e424b3
The
information contained in this preliminary prospectus supplement
is not complete and may be changed. This preliminary prospectus
supplement and the accompanying prospectus are not an offer to
sell the shares and are not soliciting an offer to buy the
shares in any jurisdiction where the offer or sale is not
permitted.
|
Filed Pursuant to
Rule 424(b)(3)
Registration
No. 333-166016
Subject to Completion, dated
November 16, 2010
CVR Energy, Inc.
|
|
15,000,000 Shares
|
Common Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
The selling stockholders named in this prospectus supplement are
offering 15,000,000 shares of our common stock. We will not
receive any proceeds from the sale of our common stock by the
selling stockholders.
|
|
Our common stock, par value $0.01 per share, is listed on the
New York Stock Exchange under the symbol CVI. As of
November 15, 2010, the closing price of our common stock
was $11.23 per share.
|
|
Investing in our common stock
involves risks. You should carefully consider all of the
information set forth in and incorporated by reference in this
prospectus supplement, including the risk factors described
under the caption Risk Factors in the periodic
reports we file with the Securities and Exchange Commission (the
SEC), as well as the risk factors and other
information in the accompanying prospectus and any documents we
incorporate by reference herein, before deciding to invest in
our common stock. See Incorporation By
Reference.
|
|
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus supplement. Any representation to the contrary is a
criminal offense.
|
|
|
|
|
|
|
|
|
|
|
|
Per Share
|
|
|
Total
|
|
|
Public offering price
|
|
$
|
|
|
|
$
|
|
|
Underwriting discount
|
|
$
|
|
|
|
$
|
|
|
Proceeds to the selling stockholders
|
|
$
|
|
|
|
$
|
|
|
|
|
|
|
|
|
To the extent that the underwriters sell more than
15,000,000 shares of common stock, the underwriters have
the option to purchase up to an additional 2,250,000 shares
of common stock from certain of the selling stockholders at the
public offering price less the underwriting discount. We will
not receive any of the proceeds from the sale of shares by the
selling stockholders pursuant to any exercise of the
underwriters option to purchase additional shares.
|
|
The underwriters expect to deliver the shares against payment in
New York, New York
on ,
2010
|
|
|
|
|
|
Joint Book-Running Managers
|
|
Deutsche
Bank Securities |
Goldman, Sachs & Co. |
|
|
Simmons
& Company International |
Tudor, Pickering, Holt & Co. |
Prospectus Supplement dated November , 2010
(To Prospectus dated July 1, 2010)
This document is in two parts. The first part is this prospectus
supplement, which adds, updates and changes information
contained in the accompanying prospectus and the information
incorporated by reference. The second part is the accompanying
prospectus, which gives more general information, some of which
may not apply to this offering of shares of common stock. To the
extent the information contained in this prospectus supplement
differs or varies from the information contained in the
accompanying prospectus or any document incorporated by
reference, the information in this prospectus supplement shall
control.
At varying places in this prospectus supplement and the
accompanying prospectus, we refer you to other sections of the
documents for additional information by indicating the caption
heading of the other sections. The page on which each principal
caption included in this prospectus supplement and the
accompanying prospectus can be found is listed in the Table of
Contents on the back cover page of this prospectus supplement.
All cross-references in this prospectus supplement are to
captions contained in this prospectus supplement and not in the
accompanying prospectus, unless otherwise stated.
No dealer, sales person or other person is authorized to give
any information or to represent anything not contained in this
prospectus supplement or the accompanying prospectus. You must
not rely on any unauthorized information or representations. The
selling stockholders are offering to sell, and seeking offers to
buy, shares of our common stock only where those offers and
sales are permitted.
In this prospectus supplement, all references to the
Company, CVR Energy, we,
us and our refer to CVR Energy, Inc., a
Delaware corporation, and its consolidated subsidiaries, and all
references to the nitrogen fertilizer business and
the Partnership refer to CVR Partners, LP, a
Delaware limited partnership that owns and operates our nitrogen
fertilizer facility, unless the context otherwise requires or
where otherwise indicated. The Company currently owns all of the
interests in the Partnership other than the managing general
partner interest and associated incentive distribution rights.
i
CVR ENERGY,
INC.
We are an independent refiner and marketer of high value
transportation fuels and, through CVR Partners, LP (the
Partnership), a limited partnership, a producer of
ammonia and urea ammonia nitrate, or UAN, fertilizers. We are
one of only eight petroleum refiners and marketers located
within the mid-continent region (Kansas, Oklahoma, Missouri,
Nebraska and Iowa). The nitrogen fertilizer business is the only
marketer of ammonia and UAN fertilizers in North America that
produces ammonia using a petroleum coke, or pet coke,
gasification process.
Our petroleum business includes a 115,000 barrel per day,
or bpd, complex full coking medium-sour crude refinery in
Coffeyville, Kansas. In addition, our supporting businesses
include (1) a crude oil gathering system with a capacity of
approximately 35,000 bpd serving Kansas, Oklahoma, western
Missouri, and southwestern Nebraska, (2) a 145,000 bpd
pipeline system that transports crude oil from Caney, Kansas to
our refinery with 1.2 million barrels of associated
company-owned storage tanks and an additional 2.7 million
barrels of leased storage capacity located at Cushing, Oklahoma,
(3) a rack marketing division supplying product through
tanker trucks for distribution directly to customers located in
close geographic proximity to Coffeyville and Phillipsburg and
to customers at throughput terminals on refined products
distribution systems run by Magellan Midstream Partners, L.P.
and NuStar Energy, LP and (4) storage and terminal
facilities for asphalt and refined fuels in Phillipsburg,
Kansas. Our refinery is situated approximately 100 miles
from Cushing, Oklahoma, one of the largest crude oil trading and
storage hubs in the United States, served by numerous pipelines
from locations including the U.S. Gulf Coast and Canada,
providing us with access to virtually any crude oil variety in
the world capable of being transported by pipeline.
The nitrogen fertilizer business consists of a nitrogen
fertilizer plant in Coffeyville, Kansas that includes two pet
coke gasifiers. The nitrogen fertilizer business is the only
operation in North America that utilizes a petroleum coke
gasification process to produce ammonia. The nitrogen fertilizer
manufacturing facility is comprised of (1) a 1,225
ton-per-day
ammonia unit, (2) a 2,025
ton-per-day
UAN unit and (3) a dual-train gasifier complex, each having
a capacity of approximately 84 million standard cubic feet
per day. By using pet coke (a coal-like substance that is
produced during the refining process) instead of natural gas as
a primary raw material, at current natural gas and pet coke
prices, we believe the nitrogen fertilizer plant business is one
of the lowest cost producers and marketers of ammonia and UAN
fertilizers in North America. A majority of the ammonia produced
by the nitrogen fertilizer plant is further upgraded to UAN
fertilizer (a solution of urea and ammonium nitrate in water
used as a fertilizer). On average during the last five years,
over 73% of the pet coke utilized by the fertilizer plant was
produced and supplied to the fertilizer plant as a byproduct of
our refinery. For additional information regarding our plans
with respect to the nitrogen fertilizer business, please see our
Current Report on Form 8-K filed with the SEC on November 2,
2010 and incorporated by reference into this prospectus
supplement.
Prior to this offering, we have been considered a
controlled company within the meaning of the New
York Stock Exchange (NYSE) listing requirements
because more than 50% of our outstanding shares of common stock
were beneficially owned by certain funds affiliated with
Goldman, Sachs & Co. and Kelso & Company, L.P. (the
Goldman Sachs Funds and the Kelso Funds,
respectively) as of September 30, 2010. As a
controlled company under NYSE rules, we have not
been subject to a number of corporate governance rules relating
to the composition of our board of directors and certain
committees. As a result of and following this offering, we will
no longer be a controlled company because the
Goldman Sachs Funds and the Kelso Funds will collectively own
less than 50% of our common stock. As a result, in accordance
with NYSE rules, we will be required to have a majority of
independent directors within 12 months of the consummation of
this offering. In addition, our nominating and corporate
governance committee and compensation committee will need to
have a majority of independent directors within 90 days of the
consummation of this offering and will need to be comprised
entirely of independent directors within one year of the
consummation of this offering. In addition, if the underwriters
exercise their option to purchase additional shares in full, the
Goldman Sachs Funds will beneficially own less than 20% of our
outstanding shares of common stock, in which case the Goldman
Sachs Funds will have the right to nominate only one director
(compared to two directors which they currently nominate).
CVR Energy, Inc. was incorporated in Delaware in September 2006.
Our principal executive offices are located at 2277 Plaza Drive,
Suite 500, Sugar Land, Texas 77479, and our telephone
number is
(281) 207-3200.
S-1
RISK
FACTORS
Investing in our common stock involves risks. You should
carefully consider the Risk Factors set forth in our
Annual Report on
Form 10-K
for the fiscal year ended December 31, 2009 and our
Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2010, June 30, 2010 and September 30,
2010, which are incorporated by reference into this prospectus
supplement, and the accompanying prospectus, as well as other
risk factors described under the caption Risk
Factors in any documents we incorporate by reference into
this prospectus supplement, before deciding to invest in any of
our securities. See Incorporation By Reference.
S-2
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement contains forward-looking statements.
We claim the protection of the safe harbor for forward-looking
statements provided in the Private Securities Litigation Reform
Act of 1995, Section 27A of the Securities Act of 1933, as
amended (the Securities Act) and Section 21E of
the Securities Exchange Act of 1934, as amended (the
Exchange Act). Statements that are predictive in
nature, that depend upon or refer to future events or conditions
or that include the words believe,
expect, anticipate, intend,
estimate and other expressions that are predictions
of or indicate future events and trends and that do not relate
to historical matters identify forward-looking statements. Our
forward-looking statements include statements about our business
strategy, our industry, our future profitability, our expected
capital expenditures and the impact of such expenditures on our
performance, the costs of operating as a public company, our
capital programs and environmental expenditures. These
statements involve known and unknown risks, uncertainties and
other factors, including the factors described under Risk
Factors, that may cause our actual results and performance
to be materially different from any future results or
performance expressed or implied by these forward-looking
statements. Such risks and uncertainties include, among other
things:
|
|
|
|
|
volatile margins in the refining industry;
|
|
|
|
exposure to the risks associated with volatile crude prices;
|
|
|
|
the availability of adequate cash and other sources of liquidity
for our capital needs;
|
|
|
|
disruption of our ability to obtain an adequate supply of crude
oil;
|
|
|
|
interruption of the pipelines supplying feedstock and in the
distribution of our products;
|
|
|
|
competition in the petroleum and nitrogen fertilizer businesses;
|
|
|
|
capital expenditures required by environmental laws and
regulations;
|
|
|
|
changes in our credit profile;
|
|
|
|
the potential decline in the price of natural gas, which affects
our competitors cost to produce nitrogen fertilizer
products;
|
|
|
|
the cyclical nature of the nitrogen fertilizer business;
|
|
|
|
adverse weather conditions, including potential floods and other
natural disasters;
|
|
|
|
the supply and price levels of essential raw materials;
|
|
|
|
the volatile nature of ammonia, potential liability for
accidents involving ammonia that cause interruption to our
business, severe damage to property
and/or
injury to the environment and human health and potential
increased costs relating to transport of ammonia;
|
|
|
|
the dependence of the nitrogen fertilizer operations on a few
third-party suppliers, including providers of transportation
services and equipment;
|
|
|
|
the potential loss of the nitrogen fertilizer business
transportation cost advantage over its competitors;
|
|
|
|
existing and proposed environmental laws and regulations,
including those related to climate change, alternative energy or
fuel sources, and the end-use and application of fertilizers;
|
|
|
|
refinery and nitrogen fertilizer facility operating hazards and
interruptions, including unscheduled maintenance or downtime,
and the availability of adequate insurance coverage;
|
S-3
|
|
|
|
|
our significant indebtedness;
|
|
|
|
our voting power in the Partnership could be reduced and our
rights to distributions from the Partnership could be materially
adversely affected; and
|
|
|
|
the instability and volatility in the capital and credit markets.
|
You should not place undue reliance on our forward-looking
statements. Although forward-looking statements reflect our good
faith beliefs at the time made, reliance should not be placed on
forward-looking statements because they involve known and
unknown risks, uncertainties and other factors, which may cause
our actual results, performance or achievements to differ
materially from anticipated future results, performance or
achievements expressed or implied by such forward-looking
statements. We undertake no obligation to publicly update or
revise any forward-looking statement, whether as a result of new
information, future events, changed circumstances or otherwise.
This list of factors is illustrative, but by no means
exhaustive. Accordingly, all forward-looking statements should
be evaluated with the understanding of their inherent
uncertainty. You are advised to consult any further disclosures
we make on related subjects in the reports we file with the SEC
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act.
S-4
USE OF
PROCEEDS
We will not receive any proceeds from the sale of shares of our
common stock by the selling stockholders identified in this
prospectus supplement. The selling stockholders will receive all
of the net proceeds from the sale of their shares of our common
stock. See Selling Stockholders.
S-5
SELLING
STOCKHOLDERS
This prospectus supplement has been filed pursuant to
registration rights granted to the selling stockholders in
connection with our initial public offering in order to permit
the selling stockholders to resell to the public shares of our
common stock, as well as any common stock that we may issue or
may be issuable by reason of any stock split, stock dividend or
similar transaction involving these shares. Under the terms of
the registration rights agreements between us and the selling
stockholders named herein, we will pay all expenses of the
registration of their shares of our common stock, including SEC
filings fees, except that the selling stockholders will pay all
underwriting discounts and selling commissions.
The table below sets forth certain information known to us,
based upon written representations from the selling
stockholders, with respect to the beneficial ownership of the
shares of our common stock held by the selling stockholders as
of November 15, 2010.
Based on information provided to us, the selling stockholders
did not purchase shares of our common stock outside the ordinary
course of business or, at the time of their acquisition of
shares of our common stock, did not have any agreements,
understandings or arrangements with any other persons, directly
or indirectly, to dispose of the shares.
In the table below, the percentage of shares beneficially owned
is based on 87,119,493 shares of our common stock
outstanding as of November 15, 2010 (which includes
772,225 restricted shares). Beneficial ownership is
determined under the rules of the SEC and generally includes
voting or investment power with respect to securities. Unless
indicated below, to our knowledge, the persons and entities
named in the table have sole voting and sole investment power
with respect to all shares beneficially owned, subject to
community property laws where applicable. Shares of our common
stock subject to options that are currently exercisable or
exercisable within 60 days of the date of this prospectus
supplement are deemed to be outstanding and to be beneficially
owned by the person holding such options for the purpose of
computing the percentage ownership of that person but are not
treated as outstanding for the purpose of computing the
percentage ownership of any other person. Except as otherwise
indicated, the business address for each of our beneficial
owners is
c/o CVR
Energy, Inc., 2277 Plaza Drive, Suite 500, Sugar Land,
Texas 77479.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Beneficially
|
|
|
|
|
|
Shares Beneficially
|
|
|
|
Owned
|
|
|
Number of
|
|
|
Owned
|
|
Beneficial Owner
|
|
Prior to the Offering
|
|
|
Shares
|
|
|
After the Offering
|
|
Name and Address
|
|
Number
|
|
|
Percent
|
|
|
Offered
|
|
|
Number
|
|
|
Percent
|
|
|
Coffeyville Acquisition LLC (1)
|
|
|
31,433,360
|
|
|
|
36.1
|
%
|
|
|
8,457,845
|
|
|
|
22,975,515
|
|
|
|
26.4
|
%
|
Kelso Investment Associates VII, L.P. (1)
|
|
|
31,433,360
|
|
|
|
36.1
|
%
|
|
|
8,457,845
|
|
|
|
22,975,515
|
|
|
|
26.4
|
%
|
320 Park Avenue, 24th Floor
New York, New York 10022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
KEP VI, LLC (1)
|
|
|
31,433,360
|
|
|
|
36.1
|
%
|
|
|
8,457,845
|
|
|
|
22,975,515
|
|
|
|
26.4
|
%
|
Coffeyville Acquisition II LLC (2)
|
|
|
24,057,096
|
|
|
|
27.6
|
%
|
|
|
6,472,155
|
|
|
|
17,584,941
|
|
|
|
20.2
|
%
|
The Goldman Sachs Group, Inc. (2)
|
|
|
24,057,296
|
|
|
|
27.6
|
%
|
|
|
6,472,155
|
|
|
|
17,585,141
|
|
|
|
20.2
|
%
|
200 West Street
New York, New York 10282
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scott L. Lebovitz (2)
|
|
|
24,057,296
|
|
|
|
27.6
|
%
|
|
|
6,472,155
|
|
|
|
17,585,141
|
|
|
|
20.2
|
%
|
John J. Lipinski (3)
|
|
|
470,003
|
|
|
|
*
|
|
|
|
70,000
|
|
|
|
400,003
|
|
|
|
*
|
|
George E. Matelich (1)
|
|
|
31,433,360
|
|
|
|
36.1
|
%
|
|
|
8,457,845
|
|
|
|
22,975,515
|
|
|
|
26.4
|
%
|
Stanley de J. Osborne (1)
|
|
|
31,433,360
|
|
|
|
36.1
|
%
|
|
|
8,457,845
|
|
|
|
22,975,515
|
|
|
|
26.4
|
%
|
|
|
|
*
|
|
Less than 1%.
|
|
|
|
Coffeyville Acquisition LLC and
Coffeyville Acquisition II LLC have granted the underwriters the
option to purchase from them, on a pro rata basis, an aggregate
of 2,250,000 additional shares. If the option to purchase
additional shares were exercised in full, after the offering
Coffeyville Acquisition LLC would own 21,706,838 shares, or
24.9%, of our common stock, and Coffeyville Acquisition II
LLC, would own 16,614,318 shares, or 19.1%, of our common
stock.
|
S-6
|
|
|
(1)
|
|
Coffeyville Acquisition LLC
directly owns 31,433,360 shares of common stock. Kelso
Investment Associates VII, L.P. (KIA VII), a
Delaware limited partnership, owns a number of common units in
Coffeyville Acquisition LLC that corresponds to
24,557,883 shares of common stock of which 6,607,845 shares
may be deemed to be offered for sale pursuant to this prospectus
supplement, with 17,950,038 shares of common stock deemed
to be beneficially owned after the offering assuming all shares
being offered hereby are sold and KEP VI, LLC (KEP
VI and together with KIA VII, the Kelso
Funds), a Delaware limited liability company, owns a
number of common units in Coffeyville Acquisition LLC that
corresponds to 6,081,000 shares of common stock of which
1,636,228 shares may be deemed to be offered for sale
pursuant to this prospectus supplement, with
4,444,772 shares of common stock deemed to be beneficially
owned after the offering assuming all shares being offered
hereby are sold. The Kelso Funds may be deemed to beneficially
own indirectly, in the aggregate, all of the common stock of the
Company owned by Coffeyville Acquisition LLC because the Kelso
Funds control Coffeyville Acquisition LLC and have the power to
vote or dispose of the common stock of the Company owned by
Coffeyville Acquisition LLC. KIA VII and KEP VI, due to their
common control, could be deemed to beneficially own each of the
others shares but each disclaims such beneficial
ownership. Messrs. Nickell, Wall, Matelich, Goldberg,
Bynum, Wahrhaftig, Berney, Loverro, Connors, Osborne and Moore
(the Kelso Individuals) may be deemed to share
beneficial ownership of shares of common stock owned of record
or beneficially owned by KIA VII, KEP VI and Coffeyville
Acquisition LLC by virtue of their status as managing members of
KEP VI and of Kelso GP VII, LLC, a Delaware limited liability
company, the principal business of which is serving as the
general partner of Kelso GP VII, L.P., a Delaware limited
partnership, the principal business of which is serving as the
general partner of KIA VII. Each of the Kelso Individuals share
investment and voting power with respect to the ownership
interests owned by KIA VII, KEP VI and Coffeyville Acquisition
LLC but disclaim beneficial ownership of such interests.
Mr. Collins may be deemed to share beneficial ownership of
shares of common stock owned of record or beneficially owned by
KEP VI and Coffeyville Acquisition LLC by virtue of his status
as a managing member of KEP VI. Mr. Collins shares
investment and voting power with the Kelso Individuals with
respect to ownership interests owned by KEP VI and Coffeyville
Acquisition LLC but disclaims beneficial ownership of such
interests.
|
|
(2)
|
|
Coffeyville Acquisition II LLC
directly owns 24,057,296 shares of common stock. GS Capital
Partners V Fund, L.P., GS Capital Partners V Offshore Fund,
L.P., GS Capital Partners V GmbH & Co. KG and GS
Capital Partners V Institutional, L.P. (collectively, the
Goldman Sachs Funds) are members of Coffeyville
Acquisition II LLC and own common units of Coffeyville
Acquisition II LLC. The Goldman Sachs Funds common
units in Coffeyville Acquisition II LLC correspond to
23,821,799 shares of common stock. The Goldman Sachs Group,
Inc. and Goldman, Sachs & Co. may be deemed to
beneficially own indirectly, in the aggregate, all of the common
stock owned by Coffeyville Acquisition II LLC through the
Goldman Sachs Funds because (i) affiliates of Goldman,
Sachs & Co. and The Goldman Sachs Group, Inc. are the
general partner, managing general partner, managing partner,
managing member or member of the Goldman Sachs Funds and
(ii) the Goldman Sachs Funds control Coffeyville
Acquisition II LLC and have the power to vote or dispose of
the common stock of the Company owned by Coffeyville
Acquisition II LLC. Goldman, Sachs & Co. is a
direct and indirect wholly-owned subsidiary of The Goldman Sachs
Group, Inc. Goldman, Sachs & Co. is the investment
manager of certain of the Goldman Sachs Funds. Shares that may
be deemed to be beneficially owned by the Goldman Sachs Funds
consist of: (1) 12,543,608 shares of common stock that
may be deemed to be beneficially owned by GS Capital Partners V
Fund, L.P. and its general partner, GSCP V Advisors, L.L.C., of
which 3,374,646 shares may be deemed to be offered for sale
pursuant to this prospectus supplement, with
9,168,962 shares of common stock deemed to be beneficially
owned after the offering assuming all shares being offered
hereby are sold, (2) 6,479,505 shares of common stock
that may be deemed to be beneficially owned by GS Capital
Partners V Offshore Fund, L.P. and its general partner, GSCP V
Offshore Advisors, L.L.C., of which 1,743,201 shares may be
deemed to be offered for sale pursuant to this prospectus
supplement, with 4,736,304 shares deemed to be beneficially
owned after the offering assuming all shares being offered
hereby are sold, (3) 4,301,376 shares of common stock
that may be deemed to be beneficially owned by GS Capital
Partners V Institutional, L.P. and its general partner, GSCP V
Advisors, L.L.C., of which 1,157,213 shares may be deemed
to be offered for sale pursuant to this prospectus supplement,
with 3,144,163 shares deemed to be beneficially owned after
the offering assuming all shares being offered hereby are sold,
and (4) 497,310 shares of common stock that may be
deemed to be beneficially owned by GS Capital Partners V
GmbH & Co. KG and its general partner, Goldman, Sachs
Management GP GmbH, of which 133,793 shares may be deemed
to be offered for sale pursuant to this prospectus supplement,
with 363,517 shares deemed to be beneficially owned after
the offering assuming all shares being offered hereby are sold.
In addition, Goldman, Sachs & Co. directly owns
200 shares of common stock. The Goldman Sachs Group, Inc.
may be deemed to beneficially own indirectly the 200 shares
of common stock owned by Goldman, Sachs & Co. In
addition, the Goldman Sachs Funds may be deemed to beneficially
own the 24,057,096 shares of common stock owned by
Coffeyville Acquisition II LLC, and The Goldman Sachs
Group, Inc. and Goldman, Sachs & Co. may be deemed to
beneficially own indirectly, in the aggregate, all of the common
stock owned by Coffeyville Acquisition II LLC through the
Goldman Sachs Funds. Mr. Scott L. Lebovitz is a managing
director of Goldman, Sachs & Co. Mr. Lebovitz,
The Goldman Sachs Group, Inc. and Goldman,
|
S-7
|
|
|
|
|
Sachs & Co. each
disclaims beneficial ownership of the shares of common stock
owned directly or indirectly by the Goldman Sachs Funds, except
to the extent of their pecuniary interest therein, if any.
|
|
(3)
|
|
Mr. Lipinski is the Chief
Executive Officer of the Company. Mr. Lipinski owns
247,471 shares of common stock directly. Mr. Lipinski
is offering 70,000 shares for sale in this offering for
personal tax planning purposes. In addition, Mr. Lipinski
was awarded 222,532 shares of restricted stock on
July 16, 2010. The transfer restrictions on these shares
will lapse in one-third annual increments beginning on the first
anniversary of the date of grant. Because Mr. Lipinski has
the right to vote his
non-vested
shares of restricted stock, he is deemed to have beneficial
ownership of such shares. Mr. Lipinski also owns
139,714 shares indirectly through his ownership of common
units in Coffeyville Acquisition LLC and Coffeyville
Acquisition II LLC of which 37,591 shares may be deemed to
be offered for sale pursuant to this prospectus supplement, with
102,123 shares of common stock indirectly owned after the
offering, assuming all shares being offered hereby are sold.
Mr. Lipinski does not have power to vote or dispose of
shares that correspond to his ownership of common units in
Coffeyville Acquisition LLC and Coffeyville Acquisition II
LLC and thus does not have beneficial ownership of such shares.
|
S-8
Distributions of
the Proceeds of this Offering by
Coffeyville Acquisition LLC and Coffeyville Acquisition II
LLC
Coffeyville Acquisition LLC and Coffeyville Acquisition II
LLC expect to distribute the proceeds of their sales of common
stock in this offering to their members pursuant to their
respective limited liability company agreements. If all of the
shares of common stock of our Company to be sold in this
offering by Coffeyville Acquisition and Coffeyville
Acquisition II were sold at $11.23 per share, which was the
price of our common stock on November 15, 2010, after
giving effect to the underwriting discount, each of the entities
and individuals named below would be expected to receive the
following approximate amounts:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount
|
|
|
Amount
|
|
|
|
|
|
|
Distributed
|
|
|
Distributed
|
|
|
|
|
Entity / Individual
|
|
by CA
|
|
|
by CAII
|
|
|
Total
|
|
|
The Goldman Sachs Funds
|
|
$
|
0
|
|
|
$
|
66,108,561
|
|
|
$
|
66,108,561
|
|
The Kelso Funds
|
|
$
|
85,229,380
|
|
|
$
|
0
|
|
|
$
|
85,229,380
|
|
John J. Lipinski (1)
|
|
$
|
1,364,848
|
|
|
$
|
1,096,718
|
|
|
$
|
2,461,567
|
|
Stanley A. Riemann
|
|
$
|
643,588
|
|
|
$
|
515,641
|
|
|
$
|
1,159,229
|
|
Edmund S. Gross
|
|
$
|
10,160
|
|
|
$
|
7,757
|
|
|
$
|
17,917
|
|
Kevan A. Vick
|
|
$
|
345,516
|
|
|
$
|
276,257
|
|
|
$
|
621,773
|
|
Wyatt E. Jernigan
|
|
$
|
294,710
|
|
|
$
|
237,466
|
|
|
$
|
532,176
|
|
Daniel J. Daly, Jr.
|
|
$
|
205,052
|
|
|
$
|
165,539
|
|
|
$
|
370,591
|
|
Robert W. Haugen
|
|
$
|
294,710
|
|
|
$
|
237,466
|
|
|
$
|
532,176
|
|
Christopher G. Swanberg
|
|
$
|
8,466
|
|
|
$
|
6,464
|
|
|
$
|
14,930
|
|
All executive officers, as a group
|
|
$
|
3,167,050
|
|
|
$
|
2,543,308
|
|
|
$
|
5,710,358
|
|
All management members, as a group
|
|
$
|
3,758,264
|
|
|
$
|
3,016,139
|
|
|
$
|
6,774,403
|
|
Total distributions
|
|
$
|
90,707,427
|
|
|
$
|
69,411,597
|
|
|
$
|
160,119,024
|
|
|
|
|
(1)
|
|
Includes amounts distributed to
trusts established by Mr. Lipinski for the benefit of his
family.
|
Payment to be
made by the Company in respect of Phantom Points held by our
Executive Officers and Management Members as a result of this
Offering by
Coffeyville Acquisition LLC and Coffeyville Acquisition II
LLC
If all of the shares of common stock of our Company to be sold
in this offering by Coffeyville Acquisition and Coffeyville
Acquisition II were sold at $11.23 per share, which was the
price of our common stock on November 15, 2010, after
giving effect to the underwriting discount, each of the
individuals named below would be expected to receive the
following approximate amounts from the Company pursuant to the
Companys Phantom Unit Plans as a result of this Offering:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount Paid in
|
|
|
Amount Paid in
|
|
|
|
|
Individual
|
|
Respect of CA Units
|
|
|
Respect of CAII Units
|
|
|
Total
|
|
|
John J. Lipinski
|
|
$
|
168,005
|
|
|
$
|
129,723
|
|
|
$
|
297,728
|
|
Stanley A. Riemann
|
|
$
|
73,180
|
|
|
$
|
56,505
|
|
|
$
|
129,685
|
|
Edmund S. Gross
|
|
$
|
157,455
|
|
|
$
|
121,577
|
|
|
$
|
279,032
|
|
Wyatt E. Jernigan
|
|
$
|
18,238
|
|
|
$
|
14,082
|
|
|
$
|
32,320
|
|
Daniel J. Daly, Jr.
|
|
$
|
67,807
|
|
|
$
|
52,357
|
|
|
$
|
120,164
|
|
Robert W. Haugen
|
|
$
|
60,792
|
|
|
$
|
46,940
|
|
|
$
|
107,732
|
|
Christopher G. Swanberg
|
|
$
|
149,130
|
|
|
$
|
115,149
|
|
|
$
|
264,279
|
|
All executive officers, as a group
|
|
$
|
694,607
|
|
|
$
|
536,333
|
|
|
$
|
1,230,940
|
|
All management members, as a group
|
|
$
|
1,133,223
|
|
|
$
|
875,004
|
|
|
$
|
2,008,227
|
|
S-9
UNITED STATES TAX
CONSEQUENCES TO
NON-UNITED
STATES HOLDERS
The following is a general summary of the material United States
federal income and estate tax consequences of the acquisition,
ownership and disposition of our common stock purchased in this
offering by a
non-U.S. holder.
As used in this summary, the term
non-U.S. holder
means a beneficial owner of our common stock that is not, for
United States federal income tax purposes:
|
|
|
|
|
an individual who is a citizen or resident of the United States
or a former citizen or resident of the United States subject to
taxation as an expatriate;
|
|
|
|
a corporation created or organized in or under the laws of the
United States, any state thereof or the District of Columbia;
|
|
|
|
a partnership;
|
|
|
|
an estate whose income is includible in gross income for
U.S. federal income tax purposes regardless of its
source; or
|
|
|
|
a trust, if (1) a United States court is able to exercise
primary supervision over the trusts administration and one
or more United States persons (within the meaning of
the U.S. Internal Revenue Code of 1986, as amended, or the
Code) have the authority to control all of the trusts
substantial decisions, or (2) the trust has a valid
election in effect under applicable U.S. Treasury
regulations to be treated as a United States person.
|
An individual may be treated as a resident of the United States
in any calendar year for United States federal income tax
purposes, instead of a nonresident, by, among other ways, being
present in the United States on at least 31 days in that
calendar year and for an aggregate of at least 183 days
during a three-year period ending in the current calendar year.
For purposes of this calculation, an individual would count all
of the days present in the current year, one-third of the days
present in the immediately preceding year and one-sixth of the
days present in the second preceding year. Residents are taxed
for U.S. federal income purposes as if they were
U.S. citizens.
If an entity or arrangement treated as a partnership or other
type of pass-through entity for U.S. federal income tax
purposes owns our common stock, the tax treatment of a partner
or beneficial owner of such entity or arrangement may depend
upon the status of the partner or beneficial owner and the
activities of the partnership or entity and by certain
determinations made at the partner or beneficial owner level.
Partners and beneficial owners in such entities or arrangements
that own our common stock should consult their own tax advisors
as to the particular U.S. federal income and estate tax
consequences applicable to them.
This summary does not discuss all of the aspects of
U.S. federal income and estate taxation that may be
relevant to a
non-U.S. holder
in light of the
non-U.S. holders
particular investment or other circumstances. In particular,
this summary only addresses a
non-U.S. holder
that holds our common stock as a capital asset within the
meaning of the Code (generally, investment property) and does
not address:
|
|
|
|
|
special U.S. federal income tax rules that may apply to
particular
non-U.S. holders,
such as financial institutions, insurance companies, tax-exempt
organizations, dealers and traders in stock, securities or
currencies, passive foreign investment companies and controlled
foreign corporations;
|
|
|
|
non-U.S. holders
holding our common stock as part of a conversion, constructive
sale, wash sale or other integrated transaction or a hedge,
straddle or synthetic security;
|
|
|
|
any U.S. state and local or
non-U.S. or
other tax consequences; or
|
S-10
|
|
|
|
|
the U.S. federal income or estate tax consequences for the
beneficial owners of a
non-U.S. holder.
|
This summary is based on provisions of the Code, applicable
United States Treasury regulations and administrative and
judicial interpretations, all as in effect or in existence on
the date of this prospectus supplement. Subsequent developments
in United States federal income or estate tax law, including
changes in law or differing interpretations, which may be
applied retroactively, could have a material effect on the
U.S. federal income and estate tax consequences of
acquiring, owning and disposing of our common stock as set forth
in this summary.
Each non-U.S. holder considering the purchase of our common
stock should consult a tax advisor regarding the
U.S. federal, state, local and
non-U.S. income
and other tax consequences of acquiring, owning and disposing of
our common stock.
This summary (other than the discussion under Additional
Withholding Requirements) assumes that a
non-U.S. holder
will not be subject to the newly enacted withholding tax
discussed below under Additional Withholding
Requirements.
Dividends
We do not anticipate making cash distributions on our common
stock in the foreseeable future. In the event, however, that we
make cash distributions on our common stock, such distributions
will constitute dividends for United States federal income tax
purposes to the extent paid out of our current or accumulated
earnings and profits (as determined under United States federal
income tax principles). To the extent such distributions exceed
our earnings and profits, they will be treated first as a return
of the stockholders basis in their common stock to the
extent thereof, and then as gain from the sale of a capital
asset. If we make a distribution that is treated as a dividend
and is not effectively connected with a
non-U.S. holders
conduct of a trade or business in the United States, we will
have to withhold a U.S. federal withholding tax at a rate
of 30%, or a lower rate under an applicable income tax treaty,
from the gross amount of the dividends paid to such
non-U.S. holder.
Non-U.S. holders
should consult their own tax advisors regarding their
entitlement to benefits under a relevant income tax treaty.
In order to claim the benefit of an applicable income tax
treaty, a
non-U.S. holder
will be required to provide a properly executed
U.S. Internal Revenue Service
Form W-8BEN
(or other applicable form) in accordance with the applicable
certification and disclosure requirements. Special rules apply
to partnerships and other pass-through entities and these
certification and disclosure requirements also may apply to
beneficial owners of partnerships and other pass-through
entities that hold our common stock. A
non-U.S. holder
that is eligible for a reduced rate of U.S. federal
withholding tax under an income tax treaty may obtain a refund
or credit of any excess amounts withheld by filing an
appropriate claim for a refund with the U.S. Internal
Revenue Service.
Non-U.S. holders
should consult their own tax advisors regarding their
entitlement to benefits under a relevant income tax treaty and
the manner of claiming the benefits.
Dividends that are effectively connected with a
non-U.S. holders
conduct of a trade or business in the United States and, if
required by an applicable income tax treaty, are attributable to
a permanent establishment maintained by the
non-U.S. holder
in the United States, will be taxed on a net income basis at the
regular graduated rates and in the manner applicable to United
States persons. In that case, we will not have to withhold
U.S. federal withholding tax if the
non-U.S. holder
provides a properly executed U.S. Internal Revenue Service
Form W-8ECI
(or other applicable form) in accordance with the applicable
certification and disclosure requirements. In addition, a
branch profits tax may be imposed at a 30% rate, or
a lower rate
S-11
under an applicable income tax treaty, on dividends received by
a foreign corporation that are effectively connected with the
conduct of a trade or business in the United States.
Gain on
disposition of our common stock
A
non-U.S. holder
generally will not be taxed on any gain recognized on a
disposition of our common stock unless:
|
|
|
|
|
the gain is effectively connected with the
non-U.S. holders
conduct of a trade or business in the United States and, if
required by an applicable income tax treaty, is attributable to
a permanent establishment maintained by the
non-U.S. holder
in the United States; in these cases, the gain will be taxed on
a net income basis at the regular graduated rates and in the
manner applicable to U.S. persons (unless an applicable
income tax treaty provides otherwise) and, if the
non-U.S. holder
is a foreign corporation, the branch profits tax
described above may also apply;
|
|
|
|
the
non-U.S. holder
is an individual who holds our common stock as a capital asset,
is present in the United States for more than 182 days in
the taxable year of the disposition and meets other requirements
(in which case, except as otherwise provided by an applicable
income tax treaty, the gain, which may be offset by
U.S. source capital losses, generally will be subject to a
flat 30% U.S. federal income tax, even though the
non-U.S. holder
is not considered a resident alien under the Code); or
|
|
|
|
we are or have been a U.S. real property holding
corporation for U.S. federal income tax purposes at
any time during the shorter of the five-year period ending on
the date of disposition or the period that the
non-U.S. holder
held our common stock.
|
Generally, a corporation is a U.S. real property
holding corporation if the fair market value of its
U.S. real property interests equals or exceeds
50% of the sum of the fair market value of its worldwide real
property interests plus its other assets used or held for use in
a trade or business. The tax relating to the disposition of
stock in a U.S. real property holding
corporation generally will not apply to a
non-U.S. holder
whose holdings, direct and indirect, at all times during the
applicable period, constituted 5% or less of our common stock,
provided that our common stock was regularly traded on an
established securities market at any time during the calendar
year of such disposition. We believe that we are not currently,
and we do not anticipate becoming in the future, a
U.S. real property holding corporation.
Federal estate
tax
Our common stock that is owned or treated as owned by an
individual who dies in any year other than 2010 and is not a
U.S. citizen or resident of the United States (as specially
defined for U.S. federal estate tax purposes) at the time
of death generally will be included in the individuals
gross estate for U.S. federal estate tax purposes, unless
an applicable estate tax or other treaty provides otherwise and,
therefore, may be subject to U.S. federal estate tax.
Information
reporting and backup withholding tax
Dividends paid to a
non-U.S. holder
may be subject to U.S. information reporting and backup
withholding. A
non-U.S. holder
will be exempt from backup withholding if the
non-U.S. holder
provides a properly executed U.S. Internal Revenue Service
Form W-8BEN
or otherwise meets documentary evidence requirements for
establishing its status as a
non-U.S. holder
or otherwise establishes an exemption.
The gross proceeds from the disposition of our common stock may
be subject to U.S. information reporting and backup
withholding. If a
non-U.S. holder
sells our common stock outside the United States through a
non-U.S. office
of a
non-U.S. broker
and the sales proceeds are paid to the
non-U.S. holder
outside the United States, then the U.S. backup withholding
and
S-12
information reporting requirements generally will not apply to
that payment. However, U.S. information reporting, but not
U.S. backup withholding, will apply to a payment of sales
proceeds, even if that payment is made outside the United
States, if a
non-U.S. holder
sells our common stock through a
non-U.S. office
of a United States broker or a foreign broker with certain
U.S. connections.
If a
non-U.S. holder
receives payments of the proceeds of a sale of our common stock
to or through a United States office of any broker, the payment
is subject to both U.S. backup withholding and information
reporting unless the
non-U.S. holder
provides a properly executed U.S. Internal Revenue Service
Form W-8BEN
certifying that the
non-U.S. holder
is not a United States person or the
non-U.S. holder
otherwise establishes an exemption.
A
non-U.S. holder
generally may obtain a refund of any amounts withheld under the
backup withholding rules that exceed the
non-U.S. holders
U.S. federal income tax liability by filing a refund claim
with the U.S. Internal Revenue Service.
Additional
Withholding Requirements
Under recently enacted legislation, the relevant withholding
agent may be required to withhold 30% of any dividends on, and
the proceeds of a sale of, our common stock paid after
December 31, 2012 to (i) a foreign financial
institution (whether holding stock for its own account or
on behalf of its account holders/investors) unless such
foreign financial institution agrees to verify,
report and disclose its U.S. account holders and meets
certain other specified requirements or (ii) a
non-financial foreign entity that is the beneficial
owner of the payment unless such entity certifies that it does
not have any substantial United States owners or provides the
name, address and taxpayer identification number of each
substantial United States owner and such entity meets certain
other specified requirements.
Non-U.S. holders
should consult their own tax advisors regarding the effect of
this newly enacted legislation.
S-13
UNDERWRITING
The selling stockholders are offering the shares of common stock
described in this prospectus supplement. We and the selling
stockholders have entered into an underwriting agreement with
Deutsche Bank Securities Inc. and Goldman, Sachs & Co., as
representatives of the underwriters. Subject to the terms and
conditions of the underwriting agreement, the selling
stockholders have agreed to sell to the underwriters, on a
several and not joint basis, and the each of the underwriters
has severally agreed to purchase, the shares of common stock
indicated in the following table at the price set forth on the
front cover page of this prospectus supplement.
|
|
|
|
|
Underwriter
|
|
Number of Shares
|
|
|
Deutsche Bank Securities Inc.
|
|
|
|
|
Goldman, Sachs & Co.
|
|
|
|
|
Simmons & Company International
|
|
|
|
|
Tudor, Pickering, Holt & Co.
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
15,000,000
|
|
|
|
|
|
|
The underwriters are committed to take and pay for all of the
shares being offered, if any are taken, other than the shares
covered by the option described below unless and until this
option is exercised. The underwriting agreement provides that
the obligations of the underwriters to take and pay for the
shares are subject to a number of conditions, including, among
others, the accuracy of the Companys and the selling
stockholders representations and warranties in the
underwriting agreement, receipt of specified letters from
counsel and the Companys independent registered public
accounting firm, and receipt of specified officers
certificates.
To the extent that the underwriters sell more than
15,000,000 shares, the underwriters have an option to buy
up to an additional 2,250,000 shares of common stock from
Coffeyville Acquisition LLC and Coffeyville Acquisition II LLC.
They may exercise that option for 30 days. If any shares
are purchased pursuant to this option, the underwriters will
severally purchase shares from each of Coffeyville Acquisition
LLC and Coffeyville Acquisition II LLC pro rata in
approximately the same proportion as set forth in the table
above.
We have been advised that the underwriters propose to offer the
shares to the public at the public offering price set forth on
the cover page of this prospectus supplement. After the initial
offering of the shares, the underwriters may change the offering
price and other selling terms. The offering of the shares by the
underwriters is subject to receipt and acceptance and subject to
the underwriters right to reject any order in whole or in
part.
We estimate that the total expenses of this offering, including
registration, filing and listing fees, printing fees and legal
and accounting expenses, will be approximately $475,000 and will
be paid by the Company.
The following table shows the underwriting discount that the
selling stockholders are to pay to the underwriters in
connection with this offering. These amounts are shown assuming
both no exercise and full exercise of the underwriters
option to purchase 2,250,000 additional shares of common
stock.
|
|
|
|
|
|
|
|
|
|
|
No Exercise
|
|
|
Full Exercise
|
|
Per share
|
|
$
|
|
|
|
$
|
|
|
Total
|
|
$
|
|
|
|
$
|
|
|
We have agreed that, subject to certain exceptions, we will not
offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the SEC a registration
S-14
statement under the Securities Act, relating to, any shares of
our common stock or securities convertible into or exchangeable
or exercisable for any shares of our common stock, or publicly
disclose the intention to make any offer, sale, pledge,
disposition or filing, without the prior written consent of the
representatives for a period of 90 days after the date of
this prospectus supplement.
All of our directors and executive officers and the selling
stockholders and their affiliates have entered into
lock-up
agreements with the underwriters prior to the commencement of
this offering pursuant to which each of these persons or
entities, for a period of 90 days after the date of this
prospectus supplement, has agreed that such person or entity
will not, without the prior written consent of the
representatives, (1) offer, pledge, announce the intention
to sell, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of our common
stock (including, without limitation, common stock which may be
deemed to be beneficially owned by such persons in accordance
with the rules and regulations of the SEC and securities which
may be issued upon exercise of a stock option or warrant) or
(2) enter into any swap or other agreement that transfers,
in whole or in part, any of the economic consequences of
ownership of the common stock, whether any such transaction
described in clause (1) or (2) above is to be settled
by delivery of common stock or such other securities, in cash or
otherwise, subject to certain exceptions, including sales made
in this offering and, with respect to certain directors and
executive officers, transfers made to us for purchase
and/or
withholding of common stock in connection with the settlement of
previously-awarded restricted stock, restricted stock units or
options pursuant to our equity incentive plans and award
agreements in an amount equal to all applicable withholding
taxes due in respect to such awards.
We and the selling stockholders have agreed to indemnify the
several underwriters against certain liabilities, including
liabilities under the Securities Act.
Our common stock is listed on the New York Stock Exchange under
the symbol CVI.
In connection with this offering, the underwriters may engage in
stabilizing transactions, which involves making bids for,
purchasing and selling shares of common stock in the open market
for the purpose of preventing or retarding a decline in the
market price of the common stock while this offering is in
progress. These stabilizing transactions may include making
short sales of the common stock, which involves the sale by the
underwriters of a greater number of shares of common stock than
it is required to purchase in this offering, and purchasing
shares of common stock on the open market to cover positions
created by short sales. Short sales may be covered
shorts, which are short positions in an amount not greater than
the underwriters option to purchase additional shares from
us in this offering, or may be naked shorts, which
are short positions in excess of that amount. The underwriters
may close out any covered short position by either exercising
their option to purchase additional shares or purchasing shares
in the open market. In making this determination, the
underwriters will consider, among other things, the price of
shares available for purchase in the open market as compared to
the price at which they may purchase additional shares pursuant
to the option granted to them. A naked short position is more
likely to be created if the underwriters are concerned that
there may be downward pressure on the price of the common stock
in the open market that could adversely affect investors who
purchase in this offering. To the extent that the underwriters
create a naked short position, it will purchase shares in the
open market to cover the position.
The underwriters have advised us that, pursuant to
Regulation M of the Securities Act, they may also engage in
other activities that stabilize, maintain or otherwise affect
the price of the common stock.
S-15
These activities, as well as other purchases by the underwriters
for their own accounts, may have the effect of raising or
maintaining the market price of the common stock or preventing
or retarding a decline in the market price of the common stock,
and, as a result, the price of the common stock may be higher
than the price that otherwise might exist in the open market. If
the underwriters commence these activities, they may discontinue
them at any time. The underwriters may carry out these
transactions on the New York Stock Exchange, in the
over-the-counter market or otherwise.
The underwriters and their respective affiliates are full
service financial institutions engaged in various activities,
which may include securities trading, commercial and investment
banking, financial advisory, investment management, investment
research, principal investment, hedging, financing and brokerage
activities. Certain of the underwriters and their respective
affiliates have, from time to time, performed, and may in the
future perform, various financial advisory, investment banking,
commercial banking and other services for our company, for which
they received or will receive customary fees and expenses.
Furthermore, certain of the underwriters and their respective
affiliates may, from time to time, enter into arms-length
transactions with us in the ordinary course of their business.
In the ordinary course of their various business activities, the
underwriters and their respective affiliates may make or hold a
broad array of investments and actively trade debt and equity
securities (or related derivative securities) and financial
instruments (including bank loans) for their own account and for
the accounts of their customers, and such investment and
securities activities may involve securities
and/or
instruments of the issuer. The underwriters and their respective
affiliates may also make investment recommendations
and/or
publish or express independent research views in respect of such
securities or instruments and may at any time hold, or recommend
to clients that they acquire, long
and/or short
positions in such securities or instruments.
Goldman Sachs Credit Partners L.P. is a joint lead arranger,
joint bookrunner and lender under our credit facility. Deutsche
Bank Trust Company Americas is the syndication agent and a
lender under our credit facility. In April 2010, Goldman,
Sachs & Co. and Deutsche Bank Securities Inc. were
initial purchasers for the private sale by Coffeyville
Resources, LLC and Coffeyville Finance Inc., wholly-owned
subsidiaries of the Company, of $275 million aggregate
principal amount of first lien senior secured notes due 2015 and
$225 million aggregate principal amount of second lien
senior secured notes due 2017. Deutsche Bank Securities Inc. was
the underwriter for the secondary offering of the Companys
common stock by Coffeyville Acquisition II LLC in November
2009.
For a description of other transactions between us and Goldman,
Sachs & Co. and its affiliates, including payments of
dividends and payments under our credit facilities by us to such
affiliates and director designation rights, see Risk
FactorsRisks Related to Our Common StockThe Goldman
Sachs Funds and the Kelso Funds control us and may have
conflicts of interest with other stockholders. Conflicts of
interest may arise because our principal stockholders or their
affiliates have continuing agreements and business relationships
with us, and Certain Relationships and Related
Transactions, and Director Independence in our Annual
Report on
Form 10-K
for the year ended December 31, 2009 and Note 16 to
the unaudited Condensed Consolidated Financial Statements in our
Quarterly Report on
Form 10-Q
for the quarterly period ended September 30, 2010.
In relation to each Member State of the European Economic Area
(the EEA) which has implemented the Prospectus
Directive (each, a Relevant Member State) an offer
to the public of any shares which are the subject of the
offering contemplated by this prospectus supplement (and the
accompanying prospectus) may not be made in that Relevant Member
State, except that an offer to the public in that Relevant
Member State of any shares may be made at any time under the
following exemptions under the Prospectus Directive, if they
have been implemented in that Relevant Member State:
S-16
|
|
|
|
|
to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
|
|
|
|
to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year;
(2) a total balance sheet of more than 43,000,000 and
(3) an annual net turnover of more than 50,000,000,
as shown in its last annual or consolidated accounts;
|
|
|
|
by the underwriters to fewer than 100 natural or legal persons
(other than qualified investors as defined in the
Prospectus Directive) subject to obtaining the prior consent of
the representatives for any such offer; or
|
|
|
|
in any other circumstances falling within
Article 3(2) of the Prospectus Directive.
|
Any person making or intending to make any offer of shares
within the EEA should only do so in circumstances in which no
obligation arises for us or any of the underwriters to produce a
prospectus for such offer. Neither we nor the underwriters have
authorized, nor do they authorize, the making of any offer of
shares through any financial intermediary, other than offers
made by the underwriters which constitute the final offering of
shares contemplated in this prospectus supplement (and the
accompanying prospectus).
For the purposes of this provision, the expression an
offer of shares to the public in relation to any
shares in any Relevant Member State means the communication in
any form and by any means of sufficient information on the terms
of the offer and the shares to be offered so as to enable an
investor to decide to purchase or subscribe the shares, as the
same may be varied in that Relevant Member State by any measure
implementing the Prospectus Directive in that Relevant Member
State and the expression Prospectus Directive means
Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
Each person in a Relevant Member State who receives any
communication in respect of, or who acquires any shares under,
the offer of shares contemplated by this prospectus supplement
(and the accompanying prospectus) will be deemed to have
represented, warranted and agreed to and with the Company and
each underwriter that:
(A) it is a qualified investor within the
meaning of the law in that Relevant Member State implementing
Article 2(1)(e) of the Prospectus Directive; and
(B) in the case of any shares acquired by it as a financial
intermediary, as that term is used in Article 3(2) of the
Prospectus Directive, (i) the shares acquired by it in the
offering have not been acquired on behalf of, nor have they been
acquired with a view to their offer or resale to, persons in any
Relevant Member State other than qualified investors
(as defined in the Prospectus Directive), or in circumstances in
which the prior consent of the representatives has been given to
the offer or resale; or (ii) where shares have been
acquired by it on behalf of persons in any Relevant Member State
other than qualified investors, the offer of those shares to it
is not treated under the Prospectus Directive as having been
made to such persons.
In the United Kingdom, this prospectus supplement (and the
accompanying prospectus) is being distributed only to, and is
directed only at, and any offer subsequently made may only be
directed at persons who are qualified investors (as
defined in the Prospectus Directive) (i) who have
professional experience in matters relating to investments
falling within Article 19(5) of the Financial Services and
Markets Act 2000 (Financial Promotion) Order 2005, as amended
(the Order) and/or (ii) who are high net worth
companies (or persons to whom it may otherwise be lawfully
communicated) falling within Article 49(2)(a) to
(d) of the Order (all such persons together being referred
to as relevant persons). This prospectus supplement
(and the accompanying prospectus) must not be acted on or relied
on in the United Kingdom by persons who are not relevant
persons. In the United Kingdom, any investment or
S-17
investment activity to which this prospectus supplement (and the
accompanying prospectus) relates is only available to, and will
be engaged in with, relevant persons.
The shares may not be offered or sold by means of any document
other than (i) in circumstances which do not constitute an
offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong, or (ii) to
professional investors within the meaning of the
Securities and Future Ordinance (Cap. 571) of Hong Kong and
any rules made thereunder, or (iii) in other circumstances
which do not result in this prospectus supplement (and the
accompanying prospectus) being a prospectus within
the meaning of the Companies Ordinance (Cap. 32) of Hong
Kong, and no advertisement, invitation or document relating to
the shares may be issued or may be in the possession of any
person for the purpose of issue, whether in Hong Kong or
elsewhere, which is directed at, or the contents of which are
likely to be accessed or read by, the public in Hong Kong
(except if permitted to do so under the laws of Hong Kong) other
than with respect to shares which are or are intended to be
disposed of only to persons outside Hong Kong or only to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap. 571) of Hong Kong
and any rules made thereunder.
Neither this prospectus supplement nor the accompanying
prospectus has been registered as a prospectus with the Monetary
Authority of Singapore. Accordingly, this prospectus supplement,
the accompanying prospectus or any other document or material in
connection with the offer or sale, or invitation for
subscription or purchase, of the shares may not be circulated or
distributed, nor may the shares be offered or sold, or be made
the subject of an invitation for subscription or purchase,
whether directly or indirectly, to persons in Singapore other
than (i) to an institutional investor under
Section 274 of the Securities and Futures Act,
Chapter 289 of Singapore (the SFA),
(ii) to a relevant person, or any person pursuant to
Section 275(1A), and in accordance with the conditions,
specified in Section 275 of the SFA or (iii) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA, in each case, subject to
compliance with conditions set forth in the SFA.
Where the shares are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest in
that trust shall not be transferable for 6 months after
that corporation or that trust has acquired the shares under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or
any person pursuant to Section 275(1A), and in accordance
with the conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
The shares have not been and will not be registered under the
Financial Instruments and Exchange Law of Japan (Law No. 25
of 1948 of Japan, as amended) (the FIEL) and the
underwriters will not offer or sell any shares, directly or
indirectly, in Japan or to, or for the benefit of, any resident
of Japan (which term as used herein means any person resident in
Japan, including any corporation or other entity organized under
the laws of Japan), or to others for re-offering or resale,
directly or indirectly, in Japan or to a resident of Japan,
except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the FIEL and
any other applicable laws, regulations and ministerial
guidelines of Japan.
Conflict of
Interest
Affiliates of Goldman, Sachs & Co. own more than 10%
of the Companys outstanding common stock. As a result,
Goldman, Sachs & Co. is deemed to be an affiliate of
the Company
S-18
within the meaning of Rule 2720 of the NASD Conduct Rules
(Rule 2720) of the Financial Industry
Regulatory Authority and is deemed to have a conflict of
interest under Rule 2720. In addition, Coffeyville
Acquisition II LLC, a selling stockholder and an affiliate
of Goldman, Sachs & Co., will receive more than 5% of
the net proceeds of this offering. Accordingly, this offering
will be made in compliance with the applicable provisions of
Rule 2720 as required by Rule 2720. Because there is a
bona fide public market (as defined in
Rule 2720) for the Companys common stock, the
Rule 2720 requirement for the participation of a qualified
independent underwriter does not apply to this offering.
LEGAL
MATTERS
The validity of the shares of common stock offered by this
prospectus supplement will be passed upon for our company by
Fried, Frank, Harris, Shriver & Jacobson LLP, New
York, New York. Debevoise & Plimpton LLP, New York,
New York is acting as counsel to the underwriters.
Debevoise & Plimpton LLP has in the past provided, and
continues to provide, legal services to Kelso &
Company, L.P., including relating to Coffeyville Acquisition LLC.
EXPERTS
The consolidated financial statements of CVR Energy, Inc. and
its subsidiaries as of December 31, 2009 and 2008, and for
each of the years in the three-year period ended
December 31, 2009, and managements assessment of the
effectiveness of internal control over financial reporting as of
December 31, 2009, have been incorporated in this
prospectus supplement by reference to the Annual Report on
Form 10-K
for the year ended December 31, 2009, in reliance upon the
reports of KPMG LLP, independent registered public accounting
firm, which reports have also been incorporated by reference to
the Annual Report on
Form 10-K
for the year ended December 31, 2009, and upon the
authority of said firm as experts in accounting and auditing.
INCORPORATION BY
REFERENCE
The SEC allows us to incorporate by reference
information into this document. This means that we can disclose
important information to you by referring you to another
document filed separately with the SEC. The information
incorporated by reference is considered to be part of this
prospectus supplement, and information that we file later with
the SEC will automatically update and supersede the previously
filed information. We incorporate by reference the documents
listed below and any future filings made by us with the SEC
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act (File
No. 1-33492)
(other than any portions of the respective filings that are
furnished, pursuant to Item 2.02 or Item 7.01 of
Current Reports on
Form 8-K
(including exhibits related thereto) or other applicable SEC
rules, rather than filed) prior to the termination of the
offering under this prospectus supplement:
|
|
|
|
|
our Annual Report on
Form 10-K
for the year ended December 31, 2009, filed on
March 12, 2010;
|
|
|
|
our Quarterly Reports on
Form 10-Q
for the periods ended March 31, 2010, June 30, 2010
and September 30, 2010, filed on May 5, 2010,
August 6, 2010 and November 3, 2010,
respectively; and
|
|
|
|
our Current Reports on
Form 8-K
filed on January 7, 2010, March 18, 2010,
April 12, 2010, May 21, 2010, July 22, 2010,
August 25, 2010, October 1, 2010, November 1,
2010, November 2, 2010 and November 16, 2010.
|
S-19
You may request a copy of any or all of the information
incorporated by reference into this prospectus supplement (other
than an exhibit to the filings unless we have specifically
incorporated that exhibit by reference into the filing), at no
cost, by writing or telephoning us at the following address:
CVR Energy, Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Attention: Investor Relations
Telephone:
(281) 207-3464
You should rely only on the information contained or
incorporated by reference into this prospectus supplement. We
have not authorized anyone to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not
making an offer to sell, or soliciting an offer to buy,
securities in any jurisdiction where the offer and sale is not
permitted.
WHERE YOU CAN
FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act with respect to the common shares
offered hereby. This prospectus supplement is part of a
registration statement we have filed with the SEC. As permitted
by SEC rules, this prospectus supplement does not contain all of
the information we have included in the registration statement
and the accompanying exhibits. You may refer to the registration
statement and the exhibits for more information about us and our
securities. The registration statement and the exhibits are
available at the SECs Public Reference Room or through its
website.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You can read and copy any
materials we file with the SEC at its Public Reference Room at
100 F Street N.E., Washington DC, 20549. You can
obtain information about the operations of the SEC Public
Reference Room by calling the SEC at
1-800-SEC-0330.
The SEC also maintains a website that contains information we
file electronically with the SEC, which you can access over the
Internet at
http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange (NYSE:
CVI), and you can obtain information about us at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New
York 10005. General information about us, including our annual
report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
and amendments to those reports, is available free of charge
through our website at
http://www.cvrenergy.com
as soon as reasonably practicable after we electronically
file them with, or furnish them to, the SEC. Information on our
website is not incorporated into this prospectus supplement or
our other securities filings and is not a part of these filings.
S-20
CVR Energy, Inc.
|
|
55,738,127 Shares
of
|
Common Stock
|
|
The selling stockholders named in this prospectus may offer for
resale under this prospectus, from time to time, up to
55,738,127 shares of our common stock.
The common stock may be offered or sold by a selling stockholder
at fixed prices, at prevailing market prices at the time of sale
or at prices negotiated with purchasers, to or through
underwriters, broker-dealers, agents, or through any other means
described in this prospectus under Plan of
Distribution. We will bear all costs, expenses and fees in
connection with the registration of the selling
stockholders common stock. The selling stockholders will
pay all commissions and discounts, if any, attributable to the
sale or disposition of their shares of our common stock, or
interests therein.
Our common stock, par value $0.01 per share, is listed on the
New York Stock Exchange under the symbol CVI. As of
June 21, 2010, the closing price of our common stock was
$8.13.
This prospectus describes the general manner in which common
stock may be offered and sold by the selling stockholders. We
will provide supplements to this prospectus describing the
specific manner in which the selling stockholders common
stock may be offered and sold to the extent required by law. We
urge you to read carefully this prospectus, any accompanying
prospectus supplement, and any documents we incorporate by
reference into this prospectus and any accompanying prospectus
supplement before you make your investment decision.
The selling stockholders may sell common stock to or through
underwriters, dealers or agents. The names of any underwriters,
dealers or agents involved in the sale of any common stock and
the specific manner in which it may be offered will be set forth
in the prospectus supplement covering that sale to the extent
required by law.
Investing in our common stock involves risks. You should
carefully consider all of the information set forth in this
prospectus, including the risk factors set forth under
Risk Factors in our annual report on
Form 10-K
for the fiscal year ended December 31, 2009 filed with the
Securities and Exchange Commission on March 12, 2010 and
our quarterly report on Form 10-Q for the fiscal quarter
ended March 31, 2010 filed with the Securities and Exchange
Commission on May 5, 2010 (which documents are incorporated
by reference herein), as well as the risk factors and other
information in any accompanying prospectus supplement and any
documents we incorporate by reference into this prospectus and
any accompanying prospectus supplement, before deciding to
invest in our common stock. See Incorporation By
Reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense
.
The date of this prospectus is July 1, 2010.
TABLE OF
CONTENTS
|
|
|
|
|
|
|
|
1
|
|
|
|
|
2
|
|
|
|
|
3
|
|
|
|
|
6
|
|
|
|
|
7
|
|
|
|
|
10
|
|
|
|
|
13
|
|
|
|
|
16
|
|
|
|
|
16
|
|
|
|
|
16
|
|
|
|
|
17
|
|
ABOUT THIS
PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, which we
refer to as the SEC, using the SECs shelf
registration rules. Pursuant to this prospectus, the selling
stockholders named on page 7 may, from time to time, sell
up to a total of 55,738,127 shares of our common stock
described in this prospectus in one or more offerings.
In this prospectus, all references to the Company,
CVR Energy, we, us and
our refer to CVR Energy, Inc., a Delaware
corporation, and its consolidated subsidiaries, and all
references to the nitrogen fertilizer business and
the Partnership refer to CVR Partners, LP, a
Delaware limited partnership that owns and operates our nitrogen
fertilizer facility, unless the context otherwise requires or
where otherwise indicated. The Company currently owns all of the
interests in the Partnership other than the managing general
partner interest and associated incentive distribution rights.
When one or more selling stockholders sells common stock under
this prospectus, we will, if necessary and required by law,
provide a prospectus supplement that will contain specific
information about the terms of that offering. Any prospectus
supplement may also add to, update, modify or replace
information contained in this prospectus. This prospectus
contains summaries of certain provisions contained in some of
the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries
are qualified in their entirety by reference to the actual
documents. Copies of some of the documents referred to herein
have been filed or will be filed or incorporated by reference as
exhibits to the registration statement of which this prospectus
is a part, and you may obtain copies of those documents as
described below in the section entitled Where You Can Find
More Information.
You should not assume that the information in this prospectus,
any accompanying prospectus supplement or any documents we
incorporate by reference into this prospectus and any prospectus
supplement is accurate as of any date other than the date on the
front of those documents. Our business, financial condition,
results of operations and prospects may have changed since those
dates.
PROSPECTUS
SUMMARY
We are an independent refiner and marketer of high value
transportation fuels and, through a limited partnership, a
producer of nitrogen fertilizers in the form of ammonia and urea
ammonia nitrate, or UAN. We are one of only eight petroleum
refiners and marketers located within the mid-continent region
(Kansas, Oklahoma, Missouri, Nebraska and Iowa) and the nitrogen
fertilizer business is the only marketer of ammonia and UAN
fertilizers in North America that produces ammonia using a
petroleum coke, or pet coke, gasification process.
Our petroleum business includes a 115,000 barrel per day,
or bpd, complex full coking medium-sour crude oil refinery in
Coffeyville, Kansas. In addition, we own and operate supporting
businesses that include (1) a crude oil gathering system
serving Kansas, Oklahoma, western Missouri, eastern Colorado and
southwestern Nebraska, (2) a 145,000 bpd pipeline
system that transports crude oil to our refinery with
1.2 million barrels of associated company-owned storage
tanks and an additional 2.7 million barrels of leased
storage capacity located at Cushing, Oklahoma, (3) a rack
marketing division supplying product through tanker trucks
directly to customers located in close geographic proximity to
Coffeyville and Phillipsburg and to customers at throughput
terminals on refined products distribution systems run by
Magellan Midstream Partners L.P., or Magellan, and NuStar
Energy, LP, or NuStar and (4) storage and terminal
facilities for refined fuels and asphalt in Phillipsburg, Kansas.
Our refinery is situated approximately 100 miles from
Cushing, Oklahoma, one of the largest crude oil trading and
storage hubs in the United States, which provides us with access
to virtually any crude oil variety in the world capable of being
transported by pipeline. We sell our products through rack sales
(sales which are made at terminals into third party tanker
trucks) and bulk sales (sales through third party pipelines)
into the mid-continent markets via Magellan and into Colorado
and other destinations utilizing the product pipeline networks
owned by Magellan, Enterprise Products Operating, L.P. and
NuStar.
The nitrogen fertilizer business consists of a nitrogen
fertilizer plant in Coffeyville, Kansas that includes two pet
coke gasifiers. The nitrogen fertilizer business is the only
operation in North America that utilizes a pet coke gasification
process to produce ammonia. By using pet coke (a coal-like
substance that is produced during the refining process) instead
of natural gas as a primary raw material, at current natural gas
and pet coke prices, we believe the nitrogen fertilizer plant
business is one of the lowest cost producers and marketers of
ammonia and UAN fertilizers in North America. The nitrogen
fertilizer manufacturing facility is comprised of (1) a
1,225
ton-per-day
ammonia unit, (2) a 2,025
ton-per-day
UAN unit and (3) a dual train gasifier complex, each having
a capacity of 84 million standard cubic feet per day. A
majority of the ammonia produced by the nitrogen fertilizer
plant is further upgraded to UAN fertilizer (a solution of urea
and ammonium nitrate in water used as a fertilizer). On average
during the last five years, over 74% of the pet coke utilized by
the fertilizer plant was produced and supplied to the fertilizer
plant as a byproduct of our refinery.
CVR Energy, Inc. was incorporated in Delaware in September 2006.
Our principal executive offices are located at 2277 Plaza Drive,
Suite 500, Sugar Land, Texas 77479, and our telephone
number is
(281) 207-3200.
Our website address is www.cvrenergy.com. Information contained
in or linked to or from our website is not a part of this
prospectus.
1
RISK
FACTORS
You should carefully consider the risk factors set forth under
Risk Factors in our annual report on
Form 10-K
for the fiscal year ended December 31, 2009, filed with the
SEC on March 12, 2010 and in our quarterly report on
Form 10-Q for the fiscal quarter ended March 31, 2010,
filed with the SEC on May 5, 2010 (which documents are
incorporated by reference herein), as well as other risk factors
described under the caption Risk Factors in any
accompanying prospectus supplement and any documents we
incorporate by reference into this prospectus, including all
future filings we make with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended (the Exchange Act),
before deciding to invest in our common stock. See
Incorporation By Reference.
2
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. We claim
the protection of the safe harbor for forward-looking statements
provided in the Private Securities Litigation Reform Act of
1995, Section 27A of the Securities Act of 1933, as amended
(the Securities Act) and Section 21E of the
Exchange Act. Statements that are predictive in nature, that
depend upon or refer to future events or conditions or that
include the words believe, expect,
anticipate, intend, estimate
and other expressions that are predictions of or indicate future
events and trends and that do not relate to historical matters
identify forward-looking statements. Our forward-looking
statements include statements about our business strategy, our
industry, our future profitability, our expected capital
expenditures and the impact of such expenditures on our
performance, the costs of operating as a public company, our
capital programs and environmental expenditures. These
statements involve known and unknown risks, uncertainties and
other factors, including the factors described under Risk
Factors, that may cause our actual results and performance
to be materially different from any future results or
performance expressed or implied by these forward-looking
statements. Such risks and uncertainties include, among other
things:
|
|
|
|
|
volatile margins in the refining industry;
|
|
|
|
exposure to the risks associated with volatile crude prices;
|
|
|
|
the availability of adequate cash and other sources of liquidity
for our capital needs;
|
|
|
|
disruption of our ability to obtain an adequate supply of crude
oil;
|
|
|
|
interruption of the pipelines supplying feedstock and in the
distribution of our products;
|
|
|
|
competition in the petroleum and nitrogen fertilizer businesses;
|
|
|
|
capital expenditures required by environmental laws and
regulations;
|
|
|
|
changes in our credit profile;
|
|
|
|
the potential decline in the price of natural gas, which
historically has correlated with the market price for nitrogen
fertilizer products;
|
|
|
|
the cyclical nature of the nitrogen fertilizer business;
|
|
|
|
adverse weather conditions, including potential floods and other
natural disasters;
|
|
|
|
the supply and price levels of essential raw materials;
|
|
|
|
the volatile nature of ammonia, potential liability for
accidents involving ammonia that cause severe damage to property
and/or
injury to the environment and human health, and potential
increased costs relating to the transport of ammonia;
|
|
|
|
the dependence of the nitrogen fertilizer business on a few
third-party suppliers, including providers of transportation
services and equipment;
|
|
|
|
the potential loss of the nitrogen fertilizer business
transportation cost advantage over its competitors;
|
|
|
|
existing and proposed environmental laws and regulations,
including those relating to climate change, alternative energy
or fuel sources, and the end-use and application of fertilizers;
|
|
|
|
a decrease in ethanol production;
|
|
|
|
refinery operating hazards and interruptions, including
unscheduled maintenance or downtime, and the availability of
adequate insurance coverage;
|
|
|
|
our commodity derivative activities;
|
3
|
|
|
|
|
our dependence on significant customers;
|
|
|
|
our potential inability to successfully implement our business
strategies;
|
|
|
|
the success of our acquisition and expansion strategies;
|
|
|
|
the dependence on our subsidiaries for cash to meet our debt
obligations;
|
|
|
|
our significant indebtedness;
|
|
|
|
our potential inability to generate sufficient cash to service
all of our indebtedness;
|
|
|
|
the limitations contained in our debt agreements that limit our
flexibility in operating our business;
|
|
|
|
the unprecedented instability and volatility in the capital and
credit markets;
|
|
|
|
the potential loss of key personnel;
|
|
|
|
labor disputes and adverse employee relations;
|
|
|
|
the operation of our company as a controlled company
under New York Stock Exchange rules;
|
|
|
|
new regulations concerning the transportation of hazardous
chemicals, risks of terrorism and the security of chemical
manufacturing facilities;
|
|
|
|
successfully defending against third-party claims of
intellectual property infringement;
|
|
|
|
our ability to continue to license the technology used in our
operations;
|
|
|
|
the Partnerships ability to make distributions equal to
the minimum quarterly distribution or any distributions at all;
|
|
|
|
the possibility that Partnership distributions to us will
decrease if the Partnership issues additional equity interests
and that our rights to receive distributions will be
subordinated to the rights of third party investors;
|
|
|
|
the possibility that we will be required to deconsolidate the
Partnership from our financial statements in the future;
|
|
|
|
the Partnerships preferential right to pursue certain
business opportunities before we pursue them;
|
|
|
|
whether we will be able to amend our first priority credit
facility on acceptable terms if the Partnership seeks to
consummate a public or private offering;
|
|
|
|
reduction of our voting power in the Partnership if the
Partnership completes a public offering or private placement;
|
|
|
|
the possibility that we could be required to purchase the
managing general partner interest in the Partnership, and
whether we will have the requisite funds to do so;
|
|
|
|
the possibility that we will be required to sell a portion of
our interests in the Partnership in the Partnerships
initial offering at an undesirable time or price;
|
|
|
|
the ability of the Partnership to manage the nitrogen fertilizer
business in a manner adverse to our interests;
|
|
|
|
the conflicts of interest faced by our senior management, which
operates both the Company and the Partnership, and the
Companys controlling stockholders, who control the Company
and the managing general partner of the Partnership;
|
|
|
|
limitations on the fiduciary duties owed by the managing general
partner of the Partnership, which are included in the
partnership agreement;
|
4
|
|
|
|
|
whether we are ever deemed to be an investment company under the
Investment Company Act of 1940, as amended, or will need to take
actions to sell interests in the Partnership or buy assets to
refrain from being deemed an investment company; and
|
|
|
|
transfer of control of the managing general partner of the
Partnership to a third party that may have no economic interest
in us.
|
You should not place undue reliance on our forward-looking
statements. Although forward-looking statements reflect our good
faith beliefs at the time made, reliance should not be placed on
forward-looking statements because they involve known and
unknown risks, uncertainties and other factors, which may cause
our actual results, performance or achievements to differ
materially from anticipated future results, performance or
achievements expressed or implied by such forward-looking
statements. We undertake no obligation to publicly update or
revise any forward-looking statement, whether as a result of new
information, future events, changed circumstances or otherwise.
This list of factors is illustrative, but by no means
exhaustive. Accordingly, all forward-looking statements should
be evaluated with the understanding of their inherent
uncertainty. You are advised to consult any further disclosures
we make on related subjects in the reports we file with the SEC
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act.
5
USE OF
PROCEEDS
We will not receive any proceeds from the sale of shares of our
common stock by the selling stockholders identified in this
prospectus, their pledgees, donees, transferees or other
successors in interest. The selling stockholders will receive
all of the net proceeds from the sale of their shares of our
common stock. See Selling Stockholders.
6
SELLING
STOCKHOLDERS
The Registration Statement of which this prospectus forms a part
has been filed pursuant to registration rights granted to the
selling stockholders in connection with our initial public
offering in order to permit the selling stockholders to resell
to the public shares of our common stock, as well as any common
stock that we may issue or may be issuable by reason of any
stock split, stock dividend or similar transaction involving
these shares. Under the terms of the registration rights
agreements between us and the selling stockholders named herein,
we will pay all expenses of the registration of their shares of
our common stock, including SEC filings fees, except that the
selling stockholders will pay all underwriting discounts and
selling commissions, if any.
The table below sets forth certain information known to us,
based upon written representations from the selling
stockholders, with respect to the beneficial ownership of the
shares of our common stock held by the selling stockholders as
of June 21, 2010. Because the selling stockholders may
sell, transfer or otherwise dispose of all, some or none of the
shares of our common stock covered by this prospectus, we cannot
determine the number of such shares that will be sold,
transferred or otherwise disposed of by the selling
stockholders, or the amount or percentage of shares of our
common stock that will be held by the selling stockholders upon
termination of any particular offering. See Plan of
Distribution. For the purposes of the table below, we
assume that the selling stockholders will sell all of their
shares of our common stock covered by this prospectus. When we
refer to the selling stockholders in this prospectus, we mean
the individuals and entities listed in the table below, as well
as their pledgees, donees, assignees, transferees, and
successors in interest.
Based on information provided to us, none of the selling
stockholders that are affiliates of broker-dealers, if any,
purchased shares of our common stock outside the ordinary course
of business or, at the time of their acquisition of shares of
our common stock, had any agreements, understandings or
arrangements with any other persons, directly or indirectly, to
dispose of the shares.
In the table below, the percentage of shares beneficially owned
is based on 86,508,363 shares of our common stock
outstanding as of the date of this prospectus (which includes
165,261 restricted shares). Beneficial ownership is determined
under the rules of the SEC and generally includes voting or
investment power with respect to securities. Unless indicated
below, to our knowledge, the persons and entities named in the
table have sole voting and sole investment power with respect to
all shares beneficially owned, subject to community property
laws where applicable. Shares of our common stock subject to
options that are currently exercisable or exercisable within
60 days of the date of this prospectus are deemed to be
outstanding and to be beneficially owned by the person holding
such options for the purpose of computing the percentage
ownership of that person but are not treated as outstanding for
the purpose of computing the percentage ownership of any other
person. Except as otherwise indicated, the business address for
each of our beneficial owners is
c/o CVR
Energy, Inc., 2277 Plaza Drive, Suite 500, Sugar Land,
Texas 77479.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Beneficially
|
|
|
|
Shares Beneficially
|
|
|
Owned
|
|
Number of
|
|
Owned
|
Beneficial Owner
|
|
Prior to the Offering
|
|
Shares
|
|
After the Offering
|
Name and Address
|
|
Number
|
|
Percent
|
|
Offered
|
|
Number
|
|
Percent
|
|
Coffeyville Acquisition LLC (1)
|
|
|
31,433,360
|
|
|
|
36.3
|
%
|
|
|
31,433,360
|
|
|
|
0
|
|
|
|
|
*
|
Kelso Investment Associates VII, L.P. (1)
|
|
|
31,433,360
|
|
|
|
36.3
|
%
|
|
|
31,433,360
|
|
|
|
0
|
|
|
|
|
*
|
KEP VI, LLC (1)
|
|
|
31,433,360
|
|
|
|
36.3
|
%
|
|
|
31,433,360
|
|
|
|
0
|
|
|
|
|
*
|
320 Park Avenue, 24th Floor
New York, New York 10022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Coffeyville Acquisition II LLC (2)
|
|
|
24,057,096
|
|
|
|
27.8
|
%
|
|
|
24,057,096
|
|
|
|
0
|
|
|
|
|
*
|
7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Beneficially
|
|
|
|
Shares Beneficially
|
|
|
Owned
|
|
Number of
|
|
Owned
|
Beneficial Owner
|
|
Prior to the Offering
|
|
Shares
|
|
After the Offering
|
Name and Address
|
|
Number
|
|
Percent
|
|
Offered
|
|
Number
|
|
Percent
|
|
The Goldman Sachs Group, Inc. (2)
|
|
|
24,057,296
|
|
|
|
27.8
|
%
|
|
|
24,057,296
|
|
|
|
0
|
|
|
|
|
*
|
200 West Street
New York, New York
10282-2198
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John J. Lipinski (3)
|
|
|
247,471
|
|
|
|
*
|
|
|
|
247,471
|
|
|
|
0
|
|
|
|
|
*
|
Scott L. Lebovitz (2)
|
|
|
24,057,296
|
|
|
|
27.8
|
%
|
|
|
24,057,296
|
|
|
|
0
|
|
|
|
|
*
|
George E. Matelich (1)
|
|
|
31,433,360
|
|
|
|
36.3
|
%
|
|
|
31,433,360
|
|
|
|
0
|
|
|
|
|
*
|
Stanley de J. Osborne (1)
|
|
|
31,433,360
|
|
|
|
36.3
|
%
|
|
|
31,433,360
|
|
|
|
0
|
|
|
|
|
*
|
|
|
|
*
|
|
Less than 1%.
|
|
(1)
|
|
Coffeyville Acquisition LLC
directly owns 31,433,360 shares of common stock. Kelso
Investment Associates VII, L.P. (KIA VII), a
Delaware limited partnership, owns a number of common units in
Coffeyville Acquisition LLC that corresponds to
24,557,883 shares of common stock and KEP VI, LLC
(KEP VI and together with KIA VII, the Kelso
Funds), a Delaware limited liability company, owns a
number of common units in Coffeyville Acquisition LLC that
corresponds to 6,081,000 shares of common stock. The Kelso
Funds may be deemed to beneficially own indirectly, in the
aggregate, all of the common stock of the Company owned by
Coffeyville Acquisition LLC because the Kelso Funds control
Coffeyville Acquisition LLC and have the power to vote or
dispose of the common stock of the Company owned by Coffeyville
Acquisition LLC. KIA VII and KEP VI, due to their common
control, could be deemed to beneficially own each of the
others shares but each disclaims such beneficial
ownership. Messrs. Nickell, Wall, Matelich, Goldberg,
Bynum, Wahrhaftig, Berney, Loverro, Connors, Osborne and Moore
(the Kelso Individuals) may be deemed to share
beneficial ownership of shares of common stock owned of record
or beneficially owned by KIA VII, KEP VI and Coffeyville
Acquisition LLC by virtue of their status as managing members of
KEP VI and of Kelso GP VII, LLC, a Delaware limited liability
company, the principal business of which is serving as the
general partner of Kelso GP VII, L.P., a Delaware limited
partnership, the principal business of which is serving as the
general partner of KIA VII. Each of the Kelso Individuals share
investment and voting power with respect to the ownership
interests owned by KIA VII, KEP VI and Coffeyville Acquisition
LLC but disclaim beneficial ownership of such interests.
Mr. Collins may be deemed to share beneficial ownership of
shares of common stock owned of record or beneficially owned by
KEP VI and Coffeyville Acquisition LLC by virtue of his status
as a managing member of KEP VI. Mr. Collins shares
investment and voting power with the Kelso Individuals with
respect to ownership interests owned by KEP VI and Coffeyville
Acquisition LLC but disclaims beneficial ownership of such
interests.
|
|
(2)
|
|
Coffeyville Acquisition II LLC
directly owns 24,057,296 shares of common stock. GS Capital
Partners V Fund, L.P., GS Capital Partners V Offshore Fund,
L.P., GS Capital Partners V GmbH & Co. KG and GS
Capital Partners V Institutional, L.P. (collectively, the
Goldman Sachs Funds) are members of Coffeyville
Acquisition II LLC and own common units of Coffeyville
Acquisition II LLC. The Goldman Sachs Funds common
units in Coffeyville Acquisition II LLC correspond to
23,821,799 shares of common stock. The Goldman Sachs Group,
Inc. and Goldman, Sachs & Co. may be deemed to
beneficially own indirectly, in the aggregate, all of the common
stock owned by Coffeyville Acquisition II LLC through the
Goldman Sachs Funds because (i) affiliates of Goldman,
Sachs & Co. and The Goldman Sachs Group, Inc. are the
general partner, managing general partner, managing partner,
managing member or member of the Goldman Sachs Funds and
(ii) the Goldman Sachs Funds control Coffeyville
Acquisition II LLC and have the power to vote or dispose of
the common stock of the Company owned by Coffeyville
Acquisition II LLC. Goldman, Sachs & Co. is a
direct and indirect wholly owned subsidiary of The Goldman Sachs
Group, Inc. Goldman, Sachs & Co. is the investment
manager of certain of the Goldman Sachs Funds. Coffeyville
Acquisition II LLC is an affiliate of a
broker-dealer and certifies that it bought the shares of common
stock offered hereby in the ordinary course of business and with
investment intent and that at the time of the purchase of the
shares, it had no agreements or understandings, and currently it
has no agreements or understandings, directly or indirectly,
with any person to distribute the shares of common stock offered
hereby. Shares that may be deemed to be beneficially owned by
the Goldman Sachs Funds consist of:
(1) 12,543,608 shares of common stock that may be
deemed to be beneficially owned by GS Capital Partners V Fund,
L.P. and its general partner, GSCP V Advisors, L.L.C.,
(2) 6,479,505 shares of common stock that may be
deemed to be beneficially owned by GS Capital Partners V
Offshore Fund, L.P. and its general partner, GSCP V Offshore
Advisors, L.L.C., (3) 4,301,376 shares of common stock
that may be deemed to be beneficially owned by GS Capital
Partners V Institutional, L.P. and its general partner, GSCP V
Advisors, L.L.C., and (4) 497,310 shares of common
stock that may be deemed to be beneficially owned by GS Capital
Partners V GmbH & Co. KG and its general partner,
Goldman, Sachs Management GP GmbH. In addition, Goldman,
Sachs & Co. directly owns 200 shares of common
stock. The Goldman Sachs Group, Inc. may be deemed to
beneficially own indirectly the
|
8
|
|
|
|
|
200 shares of common stock
owned by Goldman, Sachs & Co. In addition, the Goldman
Sachs Funds may be deemed to beneficially own the
24,057,096 shares of common stock owned by Coffeyville
Acquisition II LLC, and The Goldman Sachs Group, Inc. and
Goldman, Sachs & Co. may be deemed to beneficially own
indirectly, in the aggregate, all of the common stock owned by
Coffeyville Acquisition II LLC through the Goldman Sachs
Funds. Scott L. Lebovitz is a managing director of Goldman,
Sachs & Co. Mr. Lebovitz, The Goldman Sachs
Group, Inc. and Goldman, Sachs & Co. each disclaims
beneficial ownership of the shares of common stock owned
directly or indirectly by the Goldman Sachs Funds, except to the
extent of their pecuniary interest therein, if any.
|
|
(3)
|
|
Mr. Lipinski owns
247,471 shares of common stock directly. In addition,
Mr. Lipinski owns 139,714 shares indirectly through
his ownership of common units in Coffeyville Acquisition LLC and
Coffeyville Acquisition II LLC. Mr. Lipinski does not
have the power to vote or dispose of shares that correspond to
his ownership of common units in Coffeyville Acquisition LLC and
Coffeyville Acquisition II LLC and thus does not have
beneficial ownership of such shares.
|
9
GENERAL
DESCRIPTION OF THE COMMON STOCK THAT
THE SELLING STOCKHOLDERS MAY SELL
Our authorized capital stock consists of 350,000,000 shares
of common stock, par value $0.01 per share, and
50,000,000 shares of preferred stock, par value $0.01 per
share, the rights and preferences of which may be established
from time to time by our board of directors. As of the date of
this prospectus, there are 86,343,102 outstanding shares of
common stock and no outstanding shares of preferred stock. The
selling stockholders named in this prospectus may offer for
resale, from time to time, up to 55,738,127 shares of our
common stock.
The following description of our common stock does not purport
to be complete and is subject to and qualified by our amended
and restated certificate of incorporation and amended and
restated bylaws, which are included as exhibits to the
registration statement of which this prospectus forms a part,
and by the provisions of applicable Delaware law.
Holders of our common stock are entitled to one vote for each
share on all matters voted upon by our stockholders, including
the election of directors, and do not have cumulative voting
rights. Subject to the rights of holders of any then outstanding
shares of our preferred stock, our common stockholders are
entitled to any dividends that may be declared by our board of
directors. Holders of our common stock are entitled to share
ratably in our net assets upon our dissolution or liquidation
after payment or provision for all liabilities and any
preferential liquidation rights of our preferred stock then
outstanding. Holders of our common stock have no preemptive
rights to purchase shares of our capital stock. The shares of
our common stock are not subject to any redemption provisions
and are not convertible into any other shares of our capital
stock. All outstanding shares of our common stock are fully paid
and nonassessable. The rights, preferences and privileges of
holders of our common stock will be subject to those of the
holders of any shares of our preferred stock we may issue in the
future.
Our common stock will be represented by certificates, unless our
board of directors adopts a resolution providing that some or
all of our common stock shall be uncertificated. Any such
resolution will not apply to any shares of common stock that are
already certificated until such shares are surrendered to us.
Limitation on
Liability and Indemnification of Officers and
Directors
Our amended and restated certificate of incorporation limits the
liability of directors to the fullest extent permitted by
Delaware law. The effect of these provisions is to eliminate the
rights of our company and our stockholders, through
stockholders derivative suits on behalf of our company, to
recover monetary damages against a director for breach of
fiduciary duty as a director, including breaches resulting from
grossly negligent behavior. However, our directors will be
personally liable to us and our stockholders for any breach of
the directors duty of loyalty, for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law, under Section 174 of the Delaware
General Corporation Law or for any transaction from which the
director derived an improper personal benefit. In addition, our
amended and restated certificate of incorporation and amended
and restated bylaws provide that we will indemnify our directors
and officers to the fullest extent permitted by Delaware law.
Our board of directors has approved a form of indemnification
agreement for our directors and officers, and expects that each
of its current and future directors and officers will enter into
substantially similar indemnification agreements. We also
maintain directors and officers insurance.
Corporate
Opportunities
Our amended and restated certificate of incorporation provides
that the Goldman Sachs Funds and the Kelso Funds have no
obligation to offer us an opportunity to participate in
10
business opportunities presented to the Goldman Sachs Funds or
the Kelso Funds or their respective affiliates even if the
opportunity is one that we might reasonably have pursued, and
that neither the Goldman Sachs Funds or the Kelso Funds nor
their respective affiliates will be liable to us or our
stockholders for breach of any duty by reason of any such
activities unless, in the case of any person who is a director
or officer of our company, such business opportunity is
expressly offered to such director or officer in writing solely
in his or her capacity as an officer or director of our company.
Stockholders will be deemed to have notice of and consented to
this provision of our certificate of incorporation.
In addition, the Partnerships partnership agreement
provides that the owners of the managing general partner of the
Partnership, which include the Goldman Sachs Funds and the Kelso
Funds, are permitted to engage in separate businesses which
directly compete with the Partnership and are not required to
share or communicate or offer any potential corporate
opportunities to the Partnership even if the opportunity is one
that the Partnership might reasonably have pursued. The
agreement provides that the owners of the managing general
partner will not be liable to the Partnership or any partner for
breach of any fiduciary or other duty by reason of the fact that
such person pursued or acquired for itself any corporate
opportunity.
Delaware
Anti-Takeover Law
Our amended and restated certificate of incorporation provides
that we are not subject to Section 203 of the Delaware
General Corporation Law which regulates corporate acquisitions.
This law provides that specified persons who, together with
affiliates and associates, own, or within three years did own,
15% or more of the outstanding voting stock of a corporation may
not engage in business combinations with the corporation for a
period of three years after the date on which the person became
an interested stockholder. The law defines the term
business combination to include mergers, asset sales
and other transactions in which the interested stockholder
receives or could receive a financial benefit on other than a
pro rata basis with other stockholders.
Removal of
Directors; Vacancies
Our amended and restated certificate of incorporation and
amended and restated bylaws provide that any director or the
entire board of directors may be removed with or without cause
by the affirmative vote of the majority of all shares then
entitled to vote at an election of directors. Our amended and
restated certificate of incorporation and amended and restated
bylaws also provide that any vacancies on our board of directors
will be filled by the affirmative vote of a majority of the
board of directors then in office, even if less than a quorum,
or by a sole remaining director.
Voting
The affirmative vote of a plurality of the shares of our common
stock present, in person or by proxy will decide the election of
any directors, and the affirmative vote of a majority of the
shares of our common stock present, in person or by proxy will
decide all other matters voted on by stockholders, unless the
question is one upon which, by express provision of law, under
our amended and restated certificate of incorporation, or under
our amended and restated bylaws, a different vote is required,
in which case such provision will control.
Action by Written
Consent
Our amended and restated certificate of incorporation and
amended and restated bylaws provide that stockholder action can
be taken by written consent of the stockholders only if the
11
Goldman Sachs Funds and the Kelso Funds collectively
beneficially own more than 35.0% of the outstanding shares of
our common stock.
Ability to Call
Special Meetings
Our amended and restated bylaws provide that special meetings of
our stockholders can only be called pursuant to a resolution
adopted by a majority of our board of directors or by the
chairman of our board of directors. Special meetings may also be
called by the holders of not less than 25% of the outstanding
shares of our common stock if the Goldman Sachs Funds and the
Kelso Funds collectively beneficially own 50% or more of the
outstanding shares of our common stock. Thereafter, stockholders
will not be permitted to call a special meeting or to require
our board to call a special meeting.
Amending Our
Certificate of Incorporation and Bylaws
Our amended and restated certificate of incorporation provides
that our certificate of incorporation may be amended by the
affirmative vote of a majority of the board of directors and by
the affirmative vote of the majority of all shares of our common
stock then entitled to vote at any annual or special meeting of
stockholders. In addition, our amended and restated certificate
of incorporation and amended and restated bylaws provide that
our bylaws may be amended, repealed or new bylaws may be adopted
by the affirmative vote of a majority of the board of directors
or by the affirmative vote of the majority of all shares of our
common stock then entitled to vote at any annual or special
meeting of stockholders.
Advance Notice
Provisions for Stockholders
In order to nominate directors to our board of directors or
bring other business before an annual meeting of our
stockholders, a stockholders notice must be received by
the Secretary of the Company at the principal executive offices
of the Company not less than 120 calendar days before the date
that our proxy statement is released to stockholders in
connection with the previous years annual meeting of
stockholders, subject to certain exceptions contained in our
amended and restated bylaws. If no annual meeting was held in
the previous year, or if the date of the applicable annual
meeting has been changed by more than 30 days from the date
of the previous years annual meeting, then a
stockholders notice, in order to be considered timely,
must be received by the Secretary of the Company no later than
the later of the 90th day prior to such annual meeting or
the tenth day following the day on which notice of the date of
the annual meeting was mailed or public disclosure of such date
was made.
Listing
Our common stock is listed on the New York Stock Exchange under
the symbol CVI.
Transfer Agent
and Registrar
The transfer agent and registrar for our common stock is
American Stock Transfer & Trust Company.
12
PLAN OF
DISTRIBUTION
General
The selling stockholders may sell the shares of our common stock
covered by this prospectus using one or more of the following
methods:
|
|
|
|
|
underwriters in a public offering;
|
|
|
|
at the market to or through market makers or into an
existing market for the securities;
|
|
|
|
ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
|
|
|
|
block trades in which the broker-dealer will attempt to sell the
securities as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
|
|
|
|
purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
|
|
|
|
privately negotiated transactions;
|
|
|
|
short sales (including short sales against the box);
|
|
|
|
through the writing or settlement of standardized or
over-the-counter options or other hedging or derivative
transactions, whether through an options exchange or otherwise;
|
|
|
|
by pledge to secure debts and other obligations;
|
|
|
|
in other ways not involving market makers or established trading
markets, including direct sales to purchasers or sales effected
through agents;
|
|
|
|
a combination of any such methods of sale; and
|
|
|
|
any other method permitted pursuant to applicable law.
|
To the extent required by law, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution. Any prospectus supplement relating to a particular
offering of our common stock by the selling stockholders may
include the following information to the extent required by law:
|
|
|
|
|
the terms of the offering;
|
|
|
|
the names of any underwriters or agents;
|
|
|
|
the purchase price of the securities;
|
|
|
|
any delayed delivery arrangements;
|
|
|
|
any underwriting discounts and other items constituting
underwriters compensation;
|
|
|
|
any initial public offering price; and
|
|
|
|
any discounts or concessions allowed or reallowed or paid to
dealers.
|
The selling stockholders may offer our common stock to the
public through underwriting syndicates represented by managing
underwriters or through underwriters without an underwriting
syndicate. If underwriters are used for the sale of our common
stock, the securities will be acquired by the underwriters for
their own account. The underwriters may resell the common stock
in one or more transactions, including in negotiated
transactions at a fixed public offering price or at varying
prices determined at the time of sale. In connection with any
13
such underwritten sale of common stock, underwriters may receive
compensation from the selling stockholders, for whom they may
act as agents, in the form of discounts, concessions or
commissions. Underwriters may sell common stock to or through
dealers, and the dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters
and/or
commissions from the purchasers for whom they may act as agents.
Such compensation may be in excess of customary discounts,
concessions or commissions. Underwriting compensation will not
exceed 8% for any offering under this Registration Statement.
If the selling stockholders use an underwriter or underwriters
to effectuate the sale of common stock, we
and/or they
will execute an underwriting agreement with those underwriters
at the time of sale of those securities. To the extent required
by law, the names of the underwriters will be set forth in the
prospectus supplement used by the underwriters to sell those
securities. Unless otherwise indicated in the prospectus
supplement relating to a particular offering of common stock,
the obligations of the underwriters to purchase the securities
will be subject to customary conditions precedent and the
underwriters will be obligated to purchase all of the securities
offered if any of the securities are purchased.
In effecting sales, brokers or dealers engaged by the selling
stockholders may arrange for other brokers or dealers to
participate. Broker-dealers may receive discounts, concessions
or commissions from the selling stockholders (or, if any
broker-dealer acts as agent for the purchaser of shares, from
the purchaser) in amounts to be negotiated. Such compensation
may be in excess of customary discounts, concessions or
commissions. If dealers are utilized in the sale of securities,
the names of the dealers and the terms of the transaction will
be set forth in a prospectus supplement, if required.
The selling stockholders may also sell shares of our common
stock from time to time through agents. We will name any agent
involved in the offer or sale of such shares and will list
commissions payable to these agents in a prospectus supplement,
if required. These agents will be acting on a best efforts basis
to solicit purchases for the period of their appointment, unless
we state otherwise in any required prospectus supplement.
The selling stockholders may sell shares of our common stock
directly to purchasers. In this case, they may not engage
underwriters or agents in the offer and sale of such shares.
The selling stockholders and any underwriters, broker-dealers or
agents that participate in the sale of the selling
stockholders shares of common stock or interests therein
may be underwriters within the meaning of the
Securities Act. Any discounts, commissions, concessions or
profit they earn on any resale of the shares may be underwriting
discounts and commissions under the Securities Act. Selling
stockholders who are underwriters within the meaning
of the Securities Act will be subject to the prospectus delivery
requirements of the Securities Act. We will make copies of this
prospectus available to the selling stockholders for the purpose
of satisfying the prospectus delivery requirements of the
Securities Act, if applicable. If any entity is deemed an
underwriter or any amounts deemed underwriting discounts and
commissions, the prospectus supplement will identify the
underwriter or agent and describe the compensation received from
the selling stockholders.
We are not aware of any plans, arrangements or understandings
between any of the selling stockholders and any underwriter,
broker-dealer or agent regarding the sale of the shares of our
common stock by the selling stockholders. We cannot assure you
that the selling stockholders will sell any or all of the shares
of our common stock offered by them pursuant to this prospectus.
In addition, we cannot assure you that the selling stockholders
will not transfer, devise or gift the shares of our common stock
by other means not described in this prospectus. Moreover,
shares of common stock covered by this prospectus that qualify
for sale pursuant to Rule 144 under the Securities Act may
be sold under Rule 144 rather than pursuant to this
prospectus.
14
From time to time, one or more of the selling stockholders may
pledge, hypothecate or grant a security interest in some or all
of the shares owned by them. The pledgees, secured parties or
persons to whom the shares have been hypothecated will, upon
foreclosure, be deemed to be selling stockholders. The number of
a selling stockholders shares offered under this
prospectus will decrease as and when it takes such actions. The
plan of distribution for that selling stockholders shares
will otherwise remain unchanged. In addition, a selling
stockholder may, from time to time, sell the shares short, and,
in those instances, this prospectus may be delivered in
connection with the short sales and the shares offered under
this prospectus may be used to cover short sales.
A selling stockholder may enter into hedging transactions with
broker-dealers and the broker-dealers may engage in short sales
of the shares in the course of hedging the positions they assume
with that selling stockholder, including, without limitation, in
connection with distributions of the shares by those
broker-dealers. A selling stockholder may enter into option or
other transactions with broker-dealers that involve the delivery
of the shares offered hereby to the broker-dealers, who may then
resell or otherwise transfer those securities.
A selling stockholder which is an entity may elect to make a pro
rata in-kind distribution of the shares of common stock to its
members, partners or shareholders. In such event we may file a
prospectus supplement to the extent required by law in order to
permit the distributees to use the prospectus to resell the
common stock acquired in the distribution. A selling stockholder
which is an individual may make gifts of shares of common stock
covered hereby. Such donees may use the prospectus to resell the
shares or, if required by law, we may file a prospectus
supplement naming such donees.
Indemnification
We and the selling stockholders may enter agreements under which
underwriters, dealers and agents who participate in the
distribution of our common stock may be entitled to
indemnification by us
and/or the
selling stockholders against various liabilities, including
liabilities under the Securities Act, and to contribution with
respect to payments which the underwriters, dealers or agents
may be required to make.
Price
Stabilization and Short Positions
If underwriters or dealers are used in the sale, until the
distribution of the securities is completed, rules of the SEC
may limit the ability of any underwriters to bid for and
purchase the securities. As an exception to these rules,
representatives of any underwriters are permitted to engage in
transactions that stabilize the price of the securities. These
transactions may consist of bids or purchases for the purpose of
pegging, fixing or maintaining the price of the securities. If
the underwriters create a short position in the securities in
connection with the offering (that is, if they sell more
securities than are set forth on the cover page of the
prospectus supplement) the representatives of the underwriters
may reduce that short position by purchasing securities in the
open market.
We make no representation or prediction as to the direction or
magnitude of any effect that the transactions described above
may have on the price of our common stock. In addition, we make
no representation that the representatives of any underwriters
will engage in these transactions or that these transactions,
once commenced, will not be discontinued without notice.
15
LEGAL
MATTERS
Unless otherwise specified in a prospectus supplement
accompanying this prospectus, the validity of the common stock
offered by this prospectus will be passed upon by Fried, Frank,
Harris, Shriver & Jacobson LLP, New York, New York.
Any underwriters will be advised about legal matters by their
own counsel, which will be named in a prospectus supplement to
the extent required by law.
EXPERTS
The consolidated financial statements of CVR Energy, Inc. and
subsidiaries as of December 31, 2009 and 2008, and for each
of the years in the three-year period ended December 31,
2009, and managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2009, have been incorporated by reference
herein, in reliance upon the reports of KPMG LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing.
INCORPORATION BY
REFERENCE
The SEC allows us to incorporate by reference
information into this document. This means that we can disclose
important information to you by referring you to another
document filed separately with the SEC. The information
incorporated by reference is considered to be part of this
prospectus, and information that we file later with the SEC will
automatically update and supersede the previously filed
information. We incorporate by reference the documents listed
below and any future filings made by us with the SEC pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
(File
No. 1-33492)
(other than any portions of the respective filings that are
furnished, pursuant to Item 2.02 or Item 7.01 of
Current Reports on
Form 8-K
(including exhibits related thereto) or other applicable SEC
rules, rather than filed) after the date of this registration
statement and prior to effectiveness of the registration
statement and after the date of this prospectus and prior to the
termination of the offerings under this prospectus:
|
|
|
|
|
our Annual Report on
Form 10-K
for the year ended December 31, 2009, filed on
March 12, 2010;
|
|
|
|
our Quarterly Report on Form 10-Q for the quarter ended
March 31, 2010, filed on May 5, 2010; and
|
|
|
|
our Current Reports on
Form 8-K
filed on January 7, 2010, March 18, 2010,
April 12, 2010 and May 21, 2010.
|
You may request a copy of any or all of the information
incorporated by reference into this prospectus (other than an
exhibit to the filings unless we have specifically incorporated
that exhibit by reference into the filing), at no cost, by
writing or telephoning us at the following address:
CVR Energy,
Inc.
2277 Plaza Drive, Suite 500
Sugar Land, Texas 77479
Attention: Investor Relations
Telephone:
(281) 207-3464
You should rely only on the information contained or
incorporated by reference into this prospectus or in any
prospectus supplement. We have not authorized anyone to provide
you with different information. If anyone provides you with
different or inconsistent information,
16
you should not rely on it. We are not making an offer to sell,
or soliciting an offer to buy, securities in any jurisdiction
where the offer and sale is not permitted.
WHERE YOU CAN
FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form S-3
under the Securities Act with respect to the common shares
offered hereby. This prospectus is part of a registration
statement we have filed with the SEC. As permitted by SEC rules,
this prospectus does not contain all of the information we have
included in the registration statement and the accompanying
exhibits. You may refer to the registration statement and the
exhibits for more information about us and our common stock. The
registration statement and the exhibits are available at the
SECs Public Reference Room or through its website.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You can read and copy any
materials we file with the SEC at its Public Reference Room at
100 F Street N.E., Washington DC, 20549. You can
obtain information about the operations of the SEC Public
Reference Room by calling the SEC at
1-800-SEC-0330.
The SEC also maintains a website that contains information we
file electronically with the SEC, which you can access over the
Internet at
http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange (NYSE:
CVI), and you can obtain information about us at the offices of
the New York Stock Exchange, 20 Broad Street, New York, New
York 10005. General information about us, including our annual
report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K,
and amendments to those reports, is available free of charge
through our website at
http://www.cvrenergy.com
as soon as reasonably practicable after we electronically
file them with, or furnish them to, the SEC. Information on our
website is not incorporated into this prospectus or our other
securities filings and is not a part of these filings.
17
You should rely only on the information contained in, or
incorporated by reference into, this prospectus supplement, the
accompanying prospectus and any additional prospectus
supplements or free writing prospectuses, if necessary, relating
to this offering. We have not authorized anyone to provide you
with information that is different. This prospectus supplement
is not an offer to sell or a solicitation of an offer to buy
these shares of common stock in any circumstances under which
the offer or solicitation is unlawful. You should not assume
that the information in this prospectus supplement or any
documents we incorporate by reference into this prospectus
supplement is accurate as of any date other than the date on the
front cover page of those documents. Our business, financial
condition, results of operations and prospects may have changed
since those dates.
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
Prospectus Supplement
|
|
|
|
|
|
|
|
S-1
|
|
|
|
|
S-2
|
|
|
|
|
S-3
|
|
|
|
|
S-5
|
|
|
|
|
S-6
|
|
|
|
|
S-10
|
|
|
|
|
S-14
|
|
|
|
|
S-19
|
|
|
|
|
S-19
|
|
|
|
|
S-19
|
|
|
|
|
S-20
|
|
|
|
|
|
|
Prospectus
|
|
|
|
|
|
|
|
1
|
|
|
|
|
2
|
|
|
|
|
3
|
|
|
|
|
6
|
|
|
|
|
7
|
|
|
|
|
10
|
|
|
|
|
13
|
|
|
|
|
16
|
|
|
|
|
16
|
|
|
|
|
16
|
|
|
|
|
17
|
|
|
|
|
CVR Energy, Inc.
|
|
|
|
15,000,000 Shares
|
|
Common Stock
|
|
Deutsche Bank Securities
|
Goldman, Sachs & Co.
|
Simmons & Company International
|
Tudor, Pickering, Holt &
Co.
|
Prospectus Supplement
November , 2010