SUBSCRIPTION AGREEMENT

Exhibit 10.40

SUBSCRIPTION AGREEMENT

IN MAKING AN INVESTMENT DECISION, EMPLOYEE MUST RELY ON EMPLOYEE’S OWN EXAMINATION OF THE EMPLOYER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE OR NON-U.S. SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (“SECURITIES ACT”), AND OTHER APPLICABLE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. EMPLOYEE SHOULD BE AWARE THAT HE WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.

SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of , 2007, by and among CVR Energy Inc., a Delaware corporation (the “Employer”), and Xxxx X. Xxxxxxxx (“Employee”).

WHEREAS, on March 9, 2007, Employee purchased 0.21253757 of a share of common stock, par value $,01 per share, of Coffeyville Nitrogen Fertilizers, Inc., a Delaware corporation and an affiliate of the Employer (“CNF” and such stock, the “Nitrogen Stock”) and on August 22, 2007 Employee purchased 0.10441996 of a share of common stock, par value $,01 per share, of Coffeyville Refining & Marketing Holdings, Inc., a Delaware corporation and an affiliate (“CRMH” and such stock, the “Refining Holdings Stock”);

WHEREAS, on the terms and conditions contained in this Agreement, Employee desires to purchase and Employer desire to issue to Employee, 247,471 shares of common stock, $0.01 par value per share, of Employer (the “Issued Stock”) in exchange for Employee’s Nitrogen Stock and Employee’s Refining Stock (the “Exchanged Stock”);

WHEREAS, the boards of directors of each of CNF and CRMH has approved the exchange of the Exchanged Stock for the Issued Stock; and

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, Employer and Employee hereby agree as follows:

Section 1 Purchase of Common Stock. Upon the terms and subject to the conditions set forth herein, at the Closing, as defined below, Employer shall issue to Employee, the Issued Stock in exchange for the Exchanged Stock.

Section 2 Closing. The closing of the purchase of the Issued Stock in exchange for the Exchange Stock hereunder (the “Closing”) shall take place at the offices of Employer. At the Closing, Employer shall deliver an original stock certificate to Employee

representing the Issued Stock and in exchange therefore, Employee shall deliver or cause to be delivered to Employer an original stock certificate or certificates representing the Exchanged Stock, along with duly executed stock powers.

Section 3 Representations and Warranties of Employer. Employer hereby represents and warrants to Employee as follows:

(a) Employer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, with full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and thereunder;

(b) Employer has duly executed and delivered this Agreement;

(c) all necessary corporate actions required to be taken by or on behalf of Employer to authorize it to execute, deliver and perform its obligations under this Agreement have been taken and this Agreement constitutes Employer’s legal, valid and binding obligation, enforceable against Employer in accordance with the terms hereof;

(d) the execution and delivery of this Agreement and the consummation by Employer of the transactions contemplated hereby in the manner contemplated hereby do not and will not conflict with, or result in a breach of any terms of, or constitute a default under, any agreement or instrument or any applicable law, or any judgment, decree, writ, injunction, order or award of any arbitrator, court or governmental authority which is applicable to Employer or by which Employer or any material portion of its properties is bound;

(e) except for any applicable filings under federal and state securities laws, no consent, approval, authorization, order, filing, registration or qualification of or with any court, governmental authority or third person is required to be obtained by Employer in connection with the execution and delivery of this Agreement or the performance of Employer’s obligations hereunder; and

(f) upon issuance of the Issued Stock, the Issued Stock will represent duly authorized, validly issued and non-assessable shares of Common Stock and Employee shall be the record owner of the Issued Stock

Section 4 Representations and Warranties of Employee. Employee hereby represents, warrants and acknowledges to Employer as follows:

(a) Employee has duly executed and delivered this Agreement;

(b) all actions required to be taken by or on behalf of Employee to authorize him to execute, deliver and perform his obligations under this Agreement have been taken and this Agreement constitutes Employee’s legal, valid and binding obligation, enforceable against Employee in accordance with the terms hereof and thereof;

(c) the execution and delivery of this Agreement and the consummation by Employee of the transactions contemplated hereby in the manner contemplated hereby do not and will not conflict with, or result in a breach of any terms of, or

constitute a default under, any agreement or instrument or any applicable law, or any judgment, decree, writ, injunction, order or award of any arbitrator, court or governmental authority which is applicable to Employee or by which Employee or any material portion of his properties is bound;

(d) no consent, approval, authorization, order, filing, registration or qualification of or with any court, governmental authority or third person is required to be obtained by Employee in connection with the execution and delivery of this Agreement or the performance of Employee’s obligations hereunder;

(e) Employee is a resident of Texas;

(f) Employee is receiving the Issued Stock solely for Employee’s own account for investment and not with a view to resale in connection with any distribution thereof;

(g) Employee acknowledges receipt of advice from Employer that (i) the Issued Stock has not been registered under the Securities Act or qualified under any state securities or “blue sky” laws, (ii) it is not anticipated that there will be any public market for the Issued Stock, (iii) the Issued Stock must be held indefinitely and Employee must continue to bear the economic risk of the investment in the Issued Stock unless the Issued Stock is subsequently registered under the Securities Act and such state laws or an exemption from registration is available, (iv) Rule 144 promulgated under the Securities Act (“Rule 144”) is not presently available with respect to sales of any securities of Employer and Employer has made no covenant to make Rule 144 available and Rule 144 is not anticipated to be available in the foreseeable future, (v) when and if the Issued Stock may be disposed of without registration in reliance upon Rule 144, such disposition can be made only in limited amounts and in accordance with the terms and conditions of such Rule and the provisions of this Agreement and the Stockholders Agreement, (vi) if the exemption afforded by Rule 144 is not available, public sale of the Issued Stock without registration will require the availability of an exemption under the Securities Act, (vii) restrictive legends shall be placed on any certificate representing the Issued Stock and (viii) a notation shall be made in the appropriate records of Employer indicating that the Issued Stock is subject to restrictions on transfer and, if Employer should in the future engage the services of a transfer agent, appropriate stop-transfer instructions will be issued to such transfer agent with respect to the Issued Stock;

(h) Employee’s financial situation is such that Employee can afford to bear the economic risk of holding the Issued Stock for an indefinite period and Employee can afford to suffer the complete loss of Employee’s investment in the Issued Stock;

(i) (x) Employee is familiar with the business and financial condition, properties, operations and prospects of Employer and Employee has been granted the opportunity to ask questions of, and receive answers from, representatives of Employer concerning Employer and the terms and conditions of the purchase of the Issued Stock and to obtain any additional information that Employee deems necessary, (y) Employee’s knowledge and experience in financial and business matters is such that Employee is capable of evaluating the merits and risk of the investment in the Issued Stock and (z) Employee has carefully

reviewed the terms and provisions of this Agreement and the Stockholders Agreement and has evaluated the restrictions and obligations contained therein;

(j) in furtherance of the foregoing, Employee represents and warrants that (i) no representation or warranty, express or implied, whether written or oral, as to the financial condition, results of operations, prospects, properties or business of Employer or as to the desirability or value of an investment in Employer has been made to Employee by or on behalf of Employer, (ii) Employee has relied upon Employee’s own independent appraisal and investigation, and the advice of Employee’s own counsel, tax advisors and other advisors, regarding the risks of an investment in Employer and (iii) Employee will continue to bear sole responsibility for making its own independent evaluation and monitoring of the risks of its investment in Employer;

(k) Employee is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act and, in connection with the execution of this Agreement, agrees to deliver such certificates to that effect as the board of directors of Employer may request;

(l) Employee understands and acknowledges that (a) he is being issued the Common Stock in reliance on an exemption under the federal securities laws that permits companies to issue stock to their employees and directors without registration under limited circumstances when such stock is issued in compensatory circumstances, (b) that he is being issued the Common Stock as part of his compensation for services to the Company and its subsidiaries and (c) that he would not be issued the Common Stock if he were not an employee or director of the Company or one of its subsidiaries; and

(m) Employee is the record and beneficial owner of the Exchanged Stock and has requisite power and authority to transfer the Exchanged Stock as provided in this Agreement and Employee is delivering to Employer, good and marketable title to the Exchanged Stock, free and clear of any and all liens, claims, charges, security interests, options or other encumbrances, other than those provided under federal or state securities laws and other than those arising under the CRMH Stockholders Agreement, dated August 22, 2007, and the CFN Stockholders, dated March 9, 2007 (each of which will terminate pursuant to Termination Agreements with each of CRMH and CFN, each dated the date hereof, immediately after the consummation of the transactions contemplated by this Agreement).

Section 5 Governing Law. This Agreement and the rights and obligations of the parties hereto hereunder and the Persons subject hereto shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware, without giving effect to the choice of law principles thereof.

Section 6 Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered personally, (b) mailed, certified or registered mail with postage prepaid, (c) sent by next-day or overnight mail or delivery or (d) sent by fax, as follows (or to such other address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):

(a) If to Employer:

00 X. Xxxxxxxxx Xxxxxx, Xxx. 000
Xxxxxx Xxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: 000-000-0000

with copies (which shall not constitute notice) to:

GS Capital Partners V Fund, L.P.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Facsimile No.: 000-000-0000

Xxxxx & Company, L.P.
000 Xxxx Xxxxxx, 00^xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx XX
Facsimile No.: 000-000-0000

Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000

and

Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000

(b) If to Employee:

0000 Xxxxx Xxxxx
Xxxxx 000
XxxxxXxxx, Xx 00000
Facsimile No.: (000) 000-0000

All such notices, requests, demands, waivers and other communications shall be deemed to have been received by (w) if by personal delivery, on the day delivered, (x) if by certified or registered mail, on the fifth business day after the mailing thereof, (y) if by next-day or overnight mail or

delivery, on the day delivered, or (z) if by fax, on the day delivered; provided that such delivery is confirmed.

Section 7 Entire Agreement, etc. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and supersedes any prior agreement or understanding among them with respect to the matters referred to herein. There are no representations, warranties, promises, inducements, covenants or undertakings relating to shares of Issued Stock, other than those expressly set forth or referred to herein or in the Management Registration Rights Agreement, by and between Employer and Employee, dated as of the date hereof.

Section 8 Amendments and Waivers. This Agreement may not be modified or amended except by a written instrument signed by authorized representatives of all parties affected by such modification or amendment and referring specifically to this Agreement. Waiver by any party hereto of any breach or default by any other party of any of the terms of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by any party to assert its or his or her rights hereunder on any occasion or series of occasions.

Section 9 Assignment. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto.

Section 10 Severability. If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

Section 11 Counterparts. For the convenience of the parties hereto, this Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.

Section 12 Captions. The Section and paragraph captions herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

Section 13 Survival of Representations and Warranties; Indemnity. All representations, warranties and covenants contained herein or made in writing by Employee, or by or on behalf of Employer in connection with the transactions contemplated by this Agreement, shall survive the execution and delivery of this Agreement, any investigation at any time made by or on behalf of Employer or Employee, the issue and sale of the Issued Stock. Employee shall and hereby does indemnify and hold harmless Employer from and against any and all losses, claims, damages, expenses and liabilities relating to or arising out of any breach of any representation, warranty or covenant made by Employee in this Agreement.

[Signature page follows]

IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto on the date first herein above written.


CVR ENERGY, INC.
By:
	Name:	Xxxxx X. Xxxx
	Title:	Chief Financial Officer

XXXX X. XXXXXXXX

[Signature page to Subscription Agreement]

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SUBSCRIPTION AGREEMENT

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