The name, citizenship, present principal occupation or employment and business address of each director and
executive officer of the Reporting Persons are set forth in Schedule A attached hereto.
None of the Reporting Persons nor any manager or executive
officer of the Reporting Persons, has, during the past five years, (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (b) been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting, or mandating activities subject to, Federal or State securities
laws or a finding of any violation with respect to such laws.
Item 3. |
Source and Amount of Funds or Other Consideration. |
The Reporting Persons may be deemed to be the beneficial owner, in the aggregate, of 5,089,703 Shares. Of such Shares, an aggregate of 1,269,350 Shares were
acquired by Icahn Partners and Icahn Master in open market purchases for an aggregate purchase price of approximately $90.2 million between July 16, 2021 and September 14, 2021. In addition, between August 10, 2021 and
September 7, 2021, Icahn Partners and Icahn Master entered into forward contracts relating to 1,629,326 Shares, at a forward price of $63.00 per share, for an aggregate forward price of approximately $102.6 million, plus a financing
charge. Icahn Partners and Icahn Master paid the counterparty to the forward contracts an aggregate amount of approximately $12.7 million upon entering into the contracts. On November 2, 2021, Icahn Partners and Icahn Master exercised the
forward contracts relating to 1,629,326 Shares.
On May 23, 2022, in connection with the expiration of the tender offer (the Tender
Offer), which is more fully described in Item 4 below, IEP Utility acquired an aggregate of 2,191,027 Shares at the offer price of $82.50 per Share.1 Following the purchase of the Shares
in the Tender Offer by IEP Utility, IEP Utility contributed all of the Shares acquired in the Tender Offer to Icahn Partners and Icahn Master with Icahn Partners receiving 1,281,942 Shares and Icahn Master receiving 909,085 Shares.
The source of funding for the Shares held by the Reporting Persons was the general working capital of the respective purchasers. Part of the purchase price of
such Shares was obtained through margin borrowing.
Item 4. |
Purpose of Transaction. |
The Reporting Persons initially acquired their positions in the Shares in the belief that they were undervalued and represented an attractive investment
opportunity. On October 27, 2021, IEP Utility commenced the Tender Offer to purchase any and all of the issued and outstanding Shares of the Issuer at an initial price of $75.00 per Share, which price was subsequently increased to $82.50 per
Share, in cash, without interest, less any applicable withholding taxes (the Offer Price), upon the terms set forth in the Offer to Purchase, dated October 27, 2021. In addition, the Reporting Persons (other than IEP Utility)
also sought to have their own slate of director nominees elected at the Issuers 2022 Annual Meeting of Stockholders.
On May 6, 2022, the
Issuer, the Reporting Persons and Mr. Andrew J. Teno entered into an agreement (the Cooperation Agreement) regarding the Tender Offer and the proxy contest, a copy of which is attached hereto as Exhibit 2 and
incorporated herein by reference. Mr. Teno is a portfolio manager at Icahn Capital and on May 27, 2022, was appointed to the Issuers Board of Directors (the Board) pursuant to the terms of the Cooperation Agreement
as a designee of the Reporting Persons. The Reporting Persons and Mr. Teno are not members of a group (as such term is used in Rule 13d-5 of the Securities Exchange Act of 1934, as amended
(the Exchange Act)), and the Reporting Persons are not otherwise acting in concert with Mr. Teno.
Below is a summary of certain
material terms of the Cooperation Agreement. The following summary does not purport to be a complete description of all terms of the Cooperation Agreement.
1 |
An additional 22,570 Shares were tendered (i) by notice of guaranteed delivery but not received by the
depositary following the expiration of the guaranteed delivery period or (ii) with documentation that did not match the transfer agents records. The Reporting Persons are in the process of resolving the outstanding issues and seeking to
obtain beneficial ownership of such Shares. |