0000928475-05-000073.txt : 20120618 0000928475-05-000073.hdr.sgml : 20120618 20050404155810 ACCESSION NUMBER: 0000928475-05-000073 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050404 DATE AS OF CHANGE: 20050404 GROUP MEMBERS: KERR MCGEE 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: 05729862 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: ICAHN CARL C ET AL CENTRAL INDEX KEY: 0000921669 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP STREET 2: 767 FIFTH AVE #4700 CITY: NEW YORK STATE: NY ZIP: 10153 BUSINESS PHONE: 2127024300 MAIL ADDRESS: STREET 1: C/O ICAHN ASSOCIATES CORP STREET 2: 767 FIFTH AVE #4700 CITY: NEW YORK STATE: NY ZIP: 10153 SC 13D/A 1 schedule13d44.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 3)* 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) April 4, 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)/X/ 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 1,636,820 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 1,636,820 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,636,820 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.00% 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)/X/ 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 1,636,820 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,636,820 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,636,820 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.00% 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)/X/ 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 1,636,820 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 1,636,820 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,636,820 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.00% 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)/X/ 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 3,341,077 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 3,341,077 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,341,077 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.04% 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)/X/ 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 3,341,077 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 3,341,077 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,341,077 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.04% 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)/X/ 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 3,341,077 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 3,341,077 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,341,077 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.04% 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)/X/ 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 3,206,203 8 SHARED VOTING POWER 0 9 SOLE DISPOSITIVE POWER 3,206,203 10 SHARED DISPOSITIVE POWER 0 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,206,203 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.96% 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 O (a)// (b)/X/ 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 3,206,203 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 3,206,203 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,206,203 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.96% 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)/X/ 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 3,206,203 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 3,206,203 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,206,203 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.96% 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)/X/ 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 8,184,100 9 SOLE DISPOSITIVE POWER 0 10 SHARED DISPOSITIVE POWER 8,184,100 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,184,100 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* /X/ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.01% 14 TYPE OF REPORTING PERSON* IN SCHEDULE 13D Item 1. Security and Issuer The Schedule 13D filed on March 3, 2005 by the Reporting Persons (as defined herein), relating to the common stock, $1.00 par value (the "Shares"), of Kerr-McGee Corporation, a Delaware corporation (the "Issuer"), as amended by Amendment No. 1 filed on March 11, 2005 and Amendment No. 2 filed on March 24, 2005, is hereby amended and restated as set forth below by this Amendment No. 3 to Schedule 13D. 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 Item 2 is hereby amended and restated to read, in its entirety, as follows: 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 and the JANA Parties (as hereinafter defined) may be deemed to be a "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Act"). However, neither the fact of this filing nor anything contained herein shall be deemed to be an admission by any of the Reporting Persons that they are the beneficial owners of Shares owned by the JANA Parties. Item 3. Source and Amount of Funds or Other Consideration Item 3 is hereby amended and restated to read, in its entirety, as follows: The aggregate purchase price of the 8,184,100 Shares purchased by High River, Icahn Master and Icahn Partners, collectively, was $592,607,464.70 (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 Item 4 is hereby amended and restated to read, in its entirety, as follows: 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. On March 10, 2005, the Reporting Persons and JANA Partners LLC sent a letter to the Issuer (the "Response Letter"), responding to the Issuer's announcement of the proposed sale of its chemicals business and share repurchase program. A copy of the Response Letter is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Response Letter are qualified in their entirety by reference to the Response Letter. On March 10, 2005, the Issuer filed a lawsuit in federal court in Oklahoma against the Reporting Persons, the JANA Parties and certain of their respective affiliates. A copy of the amended complaint filed by the Issuer (the "Complaint") is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Complaint are qualified in their entirety by reference to the Complaint. On March 17, 2005, the Reporting Persons sent a letter to the Issuer (the "Demand Letter"), demanding, pursuant to Delaware law, the right to inspect certain books and records (including stockholder list materials) of the Issuer. A copy of the Demand Letter is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Demand Letter are qualified in their entirety by reference to the Demand Letter. On March 24, 2005, the Reporting Persons, the JANA Parties and certain related parties filed a preliminary proxy statement with the SEC relating to the solicitation of proxies on behalf of Carl C. Icahn and Barry S. Rosenstein as candidates for director at the Issuer's 2005 annual meeting of stockholders. On March 24, 2005, the Reporting Persons and the JANA Parties agreed to each pay half of all costs related to the solicitation of proxies (including expenditures for public relations and financial advisers, proxy solicitors, advertising, printing, transportation and related expenses), except that the Reporting Persons and the JANA Parties will each bear their own legal expenses. On April 4 2005, the Reporting Persons and JANA Partners LLC sent a letter to the Board of Directors of the Issuer (the "Board Letter"). A copy of the Board Letter is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Board Letter are qualified in their entirety by reference to the Board Letter. On April 4, 2005, the Reporting Persons filed an answer to the Complaint (the "Answer"). A copy of the Answer is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Answer are qualified in their entirety by reference to the Answer. As a result of the foregoing, the Reporting Persons and the JANA Parties may be deemed to be members of a "group" within the meaning of Section 13(d)(3) of the Act. However, neither the fact of this filing nor anything contained herein shall be deemed to be an admission by any of the Reporting Persons that they are the beneficial owners of Shares owned by the JANA Parties. THE REPORTING PERSONS, THE JANA PARTIES 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 CORPORATION WITH RESPECT TO THE 2005 ANNUAL MEETING OF KERR-MCGEE'S STOCKHOLDERS. THE PRELIMINARY PROXY STATEMENT CONTAINS DETAILED INFORMATION REGARDING THE NAMES, AFFILIATIONS 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 WITH THE SECURITIES AND EXCHANGE COMMISSION. 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 Issuer Item 5 is hereby amended and restated to read, in its entirety, as follows: (a) The Reporting Persons may be deemed to beneficially own, in the aggregate, 8,184,100 Shares, representing approximately 5.01% of the Issuer's outstanding Shares (based upon the 163,442,818 Shares stated to be outstanding as of March 11, 2005 by the Issuer in the Issuer's definitive proxy statement on Schedule 14A, filed with the Securities and Exchange Commission on April 1, 2005). (b) High River has sole voting power and sole dispositive power with regard to 1,636,820 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 3,341,077 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 3,206,203 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 group may be deemed to beneficially own Shares owned by the Reporting Persons and the JANA Parties. Upon information and belief, the JANA Parties, as of the close of business on April 1, 2005, may be deemed to beneficially own 4,378,000 Shares in the aggregate. Accordingly, the 12,562,100 Shares that may be deemed to be beneficially owned in the aggregate by the group constitutes approximately 7.7% of the Shares outstanding. However, neither the fact of this filing nor anything contained herein shall be deemed to be an admission by any of the Reporting Persons that they are the beneficial owners of Shares owned by the JANA Parties. (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 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/10/05 55,000 77.0961 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/11/05 10,000 77.5100 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/16/05 60,000 78.7567 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/23/05 14,100 77.9401 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/28/05 14,000 77.9163 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/29/05 22,520 76.7957 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- High River 03/30/05 40,000 76.5262 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- 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 Master 03/10/05 112,200 77.0961 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Master 03/11/05 20,400 77.5100 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Master 03/16/05 122,400 78.7567 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Master 03/23/05 28,764 77.9401 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Master 03/28/05 28,560 77.9163 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Master 03/29/05 45,941 76.7957 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Master 03/30/05 81,600 76.5262 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- 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 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/10/05 107,800 77.0961 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/11/05 19,600 77.5100 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/16/05 117,600 78.7567 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/23/05 27,636 77.9401 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/28/05 27,440 77.9163 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/29/05 44,139 76.7957 ---------------- -------------- ------------------- ------------------- ---------------- -------------- ------------------- ------------------- Icahn Partners 03/30/05 78,400 76.5262 ---------------- -------------- ------------------- -------------------
* 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 Item 6 is hereby amended and restated to read, in its entirety, as follows: 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. On March 10, 2005, the Reporting Persons and JANA Partners LLC sent to the Issuer the Response Letter more fully described in Item 4. A copy of the Response Letter is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Response Letter are qualified in their entirety by reference to the Response Letter. On March 10, 2005, the Issuer filed a lawsuit in federal court in Oklahoma against the Reporting Persons, the JANA Parties and certain of their respective affiliates. A copy of the Complaint is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Complaint are qualified in their entirety by reference to the Complaint. On March 17, 2005, the Reporting Persons sent to the Issuer the Demand Letter more fully described in Item 4. A copy of the Demand Letter is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Demand Letter are qualified in their entirety by reference to the Demand Letter. On March 24, 2005, the Reporting Persons, the JANA Parties and certain related parties filed a preliminary proxy statement with the SEC relating to the solicitation of proxies on behalf of Carl C. Icahn and Barry S. Rosenstein as candidates for director at the Issuer's 2005 annual meeting of stockholders. On March 24, 2005, the Reporting Persons and the JANA Parties agreed to each pay half of all costs related to the solicitation of proxies (including expenditures for public relations and financial advisers, proxy solicitors, advertising, printing, transportation and related expenses), except that the Reporting Persons and the JANA Parties will each bear their own legal expenses. On April 4 2005, the Reporting Persons and JANA Partners LLC sent the Board Letter to the Board of Directors of the Issuer. A copy of the Board Letter is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Board Letter are qualified in their entirety by reference to the Board Letter. On April 4, 2005, the Reproting Persons filed the Answer. A copy of the Answer is filed herewith as an exhibit and incorporated herein by reference, and any descriptions herein of the Answer are qualified in their entirety by reference to the Answer. As a result of the foregoing, the Reporting Persons and the JANA Parties may be deemed to be members of a "group" within the meaning of Section 13(d)(3) of the Act. However, neither the fact of this filing nor anything contained herein shall be deemed to be an admission by any of the Reporting Persons that they are the beneficial owners of Shares owned by the JANA Parties. 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 Item 7 is hereby amended and restated to read, in its entirety, as follows: 1 Joint Filing Agreement of the Reporting Persons (previously filed). 2 Stock Option Agreement among the Reporting Persons and JANA Master Fund Ltd (previously filed). 3 Notification Letter from the Reporting Persons to the Issuer (previously filed). 4 Proposed Transaction Letter from the Reporting Persons and JANA Partners LLC to the Issuer (previously filed). 5 Letter from the Reporting Persons and JANA Partners LLC to the Issuer (previously filed). 6 Complaint filed by the Issuer against the Reporting Persons and the JANA Parties (previously filed). 7 Letter from the Reporting Persons to the Issuer (previously filed). 8 Letter from the Reporting Persons and JANA Partners LLC to the Board of Directors of the Issuer (filed herewith). 9. Answer filed by the Reporting Persons (filed herewith). 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: April 4, 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 Amendment #3 to 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 Amendment #3 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. EX-99 2 kerrmcgeeltr44.txt ICAHN PARTNERS LP ICAHN PARTNERS MASTER FUND LP HIGH RIVER LIMITED PARTNERSHIP JANA PARTNERS LLC April 4, 2005 VIA FEDERAL EXPRESS AND FACSIMILE Board of Directors Kerr-McGee Corporation 123 Robert S. Kerr Avenue Oklahoma City, Oklahoma 73102 Ladies and Gentlemen: We are appalled at the blatant attempt by Kerr-McGee to thwart our ability to present to its stockholders a clear alternative in the election of directors at the upcoming annual meeting of stockholders. As you know, we have a vision for Kerr-McGee that is quite different from the current Board's view of what is good for stockholder values. Our views were set forth in our letter to you of March 10, 2005. Other than the sale of the chemicals division, as to which you concur with us, you have to date rejected our proposed VPP sale and the repurchase of common stock with the proceeds thereof at prices above $90 per share. Our proposed nomination of Carl C. Icahn and Barry S. Rosenstein for election to the Board at the annual meeting has been met by you with litigation which seeks to prevent Kerr-McGee stockholders from having the opportunity to choose whether our views should be heard at the Board level on a continuing basis and whether we should play a part in making decisions about the future of Kerr-McGee. Rather than allowing stockholders to vote on the relative merits of our respective views, you have sought to disenfranchise the stockholders of Kerr-McGee in connection with the election of directors. Surely you are aware that, if you are unsuccessful in court, your stockholders will not look favorably on your stance against free and open elections. Even if you are somehow successful in court in quashing our nominations, we will urge every Kerr McGee stockholder who agrees with our views to persuade the Board that it is making a grave mistake in its assault on corporate democracy. We believe that your tactics will not be lost on your stockholders and that, therefore, your undemocratic strategy will backfire in either event. We strongly suggest that you allow your stockholders the opportunity to determine whether our views or the Board's views comport with their views about the future of Kerr-McGee. They can only do so in a real election contest, not a single ballot election. Very truly yours, CARL C. ICAHN BARRY S. ROSENSTEIN [04.04.05 Letter to Kerr-McGee Board from Icahn and Rosenstein] CARL C. ICAHN, BARRY S. ROSENSTEIN 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 CORPORATION WITH RESPECT TO THE 2005 ANNUAL MEETING OF KERR-MCGEE'S STOCKHOLDERS. THE PRELIMINARY PROXY STATEMENT CONTAINS DETAILED INFORMATION REGARDING THE NAMES, AFFILIATIONS 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 WITH THE SECURITIES AND EXCHANGE COMMISSION. 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. EX-99 3 kerrmcgeecomplaint.txt IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) KERR-MCGEE CORPORATION, ) ) Plaintiff, ) vs. ) ) (1) CARL C. ICAHN, (2) BARBERRY CORPORATION, (3) HOPPER ) INVESTMENTS, LLC, (4) HIGH RIVER LIMITED PARTNERSHIP, (5) ICAHN) PARTNERS MASTER FUND LP, (6) ICAHN OFFSHORE LP, (7 CCI OFFSHORE)No.Civ-05-276-L 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. ) ) ) ) ) THE ICAHN DEFENDANTS' ANSWER TO PLAINTIFF'S AMENDED COMPLAINT Defendants 1-10, 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, and CCI Onshore LLC (collectively, the "Icahn Defendants"), by and through their undersigned counsel, hereby respond to plaintiff, Kerr-McGee Corporation's ("KMG"), amended complaint dated March 14, 2005 (the "Amended Complaint") as follows: 1. The Icahn Defendants deny the allegations set forth in paragraph 1 of the Amended Complaint, except admit that KMG purports to seek injunctive relief. 2. The documents referred to by paragraph 2 of the Amended Complaint speak for themselves and the Icahn Defendants deny any characterization of those documents that is inconsistent with their express terms, and deny the remaining allegations set forth in paragraph 2 of the Amended Complaint. 3. The Icahn Defendants deny the allegations set forth in paragraph 3 of the Amended Complaint, except admit that Mr. Icahn controls the Icahn Defendants. 4. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 4 of the Amended Complaint. 5. The allegations in paragraph 5 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 5 of the Amended Complaint. 6. The allegations in paragraph 6 of the Amended Complaint set forth a legal conclusion to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 6 of the Amended Complaint, except admit that certain Icahn Defendants are shareholders of KMG. 7. The allegations in paragraph 7 of the Amended Complaint set forth a legal conclusion to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 7 of the Amended Complaint, except admit delivering a letter dated March 2, 2005, to KMG, and respectfully refer the Court to that document for its contents. 8. The allegations in paragraph 8 of the Amended Complaint set forth a legal conclusion to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 8 of the Amended Complaint. 9. The documents referred to by paragraph 9 of the Amended Complaint speak for themselves and the Icahn Defendants deny any characterization of those documents that is inconsistent with their express terms, and deny the remaining allegations set forth in paragraph 9 of the Amended Complaint. 10. The Icahn Defendants deny the allegations set forth in paragraph 10 of the Amended Complaint. 11. The allegations in paragraph 11 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 11. 12. The allegations in paragraph 12 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 12 of the Amended Complaint. 13. The allegations in paragraph 13 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 13 of the Amended Complaint, except admit they have disclosed their intention to solicit proxies in support of the election of Carl C. Icahn and Barry Rosenstein as directors of KMG. 14. The Icahn Defendants deny the allegations set forth in paragraph 14 of the Amended Complaint. 15. The Icahn Defendants deny the allegations set forth in paragraph 15 of the Amended Complaint, except admit that KMG purports to seek a declaratory judgment. 16. The allegations in paragraph 16 of the Amended Complaint set forth legal conclusions to which no response is required. 17. The allegations in paragraph 17 of the Amended Complaint set forth legal conclusions to which no response is required. 18. The allegations in paragraph 18 of the Amended Complaint set forth legal conclusions to which no response is required. 19. On information and belief, the Icahn Defendants admit the allegations contained in paragraph 19 of the Amended Complaint. 20. The Icahn Defendants deny the allegations set forth in paragraph 20, except admit that: (a) Carl C. Icahn is a resident of New York and controls directly and indirectly the remaining Icahn Defendants; (b) Barberry Corporation is a Delaware corporation primarily engaged in the business of investing in securities, 100 percent owned by Carl C. Icahn and the sole member of Hopper Investments, LLC; (c) Hopper Investments, LLC is a limited liability company primarily engaged in the business of serving as the general partner of High River Limited Partnership; (d) High River Limited Partnership is a Delaware corporation primarily engaged in the business of investing in securities; (e) Icahn Partners Master Fund LP is a Cayman Islands limited partnership primarily engaged in the business of investing in securities, Icahn Offshore LP is a Delaware limited partnership primarily engaged in the business of acting as a general partner of Icahn Masters Fund L.P., and CCI Offshore LLC is a Delaware limited liability company primarily engaged in the business of acting as general partner to Icahn Offshore LP and is 100 percent owned by Carl C. Icahn; and (f) Icahn Partners L.P. is a Delaware limited partnership primarily engaged in the business of investing in securities, Icahn Onshore L.P. is a Delaware limited partnership primarily engaged in the business of serving as the general partner of Icahn Partners L.P., and CCI Onshore LLC is a Delaware limited liability company primarily engaged in the business of serving as the general partner of Icahn Partners L.P. and is 100 percent owned by Carl C. Icahn. 21. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 21 of the Amended Complaint. 22. The Icahn Defendants deny the allegations set forth in paragraph 22 of the Amended Complaint, except admit acquiring common stock of KMG and subsequently attempting to maximize shareholder value. 23. The documents referred to by paragraph 23 of the Amended Complaint speak for themselves and the Icahn Defendants deny any characterization of those documents that is inconsistent with their contents, and deny the remaining allegations set forth in paragraph 23 of the Amended Complaint. 24. The document referred to by paragraph 24 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its express terms. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the remaining allegations set forth in paragraph 24 of the Amended Complaint. 25. The documents referred to by paragraph 25 of the Amended Complaint speak for themselves and the Icahn Defendants deny any characterization of those documents that is inconsistent with their express terms, and deny the remaining allegations set forth in paragraph 25 of the Amended Complaint. 26.The Icahn Defendants deny the allegations set forth in paragraph 26 of the Amended Complaint. 27.The Icahn Defendants deny the allegations set forth in paragraph 27 of the Amended Complaint, except admit that certain Icahn Defendants acquired shares of KMG. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations regarding the JANA Defendants set forth in paragraph 27 of the Amended Complaint. 28. The allegations in paragraph 28 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 28 of the Amended Complaint. 29. The allegations in paragraph 29 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 29 of the Amended Complaint, except admit filing a notification pursuant to the Hart-Scott-Rodino Antitrust Improvements Act on January 28, 2005. 30. The allegations in paragraph 30 of the Amended Complaint set forth a legal conclusion to which no response is required. To the extent a response is required, the Icahn Defendants admit that certain Icahn Defendants were granted early termination. 31. The Icahn Defendants deny the allegations set forth in paragraph 31 of the Amended Complaint, except deny knowledge or information sufficient to form a belief as to the truth of the allegations regarding the JANA Defendants set forth in paragraph 31 of the Amended Complaint, and admit that certain of the Icahn Defendants purchased an option to buy 250,000 shares from JANA Partners LLC. 32. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 32 of the Amended Complaint. 33. The allegations in paragraph 33 of the Amended Complaint set forth a legal conclusion to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 33 of the Amended Complaint. 34. The Icahn Defendants deny the allegations set forth in paragraph 34 of the Amended Complaint, except admit Mr. Icahn and Mr. Rosenstein participated in a telephone call with KMG's Chief Executive Officer Luke Corbett on February 23, 2005, during which they discussed ways to maximize shareholder value, including selling KMG's chemical business, a VPP and a stock buyback. 35. The documents referred to by paragraph 35 of the Amended Complaint speak for themselves and the Icahn Defendants deny any characterization of those documents that is inconsistent with their express terms, and deny the remaining allegations set forth in paragraph 35 of the Amended Complaint. 36. The document referred to by paragraph 36 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its express terms. 37. The Icahn Defendants deny the allegations set forth in paragraph 37 of the Amended Complaint, except admit that Mr. Icahn and Mr. Rosenstein participated in a telephone call with KMG's Chief Executive Officer Luke Corbett on February 23, 2005, during which they discussed current energy prices, as well as Mr. Icahn's and Mr. Rosenstein's proposal regarding KMG. 38. The Icahn Defendants deny the allegations set forth in paragraph 38 of the Amended Complaint. 39. The allegations in paragraph 39 of the Amended Complaint set forth legal conclusions to which no response is required. 40. The document referred to by paragraph 40 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its contents. The allegations in paragraph 40 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 40 of the Amended Complaint. 41. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 41 of the Amended Complaint. 42. The Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 42 of the Amended Complaint. 43. The document referred to in paragraph 43 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its contents. The allegations in paragraph 43 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 43 of the Amended Complaint. 44. The document referred to by paragraph 44 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its express terms. 45. The document referred to by paragraph 45 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its contents. The allegations in paragraph 45 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 45 of the Amended Complaint. 46. The allegations in paragraph 46 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 46 of the Amended Complaint. 47. The documents referred to by paragraph 47 of the Amended Complaint speak for themselves and the Icahn Defendants deny any characterization of those documents that is inconsistent with their express terms. 48. The Icahn Defendants deny the allegations set forth in paragraph 48 of the Amended Complaint. 49. The allegations in paragraph 49 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 49 of the Amended Complaint. 50. The document referred to by paragraph 50 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its contents. The allegations in paragraph 50 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 50 of the Amended Complaint. 51. The document referred to by paragraph 51 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its contents. The allegations in paragraph 51 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 51 of the Amended Complaint. 52. The document referred to by paragraph 52 of the Amended Complaint speaks for itself and the Icahn Defendants deny any characterization of that document that is inconsistent with its contents. The allegations in paragraph 52 of the Amended Complaint set forth legal conclusions to which no response is required. To the extent a response is required, the Icahn Defendants deny the allegations set forth in paragraph 52 of the Amended Complaint. 53. The Icahn Defendants deny the allegations set forth in paragraph 53 of the Amended Complaint except that KMG and its stockholders are entitled to honest proxy solicitations and a fair and fully informed election of directors. FIRST CLAIM Violation of Reporting Requirements of Section 13(d) of the 1934 Act and Rule 13d-1 54. The Icahn Defendants repeat and re-allege their responses to paragraphs 1 through 53 of the Amended Complaint as if fully set forth herein. 55. The allegations in paragraph 55 of the Amended Complaint set forth legal conclusions to which no response is required. 56.The Icahn Defendants deny the allegations set forth in paragraph 56 of the Amended Complaint. 57.The Icahn Defendants deny the allegations set forth in paragraph 57 of the Amended Complaint. 58.The Icahn Defendants deny the allegations set forth in paragraph 58 of the Amended Complaint. SECOND CLAIM Failure of the Proposed Notification to Comply with the Company's ByLaws 59. The Icahn Defendants repeat and re-allege their responses to paragraphs 1 through 58 of the Amended Complaint as if fully set forth herein. 60. The allegations in paragraph 60 of the Amended Complaint set forth legal conclusions to which no response is required. 61. The allegations in paragraph 61 of the Amended Complaint set forth legal conclusions to which no response is required. 62. The allegations in paragraph 62 of the Amended Complaint set forth legal conclusions to which no response is required. 63.The Icahn Defendants deny the allegations set forth in paragraph 63 of the Amended Complaint. 64.The Icahn Defendants deny the allegations set forth in paragraph 64 of the Amended Complaint. THIRD CLAIM Violation of Section 14(a) of the Exchange Act and SEC Rule 14a-9 65. The Icahn Defendants repeat and re-allege their responses to paragraphs 1 through 64 of the Amended Complaint as if fully set forth herein. 66. The allegations in paragraph 66 of the Amended Complaint set forth legal conclusions to which no response is required. 67.The Icahn Defendants deny the allegations set forth in paragraph 67 of the Amended Complaint. 68.The Icahn Defendants deny the allegations set forth in paragraph 68 of the Amended Complaint. 69.The Icahn Defendants deny the allegations set forth in paragraph 69 of the Amended Complaint. FIRST DEFENSE 70. The Amended Complaint fails to state a claim upon which relief can be granted. SECOND DEFENSE 71. None of the alleged omissions and/or misrepresentations of fact alleged in the Amended Complaint were or are material within the meaning of the federal securities laws and/or KMG's Amended and Restated Bylaws. THIRD DEFENSE 72. KMG has not sustained any legally cognizable injuries. FOURTH DEFENSE 73. The injuries allegedly sustained by KMG were not directly or proximately caused by any alleged misrepresentation and/or omission alleged in the Amended Complaint. FIFTH DEFENSE 76. KMG's claims for equitable relief are barred by the doctrine of unclean hands. SIXTH DEFENSE 75. One or more of the claims set forth in the Amended Complaint are barred by the doctrines of waiver or estoppel. WHEREFORE, the Icahn Defendants respectfully request judgment dismissing the Amended Complaint in its entirety, together with attorney's fees, costs and disbursements incurred in defending this action, and such further relief as the Court may deem just and proper. Dated: April 1, 2005 /s/Timothy D. DeGiusti__________________________ ------------------------------------------------ Timothy D. DeGiusti, OBA No. 13215 Don G. Holladay, OBA No. 4294 HOLLADAY CHILTON & DeGIUSTI, PLLC 204 North Robinson, Suite 1550 Oklahoma City, OK 73102 (405) 236-2343 telephone (405) 236-2349 facsimile E-mail: tdegiusti@hcdattorneys.com Attorneys for Defendants 1-10: 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; and CCI Onshore, LLC. Of Counsel: Theodore Altman Douglas Rappaport DLA PIPER RUDNICK GRAY CARY US LLP 1251 Avenue of the Americas New York, New York 10020 (212) 835-6060 telephone (212) 835-6001 facsimile E-mail: theodore.altman@dlapiper.com douglas.rappaport@dlapiper.com CERTIFICATE OF SERVICE I hereby certify that on this 1st day of April, 2005, I electronically transmitted the attached document to the Clerk of Court using the ECF System for filing and transmittal of Defendants' Answer to Plaintiff's Amended Complaint to the following ECF registrants: Harry A. Woods and Charles B. Goodwin, of the law firm Crowe & Dunlevy, and mailed a copy of the attached document to any attorney of record who is not an ECF participant. /s/Timothy D. DeGiusti__________________________