1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 2001
REGISTRATION NO. 333-68136
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
KERR-MCGEE CORPORATION KERR-MCGEE OPERATING CORPORATION KERR-MCGEE ROCKY
MOUNTAIN CORPORATION
(EXACT NAME OF REGISTRANTS AS SPECIFIED IN THEIR CHARTERS)
DELAWARE DELAWARE DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR
ORGANIZATION)
73-1612389 73-0311467 94-3036864
(IRS EMPLOYER IDENTIFICATION NO.)
KERR-MCGEE CENTER
OKLAHOMA CITY, OKLAHOMA 73125
(405) 270-1313
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE OF REGISTRANTS' PRINCIPAL EXECUTIVE OFFICES)
------------------------
GREGORY F. PILCHER
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
KERR-MCGEE CORPORATION
KERR-MCGEE CENTER
OKLAHOMA, CITY, OKLAHOMA 73125
(405) 270-2868
------------------------
COPY TO:
VINCENT PAGANO, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NY 10017
(212) 455-3125
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of the Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ----------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ----------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2
Subject To Completion, Dated August 30, 2001
PROSPECTUS
[KM LOGO]
$2,000,000,000
KERR-MCGEE CORPORATION
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK, STOCK PURCHASE CONTRACTS,
STOCK PURCHASE UNITS, WARRANTS
KERR-MCGEE OPERATING CORPORATION
GUARANTEES
KERR-MCGEE ROCKY MOUNTAIN CORPORATION
GUARANTEES
------------------------
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer and sale is not permitted.
By this prospectus, we may offer up to $2,000,000,000 of debt securities
(which may be guaranteed by Kerr-McGee Operating Corporation and/or Kerr-McGee
Rocky Mountain Corporation), preferred stock, common stock, stock purchase
contracts, stock purchase units and warrants on terms to be determined at the
time of sale. We will provide more specific information regarding these
securities in supplements to this prospectus.
YOU SHOULD READ THIS PROSPECTUS, PARTICULARLY THE RISK FACTORS BEGINNING
ON PAGE 5, AND ANY SUPPLEMENT CAREFULLY BEFORE INVESTING.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR BY ANY STATE SECURITIES COMMISSION, NOR HAVE THOSE ORGANIZATIONS
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
August 30, 2001
3
TABLE OF CONTENTS
PAGE
----
ABOUT THIS PROSPECTUS....................................... 3
WHERE YOU CAN FIND INFORMATION.............................. 3
RISK FACTORS................................................ 5
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING
STATEMENTS................................................ 7
THE COMPANY................................................. 8
USE OF PROCEEDS............................................. 8
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDEND
REQUIREMENTS.............................................. 8
DESCRIPTION OF DEBT SECURITIES.............................. 9
DESCRIPTION OF PREFERRED STOCK.............................. 15
DESCRIPTION OF COMMON STOCK................................. 17
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS..................................................... 18
DESCRIPTION OF WARRANTS..................................... 18
PLAN OF DISTRIBUTION........................................ 18
LEGAL MATTERS............................................... 19
EXPERTS..................................................... 19
4
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that Kerr-McGee
Corporation (which we refer to as "Kerr-McGee", "the Company", "we" or "us")
filed with the Securities and Exchange Commission (which we refer to as the
"SEC") utilizing a shelf registration process. Under this shelf process, we may
sell the unsecured Debt Securities (which may be guaranteed under Guarantees
issued by Kerr-McGee Operating Corporation and/or Kerr-McGee Rocky Mountain
Corporation), Preferred Stock, Common Stock, Stock Purchase Contracts, Stock
Purchase Units and Warrants (which we collectively refer to as the "Offered
Securities") described in this prospectus, in one or more offerings up to a
total dollar amount of $2,000,000,000. This prospectus provides you with a
general description of the Offered Securities we may offer. Each time we sell
Offered Securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus supplement
may also add, update or change information contained in this prospectus. You
should read both this prospectus and any prospectus supplement together with
additional information described below under "Where You Can Find Information."
WHERE YOU CAN FIND INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any materials on file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549. Our filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the
Securities Exchange Act of 1934 until we sell all of the securities:
- Our Proxy Statement-Prospectus included in our registration statement on
Form S-4 (declared effective on June 28, 2001).
- Our Current Report on Form 8-K dated August 1, 2001, and our related
Current Report on Form 8-K/A filed on August 29, 2001.
The following documents, which have been filed by Kerr-McGee Operating
Corporation (formerly named Kerr-McGee Corporation) with the SEC (SEC file
number 001-03939), are also incorporated by reference into this prospectus:
- Kerr-McGee Operating Corporation's Annual Report on Form 10-K for the
year ended December 31, 2000.
- Kerr-McGee Operating Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2001.
- Kerr-McGee Operating Corporation's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001.
- Kerr-McGee Operating Corporation's Current Reports on Form 8-K dated
January 16, 2001, February 20, 2001, March 19, 2001, March 23, 2001,
April 10, 2001, April 15, 2001, May 13, 2001, May 14, 2001, May 21, 2001,
June 20, 2001 and July 18, 2001.
3
5
The following documents, which have been filed by Kerr-McGee Rocky Mountain
Corporation (formerly named HS Resources, Inc.) with the SEC (SEC file number
001-13152), are also incorporated by reference into this prospectus:
- Kerr-McGee Rocky Mountain Corporation's Annual Report on Form 10-K for
the year ended December 31, 2000.
- Kerr-McGee Rocky Mountain Corporation's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001.
- Kerr-McGee Rocky Mountain Corporation's Current Reports on Form 8-K dated
February 15, 2001, March 20, 2001, April 25, 2001 and May 13, 2001.
You can get a free copy of any of the documents incorporated by reference
by making an oral or written request directed to:
Investor Relations
Kerr-McGee Corporation
P. O. Box 25861
Oklahoma City, Oklahoma 73125
Telephone (405) 270-3125
You should rely only on the information contained or incorporated in this
prospectus or any supplement. We have not authorized anyone else to provide you
with different information. You should not rely on any other representations.
Our affairs may change after this prospectus or any supplement is distributed.
You should not assume that the information in this prospectus or any supplement
is accurate as of any date other than the date on the front of those documents.
You should read all information supplementing this prospectus.
4
6
RISK FACTORS
Prospective purchasers of the Offered Securities should carefully review
the information contained elsewhere in this prospectus and should particularly
consider the following matters.
VOLATILE PRODUCT PRICES AND MARKETS COULD ADVERSELY AFFECT RESULTS
Our results of operations are highly dependent upon the prices of and
demand for oil and gas and our chemical products. Historically, the markets for
oil and gas have been volatile and are likely to continue to be volatile in the
future. Accordingly, the prices received by us for our oil and gas production
are dependent upon numerous factors which are beyond our control. These factors
include, but are not limited to, the level of ultimate consumer product demand,
governmental regulations and taxes, the price and availability of alternative
fuels, the level of imports and exports of oil and gas, actions of the
Organization of Petroleum Exporting Countries and the overall economic
environment. Any significant decline in prices for oil and gas could have a
material adverse effect on our financial condition, results of operations and
quantities of reserves recoverable on an economic basis. Demand for titanium
dioxide is dependent on the demand for ultimate products utilizing titanium
dioxide pigment. This demand is generally dependent on the status of the
economy. The profitability of our products is dependent on the price realized
for them, the efficiency of our manufacturing costs, and the ability to acquire
feedstock at a competitive price. Should the industries in which we operate
experience significant price declines or other adverse market conditions, we may
not be able to generate sufficient cash flow from operations to meet our
obligations and make planned capital expenditures. In order to manage our
exposure to price risks in the sale of our oil and gas, we may from time to time
enter into commodities futures or option contracts to hedge a portion of our
crude oil and natural gas sales volume. Any such hedging activities may prevent
us from realizing the benefits of price increases above the levels reflected in
such hedges.
STATE AND LOCAL REGULATION OF OIL AND GAS DEVELOPMENT AND SURFACE DEVELOPMENT
CONFLICTS COULD ADVERSELY AFFECT RESULTS
State regulatory authorities have established rules and regulations
governing, among other things, permits for drilling and production, operations,
performance bonds, reports concerning operations, discharge, disposal and other
waste-related permits, well spacing, unitization and pooling of operations,
taxation, environmental and conservation matters. In general, these measures and
development activities make oil and gas development more difficult and their
application to our operations could adversely affect our results of operations.
FAILURE TO FUND CONTINUED CAPITAL EXPENDITURES COULD ADVERSELY AFFECT RESULTS
If our revenues substantially decrease as a result of lower oil and gas
prices or otherwise, we may have a limited ability to expend the capital
necessary to replace our reserves or to maintain production at current levels,
resulting in a decrease in production over time. We expect that we will continue
to make capital expenditures for the acquisition, exploration and development of
oil and gas reserves. Historically, we have financed these expenditures
primarily with cash flow from operations and proceeds from debt and equity
financings, asset sales and sales of partial interests in foreign concessions.
We believe that we will have sufficient cash flow from operations, available
drawings under our credit facilities and other debt financings to fund capital
expenditures. However, if our cash flow from operations is not sufficient to
satisfy our capital expenditure requirements, there can be no assurance that
additional debt or equity financing or other sources of capital will be
available to meet these requirements. If we are not able to fund our capital
expenditures, our interests in some of our properties may be reduced or
forfeited and our future cash generation may be materially adversely affected as
a result of the failure to find and develop reserves.
COSTS OF LEGAL MATTERS, ENVIRONMENTAL LIABILITIES AND REGULATION COULD EXCEED
ESTIMATES
We and/or our subsidiaries are or may become parties to a number of legal
and administrative proceedings involving environmental and/or other matters
pending in various courts or agencies. These include proceedings associated with
facilities currently or previously owned, operated or used by us, our
5
7
subsidiaries and/or our predecessors, and include claims for personal injuries
and property damages. Our current and former operations also involve management
of regulated materials and are subject to various environmental laws and
regulations. These laws and regulations obligate us and/or our subsidiaries to
clean up various sites at which petroleum and other hydrocarbons, chemicals,
low-level radioactive substances and/or other materials have been disposed of or
released. Some of these sites have been designated Superfund sites by the
Environmental Protection Agency pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act. Similar environmental regulations
exist in foreign countries in which we and/or our subsidiaries operate. Of note,
environmental regulations in the North Sea are particularly stringent.
It is not possible for us to estimate reliably the amount and timing of all
future expenditures related to environmental and legal matters and other
contingencies because:
- some sites are in the early stages of investigation, and other sites may
be identified in the future;
- cleanup requirements are difficult to predict at sites where remedial
investigations have not been completed or final decisions have not been
made regarding cleanup requirements, technologies or other factors that
bear on cleanup costs;
- environmental laws frequently impose joint and several liability on all
potentially responsible parties, and it can be difficult to determine the
number and financial condition of other potentially responsible parties
and their share of responsibility for cleanup costs;
- environmental laws and regulations are continually changing, and court
proceedings are inherently uncertain; and
- some legal matters are in the early stages of investigation or
proceedings, and other legal matters may be identified in the future.
Although our management believes that it has established appropriate
reserves for cleanup costs, due to these uncertainties we could be required to
make additional reserves in the future.
6
8
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
We have made certain forward-looking statements in this document and in the
documents referred to in this document which are subject to risks and
uncertainties. These statements are based on the beliefs and assumptions of our
management and on the information currently available to our management.
Forward-looking statements include information concerning our possible or
assumed future results and may be preceded by, followed by, or otherwise include
the words "believes," "expects," "anticipates," "intends," "plans," "estimates"
or similar expressions.
Forward-looking statements are not guarantees of performance. They involve
risks, uncertainties and assumptions. The future results and values of our stock
and other securities may differ materially from those expressed in these
forward-looking statements. Many of the factors that will determine these
results and values are beyond our ability to control or predict. Stockholders
and holders of other securities of the Company are cautioned not to put undue
reliance on any forward-looking statements. Except for our ongoing obligations
to disclose material information as required by the federal securities laws, we
do not have any intention or obligation to update forward-looking statements
after we distribute this document, even if new information, future events or
other circumstances have made them incorrect or misleading. For those
statements, we claim the protection of the safe harbor for forward-looking
statements contained in the Private Securities Litigation Reform Act of 1995.
You should understand that various factors, in addition to those discussed
elsewhere in this document and in the documents referred to in this document,
could affect our future results and could cause results to differ materially
from those expressed in such forward-looking statements, including:
- materially adverse changes in general economic conditions or in the
markets served by us, including changes in the prices of oil, natural
gas, titanium dioxide pigments and other chemicals;
- the success of our oil and natural gas exploration, development and
production programs;
- uncertainties about estimates of reserves;
- the financial resources of competitors;
- changes in laws and regulations, including environmental laws, or changes
in the administration of such laws and regulations;
- the quality of future opportunities that may be presented to or pursued
by us;
- the ability to generate cash flows or obtain financing to fund growth and
the cost of such financing;
- the ability to respond to challenges in international markets, including
changes in currency exchange rates, political or economic conditions, and
trade and regulatory matters; and
- the ability to complete and integrate appropriate acquisitions, strategic
alliances and joint ventures.
7
9
THE COMPANY
As a result of the August 1, 2001 merger involving Kerr-McGee Operating
Corporation (formerly named Kerr-McGee Corporation) and Kerr-McGee Rocky
Mountain Corporation (formerly named HS Resources, Inc.), we are a holding
company with two wholly owned subsidiaries, Kerr-McGee Operating Corporation and
Kerr-McGee Rocky Mountain Corporation. We are the fourth largest independent,
nonintegrated oil and gas exploration, development and production company based
in the United States in terms of proved oil and gas reserves on a pro forma
basis as of December 31, 2000. Proved reserves as of December 31, 2000 on a pro
forma basis totaled 1.3 billion barrels of oil equivalent with 84% of these
located in our core operating areas of the United States and the North Sea. We
also conduct offshore oil and gas exploration and/or production activities in
Algeria, Australia, Benin, Brazil, China, Gabon, the Gulf of Mexico, Morocco,
North Sea and Thailand. We conduct onshore exploration and/or production
operations in the United States, Ecuador, Indonesia, the United Kingdom,
Kazakhstan and Yemen.
Our operations originated in 1929 with the formation of Anderson & Kerr
Drilling Company. With oil and gas exploration, development and production as
our base, we have expanded into titanium dioxide pigment manufacturing and
marketing and into the mining and marketing of minerals. We own a large
inventory of natural resources that includes oil and gas reserves and mineral
deposits.
Our primary chemical product is titanium dioxide pigment, which is produced
at six titanium dioxide plants located in Australia, Belgium, Germany, the
Netherlands and the United States. In addition, our chemical operations produce
and market inorganic industrial and specialty chemicals, heavy minerals and
forest products. We produce and market other industrial chemicals including
synthetic rutile, manganese products and sodium chlorate and specialty chemicals
including boron trichloride and elemental boron. We produce the heavy minerals
ilmenite, synthetic and natural rutile, zircon and leucoxene. Our forest
products operations treat railroad crossties and other hardwood products and
provide wood treating services.
Our executive offices are located at Kerr-McGee Center, Oklahoma City,
Oklahoma 73125.
USE OF PROCEEDS
We will use the proceeds we receive from selling these Offered Securities
for acquisitions or for other general corporate purposes. General corporate
purposes may include capital expenditures, payment of debt, or any other
purposes that may be stated in the supplements. The proceeds may be invested
temporarily until they are used for their stated purpose.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31,(1) JUNE 30,(1)
-------------------------------- -----------------
1996 1997 1998 1999 2000 2000 2001
---- ---- ---- ---- ---- ------- -------
4.1 3.9 N/A(2) 2.2 6.8 4.8 9.2
---------------
(1) At no time during the periods indicated has Kerr-McGee Operating Corporation
had any preferred stock outstanding. Therefore, unless otherwise indicated,
ratio of earnings to combined fixed charges and preferred dividend
requirements will be the same.
(2) Earnings were inadequate to cover fixed charges by $548 million for the year
ended December 31, 1998.
For purposes of computing the ratios, the earnings calculation is: income
from continuing operations + income taxes + fixed charges - capitalized
interest. Fixed charges calculation is: all interest + interest factor of rental
expense.
8
10
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities summarizes
certain general terms that will apply to the Debt Securities. The description is
not complete, and we refer you to the Indenture, a copy of which is an exhibit
to the Registration Statement of which this prospectus is a part. For your
reference, in several cases below we have noted the section in the Indenture
that the paragraph summarizes. Capitalized items have the meanings assigned to
them in the Indenture. The referenced sections of the Indenture and the
definitions of capitalized terms are incorporated by reference in the following
summary.
We may issue Debt Securities either separately, or together with, upon
conversion of or in exchange for other securities. The Debt Securities will be
issued under an Indenture between Kerr-McGee and Citibank, N.A., as Trustee.
This summary of the Indenture is qualified by reference to the Indenture. You
should refer to the Indenture in addition to reading this summary. The summary
is not complete and is subject to the specific terms of the Indenture.
GENERAL
Under the Indenture, we can issue an unlimited amount of Debt Securities.
Each time that we issue a new series of Debt Securities, the supplement to the
prospectus relating to that new series will specify the terms of those Debt
Securities, including:
- Designation, amount and denominations;
- Percentage of principal amount at which Debt Securities will be issued;
- Maturity date;
- Interest rate and payment dates;
- Terms and conditions of exchanging or converting Debt Securities for
other securities;
- Currency of issue;
- Redemption terms; and
- Whether the Debt Securities and/or any Guarantees will be senior, senior
subordinated or subordinated.
Payments relating to the Debt Securities generally will be paid at
Citibank's corporate trust office. However, we may elect to pay interest by
mailing checks directly to the registered holders of the Debt Securities. You
can transfer your Debt Securities at Citibank's corporate trust office.
RANKING
Unless otherwise described in the prospectus supplement for any series, the
Debt Securities will be unsecured and will rank on a parity with all of our
other unsecured and unsubordinated indebtedness.
We are a holding company and conduct substantially all of our operations
through subsidiaries. Our right to participate as a shareholder in any
distribution of assets of any subsidiary (and thus the ability of holders of the
Debt Securities to benefit as creditors of the Company from such distribution)
is junior to creditors of that subsidiary. As a result, claims of holders of the
Debt Securities will generally have a junior position to claims of creditors of
our subsidiaries, except to the extent that we may be recognized as a creditor
of those subsidiaries or those subsidiaries guarantee the Debt Securities.
Claims of creditors of our subsidiaries include substantial amounts of long-term
debt.
We will issue the Debt Securities in registered form without coupons, which
Debt Securities may be in the form of a global security (see Description of Debt
Securities -- Global Securities). You can transfer or exchange your Debt
Securities without a service charge, but we may require advance payment of any
tax or other governmental transfer or exchange charge.
9
11
REOPENING OF ISSUE
We may, from time to time, reopen an issue of Debt Securities without the
consent of the holders of the Debt Securities and issue additional Debt
Securities with the same terms (including maturity and interest payment terms)
as Debt Securities issued on an earlier date. After such additional Debt
Securities are issued they will be fungible with the previously issued Debt
Securities to the extent specified in the applicable prospectus supplement.
DEBT GUARANTEES
Kerr-McGee Operating Corporation and/or Kerr-McGee Rocky Mountain
Corporation may guarantee the payment of principal, premium, if any, and
interest, if any, on the Debt Securities and the payment of mandatory sinking
fund payments, if any. (Section 14.01)
DEFINITIONS
The covenants in the Indenture, which we summarize below, use the following
terms:
- Subsidiary: A corporation of which we own a majority of the voting stock
either directly or indirectly. (Section 1.01)
- Restricted Subsidiary: Any subsidiary which we designate as a Restricted
Subsidiary or which owns or leases any Principal Property (see the next
definition). The term does not include a subsidiary if its principal
business is leasing assets, financing the sale of products or holding the
securities of other subsidiaries. (Section 1.01)
- Principal Property: Any U.S. mineral property owned by the Company or any
Restricted Subsidiary capable of producing in paying quantities and any
manufacturing plant owned by the Company or any Restricted Subsidiary in
the U.S. (including the land and fixtures), unless our board of directors
determines that the property or plant is not material to our total
business. The term does not include any facility acquired to control or
abate air, water, noise, odor, or other pollution, or facilities financed
through industrial revenue bonds or similar financing. (Section 1.01)
- Consolidated Net Tangible Assets: The total amount of assets on our
consolidated balance sheet and the balance sheets of our Restricted
Subsidiaries, less any reserves and after deducting: (1) current
liabilities and (2) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles.
(Section 1.01)
- Funded Debt: Money borrowed or debt evidenced by bonds or debentures, or
similar instruments or agreements having a maturity of more than one year
(or less than one year but which is renewable after that year at the
borrower's option). (Section 1.01)
- Debt: Notes, bonds, debentures or other similar evidences of
indebtedness. (Section 10.08)
- Mortgage: A pledge, mortgage or other lien securing a debt. (Section
10.08)
CERTAIN COVENANTS
The Indenture includes the following covenants. These covenants use certain
terms that are defined above. The covenants for a series of Debt Securities may
differ from those described below. If they do, this will be described in the
supplement to this prospectus relating to that series.
Restrictions on Secured Debt
After the date of the Indenture, if we or any of our Restricted
Subsidiaries incur or guarantee a debt secured by either a mortgage on any of
our Principal Property or on a Restricted Subsidiary's stock or debt, we will
secure the Debt Securities on the same basis, unless the amount of the new debt
plus the value of all sale
10
12
and leaseback transactions involving Principal Properties would not exceed 5% of
Consolidated Net Tangible Assets. The restrictions do not apply to debt secured
by the following:
- Mortgages on our property or the property of a Restricted Subsidiary,
which existed on the date of the Indenture.
- Mortgages on the property, stock or debt of a corporation that existed
when the corporation became a Restricted Subsidiary.
- Mortgages on the property of a Restricted Subsidiary, which only secures
indebtedness owed by the Subsidiary to another Restricted Subsidiary or
us.
- Mortgages in favor of governmental bodies to secure progress, advance or
other payments.
- Mortgages on acquired property, stock or debt which existed at the time
of the acquisition (including acquisition through merger or
consolidation) and certain purchase money and construction mortgages.
- Mortgages on our property or the property of a Restricted Subsidiary to
secure payment of the costs of operations, increase the production and
disposition of minerals from the property or indebtedness incurred to
provide funds for such purposes.
- Any extension, renewal or refunding of the foregoing.
The debt listed above will be excluded when computing our secured debt.
The restrictions will not apply to sale and leaseback transactions if the
proceeds are applied to the retirement of Funded Debt. Secured debt will not be
deemed to be created by the transfer of an interest in property in the form
commonly referred to as a "production payment". (Sections 10.08 and 10.09)
Restrictions on Sales and Leasebacks
We may not enter into any sale and leaseback transaction involving any
Principal Property after the date of the Indenture unless:
- The sale or transfer occurs within 120 days after construction is
complete and the Principal Property is fully operational.
- We could mortgage the property under Section 10.08 of the Indenture for
an amount equal to the proceeds of the sale and leaseback transaction
without securing the Debt Securities on the same basis.
- We use an amount equal to the market value of the Principal Property
being leased to retire Funded Debt within 120 days. This restriction will
not apply to any sale and leaseback transaction between us (or a
Restricted Subsidiary) and a Restricted Subsidiary, or involving the
taking back of a lease for a period of less than three years. (Section
10.09)
Merger and Consolidation
The Indenture generally permits a consolidation or merger between
Kerr-McGee and another corporation. It also permits the sale by Kerr-McGee of
all or substantially all of our property and assets. If this happens, the
resulting or acquiring corporation will assume all of our responsibilities and
liabilities under the Indenture. If the resulting or acquiring corporation has
outstanding Debt secured by a Mortgage on any Principal Property, or shares of
stock of a Restricted Subsidiary, the Debt Securities will be equally and
ratably secured with (or prior to) the Debt secured by such Mortgage. This
restriction will not apply if the Mortgage could be created pursuant to Section
10.08 of the Indenture (see "Restrictions on Secured Debt" above) without
equally and ratable securing the Debt Securities. (Section 8.03)
MODIFICATION
Generally, our rights and obligations and the holders' rights may be
modified if the holders of a majority of the outstanding Debt Securities
consent. However, no modification or amendment may occur without the
11
13
consent of the affected holder of the Debt Security if that modification or
amendment would do any of the following:
- Change the stated maturity date of the principal of, or any installment
of interest on, any of the holder's Debt Security.
- Reduce the principal amount of, or the interest (or premium, if any) on,
the Debt Security (including in the case of a discounted Debt Security,
the amount payable upon acceleration of maturity or provable in
bankruptcy).
- Change the currency of payment of the Debt Security.
- Impair the right to institute suit for the enforcement of any payment on
the Debt Security or adversely affect the right of repayment, if any, at
the option of the holder.
- Reduce the percentage of holders of Debt Securities necessary to modify
or amend the Indenture.
A modification which changes a covenant or provision expressly included
solely for the benefit of holders of one or more particular series will not
affect the rights of holders of Debt Securities of any other series. (Section
9.02)
Kerr-McGee or Citibank may make modifications without the consent of the
Debt Securities holders in order to do the following: (Section 9.01)
- Evidence that another corporation has succeeded to Kerr-McGee and assumed
our obligations.
- Convey security for the Debt Securities to Citibank.
- Add covenants, restrictions or conditions for the protection of the Debt
Security holders.
- Provide for the issuance of Debt Securities in coupon or fully registered
form.
- Establish the form or terms of Debt Securities of any series.
- Cure any ambiguity or correct any defect in the Indenture which does not
adversely affect the interests of a holder.
- Evidence the appointment of a successor trustee or more than one trustee.
EVENTS OF DEFAULT
In the Indenture, an Event of Default means any one of the following:
- Failure to pay interest on a Debt Security for 30 days;
- Failure to pay principal and premium, if any, when due;
- Failure to pay sinking fund installment when due;
- Failure by us or by a guarantor of the Debt Securities to perform any
other covenant in the Indenture that continues for 60 days after receipt
of notice;
- Certain events in bankruptcy, insolvency or reorganization; or
- A Guarantee ceasing to be in effect in accordance with its terms, or the
denial by a guarantor of its obligations under a Guarantee.
An Event of Default relating to one series of Debt Securities does not
necessarily constitute an Event of Default with respect to any other series
issued under the Indenture. If an Event of Default exists with respect to a
series of Debt Securities, Citibank or the holders of at least 25% of the
outstanding Debt Securities of that series (or of all the outstanding Debt
Securities in the case of defaults due to failure to perform a covenant in the
Indenture or certain events in bankruptcy, insolvency, or reorganization) may
declare the principal of that series (or of all outstanding Debt Securities, as
the case may be) due and payable.
12
14
Any Event of Default with respect to a particular series of Debt Securities
may be waived by the holders of a majority of the outstanding Debt Securities of
that series (or of all the outstanding Debt Securities as the case may be),
except for a failure to pay principal, premium or interest on the Debt Security.
(Sections 5.01, 5.02 and 5.08)
Citibank may withhold notice to the holders of the Debt Securities of any
default (except in payment of principal, premium, interest or sinking fund
payment) if Citibank thinks it is in the interest of the holders. (Section 6.02)
Subject to the specific duties that arise under the Indenture if an Event
of Default exists, Citibank is not obligated to exercise any of its rights or
powers under the Indenture at the request of the holders of the Debt Securities,
unless they provide reasonable indemnity satisfactory to it (Sections 6.01 and
6.03). Generally, the holders of a majority of the outstanding Debt Securities
can direct the proceeding for a remedy available to Citibank or for exercising
any power conferred on Citibank as the trustee. (Section 5.08)
TRUSTEE'S RELATIONSHIP
Citibank has loaned us substantial amounts of money in the past and may
continue to do so. Citibank serves as a depository for us and performs other
services for us in the normal course of business. The Indenture provides that we
will indemnify Citibank against any loss, liability or expense incurred that
arises from the trust created by the Indenture unless the loss, liability or
expense results from Citibank's negligence or willful misconduct. (Section 6.07)
GLOBAL SECURITIES
We may issue some of the Debt Securities as Global Securities that will be
deposited with a depository identified in a prospectus supplement. Global
Securities may be issued in either registered or bearer form and may be either
temporary or permanent. A prospectus supplement will contain additional
information about depository arrangements.
Registered Global Securities will be registered in the depositary's name or
in the name of its nominee. When we issue a Global Security, the depositary will
credit that amount of Debt Securities to the investors that have accounts with
the depository or its nominee. The underwriters or the Debt Security holders'
agent will designate the accounts to be credited, unless the Debt Securities are
offered and sold directly by Kerr-McGee, in which case, we will designate the
appropriate account to be credited.
Investors who have accounts with a depository, and people who have an
interest in those institutions, are the beneficial owners of Global Securities
held by that particular depository.
Kerr-McGee will not maintain records regarding ownership or the transfer of
Global Securities held by a depository or to nominee. If you are the beneficial
owner of Global Securities held by a depository, you must get information
directly from the depository.
As long as a depositary is the registered owner of a Global Security, that
depository will be considered the sole owner of the Debt Securities represented
by that Global Security. Except as set forth below, beneficial owners of Global
Securities held by a depository will not be entitled to:
- Register the represented Debt Securities in their names;
- Receive physical delivery of the Debt Securities; or
- Be considered the owners or holders of the Global Security under the
Indenture.
Payments on Debt Securities registered in the name of a depositary or its
nominee will be made to the depositary or its nominee. (Section 2.03)
When a depositary receives a payment, it must immediately credit the
accounts in amounts proportionate to the account holders' interests in the
Global Security. The beneficial owners of a Global Security should, and are
expected to, establish standing instructions and customary practices with their
investor that has an account
13
15
with the depository, so that payments can be made with regard to securities
beneficially held for them, much like securities held for the accounts of
customers in bearer form or registered in "street name."
A Global Security can only be transferred in whole by the depository to a
nominee of such depository, or to another nominee of a depository. If a
depositary is unwilling or unable to continue as a depository and we do not
appoint a successor depository within ninety (90) days, we will issue Debt
Securities in exchange for all of the Global Securities held by that depository.
In addition, we may eliminate all Global Securities at any time and issue Debt
Securities in exchange for them. Further, we may allow a depository to surrender
a Global Security in exchange for Debt Securities on any terms that are
acceptable to us and the depositary. Finally, an interest in the Global Security
is exchangeable for a definitive Debt Security if an event of default has
occurred as described above under "Events of Default". (Section 3.07)
If any of these events occur, we will execute and Citibank will
authenticate and deliver to the beneficial owners of the Global Security in
question a new registered security in an amount equal to and in exchange for
that person's beneficial interest in the exchanged Global Security. The
depository will receive a new Global Security in an amount equal to the
difference, if any, between the amount of the surrendered Global Security and
the amount of Debt Securities delivered to the beneficial owners. Debt
Securities issued in exchange for Global Securities will be registered in the
same names and in the same denominations as indicated by the depository's
records and in accordance with the instructions from its direct and indirect
participants. (Section 3.07)
The laws of certain jurisdictions require some people who purchase securities to
actually take physical possession of those securities. The limitations imposed
by these laws may impair your ability to transfer your beneficial interests in a
Global Security.
14
16
DESCRIPTION OF PREFERRED STOCK
GENERAL
Our Certificate of Incorporation authorizes our Board of Directors or a
committee of our Board of Directors to cause Preferred Stock to be issued in one
or more series, without stockholder action. The Board of Directors is authorized
to issue up to 40,000,000 shares of Preferred Stock, $1 par value per share, and
can determine the number of shares of each series, and the rights, preference
and limitations of each series. We may amend the Charter to increase the number
of authorized shares of preferred stock in a manner permitted by the Charter and
the Delaware General Corporation Law.
The particular terms of any series of preferred stock being offered by us
under this shelf registration will be described in the prospectus supplement
relating to that series of Preferred Stock. Those terms may include:
- The number of shares of the series of Preferred Stock being offered;
- The title and liquidation preference per share of that series of the
Preferred Stock;
- The purchase price of the Preferred Stock;
- The dividend rate (or method for determining such rates);
- The dates on which dividends will be paid;
- Whether dividends on that series of Preferred Stock will be cumulative or
noncumulative and, if cumulative, the dates from which dividends shall
commence to accumulate;
- Any redemption or sinking fund provisions applicable to that series of
preferred stock;
- Any conversion or exchange provisions applicable to that series of
preferred stock;
- Whether we have elected to offer Depositary Shares with respect to that
series of preferred stock; and
- Any additional dividend, liquidation, redemption, sinking fund and other
rights and restrictions applicable to that series of preferred stock.
If the terms of any series of Preferred Stock being offered differ from the
terms set forth herein, those terms will also be disclosed in the prospectus
supplement relating to that series of Preferred Stock. The following summary is
not complete. You should refer to the Certificate of Designations relating to
the series of the Preferred Stock for the complete terms of that Preferred
Stock. That Certificate of Designations will be filed with the SEC promptly
after the offering of the Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the prospectus supplement, in the event we
liquidate, dissolve or wind-up our business, each series of Preferred Stock will
have the same rank as to dividends and distributions as each other series of the
Preferred Stock we may issue in the future. The Preferred Stock will have no
preemptive rights.
DIVIDEND RIGHTS
Holders of Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors, cash dividends at the rates
and on the dates set forth in the prospectus supplement. Dividend rates may be
fixed or variable or both. Different series of Preferred Stock may be entitled
to dividends at different dividend rates or based upon different methods of
determination. Each dividend will be payable to the holders of record as they
appear on our stock books on record dates determined by the Board of Directors.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as specified in the prospectus supplement. If the Board of
Directors fails to declare a dividend on any series of Preferred Stock for which
dividends are noncumulative, then the right to receive that dividend will be
lost, and we will have no obligation to pay the dividend for that dividend
period, whether or not dividends are declared for any future dividend period.
15
17
No full dividends will be declared or paid on any series of Preferred
Stock, unless full dividends for the dividend period commencing after the
immediately preceding dividend payment date (and cumulative dividends still
owing, if any) have been or contemporaneously are declared and paid on all other
series of Preferred Stock that have the same rank as, or rank senior to, that
Preferred Stock. When those dividends are not paid in full, dividends will be
declared pro rata, so that the amount of dividends declared per share on that
series of Preferred Stock and on each other series of preferred stock having the
same rank as, or ranking senior to, that series of Preferred Stock will in all
cases bear to each other the same ratio that accrued dividends per share on that
series of Preferred Stock and the other preferred stock bear to each other. In
addition, generally, unless full dividends, including cumulative dividends still
owing, if any, on all outstanding shares of any series of Preferred Stock have
been paid, no dividends will be declared or paid on the Common Stock and
generally we may not redeem or purchase any Common Stock. No interest, or sum of
money in lieu of interest, will be paid in connection with any dividend payment
or payments which may be in arrears.
Unless otherwise described in the prospectus supplement, the amount of
dividends payable for each dividend period will be computed by annualizing the
applicable dividend rate and dividing by the number of dividend periods in a
year, except that the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period shall be computed on
the basis of a 360-day year consisting of twelve 30-day months and, for any
period less than a full month, the actual number of days elapsed in the period.
RIGHTS UPON LIQUIDATION
In the event we liquidate, dissolve or wind-up our affairs, either
voluntarily or involuntarily, the holders of each series of Preferred Stock will
be entitled to receive liquidating distributions in the amount set forth in the
prospectus supplement relating to each series of Preferred Stock, plus an amount
equal to accrued and unpaid dividends, if any, before any distribution of assets
is made to the holders of Common Stock. If the amounts payable with respect to
Preferred Stock of any series and any stock having the same rank as that series
of Preferred Stock are not paid in full, the holders of Preferred Stock and of
such other stock will share ratably in any such distribution of assets in
proportion to the full respective preferential amounts to which they are
entitled. After the holders of each series of Preferred Stock and any stock
having the same rank as the Preferred Stock are paid in full, they will have no
right or claim to any of our remaining assets. Neither the sale of all or
substantially all our property or business nor a merger or consolidation by us
with any other corporation will be considered a dissolution, liquidation or
winding up by us of our business or affairs.
REDEMPTION
Any series of Preferred Stock may be redeemable, in whole or in part, at
our option. In addition, any series of Preferred Stock may be subject to
mandatory redemption pursuant to a sinking fund. The redemption provisions that
may apply to a series of Preferred Stock, including the redemption dates and the
redemption prices for that series, will be set forth in the prospectus
supplement.
If a series of Preferred Stock is subject to mandatory redemption, the
prospectus supplement will specify the year we can begin to redeem shares of the
Preferred Stock, the number of shares of the Preferred Stock we can redeem each
year, and the redemption price per share. We may pay the redemption price in
cash, stock or in cash that we have received specifically from the sale of our
capital stock, as specified in the prospectus supplement. If the redemption
price is to be paid only from the proceeds of the sale of our capital stock, the
terms of the series of Preferred Stock may also provide that, if no such capital
stock is sold or if the amount of cash received is insufficient to pay in full
the redemption price then due, the series of Preferred Stock will automatically
be converted into shares of the applicable capital stock pursuant to conversion
provisions specified in the prospectus supplement.
If fewer than all the outstanding shares of any series of Preferred Stock
are to be redeemed, whether by mandatory or optional redemption, the Board of
Directors will determine the method for selecting the shares to be redeemed,
which may be by lot or pro rata or by any other method determined to be
equitable. From and after the redemption date, dividends will cease to accrue on
the shares of Preferred Stock called for
16
18
redemption and all rights of the holders of those shares (except the right to
receive the redemption price) will cease.
In the event that full dividends, including accrued but unpaid dividends,
if any, have not been paid on any series of Preferred Stock, we may not redeem
that series in part and we may not purchase or acquire any shares of that series
of Preferred Stock, except by any offer made on the same terms to all holders of
that series of Preferred Stock.
VOTING RIGHTS
Except as indicated in the prospectus supplement, or except as expressly
required by applicable law, the holders of Preferred Stock will not be entitled
to vote.
DESCRIPTION OF COMMON STOCK
As of the date of this prospectus, we are authorized to issue up to
300,000,000 shares of Common Stock. As of June 30, 2001, we had 95,116,303
shares of Common Stock issued and outstanding.
The following summary is not complete. You should refer to the applicable
provisions of the Charter, including the Certificates of Designations pursuant
to which any outstanding series of Preferred Stock may be issued, and the
Delaware General Corporation Law for a complete statement of the terms and
rights of the Common Stock.
Dividends. Holders of Common Stock are entitled to receive dividends when,
as and if declared by the Board of Directors, out of funds legally available for
their payment (subject to the rights of holders of the preferred stock, if any).
Voting Rights. Each holder of Common Stock is entitled to one vote per
share. Subject to the rights, if any, of the holder of any series of preferred
stock pursuant to applicable law or the provision of the Certificate of
Designations creating that series, all voting rights are vested in the holders
of shares of Common Stock.
Rights Upon Liquidation. In the event of our voluntary or involuntary
liquidation, dissolution or winding up, the holders of Common Stock will be
entitled to share equally in any of our assets available for distribution after
the payment in full of all debts and distributions and after the holders of all
series of outstanding preferred stock, if any, have received their liquidation
preferences in full.
Rights Agreement. We have adopted a Rights Agreement, which provides for
the issuance of a right (which we refer to as a Kerr-McGee Right), to the holder
of each of our shares of Common Stock. If anyone acquires 15% or more of our
outstanding Common Stock (which we refer to as an Acquiring Person), each holder
of the Kerr-McGee Right (other than the Acquiring Person) will be entitled to
purchase additional shares of Common Stock (or, in certain cases, other of our
securities, or cash or other property) having a current market value of two
times the exercise price of $215. Otherwise, prior to an Acquiring Person
acquiring 50% or more of the outstanding Common Stock, we may elect to issue a
share of Common Stock in exchange for each Kerr-McGee Right (other than
Kerr-McGee Rights held by the Acquiring Person). In addition, if we are acquired
in a merger or other business combination or 50% or more of our assets or
earning power are sold, each holder of a Kerr-McGee Right will be entitled to
buy, at the exercise price, common stock of the acquirer having a current market
value of two times the exercise price. At any time before there is an Acquiring
Person, we can redeem the Kerr-McGee Rights in whole, but not in part, for $0.01
per each Kerr-McGee Right, or may amend the Rights Agreement in any way without
the consent of the holders of the Kerr-McGee Rights.
Miscellaneous. The issued and outstanding shares of Common Stock are fully
paid and nonassessable. Holders of shares of Common Stock are not entitled to
preemptive rights or cumulative rights. Shares of Common Stock are not
convertible into shares of any other class of capital stock.
17
19
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue Stock Purchase Contracts representing contracts obligating
holders to purchase from us and us to sell to the holders a specified number of
shares of Common Stock or Preferred Stock at a future date or dates. The price
per share of Common Stock or Preferred Stock may be fixed at the time the Stock
Purchase Contracts are issued or may be determined by reference to a specific
formula set forth in the Stock Purchase Contracts.
The Stock Purchase Contracts may be issued separately or as a part of
units, often known as Stock Purchase Units, consisting of a Stock Purchase
Contract and either
- Debt Securities, or
- debt obligations of third parties, including U.S. Treasury securities,
securing the holder's obligations to purchase the Common Stock or Preferred
Stock under the Stock Purchase Contracts. The Stock Purchase Contracts may
require us to make periodic payments to the holders of the Stock Purchase Units
or vice versa, and such payments may be unsecured or prefunded on some basis.
The Stock Purchase Contracts may require holders to secure their obligations in
a specified manner and in certain circumstances we may deliver newly issued
prepaid Stock Purchase Contracts, often known as prepaid securities, upon
release to a holder of any collateral securing each holder's obligations under
the original Stock Purchase Contract.
The applicable prospectus supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units and, if applicable, prepaid
securities. The description in the prospectus supplement will not contain all of
the information that you may find useful. For more information, you should
review the Stock Purchase Contracts, the collateral arrangements and depositary
arrangements, if applicable, relating to such Stock Purchase Contracts or Stock
Purchase Units and, if applicable, the prepaid securities and the document
pursuant to which the prepaid securities will be issued, which will be filed
with the SEC promptly after the offering of such Stock Purchase Contracts or
Stock Purchase Units and, if applicable, prepaid securities.
DESCRIPTION OF WARRANTS
We may issue Warrants for the purchase of Debt Securities, Preferred Stock
or Common Stock. We may issue Warrants independently or together with other
securities. Each series of Warrants will be issued under a separate Warrant
Agreement to be entered into between us and a bank or trust company, as warrant
agent. You should refer to the Warrant Agreement relating to the specific
Warrants being offered for the complete terms of the Warrant Agreement and the
Warrants.
Each Warrant will entitle the holder to purchase the principal amount of
Debt Securities, or the number of shares of Preferred Stock, or Common Stock at
the exercise price set forth in, or calculable as set forth in, the prospectus
supplement. The exercise price may be subject to adjustment upon the occurrence
of certain events, as set forth in the prospectus supplement. After the close of
business on the expiration date of the Warrant, unexercised Warrants will become
void. The place or places where, and the manner in which, Warrants may be
exercised shall be specified in the prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the Offered Securities through underwriters, dealers or agents,
or we may sell directly to one or more purchasers including through a dividend
reinvestment program. The prospectus supplement names any underwriters, states
the purchase price and the proceeds received by us, any underwriting discounts
and other items constituting underwriters' compensation, the initial public
offering price, any discounts or concessions to dealers, and any securities
exchanges on which the Offered Securities may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account. The underwriters may resell
the Offered Securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The
18
20
Offered Securities may be offered through an underwriting syndicate represented
by many underwriters. The obligations of the underwriters to purchase the
Offered Securities will be subject to certain conditions. The underwriters will
be obligated to purchase all the Offered Securities if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
These Offered Securities may be sold directly by us or through agents. Any
agent will be named, and any commissions payable to that agent will be set forth
in the prospectus supplement. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis.
We may authorize agents, underwriters or dealers to solicit offers by
specified institutions to purchase Offered Securities pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. These contracts will be subject only to those conditions set forth in
the prospectus supplement. The prospectus supplement will set forth the
commission payable for soliciting such contracts.
We may agree to indemnify underwriters, dealers or agents against certain
civil liabilities, including liabilities under the Securities Act of 1933, and
may also agree to contribute to payments which the underwriters, dealers or
agents may be required to make.
LEGAL MATTERS
Simpson Thacher & Bartlett will issue an opinion about the legality of the
securities for us. Any underwriters will be advised about issues relating to
this offering by their own legal counsel.
EXPERTS
The audited financial statements and schedule of Kerr-McGee Operating
Corporation (formerly named Kerr-McGee Corporation) incorporated by reference or
included in Kerr-McGee Corporation's Annual Report on Form 10-K for the year
ended December 31, 2000 have been incorporated by reference in this prospectus
and elsewhere in the registration statement and have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in giving said reports.
The audited financial statements of Kerr-McGee Rocky Mountain Corporation
(formerly named HS Resources, Inc.) included in HS Resources, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 2000 have been incorporated
by reference in this prospectus and elsewhere in the registration statement and
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in giving said report.
19
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company in connection with the
offering described in this Registration Statement (other than underwriting
discounts and commissions) are as follows:
SEC Registration Fee........................................ 296,371
Printing and Engraving Expenses............................. 40,000
Accounting Fees and Expenses................................ 50,000
Legal Fees and Expenses..................................... 100,000
Blue Sky Qualification Fees and Expenses.................... 15,000
Trustee's Fees.............................................. 5,000
Fees of Rating Agencies..................................... 235,000
Miscellaneous............................................... 25,000
--------
TOTAL............................................. $766,371
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XXII of the ByLaws of the Company, as amended, provides for
indemnification of officers, directors and employees of the Company to the
extent authorized by the General Corporation Law of the State of Delaware.
Pursuant to Section 145 of the Delaware General Corporation Law, the Company
generally has the power to indemnify its present and former directors, officers,
employees and agents against expenses incurred by them in connection with any
suit to which they are, or are threatened to be made, a party by reason of their
serving in such positions so long as they acted in good faith and in a manner
they reasonably believed to be in, or not opposed to, the best interests of a
corporation, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. With respect to suits by or in the
right of a corporation, however, indemnification is not available if such person
is adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation unless the court determines that indemnification is
appropriate. In addition, a corporation has the power to purchase and maintain
insurance for such persons. The statute also expressly provides that the power
to indemnify authorized thereby is not exclusive of any rights granted under any
bylaw, agreement vote of stockholders or disinterested directors, or otherwise.
The above discussion of the Company's ByLaws and of Section 145 of the
Delaware General Corporation law is not intended to be exhaustive and is
respectively qualified in its entirety by such ByLaws and statute.
Any underwriting agreement or agency agreement with respect to an offering
of securities registered hereunder will provide for indemnification of
Kerr-McGee Corporation and its officers and directors by the underwriters or
agents, as the case may be, against certain liabilities, including liabilities
under the Securities Act of 1933 ("Act").
ITEM 16. EXHIBITS.
EXHIBIT DESCRIPTION
------- -----------
1.1* Form of Debt Underwriting Agreement.
1.2* Form of Equity Underwriting Agreement.
1.3* Form of Preferred Stock Underwriting Agreement.
1.4* Form of Warrants Underwriting Agreement.
1.5* Form of Stock Purchase Units Underwriting Agreement.
1.6* Form of Stock Purchase Contracts Underwriting Agreement.
II-1
22
EXHIBIT DESCRIPTION
------- -----------
2.1 Agreement and Plan of Merger (incorporated by reference from
Exhibit 2.1 to Form 8-K of Kerr-McGee Operating Corporation,
dated May 13, 2001).
3.1 Rights Agreement (incorporated by reference to Form 8-A of
Kerr-McGee Corporation dated July 26, 2001).
4.1 Form of Indenture, among Kerr-McGee Corporation and
Citibank, N.A., as trustee.
4.2* Form of Debt Security (included in 4.1).
4.3* Form of Guarantee (included in 4.1).
4.4* Form of Rights (included in 3.1).
4.5* Form of Common Stock share certificate.
4.6* Form of Preferred Stock share certificate.
4.7* Form of Purchase Contract Agreement relating to Stock
Purchase Contracts and Stock Purchase Units.
4.8* Form of Pledge Agreement for Stock Purchase Contracts and
Stock Purchase Units.
4.9* Form of Warrant Agreement.
5.1** Opinion of Simpson Thacher & Bartlett, as to the legality of
the Securities being registered.
12.1** Computations of Ratio of Earnings to Fixed Charges for the
years 1996 through 2000 and the six months ended June 30,
2000 and 2001.
23.1 Consent of Arthur Andersen LLP relating to Kerr-McGee
Operating Corporation (formerly Kerr-McGee Corporation)
financial statements.
23.2 Consent of PricewaterhouseCoopers LLP relating to Kerr-McGee
Operating Corporation (formerly Kerr-McGee Corporation)
financial statements.
23.3 Consent of Arthur Andersen LLP relating to Kerr-McGee Rocky
Mountain Corporation (formerly HS Resources, Inc.) financial
statements.
23.4 Consent of Simpson Thacher & Bartlett (Contained in Exhibit
5).
24.1** Powers of Attorney.
25.1** Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Citibank, N.A.
---------------
* To be filed with subsequent Current Report on Form 8-K
**Previously filed
ITEM 17. UNDERTAKINGS.
The undersigned registrant does hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which has been
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in
II-2
23
the form of prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's Annual
Report on Form 10-K pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the provisions described in Item 15 above, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless, in the opinion of its counsel, the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
registrants certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Oklahoma City, State of
Oklahoma, on this 30th day of August, 2001.
KERR-McGEE CORPORATION
By: /s/ GREGORY F. PILCHER
------------------------------------
Gregory F. Pilcher
Senior Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ LUKE R. CORBETT* Chairman of the Board, Chief August 30, 2001
------------------------------------------------ Executive Officer and Director
Luke R. Corbett
/s/ ROBERT M. WOHLEBER* Senior Vice President and Chief August 30, 2001
------------------------------------------------ Financial Officer
Robert M. Wohleber
/s/ DEBORAH A. KITCHENS* Vice President, Controller and August 30, 2001
------------------------------------------------ Chief Accounting Officer
Deborah A. Kitchens
/s/ WILLIAM E. BRADFORD* Director August 30, 2001
------------------------------------------------
William E. Bradford
/s/ SYLVIA A. EARLE* Director August 30, 2001
------------------------------------------------
Sylvia A. Earle
/s/ DAVID C. GENEVER-WATLING* Director August 30, 2001
------------------------------------------------
David C. Genever-Watling
/s/ MARTIN C. JISCHKE* Director August 30, 2001
------------------------------------------------
Martin C. Jischke
/s/ WILLIAM C. MORRIS* Director August 30, 2001
------------------------------------------------
William C. Morris
/s/ JOHN J. MURPHY* Director August 30, 2001
------------------------------------------------
John J. Murphy
/s/ LEROY C. RICHIE* Director August 30, 2001
------------------------------------------------
Leroy C. Richie
II-4
25
SIGNATURE TITLE DATE
--------- ----- ----
/s/ MATTHEW R. SIMMONS* Director August 30, 2001
------------------------------------------------
Matthew R. Simmons
/s/ FARAH M. WALTERS* Director August 30, 2001
------------------------------------------------
Farah M. Walters
/s/ IAN L. WHITE-THOMPSON* Director August 30, 2001
------------------------------------------------
Ian L. White-Thompson
*By: /s/ GREGORY F. PILCHER August 30, 2001
---------------------------------------------------
Gregory F. Pilcher
as Attorney-in-Fact
II-5
26
KERR-McGEE OPERATING CORPORATION
By: /s/ GREGORY F. PILCHER
----------------------------------
Gregory F. Pilcher
Senior Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ LUKE R. CORBETT* Chairman of the Board, Chief August 30, 2001
--------------------------------------------------- Executive Officer and
Luke R. Corbett Director
/s/ ROBERT M. WOHLEBER* Senior Vice President, Chief August 30, 2001
--------------------------------------------------- Financial Officer and
Robert M. Wohleber Director
/s/ DEBORAH A. KITCHENS* Vice President, Controller and August 30, 2001
--------------------------------------------------- Chief Accounting Officer
Deborah A. Kitchens
/s/ KENNETH W. CROUCH* Senior Vice President and August 30, 2001
--------------------------------------------------- Director
Kenneth W. Crouch
/s/ W.P. WOODWARD* Senior Vice President and August 30, 2001
--------------------------------------------------- Director
W.P. Woodward
/s/ GREGORY F. PILCHER Senior Vice President, August 30, 2001
--------------------------------------------------- Secretary, General Counsel
Gregory F. Pilcher and Director
*By: /s/ GREGORY F. PILCHER August 30, 2001
---------------------------------------------
Gregory F. Pilcher
as Attorney-in-Fact
II-6
27
KERR-McGEE ROCKY MOUNTAIN CORPORATION
By: /s/ GREGORY F. PILCHER
----------------------------------
Gregory F. Pilcher
Senior Vice President,
Secretary and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE
--------- ----- ----
/s/ LUKE R. CORBETT* Chairman of the Board, Chief August 30, 2001
--------------------------------------------------- Executive Officer and
Luke R. Corbett Director
/s/ ROBERT M. WOHLEBER* Senior Vice President, Chief August 30, 2001
--------------------------------------------------- Financial Officer and
Robert M. Wohleber Director
/s/ GREGORY F. PILCHER Senior Vice President, August 30, 2001
--------------------------------------------------- Secretary, General Counsel
Gregory F. Pilcher and Director
/s/ KENNETH W. CROUCH* Senior Vice President and August 30, 2001
--------------------------------------------------- Director
Kenneth W. Crouch
/s/ DEBORAH A. KITCHENS* Vice President and Chief August 30, 2001
--------------------------------------------------- Accounting Officer
Deborah A. Kitchens
/s/ LAWRENCE H. TOWELL* Vice President and Director August 30, 2001
---------------------------------------------------
Lawrence H. Towell
/s/ DALE E. CANTWELL* Vice President and Director August 30, 2001
---------------------------------------------------
Dale E. Cantwell
/s/ ANNELL BAY* Vice President and Director August 30, 2001
---------------------------------------------------
Annell Bay
*By: /s/ GREGORY F. PILCHER August 30, 2001
---------------------------------------------------
Gregory F. Pilcher
as Attorney-in-Fact
II-7
28
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
1.1* Form of Debt Underwriting Agreement.
1.2* Form of Equity Underwriting Agreement.
1.3* Form of Preferred Stock Underwriting Agreement.
1.4* Form of Warrants Underwriting Agreement.
1.5* Form of Stock Purchase Units Underwriting Agreement.
1.6* Form of Stock Purchase Contracts Underwriting Agreement.
2.1 Agreement and Plan of Merger (incorporated by reference from
Exhibit 2.1 to Form 8-K of Kerr-McGee Operating Corporation,
dated May 13, 2001).
3.1 Rights Agreement (incorporated by reference to Form 8-A of
Kerr-McGee Corporation dated July 26, 2001).
4.1 Form of Indenture, among Kerr-McGee Corporation and
Citibank, N.A., as trustee.
4.2* Form of Debt Security (included in 4.1).
4.3* Form of Guarantee (included in 4.1).
4.4* Form of Rights (included in 3.1).
4.5* Form of Common Stock share certificate.
4.6* Form of Preferred Stock share certificate.
4.7* Form of Purchase Contract Agreement relating to Stock
Purchase Contracts and Stock Purchase Units.
4.8* Form of Pledge Agreement for Stock Purchase Contracts and
Stock Purchase Units.
4.9* Form of Warrant Agreement.
5.1** Opinion of Simpson Thacher & Bartlett, as to the legality of
the Securities being registered.
12.1** Computations of Ratio of Earnings to Fixed Charges for the
years 1996 through 2000 and the six months ended June 30,
2000 and 2001.
23.1 Consent of Arthur Andersen LLP relating to Kerr-McGee
Operating Corporation (formerly Kerr-McGee Corporation)
financial statements.
23.2 Consent of PricewaterhouseCoopers LLP relating to Kerr-McGee
Operating Corporation (formerly Kerr-McGee Corporation)
financial statements.
23.3 Consent of Arthur Andersen LLP relating to Kerr-McGee Rocky
Mountain Corporation (formerly HS Resources, Inc.) financial
statements.
23.4 Consent of Simpson Thacher & Bartlett (Contained in Exhibit
5).
24.1** Powers of Attorney.
25.1** Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Citibank, N.A.
---------------
* To be filed with subsequent Current Report on Form 8-K
**Previously filed.