 |
1585
BROADWAY NEW YORK, NY 10036-8299 TELEPHONE 212.969.3000 Fax 212.969.2900 |
BOCA
RATON
BOSTON LONDON LOS ANGELES NEW ORLEANS NEWARK PARIS SÃO PAULO WASHINGTON |
|
|
Julie
Allen
Member
of the Firm
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|
Direct
Dial 212.969.3155
jallen@proskauer.com
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December
5, 2007
VIA
ELECTRONIC TRANSMISSION
AND
OVERNIGHT COURIER
John
Fieldsend, Esq.
Staff
Attorney
United
States Securities and Exchange Commission
100
F
Street, N.E.
Washington,
D.C. 20549-1004
|
Re:
|
Icahn
Enterprises L.P.
|
(f/k/a
American Real Estate Partners, L.P.)
Registration
Statement on Form S-3
Filed
on
June 21, 2007
File
No.
333-143930
Icahn
Enterprises L.P.
(f/k/a
American Real Estate Partners, L.P.) and co-registrants
Registration
Statement on Form S-4
Filed
on
June 21, 2007
File
Nos.
333-143929
Dear
Mr.
Fieldsend:
Reference
is made to the comments of the Staff of the Securities and Exchange Commission
(the “Commission”) with respect to the Registration Statement on Form S-3 (File
No. 333-143930) (the “S-3 Registration Statement) and the Registration Statement
on Form S-4 (File No. 333-143929) (the “S-4 Registration Statement) of Icahn
Enterprises L.P., which was formerly known as American Real Estate Partners,
L.P. a Delaware limited partnership (the “Company”), in your letter dated July
18, 2007 (the “Comment Letter”).
We
are
writing to respond to the comments contained in the Comment Letter and to
indicate the changes that are being made in Amendment No. 1 to the S-3
Registration Statement and Amendment No. 1 to the S-4 Registration Statement
(collectively, the “Amendments”) that will be filed with the
Commission on today's date.
|
John
Fieldsend,
Esq.
United States Securities and
Exchange
Commission
|
December
5, 2007
Page 2 of 19 |
For
your
convenience, your comments are set forth in this letter, followed by our
responses.
Registration
Statement on Form S-3
| 1. |
Please
provide us, with a view toward disclosure in the prospectus, with
the
total dollar value of the securities underlying the convertible notes
that
you have registered for resale using the number of underlying securities
that you have registered for resale and the market price per share
for
those securities on the date of the sale of the convertible
note.
|
In
April
2007, the Company issued an aggregate of $600,000,000 of variable rate senior
convertible notes due 2013 (the “Notes”), convertible into depositary units of
the Company (the “Depositary Units”) at an initial conversion price of $132.595.
Consequently 4,525,058 Depositary Units (the “Registered Units”) are being
registered for resale on the S-3 Registration Statement. The total dollar value
of the Registered Units as of April 4, 2007 (the date on which the purchase
agreement relating to the sale of the Notes was entered into, or the “Sale
Date”) was $521,739,187, calculated by multiplying the number of Registered
Units by $115.30, the market price of the Depositary Units on the Sale
Date.
| 2. |
Please
provide us, with a view toward disclosure in the prospectus, with
tabular
disclosure of the dollar amount of each payment, including the value
of
any payments to be made in common stock, in connection with the
transaction that you have made or may be required to make to any
selling
shareholder, any affiliate of a selling shareholder, or any person
with
whom any selling shareholders has a contractual relationship regarding
the
transaction, including any interest payments, liquidated damages,
payments
made to “finders” or “placement agents,” and any other payments or
potential payments. Please provide footnote disclosure of the terms
of
each such payment. Please do not include any repayment of principal
on the
convertible notes in this
disclosure.
|
The
table
below sets forth the dollar amount of the (i) payments that the Company has
currently made to selling securityholders in the form of (x) cash interest
payments and (y) special distributions; and (ii) payments that the Company
may
be required to make to selling securityholders in the form of (a) cash interest
payments, (b) special distributions, (c) liquidated damages and (d) a make-whole
premium payable following a Fundamental Change (as defined in the
Indenture).
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 3
of 19
|
|
Payments
made through Present
|
Potential
Required Payments
|
||||
|
Cash
Interest Payments1
|
Special
Distributions2
|
Cash
Interest
Payments3
|
Special
Distributions4
|
Additional
Interest5
|
Make-Whole
Premium6
|
|
$6,833,333.33
|
$0.377
|
$10
- $13.75
per
quarter
|
$0.377
per
quarter
|
$3.30
per month
|
Not
presently determinable
|
1
Represents quarterly cash interest payments paid to date by the Company per
each
$1,000 Note. Interest on the Notes accrues at a rate equal to LIBOR minus 1.25%,
but not less than 4% nor more than 5.5%.
2
Represents a special distribution per each $1,000 Note paid by the Company
to
holders of the Notes on each of June 1, 2007, September 7, 2007 and December
3,
2007. Pursuant to §4.07 of the Indenture governing the Notes (the “Indenture”),
if the Company declares a dividend payable to holders of the Depositary Units
in
excess of $0.10 per unit, then the Company is required to pay a dividend to
the
holders of the Notes equal to such excess. On each of May 4, 2007, August 3,
2007 and November 2, 2007, the Board of Directors of the Company declared a
$0.15 per unit dividend on the Depositary Units, resulting in this special
distribution, which was determined by multiplying the number of Depositary
Units
into which each $1,000 Note is convertible (based on a conversion price of
$132.595) by the excess amount of $0.05.
3
Represents cash interest payable per each $1,000 Note. Interest on the Notes
accrues at a rate equal to LIBOR minus 1.25%, but not less than 4% nor more
than
5.5%.
4
See Note
2 above. Represents a special distribution per each $1,000 Note payable by
the
Company to the holders of the Notes, assuming that the Company continues to
pay
a dividend to the holders of Depositary Units equal to $0.15 per unit per
quarter. The Company currently contemplates maintaining a quarterly dividend
at
this level. However, this special distribution payable to the holders of the
Notes would proportionally be decreased or increased to the extent that the
Company decreased or increased the quarterly dividend paid to holders of the
Depositary Units.
5
Represents additional interest the Company would be obligated to pay per each
$1,000 Note if (a) the S-3 Registration Statement is not declared effective
within 270 days of the initial sale of the Notes or (b) if the S-3 Registration
Statement is declared effective but thereafter ceases to be effective or usable
for resales of the Registered Units for a period that exceeds 60 days in any
12-month period (either such case, a “Registration Default”). Pursuant to a
Registration Rights Agreement entered into with the initial purchasers of the
Notes (the “Registration Rights Agreement”), the Company is required to pay
additional interest in an amount equal to 0.33% per $1,000 principal amount
of
Notes for each month that a Registration Default continues up to a maximum
of 4%
($40) per Note. The Company does not currently anticipate that it will be
required to pay any additional interest on the Notes.
6
Pursuant
to §15.01(a) of the Indenture, if a holder of Notes converts its Notes into
Depositary Units during a specified period following the announcement of a
Fundamental Change (as defined in the Indenture to include certain changes
in
control of the Company or the failure of the Depositary Units to be listed
for
trading on an Eligible Market (as defined in the Indenture)), the Company will
be required to pay a Make-Whole Premium, in the form of additional Depositary
Units, to such holder. The amount of such Make-Whole Premium would be determined
as set forth in §15.01 of the Indenture and is a function of the effective date
of such Fundamental Change and the price per Depositary Unit in the transaction
constituting such Fundamental Change.
Further,
please provide us, with a view toward disclosure in the prospectus, with
disclosure of the net proceeds to the issuer from the sale of the convertible
notes and the total possible payments to all selling shareholders and any of
their affiliates in the first year following the sale of the convertible notes.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 4
of 19
|
| 3. |
Please
provide us, with a view toward disclosure in the prospectus, with
tabular
disclosure of:
|
| · |
the
total maximum possible profit the selling shareholders could realize
as a
result of the conversion discount for the securities underlying the
convertible note, presented in a table with the following information
disclosed separately:
|
| à |
The
market price per share of the securities underlying the convertible
note
on the date of the sale of the convertible note:
and
|
| à |
The
conversion price per share of the underlying securities on the date
of the
sale of the convertible note, calculated as
follows:
|
| ¨ |
If
the conversion price per share is set at a fixed price, use the
price
per share established in the convertible note;
and
|
| ¨ |
If
the conversion price per share is not set at a fixed price and, instead
is
set at a floating rate in relationship to the market price of the
underlying security, use the conversion discount rate and the market
rate
per share on the date of the sale of the convertible note and determine
the conversion price per share as of that
date;
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 5
of 19
|
As
stated
above, the market price of the Depositary Units on the Sale Date was $115.30.
The Company issued the Notes with an initial conversion price of $132.595,
representing a 15% conversion premium
over the
market price of the Depositary Units.
| · |
the
total possible shares underlying the convertible notes, assuming
no
interest payments and complete conversion throughout the term of
the
note;
|
Pursuant
to the Indenture, the Company is obligated to make cash interest payments on
the
Notes at a floating rate, with a maximum interest rate of 5.5%. All interest
payments by the Company are payable solely in cash and the Company does not
have
a “payment-in-kind” option. Therefore, the total possible number of Depositary
Units underlying the Notes is the 4,525,058 Depositary Units being registered
in
the S-3 Registration Statement (subject to adjustment as discussed
below).
| · |
the
combined market price of the total number of shares underlying the
convertible note, calculated by using the market price per share
on the
date of the sale of the convertible note and the total possible shares
underlying the convertible
note;
|
As
stated
above, the total possible number of Depositary Units underlying the Notes is
the
4,528,058 Depositary Units being registered in the S-3 Registration Statement.
The combined market price of such Depositary Units is $521,739,187, calculated
by multiplying the Registered Units by $115.30, the market price of the
Depositary Units on the Sale Date.
| · |
the
total possible shares the selling shareholders may receive and the
combined conversion price of the total number of shares underlying
the
convertible note calculated by using the conversion price on the
date of
the sale of the convertible note and the total possible number of
shares
the selling shareholders may receive; and
|
As
stated
above, the total possible number of Depositary Units the selling shareholders
may receive is the 4,528,058 Depositary Units being registered in the S-3
Registration Statement, and the initial conversion price on the Sale Date is
$132.595.
| · |
the
total possible discount to the market price as of the date of the
sale of
the convertible note, calculated by subtracting the total conversion
price
on the date of the sale of the convertible note from the combined
market
price of the total number of shares underlying the convertible note
on
that date.
|
As
stated
above, the initial conversion price for the Depositary Units underlying the
Notes on the Sale Date of $132.595 represents a 15% conversion premium
over the
market price of the Depositary Units of $115.30 on the Sale Date, not a
conversion discount.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 6
of 19
|
If
there are provisions in the convertible note that could result in a change
in
the price per share upon the occurrence of certain events, please provide
additional tabular disclosure as appropriate. For example, if the conversion
price per share is fixed unless and until the market price falls below a stated
price, at which point the conversion price per share drops to a lower price,
please provide additional disclosure.
Pursuant
to §12.11(a) of the Indenture, if the Company completes an underwritten public
Offering (as defined in the Indenture) of Depositary Units at a price per unit
that is less than $115.30, then the conversion price of the Notes will be
reduced to an amount equal to 115% of such Offering price. In addition, if
no
Offering occurs within 18 months of the initial sale of the Notes, the
conversion price will be adjusted (downward but not upward) so that it equals
115% of the dollar volume-weighted average price, or VWAP (as defined in the
Indenture), per Depositary Unit for the 30 Trading Days (as defined in the
Indenture) ending on October 5, 2008. In each case, the conversion price of
the
Notes cannot be adjusted to less than $105.00. Adjustment of the conversion
price to $105.00 (the lowest permissible level) pursuant to either of these
events would represent a maximum potential profit of $10.30 per Depositary
Unit,
or $46.6 million in the aggregate, to holders of the Notes compared to the
$115.30 market price of the Depositary Units on the Sale Date. The Indenture
also includes other “anti-dilution” adjustments that are customary for
convertible notes.
| 4. |
Please
provide us, with a view toward disclosure in the prospectus, with
tabular
disclosure of:
|
| · |
the
total maximum possible profit to be realized as a result of any conversion
discounts for securities underlying any other warrants, options,
notes, or
other securities of the issuer that are held by the selling shareholders
or any affiliates of the selling shareholders, presented in a table
with
the following information disclosed
separately;
|
| à |
market
price per share of the underlying securities on the date of the sale
of
that other security; and
|
| à |
the
conversion/exercise price per share as of the date of the sale of
that
other security, calculated as
follows:
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 7
of 19
|
| ¨ |
if
the conversion/exercise price per share is set at a fixed price,
use the
price per share on the date of the sale of that other security; and
|
| ¨ |
if
the conversion /exercise price per share is not set at a fixed price,
and
instead, is set at a floating rate in relationship to the market
price of
the underlying security, use the conversion/exercise discount rate
and the
market rate per share on the date of the sale of that other security
and
determine the conversion price per share as of that
date:
|
| · |
the
total possible shares to be received under the particular securities,
assuming complete
conversion/exercise:
|
| · |
the
combined market price of the total number of underlying shares, calculated
by using the market price per share on the date of the sale of that
other
security and the total possible shares to be
received;
|
| · |
the
total possible shares to be received and the combined conversion
price of
the total number of shares underlying the other security calculated
by
suing the conversion price on the date of the sale of that other
security
and the total possible number of underlying shares;
and
|
| · |
the
total possible discount to the market price as of the date of the
sale of
that other security, calculated by subtracting the total
conversion/exercise price on the date of the sale of that other security
from the combined market price of the total number of underlying
shares on
that date.
|
Other
than the Notes, the Company does not have any convertible securities
outstanding.
| 5. |
Please
provide us, with a view toward disclosure in the prospectus, with
tabular
disclosure of:
|
| · |
the
gross proceeds paid or payable to the issuer in the convertible note
transaction;
|
| · |
all
payments that have been made or that may be required to be made by
the
issue that are disclosed in response to current comment 2;
|
| · |
the
resulting net proceeds to the issuer; and
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 8
of 19
|
| · |
the
combined total maximum possible profit to be realized as a result
of any
conversion discounts regarding the securities underlying the convertible
notes and any other warrants, options, notes or other securities
of the
issuer that are held by the selling shareholders or any affiliates
of the
selling shareholders that is disclosed in response to current comments
3
and 4.
|
|
Gross
proceeds from sale of Notes
|
$
|
600,000,000
|
||
|
Less:
|
||||
|
Reimbursement
of legal fees of initial purchasers
|
275,000
|
|||
|
Cash
interest1
|
198,000,000
|
|||
|
Special
distributions2
|
5,430,069
|
|||
|
Additional
interest3
|
24,000,000
|
|||
|
Make-whole
premium4
|
—
|
|||
|
Assumed
net proceeds to the Company
|
$
|
372,294,931
|
||
|
Total
maximum possible profit realizable by holders upon conversion of
the
Notes5
|
$
|
46,608,097
|
1
Assumes
cash interest is paid at the rate of 5.5% per annum, the maximum rate payable
under the Indenture.
2
Assumes
that the Company maintains its current dividend rate of $0.15 per Depositary
Unit per quarter. The amount of these special distributions is subject to
increase or decrease if the Company increases or decreases the dividend rate
on
the Depositary Units.
3
Assumes
that the Company pays additional interest of 4% relating to a Registration
Default, the maximum amount payable under the Registration Rights
Agreement.
4
As
discussed above, the amount of any Make-Whole Premium is not currently
determinable.
5
Assumes
that the conversion price of the Notes is adjusted to $105.00, the lowest
conversion price possible pursuant to §12.11(a) of the Indenture.
| · |
Further,
please provide us, with a view toward disclosure in the prospectus,
with
disclosure—as
a percentage—of
the total amount of all possible payments, as disclosed in response
to
current comment 2, and the total possible discount to the market
price of
the shares underlying the convertible note, as disclosed in response
to
current comment 3, divided by the net proceeds to the issuer, from
the
sale of the convertible notes, as well as the amount of that resulting
percentage averaged over the term of the convertible
notes.
|
Assuming
(a) the payment of cash interest on the Notes at a rate of 5.5%, the maximum
rate payable under the Indenture, (b) the payment of special distributions
to
holders of the Notes as a result of the Company paying a constant dividend
to
holders of Depositary Units of $0.15 per unit per quarter, (c) the payment
of 4%
of additional interest on the Notes relating to a Registration Default, the
maximum payable under the Registration Rights Agreement, (d) the payment of
no
Make-Whole Premiums in connection with a Fundamental Change and (e) an
adjustment of the conversion price to $105.00, the lowest possible level
pursuant to §12.11(a) of the Indenture, holders of the Notes would realize
$227,430,069 of combined value, representing 37.9% of the net proceeds to the
Company from the sale of the Notes (after deducting the legal fees of the
initial purchasers paid by the Company but before deducting the items described
in items (a) - (e) of this paragraph). Spread over the six-year life of the
Notes, this amount would be the equivalent of a 6.32% annual interest rate
on
the Notes.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 9
of 19
|
| 6. |
Please
provide us, with a view toward disclosure in the prospectus, with
tabular
disclosure of all prior securities transactions between the issuer,
or any
of its predecessors, and the selling shareholders, any affiliates
of the
selling shareholders, or any person with whom any selling shareholder
has
a contractual relationship regarding the transaction, or any predecessors
of those persons, with the table including the following information
disclosed separately for each
transaction:
|
| · |
the
date of the transaction;
|
| · |
the
number of shares of the class of securities subject to the transaction
that were outstanding prior to the
transaction;
|
| · |
the
number of shares of the class of securities subject to the transaction
that were outstanding prior to the transaction and held by persons
other
than the selling shareholders, affiliates of the Company, or affiliates
of
the selling shareholders;
|
| · |
the
number of shares of the class of securities subject to the transaction
that were issued or issuable in connection with the
transaction;
|
| · |
the
percentage of total issued and outstanding securities that were issued
or
issuable in the transaction, assuming full issuance, with the percentage
calculated by taking the number of shares issued and outstanding
prior to
the applicable transaction and held by persons other than the selling
shareholders, affiliates of the Company, or affiliates of the selling
shareholders, and dividing that number by the number of shares issued
or
issuable in connection with the applicable
transaction;
|
| · |
the
market price per share of the class of securities subject to the
transaction immediately prior to the transaction, reverse split adjusted,
if necessary; and
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page
10 of 19
|
| · |
the
current market price per share of the class of securities subject
to the
transaction, reverse split adjusted, if necessary.
|
The
Company has not entered into any prior securities transactions with any of
the
selling shareholders or their affiliates, or with any person with whom they
have
a contractual relationship regarding the transaction.
| 7. |
Please
provide us, with a view toward disclosure in the prospectus, with
tabular
disclosure comparing:
|
| · |
the
number of shares outstanding prior to the convertible note transaction
that are held by persons other than the selling shareholders, affiliates
of the Company, and affiliates of the selling
shareholders;
|
| · |
the
number of shares registered for resale by the selling shareholders
or
affiliates of the selling shareholders in prior registration
statements;
|
| · |
the
number of shares registered for resale by the selling shareholders
or
affiliates of the selling shareholders that continue to be held by
the
selling shareholders or affiliates of the selling
shareholders;
|
| · |
the
number of shares that have been sold in registered resale transactions
by
the selling shareholders or affiliates of the selling shareholders;
and
|
| · |
the
number of shares registered for resale on behalf of the selling
shareholders or affiliates of the selling shareholders in the current
transaction.
|
|
Shares
Outstanding Prior to Transaction
|
Registered
Shares for Resale in
Prior
Registration Statements
|
Registered
Shares Continued to be Held
|
Shares
Sold
|
Current
Shares Registered for Resale
|
|
6,201,449
|
-0-
|
-0-1
|
-0-
|
4,525,058
|
1 None,
other than the 4,525,058 Depositary Units to be registered for resale on the
S-3
Registration Statement.
| 8. |
Please
provide us, with a view toward disclosure in the prospectus, with
the
following information:
|
| · |
whether
the issuer has the intention, and a reasonable basis to believe that
it
will have the financial ability, to make all payments on the overlying
securities; and
|
The
Company has the intention, and a reasonable basis to believe that it will have
the financial ability, to make all payments on the overlying
securities.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page
11 of 19
|
| · |
whether
- based on information obtained from the selling shareholders - any
of the
selling shareholders have an existing short position in the Company’s
common stock and, if any of the selling shareholders have an existing
short position in the Company’s stock, the following additional
information:
|
| à |
the
date on which each such selling shareholder entered into that short
position; and
|
| à |
the
relationship on the date on which each such selling shareholder entered
into that short position to the date of the announcement of the
convertible note transaction and the filing of the registration statement,
e.g., before or after the announcement of the convertible note
transaction, before the filing or after the filing of the registration
statement, etc.
|
Based
on
the information received from the selling securityholders, the following selling
securityholders have, or may have, an existing short position with the Company.
Note that although the Company has no reason to believe that any of this
information is inaccurate, this information has been provided to the Company
by
the selling securityholders and is as of the date provided to the
Company.
|
Name
of Selling Securityholder
|
Date
of Short Position
|
Date
of Short Position in relation to Date of Announcement of Convertible
Note
Transaction
|
Person(s)
with Sole or Shared Voting or Dispositive
Powers
|
|
Bank
Austria Special Situation(1)
|
See
footnote (1).
|
See
footnote (1).
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
CNH
CA Master Account, L.P.
|
5/03/07
|
After
the announcement of the convertible note transaction and before the
filing
of the Registration Statement
|
Robert
Krail
Mark
Mitchell
Todd
Pulvino
|
|
Linden
Capital LP
|
6/5/07
6/12/07
6/25/07
|
All
short sales were entered into after the announcement of the convertible
note transactions. Some sales were entered into prior to or after
the
Registration Statement was filed.
|
Siu
Min Wong
|
|
RCG
Enterprise, Ltd.(1)
|
See
footnote (1).
|
See
footnote (1).
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 12
of 19
|
|
Name
of Selling Securityholder
|
Date
of Short Position
|
Date
of Short Position in relation to Date of
Announcement
of Convertible Note Transaction
|
Person(s)
with Sole or Shared
Voting
or Dispositive
Powers
|
|
RCG
Baldwin, L.P.(1)
|
See
footnote (1).
|
See
footnote (1).
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
RCG
Latitude Master Fund, Ltd.(1)
|
See
footnote (1).
|
See
footnote (1).
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
RCG
PB, Ltd.(1)
|
See
footnote (1).
|
See
footnote (1).
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
______________
(1)
In
the ordinary course of its business in trading securities positions, the selling
securityholder may enter into short sales. However, no such short sales
were entered into prior to the public announcement of any private placement
pursuant to which the applicable securities were acquired by the selling
securityholder and the selling securityholder is aware of and adheres to the
position of the Staff of the SEC set forth in Item A.65 of the SEC Telephone
Interpretations Manual.
| 9. |
Please
provide us, with a view toward disclosure in the prospectus,
with:
|
| · |
a
materially complete description of the relationships and arrangements
that
have existed in the past three years or are to be performed in the
future
between the issuer, or any of its predecessors, and the selling
shareholders, any affiliates of the selling shareholders, or any
person
with whom any selling shareholder has a contractual relationship
regarding
the transaction, or any predecessors of those persons - the information
provided should include, in reasonable detail, a complete description
of
the rights and obligations of the parties in connection with the
sale of
the convertible notes; and
|
| · |
copies
of all agreements between the issuer, or any of its predecessors,
and the
selling shareholders, any affiliates of the selling shareholders,
or any
person with whom any selling shareholder has a contractual relationship
regarding the transaction, or any predecessors of those persons,
in
connection with the sale of the convertible
notes.
|
None.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 13
of 19
|
| 10. |
Please
provide us, with a view toward disclosure in the prospectus, with
a
description of the method by which the Company determined the number
of
shares it seeks to register in connection with this registration
statement. In this regard, please ensure that the number of shares
registered in the fee table is consistent with the shares listed
in the
Stock Ownership of Management and Principal Stockholders section
and the
Selling Stockholders section of the
prospectus.
|
The
Company divided the $600,000,000 aggregate principal amount of Notes outstanding
by the initial conversion price of $132.595, which resulted in the 4,525,058
Depositary Units being offered for resale on the S-3 Registration Statement.
Under the Selling Securityholders section of the S-3 Registration Statement,
the
Company listed in tabular form selling securityholders (and the Depositary
Units
beneficially owned by each of the listed selling securityholders) based on
information provided to the Company by such selling securityholders in an
applicable Notice and Questionnaire prior to the filing of the S-3 Registration
Statement. In accordance with the terms of the Registration Rights Agreement,
the Company is obligated to disclose in the S-3 Registration Statement only
those selling securityholders who have provided the Company with a properly
completed Notice and Questionnaire. The Company has updated the selling
securityholder table based on new or revised Notice and Questionnaires provided
to the Company by selling securityholders prior to the filing of Amendment
No. 1
to the S-3 Registration Statement.
| 11. |
We
note that the Lear Corporation shareholders have voted down your
buyout
offer. Please disclose this fact in this registration statement and
thoroughly revise the registration statement in all the applicable
locations to account for this recent development. In this regard,
please
discuss your plans regarding the Lear Corporation going forward.
|
In
its
Current Report on Form 8-K filed with the Commission on July 18, 2007, as well
as its Quarterly Report on Form 10-Q for the quarter ended June 30, 2007 (each
of which periodic reports has been or will be incorporated by reference into
the
S-3 Registration Statement, the S-4 Registration Statement and the Amendments
thereto), the Company disclosed the rejection of the merger agreement entered
into by the Company with respect to the potential acquisition of the Lear
Corporation (“Lear”) at Lear’s 2007 Annual Meeting of Stockholders on July 16,
2007, and the ramifications thereof. In addition, the Company intends to
eliminate in its Amendments (i) any reference to a potential acquisition of
Lear, (ii) Unaudited Pro Forma Condensed Combined Financial Statements related
to the acquisition of Lear and the issuance of notes to finance a portion
thereof and (iii) Lear’s audited annual and unaudited interim financial
statements, with accompanying footnotes.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 14
of 19
|
Selling
Securityholders, page 36
| 12. |
With
respect to the shares to be offered for resale by each selling
securityholder that is a legal entity, please disclose the natural
persons
or persons who exercise the sole or shared voting or disposivite
powers
with respect to the securities to be offered by that
securityholder.
|
|
Selling
Securityholder
|
Person(s)
with Sole or Shared Voting or Dispositive
Powers
|
|
AHFP
Context
|
Michael
S. Rosen
William
D. Fertig
|
|
Altma
Fund SICAV PLC In Respect of the Grafton Sub Fund
|
Michael
S. Rosen
William
D. Fertig
|
|
Altma
Fund SICAV PLC In Respect of Sub-Trinity Fund
|
Mark
Friedman
|
|
AM
International E Mac 63 Ltd.
|
Mark
Friedman
|
|
AM
Master Fund I, L.P.
|
Mark
Friedman
|
|
AQR
Absolute Return Master Account, L.P.
|
Clifford
Asness
Robert
Krail
John
Liew
David
Kabiller
Jacques
Friedman
Oktay
Kurbanov
Ronen
Israel
Lars
Nielsen
|
|
Argent
Classic Convertible Arbitrage Fund Ltd.
|
Nathanial
Brown
Robert
Richardson
|
|
Argent
Classic Convertible Arbitrage Fund, L.P.
|
Nathanial
Brown
Robert
Richardson
|
|
Argent
Classic Convertible Arbitrage Fund II, L.P.
|
Nathanial
Brown
Robert
Richardson
|
|
Argent
LowLev Convertible Arbitrage Fund Ltd.
|
Nathanial
Brown
Robert
Richardson
|
|
Argent
LowLev Convertible Arbitrage Fund II, LLC
|
Nathanial
Brown
Robert
Richardson
|
|
Argent
Multi-Strategy Fund Ltd. Classic
|
Nathanial
Brown
Robert
Richardson
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 15
of 19
|
|
Selling
Securityholder
|
Person(s)
with Sole or Shared Voting or Dispositive
Powers
|
|
Argentum
Multi-Strategy Fund I LP Classic
|
Nathanial
Brown
Robert
Richardson
|
|
Bank
Austria Special Situation
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
Solomon
|
|
CASAM
Context Offshore Advantage Fund Limited
|
Michael
S. Rosen
William
D. Fertig
|
|
CGNU
Life Fund
|
David
Clott
|
|
Class
C Trading Company, Ltd.
|
Nathanial
Brown
Robert
Richardson
|
|
CNH
CA Master Account, L.P.
|
Robert
Krail
Mark
Mitchell
Todd
Pulvino
|
|
Commercial
Union Life Fund
|
David
Clott
|
|
Context
Advantage Master Fund, L.P.
|
Michael
S. Rosen
William
D. Fertig
|
|
Credit
Suisse Securities Europe Ltd.
|
Gerry
Murtough
|
|
DBAG
London
|
John
Arnone
|
|
Elite
Classic Convertible Arbitrage Ltd.
|
Nathanial
Brown
Robert
Richardson
|
|
Finch
Tactical Plus Class B
|
Michael
S. Rosen
William
D. Fertig
|
|
HFR
CA Global Select Master Trust Account
|
Nathanial
Brown
Robert
Richardson
|
|
Highbridge
Convertible Arbitrage Master Fund, L.P.
|
Glen
Dubin
Henry
Swieca
|
|
Highbridge
International LLC
|
Glen
Dubin
Henry
Swieca
|
|
Institutional
Benchmarks Series (Master Feeder) Limited in Respect of Alcor
Series
|
Michael
S. Rosen
William
D. Fertig
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 16
of 19
|
|
Selling
Securityholder
|
Person(s)
with Sole or Shared Voting or Dispositive
Powers
|
|
Lehman
Brothers
|
Bruce
Spolansky
|
|
Linden
Capital LP
|
Siu
Min Wong
|
|
Lyxor/AM
Investment Fund LTD.
|
Mark
Friedman
|
|
Lyxor/Context
Fund Ltd.
|
Michael
S. Rosen
William
D. Fertig
|
|
Lyxor/Master
Fund Ref: Argent/LowLev CB c/o Argent
|
Nathanial
Brown
Robert
Richardson
|
|
Norwich
Union Life and Pensions
|
David
Clott
|
|
Partners
Group Alternative Strategies PCC LTD
|
Nathanial
Brown
Robert
Richardson
|
|
PBGC
Maintenance
|
Chris
Dialynas
|
|
Portside
Growth and Opportunity Fund
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
Privilege
Portfolio SICAV
|
David
Clott
|
|
RCG
Enterprise, Ltd.
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
RCG
Baldwin, L.P.
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
RCG
Latitude Master Fund, Ltd.
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
RCG
PB, Ltd.
|
Peter
A. Cohen
Morgan
B. Stark
Thomas
W. Strauss
Jeffrey
M. Solomon
|
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page 17
of 19
|
|
Selling
Securityholder
|
Person(s)
with Sole or Shared Voting or Dispositive
Powers
|
|
Xavex
Convertible Arbitrage 2 Fund
|
Nathanial
Brown
Robert
Richardson
|
|
Xavex
Convertible Arbitrage 10 Fund
|
Nathanial
Brown
Robert
Richardson
|
|
Worldwide
Transaction Limited
|
Michael
S. Rosen
William
D. Fertig
|
Note
that, although the Company has no reason to believe that any of the above
information is inaccurate, this information has been provided to the Company
by
the selling securityholders and is as of the date provided to the
Company.
Incorporation
of Certain Documents by Reference, page 40
| 13. |
We
note that you have not incorporated by reference your current reports
on
Forms 8-K that you filed on July 9, 2007, February 9, 2007 and January
19,
2007. Please revise to incorporate these documents by reference.
|
We
will
incorporate all of these reports in the Amendments.
Registration
Statement on Form S-4
| 14. |
Please
revise your registration statement to comply with the above comments
as
applicable.
|
Please
note our response to question 11 with respect to the Company’s disclosure
related to the rejection of the potential Lear acquisition.
Item
22. Undertakings, page II-2
| 15. |
Please
include all of the undertakings required by Item 22 of Form S-4.
|
The
Company believes it has included in the S-4 Registration Statement all of its
required undertakings pursuant to Item 512 of Regulation S-K.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
December
5, 2007
Page
18 of 19
|
This
is
to acknowledge that:
-
The
Company understands that it is responsible for the adequacy and accuracy of
the
disclosure in its filings;
-
The
Company understands that staff comments or changes to disclosure in response
to
staff comments do not foreclose the Commission from taking any action with
respect to its filings; and
-
The
Company understands that it may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the federal
securities laws of the United States.
|
John
Fieldsend, Esq.
United
States Securities and
Exchange
Commission
|
Page 19
of 19
|
We
would
appreciate your prompt review of these materials and your prompt notification
to
us if you have further comments or questions. Please contact me should you
have
any questions or additional comments.
Very
truly yours,
/s/
Julie
M. Allen
Enclosures
| cc: |
H.
Christopher Owens, Esq. (SEC)
Keith
A. Meister (Icahn Enterprises L.P.)
|