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1585
Broadway
New
York, NY 10036-8299
Telephone
212.969.3000
Fax
212.969.2900
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BOCA
RATON
BOSTON
LONDON
LOS
ANGELES
NEW
ORLEANS
NEWARK
PARIS
SÃO
PAULO
WASHINGTON
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Julie
Allen
Member
of the Firm
Direct
Dial 212.969.3155
jallen@proskauer.com
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April 13,
2010
VIA
ELECTRONIC TRANSMISSION
AND
OVERNIGHT COURIER
Thomas
Kluck, Esq.
Branch
Chief
United
States Securities and Exchange Commission
Corporation
Finance
100 F
Street, N.E.
Washington,
D.C. 20549-1004
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Re:
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Icahn
Enterprises L.P.
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Registration
Statement on Form S-3
File No.
333-158705
Filed on
April 22, 2009
Dear Mr.
Kluck:
Reference
is made to the comments of the Staff of the Securities and Exchange Commission
(the “Commission”) with respect to the Registration Statement on Form S-3 (File
No. 333-158705) (the “S-3 Registration Statement”) of Icahn Enterprises L.P., a
Delaware limited partnership (the “Company”), in your letter dated May 13, 2009
(the “Comment Letter”).
We are
writing to respond to the comments contained in the Comment Letter and to
indicate the changes that are being made in Amendment No. 1 to the S-3
Registration Statement (the “Amendment”) that will be filed with the Commission
on today’s date.
For your
convenience, your comments are set forth in this letter, followed by our
responses.
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Thomas
Kluck, Esq.
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April
13, 2010
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United
States Securities and
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Page
2 of 5
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Exchange
Commission
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Registration
Statement on Form S-3
General
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1.
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We
are reviewing your Form 10-K for the fiscal year ended December 31, 2008,
and have issued comments in connection with that review. In
conjunction with that review, we will be reviewing your Form S-3, which
incorporates your Form 10-K by reference. Please confirm that
you will amend the Form S-3 as appropriate to reflect your responses to
any comments we may issue on the Form 10-K. In addition, please
note that we will not be in a position to declare your registration
statement effective until we have resolved all comments on the Form
10-K.
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We
received the Commission’s letter dated April 28, 2009 (the “SEC Initial 2008
10-K Comment Letter”) with respect to certain comments of the Commission
relating to the Company’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2008 (“2008 Form 10-K). On May 13, 2009, the Company
responded to the SEC Initial 10-K Comment Letter. Subsequently, the
following correspondence resulted between the SEC and the
Company: (i) SEC letter dated June 23, 2009, Company letter dated
July 13, 2009, SEC letter dated September 2, 2009 and Company letter dated
September 17, 2009. On August 4, 2009, the Company filed Amendment
No. 1 to the 2008 Form 10-K on Form 10-K/A at the request of the
SEC. On September 21, 2009, the Commission notified us that it had
completed its review of Form 10-K and had no further comments.
The SEC
and Company correspondence addressed issues related to the (i) Selected
Financial Data, (ii) Management’s Discussion and Analysis of Financial Condition
and Results of Operations and (iii) financial statements and supplementary data
provided in the 10-K. The S-3 Registration Statement, as amended,
incorporates all of these items by reference to its filings with the SEC,
including itsAnnual Report on Form 10-K.
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2.
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We
note that exhibit 25.1 indicates that the Statement of Eligibility of the
Trustee will be filed by amendment or as an exhibit to a
report. Please be aware that companies relying upon Section
305(b)(2) of the Trust Indenture Act to designate the trustee on a delayed
basis must separately file the Form T-1 under the electronic form type
“305B2.” In this situation, companies should not file the Form
T-1 in a post-effective amendment to the registration statement or in a
Form 8-K that is incorporated by reference into the registration
statement. Please refer to Section 220.01 under the 1939 Act –
General Guidance, which can be located at http://www.sec.gov/divisions/corpfin/guidance/tiainerp.htm
and revise your exhibit index
accordingly.
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The
Company is filing a Form T-1, Statement of Eligibility of Trustee, of Wilmington
Trust Company, as Exhibit 25.1 to the pre-effective Amendment that will be filed
with the Commission on today’s date in lieu of designating a trustee on a
delayed basis. The exhibit index in the Amendment has been revised
accordingly.
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Thomas
Kluck, Esq.
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April
13, 2010
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United
States Securities and
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Page
3 of 5
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Exchange
Commission
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3.
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We
note that exhibit 8.1 representing the tax opinion has not been
filed. Please file the tax opinion with your next amendment
prior to effectiveness.
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The exhibit index in the Amendment is
being revised to eliminate reference to a tax opinion of counsel being filed as
Exhibit 8 thereto. Pursuant to Item 601(8) of Regulation
S-K, such exhibit need only be filed in an
applicable registration statement where the tax consequences are material to an
investor and a representation as to tax consequences is set forth in the filing,
which does not apply to the S-3 Registration Statement at this
time. As stated in the S-3 Registration Statement, the Company will
provide any appropriate U.S. federal income tax consequences unique
to a particular series of preferred units, debt securities or warrants in an
accompanying prospectus supplement in which any or all of these securities are
being offered. In such instance, an applicable tax opinion of counsel
will be filed by amendment or to a report pursuant to Section 13(a), 13(c) or
15(d) of the Exchange Act.
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4.
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We note the subsection captioned
“conversion rights” on page 21. If the debt securities are to
be issued by Icahn Enterprises Finance Corp., it would appear that such
securities could not be convertible pursuant to General Instruction I.C.3
of Form S-3. Please revise to clarify your reference to
convertible
securities.
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With respect to any debt securities to
be issued by Icahn Enterprises Finance Corp. (“Icahn Enterprises Finance”), the
Amendment will clearly distinguish that Icahn Enterprises Finance will be an
issuer solely of nonconvertible debt securities. Specially, (i) the
“Calculation of Registration Fee” (and corresponding Footnote 5) will be revised
to note the “Guarantees of Non-Convertible Securities”; (ii) on page 2, under
“Our Company,” the Amendment will state that Icahn Enterprises Finance will
serve solely as a co-issuer of non-convertible debt; and (iii) on page 21, under
“Conversion Rights,” the Amendment will state that any convertible debt
securities that may be offered shall be issued solely by Icahn Enterprises and
not by Icahn Enterprises Finance, and that the prospectus supplement relating to
the series of such convertible debt securities will contain such
provision.
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5.
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We
note that Icahn Enterprises Finance Corp. is able to issue notes that will
be guaranteed by Icahn Enterprises L.P. Please revise your
prospectus to include the guarantees and clarify whether they are full and
unconditional.
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Pursuant
to the Amendment, the prospectus will be revised to include the “Guarantees of
Non-Convertible Debt Securities of Icahn Enterprises Finance Corp. by Icahn
Enterprises” on its cover page. In addition, on page 15, under
“Description of Debt Securities,” the first paragraph will state that any series
of non-convertible debt securities issued by Icahn Enterprises Finance (either
as a co-issuer with Icahn Enterprises or as sole issuer) will be guaranteed by
its parent, Icahn Enterprises, and that such guarantees will be full and
unconditional, as defined in Rule 3-10 of Regulation S-X, of the payment
obligations on the securities being registered.
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Thomas
Kluck, Esq.
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April
13, 2010
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United
States Securities and
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Page
4 of 5
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Exchange
Commission
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In connection with responding to the
Comment Letter, the Company acknowledges that:
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•
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the Company is responsible for the
adequacy and accuracy of the disclosure in the
filing;
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•
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staff comments or changes to
disclosure in response to staff comments do not foreclose the Commission
from taking any action with respect to the filing;
and
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•
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the Company may not assert staff
comments as a defense in any proceeding initiated by the Commission or any
person under the federal securities laws of the United States.
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Thomas
Kluck, Esq.
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April
13, 2010
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United
States Securities and
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Page 5
of 5
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Exchange
Commission
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We would appreciate your prompt review
of these materials and your prompt notification to us if you have further
comments or questions. Please contact me should you have any questions or
additional comments.
Very
truly yours,
/s/ Julie
M. Allen
Enclosures
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cc:
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Keith
A. Meister (Icahn Enterprises L.P.)
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