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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(RULE 14D-100) TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
CVR ENERGY, INC.
(NAME OF SUBJECT COMPANY (ISSUER))
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II L.P.
Icahn Partners Master Fund III L.P.
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital L.P.
IPH GP LLC
Icahn Enterprises Holdings L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
(NAMES OF FILING PERSONS (OFFEROR)
COMMON STOCK, PAR VALUE $0.01
(TITLE OF CLASS OF SECURITIES)
12662P108
(CUSIP NUMBER OF CLASS OF SECURITIES)
KEITH L. SCHAITKIN, ESQ.
GENERAL COUNSEL
ICAHN CAPITAL LP
767 FIFTH AVENUE, 47TH FLOOR
NEW YORK, NEW YORK 10153
(212) 702-4380
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF FILING PERSONS)
CALCULATION OF FILING FEE
Transaction Valuation: Not applicable Amount of Filing Fee: Not applicable
/ / Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount previously paid: Not applicable Filing Party: Not applicable
Form or registration no.: Not applicable Date Filed: Not applicable
/X/ Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
/X/ third-party tender offer subject to Rule 14d-1.
/ / issuer tender offer subject to Rule 13e-4.
/ / going-private transaction subject to Rule 13e-3.
/ / amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: / /
On February 16, 2012, Carl C. Icahn issued a press release relating to CVR
Energy, Inc., a copy of which is filed as Exhibit I hereto and is incorporated
herein by reference.
THE ATTACHED PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT
CONSTITUTE AN OFFER TO PURCHASE NOR A SOLICITATION FOR ACCEPTANCE OF THE OFFER
DESCRIBED THEREIN. THE OFFER WILL BE MADE ONLY PURSUANT TO THE OFFER TO
PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS THAT CARL C. ICAHN AND
CERTAIN OF HIS AFFILIATES (THE "ICAHN GROUP") WILL DISTRIBUTE TO HOLDERS OF
COMMON STOCK OF CVR ENERGY, INC. AFTER THESE DOCUMENTS ARE FILED WITH THE SEC AS
EXHIBITS TO ITS SCHEDULE TO. HOLDERS OF COMMON STOCK SHOULD READ CAREFULLY THE
OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND RELATED MATERIALS BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION, INCLUDING THE VARIOUS TERMS OF, AND CONDITIONS
TO, THE OFFER. AFTER THE ICAHN GROUP FILES ITS SCHEDULE TO AND ASSOCIATED
EXHIBITS WITH THE SEC, HOLDERS OF COMMON STOCK MAY OBTAIN A FREE COPY OF THE
TENDER OFFER STATEMENT ON SCHEDULE TO, THE OFFER TO PURCHASE, LETTER OF
TRANSMITTAL AND OTHER DOCUMENTS THAT THE ICAHN GROUP WILL BE FILING WITH THE SEC
AT THE SEC'S WEB SITE AT WWW.SEC.GOV.
Exhibit I
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
-------------------------
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
----------------
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
--------------------------
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
---------------------------------------
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
-----------------------------------------------------------------------
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.
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.
_________________________
(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).