Item 1.01 Entry into a Material Definitive Agreement.
On December 3, 2021, Icahn Enterprises L.P. (the "Company") entered into an open
market sales agreement (the "Sales Agreement") with Jefferies LLC (the "Agent").
Pursuant to the terms of the Sales Agreement, the Company may issue and sell the
Company's depositary units representing limited partner interests (the
"Depositary Units") having an aggregate offering amount of up to $400,000,000
from time to time through the Agent. The Agent will use its commercially
reasonable efforts, as the agent and subject to the terms of the Sales
Agreement, to sell the Depositary Units offered. Sales of the Depositary Units,
if any, may be made in sales deemed to be an "at the market offering" as defined
in Rule 415(a)(4) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), including sales made directly on or through the Nasdaq Global
Select Market. The Company may also agree to sell Depositary Units to the Agent
as principal for its own account on terms agreed to by the Company and the
Agent. The Agent will be entitled to a commission from the Company of up to
2.00% of the gross sales price per Depositary Unit sold under the Sales
Agreement by the Agent acting as the Company's agent with the exact amount to be
agreed by the Company. The Company intends to use any net proceeds from the
offering to fund potential acquisitions and for general limited partnership
purposes.
The Depositary Units are registered under the Securities Act, pursuant to the
Company's shelf registration statement on Form S-3 (File No. 333-257902), which
was declared effective by the Securities and Exchange Commission on July 23,
2021.
The Sales Agreement contains customary representations, warranties, and
agreements of the Company and the Agent, indemnification rights and obligations
of the parties and termination provisions. The Sales Agreement is filed as
Exhibit 1.1 to this Current Report on Form 8-K, and the description of the Sales
Agreement in this Item 1.01 is qualified in its entirety by reference to such
exhibit.
The Agent has provided, and may in the future provide, various investment
banking, commercial banking, financial advisory and other services to the
Company and its affiliates for which services it has received and may in the
future receive, customary fees. In the course of its business, the Agent may
actively trade the Company's securities for its own account or for the accounts
of customers, and, accordingly, the Agent may at any time hold long or short
positions in such securities.
A copy of the opinion of Proskauer Rose LLP relating to the legality of the
Depositary Units is filed as Exhibit 5.1 to this Current Report.
Item 1.02. Termination of Material Definitive Agreement.
In connection with entering into the Sales Agreement, the Company and the Agent
agreed to terminate the prior open market sales agreement, dated as of August 6,
2021, by and between the Company and the Agent (the "Prior Agreement"), and no
further sales of Depositary Units will occur under the Prior Agreement or the
prospectus supplement filed by the Company in connection therewith. Prior to the
termination, the Company had sold an aggregate of approximately $376 million of
Depositary Units through the Agent pursuant to the Prior Agreement.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number Description
1.1 Open Market Sales Agreement, dated as of December 3, 2021, between
Icahn Enterprises L.P. and Jefferies LLC
5.1 Opinion of Proskauer Rose LLP
8.1 Opinion of Proskauer Rose LLP relating to tax matters
23.1 Consent of Proskauer Rose LLP (included in Exhibit 5.1 hereto)
23.2 Consent of Proskauer Rose LLP (included in Exhibit 8.1 hereto)
104 Cover Page Interactive Data File (formatted in Inline XBRL in Exhibit
101)
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