UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No.__)*
Kerr-McGee Corporation
(Name of Issuer)
Common Stock
(Title of Class of Securities)
492386107
(CUSIP Number)
Marc Weitzen, Esq.
General Counsel
Icahn Associates Corp. & affiliated companies
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4388
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
February 28, 2005
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of " 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the
following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
CUSIP No. 492386107
1 NAME OF REPORTING PERSON
High River Limited Partnership
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
1,421,200
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
1,421,200
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,421,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.94%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
Hopper Investments LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,421,200
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,421,200
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,421,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.94%
14 TYPE OF REPORTING PERSON*
OO
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
Barberry Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
1,421,200
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
1,421,200
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,421,200
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.94%
14 TYPE OF REPORTING PERSON*
CO
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
Icahn Partners Master Fund L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
2,901,212
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
2,901,212
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,901,212
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.91%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
Icahn Offshore L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,901,212
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,901,212
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,901,212
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.91%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
CCI Offshore LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,901,212
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,901,212
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,901,212
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.91%
14 TYPE OF REPORTING PERSON*
OO
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
Icahn Partners L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
2,783,588
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
2,783,588
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,783,588
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.84%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
Icahn Onshore L.P.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,783,588
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,783,588
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,783,588
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.84%
14 TYPE OF REPORTING PERSON*
PN
SCHEDULE 13D
CUSIP No. 492386107
NAME OF REPORTING PERSON
CCI Onshore LLC
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
2,783,588
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
2,783,588
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,783,588
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.84%
14 TYPE OF REPORTING PERSON*
OO
SCHEDULE 13D
CUSIP No. 492386107
1 NAME OF REPORTING PERSON
Carl C. Icahn
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) /X/
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH:
7 SOLE VOTING POWER
0
8 SHARED VOTING POWER
7,106,000
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
7,106,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,106,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
//
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
4.68%
14 TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
Item 1. Security and Issuer
This Schedule 13D relates to the Common Stock, par value $1.00 per
share (the "Shares"), of Kerr-McGee Corporation, a Delaware corporation (the
"Issuer"). The address of the principal executive offices of the Issuer is
Kerr-McGee Center, 123 Robert S. Kerr Avenue, Oklahoma City, OK 73102.
Item 2. Identity and Background
The persons filing this statement are Barberry Corp., a Delaware
corporation ("Barberry"), Hopper Investments, LLC, a Delaware limited liability
company, High River Limited Partnership, a Delaware limited partnership ("High
River"), Icahn Partners Master Fund L.P., a Cayman Islands limited partnership
("Icahn Master"), Icahn Offshore L.P., a Delaware limited partnership ("Icahn
Offshore"), CCI Offshore LLC, a Delaware limited liability company ("CCI
Offshore"), Icahn Partners L.P., a Delaware limited partnership ("Icahn
Partners"), Icahn Onshore L.P., a Delaware limited partnership ("Icahn
Onshore"), CCI Onshore LLC, a Delaware limited liability company (" CCI
Onshore") and Carl C. Icahn, a citizen of the United States of America
(collectively, the "Reporting Persons"). The principal business address and the
address of the principal office of the Reporting Persons is c/o Icahn Associates
Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153, except that (i)
the principal business address of each of Barberry, Hopper and High River is 100
South Bedford Road, Mount Kisco, New York 10549 and (ii) the principal business
address of Icahn Master is c/o Walkers SPV Limited, P.O. Box 908GT, 87 Mary
Street, George Town, Grand Cayman, Cayman Islands.
Barberry is the sole member of Hopper, which is the general partner of
High River. CCI Offshore is the general partner of Icahn Offshore, which is the
general partner of Icahn Master. CCI Onshore is the general partner of Icahn
Onshore, which is the general partner of Icahn Partners. Each of Barberry, CCI
Offshore and CCI Onshore is 100 percent owned by Carl C. Icahn. As such, Mr.
Icahn is in a position directly and indirectly to determine the investment and
voting decisions made by the Reporting Persons.
Each of Icahn Master, Icahn Partners, Barberry and High River is
primarily engaged in the business of investing in securities. Hopper is
primarily engaged in the business of serving as the general partner of High
River. Icahn Offshore and Icahn Onshore are primarily engaged in the business of
serving as the general partner of Icahn Master and Icahn Partners, respectively.
CCI Offshore and CCI Onshore are primarily engaged in the business of serving as
the general partner of Icahn Offshore and Icahn Onshore, respectively. Carl C.
Icahn's present principal occupation or employment is (i) owning all of the
interest in CCI Onshore and CCI Offshore, through which Mr. Icahn indirectly
directs and manages the investments of Icahn Master and Icahn Partners and (ii)
acting as President and a director of Starfire Holding Corporation ("Starfire"),
and as the Chairman of the Board and a director of various of Starfire's
subsidiaries. Starfire is primarily engaged in the business of investing in and
holding securities of various entities.
The name, citizenship, present principal occupation or employment and
business address of each director and executive officer of High River and
Barberry, are set forth in Schedule A attached hereto.
Except as set forth on Schedule B, no member of any of the Reporting
Persons nor any manager or executive officer of the Reporting Persons, has,
during the past five years, (a) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors), or (b) been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting, or mandating
activities subject to, Federal or State securities laws or a finding of any
violation with respect to such laws.
Any disclosures made herein with respect to persons or entities other
than the Reporting Persons are made on information and belief after making
inquiry to the appropriate party. By virtue of the transactions described in
Item 4, the Reporting Persons may be deemed to be a "group" with the Jana
Parties (as hereinafter defined) within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "Act"). Although the Reporting
Persons do not affirm that such a group has been formed, these disclosures are
being made to ensure compliance with the Act. The Reporting Persons expressly
disclaim beneficial ownership of securities held by any person or entity other
than the Reporting Persons. The securities reported herein as being beneficially
owned by the Reporting Persons do not include any securities held by the Jana
Parties or any other person or entity other than the Reporting Persons.
Item 3. Source and Amount of Funds or Other Consideration
The aggregate purchase price of the 7,106,000 Shares purchased by High
River, Icahn Master and Icahn Partners, collectively, was $509,002,173.34
(including commissions and, with respect to Shares acquired upon exercise of
options, including option purchase prices). The source of funding for the
purchase of these Shares was the respective general working capital of the
purchasers, and, with respect to High River, pursuant to margin accounts in the
regular course of business.
Item 4. Purpose of Transaction
The Reporting Persons acquired the Shares believing them to be
undervalued. The Reporting Persons reserve the right to acquire additional
Shares at any time and from time to time in the open market or otherwise. In
addition, the Reporting Persons may dispose of all or any portion of the Shares
at any time or from time to time in the open market or otherwise.
Representatives of the Reporting Persons have had discussions with
Barry Rosenstein and other representatives of Jana Partners LLC regarding the
Issuer and the Shares. Barry Rosenstein is a managing member of Jana Partners
LLC, which serves as the investment manager of Jana Master Fund Ltd. (Barry
Rosenstein, Jana Partners LLC and Jana Master Fund Ltd. are sometimes
hereinafter referred to collectively as the "Jana Parties").
On February 14, 2005, the Reporting Persons acquired an option (the
"Jana Option") to purchase, in the aggregate, 250,000 Shares from Jana Master
Fund Ltd. Pursuant to the exercise of the Jana Option on March 1, 2005, Icahn
Partners purchased 96,000 Shares, Icahn Master purchased 104,000 Shares and High
River purchased 50,000 Shares. The Jana Option had an exercise price of $60.00
per Share and an expiration date of August 14, 2005. A copy of the Jana Option
is filed herewith as an exhibit and incorporated herein by reference, and any
descriptions herein of the Jana Option are qualified in their entirety by
reference to the Jana Option.
On March 2, 2005, the Reporting Persons delivered a letter to the
Issuer (the "Notification Letter"), notifying the Issuer that the Reporting
Persons intend to appear at the 2005 annual meeting of the Issuer's
stockholders, in person or by proxy, to nominate and seek to elect Carl Icahn
and Barry Rosenstein as members of the board of directors of the Issuer. A copy
of the Notification Letter is filed herewith as an exhibit and incorporated
herein by reference, and any descriptions herein of the Notification Letter are
qualified in their entirety by reference to the Notification Letter.
On March 3, 2005, the Reporting Persons and Jana Partners LLC sent a
letter to the Issuer (the "Proposed Transaction Letter"), regarding a proposed
transaction to increase shareholder value. A copy of the Proposed Transaction
Letter is filed herewith as an exhibit and incorporated herein by reference, and
any descriptions herein of the Proposed Transaction Letter are qualified in
their entirety by reference to the Proposed Transaction Letter.
As a result of the foregoing, the Reporting Persons may be deemed to be
members of a "group" with the Jana Parties within the meaning of Section
13(d)(3) of the Act. However, the Reporting Persons disclaim membership in any
such group for all purposes and disclaim ownership of any Shares held by the
Jana Parties, and neither the fact of this filing or anything contained herein
shall be deemed to be an admission by any of the Reporting Persons that they are
members of such a group.
SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS
RELATED TO SOLICITATION OF PROXIES BY MR. ICAHN AND HIS AFFILIATES FROM THE
STOCKHOLDERS OF KERR-MCGEE CORPORATION FOR USE AT ITS ANNUAL MEETING (A) WHEN
AND IF THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION,
INCLUDING INFORMATION RELATING TO THE PARTICIPANTS IN ANY SUCH PROXY
SOLICITATION, AND (B) WHEN AND IF COMPLETED, A DEFINITIVE PROXY STATEMENT AND A
FORM OF PROXY WHICH WILL BE MAILED TO STOCKHOLDERS OF KERR-MCGEE CORPORATION AND
WILL BE AVAILABLE AT NO CHARGE AT THE SECURITIES AND EXCHANGE COMMISSION'S
WEBSITE AT HTTP://WWW.SEC.GOV.
Item 5. Interest in Securities of the Issuer
(a) The Reporting Persons may be deemed to beneficially own, in the
aggregate, 7,106,000 Shares, representing approximately 4.68% of the Issuer's
outstanding Shares (based upon the 151,692,157 Shares stated to be outstanding
as of October 31, 2004 by the Issuer in the Issuer's Form 10-Q for the period
ending September 30, 2004, filed with the Securities and Exchange Commission on
November 9, 2004).
(b) High River has sole voting power and sole dispositive power with
regard to 1,421,200 Shares. Each of Barberry, Hopper and Carl C. Icahn has
shared voting power and shared dispositive power with regard to such Shares.
Icahn Master has sole voting power and sole dispositive power with regard to
2,901,212 Shares. Each of Icahn Offshore, CCI Offshore and Carl C. Icahn has
shared voting power and shared dispositive power with regard to such Shares.
Icahn Partners has sole voting power and sole dispositive power with regard to
2,783,588 Shares. Each of Icahn Onshore, CCI Onshore and Carl C. Icahn has
shared voting power and shared dispositive power with regard to such Shares.
Each of Hopper, Barberry and Mr. Icahn, by virtue of their
relationships to High River (as disclosed in Item 2), may be deemed to
beneficially own (as that term is defined in Rule 13d-3 under the Act) the
Shares which High River directly beneficially owns. Each of Hopper, Barberry and
Mr. Icahn disclaims beneficial ownership of such Shares for all other purposes.
Each of Icahn Offshore, CCI Offshore and Mr. Icahn, by virtue of their
relationships to Icahn Master (as disclosed in Item 2), may be deemed to
beneficially own (as that term is defined in Rule 13d-3 under the Act) the
Shares which Icahn Master directly beneficially owns. Each of Icahn Offshore,
CCI Offshore and Mr. Icahn disclaims beneficial ownership of such Shares for all
other purposes. Each of Icahn Onshore, CCI Onshore and Mr. Icahn, by virtue of
their relationships to Icahn Partners (as disclosed in Item 2), may be deemed to
beneficially own (as that term is defined in Rule 13d-3 under the Act) the
Shares which Icahn Partners directly beneficially owns. Each of Icahn Onshore,
CCI Onshore and Mr. Icahn disclaims beneficial ownership of such Shares for all
other purposes.
The Reporting Persons may be deemed to be members of a "group" with the
Jana Parties within the meaning of Section 13(d)(3) of the Act. As such, the
Reporting Persons may be deemed to beneficially own Shares owned by the Jana
Parties. Upon information and belief, the Jana Parties, as of the close of
business on March 2, 2005, may be deemed to beneficially own 4,501,300 Shares in
the aggregate. Accordingly, the 11,607,300 Shares that may be deemed to be
beneficially owned in the aggregate by the Reporting Persons and the Jana
Parties, as of the close of business on March 2, 2005, constitutes approximately
7.65% of the Shares outstanding. However, the Reporting Persons disclaim
membership in any such group for all purposes and disclaim ownership of any
Shares owned by the Jana Parties, and neither the fact of this filing or
anything contained herein shall be deemed to be an admission by any of the
Reporting Persons that they are members of such a group.
(c) The following table sets forth all transactions with respect to
Shares effected during the past sixty (60) days by any of the Reporting Persons.
Other than the purchase of Shares upon exercise of the Jana Option, all such
transactions were effected in the open market, and the table includes
commissions paid in per share prices (and, with respect to Shares acquired upon
exercise of options, the table includes option purchase prices paid in per share
prices).
------------------ -------------- ------------------- -------------------
No. of Shares Price
Name Date Purchased Per Share
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 01/24/05 45,000 60.1318
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 01/25/05 45,000 60.3339
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 01/26/05 67,000 59.2852
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 01/26/05 12,000 60.5174
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 01/28/05 60,000 60.5075
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 01/31/05 10,000 60.8514
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/03/05 30,000 62.5149
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/04/05 27,000 62.9524
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/24/05 118,000* 66.1770
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/24/05 30,000* 65.8539
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/24/05 25,400* 64.0752
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/24/05 20,000* 65.9420
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/24/05 300,000 76.4535
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 02/28/05 125,000 77.1996
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 03/01/05 50,000* 66.0000
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 03/01/05 238,600 77.1092
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 03/01/05 110,000 76.7300
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
High River 03/02/05 108,200 77.7004
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 01/24/05 91,800 60.1318
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 01/25/05 91,800 60.3339
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 01/26/05 136,680 59.2852
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 01/26/05 24,480 60.5174
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 01/28/05 122,400 60.5075
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 01/31/05 20,400 60.8514
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/03/05 61,200 62.5149
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/04/05 55,080 62.9524
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/24/05 240,700* 66.2058
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/24/05 61,200* 65.8823
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/24/05 51,800* 64.1035
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/24/05 40,800* 65.9700
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/24/05 612,000 76.4535
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 02/28/05 255,000 77.1996
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 03/01/05 104,000* 66.0000
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 03/01/05 486,744 77.1092
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 03/01/05 224,400 76.7300
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Master 03/02/05 220,728 77.7004
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 01/24/05 88,200 60.1318
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 01/25/05 88,200 60.3339
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 01/26/05 131,320 59.2852
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 01/26/05 23,520 60.5174
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 01/28/05 117,600 60.5075
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 01/31/05 19,600 60.8514
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/03/05 58,800 62.5149
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/04/05 52,920 62.9524
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/24/05 231,300* 66.2062
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/24/05 58,800* 65.8823
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/24/05 49,800* 64.1035
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/24/05 39,200* 65.9700
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/24/05 588,000 76.4535
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 02/28/05 245,000 77.1996
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 03/01/05 96,000* 66.0000
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 03/01/05 467,656 77.1092
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 03/01/05 215,600 76.7300
------------------ -------------- ------------------- -------------------
------------------ -------------- ------------------- -------------------
Icahn Partners 03/02/05 212,072 77.7004
------------------ -------------- ------------------- -------------------
* Shares acquired upon exercise of options
(including, where applicable, the Jana Option)
Item 6. Contracts, Arrangements, Understandings or Relationship
with Respect to Securities of the Issuer
On March 1, 2005, the Reporting Persons exercised the Jana Option more
fully described in Item 4. A copy of the Jana Option is filed herewith as an
exhibit and incorporated herein by reference, and any descriptions herein of the
Jana Option are qualified in their entirety by reference to the Jana Option.
On March 2, 2005, the Reporting Persons sent to the Issuer the
Notification Letter more fully described in Item 4. A copy of the Notification
Letter is filed herewith as an exhibit and incorporated herein by reference, and
any descriptions herein of the Notification Letter are qualified in their
entirety by reference to the Notification Letter.
On March 3, 2005, the Reporting Persons and Jana Partners LLC sent to
the Issuer the Proposed Transaction Letter more fully described in Item 4. A
copy of the Proposed Transaction Letter is filed herewith as an exhibit and
incorporated herein by reference, and any descriptions herein of the Proposed
Transaction Letter are qualified in their entirety by reference to the Proposed
Transaction Letter.
As a result of the foregoing, the Reporting Persons may be deemed to be
members of a "group" with the Jana Parties within the meaning of Section
13(d)(3) of the Act. However, the Reporting Persons disclaim membership in any
such group for all purposes and disclaim ownership of any Shares held by the
Jana Parties, and neither the fact of this filing or anything contained herein
shall be deemed to be an admission by any of the Reporting Persons that they are
members of such a group.
Except as described herein, none of the Reporting Persons has any
contracts, arrangements, understandings or relationships (legal or otherwise)
with any person with respect to any securities of the Issuer, including but not
limited to the transfer or voting of any of the securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
division of profits or losses, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits
1 Joint Filing Agreement of the Reporting Persons.
2 Stock Option Agreement among the Reporting Persons and Jana Master Fund Ltd.
3 Notification Letter from the Reporting Persons to the Issuer.
4 Proposed Transaction Letter from the Reporting Persons and Jana Partners
LLC to the Issuer.
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: March 3, 2005
HOPPER INVESTMENTS LLC
By: Barberry Corp.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, General Partner
By: Barberry Corp., member
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
[Signature Page of Schedule 13D - Kerr-McGee, Inc.]
ICAHN OFFSHORE L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
CCI OFFSHORE LLC
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN ONSHORE L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
CCI ONSHORE LLC
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
/s/ Carl C. Icahn_____________
-----------------
CARL C. ICAHN
[Signature Page of Schedule 13D - Kerr-McGee, Inc.]
{88883\1060\3/3/2005\00518108v4}
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, the persons named below agree to the joint filing on behalf of
each of them of a statement on Schedule 13D (including amendments thereto) with
respect to the Class A Common Stock and Class B Common Stock of Kerr-McGee, Inc.
and further agree that this Joint Filing Agreement be included as an Exhibit to
such joint filings. In evidence thereof, the undersigned, being duly authorized,
have executed this Joint Filing Agreement this 3rd day of March, 2005.
HOPPER INVESTMENTS LLC
By: Barberry Corp.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, General Partner
By: Barberry Corp., member
By:/s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN OFFSHORE L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
[Signature Page of Joint Filing Agreement to Schedule 13D -
Kerr-McGee, Inc.]
CCI OFFSHORE LLC
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN ONSHORE L.P.
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
CCI ONSHORE LLC
By: /s/ Edward E. Mattner
Name: Edward E. Mattner
Title: Authorized Signatory
/s/ Carl C. Icahn_____________
-----------------
CARL C. ICAHN
[Signature Page of Joint Filing Agreement to Schedule 13D -
Kerr-McGee, Inc.]
SCHEDULE A
DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSONS
Name, Business Address and Principal Occupation of Each Executive
Officer and Director of High River and Barberry.
The following sets forth the name, position, and principal occupation
of each director and executive officer of each of High River and Barberry. Each
such person is a citizen of the United States of America. Except as otherwise
indicated, the business address of each director and officer is c/o Icahn
Associates Corp., 767 Fifth Avenue, 47th Floor, New York, New York 10153. To the
best of the Reporting Persons' knowledge, except as set forth in this statement
on Schedule 13D, none of the directors or executive officers of the Reporting
Persons own any shares of the Issuer.
HIGH RIVER LIMITED PARTNERSHIP
Name Position
---- --------
Hopper Investments LLC General Partner
BARBERRY CORP.
Name Position
---- --------
Carl C. Icahn Chairman, President and Secretary
Jordan Bleznick Vice President - Taxes
SCHEDULE B
-----------
On January 5, 2001, Reliance Group Holdings, Inc. ("Reliance")
commenced an action in the United States District Court for the Southern
District of New York against "Carl C. Icahn, Icahn Associates Corp. and High
River Limited Partnership" alleging that High River's tender offer for Reliance
9% senior notes violated Section 14(e) of the Exchange Act. Reliance sought a
temporary restraining order and preliminary and permanent injunctive relief to
prevent defendants from purchasing the notes. The Court initially imposed a
temporary restraining order. Defendants then supplemented the tender offer
disclosures. The Court conducted a hearing on the disclosures and other matters
raised by Reliance. It then denied plaintiffs' motion for a preliminary
injunction and ordered dissolution of its temporary restraining order following
dissemination of the supplement.
Reliance took an immediate appeal to the United States Court of Appeals
for the Second Circuit and sought a stay to restrain defendants from purchasing
notes during the pendency of the appeal. On January 30, 2001, the Court of
Appeals denied plaintiff's stay application. On January 30, Reliance also sought
a further temporary restraining order from the District Court. The Court
considered the matter and reimposed its original restraint until noon the next
day, at which time the restraint was dissolved. The appeal was argued on March 9
and denied on March 22, 2001.