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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
CVR Energy, Inc.
(Name of Issuer)
Common Stock, par value $0.01
(Title of Class of Securities)
12662P108
(CUSIP Number)
Keith Schaitkin, Esq.
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 16, 2012
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
Item 1. Security and Issuer
The Schedule 13D filed with the Securities and Exchange Commission on
January 13, 2012 (the "Initial 13D"), by the Reporting Persons with respect to
the shares of Common Stock, par value $0.01 (the "Shares"), issued by CVR
Energy, Inc. (the "Issuer"), is hereby amended to furnish the additional
information set forth herein. All capitalized terms contained herein but not
otherwise defined shall have the meanings ascribed to such terms in the Initial
13D.
Item 4. Purpose of Transaction
Item 4 of the Initial 13D is hereby amended by adding the following:
On February 16, 2012, the Reporting Persons delivered a letter to the
Issuer notifying the Issuer that the Reporting Persons intend to nominate and
seek to elect 9 individuals to the Issuer's board of directors. A copy of this
letter is filed herewith as an exhibit and incorporated herein by reference.
Also on February 16, 2012, Carl C. Icahn issued a press release announcing
a tender offer through one or more of his affiliated companies for all of the
outstanding Shares. Tendering shareholders will be paid $30 per Share in cash,
plus a Contingent Value Right. The Contingent Value Right will entitle holders
to an additional payment, in cash, equal to the value that the Issuer is sold
for in excess of $30. A copy of this press release is filed herewith as an
exhibit and incorporated herein by reference.
CARL C. ICAHN'S AFFILIATES HAVE NOT YET COMMENCED THE TENDER OFFER REFERRED TO
IN THE PRESS RELEASE. UPON THE COMMENCEMENT OF ANY TENDER OFFER, THESE ENTITIES
WILL FILE A TENDER OFFER STATEMENT WITH THE SECURITIES AND EXCHANGE COMMISSION.
THOSE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER AND
SHOULD BE READ BY SECURITY HOLDERS. IF THE TENDER OFFER IS COMMENCED, SECURITY
HOLDERS WILL BE ABLE TO OBTAIN AT NO CHARGE (I) THE TENDER OFFER STATEMENT AND
OTHER DOCUMENTS WHEN THEY BECOME AVAILABLE ON THE SECURITIES AND EXCHANGE
COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV, AND (II) THE OFFER TO PURCHASE AND
ALL RELATED DOCUMENTS FROM THE OFFERORS.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO THE SOLICITATION OF PROXIES BY CARL C. ICAHN AND HIS
AFFILIATES FROM THE SHAREHOLDERS 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 SHAREHOLDERS 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.
Item 7. Material to be Filed as Exhibits
1. Nomination Notification Letter
2. Press Release
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: February 16, 2012
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
BARBERRY CORP.
HOPPER INVESTMENTS LLC
By: Barberry Corp., its sole member
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: /s/ Edward E. Mattner
------------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES G.P. INC.
By: /s/ Dominick Ragone
---------------------
Name: Dominick Ragone
Title: Chief Financial Officer
/s/ Carl C. Icahn
--------------------
CARL C. ICAHN
[Signature Page of Amendment No. 3 to Schedule 13D - CVR Energy, Inc.]
HIGH RIVER LIMITED PARTNERSHIP
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II L.P.
ICAHN PARTNERS MASTER FUND III L.P.
c/o Icahn Capital LP
767 Fifth Avenue, 46th Floor
New York, NY 10153
February 16, 2012
VIA EMAIL, FEDERAL EXPRESS AND HAND DELIVERY
--------------------------------------------
CVR Energy, Inc. CVR Energy, Inc.
2277 Plaza Drive, Suite 500 10 East Cambridge Circle Drive, Suite 250
Sugar Land, Texas 77479 Kansas City, Kansas 66103
Attn: Edmund S. Gross, Secretary Attn: Edmund S. Gross, Secretary
Re: Notice of Nomination of Directors and Stockholder Proposal at the 2012
Annual Meeting of Stockholders of CVR Energy, Inc. (the "Corporation")
---------------------------------------------------------------------------
Ladies and Gentlemen:
High River Limited Partnership, a Delaware limited partnership ("High
River" or the "Record Holder" hereby submits this notice (this "Notice") on the
date hereof pursuant to the requirements set forth in Article II, Section 10 of
the Amended and Restated By-Laws of the Corporation, effective July 14, 2011 and
publicly filed with the Securities and Exchange Commission (the "SEC") on July
20, 2011 (the "Bylaws"), of its intent to nominate each person on the Slate (as
defined below) for election as members of the Board of Directors (the "Board")
of the Corporation and to make the Proposal (as defined below) at the 2012
annual meeting of stockholders of the Corporation (the "Annual Meeting"), or any
special meeting of shareholders of the Corporation called for a similar purpose.
This Notice is submitted by the Record Holder and on behalf of the Direct
Beneficial Owners (as defined below).
As of the close of business on February 16, 2012, (i) High River represents
that it is the holder of record of, and is entitled to vote, 1,000 shares of
Common Stock, $0.01 par value per share, of the Corporation (the "Shares") and
that it is the direct beneficial owner of 2,516,845 Shares (including the 1,000
Shares of which High River is the shareholder of record); (ii) Icahn Partners
LP, a Delaware limited partnership ("Icahn Partners"), represents that it is the
direct beneficial owner of 3,928,395 Shares and that it is not the holder of
record of any Shares; (iii) Icahn Partners Master Fund LP, a Cayman Islands
exempted limited partnership ("Icahn Master"), represents that it is the direct
beneficial owner of 4,089,286 Shares and that it is not the holder of record of
any Shares; (iv) Icahn Partners Master Fund II L.P., a Cayman Islands exempted
limited partnership ("Icahn Master II"), represents that it is the direct
beneficial owner of 1,423,232 Shares and that it is not the holder of record of
any Shares; (v) Icahn Partners Master Fund III L.P., a Cayman Islands exempted
limited partnership ("Icahn Master III" and collectively with High River, Icahn
Partners, Icahn Master and Icahn Master III, the "Direct Beneficial Owners"),
represents that it is the direct beneficial owner of 626,469 Shares and that it
is not the holder of record of any Shares; in each case as further described in
Annex A. Carl C. Icahn, by virtue of his relationship to High River, Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III is deemed to
beneficially own (as that term is defined in Rule 13d-3 of the Securities Act of
1933, as amended) the Shares which High River, Icahn Partners, Icahn Master,
Icahn Master II and Icahn Master III directly beneficially own, as further
described in Annex A.
The address of Icahn Partners is 767 Fifth Avenue, 46th Floor, New York, NY
10153. The address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT,
87 Mary Street, George Town, Grand Cayman, Cayman Islands. The address of Icahn
Master II is c/o Walkers SPV Limited, Walker House, 87 Mary Street, George Town,
Grand Cayman KY1-9002, Cayman Islands. The address of Icahn Master III is c/o
Walkers SPV Limited, Walker House, 87 Mary Street, George Town, Grand Cayman
KY1-9002, Cayman Islands. The address of High River is 767 Fifth Avenue, 46th
Floor, New York, NY 10153. Each of Icahn Master, Icahn Master II, Icahn Master
III, Icahn Partners and High River is primarily engaged in the business of
investing in securities. High River believes that its name and address set forth
above is the name and address for the Record Holder that appears on the
Corporation's books.
The Record Holder hereby represents that it is a holder of record of shares
of the Corporation entitled to vote at the Annual Meeting with respect to the
nomination of the Slate for election as directors of the Corporation and intends
to appear in person or by proxy at the Annual Meeting to nominate for election
as directors of the Board the following persons (each, a "Nominee" and
collectively, the "Slate"):
Bob G. Alexander
SungHwan Cho
George W. Hebard III
Vincent J. Intrieri
Samuel Merksamer
Stephen Mongillo
Daniel A. Ninivaggi
James M. Strock
Glenn R. Zander
Mr. Alexander has extensive experience as an executive officer in the oil
and gas services industry, as well as experience serving as a director of other
public companies, which would allow him to bring important insights into board
oversight and corporate governance matters. Mr. Cho would be a valuable addition
to the Board due to his deep understanding of finance and risk obtained from his
past experience, including his position as an investment banker at Salomon Smith
Barney. Mr. Hebard has a strong record as a sophisticated investor and has a
broad understanding of the operational, financial and strategic issues facing
public and private companies. Mr. Intrieri has significant experience as a
director of various companies which enables him to understand the complex
business and financial issues that a company may face. Mr. Merksamer has a
strong record as a financial analyst and has served on a number of public and
private boards, which have provided him with a broad understanding of the
operational, financial and strategic issues facing public and private companies.
Mr. Mongillo has over 25 years of experience in the financial industry and has a
strong understanding of the complex business and financial issues encountered by
large complex companies. Mr. Ninivaggi has a strong background in operations and
management having served in various executive roles and having served on a
number of public and private boards, including Motorola Mobility and CIT Group.
Mr. Strock has extensive business and public service experience which enable him
to assist boards in meeting their responsibilities in various functions. Mr.
Zander has a substantial operational background, having served as chief
executive officer and chief financial officer and other executive positions. The
Record Holder believes that these individuals' knowledge of operations,
investments, corporate finance and law will add to the expertise and leadership
of the Board.
The Record Holder further represents that it reserves the right to appear
in person or by proxy at the Annual Meeting to make the following proposal (the
"Proposal") for consideration by the Corporation's stockholders if the Record
Holder discovers that the Board has effected any changes to the Amended and
Restated By-Laws, effective as of July 14, 2011, as publicly filed with the
Securities and Exchange Commission on July 20, 2011, that appear to be adverse
to the interests of the Corporation's stockholders:
PROPOSAL
To adopt a resolution that would repeal any provision of the
Corporation's by-laws in effect at the time of the Annual Meeting that
was not included in the Corporation's Amended and Restated By-Laws in
effect as of July 14, 2011, as publicly filed with the Securities and
Exchange Commission on July 20, 2011.
The Record Holder is not aware of any such provision of the
Corporation's by-laws that has become effective, but it is possible
that following the date of this Notice and prior to the adoption of
this resolution such a provision could be disclosed and/or become
effective.
The following is the text of the proposed resolution:
"RESOLVED, that any provision of the by-laws of CVR Energy, Inc. as of
the effectiveness of this resolution that was not included in the
Amended and Restated By-Laws, effective as of July 14, 2011, as
publicly filed with the Securities and Exchange Commission on July 20,
2011, be and hereby are repealed."
The Record Holder believes the Proposal is appropriate for consideration at
the Annual Meeting in case the Corporation takes actions between the date of
this Notice and the date of the Annual Meeting to frustrate the ability of the
Record Holder or other stockholders to nominate persons for election as members
of the Board or to otherwise exercise freely their rights as stockholders of a
Delaware corporation.
If the Board does not effect any changes to the Amended and Restated
Bylaws, effective as of July 14, 2011, as publicly filed with the Securities and
Exchange Commission on July 20, 2011, that are adverse to the interests of the
Corporation's stockholders, the Record Holder will not make the Proposal at the
Annual Meeting and the Proposal will have no effect. However, if the Board has
made changes since July 14, 2011 that are adverse to the interests of the
Corporation's stockholders, the Proposal, if adopted, will restore the Bylaws to
the July 14, 2011 version that became publicly available in filings by the
Corporation with the SEC on July 20, 2011. The Record Holder is not currently
aware of any specific Bylaw provisions that would be repealed by the adoption of
the Proposal.
The Record Holder represents that it (together with one or more of the
Direct Beneficial Owners and/or Beneficial Owners) intends to (i) deliver a
proxy statement and a form of proxy to holders of at least the percentage of the
Corporation's outstanding shares of capital stock required to approve the
Proposal and (ii) otherwise solicit proxies from stockholders in support of the
Proposal.
In this Notice: (i) certain information relating to the Direct Beneficial
Owners and the Beneficial Owner(s) (as defined in Annex A) is set forth in the
body of this Notice and Annex A and Annex B; (ii) certain information relating
to each Nominee is set forth in the body of this Notice and Annex B, Annex E,
Annex F, and Annex G, as applicable; and (iii) the written consent of each
Nominee to be named in the proxy statement, including as a nominee, and to serve
as a director of the Corporation if so elected is attached as Annex C. Each
Nominee (other than Messrs. Cho, Hebard, Intrieri, Merksamer and Ninivaggi) is
also party to an agreement substantially in the form attached hereto as Annex D,
pursuant to which Icahn Capital LP, an affiliate of the Record Holder, has
agreed to pay certain fees to such Nominee and to indemnify such Nominee with
respect to certain costs incurred by such Nominee in connection with the proxy
contest relating to the Annual Meeting (the "Nominee Agreement").
Each Nominee, Direct Beneficial Owner and Beneficial Owner has an interest
in the election of directors at the Annual Meeting: (i) directly and/or
indirectly through the beneficial ownership (if any) of Shares, as described on
Annex A and any applicable attachments thereto; (ii) pursuant to the Nominee
Agreement, if applicable, relating to such Nominee and Icahn Capital LP; (iii)
with respect to Mr. Intrieri, indirectly through an investment in Icahn
Partners; and (iv) with respect to Mr. Ninivaggi, indirectly through certain
options to purchase depositary units of Icahn Enterprises L.P. ("Icahn
Enterprises").
Each Nominee, Direct Beneficial Owner and Beneficial Owner has an interest
in the Proposal: (i) directly and/or indirectly through the beneficial ownership
(if any) of Shares, as described on Annex A and any applicable attachments
thereto; (ii) with respect to Mr. Intrieri, indirectly through an investment in
Icahn Partners; and (iii) with respect to Mr. Ninivaggi, indirectly through
certain options to purchase depositary units of Icahn Enterprises.
With respect to each Nominee, other than as disclosed in this Notice: (i)
such Nominee is not, and, within the past year, was not a party to any contract,
arrangement or understanding with any person with respect to any securities of
the Corporation, including, but not limited to, joint ventures, loan or option
arrangements, puts or calls, guarantees against loss or guarantees of profit,
division of losses or profits, or the giving or withholding of proxies; and (ii)
neither such Nominee nor any of such Nominee's associates have any arrangement
or understanding with any person with respect to (A) any future employment by
the Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Direct Beneficial Owner and each Beneficial Owner,
other than as disclosed in this Notice: (i) neither such Direct Beneficial Owner
nor such Beneficial Owner is, or was, within the past year, a party to any
contract, arrangement or understanding with any person with respect to any
securities of the Corporation, including, but not limited to, joint ventures,
loan or option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving or
withholding of proxies; and (ii) neither such Direct Beneficial Owner,
Beneficial Owner, nor any of their respective associates have any arrangement or
understanding with any person with respect to (A) any future employment by the
Corporation or its affiliates or (B) any future transactions to which the
Corporation or any of its affiliates will or may be a party.
With respect to each Nominee, such Nominee is independent under the
independence standards applicable to the Corporation under (i) paragraph (a)(1)
of Item 407 of Regulation S-K and (ii) the New York Stock Exchange listing
standards.
Each of SungHwan Cho, George Hebard, Vincent J. Intrieri, Samuel Merksamer
and Daniel A. Ninivaggi is employed by Icahn Enterprises or other entities
affiliated with Carl Icahn. Carl C. Icahn is the indirect owner of the general
partner of Icahn Enterprises and the indirect holder of approximately 93% of the
outstanding depositary units representing limited partnership interests in Icahn
Enterprises. From time to time, Messrs. Cho, Hebard, Intrieri, Merksamer and
Ninivaggi may serve on the boards of directors of entities in which the Direct
Beneficial Owners and/or Beneficial Owners have an interest but do not control.
In such situations Messrs. Cho, Hebard, Intrieri, Merksamer and Ninivaggi may
receive customary director compensation from such entities (which may include
cash fees, equity awards, reimbursement of travel expenses, indemnification and
the like).
On May 19, 2011, Icahn Enterprises Holdings LP, an affiliate of Mr. Icahn,
paid Bob Alexander $60,000 for certain consulting services performed during 2009
and 2010.
SungHwan Cho is an at-will employee of Icahn Capital LP, an affiliate of
Mr. Icahn, and does not have a written employment agreement. Mr. Cho was paid
aggregate compensation of $[REDACTED] for the year ended December 31, 2009,
$[REDACTED] for the year ended December 31, 2010, and $[REDACTED] for the year
ended December 31, 2011. Mr. Cho also participates in certain benefit programs
and plans of Icahn Capital LP. He is also subject to certain confidentiality,
non-solicit and non-compete policies.
George Hebard entered into an employment agreement with Icahn Enterprises
Holdings LP, an affiliate of Mr. Icahn, on September 8, 2011, pursuant to which
Mr. Hebard was employed as a Managing Director with Icahn Enterprises Holdings
LP. The term of this agreement commenced on September 8, 2011 and ends on
September 12, 2014, unless terminated earlier under the terms thereof. Under
this agreement, Mr. Hebard is entitled to a base salary of $[REDACTED] per annum
and an annual discretionary bonus of up to $[REDACTED]. Under this agreement,
Mr. Hebard was paid aggregate compensation of $[REDACTED] for the year ended
December 31, 2011. Under this agreement, Mr. Hebard is also entitled to
participate in certain benefit programs and plans of Icahn Enterprises Holdings
LP. He is also subject to certain confidentiality, non-solicit and non-compete
obligations thereunder.
Vincent J. Intrieri entered into an agreement, dated as of December 31,
2004 (the "Original Intrieri Agreement") with certain affiliates of Mr. Icahn.
The term of the Original Intrieri Agreement ran from January 1, 2005 until
December 31, 2011. Under the Original Intrieri Agreement, Mr. Intrieri was
employed to act as a senior executive officer with the title of Senior Managing
Director and Mr. Intrieri agreed to work for various other affiliates of Mr.
Icahn for the aggregate consideration described below. Under the Original
Intrieri Agreement, Mr. Intrieri was entitled to receive cash compensation equal
to (i) a base salary at the rate of $400,000 per annum plus (ii) a bonus of
between $1,000,000 and $1,250,000 per annum, as determined by such affiliates of
Mr. Icahn. Under, the Original Intrieri Agreement, Mr. Intrieri was also
entitled to receive a 2.5% participatory interest in the profits and fees
derived by Mr. Icahn and/or his affiliated entities from Icahn Partners, Icahn
Master, Icahn Master II and Icahn Master III (the "Funds"). Because only a
portion of such profit interests are distributed and because of his other
investments in the Funds, Mr. Intrieri also has capital accounts in the Funds.
The portion of this profit participation consisting of his 2.5% management fee
participation was deferred until January 30, 2010 and was paid to him in fiscal
2010, in an aggregate amount equal to $699,319. Mr. Intrieri's 2.5%
participatory interest described above was superseded by the Current Intrieri
Agreement described below. Mr. Intrieri continues to hold an investment in Icahn
Partners.
On September 26, 2011, Mr. Intrieri entered into an employment agreement
(the "Current Intrieri Agreement") with Icahn Enterprises Holdings L.P. ("Icahn
Enterprises Holdings"), an affiliate of Mr. Icahn, the term of which commenced
on October 1, 2011. The Current Intrieri Agreement superseded and replaced the
Original Intrieri Agreement. Pursuant to the Current Intrieri Agreement, Mr.
Intrieri serves as Senior Vice President of Icahn Enterprises G.P. and Senior
Managing Director of the Funds. Mr. Intrieri's employment period continues under
the Current Intrieri Agreement through December 31, 2013, unless otherwise
terminated earlier or extended, in each case, pursuant to the terms of the
Current Intrieri Agreement. Pursuant to the Current Intrieri Agreement, Mr.
Intrieri is entitled to aggregate compensation of $6.5 million per annum. If the
Current Intrieri Agreement is extended beyond December 31, 2013 pursuant to the
terms thereof, Mr. Intrieri is entitled to aggregate compensation of $7.5
million per annum.
The Original Intrieri Agreement is further described on page 224 of the
Form 10-K for the fiscal year ended December 31, 2010, filed by Icahn
Enterprises with the SEC on March 8, 2011, which is attached hereto as Annex E
and incorporated herein by reference. The Current Intrieri Agreement is further
described on the Form 8-K filed by Icahn Enterprises with the SEC on September
30, 2011, which is attached hereto as Annex F and incorporated herein by
reference.
Samuel Merksamer is an at-will employee of Icahn Capital LP, an affiliate
of Mr. Icahn, and does not have a written employment agreement. Mr. Merksamer
entered into an employment agreement with Icahn Capital LP on May 12, 2008,
pursuant to which Mr. Merksamer was employed as an Investment Analyst with Icahn
Capital LP. The term of this agreement commenced on May 12, 2008 and ended on
December 31, 2011. The parties are currently working on a new agreement. Under
the previous agreement, Mr. Merksamer received a base salary of $[REDACTED] per
annum and a discretionary bonus of up to [REDACTED]% of base salary for December
31, 2008, up to [REDACTED]% of base salary for December 31, 2009, up to
[REDACTED]% of base salary for December 31, 2010, and up to [REDACTED]% of base
salary for December 31, 2011. Under this agreement, Mr. Merksamer was paid
aggregate compensation of $[REDACTED] for the year ended December 31, 2009,
$[REDACTED] for the year ended December 31, 2010, and $[REDACTED] for the year
ended December 31, 2011. Under this agreement, Mr. Merksamer is also entitled to
participate in certain benefit programs and plans of Icahn Capital LP. He is
also subject to certain confidentiality, non-solicit and non-compete obligations
thereunder.
Stephen Mongillo entered into an employment agreement with Icahn Capital
LP, an affiliate of Mr. Icahn, on January 1, 2008, pursuant to which Mr.
Mongillo was employed as an Investment Analyst with Icahn Capital LP. The term
of this agreement commenced on January 1, 2008 and ended on January 21, 2011.
Under this agreement, Mr. Mongillo was entitled to a base salary of $[REDACTED]
per annum and a discretionary bonus. Under this agreement, Mr. Mongillo was paid
aggregate compensation of $[REDACTED] for the year ended December 31, 2009,
$[REDACTED] for the year ended December 31, 2010, and $[REDACTED] for the year
ended December 31, 2011. Under this agreement, Mr. Mongillo was also entitled to
participate in certain benefit programs and plans of Icahn Capital LP. He was
also subject to certain confidentiality, non-solicit and non-compete obligations
thereunder. In addition, on January 30, 2012, Icahn Capital LP, an affiliate of
Mr. Icahn, paid Mr. Mongillo $25,000 for serving on a slate of individuals that
Mr. Icahn's affiliates nominated for election as members of the board of
directors of Commercial Metals Company.
On February 11, 2010, Icahn Enterprises entered into an employment
agreement with Daniel A. Ninivaggi (the "Ninivaggi Agreement") pursuant to which
Mr. Ninivaggi serves as the President of Icahn Enterprises, Icahn Enterprises
Holdings L.P. and Icahn Enterprises GP Inc., affiliates of Mr. Icahn. Under the
Ninivaggi Agreement, Mr. Ninivaggi is (1) principally responsible for overseeing
portfolio company operations, generally not including the entities involved with
the hedge funds managed and advised by subsidiaries of Icahn Enterprises
Holdings L.P. and (2) involved with acquisitions, dispositions and financings
engaged in by Icahn Enterprises, Icahn Enterprises Holdings L.P. and
subsidiaries.
Pursuant to the Ninivaggi Agreement, Mr. Ninivaggi is entitled to: (i) a
base salary at the per annum rate of $650,000 for the period ending December 31,
2010 and for each of the calendar years ending December 31, 2011 and 2012; (ii)
a bonus in the amount of $550,000 for the period ending on December 31, 2010;
and (iii) a bonus of not less than $450,000 and not more than $650,000 for each
of the calendar years ending December 31, 2011 and 2012. Under this agreement,
Mr. Ninivaggi was paid aggregate compensation of $1,324,100 for the year ended
December 31, 2010, and $1,300,000 for the year ended December 31, 2011. Mr.
Ninivaggi also received a relocation payment of $300,000 in connection with the
commencement of his employment.
In addition, on February 11, 2010, Icahn Enterprises and Mr. Ninivaggi
entered into a Class A Option Agreement and Class B Option Agreement (together,
the "Option Agreements"). Pursuant to terms of the Ninivaggi Agreement, Mr.
Ninivaggi was granted Class A options to purchase 100,000 Depositary Units
("Units") of Icahn Enterprises with an exercise price of $45.60 per Unit, and
Class B options to purchase 100,000 Units with an exercise price of $55.60 per
Unit. Each of the Class A options and the Class B options (collectively, the
"Options") shall vest as to 33,334 Options, on December 31, 2010; 33,333 Options
on December 31, 2011 and the balance of 33,333 Options on December 31, 2012. The
Options shall expire on December 31, 2014 except as otherwise set forth in the
Ninivaggi Agreement or the Option Agreements.
The Ninivaggi Agreement is further described on page 216 of, and the terms
of Mr. Ninivaggi's employment are further described in the Compensation
Discussion and Analysis section beginning on page 208 of, the Form 10-K for the
fiscal year ended December 31, 2010 filed by Icahn Enterprises with the SEC on
March 8, 2011, which is attached hereto as Annex E and incorporated herein by
reference. Each of the Ninivaggi Agreement and the Option Agreements is also
further described on the Form 8-K filed by Icahn Enterprises with the SEC on
February 18, 2010, which is attached hereto as Annex G and incorporated herein
by reference.
On September 28, 2011, Icahn Capital LP, an affiliate of Mr. Icahn, paid
Glenn Zander $25,000 for serving on a slate of individuals that Mr. Icahn's
affiliates intended to nominate for election as members of the board of
directors of The Clorox Company.
The Record Holder further represents that it (together with one or more of
the Direct Beneficial Owners and/or Beneficial Owners) intends to (i) deliver a
proxy statement and a form of proxy to holders of at least the percentage of the
Corporation's outstanding shares of capital stock required to elect the Slate
and (ii) otherwise solicit proxies from stockholders in support of the Slate. On
February 14, 2012, the Direct Beneficial Owners and Beneficial Owners disclosed
the following in a Schedule 13D amendment filed with the SEC:
On February 13, 2012, Carl C. Icahn and other representatives of the
Reporting Persons spoke with Jack Lipinski, the Chairman, Chief Executive
Officer, and President of the Issuer, and discussed the initiatives announced on
February 13th by the Issuer. The Reporting Persons stated that they believed
that shareholders would be better served if the Issuer commenced a process to
put itself up for sale, rather than pursue the limited initiatives announced by
the Issuer.
The Reporting Persons believe that the Issuer's stock price does not
reflect current high crack spreads. The Issuer is a small company with only two
refineries. As a result, shareholders face an unfavorable risk reward ratio
since they bear not only the risk of a decline in crack spreads, but also the
risk of production interruptions which would reduce the upside from high crack
spreads. The Reporting Persons expressed their belief that there are three or
four possible acquirers that could benefit greatly from the synergies that could
be realized from a combination with the Issuer and that are better positioned to
hedge currently high crack spreads. Mr. Lipinski stated that he would take the
Reporting Persons' suggestions under advisement and discuss them with his board
of directors and advisors.
The Reporting Persons believe the shareholders, the true owners of
companies with the most to lose or gain, should decide whether or not the
companies should be sold, and at what price - not management or its advisors.
The Reporting Persons stated that while certainly the opinions of management and
its advisors should be made known, the ultimate decision should be left in the
hands of the stockholders/owners.
The Reporting Persons also noted that the deadline for delivering notice to
the Issuer regarding the intention to make proposals, including to nominate
individuals for election as directors, at the 2012 annual meeting of
shareholders of the Issuer is this Friday, and that the Reporting Persons were
currently contemplating whether to deliver such a notice.
With respect to each Direct Beneficial Owner and each Beneficial Owner,
other than as disclosed in this Notice, neither such Direct Beneficial Owner nor
such Beneficial Owner: (i) owns beneficially or holds of record any shares of
capital stock, other securities or indebtedness of the Corporation or any of its
subsidiaries; (ii) owns beneficially or holds of record any Derivative
Instrument (as such term is defined in the Bylaws); or (iii) holds or
beneficially holds any short interest in any shares of capital stock, other
securities or indebtedness of the Corporation or any of its subsidiaries. Other
than as disclosed in this Notice, there has been no direct or indirect
compensation or other material monetary agreements, arrangements or
understandings during the past three years, or any other material relationships,
in each case between or among any Direct Beneficial Owner or Beneficial Owner,
on the one hand, and each Nominee, and such Nominee's affiliates and associates,
on the other hand.
The information set forth in this Notice includes all information required
by the Bylaws regarding Stockholder Associated Persons (as such term is defined
in Article II, Section 10(a)(iii) of the Bylaws) of the Record Holder.
The Annexes and all attachments thereto are hereby incorporated into and
made a part of this Notice. Accordingly, all matters disclosed in any part of
this Notice, including the Annexes and all attachments thereto should be deemed
disclosed for all purposes of this Notice. All upper case terms appearing in the
Annexes and all attachments thereto that are not defined in such Annexes and
attachments shall have the meanings given in the body of this Notice or the
Annexes, as applicable.
Information is set forth herein as of the close of business on February 16,
2012. Except as required by Article II, Section 10 of the Bylaws, neither the
delivery of this Notice nor any delivery by any Direct Beneficial Owner,
Beneficial Owner or Nominee of additional information to the Corporation from
and after the date hereof shall be deemed to constitute an admission by any
Direct Beneficial Owner, Beneficial Owner, Nominee, or any of their respective
affiliates (if any), that such delivery is required or that each and every item
or any item of information is required or as to the legality or enforceability
of any notice requirement or any other matter, or a waiver by any Direct
Beneficial Owner, Beneficial Owner, Nominee, or any of their respective
affiliates (if any), of their right to contest or challenge, in any way, the
validity or enforceability of any notice requirement or any other matter
(including actions taken by the Board in anticipation of, or following receipt
of, this Notice). Furthermore, this Notice assumes that the Board will nominate
a total of nine director nominees for election to the Board at the Annual
Meeting and if the Board (i) increases the number of directors to be nominated
and elected at the Annual Meeting or a special meeting called for a similar
purpose, the Record Holder reserves the right to add additional director
nominees in respect of each such additional directorship or (ii) decreases the
number of directors to be nominated and elected at the Annual Meeting or a
special meeting called for a similar purpose, the Record Holder reserves the
right to remove director nominees from the Slate in respect of each such
decreased directorship. In the event any statement or other information in this
Notice is not correct, or to the extent any applicable information has been
omitted from this Notice, the Direct Beneficial Owners, Beneficial Owners and
Nominees reserve the right to correct and/or supplement any such statement or
other information set forth in this Notice.
[Signature page follows]
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, its general partner
By: Barberry Corp., its sole member
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Dated: February 16, 2012
ICAHN PARTNERS LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Dated: February 16, 2012
ICAHN PARTNERS MASTER FUND LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Dated: February 16, 2012
ICAHN PARTNERS MASTER FUND II L.P.
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Dated: February 16, 2012
ICAHN PARTNERS MASTER FUND III L.P.
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Dated: February 16, 2012
[Signature page to Notice of Intent to Nominate Persons for Election as
Directors at the 2012 Annual Meeting of Stockholders of CVR Energy, Inc.]
ANNEX A
SECURITY OWNERSHIP OF DIRECT BENEFICIAL OWNERS
(1) TITLE (2) NAME OF (3) AMOUNT OF (4) PERCENT
OF BENEFICIAL BENEFICIAL OF
CLASS OWNER (1) OWNERSHIP CLASS (2)
----- ---------- ---------- -------
Common Stock, High River 2,516,845 2.91%
par value
$0.01 per
share ("Shares")
Shares Icahn Partners 3,928,395 4.54%
Shares Icahn Master 4,089,286 4.72%
Shares Icahn Master II 1,423,232 1.64%
Shares Icahn Master III 626,469 0.72%
_________________________
(1) Please note that each stockholder listed in this table is, as of February
16, 2012, the direct beneficial owner of the Shares set forth under the
heading "(3) Amount of Beneficial Ownership" and that indirect beneficial
ownership of Shares is described below in the text of this Annex A under
the heading "Description of Beneficial Ownership and Beneficial Owners."
(2) Please note that percentages of ownership set forth in this column were
calculated based on the 86,573,498 Shares stated to be outstanding as of
November 1, 2011 by the Corporation in the Corporation's Form 10-Q filed
for the quarterly period ended September 30, 2011.
DESCRIPTION OF BENEFICIAL OWNERSHIP AND BENEFICIAL OWNERS
Barberry Corp., a Delaware corporation ("Barberry"), is the sole member of
Hopper Investments LLC, a Delaware limited liability company ("Hopper"), which
is the general partner of High River. Beckton Corp., a Delaware corporation
("Beckton") is the sole stockholder of Icahn Enterprises G.P. Inc., a Delaware
corporation ("Icahn Enterprises GP"), which is the general partner of Icahn
Enterprises Holdings L.P., a Delaware limited partnership ("Icahn Holdings").
Icahn Holdings is the sole member of IPH GP LLC, a Delaware limited liability
company ("IPH"), which is the general partner of Icahn Capital L.P., a Delaware
limited partnership ("Icahn Capital"). Icahn Capital is the general partner of
each of Icahn Onshore LP, a Delaware limited partnership ("Icahn Onshore") and
Icahn Offshore LP, a Delaware limited partnership ("Icahn Offshore"). Icahn
Onshore is the general partner of Icahn Partners. Icahn Offshore is the general
partner of each of Icahn Master, Icahn Master II and Icahn Master III. Each of
Barberry and Beckton is 100 percent owned by Carl C. Icahn ("Mr. Icahn," and
collectively with Barberry, Hopper, Beckton, Icahn Enterprises GP, Icahn
Holdings, IPH, Icahn Capital, Icahn Onshore, Icahn Offshore, the "Beneficial
Owners" and each of them a "Beneficial Owner." As such, Mr. Icahn is in a
position indirectly to determine the investment and voting decisions made by
each of the Direct Beneficial Owners and the Beneficial Owners.
The principal business address of each of (i) Icahn Offshore, Icahn
Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP and Beckton is
White Plains Plaza, 445 Hamilton Avenue - Suite 1210, White Plains, NY 10601 and
(ii) Mr. Icahn, Barberry and Hopper is c/o Icahn Capital LP, 767 Fifth Avenue,
46th Floor, New York, NY 10153.
Barberry is primarily engaged in the business of serving as the sole member
of Hopper and investing in securities. Hopper is primarily engaged in the
business of serving as the general partner of High River and investing in
securities. Icahn Offshore is primarily engaged in the business of serving as
the general partner of each of Icahn Master, Icahn Master II and Icahn Master
III. Icahn Onshore is primarily engaged in the business of serving as the
general partner of Icahn Partners. Icahn Capital is primarily engaged in the
business of serving as the general partner of each of Icahn Offshore and Icahn
Onshore. IPH is primarily engaged in the business of serving as the general
partner of Icahn Capital. Icahn Holdings is primarily engaged in the business of
holding direct or indirect interests in various operating businesses. Icahn
Enterprises GP is primarily engaged in the business of serving as the general
partner of each of Icahn Enterprises and Icahn Holdings. Beckton is primarily
engaged in the business of holding the capital stock of Icahn Enterprises GP.
Mr. Carl C. Icahn is primarily engaged in serving as (i) Chief Executive Officer
of Icahn Capital LP, a wholly owned subsidiary of Icahn Enterprises, through
which Mr. Icahn manages various private investment funds, including Icahn
Partners, Icahn Master, Icahn Master II and Icahn Master III, (ii) Chairman of
the Board of Icahn Enterprises GP, the general partner of Icahn Enterprises
L.P., a NASDAQ listed diversified holding company engaged in a variety of
businesses, including investment management, automotive, gaming, railcar, food
packaging, metals, real estate and home fashion, and (iii) Chairman of the Board
and a director of Starfire Holding Corporation ("Starfire"), a holding company
engaged in the business of investing in and/or holding securities of various
entities, and as Chairman of the Board and a director of various of Starfire's
subsidiaries.
The Direct Beneficial Owners and the Beneficial Owners may be deemed to
beneficially own, in the aggregate, 12,584,227 Shares, representing
approximately 14.54% of the Corporation's outstanding Shares (based upon the
86,573,498 Shares stated to be outstanding as of November 1, 2011 by the
Corporation in the Corporation's Form 10-Q filed for the quarterly period ended
September 30, 2011).
High River has sole voting power and sole dispositive power with regard to
2,516,845 Shares. Each of Hopper, Barberry and Mr. Icahn has shared voting power
and shared dispositive power with regard to such Shares. Icahn Partners has sole
voting power and sole dispositive power with regard to 3,928,395 Shares. Each of
Icahn Onshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton
and Mr. Icahn has shared voting power and shared dispositive power with regard
to such Shares. Icahn Master has sole voting power and sole dispositive power
with regard to 4,089,286 Shares. Each of Icahn Offshore, Icahn Capital, IPH,
Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn has shared voting
power and shared dispositive power with regard to such Shares. Icahn Master II
has sole voting power and sole dispositive power with regard to 1,423,232
Shares. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn has shared voting power and shared
dispositive power with regard to such Shares. Icahn Master III has sole voting
power and sole dispositive power with regard to 626,469 Shares. Each of Icahn
Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and
Mr. Icahn has shared voting power and shared dispositive power with regard to
such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their relationships to
High River, may be deemed to indirectly beneficially own the 2,516,845 Shares
which High River directly beneficially owns. Each of Icahn Onshore, Icahn
Capital, IPH, Icahn Holdings, Icahn Enterprises GP, Beckton and Mr. Icahn, by
virtue of their relationships to Icahn Partners, may be deemed to indirectly
beneficially own the 3,928,395 Shares which Icahn Partners directly beneficially
owns. Each of Icahn Offshore, Icahn Capital, IPH, Icahn Holdings, Icahn
Enterprises GP, Beckton and Mr. Icahn, by virtue of their relationships to Icahn
Master, Icahn Master II and Icahn Master III, may be deemed to indirectly
beneficially own the 6,138,987 Shares which Icahn Master, Icahn Master II and
Icahn Master III directly beneficially own.
TWO YEAR SUMMARY TABLE:
The following table indicates the date of each purchase and sale of Shares,
as well as the exercise of call options, by Mr. Icahn and his affiliates within
the past two years, and the number of Shares in each such purchase and sale.
NAME DATE SHARES PURCHASED
---- ---- ----------------
High River 12/05/2011 145,898
High River 12/06/2011 144,102
High River 12/07/2011 140,000
High River 12/08/2011 140,000
High River 12/09/2011 108,988
High River 12/05/2011 87,000
High River 02/06/2012 386,975*
High River 02/06/2012 1,363,882*
Icahn Partners 12/05/2011 229,090
Icahn Partners 12/06/2011 226,271
Icahn Partners 12/07/2011 219,829
Icahn Partners 12/08/2011 219,829
Icahn Partners 12/09/2011 171,133
Icahn Partners 12/05/2011 136,609
Icahn Partners 02/06/2012 604,006*
Icahn Partners 02/06/2012 2,121,628*
Icahn Master 12/05/2011 238,365
Icahn Master 12/06/2011 235,431
Icahn Master 12/07/2011 228,730
Icahn Master 12/08/2011 228,729
Icahn Master 12/09/2011 178,062
Icahn Master 12/05/2011 142,139
Icahn Master 02/06/2012 628,745*
Icahn Master 02/06/2012 2,209,085*
Icahn Master II 12/05/2011 80,641
Icahn Master II 12/06/2011 79,650
Icahn Master II 12/07/2011 77,381
Icahn Master II 12/08/2011 77,382
Icahn Master II 12/09/2011 60,240
Icahn Master II 12/05/2011 48,088
Icahn Master II 02/06/2012 218,829*
Icahn Master II 02/06/2012 781,021*
Icahn Master III 12/05/2011 35,494
Icahn Master III 12/06/2011 35,058
Icahn Master III 12/07/2011 34,060
Icahn Master III 12/08/2011 34,060
Icahn Master III 12/09/2011 26,516
Icahn Master III 12/05/2011 21,164
Icahn Master III 02/06/2012 96,322*
Icahn Master III 02/06/2012 343,795*
_________________________
* The Direct Beneficial Owner acquired these Shares upon the exercise of
call options as described on Attachment I-A to this Annex A.
Shares purchased by each of the Direct Beneficial Owners are maintained in
margin accounts that include positions in securities in addition to the Shares.
As of February 16, 2012, the indebtedness of (i) High River's margin accounts
was approximately $168,907,377, (ii) Icahn Partners' margin accounts was
approximately $234,662,467, (iii) Icahn Master's margin accounts was
approximately $383,065,732, (iv) Icahn Master II's margin accounts was
approximately $85,156,735, and (v) Icahn Master III's margin accounts was
approximately $37,216,903.
ANNEX A
ATTACHMENT 1-A
The following are American call options purchased by the Direct Beneficial
Owners, which were written by UBS AG with a $12.00 strike price and an
expiration date of December 12, 2013, and which provided for physical
settlement. These are further described in the chart set forth below. On
February 6, 2012, the Direct Beneficial Owners exercised all of their respective
call options.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
High River 12/12/2011 53,000 338,511.00
High River 12/13/2011 40,000 271,432.00
High River 01/03/2012 240,000 1,834,272.00
High River 01/04/2012 145,180 1,153,063.11
High River 01/05/2012 248,681 2,009,466.82
High River 01/06/2012 140,000 1,222,032.00
High River 01/09/2012 97,021 847,769.50
High River 01/10/2012 200,000 1,791,900.00
High River 01/11/2012 200,000 1,982,300.00
Icahn Partners 12/12/2011 83,222 531,538.91
Icahn Partners 12/13/2011 62,807 426,195.74
Icahn Partners 01/03/2012 366,556 2,801,514.20
Icahn Partners 01/04/2012 226,603 1,799,749.01
Icahn Partners 01/05/2012 388,151 3,136,454.16
Icahn Partners 01/06/2012 218,519 1,907,408.65
Icahn Partners 01/09/2012 151,434 1,323,230.29
Icahn Partners 01/10/2012 312,168 2,796,869.20
Icahn Partners 01/11/2012 312,168 3,094,053.13
Icahn Master 12/12/2011 86,591 553,056.72
Icahn Master 12/13/2011 65,350 443,452.03
Icahn Master 01/03/2012 382,201 2,921,085.80
Icahn Master 01/04/2012 235,884 1,873,461.49
Icahn Master 01/05/2012 404,048 3,264,909.86
Icahn Master 01/06/2012 227,466 1,985,505.22
Icahn Master 01/09/2012 157,638 1,377,440.84
Icahn Master 01/10/2012 324,953 2,911,416.40
Icahn Master 01/11/2012 324,954 3,220,781.57
Icahn Master II 12/12/2011 29,292 187,088.00
Icahn Master II 12/13/2011 22,110 150,034.04
Icahn Master II 01/03/2012 146,674 1,121,000.05
Icahn Master II 01/04/2012 82,096 652,031.06
Icahn Master II 01/05/2012 140,625 1,136,320.31
Icahn Master II 01/06/2012 79,168 691,041.64
Icahn Master II 01/09/2012 54,864 479,401.63
Icahn Master II 01/10/2012 113,096 1,013,283.61
Icahn Master II 01/11/2012 113,096 1,120,951.00
Icahn Master III 12/12/2011 12,895 82,360.36
Icahn Master III 12/13/2011 9,733 66,046.19
Icahn Master III 01/03/2012 64,569 493,487.95
Icahn Master III 01/04/2012 36,137 287,010.90
Icahn Master III 01/05/2012 61,899 500,174.87
Icahn Master III 01/06/2012 34,847 304,172.49
Icahn Master III 01/09/2012 24,150 211,022.70
Icahn Master III 01/10/2012 49,783 446,030.79
Icahn Master III 01/11/2012 49,782 493,414.29
The following are American call options purchased by the Direct Beneficial
Owners, which were written by Societe Generale with a $14.00 strike price and an
expiration date of April 11, 2012, and which provided for physical settlement.
These are further described in the chart set forth below. On February 6, 2012,
the Direct Beneficial Owners exercised all of their respective call options.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
High River 01/11/2012 20,000 148,200.00
High River 01/12/2012 366,975 2,981,671.88
Icahn Partners 01/11/2012 31,216 231,310.56
Icahn Partners 01/12/2012 572,790 4,653,918.75
Icahn Master 01/11/2012 32,495 240,787.95
Icahn Master 01/12/2012 596,250 4,844,531.25
Icahn Master II 01/11/2012 11,310 83,807.10
Icahn Master II 01/12/2012 207,519 1,686,091.88
Icahn Master III 01/11/2012 4,979 36,894.39
Icahn Master III 01/12/2012 91,343 742,161.88
ANNEX A
ATTACHMENT 1-B
The following are European put options which were written by the Direct
Beneficial Owners to UBS AG and had a $12.00 strike price and an expiration date
of the earlier of December 12, 2013 or the date on which the corresponding
American style call option described in Annex A, Attachment 1-A is exercised,
and provided for cash settlement only and are further described in the chart set
forth below. On February 6, 2012, the Direct Beneficial Owners exercised all of
the call options described in Annex A Attachment 1-A, and upon exercise of the
call options, all of the put options described below expired pursuant to their
terms.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
High River 12/12/2011 53,000 530.00
High River 12/13/2011 40,000 400.00
High River 01/03/2012 240,000 2,400.00
High River 01/04/2012 145,180 1,451.80
High River 01/05/2012 248,681 2,486.81
High River 01/06/2012 140,000 1,400.00
High River 01/09/2012 97,021 970.21
High River 01/10/2012 200,000 2,000.00
High River 01/11/2012 200,000 2,000.00
Icahn Partners 12/12/2011 83,222 832.22
Icahn Partners 12/13/2011 62,807 628.07
Icahn Partners 01/03/2012 366,556 3,665.56
Icahn Partners 01/04/2012 226,603 2,266.03
Icahn Partners 01/05/2012 388,151 3,881.51
Icahn Partners 01/06/2012 218,519 2,185.19
Icahn Partners 01/09/2012 151,434 1,514.34
Icahn Partners 01/10/2012 312,168 3,121.68
Icahn Partners 01/11/2012 312,168 3,121.68
Icahn Master 12/12/2011 86,591 865.91
Icahn Master 12/13/2011 65,350 653.50
Icahn Master 01/03/2012 382,201 3,822.01
Icahn Master 01/04/2012 235,884 2,358.84
Icahn Master 01/05/2012 404,048 4,040.48
Icahn Master 01/06/2012 227,466 2,274.66
Icahn Master 01/09/2012 157,638 1,576.38
Icahn Master 01/10/2012 324,953 3,249.53
Icahn Master 01/11/2012 324,954 3,249.54
Icahn Master II 12/12/2011 29,292 292.92
Icahn Master II 12/13/2011 22,110 221.10
Icahn Master II 01/03/2012 146,674 1,466.74
Icahn Master II 01/04/2012 82,096 820.96
Icahn Master II 01/05/2012 140,625 1,406.25
Icahn Master II 01/06/2012 79,168 791.68
Icahn Master II 01/09/2012 54,864 548.64
Icahn Master II 01/10/2012 113,096 1,130.96
Icahn Master II 01/11/2012 113,096 1,130.96
Icahn Master III 12/12/2011 12,895 128.95
Icahn Master III 12/13/2011 9,733 97.33
Icahn Master III 01/03/2012 64,569 645.69
Icahn Master III 01/04/2012 36,137 361.37
Icahn Master III 01/05/2012 61,899 618.99
Icahn Master III 01/06/2012 34,847 348.47
Icahn Master III 01/09/2012 24,150 241.50
Icahn Master III 01/10/2012 49,783 497.83
Icahn Master III 01/11/2012 49,782 497.82
The following are European put options which were written by the Direct
Beneficial Owners to Societe Generale and had a $14.00 strike price and an
expiration date of the earlier of April 11, 2012 or the date on which the
corresponding American style call option described in Annex A, Attachment 1-A is
exercised, and provided for cash settlement only and are further described in
the chart set forth below. On February 6, 2012, the Direct Beneficial Owners
exercised all of the call options described in Annex A Attachment 1-A, and upon
exercise of the call options, all of the put options described below expired
pursuant to their terms.
NAME DATE QUANTITY OPTION PREMIUM PAID ($)
---- ---- -------- -----------------------
High River 01/11/2012 20,000 200.00
High River 01/12/2012 366,975 3,669.75
Icahn Partners 01/11/2012 31,216 312.16
Icahn Partners 01/12/2012 572,790 5,727.90
Icahn Master 01/11/2012 32,495 324.95
Icahn Master 01/12/2012 596,250 5,962.50
Icahn Master II 01/11/2012 11,310 113.10
Icahn Master II 01/12/2012 207,519 2,075.19
Icahn Master III 01/11/2012 4,979 49.79
Icahn Master III 01/12/2012 91,343 913.43
ANNEX B
ATTACHMENT 1
INFORMATION ABOUT NOMINEES
--------------------------
NAME: Bob G. Alexander
AGE: 78
BUSINESS [REDACTED]
ADDRESS:
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Alexander has served as a Director of TransAtlantic Petroleum Corp., an
international Exploration and Production Company doing business in Turkey,
Poland, Bulgaria and Romania, since June, 2010. Mr. Alexander, a founder of
Alexander Energy Corporation, served as Chairman of the Board, President and
Chief Executive Officer from 1980 to 1996. Alexander Energy merged with National
Energy Group, Inc., an oil and gas property management company, in 1996 and Mr.
Alexander served as President and Chief Executive Officer from 1998 to 2006.
National Energy Group was previously indirectly controlled by Carl C. Icahn.
From 1976 to 1980, Mr. Alexander served as Vice President and General Manager of
the Northern Division of Reserve Oil, Inc. and President of Basin Drilling
Corporation, both subsidiaries of Reserve Oil and Gas Company of Denver
Colorado. Mr. Alexander also served on the board of Quest Resource Corporation
from June to August 2008. Mr. Alexander has served on numerous committees with
the Independent Petroleum Association of America, the Oklahoma Independent
Petroleum Association and the State of Oklahoma Energy Commission. Mr. Alexander
received a Bachelor of Science degree in Geological Engineering in 1959 from the
University of Oklahoma.
ANNEX B
ATTACHMENT 2
INFORMATION ABOUT NOMINEES
--------------------------
NAME: SungHwan Cho
AGE: 37
BUSINESS Icahn Capital LP, 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Cho has been Senior Vice President and previously Portfolio Company
Associate at Icahn Enterprises L.P., an entity controlled by Carl C. Icahn since
October 2006. From 2004 to 2006, Mr. Cho served as Director of Finance for
Atari, Inc., a publisher of interactive entertainment products. From 1999 to
2002, Mr. Cho served as Director of Corporate Development and Director of
Product Development at Talk America, a telecommunications provider to small
business and residential customers. Previously, Mr. Cho was an investment banker
at Salomon Smith Barney in New York and Tokyo. He is a director of Take-Two
Interactive Software Inc, a publisher of interactive entertainment products; PSC
Metals Inc., a metal recycling company; American Railcar Industries, Inc., a
railcar manufacturing company; Viskase Companies, Inc., a meat casing company;
WestPoint International, LLC, a home textiles manufacturer; and XO
Communications, LLC, a competitive provider of telecom services. PSC Metals,
American Railcar Industries, Viskase Companies, WestPoint International and XO
Communications are each, directly or indirectly, controlled by Carl C. Icahn.
Mr. Icahn also has an interest in Take-Two Interactive Software through the
ownership of securities. Mr. Cho received a B.S. from Stanford University and an
MBA from New York University, Stern School of Business.
ANNEX B
ATTACHMENT 3
INFORMATION ABOUT NOMINEES
--------------------------
NAME: George Hebard
AGE: 38
BUSINESS 767 Fifth Avenue, 47th
ADDRESS: Floor, New York, NY 10153
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Since September 2011, George Hebard has been a Managing Director at Icahn
Capital LP, the entity through which Carl C. Icahn manages investment funds. He
provides investment management expertise on equity and debt investments across a
range of industries. Prior to joining Mr. Icahn, from 2005 to 2011, Mr. Hebard
served as a Managing Director at Blue Harbour Group, an investment firm in
Greenwich, Connecticut. Prior to Blue Harbour Group, Mr. Hebard served as
Managing Director at Ranger Partners from 2002 to 2003, and prior to Ranger
Partners, Mr. Hebard was an Associate at Icahn Associates Corp., from 1998 to
2002. Mr. Hebard has an MBA from INSEAD and an A.B. in Economics from Princeton
University.
ANNEX B
ATTACHMENT 4
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Vincent J. Intrieri
AGE: 55
BUSINESS Icahn Capital LP, 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Intrieri served as a Senior Managing Director of Icahn Capital
Management L.P. from August 8, 2007 until December 31, 2007. From January 1,
2008 to September 30, 2011, Mr. Intrieri served as a Senior Managing Director of
Icahn Capital L.P., the entity through which Carl C. Icahn managed third party
investment funds and since October 1, 2011, Mr. Intrieri has served as Senior
Vice President of Icahn Enterprises G.P. and Senior Managing Director of Icahn
Capital L.P. Since November 2004, Mr. Intrieri has been a Senior Managing
Director of Icahn Onshore LP, the general partner of Icahn Partners, and Icahn
Offshore, the general partner of Icahn Master, Icahn Master II and Icahn Master
III. Mr. Intrieri has served as a director of Icahn Enterprises G.P. Inc., the
general partner of Icahn Enterprises L.P. since July 2006. From November 2005 to
March 2011, Mr. Intrieri was a director of WestPoint International, Inc., a
manufacturer and distributor of home fashion consumer products. Mr. Intrieri
also serves on the board of directors of FederalMogul Corporation, a supplier of
automotive products. Since December 2007, Mr. Intrieri has been chairman of the
board and a director of PSC Metals, Inc. From December 2006 to June 2011, he was
a director of National Energy Group, Inc. Since January 1, 2005, Mr. Intrieri
has been Senior Managing Director of Icahn Associates Corp. and High River
Limited Partnership, entities primarily engaged in the business of holding and
investing in securities. From April 2005 through September 2008, Mr. Intrieri
served as the President and Chief Executive Officer of Philip Services
Corporation, an industrial services company. Since August 2005, Mr. Intrieri has
served as a director of American Railcar Industries, Inc., a company that is
primarily engaged in the business of manufacturing covered hopper and tank
railcars. From March 2005 to December 2005, Mr. Intrieri was a Senior Vice
President, the Treasurer and the Secretary of American Railcar Industries. Since
April 2003, Mr. Intrieri has been chairman of the board of directors and a
director of Viskase Companies, Inc., a producer of cellulosic and plastic
casings used in preparing and packaging processed meat products. Since March
2011, Mr. Intrieri has served as a director of Dynegy Inc., a company primarily
engaged in the production and sale of electric energy, capacity and ancillary
services. From November 2006 to November 2008, Mr. Intrieri served on the board
of directors of Lear Corporation, a global supplier of automotive seating and
electrical power management systems and components. From August 2008 through
September 2009, Mr. Intrieri was a director of WCI Communities, Inc., a
homebuilding company. Mr. Intrieri also serves on the board of directors of XO
Holdings, LLC, a telecommunications company. Since January 4, 2011, Mr. Intrieri
has been a director of Motorola Solutions, Inc., a provider of communication
products and services. WestPoint International, FederalMogul, PSC Metals,
National Energy, Philip Services, American Railcar Industries, Viskase Companies
and XO Holdings each are or previously were, directly or indirectly, controlled
by Carl C. Icahn. Mr. Icahn also has or previously had an interest in Dynegy,
Lear, WCI and Motorola Solutions through the ownership of securities. Mr.
Intrieri is a certified public accountant.
ANNEX B
ATTACHMENT 5
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Samuel Merksamer
AGE: 31
BUSINESS 767 Fifth Avenue, 47th
ADDRESS: Floor, New York, NY 10153
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Merksamer has served as an investment analyst at Icahn Capital LP, a
subsidiary of Icahn Enterprises L.P., since May 2008. Mr. Merksamer is
responsible for identifying, analyzing and monitoring investment opportunities
and portfolio companies for Icahn Capital. Mr. Merksamer serves as a director of
Dynegy Inc., Viskase Companies, Inc., American Railcar Industries Inc., PSC
Metals Inc. and Federal-Mogul Corporation. Viskase Companies, PSC Metals,
American Railcar Industries Inc. and Federal-Mogul are each, directly or
indirectly, controlled by Carl C. Icahn. Mr. Icahn also has an interest in
Dynegy Inc. through the ownership of securities. From 2003 until 2008, Mr.
Merksamer was an analyst at Airlie Opportunity Capital Management, a hedge fund
management company, where he focused on high yield and distressed investments.
Mr. Merksamer received an A.B. in Economics from Cornell University in 2002.
ANNEX B
ATTACHMENT 6
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Stephen Mongillo
AGE: 50
BUSINESS [REDACTED]
ADDRESS:
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Mongillo is a private investor. From 2009 to 2011, Mr. Mongillo served
as a director of American Railcar Industries, Inc. From January 2008 to January
2011, Mr. Mongillo served as a managing director of Icahn Capital LP, the entity
through which Mr. Carl Icahn managed third party investment funds. From March
2009 to January 2011, Mr. Mongillo served as a director of WestPoint
International Inc. Prior to joining Icahn Capital, Mr. Mongillo worked at Bear
Stearns for 10 years, most recently as a senior managing director overseeing the
leveraged finance group's efforts in the healthcare, real estate, gaming,
lodging, leisure, restaurant and education sectors. American Railcar Industries
and WestPoint International are each, directly or indirectly, controlled by Carl
C. Icahn. Mr. Mongillo received a B.A. from Trinity College and an M.B.A from
the Amos Tuck School of Business Administration at Dartmouth College.
ANNEX B
ATTACHMENT 7
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Daniel A. Ninivaggi
AGE: 47
BUSINESS Icahn Capital LP, 767 Fifth Avenue, 47th Floor
ADDRESS: New York, NY 10153
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Daniel A. Ninivaggi has served as President of Icahn Enterprises L.P. and
its general partner, Icahn Enterprises G.P. Inc., since April 5, 2010, and as
its Principal Executive Officer, or chief executive, since August 4, 2010. From
2003 until July 2009, Mr. Ninivaggi served in a variety of executive positions
at Lear Corporation, a global supplier of automotive seating and electrical
power management systems and components, including as General Counsel from 2003
through 2007, as Senior Vice President from 2004 until 2006, and most recently
as Executive Vice President and Chief Administrative Officer from 2006 to 2009.
Lear Corporation filed for bankruptcy in July 2009. Prior to joining Lear
Corporation, from 1998 to 2003, Mr. Ninivaggi was a partner with the law firm of
Winston & Strawn LLP, specializing in corporate finance, mergers and
acquisitions, and corporate governance. Mr. Ninivaggi also served as Of Counsel
to Winston & Strawn LLP from July 2009 to March 2010. From December 2009 to May
2011, Mr. Ninivaggi has also served as a director of CIT Group Inc., a bank
holding company. Mr. Ninivaggi also serves as a director of FederalMogul
Corporation, a supplier of automotive products, and XO Holdings, LLC, a
telecommunications company. Since December 2010, Mr. Ninivaggi has served as a
director of Motorola Mobility Holdings, Inc., a provider of mobile communication
devices, video and data delivery solutions. Since January 6, 2011, Mr. Ninivaggi
has also served as the Interim President and Interim Chief Executive Officer and
a director of Tropicana Entertainment Inc., a company that is primarily engaged
in the business of owning and operating casinos and resorts. Federal-Mogul, XO
Holdings and Tropicana Entertainment are each, directly or indirectly,
controlled by Carl C. Icahn. Mr. Icahn has or previously had interests in Lear,
CIT Group and Motorola Mobility through the ownership of securities.
ANNEX B
ATTACHMENT 8
INFORMATION ABOUT NOMINEES
----------------------------
NAME: James M. Strock
AGE: 55
BUSINESS [REDACTED]
ADDRESS:
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
James Strock has served in the public, private, and not-for-profit sectors,
and the military. His company, Serve to Lead, Inc., established in 1997
(previously James Strock & Co.), serves clients in various sectors in the United
States and in other nations. From 1991 to 1997, Mr. Strock served in Governor
Pete Wilson's cabinet as California's founding Secretary for Environmental
Protection. During this time he also served on the Intergovernmental Policy
Advisory Committee to the U.S. Trade Representative. In 1989, President George
H.W. Bush appointed, and the U.S. Senate confirmed, Mr. Strock to serve as
Assistant Administrator for Enforcement (chief law enforcement officer) of the
U.S. Environmental Protection Agency. Mr. Strock served as general counsel and
acting director of the U.S. Office of Personnel Management (the federal
government's human resources agency), member of the California State Personnel
Board, counsel to the U.S. Senate Environment & Public Works Committee, and a
lawyer in private practice. He is currently serving as co-chair of Arizona
Governor Jan Brewer's Solar Energy Advisory Task Force. He is a member of the
Council on Foreign Relations and the Authors Guild. James Strock received
training from the Harvard Negotiation Project, the American Arbitration
Association and other professional groups, and has served on the neutrals
rosters of state and federal courts. Mr. Strock has served on two corporate
boards: Enova Systems (advanced electric, hybrid-electric and fuel cell drive
systems; 2000-2004); and Thermatrix (flameless thermal oxidizer technologies,
1997-99). Thermatrix petitioned for bankruptcy reorganization in December 1999.
Mr. Strock has served on several not-for-profit boards, including the
Environmental Law Institute and the Theodore Roosevelt Association. Mr. Strock
holds degrees from Harvard College (A.B., Phi Beta Kappa) and Harvard Law School
(J.D.). He subsequently studied literature for a year at New College, Oxford, on
a Rotary Scholarship. In 1985 he received the Ross Essay Prize of the American
Bar Association. He served to captain in the USAR-JAGC.
ANNEX B
ATTACHMENT 9
INFORMATION ABOUT NOMINEES
----------------------------
NAME: Glenn R. Zander
AGE: 65
BUSINESS [REDACTED]
ADDRESS:
RESIDENCE [REDACTED]
ADDRESS:
PRINCIPAL OCCUPATION See below
OR EMPLOYMENT:
CITIZENSHIP: United States of America
Mr. Zander was the Chief Executive Officer, President and director of Aloha
Airgroup, Inc., a privately owned passenger and cargo transportation airline,
from 1994 to 2004. From 1990 to 1994, Mr. Zander served as Vice Chairman,
Co-Chief Executive Officer and director of Trans World Airlines, an
international airline. He also served as Chief Financial Officer of TWA within
that period. During 1992 and 1993, Mr. Zander served as the Chief Restructuring
Officer of TWA following its Chapter 11 bankruptcy in 1992 and its emergence
therefrom in 1993. From 2004 to 2009, Mr. Zander served as a director of
Centerplate, Inc., a provider of food/concession services at sports facilities
and convention centers in the United States and Canada. TWA was formerly
indirectly controlled by Carl C. Icahn.
ANNEX C
The written consent of each Nominee to, among other things, being named,
including as a nominee for election as a director of the Corporation, in the
proxy statement and to serve as a director if so elected is attached to this
Annex C. If the Corporation requests original signed statements of consents, the
Record Holder will provide them.
ANNEX C
ATTACHMENT 1
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 10, 2012
/s/ Bob G. Alexander
-----------------------
Name: Bob G. Alexander
ANNEX C
ATTACHMENT 2
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 13, 2012
/s/ SungHwan Cho
------------------
Name: SungHwan Cho
ANNEX C
ATTACHMENT 3
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 9, 2012
/s/ George Hebard
-------------------
Name: George Hebard
ANNEX C
ATTACHMENT 4
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 10, 2012
/s/ Vincent J. Intrieri
--------------------------
Name: Vincent J. Intrieri
ANNEX C
ATTACHMENT 5
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 10, 2012
/s/ Samuel Merksamer
----------------------
Name: Samuel Merksamer
ANNEX C
ATTACHMENT 6
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 14, 2012
/s/ Stephen Mongillo
----------------------
Name: Stephen Mongillo
ANNEX C
ATTACHMENT 7
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 10, 2012
/s/ Daniel A. Ninivaggi
--------------------------
Name: Daniel A. Ninivaggi
ANNEX C
ATTACHMENT 8
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 14, 2012
/s/ James M. Strock
----------------------
Name: James M. Strock
ANNEX C
ATTACHMENT 9
CONSENT OF NOMINEE
The undersigned hereby consents to being named, including as a nominee for
election as a director of CVR Energy, Inc. (the "Company"), in the proxy
statement to be filed with the Securities and Exchange Commission and
distributed to stockholders of the Company by High River Limited Partnership
("High River"), Icahn Partners LP ("Icahn Partners"), Icahn Partners Master Fund
LP ("Icahn Master"), Icahn Partners Master Fund II L.P. ("Icahn Master II"),
Icahn Partners Master Fund III L.P. ("Icahn Master III", and collectively with
High River, Icahn Partners, Icahn Master and Icahn Master II, the "Holders") and
in other materials in connection with the solicitation of proxies by the Holders
from stockholders of the Company to be voted at the 2012 annual meeting of
stockholders of the Company and any adjournment thereof, and further consents to
serve as a director of the Company, if so elected.
Dated: February 14, 2012
/s/ Glenn Zander
------------------
Name: Glenn Zander
ANNEX D
Attached to this Annex D is the form of agreement to be entered into by the
Nominees (other than Messrs. Cho, Hebard, Intrieri, Merksamer and Ninivaggi) and
an affiliate of the Record Holder pursuant to which such affiliate has agreed to
pay certain fees to such Nominees and to indemnify such Nominees with respect to
certain costs incurred by such Nominees in connection with the proxy contest
relating to the Annual Meeting.
ICAHN CAPITAL LP
February __, 2012
To the undersigned potential nominee:
This will confirm our understanding as follows:
You agree that you are willing, should we so elect, to become a member of a
slate of nominees (the "Slate") to stand for election as directors of CVR
Energy, Inc. ("CVR") in connection with a proxy contest with management of CVR
in respect of the election of directors of CVR at the 2012 Annual Meeting of
Stockholders of CVR (the "Annual Meeting"), expected to be held on or about May
18, 2012, or a special meeting of stockholders of CVR called for a similar
purpose (the "Proxy Contest").
Icahn Capital LP ("Icahn") agrees to pay the costs of the Proxy Contest.
In addition, upon our filing of a preliminary proxy statement with the SEC,
which indicates that Icahn, or an affiliate thereof, intends to nominate you for
election at the Annual Meeting, you will be entitled to be paid $25,000 by Icahn
unless you are elected to serve as a director of CVR at the Annual Meeting or a
special meeting of stockholders of CVR called for a similar purpose or in
connection with a settlement of the Proxy Contest by Icahn and CVR, in which
case you will not receive any payment from Icahn in connection with the Proxy
Contest. Payment to you pursuant to this paragraph, if any, will be made by
Icahn, subject to the terms hereof, upon the earliest of (i) the certification
of the results of the election in respect of the Proxy Contest, (ii) the
settlement of the Proxy Contest by Icahn and CVR, or (iii) the withdrawal of the
Proxy Contest by Icahn.
You understand that it may be difficult, if not impossible, to replace
nominees who, such as yourself, have agreed to serve on the Slate and later
change their minds and determine not to seek election. Accordingly, the Slate is
relying upon your agreement to seek election. In that connection, you are being
supplied with a questionnaire in which you will provide Icahn with information
necessary for Icahn to make appropriate disclosure both to CVR and for use in
creating the proxy material to be sent to stockholders of CVR and to be filed
with the Securities and Exchange Commission. You have agreed that (i) you will
immediately complete and sign the questionnaire and return it to Jesse A. Lynn,
Assistant General Counsel, Icahn Enterprises LP, 767 Fifth Avenue, Suite 4700,
New York, NY 10153, Tel: (212) 702-4331, Fax: (917) 591-3310, Email:
jlynn@sfire.com and (ii) your responses to the questions contained therein will
be true and correct in all respects. In addition, you have agreed that,
concurrently with your execution of this letter, you will execute the attached
instrument directed to CVR informing CVR that you consent to being nominated by
Icahn, or an affiliate thereof, for election as a director of CVR and, if
elected, consent to serving as a director of CVR. Upon being notified that we
have chosen you, we may forward that consent and your completed questionnaire
(or summaries thereof) to CVR.
Icahn hereby agrees that, so long as you actually serve on the Slate, Icahn
will defend, indemnify and hold you harmless from and against any and all
losses, damages, penalties, judgments, awards, liabilities, costs, expenses and
disbursements (including, without limitation, reasonable attorneys' fees, costs,
expenses and disbursements) incurred by you in the event that (i) you become a
party, or are threatened to be made a party, to any civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal thereof
relating solely to your role as a nominee for director of CVR on the Slate (a
"Proceeding") or (ii) you are called to testify or give a deposition in any
Proceeding (whether or not you are a party or are threatened to be made a party
to such Proceeding), including, in each case, the advancement to you of all
reasonable attorneys' costs and expenses incurred by you in connection with any
Proceeding. Your right of indemnification hereunder shall continue (i) in the
event that Icahn determines to withdraw the Slate or remove you from the Slate
and (ii) after the election has taken place but only for events which occur
prior to such election and subsequent to the date hereof. Anything to the
contrary herein notwithstanding, Icahn is not indemnifying you for any action
taken by you or on your behalf which occurs prior to the date hereof or
subsequent to the Annual Meeting or such earlier time as you are no longer a
nominee of the Slate for election to CVR's Board of Directors or for any actions
taken by you as a director of CVR, if you are elected. Nothing herein shall be
construed to provide you an indemnity: (i) in the event you are found to have
engaged in a violation of any provision of state or federal law in connection
with the Proxy Contest unless you demonstrate that your action was taken in good
faith and in a manner you reasonably believed to be in or not opposed to the
best interests of electing the Slate; or (ii) if you acted in a manner which
constitutes gross negligence or willful misconduct. In the event that you shall
make any claim for indemnification hereunder, you shall promptly notify Icahn in
the event of any third-party claims actually made against you or known by you to
be threatened. In addition, with respect to any such claim, Icahn shall be
entitled to control your defense with counsel chosen by Icahn. Icahn shall not
be responsible for any settlement of any claim against you covered by this
indemnity without its prior written consent. However, Icahn may not enter into
any settlement of any such claim without your consent unless such settlement
includes a release of you from any and all liability in respect of such claim.
Each of us recognizes that should you be elected to the Board of Directors
of CVR all of your activities and decisions as a director will be governed by
applicable law and subject to your fiduciary duty to the stockholders of CVR
and, as a result, that there is, and can be, no agreement between you and Icahn
which governs the decisions which you will make as a director of CVR.
Should the foregoing agree with your understanding, please so indicate in
the space provided below, whereupon this letter will become a binding agreement
between us.
Very truly yours,
ICAHN CAPITAL LP
By: __________________________
Name: Edward E. Mattner
Title: Authorized Signatory
Agreed to and Accepted as
of the date first above written:
__________________________
Name:
FOR IMMEDIATE RELEASE
ICAHN ANNOUNCES TENDER OFFERFOR ALL OF THE OUTSTANDING SHARES OF CVR ENERGY
AT $30 PER SHARE IN CASH, PLUS CASH CONTINGENT VALUE RIGHT
ICAHN PROPOSES FULL SLATE OF 9 DIRECTORS FOR CVR ENERGY BOARD
CONTACT: SUSAN GORDON, (212) 702-4309
New York, New York, February 16, 2012 - Carl C. Icahn today announced a tender
offer through one or more of his affiliated companies for all of the outstanding
shares of common stock, and related stock purchase rights, of CVR Energy, Inc.
(the "Company"). Tendering shareholders will be paid $30 per share in cash, plus
a Contingent Value Right. The Contingent Value Right will entitle holders to an
additional payment, in cash, equal to the value that the Company is sold for in
excess of $30 per share. Mr. Icahn also announced his intent to nominate a slate
for all 9 directorships on the CVR Energy board of directors.
CVR ENERGY SHOULD BE SOLD
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As previously announced, Mr. Icahn believes that the Company should be put up
for sale. If the current Board puts the Company up for sale before the initial
expiration date of our tender offer (expected to be on or about March 23), then
Mr. Icahn reserves the right to withdraw the tender offer and proxy fight.
However, if the Company is not put up for sale, Mr. Icahn will proceed with the
tender offer and proxy fight, in an effort to elect a new Board that will have a
shareholder mandate to sell the Company.
THE TENDER OFFER
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Closing of the tender offer will not be subject to any due diligence or
financing conditions. The tender offer will be subject to there being validly
tendered and not withdrawn at least 35.76% of the issued and outstanding shares
of the Company. That number of shares, when added to the shares already owned by
the offeror and its affiliates, represents a majority of the issued and
outstanding shares of the Company. The tender offer will also be conditioned
upon the election of the Icahn slate of directors, the elimination of the
Company's poison pill (which the Icahn directors intend to do upon their
election), and other typical conditions. The tender offer will include
withdrawal rights so that a tendering shareholder can freely withdraw any shares
prior to the acceptance of such shares for payment under the tender offer.
THE CONTINGENT VALUE RIGHT
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In the event that a definitive agreement for the sale of the Company is executed
within nine months following the closing of the tender offer, all tendering
shareholders whose shares were purchased in the tender offer will receive an
additional cash payment, through a non-transferable Contingent Value Right,
equal to the amount (whether in cash or securities) in excess of $30 per share
for which the Company is sold. Shareholders whose shares are purchased in the
tender offer are thus guaranteed a minimum payment of $30 per share - plus
upside potential.
ICAHN SAYS: LET THE SHAREHOLDERS DECIDE
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Mr. Icahn stated: "We are launching this tender offer and proxy fight to provide
shareholders the opportunity to obtain the value that we believe can be obtained
in a sale of the Company. We are offering shareholders a minimum of $30 per
share now, a new board with a shareholder mandate to put the Company up for
sale, and the upside from a sale of the Company in the form of the Contingent
Value Right. This is a win-win-win for shareholders."
WHY WE BELIEVE THE CONTINGENT VALUE RIGHT COULD DELIVER EVEN MORE VALUE
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Mr. Icahn believes that a sale of the Company should attract the interest of
potential buyers such as Western Refining, Inc., HollyFrontier, Tesoro Corp.,
Valero, Marathon Petroleum Corp. or ConocoPhilips, among others. MR. ICAHN
INTENDS TO INITIATE DIALOGUES WITH A NUMBER OF THESE POTENTIAL ACQUIRERS DURING
THE NEXT SEVERAL WEEKS. Based on the analysis below, Mr. Icahn believes that a
price of at least $37 per share should be achieved in such a sale. A price of
$37 would represent a premium of 34.1% over the closing price of $27.60 on
February 15, 2012. At that price, the Company's market capitalization would be
$3.25 billion, implying an enterprise value of $2.79 billion for the refinery
assets (after backing out the tax-adjusted market value of the Company's CVR
Partners units)(1). The Company's refineries generated $809 million of LTM
EBITDA, implying a 3.4x EV/EBITDA multiple, which we believe is a modest
discount to current comparable trading multiples (2). As a result, Mr. Icahn
believes the Contingent Value Right could provide at least an additional $7.00
of cash per share to tendering shareholders in the context of a sale of the
Company based upon public comparables, before considering synergies. The
Company's management has projected 2012 synergies of $32.4 million from the
Wynnewood acquisition. Further, we believe that an acquirer of the Company
should be able to realize higher synergies, largely due to corporate cost
savings and other potential operating synergies, as well as a greater ability to
hedge high crack spreads. In light of the foregoing, we believe that the
combined value of the tender offer cash price of $30 per share and the
Contingent Value Right offer a substantial value opportunity to shareholders
beyond the latest closing market price of $27.60.
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(1) Based on the closing price for CVR Partners of $29.00 per unit on February
15, 2012, CVR's 50.92 million units would be valued at $1.48 billion.
Adjusted for taxes of 40% (assuming zero cost basis), the after-tax value
for the units would be $886 million. The Company's pro forma net debt is
$431 million (based on net debt excluding CVR Partners as of September 30,
2011 plus the $607 million closing price for Wynnewood). Subtracting $886
million for CVR Partners and adding $431 million of net debt to the market
capitalization of $3.25 billion yields an adjusted enterprise value of
$2.79 billion.
(2) As of February 15, 2012, EV/LTM EBITDA multiples were 3.5x for Valero,
3.5x for Marathon, 4.7x for HollyFrontier, and 3.9x for Western Refining
(per Bloomberg).
NOTICE TO INVESTORS
CARL C. ICAHN'S AFFILIATES HAVE NOT YET COMMENCED THE TENDER OFFER REFERRED TO
IN THIS PRESS RELEASE. UPON THE COMMENCEMENT OF ANY TENDER OFFER, THESE ENTITIES
WILL FILE A TENDER OFFER STATEMENT WITH THE SECURITIES AND EXCHANGE COMMISSION.
THOSE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER AND
SHOULD BE READ BY SECURITY HOLDERS. IF THE TENDER OFFER IS COMMENCED, SECURITY
HOLDERS WILL BE ABLE TO OBTAIN AT NO CHARGE (I) THE TENDER OFFER STATEMENT AND
OTHER DOCUMENTS WHEN THEY BECOME AVAILABLE ON THE SECURITIES AND EXCHANGE
COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV, AND (II) THE OFFER TO PURCHASE AND
ALL RELATED DOCUMENTS FROM THE OFFERORS.
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 TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 16,
2012.