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Item 1A. Risk Factors

2024-02-29 compared with 2023-02-24 · 158 added, 92 removed, 549 unchanged (31% of the section changed)

5 unchanged sentences

Risks Relating to Our Structure

Our general partner, and its control person, has significant influence over us, and sales by our controlling unitholder could cause our unit price to decline.

Our general partner, and its control person, has significant influence over us, and sales by our controlling unitholder pursuant to a margin call or otherwise could cause our unit price or the value of our assets in the Investment Funds to decline or otherwise impact our liquidity.

Icahn, through affiliates, owns 100% of Icahn Enterprises GP, the general partner of Icahn Enterprises, and approximately 86% of Icahn Enterprises’ outstanding depositary units as of December 31, 2023, and, as a result, has the ability to influence many aspects of our operations and affairs.

Icahn’s estate has been designed to assure the stability and continuation of Icahn Enterprises with no need to monetize his interests for estate tax or other purposes.

Icahn’s estate plan has been designed to assure the stability and continuation of Icahn Enterprises and to minimize the need to monetize his interests for estate tax or other purposes.

In the event of Mr.

Icahn’s death, control of Mr.

Icahn’s interests in Icahn Enterprises and its general partner will be placed in charitable and other trusts under the control of senior Icahn Enterprises’ executives and Icahn family members.

Icahn’s death, a substantial majority of Mr.

Icahn’s interests in Icahn Enterprises and its general partner are expected to pass to trusts or charitable organizations that will be under the control of a group that will include Icahn family members and current or former senior Icahn Enterprises executives.

However, there can be no assurance that such planning will be effective.

Furthermore, if upon Mr.

Icahn’s death, the charitable and other trusts do not give control of Icahn Enterprises GP to Brett Icahn, Brett Icahn will have the right to terminate the manager agreement between Brett Icahn and Icahn Enterprises.

Icahn’s death control of Icahn Enterprises GP is not given to Brett Icahn, Brett Icahn will have the right to terminate the manager agreement between Brett Icahn and Icahn Enterprises.

In addition, it is currently anticipated that Brett Icahn will succeed Carl Icahn as Chairman of the board of Icahn Enterprises GP and as Chief Executive Officer of the Investment segment following the end of the 7-year term of the manager agreement or earlier if Carl Icahn should so determine.

In addition, in past years through the present, Mr.

Icahn from time to time has had and currently has borrowings from lenders and has pledged assets he owns personally, directly or through his affiliates, to secure these loans, which pledged assets include Icahn Enterprises depositary units and interests in the Investment Funds.

The number of depositary units and the amount of interests in the Investment Funds owned personally by Mr.

Icahn, directly or through his affiliates, pledged to secure these loans has been substantial and has fluctuated over time as a result of the amount of outstanding principal amount of the loans, the market price of the depositary units, the value of the Investment Fund interests, and other factors.

As of December 31, 2023, Mr.

Icahn and his affiliates have pledged 352,677,938 depositary units and approximately $1.3 billion of interests in the Investment Funds.

Neither Icahn Enterprises nor any of its subsidiaries are party to these loans.

Icahn amended and restated his loan agreements in July of 2023 (as amended and restated, the “Loan Agreement”), extending the maturity of certain of the previous loans, amending certain covenants, and providing for a principal payment of $500 million that was made prior to September 1, 2023, quarterly principal payments of $87.5 million beginning in September 2024, and a final principal payment of $2.6 billion at the end of the term.

The terms of the Loan Agreement require that distributions paid upon, or proceeds from sales of, pledged depositary units be used to prepay the loans or be pledged as additional collateral.

Pursuant to the terms of the Loan Agreement, a margin call may only be triggered in the event that the loan-to-value ratio set forth in the Loan Agreement is not maintained.

Unlike the previous loan agreements, for purposes of the loan-to-value ratio set forth in the Loan Agreement, the value of the pledged depositary units will be calculated based upon the Company’s indicative net asset value rather than the market price of the depositary units.

Only a significant decline in the Company’s indicative net asset value, or the value of the interests in the Investment Funds, could result in margin calls.

Declines in the trading price of the Company’s depositary units will no longer require Mr.

Icahn to deposit additional funds or securities with the lenders or suffer foreclosure on or a forced sale of Mr.

Icahn’s depositary units or other assets.

While we are confident in our investment strategy and ability to continue to grow our investment portfolio through a refocused activist strategy, and in the effectiveness of our hedges, which are designed to avoid fluctuations in the value of our portfolio, successful execution of our activist investment activities and other aspects of our business involves many risks (including those set forth herein), some of which are out of our control.

Icahn may sell depositary units or make withdrawals from the Investment Funds in order to satisfy payment obligations under the Loan Agreements.

Icahn has made withdrawals from the Investment Funds in recent months, and may make additional withdrawals in the future, in order to repay a portion of his loans and for other purposes.

In the event Mr.

Icahn makes withdrawal requests from the Investment Funds, the Investment Funds may satisfy such withdrawal requests with cash or cash equivalents on hand, proceeds from sales of assets held by the Investment Funds or capital contributions from the Company, which could adversely affect the value of the assets held by the Investment Funds as well as the liquidity available to the Company.

The affirmative vote of unitholders holding more than 75% of the total number of all depositary units then outstanding, including depositary units held by Icahn Enterprises GP and its affiliates, is required to remove Icahn Enterprises GP as the general partner of Icahn Enterprises.

Icahn, through affiliates, holds approximately 86% of

Icahn Enterprises’ outstanding depositary units.

If sales of depositary units held by Mr.

Icahn and his affiliates, as a result of a margin call, foreclosure, changes in tax laws, changes to his estate, or otherwise, were to cause Mr.

Icahn and his affiliates to no longer hold at least 25% of the outstanding depositary units, Icahn Enterprises GP could potentially be removed as the general partner of Icahn Enterprises without Mr.

Icahn’s consent.

Sales of a substantial number of depositary units held by Mr.

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In order not to become an investment company required to register under the Investment Company Act, we monitor the value of our investments and structure transactions with an eye toward the Investment Company Act.

As a result, we may structure transactions in a less advantageous manner than if we did not have Investment Company Act concerns, or we may avoid otherwise economically desirable transactions due to those concerns.

As a result, we

may structure transactions in a less advantageous manner than if we did not have Investment Company Act concerns, or we may avoid otherwise economically desirable transactions due to those concerns.

We may become taxable as a corporation if we are no longer treated as a partnership for U.S.

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However, there can be no assurance that such structuring will be effective in all events to avoid the receipt of more than 10% of non-qualifying income.

The Board of Directors of our General Partner has approved the repurchase by the Company of up to $500 million of our outstanding senior notes, and if such debt is repurchased at a discount, we may recognize cancellation of indebtedness (“COD”) income, which, in some circumstances, may not be considered “qualifying” income.

If less than 90% of our gross income constitutes “qualifying” income, we may be subject to corporate tax on our net income plus possible state taxes.

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Icahn or his estate is not selling, or has no plans to sell, our depositary units.

We currently cannot predict the outcome of legislative proposals, including, if enacted, their impact on our operations and financial position.

The Organization for Economic Cooperation and Development (“OECD”) issued new guidelines, known as “Pillar Two,” to implement a 15% global corporate minimum tax to address gaps in current tax laws and ensure that large multinational enterprises pay a minimum level of tax in the countries in which they operate.

Countries may implement the OECD Pillar Two model rules as issued, in a modified form or not at all.

A number of countries have passed legislation enacting certain parts of the OECD’s Pillar Two framework effective as of January 1, 2024.

OECD Pillar Two could have a material impact on our effective tax rate and result in higher cash tax liabilities depending on which countries enact minimum tax legislation and in what manner.

We currently cannot predict the outcome of these or other legislative proposals, including, if enacted, their impact on our operations and financial position.

Holders of depositary units may be required to pay tax on their share of our income even if they did not receive cash distributions from us.

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We may be liable for any underwithholding by nominees on our distributions or on transfers of our units made after January 1, 2023.

For distributions made after January 1, 2023, a publicly traded partnership must post on its primary public website (and keep accessible for ten years), and deliver to any registered holder that is a nominee, a qualified notice that states the amount of a distribution that is attributable to each type of income group specified in the 1446 Final Regulations.

If the qualified notice is incorrect such that it causes a broker to underwithhold with respect to an amount in excess of cumulative net income, the publicly traded partnership is liable for any underwithholding on such amount.

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Treasury Department adopted final Treasury regulations that provide that publicly traded partnerships may use a similar monthly simplifying convention to allocate tax items among transferor and transferee unitholders.

Nonetheless, the final regulations do not specifically authorize the use of the proration method we have

Nonetheless, the final regulations do not specifically authorize the use of the proration method we have adopted.

If the IRS were to challenge this method, we may be required to change the allocation of items of income, gain, loss and deduction among our unitholders.

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Accordingly, our current unitholders may bear some or all of the tax liability resulting from such audit adjustment, even if such unitholders did not own units during the tax year under audit.

In particular, as a publicly traded partnership, our Partnership Representative (as defined below) may, in certain instances, request that any “imputed underpayment” resulting from an audit be adjusted by amounts of certain of our passive losses.

In particular, as a publicly traded partnership, our Partnership Representative (as defined below) may, in certain instances, request that any “imputed underpayment” resulting from an

audit be adjusted by amounts of certain of our passive losses.

If we successfully make such a request, we would have to reduce suspended passive loss carryovers in a manner which is binding on the partners.

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Starfire Holding Corporation (“Starfire”), which is 99.6% owned by Mr.

Icahn, has undertaken to indemnify us and our subsidiaries from losses resulting from any imposition of certain pension funding or termination liabilities that may be imposed on us and our subsidiaries or our assets as a result of being a member of the Icahn controlled group.

Icahn as of December 31, 2023, has undertaken to indemnify us and our subsidiaries from losses resulting from any imposition of certain pension funding or termination liabilities that may be imposed on us and our subsidiaries or our assets as a result of being a member of the Icahn controlled group, including ACF.

The Starfire indemnity provides, among other things, that so long as such contingent liabilities exist and could be imposed on us, Starfire will not make any distributions to its stockholders that would reduce its net worth to below $250 million.

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We are a limited partnership and ‘‘controlled company’’ pursuant to Rule 5615(c) of the Nasdaq listing rules.

As such we have elected, and intend to continue to elect, not to comply with certain corporate governance requirements of the Nasdaq listing rules, including the requirements that a majority of the board of directors consist of independent directors and that independent directors determine the compensation of executive officers and the selection of nominees to the board of directors.

As such we have elected, and intend to continue to elect, not to comply with certain corporate governance requirements of

the Nasdaq listing rules, including the requirements that a majority of the board of directors consist of independent directors and that independent directors determine the compensation of executive officers and the selection of nominees to the board of directors.

We do not maintain a compensation or nominating committee and do not have a majority of independent directors.

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Unlike the holders of common stock in a corporation, holders of Icahn Enterprises’ outstanding depositary units have only limited voting rights on matters affecting our business.

Holders of depositary units have no right to elect the general partner on an annual or other continuing basis, and our general partner generally may not be removed except pursuant to the vote of the holders of not less than 75% of

the outstanding depositary units.

In addition, removal of the general partner may result in a default under the indentures governing our senior notes.

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Accordingly, you will be limited to bringing any claims in state court.

We have become subject to, and may in the future be subject to, short selling strategies driving down the market price of our depositary units and increasing the volatility of the trading market for our depositary units, as well as regulatory investigations and litigation.

On May 2, 2023, a firm published a report making allegations about the Company in an attempt to drive down the market price of our depositary units, and the price of our depositary units declined significantly after the publication of this report, has continued to trade at lower prices than before the report, and the market for our depositary units has been highly volatile since the publication of the report.

Short selling is the practice of selling securities that the seller does not own but may have borrowed with the intention of buying identical securities back at a later date.

The short seller hopes to profit from a decline in the value of the securities between the time the securities are borrowed and the time they are replaced.

As it is in the short seller’s best interests for the price of the securities to decline, many short sellers (sometime known as “disclosed shorts”) publish, or arrange for the publication of, negative opinions regarding the relevant issuer and its business prospects to create negative market momentum.

Although traditionally these disclosed shorts were limited in their ability to access mainstream business media or to otherwise create negative market rumors, the rise of the Internet and technological advancements regarding document creation, videotaping and publication by weblog have allowed many disclosed shorts to publicly attack a company’s credibility, strategy and veracity by means of so-called “research reports” that mimic the type of investment analysis performed by large Wall Street firms and independent research analysts.

These short attacks have, in the past, led to selling of securities in the market.

Further, these short seller publications are not regulated by any governmental, self-regulatory organization or other official authority in the U.S.

and they are not subject to certification requirements imposed by the SEC.

Companies that are subject to unfavorable allegations, even if untrue, may have to expend a significant amount of resources to investigate such allegations and/or defend themselves, including securityholder suits against the company that may be prompted by such allegations, and we have already expended significant resources and management time in response to the short seller report.

As further described below, as a result of the short seller report, we have become the subject of suits and government inquiries prompted by the allegations made by the short seller, and future short seller reports could prompt additional lawsuits or investigations.

Since the publication of the short seller report in May of 2023, we have received two, and may receive additional, putative securities class action lawsuits.

The two putative securities class action lawsuits were filed in the U.S.

District Court for the Southern District of Florida, Okaro v.

Icahn Enterprises L.P.

23-21773 (S.D.

Fl.), and Levine v.

Icahn Enterprises L.P.

23-22009 (S.D.

These lawsuits have been consolidated and the court appointed a lead plaintiff on November 20, 2023.

A derivative complaint has also been filed in the U.S.

District Court for the Southern District of Florida, naming the Company’s general partner, its directors, and certain current and former officers as defendants, and the Company as a nominal defendant, Patrick Pickney v.

Icahn Enterprises G.P.

1:23-cv-22932-KMW (S.D.

In addition, we have received demands for inspection of our books and records from plaintiffs purporting to be record holders of our depositary units.

One of these purposed unitholders filed an action to compel inspection of our books and records on November 22, 2023 in the Court of Chancery of the State of Delaware, Bruno v.

Icahn Enterprises, L.P.

2023-1170-SEM.

We have also received requests for information from the staff of the Division of Enforcement of the SEC and the U.S.

Attorney’s office for the Southern District of New York, relating to, among other things, our corporate governance, capitalization, securities offerings, the sufficiency of our disclosure, including with respect to Mr.

Icahn’s loans and pledges of depositary units and other assets, dividends, the valuation of our assets, marketing materials, due diligence and other materials.

See Item 3 of Part I, “Legal Proceedings,” of this Report.

We can provide no assurance as to the outcome or resolution of any pending or potential legal or administrative actions or investigations, and such actions and investigations may result in administrative orders against us, the imposition of penalties and/or fines against us, damages awards against us, and/or

the imposition of sanctions against certain of the Company's current or former officers, directors and/or employees.

Resolution of these types of matters can be prolonged and costly, and the ultimate results or judgments are uncertain due to the inherent uncertainty in the outcomes of litigation and other proceedings.

However, as we have stated, we believe that we maintain a strong compliance program and, while no assurances can be made, and we are still evaluating these matters, we do not currently believe that these inquiries and litigations will have a material impact on our business, financial condition, results of operations or cash flows.

Risks Relating to Liquidity and Capital Requirements

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We may not have sufficient funds necessary to finance a change of control offer that may be required by the indentures governing our senior notes.

Icahn were to sell, or otherwise transfer, some or all of his interests in us to an unrelated party or group, a change of control could be deemed to have occurred under the terms of the indentures governing our senior notes, which would require us to offer to repurchase all outstanding senior notes at 101% of their principal amount plus accrued and unpaid interest and liquidated damages, if any, to the date of repurchase.

Icahn, through affiliates, as of December 31, 2023, owned 100% of Icahn Enterprises GP and approximately 86% of our outstanding depositary units.

Icahn were to sell, or otherwise transfer, some or all of his interests in us to an unrelated party or group, as a result of a merger, foreclosure, changes in tax laws, changes to his estate, or otherwise, a change of control could be deemed to have occurred under the terms of the indentures governing our senior notes, which would require us to offer to repurchase all outstanding senior notes at 101% of their principal amount plus accrued and unpaid interest, special interest, if any, and liquidated damages, if any, to the date of repurchase.

However, it is possible that we will not have sufficient funds at the time of the change of control to make the required repurchase of notes.

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While we made cash distributions to Icahn Enterprises’ unitholders in each of the four quarters of 2023, the payment of future distributions will be determined by the board of directors of Icahn Enterprises GP, our General Partner, quarterly, based on a review of a number of factors, including those described below and other factors that it deems relevant at the time that declaration of a distribution is considered.

For our quarterly distribution declared on February 26, 2024, we have continued to provide an option for unitholders to receive a distribution in either depositary units or cash;

however, similar to the quarterly distributions declared on August 4, 2023 and November 1, 2023, for this distribution, unitholders will receive a distribution of $1.00 per unit payable in depositary units and/or cash at the election of the unitholder.

Our ability to pay distributions will depend on numerous factors, including the availability of adequate cash flow from operations;

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and our issuances of additional equity and debt securities.

As of December 31, 2023, Mr.

Icahn and his affiliates owned approximately 86% of our outstanding depositary units, and he has generally elected to take his quarterly distribution in units instead of cash.

For the quarterly distribution paid in December of 2023, Mr.

Icahn elected to take his distributions in a mix of cash and units, and we anticipate that Mr.

Icahn will elect to take his distributions in a mix of cash and units with respect to future distributions, which could further reduce the ability of the Company to maintain its current or historical cash distribution amounts.

The availability of cash flow in the future depends as well upon events and circumstances outside our control, including prevailing economic and industry conditions and financial, business and similar factors.

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The debt securities in which we may invest may include bonds, debentures, notes or non-rated mortgage-related securities, municipal obligations, bank debt and mezzanine loans.

Certain of these securities may include lower rated or non-rated securities, which may

provide the potential for higher yields and therefore may entail higher risk and may include the securities of bankrupt or distressed companies.

In addition, we may engage in various investment techniques, including derivatives, options and futures transactions, foreign currency transactions, “short” sales and leveraging for either hedging or other purposes.

Certain of these securities may include lower rated or non-rated securities, which may provide the potential for higher yields and therefore may entail higher risk and may include the securities of bankrupt or distressed companies.

In addition, we have and may continue to engage in various investment techniques, including derivatives, options and futures transactions, foreign currency transactions, “short” sales and leveraging for either hedging or other purposes.

We have reduced our market short positions in recent months, but may increase those positions in the future.

We may concentrate our activities by owning significant or controlling interests in certain investments.

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The Investment Funds may enter into repurchase and reverse repurchase agreements.

When the Investment Funds enters into a repurchase agreement, it “sells” securities issued by the U.S.

When the Investment Fund enters into a repurchase agreement, it “sells” securities issued by the U.S.

or a non-U.S.

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While the Investment Funds will attempt to negotiate the terms of these financing arrangements with such brokers and dealers, its ability to do so will be limited.

The Investment Funds are therefore subject to changes in the value that the broker-dealer ascribes to a given security or position, the amount of margin required to support such security or position, the borrowing rate to finance such security or position and/or such broker-dealer’s willingness to continue to provide any such credit to the Investment Funds.

Investment Funds are therefore subject to changes in the value that the broker-dealer ascribes to a given security or position, the amount of margin required to support such security or position, the borrowing rate to finance such security or position and/or such broker-dealer’s willingness to continue to provide any such credit to the Investment Funds.

Because the Investment Funds currently have no alternative credit facility which could be used to finance its portfolio in the absence of financing from broker-dealers, it could be forced to liquidate its portfolio on short notice to meet its financing obligations.

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(v) hedge the interest rate or currency exchange rate on any of the Investment Funds’ liabilities or assets;

(vi) protect against any increase in the price of any securities our Investment segment anticipate purchasing at a later date;

(vi) protect against any increase in the price of any securities our Investment segment anticipates purchasing at a later date;

or (vii) for any other reason that our Investment segment deems appropriate.

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Such an imperfect correlation may prevent the Investment Funds from achieving the intended hedge or expose the Investment Funds to risk of loss.

The Investment Funds do not intend to seek to hedge every position and may determine not to hedge against a particular risk for various reasons, including, but not limited to, because they do not regard the probability of the risk occurring to be sufficiently high as to justify the cost of the hedge.

Our Investment segment may not foresee the occurrence of the risk and therefore may not hedge against all risks.

The Investment Funds do not intend to seek to hedge every position and may determine not to hedge against a particular risk for various reasons, including, but not limited to, because they do not foresee the occurrence of the risk or because they do not regard the probability of the risk occurring to be sufficiently high as to justify the cost of the hedge.

The Investment Funds invest in distressed securities, as well as bank loans, asset backed securities and mortgage-backed securities.

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securities markets are generally higher than in the United States.

There is generally less government supervision and regulation of exchanges, brokers and issuers than there is in the

United States.

There is generally less government supervision and regulation of exchanges, brokers and issuers than there is in the United States.

The Investment Funds may have greater difficulty taking appropriate legal action in non-U.S.

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The Investment Funds may be subject to losses if a security lender demands return of the borrowed securities and an alternative lending source cannot be found or if the Investment Funds are otherwise unable to borrow securities that are necessary to hedge its positions.

There can be no assurance that the Investment Funds will be able to maintain the ability to borrow securities sold short.

There can be no assurance that the Investment

Funds will be able to maintain the ability to borrow securities sold short.

There also can be no assurance that the securities necessary to cover a short position will be available for purchase at or near prices quoted in the market.

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This exposes the Investment Funds to the risk that a counterparty will not settle a transaction in accordance with its terms and conditions because of a dispute over the terms of the contract (whether or not bona fide) or because of a credit or liquidity problem, thus causing the Investment Fund to suffer a loss.

Such “counterparty risk” is accentuated for contracts with longer maturities where events may intervene to prevent settlement, or where the Investment Funds have concentrated its transactions with a single or small group of its counterparties.

Such “counterparty risk” is accentuated for contracts with longer maturities where events may intervene to prevent settlement, or where the Investment Funds have concentrated their transactions with a single or small group of their counterparties.

The Investment Funds are not restricted from dealing with any particular counterparty or from concentrating any or all of the Investment Funds’ transactions with one counterparty.

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● The efficacy of investment and trading strategies depends largely on the ability to establish and maintain an overall market position in a combination of financial instruments.

The Investment Funds’ trading orders may not be executed in a timely and efficient manner due to various circumstances, including systems failures or

The Investment Funds’ trading orders may not be executed in a timely and efficient manner due to various circumstances, including systems failures or human error.

In such event, the Investment Funds might only be able to acquire some but not all of the components of the position, or if the overall positions were to need adjustment, the Investment Funds might not be able to make such adjustment.

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Examples of such risks include but are not limited to industrial accidents, environmental hazards, power outages, equipment failures, structural failures, flooding, unusual or unexpected geological conditions and severe weather conditions, among others.

These events may damage or destroy properties, production facilities, transport facilities and equipment, as well as lead to personal injury or death, environmental damage, waste from intermediary products or resources, production or transportation delays and monetary losses or legal liability.

Such risks have become even more heightened in recent years as a result of the effects of climate change.

These events may damage or destroy properties, production facilities, transport facilities and equipment, as well as lead to personal injury or death, environmental damage, including resource damage, waste from intermediary products or resources, production or transportation delays and monetary losses or legal liability.

Such damages are not limited to our operations or our employees and could significantly impact the surrounding areas.

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Environmental laws and regulations could require our operating subsidiaries to make substantial capital expenditures to remain in compliance or to remediate current or future contamination that could give rise to material liabilities.

Several of our subsidiaries are subject to a variety of federal, state and local environmental laws and regulations relating to the protection of the environment, including those governing the emission or discharge of pollutants into the environment, product specifications and the generation, treatment, storage, transportation, disposal and remediation of solid and hazardous wastes.

Violations of these laws and regulations or permit conditions can result in substantial penalties, injunctive orders compelling installation of additional controls, civil and criminal sanctions, permit revocations and/or facility shutdowns.

Several of our subsidiaries are subject to a variety of federal, state and local environmental laws and regulations relating to the protection of the environment, including those governing the emission, release, discharge, use, generation, treatment, storage, transportation, disposal, investigation and remediation of hazardous or toxic substances, materials or wastes, solid wastes, petroleum, pollutants or contaminants into the environment, and product specifications and labeling.

Violations of these laws and regulations or environmental permit conditions can result in substantial costs, including for penalties, cleanup, injunctive orders compelling installation of additional controls, and civil and criminal sanctions, as well as permit revocations and/or facility shutdowns.

In addition, new environmental laws and regulations, new interpretations of existing laws and regulations, increased governmental enforcement of laws and regulations or other developments could require our businesses to make additional unforeseen expenditures.

The SEC has proposed new rules regarding climate change that, if adopted, would require significant new disclosure obligations regarding greenhouse gas (“GHG”) emissions (including carbon dioxide, methane, and nitrous oxides) and would require us to update and develop our controls to accommodate these new obligations.

It is unclear what impact the federal administration will have on the environmental laws and regulations applicable to us;

however, measures to address climate change and reduce greenhouse gas (“GHG”) emissions (including carbon dioxide, methane, and nitrous oxides) are in various phases of discussion or implementation and could affect our operations by requiring increased operating and capital costs and/or increasing taxes on GHG emissions.

There is also increased agency interest in per- and polyfluoroalkyl substances (“PFAS”).

On August 26, 2022, the EPA issued a proposal to designate two PFAS compounds as hazardous substances by 2023.

If PFAS compounds are designated as hazardous substances, the EPA could have the ability to order the investigation and remediation of those compounds at EPA clean-up sites.

however, measures to address climate change and reduce GHGs could affect our operations by requiring increased operating and capital costs, limiting GHG emissions and/or increasing taxes on GHG emissions.

In addition, on the state level, California recently passed the Climate Corporate Data Accountability Act and the Climate-Related Financial Risk Act that will impose broad climate-related disclosure obligations on certain companies doing business in California, starting in 2026.

There is also increased regulatory interest in per- and polyfluoroalkyl substances

On August 26, 2022, the U.S.

Environmental Protection Agency (“EPA”) issued a proposal to designate two PFAS compounds as hazardous substances under CERCLA.

Subsequently, on February 8, 2024, EPA proposed to amend RCRA to include nine PFAS, their salts and their structural isomers to its list of hazardous constituents.

If PFAS compounds are designated as hazardous substances under CERCLA or hazardous constituents under RCRA, the EPA could have the ability to order the investigation and remediation of those compounds.

The EPA could also have the authority to reopen closed sites which are shown to be impacted by these PFAS compounds.

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If we are unable to maintain sales of our products at a price that reflects such increased costs, or if there is a reduced demand for our products, there could be a material adverse effect on our business, financial condition and results of operations.

Many of these laws and regulations are becoming increasingly stringent, and the cost of compliance with these requirements can be expected to increase over time.

Many of these climate change and environmental laws and regulations are becoming increasingly stringent, and new or revised laws and regulations or new interpretations of existing laws and regulations, such as those related to climate change and GHG emissions, could affect the operation of our properties or result in significant additional expense and restrictions on our business operations, including as a result of the cost of compliance with these requirements, which can be expected to increase over time.

The requirements to be met, as well as the technology and length of time available to meet those requirements, continue to develop and change.

These expenditures or costs for environmental compliance could have a material adverse effect on our operating subsidiaries’ results of operations, financial condition and profitability.

Certain of our subsidiaries’ facilities operate under a number of federal and state permits, licenses and approvals with terms and conditions containing a significant number of prescriptive limits and performance standards in order to operate.

These permits, licenses, approvals, limits and standards require a significant amount of monitoring, record keeping and reporting in order to demonstrate compliance with the underlying permit, license, approval, limit or standard.

Certain of our subsidiaries’ facilities operate under a number of federal and state environmental permits, licenses and approvals with terms and conditions containing a significant number of prescriptive limits and performance standards in order to operate.

These environmental permits, licenses, approvals, limits and standards require a significant amount of monitoring, record keeping and reporting in order to demonstrate compliance with the underlying permit, license, approval, limit or standard.

Non-compliance or incomplete documentation of our subsidiaries’ compliance status may result in the imposition of fines, penalties and injunctive relief.

Additionally, there may be times when certain of our subsidiaries are unable to meet the standards and terms and conditions of our permits, licenses and approvals due to operational upsets or malfunctions, which may lead to the imposition of fines and penalties or operating restrictions that may have a material adverse effect on their ability to operate their facilities and accordingly on our consolidated financial position, results of operations or cash flows.

Additionally, there may be times when certain of our subsidiaries are unable to meet the standards and terms and conditions of our environmental permits, licenses and approvals due to operational upsets or malfunctions, which may lead to the imposition of fines and penalties or operating restrictions that may have a material adverse effect on their ability to operate their facilities and accordingly on our consolidated financial position, results of operations or cash flows.

Refer to Note 19, “Commitments and Contingencies,” to the consolidated financial statements for additional discussion of environmental matters affecting our businesses.

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Our Energy segment’s petroleum business’ financial results are primarily affected by the margin between refined product prices and the prices for crude oil and other feedstocks.

Historically, refining margins have been volatile, and are expected to continue to be volatile in the future.

Historically, refining margins have been volatile and vary by region, and are expected to continue to be volatile in the future.

The petroleum business’ cost to acquire feedstocks and the price at which it can ultimately sell refined products depend upon several factors beyond its control, including regional and global supply of and demand for crude oil, gasoline, diesel and other feedstocks and refined products.

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relationships with foreign governments, political affairs and the extent of governmental regulation.

Some of these factors can vary by region and may change quickly, adding to market volatility, while others may have longer-term effects on refining and marketing margins, which are uncertain.

CVR Energy does not produce crude oil and must purchase all of the crude oil it refines long before it refines them and sell the refined products.

Price level changes during the period between purchasing feedstocks and selling the refined petroleum products from these feedstocks could have a significant effect on our Energy segment’s financial results and a decline in market prices may negatively impact the carrying value of its inventories.

Profitability is also impacted by the ability to purchase crude oil at a discount to benchmark crude oils, such as West Texas Intermediate (“WTI”), as the petroleum business does not produce any crude oil and must purchase all of the crude oil it refines.

Profitability of some of the products, like renewable diesel, are also dependent upon government subsidiaries including carbon and tax credits, which may be reduced or eliminated.

CVR Energy does not produce crude oil and must purchase all of the crude oil it refines long before it refines it and sells the refined products.

Price level changes during the period between purchasing feedstocks and selling the refined products from these feedstocks could have a significant effect on our Energy segment’s financial results and a decline in market prices of these feedstocks and refined products may negatively impact the carrying value of its inventories.

Profitability is also impacted by the ability to purchase crude oil at a discount to benchmark crude oils, such as West Texas Intermediate (“WTI”).

Crude oil differentials can fluctuate significantly based upon overall economic and crude oil market conditions.

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In addition, the petroleum business’ purchases of crude oil, although based on WTI prices, have historically been at a discount to WTI because of the proximity of the refineries to the sources, existing logistics infrastructure and quality differences.

Any change in the sources of crude oil, infrastructure or logistical improvements or quality differences could result in a reduction of the petroleum business’ historical discount to WTI and may result in a reduction of our Energy segment’s cost advantage.

Any changes to these factors could result in a reduction of the petroleum business’ historical discount to WTI and may result in a reduction of our Energy segment’s cost advantage.

Volatile prices for natural gas and electricity affect the petroleum business’ manufacturing and operating costs.

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Compliance with the U.S.

Environmental Protection Agency Renewable Fuel Standard, with respect to our Energy segment, could adversely affect our financial condition and results of operations.

Environmental Protection Agency (the “EPA”) has promulgated the Renewable Fuel Standards (“RFS”), which requires refiners to either blend “renewable fuels,” such as ethanol and biofuel, into their transportation fuels or purchase renewable fuel credits, known as renewable identification numbers (“RINs”), in lieu of blending.

Environmental Protection Agency Renewable Fuel Standard, with respect to our Energy segment, could have a material adverse effect on our financial condition and results of operations.

The EPA has promulgated the Renewable Fuel Standards (“RFS”), which requires refiners to either blend “renewable fuels,” such as ethanol and biofuel, into their transportation fuels or purchase renewable fuel credits, known as renewable identification numbers (“RINs”), in lieu of blending.

Under the RFS, the volume of renewable fuels that refineries like Coffeyville and Wynnewood are obligated to blend into their finished petroleum products is adjusted annually by the EPA.

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The cost of RINs is dependent upon a variety of factors, which include the availability of RINs for purchase, the price at which RINs can be purchased, transportation fuel production levels, the mix of the petroleum business’ petroleum products, as well as the fuel blending performed at the refineries and downstream terminals, all of which can vary significantly from period to period.

However, the costs to obtain the necessary number of RINs and waiver credits fluctuates and could be material, if the price for RINs increases.

However, the costs to obtain the necessary number of RINs and waiver credits fluctuates and could be material, if the price for RINs and waiver credits increases.

Additionally, because the petroleum business does not produce renewable fuels, increasing the volume of renewable fuels that must be blended into its products displaces an increasing volume of the refineries’ product pool, potentially resulting in lower earnings and materially adversely affecting the petroleum business’ cash flows.

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Commodity derivative contracts, particularly with respect to our Energy segment, may limit our potential gains, exacerbate potential losses and involve other risks.

Our Energy segment’s petroleum business may enter into commodity derivatives contracts to mitigate crack spread or inventory risk with respect to a portion of its expected refined products production or crude oil products inventory.

However, its hedging arrangements may fail to fully achieve these objectives for a variety of reasons, including its failure to have adequate hedging contracts, if any, in effect at any particular time and the failure of its hedging arrangements to produce the anticipated results.

The petroleum business may not be able to procure adequate hedging arrangements due to a variety of factors.

Our Energy segment’s petroleum business may enter into both short- and long-term commodity derivatives contracts to mitigate crack spread with respect to a portion of its expected refined products production.

However, its hedging arrangements, if it is able to procure them, may fail to fully achieve this objective for a variety of reasons, including its failure to have adequate hedging contracts, if any, in effect at any particular time and the failure of its hedging arrangements to produce the anticipated results.

Moreover, such transactions may limit its ability to benefit from favorable changes in margins.

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● a sudden, unexpected event materially impacts the commodity or crack spread subject to the hedging arrangement.

As a result, the effectiveness of CVR Energy’s risk mitigation strategy could have a material adverse impact on our Energy segment’s financial results and cash flows.

The potential spin-off of CVR Energy’s interest in the nitrogen fertilizer business could involve significant time and expense and management attention, could disrupt or adversely affect the consolidated or separate businesses, results of operations and financial condition and may not be completed in accordance with the expected terms or anticipated timelines, or at all and may not achieve the intended results.

On November 21, 2022, our majority owned subsidiary CVR Energy announced that its board of directors authorized its management to explore a potential spin-off of its interest in CVR Energy’s nitrogen fertilizer business, which is owned by CVR Energy through the general and limited partner interests it holds in CVR Partners.

If completed, upon effectiveness of the potential spin-off transaction, current CVR Energy stockholders, including Icahn Enterprises, would own shares of both CVR Energy, holding the refinery and renewables businesses, and a holding company, holding CVR Energy’s current ownership of the general partner interest in, and approximately 37 percent of the common units (representing limited partner interests) of, CVR Partners.

Unanticipated developments could delay, prevent or otherwise adversely affect the potential spin-off, including but not limited to disruptions in general market conditions or potential problems or delays in obtaining various regulatory and tax approvals or clearances.

There can be no assurance that the potential spin-off transaction will be completed in the manner anticipated by CVR Energy, or at all, and it has not set a timetable for completion of any such transaction.

CVR Energy’s business relationships may be subject to disruption as a result if its customers, vendors and others attempt to negotiate changes in existing business relationships or consider entering into business relationships with parties other than CVR Energy.

These disruptions could adversely affect our business, including adversely affecting our ability to realize the anticipated benefits of the potential spin-off.

If the potential spin-off is completed, the anticipated benefits and synergies of the transaction, strategic and competitive advantages of each company, and future growth and other opportunities for each company may not be realized within the expected time periods or at all.

Failure to implement the potential spin-off effectively could also result in a lower value to our company and our stockholders.

If the potential spin-off of CVR Partners by CVR Energy does not qualify as a transaction that is generally tax-free for U.S.

federal income tax purposes, the potential spin-off could result in substantial tax liability.

If CVR Energy pursues the potential spin-off, it intends to obtain an opinion as to the tax-free nature of the spin-off under the Internal Revenue Code, as amended.

The opinion would be based, among other things, on various factual assumptions and representations CVR Energy would make.

If any of these assumptions or representations are, or become, inaccurate or incomplete, reliance on the opinion and ruling may be jeopardized.

If the potential spin-off would

not qualify for tax-free treatment for U.S.

federal income tax purposes, the resulting tax liability to CVR Energy and stockholders of the newly formed company could be substantial.

As a result, CVR Energy’s risk mitigation strategy and activities could have a material adverse impact on our Energy segment’s financial results and cash flows.

Our subsidiaries’ competitors may be larger and have greater financial resources and operational capabilities than our subsidiaries do, which may require them or us to invest significant additional capital in order to effectively compete.

Our investments, or our subsidiaries’ investments, may not achieve desired results.

Our investments, or our subsidiaries’ investments, may not achieve desired results and may become impaired.

Our operating subsidiaries face competitive pressures within markets in which they operate.

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In addition, competitors may be significantly larger than our subsidiaries are and may have greater financial resources and operational capabilities.

Accordingly, our subsidiaries may require significant additional resources, which may not be available to them through internally generated cash flows.

Accordingly, our subsidiaries may require significant additional resources, which may not be available to them through internally generated cash flows, and a decline in these businesses could result in an impairment charge.

With respect to our Automotive segment, we have invested significant resources in various initiatives to remain competitive and stimulate growth.

Despite these efforts, in January 2023, Auto Plus filed the Chapter 11 Cases in Bankruptcy Court.

In the course of the Chapter 11 cases, Auto Plus will seek to sell substantially all of its assets pursuant to Section 363 of the Bankruptcy Code, with the proceeds of such sale used to satisfy obligations to its creditors, and to settle or discharge all of its obligations, in each case subject to approval by the Bankruptcy Court, which will have a negative impact on the results of operations and balance sheet of our Automotive segment.

In addition, we will continue to consider strategic alternatives in our automotive aftermarket parts business to maximize value.

As a result of this filing, the Company has determined that it no longer controls Auto Plus and has deconsolidated its investment in Auto Plus effective as of January 31, 2023 resulting in a non-cash charge of $246 million recorded in the year ended December 31, 2023 and determined that our remaining equity investment in Auto Plus is now worth $0.

Such events have had and continue to have a negative impact on the results of operations and balance sheet of our Automotive segment.

If we are unable to implement these initiatives efficiently and effectively, or if these initiatives are unsuccessful, our consolidated financial condition, results of operations and cash flows could be adversely affected.

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● limit their ability to borrow money for working capital, capital expenditures, debt service requirements or other corporate purposes, guarantee additional debt or issue redeemable, convertible of preferred equity;

● limit their ability to make distributions or prepay its debt, incur liens, enter into agreements that restrict distributions from restricted subsidiaries, sell or otherwise dispose of assets (including capital stock of subsidiaries), enter into transactions with affiliates and merger consolidate or sell substantially all of its assets;

● limit their ability to make distributions or prepay their debt, incur liens, enter into agreements that restrict distributions from restricted subsidiaries, sell or otherwise dispose of assets (including capital stock of subsidiaries), enter into transactions with affiliates and merge, consolidate or sell substantially all of their assets;

● require them to dedicate a substantial portion of their cash flow to payments on indebtedness, which would reduce the amount of cash flow available to fund working capital, capital expenditures, product development, and other corporate requirements;

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● limit their ability to respond to business opportunities.

In January of 2023, Auto Plus filed a voluntary Chapter 11 petition in Bankruptcy Court, pursuant to which it will seek to sell substantially all of its assets and use the proceeds to satisfy its obligations to creditors.

In January of 2023, Auto Plus filed a voluntary Chapter 11 petition in Bankruptcy Court, pursuant to which it sold substantially all of its assets and has and will continue to use the proceeds to satisfy its obligations to creditors.

Certain of our subsidiaries’ indebtedness accrue interest at variable rates.

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● the unavailability of insurance at acceptable rates;

● litigation not in the ordinary course of business (see Item 3, “Legal Proceedings,” of this Report).

● litigation not in the ordinary course of business (see Item 3 of Part I, “Legal Proceedings,” of this Report).

We need qualified personnel to manage and operate our various businesses.

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Although we have adequate personnel for the current business environment, unpredictable increases in demand for goods and services may exacerbate the risk of not having sufficient numbers of trained personnel, which could have a negative impact on our consolidated financial condition, results of operations or cash flows.

The COVID-19 pandemic has, and may continue to have, a material adverse impact on our and our subsidiaries’ operations and financial performance, as well as on the operations and financial performance of many of the customers and suppliers in our operating segments.

We are unable to predict the extent to which the pandemic and related impacts will adversely impact our business operations, financial performance, results of operations, and financial position .

Our and our subsidiaries’ operations and financial performance have been negatively impacted by the COVID-19 pandemic that has caused, and may continue to cause, a global slowdown of economic activity, disruptions in global supply chains and significant volatility and disruption of financial markets.

Because the severity, magnitude and duration of the COVID-19 pandemic and its economic consequences are uncertain, rapidly changing and difficult to predict, the pandemic’s impact on our and our subsidiaries’ operations and financial performance, remains uncertain.

The COVID-19 pandemic had, and any future pandemics may have, a material adverse impact on our and our subsidiaries’ operations and financial performance, as well as on the operations and financial performance of many of the customers and suppliers in our operating segments.

We are unable to predict the extent to which future pandemics and related impacts will adversely impact our business operations, financial performance, results of operations, and financial position .

Our and our subsidiaries’ operations and financial performance were negatively impacted by the COVID-19 pandemic that caused a global slowdown of economic activity, disruptions in global supply chains and significant volatility and disruption of financial markets, and we and our subsidiaries may also be negatively impacted by any future pandemics.

Our consolidated results of operations and financial condition have recently been impacted primarily by the net declines in fair value of investments held by our Investment segment and the Holding Company as well as disruptions or delays in supply chains, increased interest rates, and reduced economic activity with respect to our Energy segment.

The impact on our businesses has also included the acceleration of planned store closures in our Automotive segment, which has contributed to the Chapter 11 filing of Auto Plus, lowering forecasts across various segments and recording write-downs to inventories and other assets.

In addition, the COVID-19 pandemic may subject our and our subsidiaries’ operations, financial performance and financial condition to a number of additional operational-related, market-related and liquidity and funding-related risks.

The COVID-19 pandemic may also have the effect of heightening many of the other risks described in the risk factors set forth herein.

In addition, any future pandemic may subject our and our subsidiaries’ operations, financial performance and financial condition to a number of additional operational-related, market-related and liquidity- and funding-related risks.

Future pandemics may also have the effect of heightening many of the other risks described in the risk factors set forth herein.

In particular, see the risk factors:

“We are a holding company and dependent upon the businesses of our subsidiaries to satisfy our obligations”;

“We are a holding company and depend on the businesses of our subsidiaries to satisfy our obligations”;

“To service our indebtedness, we will require a significant amount of cash.

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and “Our Energy segment’s businesses are, and commodity prices are, cyclical and highly volatile, which could have a material adverse effect on our results of operations, financial condition and cash flows.”

The extent to which the COVID-19 pandemic may negatively impact our business and operations will depend on the severity, location, and duration of the effects and spread of COVID-19 and the emergence of new variants, the actions undertaken by national, regional, and local governments and health officials to contain such virus or remedy its effects, and if, how quickly and to what extent economic conditions recover and normal business and operating conditions resume.

Further, the COVID-19 pandemic may affect our operating and financial results in a manner that is not presently known to us or that we currently do not expect to present significant risks to our operations or financial results.

The extent to which any future pandemic may negatively impact our business and operations will depend on the severity, location, and duration of the effects and spread of such pandemic and the emergence of new variants, the actions undertaken by national, regional, and local governments and health officials to contain such virus or remedy its effects, and if, how quickly and to what extent economic conditions recover and normal business and operating

conditions resume.

Further, future pandemics may affect our operating and financial results in a manner that is not presently known to us or that we currently do not expect to present significant risks to our operations or financial results.

Global economic conditions may have adverse impacts on our businesses and financial condition.

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Recessionary economic cycles, higher and protracted unemployment rates, increased fuel and other energy and commodity costs, rising costs of transportation and increased tax rates and general inflationary pressures can have a material adverse impact on our businesses, and may adversely affect demand for sales of our businesses’ products, or the costs of materials and services utilized in their operations, and the performance of our Investment Funds.

The ongoing conflict in Ukraine has exacerbated many of these issues, including leading to increased prices of gasoline and distillates as a result of the global increase in commodity prices, which for example, has impacted, and may continue to impact, the input costs for our Energy segment.

The ongoing conflicts in Ukraine and the Middle East have exacerbated many of these issues, including leading to increased prices of gasoline and distillates as a result of the global increase in commodity prices, which for example, has impacted, and may continue to impact, the input costs for our Energy segment.

These factors could have a material adverse effect on our revenues, income from operations and our cash flows.

An increase in inflation could have adverse effects on our results of operations

Inflation in the United States increased beginning in the second half of 2021 and has continued into 2023, due to a substantial increase in money supply, a simulative fiscal policy, a significant rebound in consumer demand as COVID-19 restrictions were relaxed, the Russia-Ukraine conflict, and worldwide supply chain disruptions resulting from the economic contraction caused by COVID-19 and lock downs followed by a rapid recovery.

An increase in inflation could have a negative impact on our consolidated financial condition, results of operations or cash flows.

Inflation in the United States increased beginning in the second half of 2021 and continued through the first half of 2023, due to a substantial increase in money supply, a stimulative fiscal policy, a significant rebound in consumer demand as COVID-19 restrictions were relaxed, the Russia-Ukraine conflict, increased conflict in the Middle East, and worldwide supply chain disruptions resulting from the economic contraction caused by COVID-19 and lock downs followed by a rapid recovery.

While the rate of inflation has decreased in recent months, it has continued at higher levels and an increase in inflation as a result of these or other factors could have a negative impact on our consolidated financial condition, results of operations or cash flows.

We and our subsidiaries are subject to cybersecurity and other technological risks that could disrupt our information technology systems and adversely affect our financial performance.

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In addition, hardware, software or applications we develop or obtain from third parties may contain defects in design or manufacture or other problems that could result in security breaches or disruptions.

Further, the United States government has warned of the potential risk of Russian cyberattacks stemming from the ongoing Russian/Ukraine conflict.

Moreover, cyberattacks are expected to accelerate on a global basis in both frequency and magnitude as threat actors are becoming increasingly sophisticated in using techniques and tools (including artificial intelligence) that circumvent controls, evade detection and even remove forensic evidence of the infiltration.

The United States government has warned of the potential risk of Russian cyberattacks stemming from the ongoing Russian/Ukraine conflict.

These events or any other disruption or compromise of our or our third-party service providers’ information technology systems could negatively impact our business operations or result in the misappropriation, loss or other unauthorized disclosure of sensitive and confidential information.

Such events could damage our reputation, expose us to the risks of litigation and liability, disrupt our business or otherwise affect our results of operations, any of which could adversely affect our financial performance.

Refer to “Item 1C.

Cybersecurity” in this Annual Report on Form 10-K.

Software implementation and upgrades at certain of our subsidiaries may result in complications that adversely impact the timeliness, accuracy and reliability of internal and external reporting.

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Failure to properly implement or upgrade software, including failure to recruit/retain appropriate experts, train employees, implement processes and properly bridge to legacy software, among others, may negatively impact our subsidiaries’ ability to properly operate their businesses and to report internally and externally, including reporting to us.

As a result, we may not adequately assess the performance of our subsidiaries, properly allocate resources report timely and accurate financial results.

As a result, we may not adequately assess the performance of our subsidiaries, properly allocate resources or report timely and accurate financial results.

Investor and market sentiment towards climate change, fossil fuels, GHG emissions, environmental justice, and other Environmental, Social and Governance (“ESG”) matters could adversely affect our business and cost of capital.

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If we and our Energy segment are unable to meet the ESG standards or investment, lending, ratings, or other policies set by these parties, we may lose investors, investors may allocate a portion of their capital away from us, our cost of capital may increase, the price of our securities may be negatively impacted and our reputation may also be negatively affected.

We or our subsidiaries may pursue acquisitions or other affiliations that involve inherent risks, any of which may cause us not to realize anticipated benefits, and we may have difficulty integrating the operations of any companies that may be acquired, which may adversely affect its operations.

We may expand our existing businesses if appropriate opportunities are identified, as well as use our established businesses as a platform for additional acquisitions in the same or related areas.

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Ineffective internal and disclosure controls could cause investors to lose confidence in our reported financial information, which could have a negative effect on the trading price of our depositary units or the rating of our debt.

Unresolved Staff Comments

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 1A. Risk Factors