trains, each of which is expected to have a nominal production capacity of approximately 4.5 mtpa of LNG. Construction has begun on Trains 1
through 5 of the Sabine Pass Liquefaction Project. Cheniere is also developing liquefaction facilities near Corpus Christi, Texas. The CCL Project is being designed for up to five Trains, with
expected aggregate nominal production capacity of approximately 22.5 mtpa of LNG, four LNG storage tanks with capacity of approximately 13.5 Bcfe and two LNG carrier docks. Construction has begun
on the first two Trains of the CCL Project. Cheniere has agreed in principle to partner with Parallax Enterprises, LLC for the development of up to 11 mtpa of LNG production capacity through Parallax’s two mid-scale natural gas
liquefaction projects, Live Oak LNG and Louisiana LNG. For additional information, please refer to the Cheniere website at www.cheniere.com and Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed with
the Securities and Exchange Commission.
This press release contains certain statements that may include “forward-looking statements”
within the meanings of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements, other than statements of historical fact, included herein are “forward-looking statements.”
Included among “forward-looking statements” are, among other things, (i) statements regarding Cheniere’s business strategy, plans and objectives, including the development, construction and operation of the liquefaction
facilities, (ii) statements regarding expectations regarding regulatory authorization and approvals, (iii) statements expressing beliefs and expectations regarding the development of Cheniere’s LNG terminal and pipeline businesses,
including liquefaction facilities, (iv) statements regarding the business operations and prospects of third parties, (v) statements regarding potential financing arrangements, and (vi) statements regarding future discussions and entry
into contracts. Although Cheniere believes that the expectations reflected in these forward-looking statements are reasonable, they do involve assumptions, risks and uncertainties, and these expectations may prove to be incorrect. Cheniere’s
actual results could differ materially from those anticipated in these forward-looking statements as a result of a variety of factors, including those discussed in Cheniere’s periodic reports that are filed with and available from the
Securities and Exchange Commission. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this press release. Other than as required under the securities laws, Cheniere does not assume a duty to
update these forward-looking statements.
CONTACTS:
Investors: Randy Bhatia: 713-375-5479, Katy Cox: 713-375-5079
Media: Faith Parker: 713-375-5663
EXHIBIT C
CONFIDENTIALITY AGREEMENT
Cheniere Energy, Inc.
700 Milam Street, Suite 1900
Houston, TX 77002
August 21, 2015
To: Each of the persons listed on
Schedule A hereto (the “Icahn Group” or “you”)
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment of the Icahn Designees to the Board of Directors (the
“Board”) of Cheniere Energy, Inc. (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Nomination and Standstill Agreement (the
“Nomination Agreement”), dated as of August 21, 2015, among the Company and the Icahn Group. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, either of the Icahn
Designees may, if and to the extent he or she desires to do so, disclose information he or she obtains while serving as a member of the Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all
such persons, subject to the terms and conditions of this letter agreement. As a result, you may receive certain non-public information regarding the Company. You acknowledge that this information is proprietary to the Company and may include trade
secrets or other business information the disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject to the restrictions in paragraph 2, the persons set forth on
Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your
Representatives (regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by any Icahn Designee, or by or on behalf of the Company, together with any notes,
analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation
Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.
1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public
other than as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of confidentiality, (ii) was within your or any of your Representatives’ possession on a
non-confidential basis prior to its being furnished to you by any Icahn
Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively, the “Company Representatives”) or
(iii) is received from a source other than any Icahn Designee, the Company or any of the Company Representatives; provided, that in the case of (ii) or (iii) above, the source of such information was not believed by you, after
reasonable inquiry of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other person with respect to such information at the time the
information was disclosed to you.
2. You will, and you will cause your Representatives to, (a) keep the Evaluation Material strictly
confidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however, that you may privately disclose any of such information: (A) to
your Representatives (i) who need to know such information for the sole purpose of advising you on your investment in the Company and (ii) who are informed by you of the confidential nature of such information; provided,
further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto; and (B) to the Company and the Company Representatives. It is understood and agreed that no Icahn
Designee shall disclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such disclosure would constitute waiver of the Company’s attorney client privilege
or attorney work product privilege; provided, however, that an Icahn Designee may provide such disclosure of Legal Advice if such Icahn Designee shall not have taken any action, or failed to take any action, that has the purpose or
effect of waiving attorney-client privilege or attorney work product privilege with respect to any portion of such Legal Advice and if reputable outside legal counsel of national standing provides the Company with a written opinion that such
disclosure will not waive the Company’s attorney client privilege or attorney work product privilege with respect to such Legal Advice. “Legal Advice” as used herein shall be solely and exclusively limited to the advice provided by
legal counsel and shall not include factual information or the formulation or analysis of business strategy that is not protected by the attorney client or attorney work product privilege.
3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement to
disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in writing by email, facsimile and certified mail so that the Company may seek a protective order or other
appropriate remedy (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be deemed to prevent you or your Representatives, as the case may
be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material which your outside
legal counsel of national standing advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation
Material; or (b) the Company consents in writing to having the Evaluation Material produced or
2
disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action by the Company to obtain a protective order or
other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the avoidance of doubt, it is understood that there shall be no “legal
requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact that, absent such disclosure, you would be prohibited from purchasing, selling or engaging in derivative or other voluntary transactions with respect to
the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to file any proxy materials in compliance with Section 14(a) of the Exchange Act or the rules promulgated thereunder.
4. You acknowledge that (a) none of the Company or any of the Company Representatives makes any representation or warranty, express
or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any of the Company Representatives shall have any liability to you or to any of your Representatives relating to or resulting from the use
of the Evaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall not directly or indirectly initiate contact or communication with any executive or employee of, or
advisor to, the Company other than the Chief Executive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the foregoing or the Board concerning Evaluation Material, or to seek any information
in connection therewith from any such person other than the foregoing, without the prior consent of the Company; provided, however, the restriction in this sentence shall not in any way apply to any Icahn Designee or other Board
members.
5. All Evaluation Material shall remain the property of the Company. Neither you nor any of your Representatives shall by virtue
of any disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual property rights) shall remain exclusively with the Company. At any time after the date on which
no Icahn Designee is a director of the Company, upon the request of the Company for any reason, you will promptly return to the Company or destroy all hard copies of the Evaluation Material and use reasonable best efforts to permanently erase or
delete all electronic copies of the Evaluation Material in your or any of your Representatives’ possession or control (and, upon the request of the Company, shall certify to the Company that such Evaluation Material has been erased or deleted,
as the case may be). Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the obligations contained herein.
6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute material non-public information under
applicable federal and state securities laws, and that you shall not, and you shall use your reasonable best efforts to ensure that your Representatives, do not, trade or engage in any derivative or other transaction, on the basis of such
information in violation of such laws.
3
7. You hereby represent and warrant to the Company that (i) you have all requisite power and
authority to execute and deliver this letter agreement and to perform your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a valid and binding obligation, enforceable against you
in accordance with its terms, (iii) this letter agreement will not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation,
judgment, order or decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or holders of any equity or other interest in you (except as has already been obtained).
8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or default of
any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring;
nor shall any waiver by the Company of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by
the Company of any breach or default under this letter agreement, or any waiver by the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically set forth in writing,
and that all remedies, either under this letter agreement, by law or otherwise, shall be cumulative and not alternative. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be
effective only to the extent specifically set forth in such writing.
9. YOU ACKNOWLEDGE AND AGREE THAT THE VALUE OF THE EVALUATION
MATERIAL TO THE COMPANY IS UNIQUE AND SUBSTANTIAL, BUT MAY BE IMPRACTICAL OR DIFFICULT TO ASSESS IN MONETARY TERMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS LETTER
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC INTENT OR WERE OTHERWISE BREACHED. ACCORDINGLY YOU AGREE THAT THE COMPANY SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE PROVISIONS OF
THIS LETTER AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THE COMPANY MAY BE ENTITLED BY LAW OR EQUITY, AND YOU EXPRESSLY WAIVE ANY DEFENSE THAT A REMEDY IN DAMAGES WOULD
BE ADEQUATE.
10. This letter agreement shall be governed by and construed and enforced in accordance with the internal laws of the State
of Delaware without giving effect to the principles of conflicts of laws. Any legal action or other legal proceeding relating to this letter agreement or the enforcement of any provision of this letter agreement may be brought or otherwise commenced
in any state or federal court located in the State of Delaware. Each party hereto agrees to the entry of an order to enforce any resolution,
4
settlement, order or award made pursuant to this paragraph 10 by the state and federal courts located in the State of Delaware and in connection therewith hereby waives, and agrees not to
assert by way of motion, as a defense, or otherwise, any claim that such resolution, settlement, order or award is inconsistent with or violative of the laws or public policy of the laws of the State of Delaware or any other jurisdiction.
11. This letter agreement and the Nomination Agreement constitute the full and entire understanding and agreement between the parties with
regard to the subjects hereof and thereof. Any previous agreements among the parties relative to the specific subject matter hereof are superseded by this letter agreement and the Nomination Agreement. Neither this letter agreement nor any provision
hereof may be amended, changed, waived, discharged or terminated other than by a written instrument signed by the party against who enforcement of any such amendment, change, waiver, discharge or termination is sought.
12. All notices and other communications required or permitted hereunder shall be effective upon receipt by email to all persons whose email
addresses are set forth below, with a copy also sent by express overnight delivery service, to the party to be notified, at the respective addresses set forth below, or at such other address which may hereinafter be designated in writing:
If to the Icahn Group:
Icahn
Associates Corp.
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Carl C. Icahn
Facsimile: (212) 750-5807
Email: sgordon@sfire.com
With a
copy to (which shall not constitute notice):
Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
New
York, New York 10153
Attention: Jesse
Lynn Louie Pastor
Facsimile: (917) 591-3310 (212) 688-1158
Email:
jlynn@sfire.com lpastor@sfire.com
If to the Company, to:
Cheniere
Energy, Inc.
700 Milam Street, Suite 1900
Houston, TX 77002
Attention:
General Counsel
Facsimile: (713) 375-7000
with a copy to:
5
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New
York 10019
Attention: Scott A. Barshay,
Esq. O. Keith Hallam, III, Esq.
Facsimile:
(212) 474-3700 (212) 474-3700
Email:
sbarshay@cravath.com khallam@cravath.com
13. If any provision of this letter
agreement shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
14. This letter agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall
constitute one instrument.
15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred,
in whole or in part, by you without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.
16. The Icahn Group shall cause any Replacement for an Icahn Designee appointed to the Board pursuant to Section 2.3 of the Nomination
Agreement to execute a copy of this letter agreement.
17. This letter agreement shall expire two years from the date on which all Icahn
Designees cease to be directors of the Company; except that you shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material constituting trade secrets for such longer time as such information
constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).
18. No licenses or rights under any patent,
copyright, trademark or trade secret are granted or are to be implied by this letter agreement.
19. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, singular or plural, as the context in which they are used may require.
20. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have
preceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this letter agreement and the documents
referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule
of law or any legal decision that would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto, and any
controversy over interpretations of this agreement shall be decided without regards to events of drafting or preparation. The term “including” shall in all instances be deemed to mean “including without limitation.”
[Signature Pages Follow]
6
Please confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to
the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.
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| Very truly yours, |
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| CHENIERE ENERGY, INC. |
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| by |
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Name: Michael Wortley |
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Title: Senior Vice President and
Chief Financial Officer |
[Icahn/Cheniere
Confidentiality Agreement]
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| HIGH RIVER LIMITED PARTNERSHIP |
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| By: |
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Hopper Investments LLC, its general partner |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| HOPPER INVESTMENTS LLC |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| BARBERRY CORP. |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN PARTNERS LP |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN PARTNERS MASTER FUND LP |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN ENTERPRISES G.P. INC. |
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| By: |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
[Icahn/Cheniere
Confidentiality Agreement]
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| ICAHN ENTERPRISES HOLDINGS L.P. |
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| By: |
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Icahn Enterprises G.P. Inc., its general partner |
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| By: |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
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| IPH GP LLC |
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| By: |
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Icahn Enterprises Holdings L.P., its sole member |
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| By: |
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Icahn Enterprises G.P. Inc., its general partner |
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| By: |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
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| ICAHN CAPITAL LP |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN ONSHORE LP |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN OFFSHORE LP |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
[Icahn/Cheniere
Confidentiality Agreement]
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| BECKTON CORP |
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| By: |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| CARL C. ICAHN |
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Name: Carl C. Icahn |
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| JONATHAN CHRISTODORO |
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Name: Jonathan Christodoro |
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| SAMUEL MERKSAMER |
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Name: Samuel Merksamer |
[Icahn/Cheniere
Confidentiality Agreement]
SCHEDULE A
ICAHN GROUP
Icahn Partners Master Fund LP
Icahn Partners LP
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises Holdings LP
Icahn Enterprises G.P. Inc.
Beckton Corp.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Carl C. Icahn
Jonathan Christodoro
Samuel Merksamer
SCHEDULE B
1. MR. CARL C. ICAHN
2. Any
full-time employee of a member of the Icahn Group or Icahn Associates Holding LLC (an indirect holding company of Carl Icahn)
Exhibit 99.2
CONFIDENTIALITY AGREEMENT
Cheniere Energy, Inc.
700 Milam Street, Suite 1900
Houston, TX 77002
August 21, 2015
To: Each of the persons listed on
Schedule A hereto (the “Icahn Group” or “you”)
Ladies and Gentlemen:
This letter agreement shall become effective upon the appointment of the Icahn Designees to the Board of Directors (the
“Board”) of Cheniere Energy, Inc. (the “Company”). Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Nomination and Standstill Agreement (the
“Nomination Agreement”), dated as of August 21, 2015, among the Company and the Icahn Group. The Company understands and agrees that, subject to the terms of, and in accordance with, this letter agreement, either of the Icahn
Designees may, if and to the extent he or she desires to do so, disclose information he or she obtains while serving as a member of the Board to you and your Representatives (as hereinafter defined), and may discuss such information with any and all
such persons, subject to the terms and conditions of this letter agreement. As a result, you may receive certain non-public information regarding the Company. You acknowledge that this information is proprietary to the Company and may include trade
secrets or other business information the disclosure of which could harm the Company. In consideration for, and as a condition of, the information being furnished to you and, subject to the restrictions in paragraph 2, the persons set forth on
Schedule B hereto (collectively, the “Representatives”), you agree to treat any and all information concerning or relating to the Company or any of its subsidiaries or affiliates that is furnished to you or your
Representatives (regardless of the manner in which it is furnished, including in written or electronic format or orally, gathered by visual inspection or otherwise) by any Icahn Designee, or by or on behalf of the Company, together with any notes,
analyses, reports, models, compilations, studies, interpretations, documents, records or extracts thereof containing, referring, relating to, based upon or derived from such information, in whole or in part (collectively, “Evaluation
Material”), in accordance with the provisions of this letter agreement, and to take or abstain from taking the other actions hereinafter set forth.
1. The term “Evaluation Material” does not include information that (i) is or has become generally available to the public
other than as a result of a direct or indirect disclosure by you or your Representatives in violation of this letter agreement or any obligation of confidentiality, (ii) was within your or any of your Representatives’ possession on a
non-confidential basis prior to its being furnished to you by any Icahn Designee, or by or on behalf of the Company or its agents, representatives, attorneys, advisors, directors, officers or employees (collectively, the “Company
Representatives”)
or (iii) is received from a source other than any Icahn Designee, the Company or any of the Company Representatives; provided, that in the case of (ii) or (iii) above,
the source of such information was not believed by you, after reasonable inquiry of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any
other person with respect to such information at the time the information was disclosed to you.
2. You will, and you will cause
your Representatives to, (a) keep the Evaluation Material strictly confidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior written consent of the Company; provided, however,
that you may privately disclose any of such information: (A) to your Representatives (i) who need to know such information for the sole purpose of advising you on your investment in the Company and (ii) who are informed by you of the
confidential nature of such information; provided, further, that you will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto; and (B) to the Company and the Company
Representatives. It is understood and agreed that no Icahn Designee shall disclose to you or your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such disclosure would
constitute waiver of the Company’s attorney client privilege or attorney work product privilege; provided, however, that an Icahn Designee may provide such disclosure of Legal Advice if such Icahn Designee shall not have taken any
action, or failed to take any action, that has the purpose or effect of waiving attorney-client privilege or attorney work product privilege with respect to any portion of such Legal Advice and if reputable outside legal counsel of national standing
provides the Company with a written opinion that such disclosure will not waive the Company’s attorney client privilege or attorney work product privilege with respect to such Legal Advice. “Legal Advice” as used herein shall be
solely and exclusively limited to the advice provided by legal counsel and shall not include factual information or the formulation or analysis of business strategy that is not protected by the attorney client or attorney work product privilege.
3. In the event that you or any of your Representatives are required by applicable subpoena, legal process or other legal requirement to
disclose any of the Evaluation Material, you will promptly notify (except where such notice would be legally prohibited) the Company in writing by email, facsimile and certified mail so that the Company may seek a protective order or other
appropriate remedy (and if the Company seeks such an order, you will provide such cooperation as the Company shall reasonably request), at its cost and expense. Nothing herein shall be deemed to prevent you or your Representatives, as the case may
be, from honoring a subpoena, legal process or other legal requirement that requires discovery, disclosure or production of the Evaluation Material if (a) you produce or disclose only that portion of the Evaluation Material which your outside
legal counsel of national standing advises you is legally required to be so produced or disclosed and you inform the recipient of such Evaluation Material of the existence of this letter agreement and the confidential nature of such Evaluation
Material; or (b) the Company consents in writing to having the Evaluation Material produced or disclosed pursuant to the subpoena, legal process or other legal requirement. In no event will you or any of your Representatives oppose action by
the Company to obtain a
2
protective order or other relief to prevent the disclosure of the Evaluation Material or to obtain reliable assurance that confidential treatment will be afforded the Evaluation Material. For the
avoidance of doubt, it is understood that there shall be no “legal requirement” requiring you to disclose any Evaluation Material solely by virtue of the fact that, absent such disclosure, you would be prohibited from purchasing, selling
or engaging in derivative or other voluntary transactions with respect to the Common Stock of the Company or otherwise proposing or making an offer to do any of the foregoing, or you would be unable to file any proxy materials in compliance with
Section 14(a) of the Exchange Act or the rules promulgated thereunder.
4. You acknowledge that (a) none of the Company or any
of the Company Representatives makes any representation or warranty, express or implied, as to the accuracy or completeness of any Evaluation Material, and (b) none of the Company or any of the Company Representatives shall have any liability
to you or to any of your Representatives relating to or resulting from the use of the Evaluation Material or any errors therein or omissions therefrom. You and your Representatives (or anyone acting on your or their behalf) shall not directly or
indirectly initiate contact or communication with any executive or employee of, or advisor to, the Company other than the Chief Executive Officer, the Chief Financial Officer, the General Counsel and/or such other persons approved in writing by the
foregoing or the Board concerning Evaluation Material, or to seek any information in connection therewith from any such person other than the foregoing, without the prior consent of the Company; provided, however, the restriction in
this sentence shall not in any way apply to any Icahn Designee or other Board members.
5. All Evaluation Material shall remain the
property of the Company. Neither you nor any of your Representatives shall by virtue of any disclosure of and/or your use of any Evaluation Material acquire any rights with respect thereto, all of which rights (including all intellectual property
rights) shall remain exclusively with the Company. At any time after the date on which no Icahn Designee is a director of the Company, upon the request of the Company for any reason, you will promptly return to the Company or destroy all hard copies
of the Evaluation Material and use reasonable best efforts to permanently erase or delete all electronic copies of the Evaluation Material in your or any of your Representatives’ possession or control (and, upon the request of the Company,
shall certify to the Company that such Evaluation Material has been erased or deleted, as the case may be). Notwithstanding the return or erasure or deletion of Evaluation Material, you and your Representatives will continue to be bound by the
obligations contained herein.
6. You acknowledge, and will advise your Representatives, that the Evaluation Material may constitute
material non-public information under applicable federal and state securities laws, and that you shall not, and you shall use your reasonable best efforts to ensure that your Representatives, do not, trade or engage in any derivative or other
transaction, on the basis of such information in violation of such laws.
7. You hereby represent and warrant to the Company that
(i) you have all requisite power and authority to execute and deliver this letter agreement and to perform
3
your obligations hereunder, (ii) this letter agreement has been duly authorized, executed and delivered by you, and is a valid and binding obligation, enforceable against you in accordance
with its terms, (iii) this letter agreement will not result in a violation of any terms or conditions of any agreements to which you are a party or by which you may otherwise be bound or of any law, rule, license, regulation, judgment, order or
decree governing or affecting you, and (iv) your entry into this letter agreement does not require approval by any owners or holders of any equity or other interest in you (except as has already been obtained).
8. It is agreed that no delay or omission by the Company to exercise any right, power or remedy accruing to it upon any breach or default of
any other party under this letter agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of any similar breach or default thereafter occurring;
nor shall any waiver by the Company of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by
the Company of any breach or default under this letter agreement, or any waiver by the Company of any provisions or conditions of this letter agreement must be in writing and shall be effective only to the extent specifically set forth in writing,
and that all remedies, either under this letter agreement, by law or otherwise, shall be cumulative and not alternative. Any permission, consent, or approval of any kind or character under this letter agreement shall be in writing and shall be
effective only to the extent specifically set forth in such writing.
9. YOU ACKNOWLEDGE AND AGREE THAT THE VALUE OF THE EVALUATION
MATERIAL TO THE COMPANY IS UNIQUE AND SUBSTANTIAL, BUT MAY BE IMPRACTICAL OR DIFFICULT TO ASSESS IN MONETARY TERMS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS LETTER
AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH ITS SPECIFIC INTENT OR WERE OTHERWISE BREACHED. ACCORDINGLY YOU AGREE THAT THE COMPANY SHALL BE ENTITLED TO AN INJUNCTION OR INJUNCTIONS, WITHOUT BOND, TO PREVENT OR CURE BREACHES OF THE PROVISIONS OF
THIS LETTER AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDY TO WHICH THE COMPANY MAY BE ENTITLED BY LAW OR EQUITY, AND YOU EXPRESSLY WAIVE ANY DEFENSE THAT A REMEDY IN DAMAGES WOULD
BE ADEQUATE.
10. This letter agreement shall be governed by and construed and enforced in accordance with the internal laws of the State
of Delaware without giving effect to the principles of conflicts of laws. Any legal action or other legal proceeding relating to this letter agreement or the enforcement of any provision of this letter agreement may be brought or otherwise commenced
in any state or federal court located in the State of Delaware. Each party hereto agrees to the entry of an order to enforce any resolution, settlement, order or award made pursuant to this paragraph 10 by the state and federal courts located
in the State of Delaware and in connection therewith hereby waives, and
4
agrees not to assert by way of motion, as a defense, or otherwise, any claim that such resolution, settlement, order or award is inconsistent with or violative of the laws or public policy of the
laws of the State of Delaware or any other jurisdiction.
11. This letter agreement and the Nomination Agreement constitute the full and
entire understanding and agreement between the parties with regard to the subjects hereof and thereof. Any previous agreements among the parties relative to the specific subject matter hereof are superseded by this letter agreement and the
Nomination Agreement. Neither this letter agreement nor any provision hereof may be amended, changed, waived, discharged or terminated other than by a written instrument signed by the party against who enforcement of any such amendment, change,
waiver, discharge or termination is sought.
12. All notices and other communications required or permitted hereunder shall be effective
upon receipt by email to all persons whose email addresses are set forth below, with a copy also sent by express overnight delivery service, to the party to be notified, at the respective addresses set forth below, or at such other address which may
hereinafter be designated in writing:
If to the Icahn Group:
Icahn Associates Corp.
767 Fifth
Avenue, 47th Floor
New York, New York 10153
Attention: Carl C. Icahn
Facsimile: (212) 750-5807
Email: sgordon@sfire.com
With a
copy to (which shall not constitute notice):
Icahn Associates Corp.
767 Fifth Avenue, 47th Floor
New
York, New York 10153
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Attention: |
|
Jesse Lynn |
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Louie Pastor |
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Facsimile: |
|
(917) 591-3310 |
|
(212) 688-1158 |
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Email: |
|
jlynn@sfire.com |
|
lpastor@sfire.com |
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|
If to the Company, to:
Cheniere Energy, Inc.
700 Milam
Street, Suite 1900
Houston, TX 77002
Attention: General Counsel
Facsimile: (713) 375-7000
with a copy to:
5
Cravath, Swaine & Moore LLP
825 Eighth Avenue
New York, New
York 10019
|
|
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|
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|
Attention: |
|
Scott A. Barshay, Esq. |
|
O. Keith Hallam, III, Esq. |
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Facsimile: |
|
(212) 474-3700 |
|
(212) 474-3700 |
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Email: |
|
sbarshay@cravath.com |
|
khallam@cravath.com |
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|
13. If any provision of this letter agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
14. This letter agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall
constitute one instrument.
15. This letter agreement and the rights and obligations herein may not be assigned or otherwise transferred,
in whole or in part, by you without the express written consent of the Company. This letter agreement, however, shall be binding on successors of the parties hereto.
16. The Icahn Group shall cause any Replacement for an Icahn Designee appointed to the Board pursuant to Section 2.3 of the Nomination
Agreement to execute a copy of this letter agreement.
17. This letter agreement shall expire two years from the date on which all Icahn
Designees cease to be directors of the Company; except that you shall maintain in accordance with the confidentiality obligations set forth herein any Evaluation Material constituting trade secrets for such longer time as such information
constitutes a trade secret of the Company as defined under 18 U.S.C. § 1839(3).
18. No licenses or rights under any patent,
copyright, trademark or trade secret are granted or are to be implied by this letter agreement.
19. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, singular or plural, as the context in which they are used may require.
20. Each of the parties hereto acknowledges that it has been represented by counsel of its choice throughout all negotiations that have
preceded the execution of this letter agreement, and that it has executed the same with the advice of said counsel. Each party and its counsel cooperated and participated in the drafting and preparation of this letter agreement and the documents
referred to herein, and any and all drafts relating thereto exchanged among the parties shall be deemed the work product of all of the parties and may not be construed against any party by reason of its drafting or preparation. Accordingly, any rule
of law or any legal decision that would require interpretation of any ambiguities in this letter agreement against any party that drafted or prepared it is of no application and is hereby expressly waived by each of the parties hereto, and any
controversy over interpretations of this agreement shall be decided without regards to events of drafting or preparation. The term “including” shall in all instances be deemed to mean “including without limitation.”
[Signature Pages Follow]
6
Please confirm your agreement with the foregoing by signing and returning one copy of this letter agreement to
the undersigned, whereupon this letter agreement shall become a binding agreement between you and the Company.
|
|
|
|
|
| Very truly yours, |
|
| CHENIERE ENERGY, INC. |
|
|
| by |
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/s/ Michael Wortley |
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|
Name: |
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Michael Wortley |
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|
Title: |
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Senior Vice President and Chief Financial
Officer |
[Icahn/Cheniere Confidentiality Agreement]
|
|
|
| HIGH RIVER LIMITED PARTNERSHIP |
|
|
| By: |
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Hopper Investments LLC, its general partner |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| HOPPER INVESTMENTS LLC |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| BARBERRY CORP. |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN PARTNERS LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN PARTNERS MASTER FUND LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN ENTERPRISES G.P. INC. |
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| By: |
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/s/ Keith Cozza |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
[Icahn/Cheniere Confidentiality Agreement]
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| ICAHN ENTERPRISES HOLDINGS L.P. |
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| By: |
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Icahn Enterprises G.P. Inc., its general partner |
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| By: |
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/s/ Keith Cozza |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
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| IPH GP LLC |
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| By: |
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Icahn Enterprises Holdings L.P., its sole member |
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| By: |
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Icahn Enterprises G.P. Inc., its general partner |
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| By: |
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/s/ Keith Cozza |
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Name: Keith Cozza |
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Title: President; Chief Executive Officer |
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| ICAHN CAPITAL LP |
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| By: |
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/s/ Edward E. Mattner |
|
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN ONSHORE LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| ICAHN OFFSHORE LP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
[Icahn/Cheniere Confidentiality Agreement]
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| BECKTON CORP |
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| By: |
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/s/ Edward E. Mattner |
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Name: Edward E. Mattner |
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Title: Authorized Signatory |
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| CARL C. ICAHN |
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/s/ Carl C. Icahn |
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Name: Carl C. Icahn |
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| JONATHAN CHRISTODORO |
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/s/ Jonathan Christodoro |
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Name: Jonathan Christodoro |
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| SAMUEL MERKSAMER |
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/s/ Samuel Merksamer |
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Name: Samuel Merksamer |
[Icahn/Cheniere Confidentiality Agreement]
SCHEDULE A
ICAHN GROUP
Icahn Partners Master Fund LP
Icahn Partners LP
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises Holdings LP
Icahn Enterprises G.P. Inc.
Beckton Corp.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Carl C. Icahn
Jonathan Christodoro
Samuel Merksamer
SCHEDULE B
1. MR. CARL C. ICAHN
2. Any
full-time employee of a member of the Icahn Group or Icahn Associates Holding LLC (an indirect holding company of Carl Icahn)
Exhibit 99.3
CHENIERE ENERGY, INC. NEWS RELEASE
Cheniere Reaches Agreement with Carl Icahn: Announces
Appointment of New Board Members
Houston, Texas – August 24, 2015 - Cheniere Energy, Inc. (“Cheniere”) (NYSE MKT: LNG) announced today the appointment of Jonathan
Christodoro and Samuel Merksamer to the Board of Directors, effective immediately. With these additions, the Cheniere Board now comprises eleven directors.
Mr. Christodoro and Mr. Merksamer are Managing Directors of Icahn Capital LP, a subsidiary of Icahn Enterprises L.P. (NASDAQ: IEP).
“We look forward to working with our new board members and will continue to focus on creating value for our shareholders.” said Charif Souki,
Chairman and CEO of Cheniere.
Carl Icahn commented: “As we have done with a number of companies in the past, we hope to contribute meaningfully as
Board members towards enhancing shareholder value at Cheniere.”
Jonathan Christodoro has served as a Managing Director of Icahn Capital LP since
July 2012. He currently serves as a director on the boards of PayPal Holdings, Inc., American Railcar Industries, Inc., Hologic, Inc., Herbalife Ltd., and Enzon Pharmaceuticals, Inc.
Samuel Merksamer is a Managing Director of Icahn Capital LP, where he has been employed since May 2008. He currently serves as a director on the boards of
Transocean Partners LLC, Hertz Global Holdings, Inc., Hologic, Inc., Transocean Ltd. and Navistar International Corporation.
About Cheniere Energy, Inc.
Cheniere Energy, Inc. is a Houston-based energy company primarily engaged in LNG-related businesses and owns and operates the Sabine Pass LNG terminal
and Creole Trail Pipeline in Louisiana. Cheniere is pursuing related business opportunities both upstream and downstream of the Sabine Pass LNG terminal. Through its subsidiary, Cheniere Energy Partners, L.P., Cheniere is developing a liquefaction
project at the Sabine Pass LNG terminal adjacent to the existing regasification facilities for up to six Trains, each of which is expected to have a nominal production capacity of approximately 4.5 mtpa of LNG. Construction has begun on Trains 1
through 5 of the Sabine Pass Liquefaction Project. Cheniere is also developing liquefaction facilities near Corpus Christi, Texas. The CCL Project is being designed for up to five Trains, with expected aggregate nominal production capacity of
approximately 22.5 mtpa of LNG, four LNG storage tanks with capacity of approximately 13.5 Bcfe and two LNG carrier docks. Construction has begun on the first two Trains of the CCL Project. Cheniere has agreed in principle to partner
with Parallax Enterprises, LLC for the development of up to 11 mtpa of LNG production capacity through Parallax’s two mid-scale natural gas liquefaction projects, Live Oak LNG and Louisiana LNG. For additional information, please
refer to the Cheniere website at www.cheniere.com and Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, filed with the Securities and Exchange Commission.
This press release contains certain statements that may include “forward-looking statements” within the
meanings of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. All statements, other than statements of historical fact, included herein are “forward-looking statements.” Included
among “forward-looking statements” are, among other things, (i) statements regarding Cheniere’s business strategy, plans and objectives, including the development, construction and operation of the liquefaction facilities,
(ii) statements regarding expectations regarding regulatory authorization and approvals, (iii) statements expressing beliefs and expectations regarding the development of Cheniere’s LNG terminal and pipeline businesses, including
liquefaction facilities, (iv) statements regarding the business operations and prospects of third parties, (v) statements regarding potential financing arrangements, and (vi) statements regarding future discussions and entry into
contracts. Although Cheniere believes that the expectations reflected in these forward-looking statements are reasonable, they do involve assumptions, risks and uncertainties, and these expectations may prove to be incorrect. Cheniere’s actual
results could differ materially from those anticipated in these forward-looking statements as a result of a variety of factors, including those discussed in Cheniere’s periodic reports that are filed with and available from the Securities and
Exchange Commission. You should not place undue reliance on these forward-looking statements, which speak only as of the date of this press release. Other than as required under the securities laws, Cheniere does not assume a duty to update these
forward-looking statements.
CONTACTS:
Investors: Randy
Bhatia: 713-375-5479, Katy Cox: 713-375-5079
Media: Faith Parker: 713-375-5663
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