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United States securities and exchange commission logo
February 28, 2022
Jesse Lynn, Esq.
General Counsel
Icahn Enterprises L.P.
16690 Collins Ave., PH-1
Sunny Isles Beach, FL 33160
Re: Southwest Gas
Holdings, Inc.
Preliminary Proxy
Statement on Schedule 14A filed by Carl C. Icahn, Icahn
Partners LP, Icahn
Partners Master Fund LP, et al.
Filed on February
15, 2022
File No. 001-37976
Dear Mr. Lynn:
We have reviewed your filing and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to these comments by providing the requested
information or advise us as
soon as possible when you will respond. If you do not believe our
comments apply to your facts
and circumstances, please tell us why in your response.
After reviewing your
response to these comments, we may have additional comments.
Preliminary Proxy Statement on Schedule 14A filed February 15, 2022
Letter to Stockholders, page i
1. Disclosure indicates
that [a]lthough it is believed the closing of the Icahn tender offer has
been structured to not
require governmental or regulatory approvals, consents, clearances
or waivers, in the
event it is determined that such regulatory approvals are required to
close the Icahn tender
offer prior to the Annual Meeting, then it may be necessary for the
Icahn Nominees not to
be seated on the Board until such time as the applicable approvals,
consents, clearances or
waivers have been obtained. Please revise the disclosure to
provide a complete
discussion of the regulatory approvals required, whether IEP Utility
has filed applications
for such regulatory approvals or has engaged in any discussions with
the relevant regulatory
authorities regarding the Trust structure, the status of such
applications as of the
most recent practicable date and when the Participants plan to
disclose whether the
Icahn Slate will be permitted to be elected to the Board. Please also
Jesse Lynn, Esq.
FirstName LastNameJesse Lynn, Esq.
Icahn Enterprises L.P.
Comapany28,
February NameIcahn
2022 Enterprises L.P.
February
Page 2 28, 2022 Page 2
FirstName LastName
supplement the disclosure to provide support for the belief that the
closing of the Icahn
tender offer has been structured to not require governmental or
regulatory approvals,
consents, etc.
Background of the Solicitation, page 4
2. Page 7 indicates that on January 17, 2022, the Company corresponded
with the office of
Mr. Icahn indicating that it intended to shortly issue letters to each
of the Icahn Nominees
requesting an interview. Please revise this paragraph to disclose, if
true, that the Company
invited each of the Icahn Nominees to be interviewed by members of the
Nominating and
Corporate Governance Committee of the Board. Please also disclose
whether the Icahn
Nominees have responded to such invitation.
Nominee Agreements, page 17
3. Disclosure here references the payment of certain fees to Icahn
Nominees in certain
circumstances. Please revise to explain in greater detail these
fees and circumstances.
Proposal 2: Resolution to Call a Special Meeting, page 19
4. With a view towards improved disclosure, please advise how Proposals 1
and 2, if
approved, would be implemented in the event the Participants determine
that
governmental or regulatory approvals, consents, clearances or waivers
are required. For
example, explain how, following approval of Proposals 1 and 2, the
Icahn Nominees
would not be seated on the Board until such time as the applicable
approvals, consents,
clearances or waivers have been obtained and how, if true, the
incumbent directors would
continue to serve following the election of the Icahn Nominees at the
Annual Meeting.
Please advise whether, under the Company s organizational documents
and Delaware
General Corporation Law, stockholders can use a special meeting to
elect a new board of
directors without first removing the incumbent board.
5. Disclosure states that Proposal 2, if approved, would require that the
Board put forth at
such special meeting any matters that may be required to provide
for the election of the
Icahn Nominees following the satisfaction of the regulatory approvals.
Please revise the
disclosure to describe such matters and why the Participants believe
such matters would
be legal under the Company s organizational documents and Delaware
General
Corporation Law.
6. It is our understanding that the Company s charter states that only
the Board, and not
stockholders, can fill vacancies created by the removal of a director.
If true, please advise,
with a view towards revised disclosure, how such vacancies could be
filled by
stockholders.
7. It is our understanding that the Company s bylaws require that a
definite time be stated
for the proposed special meeting. Please advise, with a view towards
revised disclosure,
how Proposal 2 s statement that the special meeting will be held
no later than 45 days
Jesse Lynn, Esq.
FirstName LastNameJesse Lynn, Esq.
Icahn Enterprises L.P.
Comapany28,
February NameIcahn
2022 Enterprises L.P.
February
Page 3 28, 2022 Page 3
FirstName LastName
following the date of receipt of all required governmental or
regulatory approvals is
consistent with such bylaws.
8. It is our understanding that the Company s bylaws require that a
petition to call a special
meeting of stockholders be in writing, be signed by the person or
persons making the
petition and be delivered to the Company s secretary. Please advise
how Proposal 2
would satisfy any of these requirements.
9. Please provide an update regarding recent litigation between the
Company and the
Participants regarding the legality of Proposal 2. If the court were
to determine that
Proposal 2 may not be considered at the 2022 Annual Meeting, please
describe, with a
view towards revised disclosure, the consequences if, as of the date
of the Annual
Meeting, the required regulatory approvals had not been obtained. For
example and so
that stockholders can make a fully informed voting decision, please
advise, with a view
towards improved disclosure, what would happen to stockholders
proxies in such a
scenario and whether IEP Utility would continue to condition the
tender offer on the
election of a majority of the Icahn slate.
Where can I find additional information?, page 30
10. Please advise us if the Participants anticipate distributing their
proxy statement before the
registrant distributes its proxy statement. Given that reliance on
Exchange Act Rule 14a-
5(c) is impermissible at any time before the registrant distributes
its proxy statement, the
Participants will accept all legal risk in connection with
distributing the initial definitive
proxy statement without all required disclosures. Please confirm the
Participants
understand their obligation to subsequently provide any omitted
information in a
supplement in order to mitigate that risk to the extent it arises in
the context of this
solicitation.
General
11. Disclosure regarding the potential consequences of a successful
consummation of the
tender offer, including the possibility of significant ownership of
Shares by various Trusts
described in Amendment No. 14 to Schedule TO filed on January 26,
2022, appears
necessary for Company stockholders to make a reasonably informed
voting decision.
Please supplement the proxy statement to disclose information similar
to that found in
Amendment No. 14, including information regarding the Trusts, the
Trust structure, the
identity and qualifications of the independent third-party trustee(s)
and details regarding
such trustee s appointment and compensation. If no independent
third-party trustee(s) has
been or will have been selected prior to the Annual Meeting please
describe the process by
which IEP Utility will select such trustee(s).
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
Jesse Lynn, Esq.
Icahn Enterprises L.P.
February 28, 2022
Page 4
Please direct any questions to Perry Hindin at 202-551-3444.
Sincerely,
FirstName LastNameJesse Lynn, Esq.
Division of
Corporation Finance
Comapany NameIcahn Enterprises L.P.
Office of Mergers &
Acquisitions
February 28, 2022 Page 4
cc: Todd E. Mason
FirstName LastName