<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 26, 1999
REGISTRATION NO. 333-67447
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 4
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
KERR-MCGEE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
DELAWARE 1311 73-0311467
(State or Other Jurisdiction (Primary Standard (I.R.S. Employer Identification
of Incorporation or Industrial Classification Code Number)
Organization) Number)
</TABLE>
KERR-MCGEE CENTER
OKLAHOMA CITY, OKLAHOMA 73125
(405) 270-1313
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
RUSSELL G. HORNER, JR., ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
KERR-MCGEE CORPORATION
KERR-MCGEE CENTER
OKLAHOMA CITY, OKLAHOMA 73125
(405) 270-1313
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
Copies to:
<TABLE>
<S> <C>
DAVID B. CHAPNICK ROBERT A. PROFUSEK
SIMPSON THACHER & BARTLETT JONES, DAY, REAVIS & POGUE
425 LEXINGTON AVENUE 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10022
</TABLE>
Approximate date of commencement of proposed sale to the public:
AS SOON AS POSSIBLE AFTER THIS REGISTRATION STATEMENT IS DECLARED EFFECTIVE.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Except to the extent indicated below, there is no charter provision,
by-law, contract, arrangement or statute under which any director or officer of
Kerr-McGee Corporation is insured or indemnified in any manner against any
liability which he or she may incur in his or her capacity as such.
Article Seventh of the certificate of incorporation of Kerr-McGee contains
a provision, permitted by Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), limiting the personal monetary liability of directors for
breach of fiduciary duty as a director. The DGCL and the certificate of
incorporation of the combined company provide that such provision does not
eliminate or limit liability,
(1) for any breach of the director's duty of loyalty to Kerr-McGee or
its stockholders,
(2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(3) for unlawful payments of dividends or unlawful stock repurchases
or redemptions as provided in Section 174 of the DGCL, or
(4) for any transaction from which the director derived an improper
benefit.
Section 145 of the DGCL permits indemnification against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with actions, suits or proceedings in which an
officer, director, employee or agent is a party by reason of the fact that he is
or was such a director, officer, employee or agent, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
However, in connection with actions by or in the right of the corporation, such
indemnification is not permitted if such person has been adjudged liable to the
corporation unless the court determines that, under all of the circumstances,
such person is nonetheless fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. Article Seventh of the Combined Company
Charter provides that Kerr-McGee shall indemnify such persons to the fullest
extent permitted by the DGCL.
Section 145 also permits a corporation to purchase and maintain insurance
on behalf of its directors and officers against any liability which may be
asserted against, or incurred by, such persons in their capacities as directors
or officers of the corporation whether or not Kerr-McGee would have the power to
indemnify such persons against such liabilities under the provisions of such
sections. Kerr-McGee has purchased such insurance.
Section 145 further provides that the statutory provision is not exclusive
of any other right to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
independent directors, or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office.
Article XXII of the by-laws of Kerr-McGee contains provisions regarding
indemnification which parallel those described above.
II-1
<PAGE> 3
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following Exhibits are filed herewith unless otherwise indicated:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
2 -- Agreement and Plan of Merger, dated as of October 14,
1998, between Kerr-McGee and Oryx (attached as Appendix A
to the Joint Proxy Statement/ Prospectus contained in
this Registration Statement).
4.1 -- Form of Amended and Restated Certificate of Incorporation
of Kerr-McGee (attached as Exhibit 1.5 to Appendix A to
the Joint Proxy Statement/Prospectus contained in this
Registration Statement).
4.2 -- Form of Amended and Restated By-Laws of Kerr-McGee
(attached as Exhibit 1.6 to Appendix A to the Joint Proxy
Statement/Prospectus contained in this Registration
Statement).
4.3 -- Rights Agreement, dated as of July 9, 1996, between
Kerr-McGee and The Liberty National Bank & Trust Co. of
Oklahoma City, filed as Exhibit 1 to Kerr-McGee's Current
Report on Form 8-K, filed July 9, 1996, and incorporated
herein by reference, and First Amendment to Rights
Agreement by and between Kerr-McGee and Bank One Trust
Company (as successor by merger to The Liberty National
Bank & Trust Co. of Oklahoma City), dated October 14,
1998, filed as Exhibit 4.1 to Kerr-McGee's Current Report
on Form 8-K, filed October 20, 1998, and incorporated
herein by reference.
4.4 -- Indenture dated as of June 1, 1976, between Kerr-McGee
and Citibank, N.A., as trustee, relating to Kerr-McGee's
8 1/2% Sinking Fund Debentures due June 1, 2006, filed as
Exhibit 2 to Kerr-McGee's Form S-7, effective June 10,
1976, Registration No. 2-53878, and incorporated herein
by reference.
4.5 -- Indenture dated as of November 1, 1981, between
Kerr-McGee and United States Trust Company of New York,
as trustee, relating to Kerr-McGee's 7% Debentures due
November 1, 2011 filed as Exhibit 4 to Kerr-McGee's Form
S-16, effective November 16, 1981, Registration No.
2-772987, and incorporated herein by reference.
4.6 -- Indenture dated as of August 1, 1982 filed as Exhibit 4
to Kerr-McGee's Form S-3, effective August 27, 1982,
Registration Statement No. 2-78952, and incorporated
herein by reference, and its first supplement dated May
7, 1996, between Kerr-McGee and Citibank, N.A., as
trustee, relating to Kerr-McGee's 6.625% notes due
October 15, 2007, and 7.125% debentures due October 15,
2027, filed as Exhibit 4.4 to Kerr-McGee's Annual Report
on Form 10-K for the year ended December 31, 1997, and
incorporated herein by reference.
4.7 -- $325 million Credit Agreement dated as of December 4,
1996, between Kerr-McGee and the lending parties thereto,
providing for a five-year revolving credit facility with
a bullet maturity on the fifth anniversary of the
execution of the Credit Agreement, filed as Exhibit 4.5
to Kerr-McGee's Annual Report on Form 10-K for the year
ended December 31, 1997, and incorporated herein by
reference.
4.8 -- Indenture dated as of September 15, 1988, by and between
The Bank of New York and Oryx, filed as Exhibit 4.1 to
Oryx's Amendment No. 2 on Form S-3, filed on June 29,
1990, Registration No. 33-33361, and incorporated herein
by reference.
4.9 -- First Supplemental Indenture by and between The Bank of
New York and Oryx, filed as Exhibit 4.2 to Oryx's
Amendment No. 2 on Form S-3, filed on June 29, 1990,
Registration No. 33-33361, and incorporated herein by
reference.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
4.10 -- Oryx's $500,000,000 Revolving Credit and Competitive Bid
Facility, dated as of October 17, 1997, filed as Exhibit
10 to Oryx's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997, and incorporated herein
by reference.
4.11 -- Indenture dated as of May 15, 1989 by and between Oryx
and Texas Commerce Bank National Association, as trustee,
relating to Oryx's 7 1/2% Convertible Subordinated
Debentures due May 15, 2014, filed as Exhibit 4.1 to
Oryx's Form S-1, effective May 5, 1989, Registration No.
33-28494, and incorporated herein by reference.
5 -- Opinion of Simpson Thacher & Bartlett regarding the
legality of the shares of Kerr-McGee common stock to be
registered under this Registration Statement.
8.1 -- Opinion of Simpson Thacher & Bartlett regarding certain
United States federal income tax consequences of the
merger.
8.2 -- Opinion of Jones, Day, Reavis & Pogue regarding certain
United States federal income tax consequences of the
merger.
10.1 -- Employment Letter Agreement of Robert L. Keiser with
Kerr-McGee dated as of October 14, 1998.++
10.2 -- Form of Employment Letter Agreements of David A. Hager,
Patricia L. Horsfall and William H. Kaufman with
Kerr-McGee dated as of October 16, 1998.++
10.3 -- Form of Employment Letter Agreements of Marion E. Anglin,
Jerry W. Box, Steven J. Flowers, Frances G. Heartwell,
William C. Lemmer, Edward W. Moneypenny and Robert L.
Thompson with Kerr-McGee dated as of October 16, 1998.++
23.1 -- Consent of Arthur Andersen LLP.++
23.2 -- Consent of PricewaterhouseCoopers LLP.++
23.3 -- Consents of Simpson Thacher & Bartlett (included in the
opinions filed as Exhibits 5 and 8.1 to this Registration
Statement).
23.4 -- Consent of Jones, Day, Reavis & Pogue (included in the
opinion filed as Exhibit 8.2 to this Registration
Statement).
23.5 -- Consent of Lehman Brothers Inc.++
23.6 -- Consent of Goldman, Sachs & Co.++
24 -- Powers of Attorney of the Directors of Kerr-McGee.++
99.1 -- Form of Proxy for holders of Kerr-McGee common stock.++
99.2 -- Form of Proxy for holders of Oryx common stock.++
</TABLE>
- -------------------------
++ Previously filed.
(b) Financial Data Schedule.
Schedules are omitted because they either are not required or are not
applicable or because equivalent information has been included in the financial
statements, the notes thereto or elsewhere herein.
II-3
<PAGE> 5
ITEM 22. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the 'Calculation of
Registration Fee' table in the effective registration statement.
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering;
(4) that, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
(5) that prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by this form with
respect to reofferings by persons who may be deemed underwriters, in
addition to the information called for by the other Items of this form;
(6) that every prospectus (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Securities Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to this registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof;
II-4
<PAGE> 6
(7) insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue;
(8) to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this
form, within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request; and
(9) to supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in this registration statement
when it became effective.
II-5
<PAGE> 7
Pursuant to the requirements of the Securities Act of 1933, as amended,
Kerr-McGee Corporation has duly caused this Amendment No. 4 to the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Oklahoma City, Oklahoma, on January 26, 1999.
KERR-McGEE CORPORATION
By: /s/ LUKE R. CORBETT
----------------------------------
Name: Luke R. Corbett
Title: Chairman of the Board
and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 4 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ LUKE R. CORBETT Director, Chairman of the January 26, 1999
- ----------------------------------------------------- Board and Chief Executive
Luke R. Corbett Officer (Principal Executive
Officer)
/s/ JOHN C. LINEHAN Executive Vice President and January 26, 1999
- ----------------------------------------------------- Chief Financial Officer
John C. Linehan (Principal Financial Officer)
/s/ DEBORAH A. KITCHENS Vice President, Controller January 26, 1999
- ----------------------------------------------------- and Chief Accounting Officer
Deborah A. Kitchens (Principal Accounting
Officer)
* Director January 26, 1999
- -----------------------------------------------------
Tom J. McDaniel
* Director January 26, 1999
- -----------------------------------------------------
Dr. Martin C. Jischke
* Director January 26, 1999
- -----------------------------------------------------
William C. Morris
* Director January 26, 1999
- -----------------------------------------------------
John J. Murphy
* Director January 26, 1999
- -----------------------------------------------------
Leroy C. Richie
* Director January 26, 1999
- -----------------------------------------------------
Richard M. Rompala
* Director January 26, 1999
- -----------------------------------------------------
Matthew R. Simmons
</TABLE>
II-6
<PAGE> 8
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
* Director January 26, 1999
- -----------------------------------------------------
Farah M. Walters
/s/ LUKE R. CORBETT Attorney-in-Fact January 26, 1999
- -----------------------------------------------------
Luke R. Corbett
</TABLE>
II-7
<PAGE> 9
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
2 -- Agreement and Plan of Merger, dated as of October 14,
1998, between Kerr-McGee and Oryx (attached as Appendix A
to the Joint Proxy Statement/ Prospectus contained in
this Registration Statement).
4.1 -- Form of Amended and Restated Certificate of Incorporation
of Kerr-McGee (attached as Exhibit 1.5 to Appendix A to
the Joint Proxy Statement/Prospectus contained in this
Registration Statement).
4.2 -- Form of Amended and Restated By-Laws of Kerr-McGee
(attached as Exhibit 1.6 to Appendix A to the Joint Proxy
Statement/Prospectus contained in this Registration
Statement).
4.3 -- Rights Agreement, dated as of July 9, 1996, between
Kerr-McGee and The Liberty National Bank & Trust Co. of
Oklahoma City, filed as Exhibit 1 to Kerr-McGee's Current
Report on Form 8-K, filed July 9, 1996, and incorporated
herein by reference, and First Amendment to Rights
Agreement by and between Kerr-McGee and Bank One Trust
Company (as successor by merger to The Liberty National
Bank & Trust Co. of Oklahoma City), dated October 14,
1998, filed as Exhibit 4.1 to Kerr-McGee's Current Report
on Form 8-K, filed October 20, 1998, and incorporated
herein by reference.
4.4 -- Indenture dated as of June 1, 1976, between Kerr-McGee
and Citibank, N.A., as trustee, relating to Kerr-McGee's
8 1/2% Sinking Fund Debentures due June 1, 2006, filed as
Exhibit 2 to Kerr-McGee's Form S-7, effective June 10,
1976, Registration No. 2-53878, and incorporated herein
by reference.
4.5 -- Indenture dated as of November 1, 1981, between
Kerr-McGee and United States Trust Company of New York,
as trustee, relating to Kerr-McGee's 7% Debentures due
November 1, 2011 filed as Exhibit 4 to Kerr-McGee's Form
S-16, effective November 16, 1981, Registration No.
2-772987, and incorporated herein by reference.
4.6 -- Indenture dated as of August 1, 1982 filed as Exhibit 4
to Kerr-McGee's Form S-3, effective August 27, 1982,
Registration Statement No. 2-78952, and incorporated
herein by reference, and its first supplement dated May
7, 1996, between Kerr-McGee and Citibank, N.A., as
trustee, relating to Kerr-McGee's 6.625% notes due
October 15, 2007, and 7.125% debentures due October 15,
2027, filed as Exhibit 4.4 to Kerr-McGee's Annual Report
on Form 10-K for the year ended December 31, 1997, and
incorporated herein by reference.
4.7 -- $325 million Credit Agreement dated as of December 4,
1996, between Kerr-McGee and the lending parties thereto,
providing for a five-year revolving credit facility with
a bullet maturity on the fifth anniversary of the
execution of the Credit Agreement, filed as Exhibit 4.5
to Kerr-McGee's Annual Report on Form 10-K for the year
ended December 31, 1997, and incorporated herein by
reference.
4.8 -- Indenture dated as of September 15, 1988, by and between
The Bank of New York and Oryx, filed as Exhibit 4.1 to
Oryx's Amendment No. 2 on Form S-3, filed on June 29,
1990, Registration No. 33-33361, and incorporated herein
by reference.
4.9 -- First Supplemental Indenture by and between The Bank of
New York and Oryx, filed as Exhibit 4.2 to Oryx's
Amendment No. 2 on Form S-3, filed on June 29, 1990,
Registration No. 33-33361, and incorporated herein by
reference.
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
4.10 -- Oryx's $500,000,000 Revolving Credit and Competitive Bid
Facility, dated as of October 17, 1997, filed as Exhibit
10 to Oryx's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997, and incorporated herein
by reference.
4.11 -- Indenture dated as of May 15, 1989 by and between Oryx
and Texas Commerce Bank National Association, as trustee,
relating to Oryx's 7 1/2% Convertible Subordinated
Debentures due May 15, 2014, filed as Exhibit 4.1 to
Oryx's Form S-1, effective May 5, 1989, Registration No.
33-28494, and incorporated herein by reference.
5 -- Opinion of Simpson Thacher & Bartlett regarding the
legality of the shares of Kerr-McGee common stock to be
registered under this Registration Statement.
8.1 -- Opinion of Simpson Thacher & Bartlett regarding certain
United States federal income tax consequences of the
merger.
8.2 -- Opinion of Jones, Day, Reavis & Pogue regarding certain
United States federal income tax consequences of the
merger.
10.1 -- Employment Letter Agreement of Robert L. Keiser with
Kerr-McGee dated as of October 14, 1998.++
10.2 -- Form of Employment Letter Agreements of David A. Hager,
Patricia L. Horsfall and William H. Kaufman with
Kerr-McGee dated as of October 16, 1998.++
10.3 -- Form of Employment Letter Agreements of Marion E. Anglin,
Jerry W. Box, Steven J. Flowers, Frances G. Heartwell,
William C. Lemmer, Edward W. Moneypenny and Robert L.
Thompson with Kerr-McGee dated as of October 16, 1998.++
23.1 -- Consent of Arthur Andersen LLP.++
23.2 -- Consent of PricewaterhouseCoopers LLP.++
23.3 -- Consents of Simpson Thacher & Bartlett (included in the
opinions filed as Exhibits 5 and 8.1 to this Registration
Statement).
23.4 -- Consent of Jones, Day, Reavis & Pogue (included in the
opinion filed as Exhibit 8.2 to this Registration
Statement).
23.5 -- Consent of Lehman Brothers Inc.++
23.6 -- Consent of Goldman, Sachs & Co.++
24 -- Powers of Attorney of the Directors of Kerr-McGee++
99.1 -- Form of Proxy for holders of Kerr-McGee common stock.++
99.2 -- Form of Proxy for holders of Oryx common stock.++
</TABLE>
- -------------------------
++ Previously filed.
<PAGE> 1
EXHIBIT 5
LEGAL OPINION OF SIMPSON THACHER & BARTLETT
[Letterhead of Simpson Thacher & Bartlett]
January 26, 1999
Kerr-McGee Corporation
Kerr-McGee Center
Oklahoma City, Oklahoma 73102
Ladies and Gentlemen:
We have acted as counsel to Kerr-McGee Corporation, a Delaware corporation
(the "Company"), in connection with the merger of Oryx Energy Company ("Oryx")
with and into the Company (the "Merger") pursuant to the Agreement and Plan of
Merger dated as of October 14, 1998 (the "Merger Agreement") by and between the
Company and Oryx. This opinion letter is furnished to you in connection with a
registration statement on Form S-4 (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of up to 43,175,436 shares of common
stock, $0.01 par value per share (the "Shares"), of the Company to be issued in
the Merger in accordance with the terms of the Merger Agreement.
We have examined, and have relied as to matters of fact upon, an executed
copy of the Merger Agreement, the Registration Statement, and originals, or
duplicates or certified or conformed copies, of such records, agreements,
instruments and other documents and such certificates of public officials and of
officers and representatives of the Company, and have made such other and
further investigations, as we have deemed relevant and necessary in connection
with the opinions expressed herein.
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as duplicates or certified or conformed copies, and the
authenticity of the originals of such latter documents.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion that the Shares have been duly authorized
and, when issued in the Merger in accordance with the terms of the Merger
Agreement, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion letter as an exhibit to the
Registration Statement. We also consent to the reference to this firm appearing
in the Registration Statement under the caption "Legal Matters."
We are members of the Bar of the State of New York, and we do not express
any opinion herein concerning any law other than the Delaware General
Corporation Law.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE> 1
EXHIBIT 8.1
TAX OPINION OF SIMPSON THACHER & BARTLETT
[Letterhead of Simpson Thacher & Bartlett]
January 26, 1999
Re: Agreement and Plan of Merger
dated as of October 14, 1998
between Kerr-McGee Corporation
and Oryx Energy Company
Kerr-McGee Corporation
Kerr-McGee Center
Oklahoma City, Oklahoma 73125
Ladies and Gentlemen:
You have requested our opinion with respect to certain United States
federal income tax consequences of the proposed transaction in which Oryx Energy
Company ("Oryx") will be merged (the "Merger") with and into Kerr-McGee
Corporation ("Kerr-McGee"). All capitalized terms used but not defined herein
have the meanings ascribed to them in the Agreement and Plan of Merger, dated as
of October 14, 1998, between Kerr-McGee and Oryx (the "Merger Agreement"). This
opinion is being delivered as an exhibit to the registration statement on Form
S-4 (the "Registration Statement") initially filed by Kerr-McGee with the
Securities and Exchange Commission on November 17, 1998 and containing the Joint
Proxy Statement/Prospectus of Kerr-McGee and Oryx relating to the Merger (the
"Joint Proxy Statement/Prospectus").
In acting as counsel to Kerr-McGee in connection with the Merger, we have,
in preparing our opinion, as hereinafter set forth, participated in the
preparation of the Merger Agreement and the preparation and filing of the Joint
Proxy Statement/Prospectus.
You have requested that we render the opinions set forth below. In
rendering such opinions, we have assumed with your consent that the Merger will
be effected in accordance with the Merger Agreement and that the representations
made by Kerr-McGee and Oryx in letters provided to us and to Jones, Day, Reavis
& Pogue, counsel to Oryx, are true, correct and complete as of the date hereof
and will be true, correct and complete as of the Effective Time. We have also
assumed that the representations and warranties contained in the Merger
Agreement, and statements as to factual matters contained in the Registration
Statement, are true, correct and complete as of the date hereof, and that the
parties have complied with and, if applicable, will continue to comply with, the
covenants contained in the Merger Agreement. We have examined the documents
referred to above and the originals, or copies certified or otherwise identified
to our satisfaction, of such records, documents, certificates or other
instruments and made such other inquiries as in our judgment are necessary or
appropriate to enable us to render the opinions set forth below. We have not,
however, undertaken any independent investigation of any factual matter set
forth in any of the foregoing.
If the Merger is effected on a factual basis different from that
contemplated in the Merger Agreement and the Joint Proxy Statement/Prospectus
the opinions expressed herein may be inapplicable. Our opinions are based on the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations,
administrative interpretations, and judicial precedents as of the date hereof.
If there is any subsequent change in the applicable law or regulations, or if
there are subsequently any new applicable administrative or judicial
interpretations of the law or regulations, the opinions expressed herein may
become inapplicable.
Subject to the foregoing and to the qualifications and limitations set
forth herein, and assuming that the Merger will be consummated in accordance
with the Merger Agreement (and exhibits thereto) and
<PAGE> 2
the Delaware General Corporation Law and as described in the Joint Proxy
Statement/Prospectus, we are of the opinion that for federal income tax
purposes:
(1) the Merger will be treated for federal income tax purposes as a
reorganization within the meaning of Section 368(a) of the Code;
(2) Kerr-McGee and Oryx will each be a party to such reorganization
within the meaning of Section 368(b) of the Code;
(3) no gain or loss will be recognized by the stockholders of Oryx
upon the reclassification of their shares as a result of the Reverse Split
or with respect to the shares of Oryx Common Stock exchanged for Kerr-McGee
Common Stock in the Merger (except for cash received in lieu of fractional
shares);
(4) no gain or loss will be recognized by Kerr-McGee or Oryx as a
result of the Merger;
(5) the aggregate tax basis of the shares of Kerr-McGee Common Stock
received by an Oryx stockholder will be equal to such stockholder's
aggregate tax basis in the Oryx Common Stock reclassified in the Reverse
Split (reduced by the amount of basis properly allocated to fractional
shares for which cash was received);
(6) a holder's holding period with respect to the shares of Kerr-McGee
Common Stock received pursuant to the Merger will include the holding
period of the Oryx Common Stock reclassified in the Reverse Split and
exchanged therefor; and
(7) the receipt of cash in lieu of fractional shares of stock by a
stockholder of Oryx will result in taxable gain or loss to such stockholder
for United States federal income tax purposes based on the difference
between the amount of cash received by such stockholder and such
stockholder's adjusted tax basis allocated to such fractional share as set
forth above.
We express our opinions herein only as to those matters specifically set
forth above and no opinion should be inferred as to the tax consequences of the
Merger under any state, local or foreign law, or with respect to other areas of
United States federal taxation. We are members of the Bar of the State of New
York, and we do not express any opinion herein concerning any law other than the
federal law of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the use of our name under the
captions "The Merger -- Material United States Federal Income Tax Consequences"
and "Legal Matters" in the Joint Proxy Statement/Prospectus. This opinion letter
is rendered to you in connection with the above described transaction. This
opinion letter may not be relied upon by you for any other purpose, or relied
upon by, or furnished to, any other person, firm or corporation without our
prior written consent.
Very truly yours,
/s/ Simpson Thacher & Bartlett
SIMPSON THACHER & BARTLETT
<PAGE> 1
EXHIBIT 8.2
TAX OPINION OF JONES, DAY, REAVIS & POGUE
[Letterhead of Jones, Day, Reavis & Pogue]
January 26, 1999
Oryx Energy Company
13155 Noel Road
Dallas, TX 75240-5067
Ladies and Gentlemen:
We have acted as counsel to Oryx Energy Company (the "Company") in
connection with the proposed Reverse Split and Merger of the Company with and
into Kerr-McGee Corporation ("Kerr-McGee"), as described in the Merger Agreement
between the Company and Kerr-McGee dated as of October 14, 1998 and the Joint
Proxy Statement/Prospectus on Form S-4 relating to the Merger. Capitalized terms
used herein have the meanings ascribed to them in the Merger Agreement.
Pursuant to your request, we are furnishing you with our opinion as to the
federal income tax consequences of the Merger. For purposes of this opinion we
have relied upon, and assumed the completeness, truth, and accuracy of, the
Merger Agreement, the Joint Proxy Statement/Prospectus, and the representations
provided by authorized officers of the Company and Kerr-McGee, without having
independently verified the completeness, truth and accuracy of such documents.
We have further assumed that any of the above-referenced representations that
are qualified by reference to the knowledge of the representor or others (e.g.,
a representation that a statement is true "to the knowledge of" management) are
true without such qualification.
Based upon the foregoing, and provided that the facts, representations and
assumptions referenced above set forth the facts relating to the Merger fully
and accurately as of the Effective Time, we are of the opinion that:
(i) the Merger will constitute a "reorganization" within the meaning of
Section 368(a) of the Internal Revenue Code;
(ii) the Company and Kerr-McGee will each be a party to the reorganization
within the meaning of Section 368(b) of the Internal Revenue Code;
(iii) no gain or loss will be recognized by the stockholders of Oryx upon
the reclassification of their shares as a result of the Reverse Split or with
respect to the shares of Oryx Common Stock exchanged for Kerr-McGee Common Stock
in the Merger (except for cash received in lieu of fractional shares);
(iv) no gain or loss will be recognized by Kerr-McGee or Oryx as a result
of the Merger;
(v) the aggregate tax basis of the shares of Kerr-McGee Common Stock
received by an Oryx stockholder will be equal to such stockholder's aggregate
tax basis in the Oryx Common Stock reclassified in the Reverse Split (reduced by
the amount of basis properly allocated to fractional shares for which cash was
received);
(vi) a holder's holding period with respect to the shares of Kerr-McGee
Common Stock received pursuant to the Merger will include the holding period of
the Oryx Common Stock reclassified in the Reverse Split and exchanged therefor;
and
(vii) the receipt of cash in lieu of fractional shares of stock by a
stockholder of Oryx will result in taxable gain or loss to such stockholder
based on the difference between the amount of cash received by
<PAGE> 2
Oryx Energy Company
January 26, 1999
Page 2
such stockholder and such stockholder's adjusted tax basis allocated to such
fractional share as set forth above.
This opinion relates solely to the federal income tax consequences of the
Merger discussed herein, and no opinion is expressed as to the consequences
under any foreign, state or local tax law. Except as explicitly stated herein,
no other opinion is expressed or implied. This opinion is based upon currently
applicable provisions of the Internal Revenue Code, regulations thereunder,
current published positions of the Internal Revenue Service and judicial
authorities published to date, all of which are subject to change by the
Congress, the Treasury Department, the Internal Revenue Service or the courts.
Any such change may be retroactive with respect to transactions entered into
prior to the date of such change. No assurance can be provided as to the effect
upon our opinion of any such change. Finally, this opinion is not binding upon
the Internal Revenue Service or the courts, and no assurance can be given that
they will accept this opinion or agree with the views expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the Joint
Proxy Statement/Prospectus. We also consent to the references to Jones Day under
the captions "Experts" and "The Proposed Merger -- Material United States
Federal Income Tax Consequences" in the Joint Proxy Statement/ Prospectus. In
giving this consent, we do not admit that we are in the category of persons
whose consent is required by Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations promulgated thereunder by the Securities
and Exchange Commission.
Very truly yours,
/s/ Jones, Day, Reavis & Pogue
JONES, DAY, REAVIS & POGUE
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