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