CVR Energy, Inc. (NYSE:CVI) has been in fighting with their largest shareholder, Carl Icahn. Icahn is the largest shareholder of the company, with a 14.54% stake. Icahn has been trying to get the company to sell itself, and believes CVR is trading at a discount to its true intrinsic value. Icahn’s view is that a US refiner like CVR with high profit margins, should be trading at a much higher valuation. CVR energy closed today at $26.06, Icahn offered to buy the company for $30 a share.
The company has been fighting Icahn’s efforts, including his attempt to place nine of his members on the board.
Just this week Chief Executive Jack Lipinski stated:
“After committing to drop his tender offer and proxy solicitation if he didn’t receive sufficient tenders by March 23, Mr Icahn has again gone back on his word by extending his distracting and detrimental campaign.”
Icahn gave the board 10 more days to consider, after consulting with other large shareholders.
CVR seems to have ignored Icahn’s offer. The company has just filed a 14A Proxy statement, in which it urged shareholders to reject the proposal put forth by Icahn. The company went as far to state the following :
If you have already voted using the Icahn Group’s proxy card, you have every right to change your vote and revoke your prior proxy by signing and dating the enclosed WHITE proxy card and returning it in the postage-paid envelope provided or by voting via the Internet or by telephone by following the instructions provided on the enclosed form of proxy. Only the latest dated proxy card you submit will be counted. If you withhold your vote on any Icahn Group nominee using the Icahn Group’s proxy card, your vote will not be counted as a vote for the Board’s nominees and will automatically result in the revocation of any previous vote you may have cast on our WHITE proxy card. Accordingly, if you wish to vote pursuant to the recommendation of our Board, you should disregard any proxy card that you receive that is not a WHITE proxy card.
CVR energy explained in the filling why it opposed Icahn’s offer:
The Icahn Group has notified us that it reserves the right to present a proposal at the Annual Meeting to repeal any provision of the by-laws of the Company in effect at the time of the Annual Meeting that was not included in the amended and restated by-laws of the Company, effective July 14, 2011 and publicly filed with the SEC on July 20, 2011, if the Ichan Group discovers that the Board has made changes to the by-laws that “appear to be adverse to the interests of” the Company’s stockholders. If the Icahn Group does not properly present this proposal at the Annual Meeting, the proposal will not be submitted to a vote. After thorough consideration, the Board recommends that you vote AGAINST this proposal, if submitted to a vote.
Under Delaware law and the Company’s certificate of incorporation, the Board is charged with the responsibility of managing the Company. In order to permit the Board to carry out its responsibilities and correspondingly fulfill its fiduciary duties to the Company and its stockholders, the Company’s certificate of incorporation and the Company’s by-laws vest the Board with the power to adopt, amend, or repeal the Company’s by-laws. The Icahn Group’s proposal would repeal all amendments to the Company’s bylaws adopted by the Board after July 14, 2011 without regard to the subject matter of any by-law amendment in question.
Such a blanket repeal of any by-law amendment adopted by the Board could have the effect of repealing one or more properly adopted bylaw amendments that the Board determined to be in the best interests of the Company and its stockholders and adopted in furtherance of the Board’s fiduciary duties.
For this reason, while the Board has not amended the amended and restated by-laws in any manner since its July 20, 2011 public filing and does not currently expect to adopt any amendments to such bylaws prior to the Annual Meeting, the Board believes the proposal represents the Icahn Group’s attempt to interfere with the Board’s ability to act in accordance with its fiduciary duties to stockholders and therefore should be rejected.
Vote Required
The affirmative vote of the holders of a majority of the outstanding shares of our common stock is required for this proposal to be approved.
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT
YOU VOTE AGAINST THE ICAHN GROUP PROPOSAL REGARDING REPEAL OF BY-LAW AMENDMENTS.
Icahn is famous for his activitism and while he does not hold enough shares to change the vote, but could sway some other large shareholders to side with him.
Vanguard, Fidelity, David Tepper’s Appaloosa Management L.P. hedge fund, and Blackrock Inc. (BX), own close to 25% of the other outstanding shares. If Icahn can get all four on board, it would represent 40% of total shareholders. That would probably be enough to convince a majority of shareholders to vote with Icahn.
However, it remains to be seen what the outcome will be. ValueWalk will provide coverage next time there is a new development.
