0000902664-05-000834.txt : 20120618 0000902664-05-000834.hdr.sgml : 20120618 20050324160159 ACCESSION NUMBER: 0000902664-05-000834 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20050324 DATE AS OF CHANGE: 20050324 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KERR MCGEE CORP /DE CENTRAL INDEX KEY: 0001141185 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 731612389 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78007 FILM NUMBER: 05702083 BUSINESS ADDRESS: STREET 1: KERR-MCGEE CENTER STREET 2: 123 ROBERT S. KERR AVENUE CITY: OKLAHOMA CITY STATE: OK ZIP: 73102 BUSINESS PHONE: 4052701313 MAIL ADDRESS: STREET 1: KERR-MCGEE CENTER STREET 2: P.O. BOX 25861 CITY: OKLAHOMA CITY STATE: OK ZIP: 73125 FORMER COMPANY: FORMER CONFORMED NAME: KERR MCGEE HOLDCO INC DATE OF NAME CHANGE: 20010525 FORMER COMPANY: FORMER CONFORMED NAME: KING HOLDCO INC DATE OF NAME CHANGE: 20010523 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: JANA PARTNERS LLC CENTRAL INDEX KEY: 0001159159 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: JANA PARTNERS LLC STREET 2: 536 PACIFIC AVENUE CITY: SAN FRANCISCO STATE: CA ZIP: 94133 BUSINESS PHONE: 2125935955 SC 13D/A 1 p05-0380kerr.txt KERR-MCGEE SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------- SCHEDULE 13D/A* (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) Under the Securities Exchange Act of 1934 (Amendment No. 2) Kerr-McGee Corporation -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $1.00 per share -------------------------------------------------------------------------------- (Title of Class of Securities) 492386107 -------------------------------------------------------------------------------- (CUSIP Number) Marc Weingarten, Esq. Schulte Roth & Zabel LLP 919 Third Avenue New York, New York 10022 (212) 756-2000 -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 24, 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 Rule 13d-1(e), 13d-1(f) or 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. (Continued on following pages) (Page 1 of 7 Pages) -------------------------- * 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). ------------------------------ --------------------- CUSIP NO. 492386107 SCHEDULE 13D/A PAGE 2 OF 7 PAGES ------------------------------ --------------------- -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) JANA PARTNERS LLC -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [X] -------------------------------------------------------------------------------- 3 SEC USE ONLY -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 4,378,000 (including options to purchase up to 1,576,900 Shares) (see Item 5) ---------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY -0- OWNED BY ---------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 4,378,000 (including options to purchase up to 1,576,900 Shares) (see Item 5) ---------------------------------------------------------- 10 SHARED DISPOSITIVE POWER -0- -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH PERSON 4,378,000 (including options to purchase up to 1,576,900 Shares) (see Item 5) -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [X] -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.7% (see Item 5) -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IA -------------------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! ------------------------------ --------------------- CUSIP NO. 492386107 SCHEDULE 13D/A PAGE 3 OF 7 PAGES ------------------------------ --------------------- The Schedule 13D filed on March 3, 2005 by Jana Partners LLC, a Delaware limited liability company (the "Reporting Person"), relating to the common stock, $1.00 par value (the "Shares"), of Kerr-McGee Corporation (the "Issuer"), as amended by Amendment No. 1 dated March 10, 2005, is hereby amended and restated as set forth below by this Amendment No. 2 to the Schedule 13D. ITEM 1. SECURITY AND ISSUER. This statement on Schedule 13D relates to the shares ("Shares") of common stock, $1.00 par value, of Kerr-McGee Corporation (the "Issuer"). The principal executive office of the Issuer is located at Kerr-McGee Center, Oklahoma City, Oklahoma 73125. ITEM 2. IDENTITY AND BACKGROUND. (a) This statement is filed by JANA Partners LLC, a Delaware limited liability company (the "Reporting Person"). The Reporting Person is a private money management firm which holds the Shares of the Issuer in various accounts under its management and control. The principals of the Reporting Person are Barry Rosenstein and Gary Claar (the "Principals"). Any disclosures made herein with respect to persons or entities other than the Reporting Person and the Principals are made on information and belief after making inquiry to the appropriate party. By virtue of communications with the Issuer by representatives of Icahn Partners LP, Icahn Partners Master Fund LP and High River Limited Partnership (collectively, the "Icahn Group") and of the Reporting Person, and the determination to solicit proxies on behalf of Messrs. Rosenstein and Icahn as candidates for director of the Issuer at the Issuer's 2005 annual meeting of stockholders, as each is more fully described in Item 4, the Reporting Person may be deemed to have formed a "group" with the Icahn Parties within the meaning of Rule 13d-5(b)(1) under the Act. Accordingly, such persons may be deemed to beneficially own the Shares that are beneficially owned by the Reporting Person and the Icahn Group. The Reporting Person expressly disclaims beneficial ownership of securities held by any person or entity other than, to the extent of any pecuniary interest therein, the various accounts under the Reporting Person's management and control. The securities reported herein as being beneficially owned by the Reporting Person do not include any securities held by the Icahn Group or any other person or entity other than the various accounts under the Reporting Person's management and control. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Of the 4,378,000 Shares reported herein by the Reporting Person, 2,801,100 Shares were acquired at an aggregate purchase price of approximately $174,730,022.67, and the remaining 1,576,900 Shares represent options to acquire Shares, which options were acquired at an aggregate purchase price of approximately $7,240,922.47. The Shares beneficially owned by the Reporting Person were acquired with investment funds in accounts under management. ITEM 4. PURPOSE OF TRANSACTION. The Reporting Person originally acquired Shares for investment in the ordinary course of business. The Reporting Person believes that the Shares at current market prices are undervalued and represent an attractive investment opportunity. On or about February 23, 2004, representatives of the Reporting Person and the Icahn Group spoke with Luke R. Corbett, Chairman and Chief Executive Officer of the Issuer, and suggested various actions to be taken by the Issuer that they believe would enhance stockholder value. These suggestions were then memorialized in a letter to the Issuer on March 3, 2005, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. Pursuant to discussions among the Reporting Person and the Icahn Group, on March 2, 2005 the Icahn Group notified the Issuer that it proposed to nominate Barry Rosenstein and Carl Icahn for election to the Issuer's board of directors at the 2005 annual meeting of stockholders. Based on the March 2, 2005 deadline for stockholders to submit proposals, as set forth in the Issuer's bylaws, the Reporting Person and the Icahn Group believed it necessary to preserve their right to nominate Messrs. Rosenstein and Icahn as candidates, and to solicit proxies in favor of these nominees, should the Issuer not take what they believed to be satisfactory measures in pursuit of stockholder value. On March 10, 2005, the Reporting Person and the Icahn Group sent a letter to the Issuer regarding their proposal to increase stockholder value. A copy of the letter is attached hereto as Exhibit C and is incorporated herein by reference. ------------------------------ --------------------- CUSIP NO. 492386107 SCHEDULE 13D/A PAGE 4 OF 7 PAGES ------------------------------ --------------------- On or about March 10, 2005, the Issuer filed a complaint in the United States District Court for the Western District of Oklahoma naming as defendants the Reporting Person, the Principals and the Icahn Group, among others, which complaint was amended on or about March 14, 2005 (the "Amended Complaint"). In the Amended Complaint, the Issuer alleged, among other things (i) violation of reporting requirements of Section 13(d) of the Act and Rule 13d-1 thereunder, (ii) failure of the Icahn Group's notification of its intention to nominate Messrs. Rosenstein and Icahn as directors to comply with the Issuer's By-Law requirements and (iii) violation of Section 14(a) of the Act and Rule 14a-9 thereunder. The Amended Complaint seeks, among other things, a declaratory judgment that the proposed nominations of Messrs. Rosenstein and Icahn as directors are invalid. A copy of the Amended Complaint is attached hereto as Exhibit D. The Reporting Person has determined to solicit proxies on behalf of Messrs. Rosenstein and Icahn as candidates for director of the Issuer at the Issuer's 2005 annual meeting of stockholders. Accordingly, a preliminary proxy statement was filed by the Reporting Person, the Icahn Group and certain related parties on March 24, 2005. Neither the Reporting Person nor the Principals has any present plan or proposal that would relate to or result in any of the matters set forth in subparagraphs (a)-(j) of Item 4 of Schedule 13D except as set forth herein or such as would occur upon completion of any of the actions discussed above. The Reporting Person intends to review its investment in the Issuer on a continuing basis. Depending on various factors including, without limitation, the Issuer's financial position and strategic direction, the Issuer's response to the actions suggested by the Reporting Person and the Icahn Group, price levels of the Shares, conditions in the securities market and general economic and industry conditions, the Reporting Person may in the future take such actions with respect to its investment in the Issuer as it deems appropriate including, without limitation, purchasing additional Shares or selling some or all of its Shares, and, alone or with others, pursuing further discussions with the Issuer, other stockholders and third parties and/or otherwise changing its intention with respect to any and all matters referred to in Item 4. THE REPORTING PERSON, THE ICAHN GROUP AND CERTAIN RELATED PARTIES FILED A PRELIMINARY PROXY STATEMENT WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 2005 RELATING TO THEIR SOLICITATION OF PROXIES FROM THE STOCKHOLDERS OF KERR-MCGEE WITH RESPECT TO THE KERR-MCGEE 2005 ANNUAL MEETING OF STOCKHOLDERS. THE PRELIMINARY PROXY STATEMENT CONTAINS DETAILED INFORMATION REGARDING THE NAMES, AFFILIATION AND INTERESTS OF PERSONS WHO MAY BE DEEMED PARTICIPANTS IN THE SOLICITATION OF PROXIES OF KERR-MCGEE'S STOCKHOLDERS. THESE PARTIES INTEND TO FILE A DEFINITIVE PROXY STATEMENT AND OTHER RELEVANT DOCUMENTS. SECURITY HOLDERS ARE ADVISED TO READ THE PROXY STATEMENT AND OTHER RELEVANT DOCUMENTS BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. THE PROXY STATEMENT AND OTHER RELEVANT DOCUMENTS MAY BE OBTAINED WITHOUT CHARGE FROM THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE AT HTTP://WWW.SEC.GOV, AND THE DEFINITIVE PROXY STATEMENT AND A FORM OF PROXY WILL BE MAILED TO STOCKHOLDERS OF KERR-MCGEE CORPORATION. ITEM 5. INTEREST IN SECURITIES OF THE COMPANY. (a) The aggregate percentage of Shares reported to be beneficially owned by the Reporting Person is based upon 163,442,818 Shares outstanding, which is the total number of Shares outstanding as of March 11, 2005 as reported in the Issuer's preliminary proxy statement filed on March 18, 2005. As of the close of business on March 23, 2005, the Reporting Person may be deemed to beneficially own 4,378,000 Shares (including options to purchase up to 1,576,900 Shares), constituting approximately 2.7% of the Shares outstanding. Upon information and belief, the Icahn Group, as of the close of business on March 23, 2005, may be deemed to beneficially own 7,801,500 Shares. Accordingly, the 12,179,500 Shares that may be deemed to be beneficially owned in the aggregate by the Reporting Person and the Icahn Group as a "group," as of the close of business on March 23, 2005, constitutes approximately 7.5% of the Shares outstanding. The Reporting Person expressly disclaims beneficial ownership of securities held by the Icahn Group or any person or entity other than, to the extent of any pecuniary interest therein, the various accounts under the Reporting Person's management and control. (b) The Reporting Person has sole voting and dispositive powers over the 4,378,000 Shares reported herein (including, if such options are exercised, the 1,576,900 Shares underlying the options reported herein), which powers are exercised by the Principals. (c) The Reporting Person has effected no transactions in the Shares since its most recent filing on Schedule 13D. Option holdings of the Reporting Person are set forth below in Item 6. (d) No person (other than the Reporting Person) is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Shares. (e) Not applicable. ------------------------------ --------------------- CUSIP NO. 492386107 SCHEDULE 13D/A PAGE 5 OF 7 PAGES ------------------------------ --------------------- ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE COMPANY. As set forth below, the Reporting Person holds, as of the close of business on March 23, 2005, options to acquire 1,576,900 Shares, each of which was acquired on the open market: Shares Date of Underlying Exercise Price Purchase Price Purchase Options per Share ($) Expiration Date per Option ($) ------------------------------------------------------------------------------- 02/28/05 73,300 80.00 04/15/05 2.0558 03/01/05 100,000 80.00 04/15/05 2.7408 03/02/05 126,900 80.00 04/15/05 3.1693 03/17/05 352,200 80.00 04/15/05 2.8197 03/17/05 180,200 75.00 04/15/05 6.7099 03/17/05 356,600 75.00 04/15/05 6.0286 03/18/05 135,800 80.00 04/15/05 3.8348 03/18/05 81,900 75.00 04/15/05 7.0596 03/21/05 20,000 80.00 04/15/05 4.1500 03/21/05 50,000 75.00 04/15/05 7.4000 03/21/05 100,000 80.00 05/20/05 5.1000 As more fully described in Item 4, pursuant to discussions among the Reporting Person and the Icahn Group, on March 2, 2005 the Icahn Group notified the Issuer that it proposed to nominate Barry Rosenstein and Carl Icahn for election to the Issuer's board of directors at the 2005 annual meeting of stockholders. Representatives of the Reporting Person and the Icahn Group have suggested various actions to the Issuer that they believe would enhance stockholder value. On or about March 14, 2005, the Issuer filed the Amended Complaint alleging, among other things, (i) violation of reporting requirements of Section 13(d) of the Act and Rule 13d-1 thereunder, (ii) failure of the Icahn Group's notification of its intention to nominate Messrs. Rosenstein and Icahn as directors to comply with the Issuer's By-Law requirements and (iii) violation of Section 14(a) of the Act and Rule 14a-9 thereunder. The Amended Complaint seeks, among other things, a declaratory judgment that the proposed nominations of Messrs. Rosenstein and Icahn as directors are invalid. A copy of the Amended Complaint is attached hereto as Exhibit D. The Reporting Person has determined to solicit proxies on behalf of Messrs. Rosenstein and Icahn as candidates for director of the Issuer at the Issuer's 2005 annual meeting of stockholders. Accordingly, a preliminary proxy statement was filed by the Reporting Person, the Icahn Group and certain related parties on March 24, 2005. The Reporting Peson and the Icahn Group have agreed to each pay half of the costs related to the proxy solicitation, except that each will bear its own legal expenses. Except as otherwise set forth herein, the Reporting Person does not have any contract, arrangement, understanding or relationship with any person with respect to securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 1. Exhibit A - Letter to the Issuer dated March 3, 2005 (previously filed). 2. Exhibit B - [reserved] 3. Exhibit C - Letter to the Issuer dated March 10, 2005 (previously filed). 4. Exhibit D - Amended Complaint dated March 14, 2005. --------------------------- ------------------- CUSIP NO. 492386107 SCHEDULE 13D/A PAGE 6 OF 7 PAGES --------------------------- ------------------- SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 24, 2005 JANA PARTNERS LLC By: /s/ Barry S. Rosenstein --------------------------- Name: Barry S. Rosenstein Title: Managing Director By: /s/ Gary Claar --------------------------- Name: Gary Claar Title: Managing Director --------------------------- ------------------- CUSIP NO. 492386107 SCHEDULE 13D/A PAGE 7 OF 7 PAGES --------------------------- ------------------- EXHIBIT INDEX 1. Exhibit A - Letter to the Issuer dated March 3, 2005 (previously filed). 2. Exhibit B - [reserved]. 3. Exhibit C - Letter to the Issuer dated March 10, 2005 (previously filed). 4. Exhibit D - Amended Complaint dated March 14, 2005. EX-99 2 exhibit_d.txt EXHIBIT D, AMENDED COMPLAINT IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) KERR-MCGEE CORPORATION, ) ) Plaintiff, ) ) vs. ) ) (1) CARL C. ICAHN, (2) BARBERRY ) No. Civ-05-276-L CORPORATION, (3) HOPPER INVESTMENTS, LLC, ) (4) HIGH RIVER LIMITED PARTNERSHIP, (5) ) ICAHN PARTNERS MASTER FUND LP, (6) ICAHN ) OFFSHORE LP, (7) CCI OFFSHORE LLC, (8) ICAHN ) PARTNERS LP, (9) ICAHN ONSHORE LP, (10) CCI ) ONSHORE LLC, (11) JANA PARTNERS LLC, (12) ) BARRY ROSENSTEIN, and (13) GARY CLAAR, ) ) Defendants. ) ) AMENDED COMPLAINT Plaintiff Kerr-McGee Corporation ("Kerr-McGee" or "the Company"), by its undersigned counsel, alleges as follows for its Complaint against defendants Carl C. Icahn, Barberry Corporation, Hopper Investments, LLC, High River Limited Partnership, Icahn Partners Master Fund LP, Icahn Offshore LP, CCI Offshore LLC, Icahn Partners LP, Icahn Onshore LP, CCI Onshore LLC (collectively, "the Icahn Defendants"), and JANA Partners LLC, Barry Rosenstein, and Gary Claar (collectively, the "JANA Defendants", and together with the Icahn Defendants, "Defendants"). Kerr-McGee's allegations are based upon personal knowledge as to itself and its own acts and upon information and belief as to all other matters. NATURE OF THE ACTION 1. Kerr-McGee brings this action to enjoin and otherwise seek redress for a scheme by which Defendants appear illegally to have accumulated its stock and sought to wage an unfair proxy contest, through a series of misrepresentations and omissions designed to mislead the Company, its stockholders, and the investing public about their intentions. 2. Defendants are an apparent group of hedge funds and their principals who collectively control in excess of $10 billion in assets. Their purpose in acquiring a stake in Kerr-McGee is to attempt to force the Company into a partial liquidation in order to fund a $10 billion stock buyback which would jeopardize the Company's long-term prospects to the point that its publicly-traded debt would be downgraded to junk status. SEE, E.G., MOODY'S MAY CUT KERR-MCGEE'S DEBT RATINGS TO JUNK, Reuters, Mar. 4, 2005: Moody's Investors Service on Friday said it may cut the debt ratings for Kerr-McGee Corp. . . . to junk status, citing billionaire Carl Icahn's recent purchase of a stake in the Oklahoma City-based energy and chemical company. . . . Selling the assets that Icahn has suggested with no similar reduction of borrowings would essentially increase the company's debt burden, and would likely lead Moody's to cut Kerr-McGee's ratings to junk status, the rating agency said. SEE ALSO FITCH SAYS MAY CUT KERR-MCGEE DEBT RATING, Reuters, Mar. 7, 2005 (similar). 3. Defendant Carl Icahn ("Icahn"), who controls the Icahn Defendants, invented greenmail and is widely known for taking over and dismantling corporations. His past targets have included Marshall Field's, Phillips Petroleum, U.S. Steel, Nabisco, TWA, Texaco, and, at least until last week, Mylan Laboratories, Inc. 4. Defendants Barry Rosenstein ("Rosenstein") and Gary Claar ("Claar"), who control the JANA Defendants, are similarly aggressive. Rosenstein, who describes himself as a "born again corporate raider," and Claar have a history of accumulating stock in public companies in order to force extraordinary corporate transactions that will generate short-term profit, often at the expense of existing stockholders and long-term corporate prospects. 5. As described below, Defendants appear to have acted in violation of several federal statutes meant to protect publicly-traded companies and their investors, including Section 13(d) of the Securities Exchange Act of 1934. Under Section 13(d), investors acting as a group for the purpose of acquiring, holding, or voting a company's securities must disclose the group's existence and make plain their intentions once group members collectively acquire beneficial ownership of five percent or more of a company's stock. The purpose of this requirement is to provide the Company and its investors with adequate information regarding acquisitions that may result in a shift in corporate control. 6. The evidence strongly suggests that Defendants have been operating as such a group for purposes of Section 13(d). Beginning in or about the end of 2004, Defendants began rapidly acquiring millions of shares of Kerr-McGee stock. Collectively, they now control approximately 11.6 million shares of the Company worth nearly a billion dollars -- approximately 7.65 percent of the Company's common stock. But despite the evidence to the contrary, Defendants still claim in their Section 13(d) disclosures on Schedule 13D, to the market, the Company and its stockholders, that they are not acting as a group. 7. Defendants also made a flawed attempt to nominate themselves for election to the Company's Board of Directors. On the evening of March 1, 2005, three of the Icahn Defendants faxed to the Company a notice letter dated March 2 (the last day permitted under the Company's ByLaws) purporting to nominate Defendant Icahn and JANA's Rosenstein as directors (the "Proposed Notification"). The purpose of the ByLaws' advance notification requirement is to allow the Company sufficient time to evaluate and respond to all material information relating to any stockholder proposals presented at the Company's annual meeting. 8. The Proposed Notification, however, denied the existence of a group by failing to identify any parties other than the three nominating Icahn Defendants as beneficial owners on whose behalf the nomination is made. The Proposed Notification also failed to provide other information, required by the ByLaws for a nomination to be considered valid, concerning all securities of the Company purchased or sold within the past two years by the Nominees (whether owned of record or beneficially, directly or indirectly), the dates on which such securities were purchased or sold, and the amount purchased or sold on each such date. 9. The Company sought clarification of the Proposed Notification in a letter dated March 4, 2005 (the "Request for Clarification"). The Request for Clarification indicated that the Proposed Notification did not, on its face, appear to comply with all applicable requirements, and sought further information regarding the omissions in the Proposed Notification. In a letter dated March 10, 2005 (the "Nomination Reply Letter"), the three Icahn Defendants replied by providing the requested stock purchase information, but continued to deny the existence of any group association with the JANA Defendants -- without giving a satisfactory explanation of the strong evidence to the contrary, or providing sufficient evidence to prove otherwise. 2 10. This continued denial of a group, contrary to the evidence, continues to prejudice the ability of the Company and its stockholders to receive, evaluate, and respond in a timely manner to all material information concerning the Proposed Notification, and therefore to conduct a fair proxy contest. The Company has been left in an untenable position in relation to the nominations, and unable to honor them. 11. Further, based on the evidence that Defendants have formed a group, one or more Defendants appear to have violated their obligations under federal antitrust laws. At all relevant times, the Hart-Scott-Rodino Antitrust Improvements Act ("HSR Act") prohibited an acquiror from purchasing shares if as a result of the purchase it would hold shares with a value in excess of $50 million in a company, except as a passive investment, unless it filed a notification with the Federal Trade Commission and the Department of Justice and the applicable waiting period had expired or been earlier terminated. Accumulation of shares in coordination with other parties and/or to influence corporate strategy and management are, by definition, inconsistent with passive investment intent. 12. While the Icahn Defendants filed HSR notifications in late January, the JANA Defendants did not file an HSR notification until February 23, 2005 -- after they purchased millions of shares in Company stock worth well over $50 million and, together with the Icahn Defendants, jointly proposed to Company management specific transactions they wanted to see implemented. The failure of the JANA Defendants to file a timely HSR notification not only is a violation of federal law, but had the effect of enabling the JANA Defendants to purchase stock when they were prohibited from doing so, at prices significantly lower than they were after Defendant Icahn's activities became public. 13. Finally, since submission of the Proposed Notification, the Icahn and JANA Defendants have publicly disclosed their intent to solicit proxies in support of the election of Defendants Icahn and Rosenstein as directors of the Company. Like their Schedules 13D, however, the Icahn and JANA Defendants' proxy solicitation materials omit any mention of the existence of a group, thereby violating Section 14(a) of the Securities Exchange Act of 1934 and SEC Regulation 14a-9. 14. Defendants' apparent failure timely to disclose the existence of their group and the related information required under Sections 13(d) and 14(a) has harmed the Company and its stockholders by allowing Defendants improperly to accumulate a sizable position in the Company's stock and to withhold from the Company information it needs to respond appropriately to director nominations. 15. To ensure that Defendants do not benefit from their deception, Defendants should be required to file truthful Schedules 13D and Section 14(a) proxy solicitation materials disclosing their concealed group status and true intentions, and should be prohibited from voting any shares or proxies acquired prior thereto. Finally, the Company seeks a declaratory judgment that the putative nominations of Defendants Icahn and Rosenstein as directors are invalid. 3 JURISDICTION AND VENUE 16. This Court has jurisdiction over this action pursuant to Sections 13(d) and 27 of the Securities Exchange Act 1934 Act, 15 U.S.C. ss.ss. 78m(d) and 78aa, and pursuant to 28 U.S.C. ss.ss. 1331 and 1367, because the claims asserted arise under the securities laws of the United States or are so related to such claims that they form part of the same case or controversy. 17. Venue in this District is proper pursuant to 15 U.S.C. ss. 78aa because various acts or transactions constituting the offenses herein occurred within the Western District of Oklahoma. Among other things, Kerr-McGee is headquartered in this District. Moreover, Defendants' misleading proxy solicitation materials were filed in anticipation and for the purpose of their distribution to stockholders, including stockholders located within this District, in order to obtain proxies to be used at Kerr-McGee's annual stockholders meeting in this District. 18. There is personal jurisdiction over each of the Defendants pursuant to 15 U.S.C. ss. 78aa, which provides for nationwide service of process. PARTIES 19. Plaintiff Kerr-McGee is a Delaware corporation with its principal place of business at 123 Robert S. Kerr Avenue, Oklahoma City, Oklahoma 73102. 20. The Icahn Defendants consist of: a) Defendant CARL C. ICAHN, a corporate raider and resident of the State of New York. Icahn directly or indirectly owns or controls all of the remaining Icahn Defendants. b) Defendant BARBERRY CORPORATION, a Delaware corporation primarily engaged in the business of investing in securities. Defendant Icahn owns 100 percent of Barberry Corporation, which is the sole member of Defendant Hopper Investments, LLC. c) Defendant HOPPER INVESTMENTS, LLC, a Delaware limited liability company which acts as the general partner of High River Limited Partnership. Defendant Icahn controls Hopper Investments, LLC through his stake in Barberry Corporation. d) HIGH RIVER LIMITED PARTNERSHIP, a Delaware limited partnership primarily engaged in the business of investing in securities. Defendant Icahn controls High River Limited Partnership through Barberry Corporation and Hopper Investments, LLC. e) ICAHN PARTNERS MASTER FUND LP, a Cayman Islands limited partnership primarily engaged in the business of investing in securities; ICAHN OFFSHORE LP, a Delaware limited partnership primarily engaged in the business of acting as the general partner of Icahn Partners Master Fund LP; and CCI OFFSHORE LLC, a Delaware limited liability company primarily engaged in the business of acting as the general partner of Icahn Offshore LP. CCI Offshore LLC is owned and controlled by Defendant Icahn. 4 f) ICAHN PARTNERS LP, a Delaware limited partnership primarily engaged in the business of investing in securities; ICAHN ONSHORE LP, a Delaware limited partnership primarily engaged in the business of acting as the general partner of Icahn Partners LP; and CCI ONSHORE LLC, a Delaware limited liability company primarily engaged in the business of acting as the general partner of Icahn Onshore LP. CCI Onshore LLC is owned and controlled by Defendant Icahn. 21. The JANA Defendants consist of the following: a) Defendant BARRY ROSENSTEIN, a resident of California and a principal of Defendant JANA Partners LLC. b) Defendant GARY CLAAR, a resident of New York and a principal of Defendant JANA Partners LLC. c) Defendant JANA PARTNERS LLC, a Delaware limited liability company with offices in New York and San Francisco. JANA Partners LLC manages hedge funds with approximately $3 billion in assets. FACTS 22. Beginning in approximately December 2004, Defendants began accumulating stock in Kerr-McGee with the apparent goal of forcing the Company to (i) divest its chemical business, (ii) enter into a massive, unprecedented Volumetric Production Payment ("VPP") transaction to monetize future oil and gas production - I.E., selling the right to future revenues while retaining the associated production costs - and (iii) use the proceeds from the divestiture and the unprecedented VPP to fund a massive multi-billion dollar stock buyback program that would inflate the stock price in the short term but which foreseeably would cause lasting damage to Kerr-McGee and its long-term stockholders. 23. Defendants are intent on forcing management to take radical and irresponsible corporate actions irrespective of whether they serve the long-term interests of the Company, its stockholders, and employees. For example, Moody's, Standard & Poor's, and Fitch rating services all have announced that they may cut Kerr-McGee's debt ratings to junk status if the transactions proposed by Defendants are consummated, which could leave the Company in a precarious financial position and dramatically increase the Company's borrowing costs. 24. On March 8, 2005, the Board of Directors of Kerr-McGee announced that it had authorized management to proceed with its proposal to pursue either an initial public offering and spinoff or sale of its chemical business. In addition, the Board authorized the Company to proceed with a share repurchase program initially set at $1 billion. During the same meeting, with advice from its financial advisors, the Board carefully considered, but rejected, the Icahn/JANA group's more radical VPP proposal as irresponsible and not in the best interests of the Company, its stockholders, and creditors. As Luke Corbett, Kerr-McGee's CEO, stated in the press release announcing the Board's decisions: 5 Mr. Icahn's proposal of a VPP of this magnitude would extract the revenue from approximately 32% of our proved developed producing reserves, while leaving the company with 100% of the costs . ... This would not leave the company with sufficient capital to develop the more than 425 million BOE of reserves currently booked as proved but undeveloped. As a result, we believe the value of our remaining proved reserves would be greatly reduced. Additionally, this proposal would not allow for the timely exploitation of our large inventory of identified probable and possible resources and exploration of our high-potential prospect inventory. Finally, since none of the proceeds from Mr. Icahn's proposal would be applied to debt reduction, it would have very serious negative implications to our capital structure and jeopardize our credit rating. We have seen VPPs employed productively on a much more prudent scale, but Mr. Icahn's proposal is tantamount to mortgaging the company's future simply to provide Mr. Icahn and his partners with some quick cash. We believe Mr. Icahn's analysis is flawed, and we will make our case directly with our shareholders . ... 25. Defendants to this day refuse to disclose that they are acting in concert in an effort to force management to undertake the harmful program that they propose. Defendants' 13D filings, for example, seek to have it both ways, admitting that they might be deemed to be a group but disclaiming that they are. On March 4, 2005, the Company sought clarification of Defendants' group status in the Request for Clarification, but the Nomination Reply Letter continues to deny the existence of a group without offering a satisfactory explanation of the strong evidence to the contrary. 26. As set forth below, the evidence strongly suggests that Defendants agreed among themselves to work together toward a common goal, including: (i) contemporaneous rapid accumulation of Kerr-McGee stock with knowledge of one another's activity, (ii) participation in a coordinated campaign to pressure management to carry out the divestiture, the unprecedented VPP, and the massive stock buyback, (iii) agreement to advance a dissident slate of directors for the Kerr-McGee Board, and (iv) parallel and repeated violations of federal securities and antitrust laws. DEFENDANTS' COORDINATED ACCUMULATION OF COMPANY STOCK 27. Defendants engaged in a pattern of sudden, rapid, and contemporaneous purchases of Kerr-McGee stock. In the span of only eleven weeks starting in or about the middle of December 2004 and running through the beginning of March 2005, Defendants acquired approximately 11.6 million shares in the Company, or options to purchase such shares, as follows: o the Icahn Defendants acquired 7.1 million shares; and o the JANA Defendants acquired, or purchased options to acquire, 4.5 million shares. 6 28. As set forth below, Defendants not only made contemporaneous, large share purchases, but, on information and belief, assisted each other in accumulating stock, and concealed their group status to permit the JANA Defendants to accumulate a large position in Kerr-McGee stock in violation of the antitrust laws. Even absent discovery, there is material evidence that Defendants communicated with one another concerning their coordinated acquisitions. 29. On or about January 28, 2005, Defendants Icahn and Icahn Partners Master Fund LP each notified the Federal Trade Commission, the Department of Justice, and Kerr-McGee, pursuant to the HSR Act, 15 U.S.C. ss. 18(a), of their intention to purchase between $100 million and $500 million of the Company's stock -- in aggregate, up to $1 billion. HSR filings are required of investors like Defendants who intend to acquire more than $50 million of stock in a publicly-traded company for purposes other than passive investment (within the past week, this trigger point became $53.1 million). An HSR filing made in these circumstances is persuasive evidence that the acquiror is not a passive investor and has decided to seek to influence corporate management and strategy. 30. HSR filings trigger a waiting period during which the federal antitrust authorities evaluate the antitrust implications of a proposed share purchase. During the waiting period -- which lasts for 30 days or until such time as the authorities grant, as they did here for certain Icahn Defendants, "early termination" -- the party filing the notice is prohibited from purchasing any shares that would cause it to cross the $50 million threshold, but may make bona fide options purchases. 31. On February 14, 2005, in order, on information and belief, to induce Defendant Icahn to participate in a common scheme with respect to Kerr-McGee, the JANA Defendants granted the Icahn Defendants an option (the "February 14 Option") to purchase 250,000 shares. That same day, the JANA Defendants purchased exactly 250,000 shares of Company stock at a price greater than the sum of the option exercise price plus the price paid by the Icahn Defendants for the option - thus subsidizing a bargain purchase by the Icahn Defendants, who would and did acquire the shares from the JANA Defendants by exercising the option following termination of the Icahn Defendants' waiting periods. 32. The February 14 Option was economically irrational for the JANA Defendants, unless the JANA Defendants were acting in concert with Defendant Icahn to pursue a common purpose with benefits for JANA that would exceed its loss on the option transaction. At this point, at the very latest, the JANA Defendants indisputably were not mere passive investors. DEFENDANTS' COMMON PLAN TO FORCE A DIVESTITURE, UNPRECEDENTED VPP, AND MASSIVE STOCK BUYBACK 33. The existence of Defendants' group also is evidenced by their coordinated efforts to advance their common objective of forcing a divestiture of the Company's chemical unit, an unprecedented VPP, and a massive stock buyback. 7 34. On February 23, after Kerr-McGee announced that it was considering selling its chemical business, Defendants Icahn and Barry Rosenstein jointly called Kerr-McGee's CEO, Luke Corbett, in Oklahoma City to press the Company to follow through on the divestiture, to enter into an unprecedented VPP, and to use the proceeds of both transactions for a massive buyback of stock. 35. Then, on March 1, the Icahn Defendants purported to nominate Defendants Icahn and Rosenstein for seats on the Kerr-McGee Board of Directors. That was followed on March 3 by a joint letter addressed to Mr. Corbett and filed with regulators in a public filing, in which Defendants Icahn and Rosenstein explained that the purpose of the nomination was to ensure that the Company takes steps to "maximize[e] shareholder value" -- a euphemism for advancing their plan to divest the chemical business, enter into an unprecedented VPP, and implement a massive, multi-billion dollar stock buyback. 36. The March 3 letter explicitly urges the Company to: "(1) Sell the chemical business, (2) Enter into a [VPP] to monetize forward production ..., and (3) Utilize the proceeds from the chemical business sale and the [VPP] . . . to buy back shares." The letter was accompanied by an analysis of the proposed transactions. The letter estimated that the divestiture and the unprecedented VPP would generate more than $10 billion that could be used to buy back shares. 37. Also on March 3, Defendants Icahn and Rosenstein called Mr. Corbett in Oklahoma City, again promoting their proposed transactions. Among other things, Defendant Icahn stated that the current value of energy is high, and that the Company therefore must consider promptly selling forward its reserves in a VPP transaction. Mr. Corbett responded, in summary, that he understood the transactions being proposed by the Icahn and JANA Defendants, and that these transactions, as well as other transactions, would be considered carefully by the Board, with advice from the Company's financial advisors, at the Board's next meeting. Mr. Corbett mentioned that, among other things, the effect of the proposed unprecedented VPP on the Company's capital structure would be considered. Defendant Icahn stated that the effect on the Company's capital structure does not matter. 38. The sheer magnitude of the VPP proposed by Defendants is astonishing. Defendants seek to force the Company to liquidate approximately $8.75 billion of reserves, representing one-third of its total proved reserves -- and to use this cash solely to repurchase stock, including the stock purchased by Defendants at prices that they artificially depressed by failing to make the disclosures required by federal law. Moreover, use of this cash for a stock buyback would mean that none of the sale proceeds would cover the future costs of producing this substantial volume of oil and gas, to the financial detriment of the Company, its long-term stockholders, and its employees. 8 DEFENDANTS' VIOLATION OF SECTION 13(D) 39. Section 13(d) of the Securities Exchange Act of 1934 and regulations promulgated thereunder require any group of investors acquiring five percent or more of the shares of a class of registered equity securities to file with the Securities and Exchange Commission a statement on Schedule 13D disclosing, among other things, their group status, the number of shares they beneficially own, the source of funds used to purchase the shares, and the purpose of their share purchases. Congress enacted Section 13(d) to ensure that stockholders would have full information concerning large purchases of stock, as well as potential changes in corporate control, and would have the opportunity to value their shares accordingly. 40. As detailed above, the evidence strongly suggests that Defendants have been acting as a group at all relevant times. In their Section 13(d) filings on Schedule 13D, however, Defendants disclaim their group status. Critically, Defendants' denials have impeded the Company's ability to consider appropriate responses, and to prepare for its upcoming annual stockholders meeting. 41. Similarly, during the Icahn Defendants' HSR waiting periods (from the filing date on January 28 to the first early termination on February 18), and before their intentions were made public, the JANA Defendants acquired approximately 1.8 million shares of Kerr-McGee stock and options for 149,000 shares. On February 22, the first trading day after the Icahn Defendants' HSR filings became public, the stock price shot up by more than five percent, generating millions of dollars in instant profit for the JANA Defendants. Thus, the JANA Defendants received a substantial pay-back for having agreed to sell the Icahn Defendants the February 14 Option at a below-market price. 42. To the same end, on information and belief, the JANA Defendants improperly delayed making their own HSR filing. Although the JANA Defendants exceeded the $50 million trigger for filing an HSR notification on or about January 24, 2005, they delayed filing one until February 23, 2005. Passive investors are not required to make HSR filings, but, apparently in league with the Icahn Defendants and similarly active, the JANA Defendants were not passive investors in Kerr-McGee. Between January 24, 2005 - the date on which the JANA Defendants appear to have crossed the $50 million threshold - and February 23, 2005, the date on which they filed their HSR notification, the JANA Defendants improperly acquired up to approximately 2.2 million shares of Kerr-McGee stock. DEFENDANTS' DEFECTIVE NOMINATION OF DIRECTORS 43. Article III, Section 10(A) of the Company's Amended and Restated ByLaws govern the procedure for stockholder nominations of directors. Section 10(A)(2) provides that, to be timely, a stockholder's notice of nominations must be delivered to the Company not less than seventy days nor more than ninety days prior to the first anniversary of the preceding year's annual meeting. The Company's 2004 annual meeting was held on May 11, 2004. The period during which stockholders could deliver a notice of nominations for the 2005 annual meeting, therefore, was February 10 to March 2, 2005. 9 44. On the evening of March 1, 2005, Defendants Icahn Partners LP, Icahn Partners Master Fund LP, and High River Limited Partnership faxed to the Company in Oklahoma City their Proposed Notification. The Proposed Notification purported to provide the notice requisite to nominate Defendants Icahn and Rosenstein to be elected as directors of the Company at its 2005 annual stockholders meeting. 45. Article III, Section 10(A)(2) of the Company's ByLaws also lists the information that every notice of nomination must contain in order to be valid. These requirements include: a) disclosure of the number of shares owned beneficially and of record by each stockholder and each beneficial owner on whose behalf the nomination is made; and b) disclosure, as to each nominee, of all information relating to the nominee that is required in solicitations of proxies for election of directors or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934. 46. The Proposed Notification failed to provide two key disclosures required by the Company's ByLaws. FIRST, it failed to identify the Defendants' 13(d) group as the beneficial owner on whose behalf the nominations were made, and to list all shares beneficially owned by each member of the group. SECOND, it failed to state, with respect to all securities of the Company purchased or sold within the past two years by the Nominees (whether owned of record or beneficially, directly or indirectly), the dates on which such securities were purchased or sold and the amount purchased or sold on each such date. This disclosure is required by Item 5(b)(1)(vi) of Regulation 14A when soliciting for contested director seats. 47. On March 4, 2005, the Company sent the Request for Clarification to Defendants. The Request for Clarification indicated that the Proposed Notification may not comply with all applicable requirements, and sought explanations for the Proposed Notification's omission of the required information identified above. In their Nomination Reply Letter, the three Icahn Defendants provided the requested stock purchase information but continued to deny the existence of any group -- without giving a satisfactory explanation of the strong evidence to the contrary, or providing sufficient evidence to prove otherwise. 10 48. Defendants' denial of a group has prejudiced and continues to impede the Company's and its stockholders' ability to evaluate and respond to the proposed nominations of Defendants Icahn and Rosenstein. The Company has been left in an untenable position, and unable to honor the nominations. VIOLATIONS OF SECTION 14(A) 49. Since announcing their purported nomination of Defendants Icahn and Rosenstein for seats on the Kerr-McGee Board of Directors, Defendants have furthered their illegal scheme by disseminating false and misleading proxy solicitation materials in support of the nomination, in violation of Section 14(a) of the Securities Exchange Act. 50. On or about March 3, 2005, Defendants filed proxy solicitation materials with the SEC that, among other things, fail to disclose that they are acting with one another as a Section 13(d) group for the specific purpose of generating short term profits, and without regard to the Company's long-term fiscal health. 51. In addition, Defendants' proxy solicitation materials include a materially false and misleading analysis of the purported benefits of their plan to divest the Company's chemical business, enter into an unprecedented VPP, and use the proceeds to fund a $10.4 billion share buyback. Among other misrepresentations and omissions, this analysis (i) fails to take any account of the fact that the rating agencies may cut Kerr-McGee's debt rating to junk status if the transactions proposed by Defendants are consummated and (ii) contains a misleading prediction of Kerr-McGee's future market value following the contemplated transactions. 52. The proxy solicitation materials also misleadingly state that the nomination of Defendants Icahn and Rosenstein is intended to "maximiz[e] shareholder value." In fact, on information and belief, the purpose of the nomination is to attempt to force management to sell assets to finance a $10.4 billion stock buyback program to generate short-term profits, but which foreseeably would cause lasting damage to Kerr-McGee and its long-term stockholders. 53. Defendants' denial of a group, which is inconsistent with the known facts, and their other misleading statements, have impeded the Company's ability to present fair choices to its stockholders. The Company and its stockholders are entitled to honest proxy solicitations, and a fair and fully-informed election of directors. A fair and fully-informed election is virtually impossible if Defendants' defective Proposed Notification is allowed to stand. 11 FIRST CLAIM VIOLATION OF REPORTING REQUIREMENTS OF SECTION 13(D) OF THE 1934 ACT AND RULE 13D-1 54. Kerr-McGee repeats and realleges each of the preceding allegations of the Complaint as if fully set forth herein. 55. Section 13(d) of the Securities Exchange Act of 1934, 15 U.S.C. ss. 78m(d), and rules promulgated thereunder, requires any group of stockholders which directly or indirectly acquires beneficial ownership of any class of registered equity securities to send to the issuer and file with the Securities and Exchange Commission a statement disclosing, INTER ALIA, the identity of each group member, their group status, the number of shares beneficially owned by the group, the source of the funds used to purchase the shares, and the purpose of the share purchases. 56. As described above, Defendants have violated their disclosure obligations under Section 13(d), including by filing misleading Schedules 13D which falsely disclaim that they are acting with each other as a group, and mischaracterize their purpose in acquiring shares. 57. By reason of the foregoing, Defendants have violated Section 13(d), 15 U.S.C. ss. 78m(d), and Rule 13d-1 ET SEQ. promulgated thereunder, 17 C.F.R. ss. 240.13d-1 ET SEQ. 58. Unless Defendants are enjoined, Kerr-McGee and its stockholders will be irreparably harmed. There is no adequate remedy at law. SECOND CLAIM FAILURE OF THE PROPOSED NOTIFICATION TO COMPLY WITH THE COMPANY'S BYLAWS 59. Kerr-McGee repeats and realleges each of the preceding allegations of the Complaint as if fully set forth herein. 60. As provided in 28 U.S.C. ss. 2201, in a case of actual controversy within its jurisdiction, any court of the United States may declare the rights and other legal relations of any interested party seeking such declaration. 61. Section 109 of the Delaware General Corporation Law provides that a corporation's bylaws may contain any provision, not inconsistent with law or with the certificate of incorporation, relating to the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders, directors, officers, or employees. 12 62. Article III, Section 10(A) of the Company's Amended and Restated ByLaws do not contain any provision inconsistent with law or with the certificate of incorporation. 63. The Proposed Notification fails to comply with Article III, Section 10(A) of the Company's ByLaws. 64. By reason of the foregoing, the Proposed Notification is invalid, and Kerr-McGee is entitled to a declaration to that effect. THIRD CLAIM VIOLATION OF SECTION 14(A) OF THE EXCHANGE ACT AND SEC RULE 14A-9 65. Kerr-McGee repeats and realleges each of the preceding allegations of the Complaint as if fully set forth herein. 66. Section 14(a) of the Securities Exchange Act of 1934 provides, INTER ALIA, that it shall be unlawful for any person, by the use of the mails or by any means or instrumentality of interstate commerce or facility of a national securities exchange to solicit any proxy in violation of SEC rules or permit his name to be used in connection with such a solicitation. Rule 14a-9 provides that no "solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading." 67. Defendants have violated Section 14(a) and Rule 14a-9 by filing false and misleading proxy solicitation materials. As set forth above, the proxy solicitations filed with the SEC by Defendants contain numerous statements that are false and misleading with respect to material facts or omit to state material facts necessary to make the statements therein not false and misleading. Among other misrepresentations and omissions, the proxy solicitations filed with the SEC by Defendants: o fail to disclose that they are acting together as a Section 13(d) group; o falsely suggest that Defendants' purpose in seeking to elect Defendants Icahn and Rosenstein to the Board of Directors is to "maximize[] shareholder value," when Defendants' true purpose is to generate short-term profits for hedge funds even at the risk of impairing the Company's long-term financial condition; and o contain a false and misleading analysis of the purported benefits of Defendants' proposed $10.4 billion stock buyback plan which misleadingly omits any mention of the fact that rating agencies Moody's, Standard & Poor's, and Fitch have threatened to reduce the Company's debt rating to junk status if the plan is implemented. 13 68. By reason of the foregoing, Defendants have violated Section 14(a), 15 U.S.C. ss. 78n(a), and Rule 14a-9 promulgated thereunder, 17 C.F.R. ss. 240.14a-9. 69. Unless Defendants are enjoined, Kerr-McGee and its stockholders will be irreparably harmed. There is no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, plaintiff Kerr-McGee respectfully requests that this Court enter a judgment: a) declaring the Proposed Notification invalid; b) ordering Defendants to file accurate disclosures in accordance with the requirements of Sections 13(d) and 14(a) of the Securities Exchange Act of 1934 and the regulations promulgated thereunder; c) enjoining Defendants from voting any shares acquired prior to the filing of true and accurate Schedules 13D; d) ordering Defendants to return any proxies received prior to the filing of true and accurate disclosures under Section 14(a) and the regulations promulgated thereunder; e) enjoining Defendants from undertaking any action -- including (without limitation) soliciting proxies, exercising stockholder voting rights, or purchasing additional shares of Kerr-McGee -- designed to change or affect control of Kerr-McGee until 30 days following the filing of such true and accurate disclosures pursuant to Sections 13(d) and 14(a); and 14 f) granting such other and further relief as this Court may deem just and proper. Dated: March 14, 2005 S/CHARLES B. GOODWIN ------------------------------ Charles B. Goodwin, OBA #17637 CROWE & DUNLEVY, P.C. 20 North Broadway, Suite 1800 Oklahoma City, Oklahoma 73102 (405) 235-7700 (405) 239-6651 fax goodwinc@crowedunlevy.com ATTORNEY FOR PLAINTIFF KERR-MCGEE CORPORATION OF COUNSEL: Peter J. Nickles COVINGTON & BURLING 1201 Pennsylvania Avenue Washington, DC 20004 (202) 662-2000 (202) 662-6291 fax pnickles@cov.com David W. Haller Jonathan M. Sperling Mark P. Gimbel COVINGTON & BURLING 1330 Avenue of the Americas New York, New York 10019 (212) 841-1000 (212) 841-1010 fax dhaller@cov.com Thomas L. Cubbage III (OBA No. 20133) Kerr-McGee Shared Services Company LLC P.O. Box 25861 Oklahoma City, Oklahoma 73125 (405) 270-1313 (405) 270-4101 fax tcubbage@kmg.com