UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
ICAHN ENTERPRISES L.P.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3398766
(State of incorporation or organization) (I.R.S. Employer Identification No.)
767 FIFTH AVENUE, SUITE 4700, NEW YORK, NY 10153
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form relates:
Not applicable
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
DEPOSITARY UNITS REPRESENTING THE NASDAQ STOCK MARKET LLC
LIMITED PARTNER INTERESTS
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
(Title of class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Form 8-A is being filed in connection with Icahn Enterprises L.P.'s (the
"Company") listing of its depositary units representing limited partner
interests ("depositary units") pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended, on the NASDAQ Global Select Market commencing
on or about December 12, 2011. The Company is voluntarily delisting the
depositary units from the New York Stock Exchange effective as of the close of
business on or about December 9, 2011.
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The securities to be registered hereby are the depositary units. The Company is
a master limited partnership formed in Delaware on February 17, 1987. Our
general partner is Icahn Enterprises G.P. Inc. (the "General Partner"), a
Delaware corporation, which is indirectly wholly owned by Carl C. Icahn. We own
our businesses and conduct our investment activities through a subsidiary
limited partnership, Icahn Enterprises Holdings L.P. ("Holdings"), in which we
own a 99% limited partnership interest, and its subsidiaries. The General
Partner also acts as the general partner for Holdings. The General Partner has a
1% general partnership interest in each of us and Holdings.
As of December 9, 2011, affiliates of Mr. Icahn beneficially owned 79,238,262
depositary units, representing approximately 92.6% of the outstanding depositary
units. In light of this ownership position, the board of directors of the
General Partner has determined that we are a "controlled company" for the
purposes of the listing standards of both NYSE and NASDAQ and therefore are not
required to have a majority of independent directors or to have compensation and
nominating committees consisting entirely of independent directors. The General
Partner's board of directors presently consists of three independent directors
and the audit committee consists entirely of independent directors.
The following is a summary of the material provisions of the amended and
restated agreement of limited partnership, dated as of May 12, 1987, as amended
(the "Partnership Agreement"), and the depositary agreement, dated as July 1,
1987, as amended (the "Depositary Agreement"), entered into by and among the
Company, the Registrar and Transfer Company, as depositary (the "Depositary"),
and the unitholders, insofar as they relate to the material terms of the
depositary units, copies of which are incorporated herein by reference. This
summary does not purport to be complete and is qualified in its entirety by
reference thereto. The Delaware Revised Uniform Limited Partnership Act (the
"Delaware Act"), as amended, also affects the terms of the depositary units.
DESCRIPTION OF DEPOSITARY UNITS
GENERAL
The depositary units represent limited partner interests in the Company. The
percentage interest in the Company represented by a depositary unit is equal to
the ratio it bears at the time of such determination to the total number of
depositary units in the Company (including any undeposited depositary units)
outstanding, multiplied by 99%, which is the aggregate percentage interest in
the Company of all holders of depositary units. Each depositary unit evidences
entitlement to a portion of the Company's distributions and an allocation of the
Company's net income and net loss, as determined in accordance with the
Partnership Agreement. We are authorized to issue additional depositary units or
other securities from time to time to unitholders or additional investors
without the consent or approval of holders of depositary units ("unitholders").
There is no limit to the number of depositary units or additional classes of
securities, including preferred units, that may be issued. The board of
directors of the General Partner has the power, without any further action by
the unitholders, to issue securities with such designations, preferences and
relative, participating or other special rights, powers and duties, including
rights, powers and duties senior to existing classes of depositary units. The
depositary units have no preemptive rights.
TRANSFER OF DEPOSITARY UNITS
Until a depositary unit has been transferred on the books of the Depositary, we
and the Depositary will treat the record holder of the unit as the absolute
owner for all purposes. A transfer of depositary units will not be recognized by
the Depositary or us unless and until the transferee of the depositary units, or
a subsequent transferee, executes and delivers a transfer application to the
Depositary. Transfer applications appear on the back of each depositary receipt
and also will be furnished at no charge by the Depositary upon receipt of a
request for it. By executing and delivering a transfer application to the
Depositary, a subsequent transferee automatically requests admission as a
substituted unitholder in the Company, agrees to be bound by the terms and
conditions of the Partnership Agreement and grants a power of attorney to the
General Partner.
On a monthly basis, the Depositary will, on behalf of subsequent transferees who
have submitted transfer applications, request the General Partner to admit such
subsequent transferees as substituted limited partners of the Company. If the
General Partner consents to such substitution, a subsequent transferee will be
admitted to the Company as a substituted limited partner upon the recordation of
such subsequent transferee's name in our books and records. Upon admission,
which is in the sole discretion of the General Partner, it will be entitled to
all of the rights of a limited partner under the Delaware Revised Uniform
Limited Partnership Act (the "Delaware Act"), and pursuant to the Partnership
Agreement.
A subsequent transferee will, after submitting a transfer application to the
Depositary but before being admitted to the Company as a substituted unitholder
of record, have the rights of an assignee under the Delaware Act and the
Partnership Agreement, including the right to receive its pro rata share of
distributions. A subsequent transferee who does not execute and deliver a
transfer application to the Depositary will not be recognized as the record
holder of depositary units and will only have the right to transfer or assign
its depositary units to a purchaser or other transferee. Therefore, such
subsequent transferee will neither receive distributions from the Company nor be
entitled to vote on partnership matters or any other rights to which record
holders of depositary units are entitled under the Delaware Act or pursuant to
the Partnership Agreement. Distributions made in respect of the depositary units
held by such subsequent transferees will continue to be paid to the transferor
of such depositary units.
A subsequent transferee will be deemed to be a party to the Depositary Agreement
and to be bound by its terms and conditions whether or not such subsequent
transferee executes and delivers a transfer application to the Depositary. A
transferor will have no duty to ensure the execution of a transfer application
by a subsequent transferee and will have no liability or responsibility if such
subsequent transferee neglects or chooses not to execute and deliver the
transfer application to the Depositary. Whenever depositary units are
transferred, the transfer application requires that a subsequent transferee
answer a series of questions. The required information is designed to provide us
with the information necessary to prepare our tax information return.
WITHDRAWAL OF DEPOSITARY UNITS FROM DEPOSIT
A unitholder may withdraw from the Depositary the depositary units represented
by its depositary receipts upon written request and surrender of the depositary
receipts evidencing the depositary units in exchange for a certificate issued by
us evidencing the same number of depositary units. A subsequent transferee is
required to become a unitholder of record before being entitled to withdraw
depositary units from the Depositary. Depositary units which have been withdrawn
from the Depositary, and therefore are not evidenced by depositary receipts, are
not transferable except upon death, by operation of law, by transfer to us or
redeposit with the Depositary. A holder of depositary units withdrawn from
deposit will continue to receive its respective share of distributions and
allocations of net income and losses pursuant to the Partnership Agreement. In
order to transfer depositary units withdrawn from the Depositary other than upon
death, by operation of law or to the Company, a unitholder must redeposit the
certificate evidencing such withdrawn depositary units with the Depositary and
request issuance of depositary receipts representing such depositary units,
which depositary receipts then may be transferred. Any redeposit of such
withdrawn depositary units with the Depositary requires 60 days' advance written
notice and payment to the Depositary of a redeposit fee initially $5.00 per 100
depositary units or portion thereof, and will be subject to the satisfaction of
certain other procedural requirements under the Depositary Agreement.
REPLACEMENT OF LOST DEPOSITARY RECEIPTS AND CERTIFICATES
A unitholder or subsequent transferee who loses or has its certificate for
depositary units or depositary receipts stolen or destroyed may obtain a
replacement certificate or depositary receipt by furnishing an indemnity bond
and by satisfying certain other procedural requirements under the Depositary
Agreement.
AMENDMENT OF DEPOSITARY AGREEMENT
Subject to the restrictions described below, any provision of the Depositary
Agreement, including the form of depositary receipt, may, at any time and from
time to time, be amended by the mutual agreement of us and the Depositary in any
respect deemed necessary or appropriate by them, without the approval of the
holders of depositary units. No amendment to the Depositary Agreement, however,
may impair the right of a holder of depositary units to surrender a depositary
receipt and to withdraw any or all of the deposited depositary units evidenced
by a depositary receipt or to redeposit depositary units pursuant to the
Depositary Agreement and receive a depositary receipt evidencing redeposited
depositary units.
The Depositary will furnish notice to each record holder of a depositary unit,
and to each securities exchange on which depositary units are listed for
trading, of any material amendment made to the Depositary Agreement. Each record
holder of a depositary unit at the time any amendment of the Depositary
Agreement becomes effective will be deemed, by continuing to hold the depositary
unit, to consent and agree to the amendment and to be bound by the Depositary
Agreement, as so amended.
The Depositary will give notice of the imposition of any fee or charge, other
than fees and charges provided for in the Depositary Agreement, or change to the
fees and charges, upon record holders of depositary units to any securities
exchange on which the depositary units are listed for trading and to all record
holders of depositary units. The imposition of any fee or charge, or change to
them, will not be effective until the expiration of 30 days after the date of
such notice, unless it becomes effective in the form of an amendment to the
Depositary Agreement effected by us and the Depositary.
TERMINATION OF DEPOSITARY AGREEMENT
We may not terminate the Depositary Agreement unless the termination (1) is in
connection with us entering into a similar agreement with a new depositary
selected by the General Partner, (2) is as a result of our receipt of an opinion
of counsel to the effect that the termination is necessary for us to avoid being
treated as an "association" taxable as a corporation for federal income tax
purposes or to avoid being in violation of any applicable federal or state
securities laws or (3) is in connection with our dissolution.
The Depositary will terminate the Depositary Agreement, when directed to do so
by us, by mailing notice of termination to the record holders of depositary
units then outstanding at least 60 days before the date fixed for the
termination in such notice. Termination will be effective on the date fixed in
such notice, which date must be at least 60 days after it is mailed. Upon
termination of the Depositary Agreement, the Depositary will discontinue the
transfer of depositary units, suspend the distribution of reports, notices and
disbursements and cease to perform any other acts under the Depositary
Agreement, except in the event the Depositary Agreement is not being terminated
in connection with us entering into a similar agreement with a new depositary,
the Depositary will assist in the facilitation of the withdrawal of depositary
units by holders who desire to surrender their depositary receipts.
RESIGNATION OR REMOVAL OF DEPOSITARY
The Depositary may resign as depositary and may be removed by us at any time
upon 60 days' written notice. The resignation or removal of the Depositary
becomes effective upon the appointment of a successor depositary by us and
written acceptance by the successor depositary of its appointment. In the event
a successor depositary is not appointed within 75 days of notification of such
resignation or removal, the General Partner will act as depositary until a
successor depositary is appointed. Any corporation into or with which the
Depositary may be merged or consolidated will be the successor depositary
without the execution or filing of any document or any further act.
THE PARTNERSHIP AGREEMENT AND CERTAIN
PROVISIONS OF DELAWARE LAW
The rights of a limited partner of the Company are set forth in the Partnership
Agreement. The following is a summary of certain provisions of the Partnership
Agreement and the agreement of limited partnership of Holdings, which is similar
to the Partnership Agreement in all material respects. The following summary
discusses certain provisions which relate to both, and is qualified in its
entirety by reference to both the Partnership Agreement and the agreement of
limited partnership of Holdings. A reference to the "Partnership Agreement" in
this registration statement refers to both of the Partnership Agreement and the
agreement of limited partnership of Holdings, unless otherwise indicated.
REMOVAL OF THE GENERAL PARTNER
Subject to certain limitations on the exercise by unitholders of voting rights,
the General Partner may be removed by the written consent or affirmative vote of
holders of depositary units owning more than 75% of the total number of all
outstanding depositary units, voting as a class, then held by unitholders,
including the General Partner and its affiliates to the extent that they are
holders of depositary units. Upon the removal of the General Partner by holders
of depositary units, the holders of depositary units will be obligated to elect
a successor general partner and to continue the business of the Company. At the
election of the General Partner, a successor general partner will be required,
at the effective date of its admission as a general partner, to purchase the
General Partner's 1% general partner interest directly from the General Partner
for a price equal to its "fair market value," as described below.
If the General Partner does not elect to sell its interest, the successor
general partner will be required to contribute to the capital of the Company
cash in an amount equal to 1/99th of the product of the number of depositary
units outstanding immediately prior to the effective date of such successor
general partner's admission (but after giving effect to the conversion of the
General Partner's general partner interest into depositary units described
below) and the average price at which the depositary units had been trading over
the 20-day period immediately preceding the successor general partner's
admission. Thereafter, the successor general partner will be entitled to one
percent (1%) of all partnership allocations and distributions.
If the General Partner chooses not to sell its 1% general partner interest
directly to a successor general partner, the General Partner's general partner
interest in the Company will be converted into depositary units, with the number
of depositary units to be received to be based upon the "fair market value" of
its general partner interest at the time of its removal and the average price at
which the depositary units had been trading over the 20-day period preceding the
effective date of the General Partner's departure. In this regard, the "fair
market value" of the departing general partner's interest is the amount that
would be distributable to the General Partner on account of the interest if the
Company were to dispose of all of its assets in an orderly liquidation,
commencing on the effective date of its removal at a price equal to the fair
market value of those assets (discounted at the rate then payable on one-year
U.S. Treasury obligations to the effective date of such removal to reflect the
time reasonably anticipated to be necessary to consummate the sales), as agreed
upon between the General Partner as the departing general partner and its
successor, or, in the absence of an agreement, as determined by an independent
appraiser.
Upon removal of the General Partner from the Company, the General Partner also
will be removed as general partner of Holdings and its general partner interest
in Holdings will either be purchased by the successor general partner or
converted into depositary units (in which case the successor shall also
contribute to the capital of Holdings) in the same manner as provided above with
respect to the Company.
The Partnership Agreement provides that, upon the departure of the General
Partner and the conversion of its general partner interest in the Company to
depositary units, the Company will, at the request of the departing general
partner, file with the Securities and Exchange Commission up to three
registration statements under the Securities Act registering the offering and
sale of all or a portion of the depositary units owned by the General Partner,
including those depositary units received upon conversion of its general partner
interest in the Company and Holdings. The cost of the first registrations will
be borne by the Company and the cost of any other such registration will be
borne by the General Partner.
WITHDRAWAL OF THE GENERAL PARTNER
The General Partner may withdraw, but only if:
- the withdrawal is with the consent of a majority interest;
- the General Partner, with the consent of a majority interest, transfers
all of its interest as general partner in the Company;
- the transferee consents to be bound by the Partnership Agreement and the
transferee has the necessary legal authority to act as successor general
partner of the Company; and
- the Company receives an opinion of counsel to the effect that a vote by
the unitholders and the admission of a new general partner is in conformity
with local law, will not cause the loss of limited liability to the
unitholders and will not cause the Company to be treated as an
"association" taxable as a corporation for federal income tax purposes.
Notwithstanding the foregoing, the General Partner may, without the consent of
the unitholders (to the extent permitted by law), transfer its interest as
general partner in the Company to any person or entity that has, by merger,
consolidation or otherwise, acquired all or substantially all of the assets or
stock of the General Partner and continued its business, provided that such
person or entity has a net worth no less than that of the General Partner and
has accepted and agreed to be bound by the terms and conditions of the
Partnership Agreement. The General Partner also may mortgage, pledge,
hypothecate or grant a security interest in its interest as general partner in
the Company without the consent of unitholders.
DISTRIBUTIONS
The General Partner has the power and authority to retain or use partnership
assets or revenues as, in the sole and absolute discretion of the General
Partner, may be required to satisfy the anticipated present and future cash
needs of the Company, whether for operations, expansion, improvements,
acquisitions or otherwise.
Subject to Section 17-607 of the Delaware Act and to the provision with respect
to distributions upon liquidation or dissolution of the Company, the General
Partner, in its sole and absolute discretion, may make such distribution from
partnership assets or otherwise as it deems appropriate in its sole discretion,
quarterly, annually or at any other time. Any distributions will be distributed
to the General Partner and the record holders in accordance with their
respective percentage interests.
Distribution of proceeds on liquidation or dissolution of the Company will be
made; first to the payment of any debts and liabilities of the Company which are
then due and payable; next to the establishment of such reserves as the General
Partner deems reasonably necessary to provide for any future, contingent or
unforeseen liabilities or obligations of the Company; and next pro rata in
accordance with and to the extent of the positive balances in the General
Partner's and record holders' respective capital accounts.
ALLOCATIONS OF INCOME AND LOSS
The Partnership Agreement provides, in general, that all items of income, gain,
loss and deduction are allocated to the General Partner and to the holders of
depositary units in accordance with their respective percentage ownership in the
Company. Items allocated to the holders of depositary units are further
allocated among them pro rata in accordance with the respective number of
depositary units owned by each of them. The Company's income gain, and loss and
deduction, for federal income tax purposes, will be computed on an annual basis
and apportioned equally among the calendar months among the General Partner and
record holders of depositary units in accordance with their percentage interests
as of the close of business on the last day of the month in which taxable income
or losses are apportioned. The Company's gains and losses from capital
transactions generally will be allocated among the General Partner and record
holders of depositary units in proportion to their percentage interests as of
the close of business on the last day of the month in which such gains and
losses occurred. However, if gain from a capital transaction is recognized by
the Company over more than one calendar year, gain recognized by the Company in
years subsequent to the year in which the capital transaction occurred shall be
allocated in the same manner as income of the Company allocated.
AMENDMENT OF THE PARTNERSHIP AGREEMENT
GENERAL
Amendments to the Partnership Agreement may be proposed either by the
General Partner or by unitholders owning at least 10% of the units outstanding.
In order to adopt a proposed amendment, other than certain amendments discussed
below, the General Partner is required to seek written consent of the
unitholders or call a meeting to consider and vote upon the proposed amendment.
The General Partner is not required to take further action with respect to any
proposed amendment that, in the opinion of counsel, would be illegal under
Delaware law if adopted. A proposed amendment will become effective only if
approved by the General Partner in writing and approved by a majority interest
of unitholders, unless a greater percentage is required by law or the
Partnership Agreement.
AMENDMENTS ADOPTED SOLELY BY THE GENERAL PARTNER
The General Partner may amend the Partnership Agreement without the
approval or consent of the limited partners to reflect:
- any change in our name or the location of our principal place of our
business;
- the admission, substitution, withdrawal, or removal of partners in
accordance with the Partnership Agreement;
- an election to be bound by any successor statute to the Delaware Act;
- any change that is necessary to qualify as a limited partnership or a
partnership in which the limited partners have limited liability under
the laws of any state or to ensure that we will not be treated as an
association taxable as a corporation or otherwise taxed as an entity
for federal income tax purposes;
- any change that is necessary to qualify as a "real estate investment
trust";
- any change (i) that is inconsequential and does not materially
adversely affect unitholders; (ii) to cure any ambiguity or to correct
any provision; (iii) to satisfy any federal or state agency or
contained in any federal or state statute; (iv) to facilitate the
trading of the depositary units or comply with any requirements of any
securities exchange on which the depositary units are listed for
trading; (v) in connection with any action permitted to be taken by
the General Partner in the case of the loss of partnership status; or
(vi) required or contemplated by the Partnership Agreement;
- any change in any provision of the Partnership Agreement which
requires any action to be taken by or on behalf of the Company
pursuant to the requirements of applicable Delaware law if the
provisions of applicable Delaware law are revised so that the taking
of such action is no longer required; or
- any other amendments similar to the foregoing.
PROHIBITED AMENDMENTS
Notwithstanding the foregoing, unless approved by the General Partner in
writing and, subject to limitations on the exercise by unitholders of voting
rights, by all of the holders of depositary units, no amendment may be made to
the Partnership Agreement if the amendment, in the opinion of counsel would
result in the loss of the limited liability of unitholders or the Company as the
sole limited partner of Holdings or would cause the Company or Holdings to be
treated as an association taxable as a corporation for federal income tax
purposes. In addition, no amendment to the Partnership Agreement may be made
which would:
- enlarge the obligations of the General Partner or any unitholder or
convert the interest of any unitholder into the interest of a general
partner;
- modify the expense reimbursement payable to the General Partner and
its affiliates pursuant to the Partnership Agreement or the fees and
compensation payable to the General Partner and its affiliates
pursuant to the agreement of limited partnership of Holdings;
- modify the order and method for allocations of net income and net
loss or distributions of net cash flow from operations without the
consent of the General Partner or the unitholders adversely affected;
or
- amend sections of the Partnership Agreement concerning amendments of
the agreement without the consent of unitholders owning more than 95%
of the total number of depositary units outstanding then held by all
unitholders.
ISSUANCE OF ADDITIONAL SECURITIES
The Company is authorized to issue additional depositary units or other
securities from time to time to unitholders or additional investors without the
consent or approval of unitholders. There is no limit to the number of
depositary units or additional classes that may be issued. The board of
directors of the General Partner has the power, without any further action by
the unitholders, to issue securities with such designations, preferences and
relative, participating or other special rights, powers and duties, including
rights, powers and duties senior to existing classes of depositary units.
MEETINGS; VOTING RIGHTS OF UNITHOLDERS
Any action that is required or permitted to be taken by unitholders may be taken
either at a meeting of the holders of depositary units or without a meeting if
consents in writing setting forth the action so taken are signed by holders of
depositary units owning not less than the minimum number of depositary units
that would be necessary to authorize or take such action at a meeting. Meetings
of the holders of depositary units may be called by the General Partner or by
unitholders owning at least 10% of the total depositary units outstanding then
owned by all such unitholders. Holders of depositary units may vote either in
person or by proxy at meetings.
The General Partner manages and operates the Company. Unlike the holders of
common stock in a corporation, holders of our outstanding depositary units have
only limited voting rights on matters affecting our business. Holders of
depositary units have no right to elect the General Partner on an annual or
other continuing basis, and the General Partner generally may not be removed
except pursuant to the vote of the holders of not less than 75% of the
outstanding depositary units. In addition, removal of the General Partner may
result in a default under our debt securities. As a result, holders of
depositary units have limited say in matters affecting our operations and others
may find it difficult to attempt to gain control or influence our activities.
Each unitholder will have one vote for each depositary unit as to which the
unitholder has been admitted as a unitholder. A subsequent transferee of
depositary units who has not been admitted as a unitholder of record with
respect to the depositary units will have no voting rights with respect to the
depositary units, even if such subsequent transferee holds other depositary
units as to which it has been admitted as a unitholder. The voting rights of a
unitholder who transfers a depositary unit will terminate with respect to that
depositary unit upon its transfer, whether or not the subsequent transferee is
admitted as a unitholder of record with respect thereto. The Partnership
Agreement does not provide for annual meetings of the unitholders.
Unitholders have the right to vote on the following matters and the actions
specified therein may be taken by the General Partner only with the affirmative
vote, in person or by proxy, of a majority interest (except that a higher vote
is required for (i) certain amendments to the Partnership Agreement discussed
above, (ii) the removal of the General Partner and (iii) the continuation of the
Company after certain events that would otherwise cause dissolution) and with a
separate concurrence of the General Partner:
- the amendment of the Partnership Agreement, except for those amendments
that may be made without unitholder approval as discussed above;
- the dissolution of the Company;
- the election of a liquidating trustee;
- the approval or disapproval of any merger or consolidation of the Company;
provided, however that no approval is required with respect to any such
transaction which, in the sole and absolute discretion of the General
Partner, (A) is primarily for the purpose of acquiring properties or
assets, (B) combines the ongoing business operations of the entities with
the Company as the surviving entity, or (C) is between the Company and
Holdings;
- the approval or disapproval of a sale or other disposition (except upon
dissolution and liquidation) of all or substantially all of our assets;
- the transfer of the General Partner's partnership interest;
- the withdrawal of the General Partner as the general partner;
- the election of a successor General Partner;
- the removal of the General Partner;
- the election to reconstitute and continue the business rather than
dissolve; and
- to consent to certain proposals submitted for the approval of the limited
partners of Holdings.
As of December 9, 2011, Mr. Icahn, through affiliates, holds approximately 92.6%
of our outstanding depositary units. As a result of these holdings, Mr. Icahn
can exercise effective control over substantially all matters subject to
unitholder consent or approval. Mr. Icahn's interests may differ from the
interests of other unitholders.
RESTRICTION ON SHORT-FORM MERGERS
Neither the General Partner nor its affiliates will cause the Company (in the
event that the Delaware Act is amended to permit partnerships to engage in short
form merger transactions), or any successor entity of the Company, whether in
its current form as a limited partnership or as converted to or succeeded by a
corporation or other form of business association, to effect a merger or other
business combination (in the event that such short-form merger statute applies
to other business combinations) of the Company or such successor, in each case
pursuant to Section 253 of the General Corporation Law of Delaware, or any
successor statute, or any similar short-form merger statute under the laws of
Delaware or any other jurisdiction. This provision does not apply to any other
merger or business combination transaction. In addition, no amendment to this
provision is permitted without a unanimous vote of the record holders, unless
the amendment has been approved by the audit committee, in which event only a
majority interest, as defined, is required for approval of the amendment.
LIABILITY OF GENERAL PARTNER AND UNITHOLDERS
The General Partner will be liable for all general obligations of the Company to
the extent not paid by the Company. The General Partner will not, however, be
liable for the nonrecourse obligations of the Company. Assuming that a
unitholder does not take part in the control of the business of the Company and
otherwise acts in conformity with the provisions of the Partnership Agreement,
the liability of the unitholder will, under the Delaware Act, be limited,
subject to certain possible exceptions, generally to the amount contributed by
the unitholder or the unitholder's predecessor in interest to the capital of the
Company, plus the unitholder's share of any undistributed partnership income,
profits or property. However, under the Delaware Act, a unitholder who receives
a distribution from the Company that is made in violation of the Delaware Act
and who knew at the time of the distribution that the distribution was improper,
is liable to the Company for the amount of the distribution. Such liability or
liability under other applicable Delaware law (such as the law of fraudulent
conveyances) ceases after expiration of three years from the date of the
applicable distribution.
Under the Delaware Act, a partnership is prohibited from making a distribution
to a partner to the extent that at the time of the distribution, after giving
effect to the distribution, all liabilities of the Company, other than
liabilities to partners on account of their partnership interests and
liabilities for which the recourse of creditors is limited to specified property
of the Company, exceed the fair value of the assets of the Company (except that
fair value of property that is subject to a liability for which the recourse of
creditors is limited is included in the assets of the Company only to the extent
that the fair value of the property exceeds that liability). An assignee of a
limited partner who becomes a substituted limited partner does not, under the
Delaware Act, become liable for any obligation of the assignor to restore prior
distributions.
REIMBURSEMENT OF EXPENSES
The Partnership Agreement requires us to reimburse the General Partner for
expenses it reasonably incurs or payments it makes on our behalf and all other
expenses allocable to us or otherwise incurred by the General Partner in
connection with conducting our business, including without limitation, salaries
and rent. Such allocations are subject to periodic review by our Audit
Committee.
BOOKS AND REPORTS
The General Partner is required to keep complete and accurate books with respect
to the Company's business at the principal office of the Company. The books are
maintained for financial accounting purposes on the accrual basis, in accordance
with generally accepted accounting principles. The fiscal year of the Company is
the calendar year.
Unitholders will be entitled to have access to the Company's books and certain
other records at reasonable times upon reasonable notice to the General Partner,
subject to certain limitations including those intended to protect confidential
business information.
The General Partner will furnish to each unitholder, within 120 days after the
close of each fiscal year, reports containing certain financial statements of
the Company for the fiscal year, including a balance sheet and statements of
income, unitholders' equity and changes in financial position, which will be
audited by a nationally recognized firm of independent certified public
accountants. Within 90 days after the close of each taxable year, the Company
will use its best efforts to furnish to each unitholder as of the last day of
any month during such taxable year such information as may be required by the
unitholders for the preparation of their individual federal, state and local tax
returns. This information will be furnished in summary form so that certain
complex calculations normally required can be avoided. The Company's ability to
furnish such summary information may depend on the cooperation of unitholders in
supplying certain information to the Company.
POWER OF ATTORNEY
Pursuant to the Partnership Agreement, each unitholder of record appoints the
General Partner and each of the General Partner's authorized officers as the
unitholder's or substituted unitholder's attorney-in-fact:
- to enter into the Depositary Agreement and deposit the depositary units of
the unitholder or substituted unitholder in the deposit account established
by the Depositary and admit the holders of depositary units as limited
partners in the Company, and
- to make, execute, file and/or record:
o instruments with respect to any amendment of the Partnership
Agreement;
o conveyances and other instruments and documents with respect to the
dissolution, termination and liquidation of the Company pursuant to
the terms of the Partnership Agreement;
o financing statements or other documents necessary to grant or perfect
a security interest, mortgage, pledge or lien on all or any of the
assets of the Company;
o instruments or papers required to continue the business of the
Company pursuant to the Partnership Agreement;
o instruments relating to the admission of substituted limited partners
in the Company; and
o all other instruments deemed necessary or appropriate to carry out
the provisions of the Partnership Agreement.
The power of attorney is irrevocable, will survive the subsequent death,
incompetency, dissolution, disability, incapacity, bankruptcy or termination of
the granting unitholder, and will extend to such unitholder's heirs, successors
and assigns.
DEATH, BANKRUPTCY OR INCOMPETENCY OF A UNITHOLDER
The death, bankruptcy or adjudication of incompetency of a unitholder will not
dissolve the Company. In such event, the legal representatives of the unitholder
will have all the rights of a unitholder for the purpose of settling or managing
the estate and such power as the deceased, bankruptcy or incompetent unitholder
possessed to assess, sell or transfer any part of his interest. The transfer of
depositary units by the legal representative to any person or entity is subject
to all of the restrictions to which such transfer would have been subject if it
had been made by the deceased, bankrupt or incompetent unitholder.
TERMINATION, DISSOLUTION AND LIQUIDATION
The Company will continue until December 31, 2085, unless sooner dissolved or
terminated and its assets liquidated upon the occurrence of the earliest of:
- the withdrawal, removal or bankruptcy of the General Partner (subject to
the right of the unitholders to reconstitute and continue the business of
the Company by written agreement of a majority interest and designation by
them of a successor general partner within 90 days);
- the written consent or affirmative vote of a majority interest, with the
approval of the General Partner, to dissolve and terminate the Company;
- the sale or other disposition of all or substantially all of the assets of
the Company;
- the Company's insolvency or bankruptcy; or
- any other event causing or requiring a dissolution under the Delaware Act.
The unitholders' right to continue the Company described above is subject to the
receipt of an opinion of counsel to the effect that the continuation and the
selection of a successor general partner will not result in the loss of limited
liability of the unitholders and will not cause the Company to be treated as an
association taxable as a corporation for federal income tax purposes. Upon
dissolution, the General Partner or other entity or person authorized to wind up
the affairs of the Company will proceed to liquidate the assets of the Company
and apply the proceeds of liquidation in the order of priority set forth in the
Partnership Agreement.
BUSINESS OPPORTUNITIES
The Partnership Agreement provides that the General Partner and its affiliates
are permitted to have other business interests and may engage in other business
ventures of any nature whatsoever, and may compete directly or indirectly with
our business. Mr. Icahn and his affiliates currently invest in assets that may
be similar to those in which we may invest and Mr. Icahn and his affiliates
intend to continue to do so. We do not have any right to participate therein or
receive or share in any income or profits derived therefrom.
ITEM 2. EXHIBITS.
The following exhibits are incorporated herein by reference as indicated below:
Exhibit No. Description
----------- -----------
3.1 Certificate of Limited Partnership of Icahn Enterprises
L.P., f/k/a American Real Estate Partners, L.P. ("Icahn
Enterprises") dated February 17, 1987, as thereafter amended
from time to time (incorporated by reference to Exhibit 3.1
to Icahn Enterprises' Form 8-K (SEC File No. 1-9516), filed
on September 20, 2007).
3.2 Amended and Restated Agreement of Limited Partnership of
Icahn Enterprises, dated May 12, 1987 (incorporated by
reference to Exhibit 3.2 to Icahn Enterprises' Form 10-Q for
the quarter ended March 31, 2004 (SEC File No. 1-9516),
filed on May 10, 2004).
3.3 Amendment No. 1 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises, dated February 22,
1995 (incorporated by reference to Exhibit 3.3 to Icahn
Enterprises' Form 10-K for the year ended December 31, 1994
(SEC File No. 1-9516), filed on March 31, 1995).
3.4 Amendment No. 2 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises, dated August 16,
1996 (incorporated by reference to Exhibit 10.1 to Icahn
Enterprises' Form 8-K SEC File No. 1-9516), filed on August
16, 1996).
3.5 Amendment No. 3 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises, dated May 9, 2002
(incorporated by reference to Exhibit 3.8 to Icahn
Enterprises' Form 10-K for the year ended December 31, 2002
(SEC File No. 1-9516), filed on March 31, 2003).
3.6 Amendment No. 4 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises, dated June 29,
2005 (incorporated by reference to Exhibit 3.1 to Icahn
Enterprises' Form 10-Q for the quarter ended March 31, 2005
(SEC File No. 1-9516), filed on June 30, 2005).
3.7 Amendment No. 5 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises, dated September
17, 2007 (incorporated by reference to Exhibit 99.1 to Icahn
Enterprises' Form 8-K (SEC File No. 1-9516), filed on
December 21, 2007).
3.8 Amendment No. 6 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises, dated December 17,
2007 (incorporated by reference to Exhibit 99.1 to Icahn
Enterprises' Form 8-K (SEC File No. 1-9516), filed on
December 21, 2007).
3.9 Certificate of Limited Partnership of Icahn Enterprises
Holdings L.P., f/k/a American Real Estate Holdings Limited
Partnership ("Icahn Enterprises Holdings"), dated February
17, 1987, as amended pursuant to the First Amendment
thereto, dated March 10, 1987 (incorporated by reference to
Exhibit 3.5 to Icahn Enterprises' Form 10-Q for the quarter
ended March 31, 2004 (SEC File No. 1-9516), filed on May 10,
2004, as further amended pursuant to the Certificate of
Amendment thereto, dated September 17, 2007 (incorporated by
reference to Exhibit 3.9 to Icahn Enterprises' Form 10-K for
the year ended December 31, 2007 (SEC File No. 1-9516),
filed on March 17, 2008).
3.10 Amended and Restated Agreement of Limited Partnership of
Icahn Enterprises Holdings, dated as of July 1, 1987
(incorporated by reference to Exhibit 3.5 to Icahn
Enterprises' Form 10-Q for the quarter ended March 31, 2004
(SEC File No. 1-9516), filed on May 10, 2004).
3.11 Amendment No. 1 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises Holdings, dated
August 16, 1996 (incorporated by reference to Exhibit 10.2
to Icahn Enterprises' Form 8-K (SEC File No. 1-9516), filed
on August 16, 1996).
3.12 Amendment No. 2 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises Holdings, dated
June 14, 2002 (incorporated by reference to Exhibit 3.9 to
Icahn Enterprises' Form 10-K for the year ended December 31,
2002 (SEC File No. 1-9516), filed on March 31, 2003).
3.13 Amendment No. 3 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises Holdings, dated
June 29, 2005 (incorporated by reference to Exhibit 3.2 to
Icahn Enterprises' Form 10-Q for the quarter ended March 31,
2005 (SEC File No. 1-9516), filed on June 30, 2005).
3.14 Amendment No. 4 to the Amended and Restated Agreement of
Limited Partnership of Icahn Enterprises Holdings, dated
September 17, 2007 (incorporated by reference to Exhibit
3.11 to Icahn Enterprises' Form 10-K for the year ended
December 31, 2007 (SEC File No. 1-9516), filed on March 17,
2008).
4.1 Depositary Agreement among Icahn Enterprises, Icahn
Enterprises G.P. Inc., f/k/a American Property Investors,
Inc. ("Icahn Enterprises GP") and Registrar and Transfer
Company, dated as of July 1, 1987 (incorporated by reference
to Exhibit 4.1 to Icahn Enterprises' Form 10-Q for the
quarter ended March 31, 2004 (SEC File No. 1-9516), filed on
May 10, 2004).
4.2 Amendment No. 1 to the Depositary Agreement dated as of
February 22, 1995 (incorporated by reference to Exhibit 4.2
to Icahn Enterprises' Form 10-K for the year ended December
31, 1994 (SEC File No. 1-9516), filed on March 31, 1995).
4.3 Form of Transfer Application (incorporated by reference to
Exhibit 4.4 to Icahn Enterprises' Form 10-K for the year
ended December 31, 2004 (SEC File No. 1-9516), filed on
March 16, 2005).
4.4 Specimen Depositary Receipt (incorporated by reference to
Exhibit 4.3 to Icahn Enterprises' Form 10-K for the year
ended December 31, 2004 (SEC File No. 1-9516), filed on
March 16, 2005).
SIGNATURE
Pursuant to the requirements of Section l2 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
ICAHN ENTERPRISES L.P.
(Registrant)
Date: December 9, 2011
By: /s/ Dominick Ragone
-------------------
Name: Dominick Ragone
Title: Chief Financial Officer