SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE TO

 

TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934

 

AMENDMENT NO. 2

 

TROPICANA ENTERTAINMENT INC.

(Name of Subject Company (Issuer))

 

Tropicana Entertainment Inc.
Icahn Enterprises Holdings L.P.
Icahn Enterprises L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn

(Name of Filing Persons (Offerors))

 

Common Stock, par value $0.01 per share
(Title of Class of Securities)

 

89708X 105
(CUSIP Number of Class of Securities)

 

William Murtha

Executive Vice President and General Counsel

Tropicana Entertainment Inc.

8345 W. Sunset Road, Suite 300

Las Vegas, Nevada 89113

(702) 589-3900

 

and

 

Keith Cozza

President and Chief Executive Officer

Icahn Enterprises L.P.

767 Fifth Avenue, 47th Floor

New York, New York 10153

(212) 702-4300

(Name, address, and telephone numbers of person authorized
to receive notices and communications on behalf of filing persons)

 

Copies to:

 

James Bedar, Esq.

Brown Rudnick LLP

One Financial Center

Boston, MA 02111

United States

(617) 856-8200

 

and

 

Andrew Langham, Esq.

General Counsel

Icahn Enterprises L.P.

757 Fifth Avenue, 47th Floor

New York, NY 10156
(212) 702-4300

 

and

 

Julie Allen, Esq.

Proskauer Rose LLP

11 Times Square

New York, NY 10036
(212) 969-3155

 

Calculation of Filing Fee

 

 

*                            Estimated for purposes of calculating the amount of the filing fee only, this amount is based on the purchase of a maximum of 5,580,000 shares of common stock, par value $0.01 per share, of the Issuer at the maximum tender offer price of $45.00 per share.

 

**                      The amount of the filing fee, calculated in accordance with Rule 0-11(b) and Rule 1-11(d) of the Securities Exchange Act of 1934, as amended and Fee Rate Advisory #1 for Fiscal Year 2017 equals $115.90 per $1,000,000 of the aggregate value of the transaction.

 

x                      Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

 

o                                      Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

x                  third-party tender offer subject to Rule 14d-1.

 

x                  issuer tender offer subject to Rule 13e-4.

 

o                    going-private transaction subject to Rule 13e-3.

 

x                  amendment to Schedule 13D under Rule 13d-2.

 

Check the following box if the filing is a final amendment reporting the results of the tender offer: o

 

 

 

As permitted by General Instruction G to Schedule TO, this Schedule TO is also an amendment to the statement on Schedule 13D initially filed on March 9, 2010 by Icahn Enterprises Holdings, Icahn Enterprises G.P. Inc., Beckton Corp. and Carl C. Icahn, as previously amended.

 

CUSIP No. 89708X 105
1	NAME OF REPORTING PERSON
	Icahn Enterprises Holdings L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) o
	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
	WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)o
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7	SOLE VOTING POWER
	0
8	SHARED VOTING POWER
	17,862,706
9	SOLE DISPOSITIVE POWER
	0
10	SHARED DISPOSITIVE POWER
	17,862,706
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	17,862,706
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARESo
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	72.5%
14	TYPE OF REPORTING PERSON
	PN

 

2

 

CUSIP No. 89708X 105
1	NAME OF REPORTING PERSON
	Icahn Enterprises G.P. Inc.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) o
	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)o
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7	SOLE VOTING POWER
	0
8	SHARED VOTING POWER
	17,862,706
9	SOLE DISPOSITIVE POWER
	0
10	SHARED DISPOSITIVE POWER
	17,862,706
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	17,862,706
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARESo
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	72.5%
14	TYPE OF REPORTING PERSON
	CO

 

3

 

CUSIP No. 89708X 105
1	NAME OF REPORTING PERSON
	Beckton Corp.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) o
	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)o
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7	SOLE VOTING POWER
	0
8	SHARED VOTING POWER
	17,862,706
9	SOLE DISPOSITIVE POWER
	0
10	SHARED DISPOSITIVE POWER
	17,862,706
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	17,862,706
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARESo
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	72.5%
14	TYPE OF REPORTING PERSON
	CO

 

4

 

CUSIP No. 89708X 105
1	NAME OF REPORTING PERSON
	Carl C. Icahn
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
	(a) o
	(b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
	OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)o
6	CITIZENSHIP OR PLACE OF ORGANIZATION
	United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7	SOLE VOTING POWER
	0
8	SHARED VOTING POWER
	17,862,706
9	SOLE DISPOSITIVE POWER
	0
10	SHARED DISPOSITIVE POWER
	17,862,706
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
	17,862,706
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARESo
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
	72.5%
14	TYPE OF REPORTING PERSON
	IN

 

5

 

This Amendment No. 2 to the Tender Offer Statement on Schedule TO amends and supplements the Schedule TO filed with the Securities and Exchange Commission (the “Commission”) on June 23, 2017, as amended and supplemented by Amendment No. 1 to the Tender Offer Statement on Schedule TO filed with the Commission on July 11, 2017 (as amended and supplemented, the “Schedule TO”), and relates to the combined offer by Tropicana Entertainment Inc., a Delaware corporation (the “Company”) and Icahn Enterprises Holdings, L.P., a Delaware limited partnership (“Icahn Enterprises”) to purchase up to 5,580,000 shares of common stock, par value $0.01 per share of the Company (the “common stock”) in the aggregate, at a price not greater than $45.00 nor less than $38.00 per share, net to the seller in cash, without interest, less any applicable tax withholding, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated June 23, 2017 (the “Offer to Purchase”) and the related Letter of Transmittal (the “Letter of Transmittal” which, together with the Offer to Purchase, as each may be amended or supplemented from time to time, collectively constitute the “Offer”), copies of which are annexed to and filed with the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively. The Offer is being made severally, and not jointly, by the Company and Icahn Enterprises and upon the terms and subject to the conditions of the Offer, first, the Company will severally, and not jointly, purchase 800,000 of the shares properly tendered and not properly withdrawn, and second, Icahn Enterprises will severally, and not jointly, purchase any remaining shares properly tendered and not properly withdrawn, up to a maximum of 4,780,000 shares.

 

This Amendment No. 2 is being filed solely to (i) extend the Expiration Time (as defined in the Offer to Purchase) to 5:00 p.m. on August 9, 2017, unless further extended by the Company and Icahn Enterprises and (ii) incorporate by reference the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017 (the “Form 10-Q”). The Form 10-Q includes discussion of a tax appeal settlement agreement the Company’s subsidiary, Tropicana Atlantic City Corp. (“Tropicana AC”), entered into with the City of Atlantic City and the New Jersey Department of Community Affairs on August 1, 2017 (the “Settlement Agreement”).  As described in greater detail in the Form 10-Q, the Settlement Agreement, among other things, provides for refunds to Tropicana AC in the aggregate amount of approximately $36.8 million during the second half of 2017 and provides for a reduction of the cap on Tropicana AC’s payments in lieu of taxes (“PILOT”) under the New Jersey Casino Property Tax Stabilization Act for each of calendar years 2018 through 2021, from approximately $19.8 million to approximately $8.4 million, and a corresponding decrease in the expense associated with Tropicana AC’s PILOT payments for each of the calendar years 2018 through 2021.  You should carefully consider the Company’s results of operations for its quarter ended June 30, 2017 and the other information contained in the Form 10-Q in connection with deciding whether to tender your shares in the Offer.  All other terms and conditions of the Offer remain unchanged.

 

The Schedule TO, and all the information set forth in the Offer to Purchase, to the extent incorporated by reference therein, is hereby amended and supplemented as set forth below. Every Item in the Schedule TO is automatically updated, to the extent such Item incorporates by reference any section of the Offer to Purchase that is amended and supplemented herein.  Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Offer to Purchase.

 

Items 1 through 12.

 

The Offer to Purchase and the related Letter of Transmittal and Items 1 through 12 of the Schedule TO, to the extent such items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:

 

“The Company and Icahn Enterprises are extending the Expiration Time to 5:00 p.m., New York City time, on August 9, 2017, unless further extended. The Offer had been previously scheduled to expire at 5:00 p.m., New York City time, on August 2, 2017.”

 

Throughout the Schedule TO, the Offer to Purchase, the related Letter of Transmittal and other materials relating to the Offer, all references to the expiration of the Offer or to the Expiration Time are hereby amended to extend the Expiration Time of the Offer until 5:00 p.m., New York City time, on August 9, 2017.

 

The press release announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(B) and is incorporated herein by reference.

 

Item 11.  Additional Information.

 

Item 11 of the Schedule TO and the information set forth on page 34 of the Offer to Purchase under “The Tender Offer — Section 10—Information About the Company”  is hereby amended and supplemented by adding the following disclosure as the last row of the chart under the subsection entitled “Incorporation by Reference”:

 

Quarterly Report on Form 10-Q

Quarter Ended June 30, 2017, filed August 3, 2017

 

6

 

SIGNATURES

 

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

	TROPICANA ENTERTAINMENT INC.
	By:	/s/ Anthony Rodio
	Name: Anthony Rodio
	Title: President and Chief Executive Officer
	ICAHN ENTERPRISES HOLDINGS L.P.
	BY:	Icahn Enterprises G.P. Inc., its general partner
	By:	/s/ Keith Cozza
	Name: Keith Cozza
	Title: President; Chief Executive Officer
	ICAHN ENTERPRISES L.P.
	BY:	Icahn Enterprises G.P. Inc., its general partner
	By:	/s/ Keith Cozza
	Name: Keith Cozza
	Title: President; Chief Executive Officer
	ICAHN ENTERPRISES G.P. INC.
	By:	/s/ Keith Cozza
	Name: Keith Cozza
	Title: President; Chief Executive Officer
	BECKTON CORP.
	By:	/s/ Keith Cozza
	Name: Keith Cozza
	Title: Secretary; Treasurer
			/s/ Carl C. Icahn
			Name: Carl C. Icahn
Dated: August 3, 2017

 

7

 

EXHIBIT INDEX

 

Exhibit		Description
(a)(1)(A) *		Offer to Purchase, dated June 23, 2017
(a)(1)(B) *		Form of Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9)
(a)(1)(C) *		Form of Notice of Guaranteed Delivery
(a)(1)(D) *		Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
(a)(1)(E) *		Form of Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees
(a)(1)(F) *		Joint press release issued by Icahn Enterprises L.P. and the Company, dated June 23, 2017
(a)(1)(G) *		Form of Summary Advertisement, as published in the New York Times on June 23, 2017
(a)(5)(A)		Letter dated June 9, 2017 to the Board of Directors of the Company (incorporated by reference to Exhibit 1 to the Schedule 13D/A filed by Icahn Enterprises with the SEC on June 9, 2017)
(a)(5)(B)		Joint press release issued by Icahn Enterprises L.P. and the Company, dated August 3, 2017
(b)		Not applicable
(d)(1)*		Tender Offer Agreement (the “Tender Offer Agreement”) by and between Icahn Enterprises Holdings and the Company, dated June 23, 2017
(d)(2)*		Form of Tax Allocation Agreement by and among American Entertainment Properties Corp., the Company and certain subsidiaries of the Company (included as Exhibit A to the Letter Agreement, filed herewith as Exhibit (d)(1))
(g)		Not applicable
(h)		Not applicable

 

* Previously Filed

 

8

Exhibit (a)(5)(B)

 

TROPICANA ENTERTAINMENT AND ICAHN ENTERPRISES L.P. ANNOUNCE EXTENSION OF MODIFIED DUTCH AUCTION TENDER OFFER FOR UP TO 5,580,000 SHARES OF COMMON STOCK OF TROPICANA ENTERTAINMENT

 

LAS VEGAS and NEW YORK (August 3, 2017) — Tropicana Entertainment Inc. (OTCQB: TPCA) (“Tropicana”) and Icahn Enterprises L.P. (NASDAQ: IEP) (“IEP”), through its subsidiary Icahn Enterprises Holdings L.P., today announced that the expiration time of their combined cash tender offer for not less than 2,005,000 and not more than 5,580,000 shares of Tropicana’s common stock, par value $0.01 per share (the “shares”), in the aggregate, at a price per share of not less than $38.00 and not greater than $45.00 (the “Offer”), has been extended from 5:00 P.M., New York City time, on August 2, 2017, to 5:00 P.M., New York City time, on August 9, 2017, unless the Offer is further extended (such date and time, the “Expiration Time”).  All other terms and conditions of the Offer remain unchanged.

 

The Offer is being made severally, and not jointly, by Tropicana and IEP.  The full terms and conditions of the Offer are discussed in the Offer to Purchase, dated June 23, 2017 (as amended and supplemented, the “Offer to Purchase”), the related Letter of Transmittal and other materials relating to the Offer filed with the Securities and Exchange Commission (“SEC”).

 

As indicated in the Offer to Purchase, Tropicana anticipated that it would announce its results of operations for its quarter ended June 30, 2017 prior to the Expiration Time.  In connection therewith, Tropicana and IEP have extended the Expiration Time to allow Tropicana stockholders to review Tropicana’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2017, being filed with the SEC today, August 3, 2017, prior to the Expiration Time.

 

Wells Fargo Bank N.A., the depositary and paying agent for the Offer, has informed Tropicana and IEP that as of 5:00 p.m., New York City time, on August 2, 2017, approximately 2,786,081 shares have been tendered in the Offer.  The number of shares tendered may change significantly prior to the Expiration Time.

 

Neither Tropicana, the Special Committee of its Board of Directors, IEP or its affiliates, nor the information agent or the depositary and paying agent in the Offer, are making any recommendation to stockholders as to whether to tender or refrain from tendering their shares into the Offer. Stockholders must decide how many shares they will tender, if any, and the price within the stated range at which they will offer their shares for purchase by Tropicana and IEP. In doing so, stockholders should read carefully the information in the Offer to Purchase, the related Letter of Transmittal and other materials relating to the Offer filed with the SEC.

 

D.F. King & Co., Inc. is serving as information agent for the Offer. Copies of the Offer to Purchase, the related Letter of Transmittal and other materials relating to the Offer are available free of charge from D.F. King & Co., Inc., toll free at (866) 745-0273 or via email at tpca@dfking.com, or on the SEC’s website, at www.sec.gov. Tropicana’s other public filings with the SEC, including annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, are also available for free on the SEC’s website at www.sec.gov.

 

 

THIS PRESS RELEASE DOES NOT CONSTITUTE AN OFFER TO PURCHASE, OR A SOLICITATION OF AN OFFER TO SELL, ANY SECURITIES. THIS PRESS RELEASE IS FOR INFORMATIONAL PURPOSES ONLY. THE OFFER IS MADE ONLY PURSUANT TO THE OFFER TO PURCHASE, THE RELATED LETTER OF TRANSMITTAL AND OTHER MATERIALS RELATING TO THE OFFER THAT HAVE BEEN FILED WITH THE SEC AND DISTRIBUTED TO TROPICANA’S STOCKHOLDERS. TROPICANA AND IEP HAVE FILED A TENDER OFFER STATEMENT ON SCHEDULE TO AND AMENDMENTS THERETO WITH THE SEC. TROPICANA’S STOCKHOLDERS SHOULD READ THESE MATERIALS AND THE DOCUMENTS INCORPORATED THEREIN BY REFERENCE CAREFULLY AND IN THEIR ENTIRETY BEFORE MAKING ANY DECISION WITH RESPECT TO THE OFFER.

 

About Tropicana 

Tropicana Entertainment Inc. is a publicly traded company that, through its subsidiaries, owns and operates eight casinos and resorts in Indiana, Louisiana, Missouri, Mississippi, Nevada, New Jersey and Aruba. Tropicana properties collectively have approximately 7,166 employees, 5,525 rooms, 8,035 slot positions and 304 table games. The company is based in Las Vegas, Nevada. Tropicana is a majority-owned subsidiary of Icahn Enterprises, L.P. (NASDAQ:   IEP).  To learn more about Tropicana, visit www.Tropicanacasinos.com.

 

About IEP 

Icahn Enterprises L.P. (NASDAQ: IEP), a master limited partnership, is a diversified holding company engaged in ten primary business segments: Investment, Automotive, Energy, Metals, Railcar, Gaming, Mining, Food Packaging, Real Estate and Home Fashion.

 

Cautionary Statement Regarding Forward-Looking Statements

 

This press release may contain “forward-looking statements” within the meaning of the federal securities laws, including Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. In this context, forward-looking statements often address expected future business and financial performance and financial condition, and often contain words such as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,” “see,” “will,” “would,” “target,” similar expressions, and variations or negatives of these words. Forward-looking statements by their nature address matters that are, to different degrees, uncertain, such as statements about the Offer and the anticipated benefits thereof. Such statements involve risks, uncertainties and assumptions. If such risks or uncertainties materialize or such assumptions prove incorrect, the results of Tropicana could differ materially from those expressed or implied by such forward-looking statements and assumptions. All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including any statements regarding the expected benefits and costs of the Offer; the expected timing of the completion of the Offer; the ability of Tropicana and IEP to complete the Offer considering the various conditions to the Offer, some of which are outside the parties’ control, including those conditions related to regulatory approvals and number of shares tendered; any statements of expectation or belief; and any statements of assumptions underlying any of the foregoing. Risks, uncertainties and assumptions include the possibility that expected benefits may not materialize as expected; that the Offer may not be timely completed, if at all; that, prior to the completion of the transaction, Tropicana’s business may not perform as expected due to transaction-related uncertainty or other factors; and other risks that are described in Tropicana’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and its other filings with the SEC. Tropicana and IEP assume no obligation and do not intend to update these forward-looking statements.