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SEC probes disclosures tied to Icahn takeover of CVR: U.S. filing

The U.S. Securities and Exchange Commission logo adorns an office door at the SEC headquarters in Washington, June 24, 2011. REUTERS/Jonathan Ernst

By Nate Raymond and Jonathan Stempel

NEW YORK (Reuters) - The Securities and Exchange Commission is investigating whether CVR Energy Inc (CVI.N) might have made misleading disclosures to investors during its unsuccessful defense against billionaire Carl Icahn's 2012 hostile takeover, court documents show.

According to a filing with the U.S. District Court in Manhattan late Tuesday, the SEC is examining whether CVR properly characterized the fees it agreed to pay financial advisers Goldman Sachs (GS.N) and Deutsche Bank (DBKGn.DE), to help defend against Icahn's tender offer.

The SEC probe was made public in a letter from Herbert Beigel, a lawyer for CVR and Icahn.

It was filed as part of lawsuit in which CVR, now controlled by Icahn, accused law firm Wachtell, Lipton, Rosen & Katz, which had defended CVR, of malpractice for failing to disclose that Goldman and Deutsche Bank stood to earn far higher fees if a takeover defense failed than if it succeeded.

Beigel said the SEC probe began last year, and that the agency recently advised CVR it "intends to expand its inquiry."

According to court papers, the investigation would include depositions of current and former CVR employees and directors, and that CVR may face "significant risk" of an SEC enforcement action.

SEC spokesman John Nester, Goldman spokesman Michael DuVally and Deutsche Bank spokeswoman Kerrie McHugh all declined to comment. CVR, Icahn and Wachtell did not immediately respond to requests for comment.

A majority of CVR shareholders ultimately accepted Icahn's $30-per-share tender offer.

But since then, Icahn has battled in court with CVR's former advisers, claiming they stuck the company with financial burdens that he now bears. Icahn owns about 82 percent of CVR.

The disclosures in question date from March and April 2012, and state that CVR agreed to pay "customary compensation" for Goldman's and Deutsche Bank's services.

CVR claimed Wachtell assisted with the disclosures despite knowing at the time they might not have been true. It also said company directors did not know specifics about the fees.

At least two related lawsuits are pending in New York state courts.

Goldman and Deutsche Bank sued CVR after Icahn refused to pay their fees. A judge awarded the banks more than $36 million, and CVR is appealing.

Separately, Wachtell has sued CVR and Icahn for breach of contract and abuse of process, prompting CVR to file a malpractice counterclaim.

The case is CVR Energy Inc v. Wachtell, Lipton, Rosen & Katz et al, U.S. District Court, Southern District of New York, No. 14-06566.

(Editing by Jeffrey Benkoe)