0000928464-12-000019.txt : 20120314 0000928464-12-000019.hdr.sgml : 20120314 20120314091708 ACCESSION NUMBER: 0000928464-12-000019 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20120314 DATE AS OF CHANGE: 20120314 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CVR ENERGY INC CENTRAL INDEX KEY: 0001376139 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83522 FILM NUMBER: 12689005 BUSINESS ADDRESS: STREET 1: 2277 PLAZA DRIVE STREET 2: SUITE 500 CITY: SUGAR LAND STATE: TX ZIP: 77479 BUSINESS PHONE: (281) 207-7711 MAIL ADDRESS: STREET 1: 2277 PLAZA DRIVE STREET 2: SUITE 500 CITY: SUGAR LAND STATE: TX ZIP: 77479 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN CARL C CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 BUSINESS PHONE: 212-702-4300 MAIL ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP. STREET 2: 767 FIFTH AVE., SUITE 4700 CITY: NEW YORK STATE: NY ZIP: 10153 FORMER COMPANY: FORMER CONFORMED NAME: ICAHN CARL C ET AL DATE OF NAME CHANGE: 19950612 SC 13D/A 1 cvisch13da031412.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE TO/A (RULE 14D-100) TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2) CVR ENERGY, INC. (NAME OF SUBJECT COMPANY (ISSUER)) IEP Energy LLC Icahn Partners LP Icahn Partners Master Fund LP Icahn Partners Master Fund II L.P. Icahn Partners Master Fund III L.P. High River Limited Partnership Hopper Investments LLC Barberry Corp. Icahn Onshore LP Icahn Offshore LP Icahn Capital L.P. IPH GP LLC Icahn Enterprises Holdings L.P. Icahn Enterprises G.P. Inc. Beckton Corp. Carl C. Icahn (NAMES OF FILING PERSONS)* COMMON STOCK, PAR VALUE $0.01 (TITLE OF CLASS OF SECURITIES) 12662P108 (CUSIP NUMBER OF CLASS OF SECURITIES) KEITH L. SCHAITKIN, ESQ. GENERAL COUNSEL ICAHN CAPITAL LP 767 FIFTH AVENUE, 47TH FLOOR NEW YORK, NEW YORK 10153 (212) 702-4380 (NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF FILING PERSONS) CALCULATION OF FILING FEE TRANSACTION VALUATION: AMOUNT OF FILING FEE: $2,219,678,130* $254,375.11** * Calculated solely for purposes of determining the filing fee. The transaction value was calculated as follows: 73,989,271 shares of common stock of the Issuer multiplied by $30 per share. The number of shares used in the transaction value calculation is based on the 86,573,498 shares stated to be issued and outstanding according to the Issuer in its Form 10Q filed with the Securities and Exchange Commission on November 7, 20111, less 12,584,227 shares beneficially owned, as of February 22, 2012, by the Offeror and its affiliates. ** The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #3 for fiscal year 2012, issued September 29, 2011, by multiplying the transaction value by 0.0001146. /x/ Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. Amount previously paid: $254,375.11 Filing Party: Icahn Enterprises Holdings LP Form or registration no.: Schedule TO-T Date Filed: February 23, 2012 / / Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. Check the appropriate boxes below to designate any transactions to which the statement relates: /x/ third party tender offer subject to Rule 14d-1 / / going-private transaction subject to Rule 13e-3 / / issuer tender offer subject to Rule 13e-4 /x/ amendment to Schedule 13D under Rule 13d-2 Check the following box if the filing is a final amendment reporting the results of the tender offer: / / COMBINED SCHEDULE TO AND SCHEDULE 13D * Introductory Note: IEP Energy LLC and Icahn Enterprises Holdings L.P. are co-bidders for all purposes in the Offer. IEP Energy LLC is a wholly-owned subsidiary of Icahn Enterprises Holdings L.P. This Amendment No. 2 amends and supplements the Tender Offer Statement on Schedule TO filed on February 23, 2012 (as previously amended, the "Schedule TO") relating to the offer by IEP Energy LLC, a Delaware limited liability company ("IEP Energy") and Icahn Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Enterprises Holdings", and together with IEP Energy, the "Offeror"), to purchase for cash all of the issued and outstanding shares of common stock, par value $0.01 per share (the "Common Stock") of CVR Energy, Inc., a Delaware corporation ("CVR"), including the associated rights issued pursuant to the Rights Agreement, dated as of January 13, 2012, between CVR and American Stock Transfer & Trust Company, LLC, as Rights Agent, that are issued and outstanding (the "Rights", and together with the Common Stock, the "Shares") at a price of $30.00 per Share, without interest and less any required withholding taxes, plus one nontransferable contingent cash payment right for each Share. Both IEP Energy and Icahn Enterprises Holdings are co-bidders for all purposes in the Offer. Capitalized terms used herein and not otherwise defined have the respective meanings ascribed in the Schedule TO. The Offer is subject to the terms and conditions set forth in the Offer to Purchase, dated February 23, 2012 (the "Offer to Purchase"). The Offer to Purchase, the related Letter of Transmittal (the "Letter of Transmittal") and Notice of Guaranteed Delivery, copies of which are attached hereto as Exhibits (a)(1)(i), (a)(1)(ii) and (a)(1)(iii), respectively, constitute the "Offer". As permitted by General Instruction F to Schedule TO, the information set forth in the entire Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery, including all appendices, schedules, exhibits and annexes thereto, is hereby expressly incorporated by reference in response to Items 1 through 11 of this Schedule TO and is supplemented by the information specifically provided herein. As permitted by General Instruction G to Schedule TO, this Schedule TO is also an amendment to the joint statement on Schedule 13D filed on January 13, 2012, as amended, by Icahn Enterprises Holdings, Icahn Partners LP, a limited partnership governed by the laws of Delaware, Icahn Partners Master Fund LP, a limited partnership governed by the laws of the Cayman Islands, Icahn Partners Master Fund II LP, a limited partnership governed by the laws of the Cayman Islands, Icahn Partners Master Fund III LP, a limited partnership governed by the laws of the Cayman Islands, High River Limited Partnership, a limited partnership governed by the laws of Delaware, Hopper Investments LLC, a limited liability company governed by the laws of Delaware, Barberry Corp., a corporation governed by the laws of Delaware, Icahn Onshore LP, a limited partnership governed by the laws of Delaware, Icahn Offshore LP, a limited partnership governed by the laws of Delaware, Icahn Capital LP, a limited partnership governed by the laws of Delaware, IPH GP LLC, a limited liability company governed by the laws of Delaware, Icahn Enterprises Holdings L.P., a limited partnership governed by the laws of Delaware, Icahn Enterprises G.P. Inc., a corporation governed by the laws of Delaware, Beckton Corp., a corporation governed by the laws of Delaware, and Carl C. Icahn (collectively, the "Icahn Entities"). ITEMS 1-11. Items 1 through 11 of the Schedule TO are hereby amended and supplemented by the addition of the following: On March 14, 2012, the Offeror issued a press release relating to the Offer. A copy of this press release is filed herewith as Exhibit (a)(5)(iv) and incorporated herein by reference. ITEM 12. EXHIBITS Exhibit Description ------- ----------- (a)(5)(iv) Press Release issued by the Offeror, dated March 14, 2012. SIGNATURES After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. ICAHN PARTNERS LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN PARTNERS MASTER FUND LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN PARTNERS MASTER FUND II LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN PARTNERS MASTER FUND III LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY HIGH RIVER LIMITED PARTNERSHIP BY: HOPPER INVESTMENTS LLC, ITS GENERAL PARTNER BY: BARBERRY CORP., ITS SOLE MEMBER By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY HOPPER INVESTMENTS LLC BY: BARBERRY CORP., ITS SOLE MEMBER By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY BARBERRY CORP. By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN ONSHORE LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN OFFSHORE LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN CAPITAL LP By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY IPH GP LLC By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY ICAHN ENTERPRISES HOLDINGS L.P. BY: ICAHN ENTERPRISES G.P. INC., ITS GENERAL PARTNER By: /s/ DOMINICK RAGONE ------------------- Name: DOMINICK RAGONE Title: CHIEF FINANCIAL OFFICER IEP ENERGY LLC BY: ICAHN ENTERPRISES HOLDINGS L.P., ITS SOLE MEMBER BY: ICAHN ENTERPRISES G.P. INC., ITS GENERAL PARTNER By: /s/ DOMINICK RAGONE ------------------- Name: DOMINICK RAGONE Title: CHIEF FINANCIAL OFFICER ICAHN ENTERPRISES G.P. INC. By: /s/ DOMINICK RAGONE ------------------- Name: DOMINICK RAGONE Title: CHIEF FINANCIAL OFFICER BECKTON CORP. By: /s/ EDWARD MATTNER ------------------ Name: EDWARD MATTNER Title: AUTHORIZED SIGNATORY /s/ CARL C. ICAHN ----------------- Name: CARL C. ICAHN Date: March 14, 2012 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION ----------- ----------- (a)(1)(i) Offer to Purchase, dated February 23, 2012* (a)(1)(ii) Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number)* (a)(1)(iii) Notice of Guaranteed Delivery* (a)(1)(iv) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees* (a)(1)(v) Letter to Clients* (a)(5)(i) Summary Advertisement as published in the New York Times, by the Offeror, on February 23, 2012* (a)(5)(ii) Press Release of the Offeror, dated February 16, 2012 (incorporated by reference to Exhibit 1 to the Schedule TO-C filed by the Offeror with the Securities and Exchange Commission on February 17, 2012)* (a)(5)(iii) Press Release of the Offeror, dated March 9, 2012 (incorporated by reference to Exhibit 1 to Amendment No. 1 to Schedule TO-C filed by the Offeror with the Securities and Exchange Commission on March 9, 2012)* (a)(5)(iv) Press Release of the Offeror, dated March 14, 2012 (filed herewith) (b) None. (d) None. (g) None. (h) None. _____________________ * Previously Filed EX-1 2 cvi031412ex1.txt PRESS RELEASE FOR IMMEDIATE RELEASE ICAHN ISSUES OPEN LETTER TO SHAREHOLDERS OF CVR ENERGY CONTACT: SUSAN GORDON, (212) 702-4309 New York, New York, March 14, 2012 - Carl C. Icahn today issued the following open letter to shareholders of CVR Energy, Inc.: Dear CVR Shareholders, On March 12, a major news organization published commentary about my record and intentions at your company which prompt me to respond directly to you. The piece was so fraught with inflammatory rhetoric and reasons not to tender your stock that I would not be surprised if it was written by a PR firm paid for by CVR. I am amazed that a reputable media organization would publish it. The article implied that I "burned" other shareholders to achieve a 35% return in 2011, a charge that is outrageous and ill-informed. Let me set the record straight. The returns I achieved in 2011 were by working assiduously to increase the value of stocks like Biogen, Chesapeake Energy, Motorola, Take-Two, Regeneron, among others, which led to gains of billions of dollars for ALL shareholders, not just my firm. It is a common charge that corporate activists like myself are only out to line our own pockets, a charge invariably leveled by PR firms hired by companies we target. The truth is, we almost invariably target companies where managements have repeatedly failed to deliver. It is often only outside activists that can force them to change direction for the benefit of you, the shareholders. In fact, over the last few years, our actions have led to an increase in aggregate market value of more than $55 billion for shareholders at well over a dozen companies we have targeted that had a market value of under $20 billion when we first invested. In addition to those mentioned above, these stocks include Genzyme, BEA Systems, Lawson Software, Mentor Graphics, ImClone, Kerr-McGee, Fairmont Hotels, Take-Two, Anadarko, Korea Tobacco and many others. Despite what certain PR firms and others would have you believe, it is obvious that our activities have been to the benefit of ALL shareholders, not just us. I believe our activities are positive for our economy. In this regard I recommend an article in the Journal of Applied Corporate Finance entitled "Is Carl Icahn Good for Long-Term Investors?" which concluded, among other things"a significant numberof Icahn's targets ended up being acquired or taken private within 18 months of his initial investment. The shareholders of those companies earned abnormal returns of almost 25% from the time of Icahn's initial investment through the sale of the company." I believe that as a result of our involvement, not only did all shareholders benefit, but that these companies became more productive and more competitive. From our perspective as long-term and highly successful investors in the energy sector, we believe that the only way to release value at CVR is for the company to be sold or broken up at this time. With our tender offer, we are offering shareholders a win-win. If our offer is successful and our board nominees are elected, we believe that a sale of the company in an open auction process is possible, thus giving shareholders an opportunity for greater profit as a result of owning the contingent value right embedded in our offer. But even if we are unable to sell the company, you the shareholders will still have received $30 per share for a stock that closed at $26.78 on March 13 and has never closed above our offer. With your support, our tender offer can be successful and we will have the opportunity to demonstrate our value-creation abilities at CVR as we have done many times in the past. However, if less than 36% of the outstanding shares are tendered to us in our offer on March 23, we will respect the views of shareholders and move on to pursue other opportunities. Sincerely, Carl C. Icahn ************ NOTICE TO INVESTORS THIS PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN OFFER TO PURCHASE NOR A SOLICITATION FOR ACCEPTANCE OF THE TENDER OFFER DESCRIBED ABOVE. THE OFFER IS BEING MADE ONLY PURSUANT TO THE OFFER TO PURCHASE DATED FEBRUARY 23, 2012 AND RELATED DOCUMENTS THAT CARL C. ICAHN AND CERTAIN OF HIS AFFILIATES DISTRIBUTED TO HOLDERS OF COMMON STOCK OF CVR ENERGY, INC. AND FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ("SEC") AS EXHIBITS TO THEIR SCHEDULE TO. HOLDERS OF COMMON STOCK SHOULD READ CAREFULLY THE OFFER TO PURCHASE AND RELATED DOCUMENTS BECAUSE THEY CONTAIN IMPORTANT INFORMATION, INCLUDING THE VARIOUS TERMS OF, AND CONDITIONS TO, THE OFFER. HOLDERS OF COMMON STOCK MAY OBTAIN A FREE COPY OF THE SCHEDULE TO, THE OFFER TO PURCHASE AND OTHER DOCUMENTS FROM THE SEC AT THE SEC'S WEB SITE AT WWW.SEC.GOV. SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN, HIGH RIVER LIMITED PARTNERSHIP, HOPPER INVESTMENTS LLC, BARBERRY CORP., ICAHN PARTNERS LP, ICAHN PARTNERS MASTER FUND LP, ICAHN PARTNERS MASTER FUND II L.P., ICAHN PARTNERS MASTER FUND III L.P., ICAHN ENTERPRISES G.P. INC., ICAHN ENTERPRISES HOLDINGS L.P., IPH GP LLC, ICAHN CAPITAL L.P., ICAHN ONSHORE LP, ICAHN OFFSHORE LP, BECKTON CORP. AND CERTAIN OF THEIR RESPECTIVE AFFILIATES FROM THE STOCKHOLDERS OF CVR ENERGY, INC. FOR USE AT ITS 2012 ANNUAL MEETING WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION, INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN SUCH PROXY SOLICITATION. WHEN COMPLETED, A DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO STOCKHOLDERS OF CVR ENERGY, INC AND WILL ALSO BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV. INFORMATION RELATING TO THE PARTICIPANTS IN A PROXY SOLICITATION IS CONTAINED IN EXHIBIT 1 TO THE SCHEDULE 13D FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16, 2012.