<PAGE> 1
As filed with the Securities and Exchange Commission
on January 4, 2000
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KERR-MCGEE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 73-0311467
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
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)
--------------
GREGORY F. PILCHER
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
KERR-MCGEE CORPORATION
KERR-MCGEE CENTER
OKLAHOMA CITY, OKLAHOMA 73125
(405) 270-2868
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]___________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]___________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Titles Of Each Class Of Amount To Be Proposed Proposed Maximum
Securities To Be Registered Registered Maximum Offering Aggregate Offering Amount Of
Price Per Unit Offering Price(1) Registration Fee(2)
- ---------------------------------------- -------------- ------------------ ------------------ -------------------
<S> <C> <C> <C> <C>
Debt Securities, Preferred Stock, Common $830,348,375 100% $830,348,375 $219,212
Stock and Warrants
===================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the amount of the
registration fee.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus herein
also relates to $669,651,625 of Securities of Kerr-McGee Corporation
registered under Registration Statement No. 333-76951. A filing fee of
$271,050 in respect of such securities was paid on April 23, 1999 upon the
filing of such Registration Statement.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL REGISTRANT SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
THE PROSPECTUS CONTAINED IN THIS REGISTRATION STATEMENT IS A COMBINED PROSPECTUS
WHICH ALSO COVERS $669,651,625 OF UNISSUED SECURITIES REGISTERED UNDER
REGISTRATION STATEMENT NO. 333-76951 WITH RESPECT TO WHICH A FILING FEE OF
$271,050 WAS PAID. THIS REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE
AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-76951.
<PAGE> 2
SUBJECT TO COMPLETION, DATED JANUARY 4, 2000
PROSPECTUS
[LOGO] $1,500,000,000
KERR-MCGEE CORPORATION
DEBT SECURITIES, PREFERRED STOCK,
COMMON STOCK, WARRANTS
---------------
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell theses securities and is not soliciting an offer to buy these securities
in any state where the offer and sale is not permitted.
By this prospectus, we may offer up to $1,500,000,000 of debt securities,
preferred stock, common stock and warrants on terms to be determined at the time
of sale. We will provide more specific information regarding these securities in
supplements to this prospectus. You should read this prospectus, particularly
the Risk Factors beginning on page 4, and any supplement carefully before
investing.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR BY ANY STATE SECURITIES COMMISSION, NOR HAVE THOSE ORGANIZATIONS
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
January 4, 2000
1
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
About This Prospectus........................................................3
Where You Can Find Information...............................................3
Risk Factors.................................................................4
The Company..................................................................5
Use Of Proceeds..............................................................5
Ratio Of Earnings To Fixed Charges And Ratio Of Earnings To Combined
Fixed Charges And Preferred Stock Dividend Requirements......................6
Description Of Debt Securities...............................................6
Description Of Preferred Stock...............................................12
Description Of Common Stock..................................................14
Description Of Warrants......................................................15
Plan of Distribution.........................................................16
Legal Matters................................................................16
Experts......................................................................16
</TABLE>
2
<PAGE> 4
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that we filed with the
SEC utilizing a shelf registration process. Under this shelf process, we may
sell the unsecured Debt Securities, Preferred Stock, Common Stock and Warrants
(which we refer to as the Offered Securities) described in this prospectus in
one or more offerings up to a total dollar amount of $1,500,000,000. This
prospectus provides you with a general description of the Offered Securities we
may offer. Each time we sell Offered Securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described below under
"Where You Can Find Information".
WHERE YOU CAN FIND INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any materials on file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549. Our filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. Please call the SEC at
1-800-SEC-0330 for further information on the Public Reference Room.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities:
o Our Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
o Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999; June 30, 1999 and September 30, 1999;
o Our Current Reports on Form 8-K filed January 19, 1999; February 26,
1999; March 11, 1999; April 30, 1999; May 12, 1999; June 4, 1999; July
29, 1999; and October 15, 1999; and
o Our Current Reports on Form 8-K/A filed January 26, 1999; July 16,
1999 and July 26, 1999.
You can get a free copy of any of the documents incorporated by reference by
making an oral or written request directed to:
Investor Relations
Kerr-McGee Corporation
P. O. Box 25861
Oklahoma City, Oklahoma 73125
Telephone (405) 270-3125
You should rely only on the information contained or incorporated in this
prospectus or any supplement. We have not authorized anyone else to provide you
with different information. You should not rely on any other representations.
Our affairs may change after this prospectus or any supplement is distributed.
You should not assume that the information in this prospectus or any supplement
is accurate as of any date other than the date on the front of those documents.
You should read all information supplementing this prospectus.
3
<PAGE> 5
RISK FACTORS
PROSPECTIVE PURCHASERS OF THE OFFERED SECURITIES SHOULD CAREFULLY REVIEW THE
INFORMATION CONTAINED ELSEWHERE IN THIS PROSPECTUS AND SHOULD PARTICULARLY
CONSIDER THE FOLLOWING MATTERS.
EFFECTS OF VOLATILE PRODUCT PRICES AND MARKETS
Our results of operations are highly dependent upon the prices of and
demand for oil & gas, and our commodity chemical products. Historically, the
markets for oil and gas have been volatile and are likely to continue to be
volatile in the future. Accordingly, the prices received by the company for its
oil and gas production are dependent upon numerous factors which will be beyond
its control. These factors include, but are not limited to, the level of
ultimate consumer product demand, governmental regulations and taxes, the price
and availability of alternative fuels, the level of imports and exports of oil
and gas, and the overall economic environment. Any significant decline in prices
for oil and gas could have a material adverse effect on our financial condition,
results of operations and quantities of reserves recoverable on an economic
basis. Demands for TiO2 is dependent on the ultimate products utilizing TiO2
pigment. This demand is generally reflected by the status of the economy,
profitability of our products which is dependent on the price realized, the
efficiency of the manufacturing costs, and the ability to acquire feed stock at
a competitive price. Should the industry experience significant price declines
or other adverse market conditions, we may not be able to generate sufficient
cash flow from operations to meet our obligations and make planned capital
expenditures. In order to manage our exposure to price risks in the sale of our
oil and gas, we may from time to time enter into commodities futures or option
contracts to hedge a portion of our crude oil and natural gas sales volume,
although we do not currently do so. Any such hedging activities may prevent us
from realizing the benefits of price increases above the levels reflected in
such hedges.
FAILURE TO FUND CONTINUED CAPITAL EXPENDITURES COULD ADVERSELY AFFECT PROPERTIES
If our revenues substantially decrease as a result of lower oil and gas
prices or otherwise, we may have limited ability to spend the capital necessary
to replace our reserves or to maintain production at current levels, resulting
in a decrease in production over time.
We expect that we will continue to make capital expenditures for the
acquisition, exploration and development of oil and gas reserves. Historically,
we have financed these expenditures primarily with cash flow from operations and
proceeds from debt and equity financings, asset sales and sales of partial
interests in foreign concessions. We believe that we will have sufficient cash
flow from operations, available drawings under our credit facilities and other
debt financings to fund capital expenditures. However, if our cash flow from
operations is not sufficient to satisfy our capital expenditure requirements,
there can be no assurance that additional debt or equity financing or other
sources of capital will be available to meet these requirements. If we are not
able to fund our capital expenditures, our interests in some of our properties
may be reduced or forfeited.
COSTS OF ENVIRONMENTAL LIABILITIES AND REGULATIONS COULD EXCEED ESTIMATES
Our current and former operations involve management of regulated materials
and are subject to various environmental laws and regulations. These laws and
regulations obligate us to clean up various sites at which petroleum, chemicals,
low-level radioactive substances or other regulated materials have been disposed
of or released. Some of these sites have been designated Superfund sites by the
U.S. Environmental Protection Agency pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980. We are also a party to legal
proceedings
4
<PAGE> 6
involving environmental matters pending in various courts or agencies.
It is not possible for us to reliably estimate the amount and timing of all
future expenditures related to environmental matters because of:
o The difficulty of estimating clean up costs;
o The uncertainty in quantifying liability under environmental laws that
impose joint and several liability on all potentially responsible
parties; and
o The continually changing nature of environmental laws and regulations.
Although we believe that we have established appropriate reserves for
cleanup costs, due to the above-noted uncertainties, we could be required to
record additional reserves in the future.
THE COMPANY
Kerr-McGee Corporation, an energy and chemical company, had its beginning
in 1929 with the formation of Anderson & Kerr Drilling Company. With oil and gas
exploration, development and production as our base, we have expanded into
titanium dioxide pigment manufacturing and marketing and into the mining and
marketing of minerals. We own a large inventory of natural resources that
includes oil and gas reserves and chemical and mineral deposits. Our executive
offices are located at Kerr-McGee Center, Oklahoma City, Oklahoma 73125.
On February 26, 1999, we completed a merger with Oryx Energy Company which
created the fifth largest independent, nonintegrated oil and gas exploration,
development and production company based in the United States in terms of proved
oil and gas reserves at December 31, 1998. After the merger, combined proved
reserves as of December 31, 1998 totaled 959 million barrels of oil equivalent
with 80% of these located in our core operating areas of the United States and
the North Sea. We conduct offshore oil and gas exploration and/or production
activities in the Gulf of Mexico, U. K., China, Thailand, Gabon, Algeria,
Australia, Indonesia and Brazil. We conduct onshore exploration and/or
production operations in the United States, Ecuador, Indonesia, the United
Kingdom, Kazakhstan, Thailand and Yemen.
Our primary chemical product is titanium dioxide pigment, which is produced
at four titanium dioxide plants located in the United States, Australia, Germany
and Belgium. In addition, our chemical operations produce and market inorganic
industrial and specialty chemicals, heavy minerals and forest products. We
produce and market other industrial chemicals including synthetic rutile,
manganese products and sodium chlorate and specialty chemicals including boron
trichloride and elemental boron. We produce the heavy minerals ilmenite,
synthetic and natural rutile, zircon and leucoxene. Our forest products
operations treat railroad crossties and other hardwood products and provide wood
treating services.
USE OF PROCEEDS
We will use the proceeds we receive from selling these Offered Securities
for acquisitions or for other general corporate purposes. General corporate
purposes may include capital expenditures, payment of debt, or any other
purposes that may be stated in the supplements. The proceeds may be invested
temporarily until they are used for their stated purpose.
5
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDEND REQUIREMENTS
The ratio of earnings to fixed charges for each of the periods indicated is
as follows:
<TABLE>
<CAPTION>
NINE MONTHS
YEARS ENDED DECEMBER 31, ENDED SEPTEMBER 30, (1)
----------------------------- -------------------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
(2) 1.2 4.1 3.9 (2) (2) 1.5
</TABLE>
(1) As of September 30, 1999, we had no outstanding preferred stock. Therefore,
unless otherwise indicated, ratio of earnings to combined fixed charges and
preferred dividend requirements will be the same.
(2) Earnings were inadequate to cover fixed charges by $33 million for nine
months ended September 30, 1998, by $548 million for the year ended
December 31, 1998, and $41 million for the year ended December 31, 1994.
For purposes of computing the ratios, the earnings calculation is: income
from continuing operations + income taxes + fixed charges - capitalized
interest. Fixed charges calculation is: all interest + interest factor of rental
expense.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities summarizes
certain general terms that will apply to the Debt Securities. The description is
not complete, and we refer you to the Indenture, a copy of which is an exhibit
to the Registration Statement of which this prospectus is a part. For your
reference, in several cases below we have noted the section in the Indenture
that the paragraph summarizes. Capitalized items have the meanings assigned to
them in the Indenture. The referenced sections of the Indenture and the
definitions of capitalized terms are incorporated by reference in the following
summary.
The Debt Securities will be issued under an Indenture dated as of August 1,
1982 and supplemented by the First Supplemental Indenture dated May 7, 1996
between Kerr-McGee and Citibank, N.A., as Trustee, relating to the Company's
6.625% notes due October 15, 2007, and the Company's 7.125% Debentures Due
October 15, 2027, filed as Exhibit 4.1 to the Form 8-K filed on July 29, 1999;
the Second Supplemental Indenture dated August 2, 1999, between the Company and
Citibank, N.A., as Trustee, relating to the Company's 5 1/2% Exchangeable Notes
due August 2, 2004; and the Third Supplemental Indenture dated November 1, 1999,
between the Company and Citibank, N.A., as Trustee, relating to the Company's
variable interest rate notes due November 1, 2001. The Indenture is incorporated
by reference as an exhibit to the Registration Statement filed with the SEC.
This summary of the Indenture is qualified by reference to the Indenture. You
should refer to the Indenture in addition to reading this summary. The summary
is not complete and is subject to the specific terms of the Indenture.
GENERAL
Under the Indenture, we can issue an unlimited amount of Debt Securities.
The following amounts of Debt Securities are currently outstanding under the
Indenture:
<TABLE>
<S> <C> <C>
$150,000,000 - 6.625% Notes Due October 15, 2027
150,000,000 - 7.125% Debentures Due October 15, 2027
330,348,375 - 5.50% Notes Due August 2, 2004
150,000,000 - Floating Rate Notes Due October 30, 2001
</TABLE>
Each time that we issue a new series of Debt Securities, the supplement
relating to that new series will specify the terms of those Debt Securities,
including:
o Designation, amount and denominations;
o Percentage of principal amount at which Debt Securities will be
issued;
o Maturity date;
o Annual interest rate and payment dates;
o Terms and conditions of exchanging or converting Debt Securities for
other securities;
o Redemption terms; and
6
<PAGE> 8
o Whether the Debt Securities will be senior, senior subordinated or
subordinated.
Payments relating to the Debt Securities generally will be paid at
Citibank's corporate trust office. However, we may elect to pay interest by
mailing checks directly to the registered holders of the Debt Securities. You
can transfer your Debt Securities at Citibank's corporate trust office.
RANKING
Unless otherwise described in the prospectus supplement for any series, the
Debt Securities will be unsecured and will rank on a parity with all of our
other unsecured and unsubordinated indebtedness.
We will issue the Debt Securities in registered form without coupons. You
can transfer or exchange your Debt Securities without a service charge, but we
may require advance payment of any tax or other governmental transfer or
exchange charge.
DEFINITIONS
The covenants in the Indenture, which we summarize below, use the following
terms:
o SUBSIDIARY: A corporation or limited liability company of which we own
a majority of the voting stock either directly or indirectly. (Section
101)
o RESTRICTED SUBSIDIARY: Any subsidiary which we designate as a
Restricted Subsidiary or which owns or leases any Principal Property
(see the next definition). The term does not include a subsidiary if
its principal business is leasing assets, financing the sale of
products or holding the securities of other subsidiaries. (Section
101)
o PRINCIPAL PROPERTY: Any company-owned U.S. mineral property capable of
producing in paying quantities and any manufacturing plant owned by us
in the U.S. (including the land and fixtures), unless our Board of
Directors feels that the property or plant is not material to our
total business. The term does not include any facility acquired to
control or abate air, water, noise, odor, or other pollution, or
facilities financed through industrial revenue bonds or similar
financing. (Section 101)
o CONSOLIDATED NET TANGIBLE ASSETS: The total amount of assets on our
consolidated balance sheet and the balance sheets of our Restricted
Subsidiaries, less any reserves and after deducting: (1) current
liabilities and (2) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other intangibles. (Section
101)
o FUNDED DEBT: Money borrowed or debt evidenced by bonds or debentures,
or agreements having a maturity of more than one year (or less than
one year but which is renewable after that year at the borrower's
option). (Section 101)
o DEBT: Notes, bonds, debentures or other similar documents indicating
indebtedness. (Section 1008)
o MORTGAGE: A pledge, mortgage or other lien securing a debt. (Section
1008)
7
<PAGE> 9
CERTAIN COVENANTS
The Indenture includes the following covenants. These covenants use certain
terms that are defined above. The covenants for a series of Debt Securities may
differ from those described below. If they do, this will be described in the
supplement to this prospectus relating to that series.
RESTRICTIONS ON SECURED DEBT
After the date of the Indenture, if we incur or guarantee a debt secured by
either a mortgage on any of our Principal Property or on a Restricted
Subsidiary's stock or debt, we will secure the Debt Securities on the same
basis, unless the amount of the new debt plus the value of all sale and
leaseback transactions involving Principal Properties would not exceed 5% of
Consolidated Net Tangible Assets. The restrictions do not apply to debt secured
by the following:
o Mortgages on our property or the property of a Restricted Subsidiary,
which existed on the date of the Indenture.
o Mortgages on the property, stock or debt of a corporation that existed
when the corporation became a Restricted Subsidiary.
o Mortgages on the property of a Restricted Subsidiary, which only
secures indebtedness owed by the Subsidiary to another Restricted
Subsidiary or us.
o Mortgages in favor of governmental bodies to secure progress, advance
or other payments.
o Mortgages on acquired property, stock or debt which existed at the
time of the acquisition (including acquisition through merger or
consolidation) and certain purchase money and construction mortgages.
o Mortgages on our property or the property of a Restricted Subsidiary
to secure payment of the costs of operations, increase the production
and disposition of minerals from the property or indebtedness incurred
to provide funds for such purposes.
o Any extension, renewal or refunding of the foregoing.
The listed debt will be excluded when computing our secured debt.
The restrictions will not apply to sale and leaseback transactions if the
proceeds are applied to the retirement of Funded Debt. Secured debt will not be
deemed to be created by the transfer of an interest in property in the form
commonly referred to as a "production payment". (Sections 1008 and 1009)
RESTRICTIONS ON SALES AND LEASEBACKS
We may not enter into any sale and leaseback transaction involving any
Principal Property after the date of the Indenture unless:
o The sale or transfer occurs within 120 days after construction is
complete and the Principal Property is fully operational.
o We could mortgage the property under Section 1008 of the Indenture for
an amount equal to the proceeds of the sale and leaseback transaction
without securing the Debt Securities on the same basis.
8
<PAGE> 10
o We use an amount equal to the market value of the Principal Property
being leased to retire Funded Debt within 120 days. This restriction
will not apply to any sale and leaseback transaction between us (or a
Restricted Subsidiary) and a Restricted Subsidiary, or involving the
taking back of a lease for a period of less than three years. (Section
1009)
MERGER AND CONSOLIDATION
The Indenture generally permits a consolidation or merger between
Kerr-McGee and another corporation. It also permits the sale by Kerr-McGee of
all or substantially all of our property and assets. If this happens, the
resulting or acquiring corporation will assume all of our responsibilities and
liabilities under the Indenture. If the resulting or acquiring corporation has
outstanding Debt secured by a Mortgage on any Principal Property, or shares of
stock of a Restricted Subsidiary, the Debt Securities will be equally and
ratably secured with (or prior to) the Debt secured by such Mortgage. This
restriction will not apply if the Mortgage could be created pursuant to Section
1008 of the Indenture (see "Restrictions on Secured Debt" above) without equally
and ratable securing the Debt Securities. (Section 803)
MODIFICATION
Generally, our rights and obligations and the holders' rights may be
modified if the holders of 66-2/3% of the outstanding Debt Securities consent.
However, no modification or amendment may occur without the consent of the
affected holder of the Debt Security if that modification or amendment would do
any of the following:
o Change the stated maturity date of the principal of, or any
installment of interest on, any of the holder's Debt Security.
o Reduce the principal amount of, or the interest (or premium, if any)
on, the Debt Security (including in the case of a discounted Debt
Security, the amount payable upon acceleration of maturity or provable
in bankruptcy).
o Change the currency of payment of the Debt Security.
o Impair the right to institute suit for the enforcement of any payment
on the Debt Security or adversely affect the right of repayment, if
any, at the option of the holder.
o Reduce the percentage of holders of Debt Securities necessary to
modify or amend the Indenture.
A modification which changes a covenant or provision expressly included
solely for the benefit of holders of one or more particular series will not
affect the rights of holders of Debt Securities of any other series. (Section
902)
Kerr-McGee or Citibank may make modifications without the consent of the
Debt Securities holders in order to do the following: (Section 901)
o Evidence that another corporation has succeeded to Kerr-McGee and
assumed our obligations.
o Convey security for the Debt Securities to Citibank.
9
<PAGE> 11
o Add covenants, restrictions or conditions for the protection of the
Debt Security holders.
o Provide for the issuance of Debt Securities in coupon form.
o Establish the form or terms of Debt Securities of any series.
o Cure any ambiguity or correct any defect in the Indenture which does
not adversely affect the interests of a holder.
o Evidence the appointment of a successor trustee or more than one
trustee.
EVENTS OF DEFAULT
In the Indenture, an Event of Default means any one of the following:
o Failure to pay interest on a Debt Security for 30 days;
o Failure to pay principal and premium, if any, when due;
o Failure to pay sinking fund installment when due;
o Failure to perform any other covenant in the Indenture that continues
for 60 days after receipt of notice; or
o Certain events in bankruptcy, insolvency or reorganization.
An Event of Default relating to one series of Debt Securities does not
necessarily constitute an Event of Default with respect to any other series
issued under the Indenture. If an Event of Default exists with respect to a
series of Debt Securities, Citibank or the holders of at least 25% of the
outstanding Debt Securities of that series (or of all the outstanding Debt
Securities in the case of defaults due to failure to perform a covenant in the
Indenture or certain events in bankruptcy, insolvency, or reorganization) may
declare the principal of that series (or of all outstanding Debt Securities, as
the case may be) due and payable.
Any Event of Default with respect to a particular series of Debt Securities
may be waived by the holders of a majority of the outstanding Debt Securities of
that series (or of all the outstanding Debt Securities as the case may be),
except for a failure to pay principal, premium or interest on the Debt Security.
(Sections 501, 502 and 508)
Citibank may withhold notice to the holders of the Debt Securities of any
default (except in payment of principal, premium, interest or sinking fund
payment) if Citibank thinks it is in the interest of the holders. (Section 602)
Subject to the specific duties that arise under the Indenture if an Event
of Default exists, Citibank is not obligated to exercise any of its rights or
powers under the Indenture at the request of the holders of the Debt Securities,
unless they provide reasonable indemnity. (Sections 601 and 603). Generally, the
holders of a majority of the outstanding Debt Securities can direct the
proceeding for a remedy available to Citibank or for exercising any power
conferred on Citibank as the trustee. (Section 508)
TRUSTEE'S RELATIONSHIP
Citibank has loaned us substantial amounts of money in the past and may
continue to do so. Citibank serves as a depository for us and performs other
services for us in the normal course of business. The Indenture provides that we
will indemnify Citibank against any
10
<PAGE> 12
loss, liability or expense incurred that arises from the trust created by the
Indenture unless the loss, liability or expense results from Citibank's
negligence or bad faith. (Section 607)
GLOBAL SECURITIES
We may issue some of the Debt Securities as Global Securities that will be
deposited with a depository identified in a prospectus supplement. Global
Securities may be issued in either registered or bearer form and may be either
temporary or permanent. A prospectus supplement will contain additional
information about depository arrangements.
Registered Global Securities will be registered in the depositary's name or
in the name of its nominee. When we issue a Global Security, the depositary will
credit that amount of Debt Securities to the investors that have accounts with
the depository or its nominee. The underwriters or the Debt Security holders'
agent will designate the accounts to be credited, unless the Debt Securities are
offered and sold directly by Kerr-McGee, in which case, we will designate the
appropriate account to be credited.
Investors who have accounts with a depository, and people who have an
interest in those institutions, are the beneficial owners of Global Securities
held by that particular depository.
Kerr-McGee will not maintain records regarding ownership or the transfer of
Global Securities held by a depository or to nominee. If you are the beneficial
owner of Global Securities held by a depository, you must get information
directly from the depository.
As long as a depositary is the registered owner of a Global Security, that
depository will be considered the sole owner of the Debt Securities represented
by that Global Security. Except as set forth below, beneficial owners of Global
Securities held by a depository will not be entitled to:
o Register the represented Debt Securities in their names;
o Receive physical delivery of the Debt Securities; or
o Be considered the owners or holders of the Global Security under the
Indenture.
Payments on Debt Securities registered in the name of a depositary or its
nominee will be made to the depositary or its nominee. (Section 203)
When a depositary receives a payment, it must immediately credit the
accounts in amounts proportionate to the account holders' interests in the
Global Security. The beneficial owners of a Global Security should, and are
expected to, establish standing instructions and customary practices with their
investor that has an account with the depository, so that payments can be made
with regard to securities beneficially held for them, much like securities held
for the accounts of customers in bearer form or registered in "street name."
A Global Security can only be transferred in whole by the depository to a
nominee of such depository, or to another nominee of a depository. If a
depositary is unwilling or unable to continue as a depository and we do not
appoint a successor depository within ninety (90) days, we will issue Debt
Securities in exchange for all of the Global Securities held by that depository.
In addition, we may eliminate all Global Securities at any time and issue Debt
Securities in exchange for them. Further, we may allow a depository to surrender
a Global Security in exchange for Debt Securities on any terms that are
acceptable to us and the depositary. (Section 307)
If any of these events occur, we will execute and Citibank will
authenticate and deliver to the beneficial
11
<PAGE> 13
owners of the Global Security in question a new registered security in an amount
equal to and in exchange for that person's beneficial interest in the exchanged
Global Security. The depository will receive a new Global Security in an amount
equal to the difference, if any, between the amount of the surrendered Global
Security and the amount of Debt Securities delivered to the beneficial owners.
Debt Securities issued in exchange for Global Securities will be registered in
the same names and in the same denominations as indicated by the depository's
records and in accordance with the instructions from its direct and indirect
participants. (Section 307)
The laws of certain jurisdictions require some people who purchase
securities to actually take physical possession of those securities. The
limitations imposed by these laws may impair your ability to transfer your
beneficial interests in a Global Security.
DESCRIPTION OF PREFERRED STOCK
GENERAL
Our Certificate of Incorporation authorizes our Board of Directors or a
committee of our Board of Directors to cause Preferred Stock to be issued in one
or more series, without stockholder action. The Board of Directors is authorized
to issue up to 40,000,000 shares of Preferred Stock, $1 par value per share, and
can determine the number of shares of each series, and the rights, preference
and limitations of each series. We may amend the Charter to increase the number
of authorized shares of preferred stock in a manner permitted by the Charter and
the Delaware General Corporation Law.
The particular terms of any series of preferred stock being offered by us
under this shelf registration will be described in the prospectus supplement
relating to that series of Preferred Stock. Those terms may include:
o The number of shares of the series of Preferred Stock being offered;
o The title and liquidation preference per share of that series of the
Preferred Stock;
o The purchase price of the Preferred Stock;
o The dividend rate (or method for determining such rates);
o The dates on which dividends will be paid;
o Whether dividends on that series of Preferred Stock will be cumulative
or noncumulative and, if cumulative, the dates from which dividends
shall commence to accumulate;
o Any redemption or sinking fund provisions applicable to that series of
preferred stock;
o Any conversion provisions applicable to that series of preferred
stock;
o Whether we have elected to offer Depositary Shares with respect to
that series of preferred stock; and
o Any additional dividend, liquidation, redemption, sinking fund and
other rights and restrictions applicable to that series of preferred
stock.
If the terms of any series of Preferred Stock being offered differ from the
terms set forth herein, those terms will also be disclosed in the prospectus
12
<PAGE> 14
supplement relating to that series of Preferred Stock. The following summary is
not complete. You should refer to the Certificate of Designations relating to
the series of the Preferred Stock for the complete terms of that Preferred
Stock. That Certificate of Designations will be filed with the SEC promptly
after the offering of the Preferred Stock.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the prospectus supplement, in the event we
liquidate, dissolve or wind-up our business, each series of Preferred Stock will
have the same rank as to dividends and distributions as each other series of the
Preferred Stock we may issue in the future. The Preferred Stock will have no
preemptive rights.
DIVIDEND RIGHTS
Holders of Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors, cash dividends at the rates
and on the dates set forth in the prospectus supplement. Dividend rates may be
fixed or variable or both. Different series of Preferred Stock may be entitled
to dividends at different dividend rates or based upon different methods of
determination. Each dividend will be payable to the holders of record as they
appear on our stock books on record dates determined by the Board of Directors.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as specified in the prospectus supplement. If the Board of
Directors fails to declare a dividend on any series of Preferred Stock for which
dividends are noncumulative, then the right to receive that dividend will be
lost, and we will have no obligation to pay the dividend for that dividend
period, whether or not dividends are declared for any future dividend period.
No full dividends will be declared or paid on any series of Preferred
Stock, unless full dividends for the dividend period commencing after the
immediately preceding dividend payment date (and cumulative dividends still
owing, if any) have been or contemporaneously are declared and paid on all other
series of Preferred Stock that have the same rank as, or rank senior to, that
Preferred Stock. When those dividends are not paid in full, dividends will be
declared pro rata, so that the amount of dividends declared per share on that
series of Preferred Stock and on each other series of preferred stock having the
same rank as, or ranking senior to, that series of Preferred Stock will in all
cases bear to each other the same ratio that accrued dividends per share on that
series of Preferred Stock and the other preferred stock bear to each other. In
addition, generally, unless full dividends, including cumulative dividends still
owing, if any, on all outstanding shares of any series of Preferred Stock have
been paid, no dividends will be declared or paid on the Common Stock and
generally we may not redeem or purchase any Common Stock. No interest, or sum of
money in lieu of interest, will be paid in connection with any dividend payment
or payments which may be in arrears.
Unless otherwise described in the prospectus supplement, the amount of
dividends payable for each dividend period will be computed by annualizing the
applicable dividend rate and dividing by the number of dividend periods in a
year, except that the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period shall be computed on
the basis of a 360-day year consisting of twelve 30-day months and, for any
period less than a full month, the actual number of days elapsed in the period.
RIGHTS UPON LIQUIDATION
In the event we liquidate, dissolve or wind-up our affairs, either
voluntarily or involuntarily, the holders of each series of Preferred Stock will
be entitled to receive liquidating distributions in the amount set forth in the
prospectus supplement relating to each series of Preferred Stock, plus an amount
equal to accrued and unpaid dividends, if any, before any distribution of
13
<PAGE> 15
assets is made to the holders of Common Stock. If the amounts payable with
respect to Preferred Stock of any series and any stock having the same rank as
that series of Preferred Stock are not paid in full, the holders of Preferred
Stock and of such other stock will share ratably in any such distribution of
assets in proportion to the full respective preferential amounts to which they
are entitled. After the holders of each series of Preferred Stock and any stock
having the same rank as the Preferred Stock are paid in full, they will have no
right or claim to any of our remaining assets. Neither the sale of all or
substantially all our property or business nor a merger or consolidation by us
with any other corporation will be considered a dissolution, liquidation or
winding up by us of our business or affairs.
REDEMPTION
Any series of Preferred Stock may be redeemable, in whole or in part, at
our option. In addition, any series of Preferred Stock may be subject to
mandatory redemption pursuant to a sinking fund. The redemption provisions that
may apply to a series of Preferred Stock, including the redemption dates and the
redemption prices for that series, will be set forth in the prospectus
supplement.
If a series of Preferred Stock is subject to mandatory redemption, the
prospectus supplement will specify the year we can begin to redeem shares of the
Preferred Stock, the number of shares of the Preferred Stock we can redeem each
year, and the redemption price per share. We may pay the redemption price in
cash, stock or in cash that we have received specifically from the sale of our
capital stock, as specified in the prospectus supplement. If the redemption
price is to be paid only from the proceeds of the sale of our capital stock, the
terms of the series of Preferred Stock may also provide that, if no such capital
stock is sold or if the amount of cash received is insufficient to pay in full
the redemption price then due, the series of Preferred Stock will automatically
be converted into shares of the applicable capital stock pursuant to conversion
provisions specified in the prospectus supplement.
If fewer than all the outstanding shares of any series of Preferred Stock
are to be redeemed, whether by mandatory or optional redemption, the Board of
Directors will determine the method for selecting the shares to be redeemed,
which may be by lot or pro rata or by any other method determined to be
equitable. From and after the redemption date, dividends will cease to accrue on
the shares of Preferred Stock called for redemption and all rights of the
holders of those shares (except the right to receive the redemption price) will
cease.
In the event that full dividends, including accrued but unpaid dividends,
if any, have not been paid on any series of Preferred Stock, we may not redeem
that series in part and we may not purchase or acquire any shares of that series
of Preferred Stock, except by any offer made on the same terms to all holders of
that series of Preferred Stock.
VOTING RIGHTS
Except as indicated in the prospectus supplement, or except as expressly
required by applicable law, the holders of Preferred Stock will not be entitled
to vote.
DESCRIPTION OF COMMON STOCK
As of the date of this prospectus, we are authorized to issue up to
300,000,000 shares of Common Stock. As of December 30, 1999, we had 86,477,596
shares of Common Stock issued and outstanding.
The following summary is not complete. You should refer to the applicable
provisions of the Charter, including the Certificates of Designations pursuant
to which any outstanding series of Preferred Stock may be issued, and the
Delaware General Corporation Law for a complete statement of the terms and
rights of the Common Stock.
14
<PAGE> 16
DIVIDENDS. Holders of Common Stock are entitled to receive dividends when,
as and if declared by the Board of Directors, out of funds legally available for
their payment (subject to the rights of holders of the preferred stock, if any).
VOTING RIGHTS. Each holder of Common Stock is entitled to one vote per
share. Subject to the rights, if any, of the holder of any series of preferred
stock pursuant to applicable law or the provision of the Certificate of
Designations creating that series, all voting rights are vested in the holders
of shares of Common Stock.
RIGHTS UPON LIQUIDATION. In the event of our voluntary or involuntary
liquidation, dissolution or winding up, the holders of Common Stock will be
entitled to share equally in any of our assets available for distribution after
the payment in full of all debts and distributions and after the holders of all
series of outstanding preferred stock, if any, have received their liquidation
preferences in full.
RIGHTS AGREEMENT. We have adopted a Rights Agreement, which provides for
the issuance of a right (which we refer to as a Kerr-McGee Right), to the holder
of each of our shares of Common Stock. If anyone acquires 15% or more of our
outstanding Common Stock (which we refer to as an Acquiring Person), each holder
of the Kerr-McGee Right (other than the Acquiring Person) will be entitled to
purchase additional shares of Common Stock (or, in certain cases, other of our
securities, or cash or other property) having a current market value of two
times the exercise price of $215. Otherwise, prior to an Acquiring Person
acquiring 50% or more of the outstanding Common Stock, we may elect to issue a
share of Common Stock in exchange for each Kerr-McGee Right (other than
Kerr-McGee Rights held by the Acquiring Person). In addition, if we are acquired
in a merger or other business combination or 50% or more of our assets or
earning power are sold, each holder of a Kerr-McGee Right will be entitled to
buy, at the exercise price, common stock of the acquirer having a current market
value of two times the exercise price. At any time before there is an Acquiring
Person, we can redeem the Kerr-McGee Rights in whole, but not in part, for $0.01
per each Kerr-McGee Right, or may amend the Rights Agreement in any way without
the consent of the holders of the Kerr-McGee Rights. We amended the Rights
Agreement so it was not triggered by the merger between us and Oryx.
MISCELLANEOUS. The issued and outstanding shares of Common Stock are fully
paid and nonassessable. Holders of shares of Common Stock are not entitled to
preemptive rights. Shares of Common Stock are not convertible into shares of any
other class of capital stock.
DESCRIPTION OF WARRANTS
We may issue Warrants for the purchase of Debt Securities, Preferred Stock
or Common Stock. We may issue Warrants independently or together with other
securities. Each series of Warrants will be issued under a separate Warrant
Agreement to be entered into between us and a bank or trust company, as warrant
agent. You should refer to the Warrant Agreement relating to the specific
Warrants being offered for the complete terms of the Warrant Agreement and the
Warrants.
Each Warrant will entitle the holder to purchase the principal amount of
Debt Securities, or the number of shares of Preferred Stock, or Common Stock at
the exercise price set forth in, or calculable as set forth in, the prospectus
supplement. The exercise price may be subject to adjustment upon the occurrence
of certain events, as set forth in the prospectus supplement. After the close of
business on the expiration date of the Warrant, unexercised Warrants will become
void. The
15
<PAGE> 17
place or places where, and the manner in which, Warrants may be exercised shall
be specified in the prospectus supplement.
PLAN OF DISTRIBUTION
We may sell the Offered Securities through underwriters, dealers or agents,
or we may sell directly to one or more purchasers. The prospectus supplement
names any underwriters, states the purchase price and the proceeds received by
us, any underwriting discounts and other items constituting underwriters'
compensation, the initial public offering price, any discounts or concessions to
dealers, and any securities exchanges on which the Offered Securities may be
listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account. The underwriters may resell
the Offered Securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Offered Securities may be offered through an
underwriting syndicate represented by many underwriters. The obligations of the
underwriters to purchase the Offered Securities will be subject to certain
conditions. The underwriters will be obligated to purchase all the Offered
Securities if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
These Offered Securities may be sold directly by us or through agents. Any
agent will be named, and any commissions payable to that agent will be set forth
in the prospectus supplement. Unless otherwise indicated in the prospectus
supplement, any agent will be acting on a best efforts basis.
We may authorize agents, underwriters or dealers to solicit offers by
specified institutions to purchase Offered Securities pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. These contracts will be subject only to those conditions set forth in
the prospectus supplement. The prospectus supplement will set forth the
commission payable for soliciting such contracts.
We may agree to indemnify underwriters, dealers or agents against certain
civil liabilities, including liabilities under the Securities Act of 1933, and
may also agree to contribute to payments which the underwriters, dealers or
agents may be required to make.
LEGAL MATTERS
Gregory F. Pilcher, our Vice President, General Counsel and Secretary, or
another of our lawyers, will issue an opinion about the legality of the
securities for us. Any underwriters will be advised about issues relating to
this offering by their own legal counsel.
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving the said reports.
16
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company in connection with the
offering described in this Registration Statement (other than underwriting
discounts and commissions) are as follows:
<TABLE>
<S> <C>
SEC Registration Fee............................................................... 219,212
Printing and Engraving Expenses.................................................... 40,000
Accounting Fees and Expenses....................................................... 50,000
Legal Fees and Expenses............................................................ 40,000
Blue Sky Qualification Fees and Expenses........................................... 15,000
Trustee's Fees..................................................................... 5,000
Fees of Rating Agencies............................................................ 235,000
Miscellaneous...................................................................... 25,000
---------
TOTAL..................................................................... $ 629,212
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article XXII of the ByLaws of the Company, as amended, provides for
indemnification of officers, directors and employees of the Company to the
extent authorized by the General Corporation Law of the State of Delaware.
Pursuant to Section 145 of the Delaware General Corporation Law, the Company
generally has the power to indemnify its present and former directors, officers,
employees and agents against expenses incurred by them in connection with any
suit to which they are, or are threatened to be made, a party by reason of their
serving in such positions so long as they acted in good faith and in a manner
they reasonably believed to be in, or not opposed to, the best interests of a
corporation, and with respect to any criminal action, they had no reasonable
cause to believe their conduct was unlawful. With respect to suits by or in the
right of a corporation, however, indemnification is not available if such person
is adjudged to be liable for negligence or misconduct in the performance of his
duty to the corporation unless the court determines that indemnification is
appropriate. In addition, a corporation has the power to purchase and maintain
insurance for such persons. The statute also expressly provides that the power
to indemnify authorized thereby is not exclusive of any rights granted under any
bylaw, agreement vote of stockholders or disinterested directors, or otherwise.
The above discussion of the Company's ByLaws and of Section 145 of the
Delaware General Corporation law is not intended to be exhaustive and is
respectively qualified in its entirety by such ByLaws and statute.
1
<PAGE> 19
Any underwriting agreement or agency agreement with respect to an
offering of securities registered hereunder will provide for indemnification of
Kerr-McGee Corporation and its officers and directors by the underwriters or
agents, as the case may be, against certain liabilities, including liabilities
under the Securities Act of 1933 ("Act").
ITEM 16. EXHIBITS.
EXHIBIT DESCRIPTION
1 Form of Debt Underwriting Agreement.
4.1 Indenture dated as of August 1, 1982, between the Company
and Citibank, N.A., as Trustee, filed as Exhibit 4.1 to
Registration Statement No. 2-78952 is hereby incorporated by
reference.
4.2 First Supplemental Indenture dated as of May 7, 1996,
between the Company and Citibank, N.A., as Trustee, relating
to the Company's 6.625% notes due October 15, 2007, and
7.125% debentures due October 15, 2027, filed as Exhibit 4.1
to the Form 8-K filed on July 29, 1999, is hereby
incorporated by reference.
4.3 Second Supplemental Indenture dated August 2, 1999, between
the Company and Citibank, N.A., as Trustee, relating to the
Company's 5 1/2% Exchangeable Notes due August 2, 2004.
4.4 Third Supplemental Indenture dated November 1, 1999, between
the Company and Citibank, N.A., as Trustee, relating to the
Company's variable interest rate notes due November 1, 2001.
5 Opinion of Gregory F. Pilcher, Vice President, General
Counsel and Secretary of the Company, as to the legality of
the Common Stock being registered.
12 Computations of Ratio of Earnings to Fixed Charges for the
years 1994 through 1998, filed as Exhibit 12 to the
Company's Current Report on Form 8-K/A dated February 26,
1999, filed as of July 26, 1999, is hereby incorporated by
reference.
23.1 Consent of Arthur Andersen LLP relating to Kerr-McGee
Corporation financial statements.
23.2 Consent of Gregory F. Pilcher (Contained in Exhibit 5).
2
<PAGE> 20
23.3 Consent of Pricewaterhouse Coopers LLP relating to
Kerr-McGee Corporation financial statements.
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Citibank, N.A., is hereby
incorporated by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant does hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which has been registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume
and price represent no more than a 20%
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (i) and (ii) above
do not apply if the information required to be
included in a post-effective amendment by
3
<PAGE> 21
those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered that remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's Annual
Report on Form 10-K pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the provisions described in Item 15 above, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless, in the opinion of its counsel, the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Oklahoma City, State of Oklahoma, on this 3rd day of
January, 2000.
KERR-MCGEE CORPORATION
By: /s/ Luke R. Corbett *
-------------------------------------
Luke R. Corbett
Chairman of the Board,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ LUKE R. CORBETT* Chairman of the Board, January 3, 2000
- ----------------------------- Chief Executive Officer
Luke R. Corbett and Director
Vice Chairman and January 3, 2000
- ----------------------------- Director
Tom J. McDaniel
/s/ ROBERT M. WOHLEBER Senior Vice President January 3, 2000
- ----------------------------- and Chief Financial Officer
Robert M. Wohleber
/s/ DEBORAH A. KITCHENS* Vice President, Controller January 3, 2000
- ----------------------------- and Chief Accounting Officer
Deborah A. Kitchens
/s/ WILLIAM E. BRADFORD* Director January 3, 2000
- -----------------------------
William E. Bradford
/s/ SYLVIA A. EARLE* Director January 3, 2000
- -----------------------------
Sylvia A. Earle
/s/ DAVID C. GENEVER-WATLING* Director January 3, 2000
- -----------------------------
David C. Genever-Watling
</TABLE>
<PAGE> 23
<TABLE>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ MARTIN C. JISCHKE* Director January 3, 2000
- -----------------------------
Martin C. Jischke
/s/ WILLIAM C. MORRIS* Director January 3, 2000
- -----------------------------
William C. Morris
/s/ JOHN J. MURPHY* Director January 3, 2000
- -----------------------------
John J. Murphy
/s/ LEROY C. RICHIE* Director January 3, 2000
- -----------------------------
Leroy C. Richie
/s/ MATTHEW R. SIMMONS* Director January 3, 2000
- -----------------------------
Matthew R. Simmons
/s/ FARAH M. WALTERS* Director January 3, 2000
- -----------------------------
Farah M. Walters
*By: January 3, 2000
-------------------------
Tom J. McDaniel
as Attorney-in-Fact
</TABLE>
<PAGE> 24
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NUMBER
<S> <C>
1 Form of Debt Underwriting Agreement.
4.1 Indenture dated as of August 1, 1982, between the Company and Citibank,
N.A., as Trustee, filed as Exhibit 4.1 to Registration Statement No.
2-78952 is hereby incorporated by reference.
4.2 First Supplemental Indenture dated as of May 7, 1996, between the Company
and Citibank, N.A., as Trustee, relating to the Company's 6.625% notes
due October 15, 2007, and 7.125% debentures due October 15, 2027, filed
as Exhibit 4.1 to the Form 8-K filed on July 29, 1999, is hereby
incorporated by reference.
4.3 Second Supplemental Indenture dated August 2, 1999, between the Company
and Citibank, N.A., as Trustee, relating to the Company's 5 1/2%
Exchangeable Notes due August 2, 2004.
4.4 Third Supplemental Indenture dated November 1, 1999, between the Company
and Citibank, N.A., as Trustee, relating to the Company's variable
interest rate notes due November 1, 2001.
5 Opinion of Gregory F. Pilcher, Vice President, General Counsel and
Secretary of the Company, as to the legality of the Common Stock being
registered.
12 Computations of Ratio of Earnings to Fixed Charges for the years 1994
through 1998, filed as Exhibit 12 to the Company's Current Report on Form
8-K/A dated February 26, 1999, filed as of July 26, 1999, is hereby
incorporated by reference.
23.1 Consent of Arthur Andersen LLP relating to Kerr-McGee Corporation
financial statements.
23.2 Consent of Gregory F. Pilcher (Contained in Exhibit 5).
</TABLE>
i
<PAGE> 25
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
NUMBER
<S> <C>
23.3 Consent of Pricewaterhouse Coopers LLP relating to Kerr-McGee
Corporation financial statements.
24 Powers of Attorney
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Citibank, N.A., is hereby incorporated by
reference.
</TABLE>
ii
<PAGE> 1
EXHIBIT 1
$______________
KERR-MCGEE CORPORATION
$____________ ____% Notes due ____
Underwriting Agreement
__________________
__________________
__________________
__________________
Dear Sirs:
KERR-McGEE CORPORATION, a Delaware corporation (the "Company"), hereby
confirms its agreement with ______________ (the "Underwriters").
The Company proposes to issue $____________ aggregate principal amount
of its securities, consisting of $____________ principal amount of ____% Notes
due _____________ (the "Securities") pursuant to an indenture dated as of August
1, 1982, as supplemented to date (the "Indenture"), between the Company and
Citibank, N.A. (the "Trustee"). The Securities are more particularly described
in the registration statement and prospectus hereinafter referred to and in the
Indenture.
1
<PAGE> 2
1. The Company represents, warrants and agrees with the several
Underwriters that:
(a) A Registration Statement on Form S-3 (File No.____) with respect to
the Securities has (i) been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed with the
Commission under the Act and (iii) become effective. As used in this
Agreement (i) "Preliminary Prospectus" means each prospectus (including all
documents incorporated therein by reference) included in the later
registration statement, or amendments or supplements thereof, before it
became effective under the Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; (ii)
"Registration Statement" means the registration statement, as amended or
supplemented at the date of this Agreement (including all documents
included therein by reference); (iii) "Basic Prospectus" means the
prospectus (including all documents incorporated therein by reference)
included in the later Registration Statement or such later dated prospectus
as may be filed by the Company pursuant to paragraphs (b) or (c) of Rule
424 of the Rules and Regulations; and (iv) "Prospectus" means the Basic
Prospectus, together with any prospectus amendment or supplement (including
in each case all documents incorporated therein by reference) specifically
relating to the Securities, as filed with, or mailed for filing to, the
Commission pursuant to paragraphs (b) or (c) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of any Prospectus.
(b) The Registration Statement and the Prospectus contain, and (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will contain
at all times during the period specified in Paragraph 5(c) hereof, all
statements which are required by the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission under such Acts; the Indenture conforms with the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
thereunder, and the Registration Statement and the Prospectus do not and
will not at the date of delivery, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will not at any time during the period
specified in Paragraph 5(c) hereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished
2
<PAGE> 3
to the Company through the Underwriters by or on behalf of any Underwriter
specifically for inclusion therein.
(c) The documents incorporated by reference into any Preliminary
Prospectus or Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will be at all times during the period
specified in Paragraph 5(c) hereof, prepared by the Company in conformity
with the applicable requirements of the Act and the Rules and Regulations
and the Exchange Act and the rules and regulations of the Commission
thereunder and such documents have been, or (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as
of which this representation is being made) will be at all times during the
period specified in Paragraph 5(c) hereof, timely filed as required
thereby.
(d) Except as set forth in or contemplated by the Registration Statement
and the Prospectus, since the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to the
date of delivery (as defined in Paragraph 4 hereof), there has not been,
and there will not have been, any material transaction not in the ordinary
course of business entered into by the Company or any of its Material
Subsidiaries which is material to the Company and its Material Subsidiaries
taken as a whole, any material change in the capital stock of the Company,
or any material adverse change in the financial position or results of
operations of the Company and its Material Subsidiaries taken as a whole.
As used in this Agreement, Material Subsidiaries shall include only:
Kerr-McGee Oil & Gas Corporation, Kerr-McGee (G.B.) Limited; Kerr-McGee
Chemical LLC; and, KMCC Western Australia Pty Ltd. None of the Company's
other subsidiaries is a "significant subsidiary" as defined in Rule 405 of
the Rules and Regulations.
(e) The Company and each of its Material Subsidiaries are validly
incorporated and existing corporations in good standing under the laws of
their respective jurisdictions of organization, have all necessary
corporate power and authority to conduct their respective businesses as
described in the Prospectus and are duly qualified and in good standing in
all jurisdictions in which the failure so to qualify would have a material
adverse effect on the financial condition of the Company and its Material
Subsidiaries taken as a whole.
(f) Except as set forth in or contemplated by the Registration Statement
and the Prospectus, the Company and each of its Material Subsidiaries hold
all material patents, licenses, certificates and permits from governmental
authorities necessary for the conduct of their present operations; and all
of the issued and outstanding shares of capital stock of each Material
Subsidiary of the Company have been duly authorized and are validly issued
and, except as otherwise indicated in the Registration Statement and except
for directors' qualifying
3
<PAGE> 4
shares, are owned by the Company free and clear of all liens, encumbrances,
security interests and claims.
(g) Arthur Andersen LLP, whose report appears in the Company's most
recent Annual Report on Form 10-K which is incorporated in the Prospectus
by reference, are certified public accountants and are independent
accountants within the meaning of the Act and the Rules and Regulations.
(h) Except as set forth in or contemplated by the Prospectus, there is
no material litigation or governmental proceeding pending or, to the
knowledge of the Company, threatened against or involving the Company or
any of its subsidiaries which would be likely to result in any material
adverse change in the financial position, results of operations or business
of the Company and its Material Subsidiaries taken as a whole.
(i) Neither the Company nor any of its Material Subsidiaries is in
violation of its certificate of incorporation or charter, as the case may
be, or by-laws or in default in the performance of any material obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of its indebtedness or any related loan agreement, note purchase
agreement or indenture. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein will
not conflict with or constitute a breach of, or a default under, the
certificate of incorporation or charter, as the case may be, or by-laws of
the Company or any Material Subsidiary, any material agreement, indenture
or other instrument by which the Company or any Material Subsidiary is
bound, or any applicable law, administrative regulation or court decree, or
result in the creation or imposition of any material lien, charge or
encumbrance upon any of the property or assets of the Company or any
Material Subsidiary.
(j) On the date of delivery (i) the Indenture will have been validly
authorized, executed and delivered by the Company and will constitute a
legally binding obligation of the Company enforceable against the Company
in accordance with its terms, except insofar as such enforcement may be
subject to (A) applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity), (ii) the Securities will have been validly authorized and,
upon due execution, authentication and delivery in accordance with the
terms of the Indenture and payment therefor as provided in this Agreement,
will be validly issued and outstanding, and will constitute legally binding
obligations of the Company entitled to the benefits of the Indenture and
(iii) the Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
(k) Since the end of its latest fiscal year the Company has timely filed
all documents and amendments to previously filed documents required to be
filed by it pursuant to Sections 12, 13, 14 or 15(d) of the Exchange Act;
and copies of
4
<PAGE> 5
each of the documents incorporated, or deemed to be incorporated, by
reference in the Basic Prospectus, together with evidence of the filing
thereof, have been delivered by the Company to the Underwriters.
2. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company hereby
agrees to sell to each of the Underwriters, and each of the Underwriters,
severally and not jointly, hereby agrees to purchase from the Company, the
principal amount of Securities set forth opposite such Underwriter's name in
Schedule 1 at a purchase price of _____% of the principal amount thereof, plus
accrued interest, if any, from ___________ to the date of payment and delivery.
It is understood that, in making this Agreement, the Underwriters are
contracting severally and not jointly, and that their several agreements to
purchase Securities on the basis of the agreements and representations herein
contained shall be several and not joint and shall apply only to the respective
amounts of Securities set forth opposite their respective names in Schedule 1
hereto, except as provided in Paragraph 3 hereof.
3. It shall be a condition of the agreement of the Company to sell and
deliver the Securities that each of the Underwriters shall purchase and pay for
the entire principal amount of Securities agreed to be purchased by such
Underwriter hereunder, except as hereinafter in this Paragraph 3 provided, and
the Company shall not be obligated to deliver any Securities except upon payment
by the several Underwriters for all of the Securities to be purchased hereunder.
Nothing herein contained shall relieve any defaulting Underwriter of its
liability, if any, to the Company for damages occasioned by its default
hereunder.
If any one or more of the Underwriters shall fail to purchase the entire
principal amount of the Securities to be purchased by such Underwriter or
Underwriters, the remaining Underwriters shall have the right, but shall not be
obligated, to take up and pay for (in such proportions as may be agreed among
them) the entire principal amount of the Securities which the withdrawing
Underwriter or Underwriters agreed but failed to purchase, but not less than
all.
In the event the remaining Underwriters agree as aforesaid to purchase
the Securities of a defaulting or withdrawing Underwriter or Underwriters, the
Underwriters or the Company shall have the right to postpone the date of
delivery to a date not exceeding six full business days after the date of
delivery fixed as provided in Paragraph 4 hereof in order to effect any changes
which in the opinion of counsel for the Company or of counsel for the
Underwriters may be necessary in the Registration Statement or the Prospectus or
in any other documents or arrangements by reason of such default or withdrawal
of any Underwriter.
4. Delivery by the Company of the Underwriters' Securities to the
Representatives for the respective accounts of the several Underwriters and
payment by the Underwriters therefor by certified or official bank check or
checks payable in, or
5
<PAGE> 6
by wire transfer of, immediately available (federal) funds to or upon the order
of the Company shall take place at Simpson Thacher & Bartlett, on the third full
business day following the date of this Agreement or at such other date or place
as shall be determined by agreement between the Underwriters and the Company.
The Underwriters' Securities will be registered in such names and in
such authorized denominations as the Representatives may request no less than
two full business days in advance of the Closing Date. For the purpose of
expediting the checking and packaging of the Securities, the Company agrees to
make the same available for inspection by the Underwriters in New York, New York
not later than one full business day prior to the date of delivery.
5. The Company hereby further agrees as follows:
(a) To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed or conformed copy of the Registration Statement as
originally filed and each amendment or supplement thereto filed on or prior
to the date of this Agreement or relating to or covering the Securities,
and a copy of the Prospectus filed with the Commission, including all
documents incorporated therein by reference and all consents and exhibits
filed therewith;
(b) To deliver promptly to the Underwriters such number of the following
documents as the Underwriters may request: (i) conformed copies of the
Registration Statement (excluding exhibits other than the computation of
the ratio of earnings to fixed charges), the Indenture and this Agreement,
(ii) the Prospectus and (iii) any documents incorporated by reference in
the Prospectus;
(c) To file with the Commission, during such period following the date
of this Agreement, as may be required by the Act or requested by the
Commission, the Prospectus as required by law to be delivered in respect of
the Securities, any amendment or supplement to the Registration Statement
or the Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Act or requested by the Commission;
(d) Prior to filing with the Commission during the period referred to in
(c) above (i) any amendment or supplement to the Registration Statement,
(ii) the Prospectus or amendment or supplement thereto or (iii) any
document incorporated by reference in any of the foregoing or any amendment
or supplement to any such incorporated document, to furnish a copy thereof
to the Underwriters and to counsel for the Underwriters and provide such
persons a reasonable opportunity to comment thereon;
(e) To advise the Underwriters immediately (i) when any post-effective
amendment to the Registration Statement relating to or covering the
Securities becomes effective, (ii) of any request or proposed request by
the Commission for any amendment or supplement to the Registration
Statement (insofar as the amendment or supplement relates to or covers the
Securities), to the Prospectus, to any document incorporated by reference
in any of the foregoing
6
<PAGE> 7
or for any additional information, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or any order directed to the Prospectus or any document
incorporated therein by reference or the initiation or threat of any stop
order proceeding or of any challenge to the accuracy of any document
incorporated by reference in the Prospectus, (iv) of receipt by the Company
of any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose and (v) of the happening of any event
during the period referred to in (c) above which makes untrue any statement
of a material fact made in the Registration Statement (insofar as the
Registration Statements relate to or cover the Securities) or the
Prospectus or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any material statement therein
not misleading;
(f) If, during the period referred to in (c) above, the Commission shall
issue a stop order suspending the effectiveness of the Registration
Statement, to make every reasonable effort to obtain the lifting of that
order at the earliest possible time;
(g) To endeavor to qualify or assist the Underwriters in qualifying the
Securities for offer and sale under the securities or Blue Sky laws of such
states as the Underwriters may reasonably request, provided that the
Company shall not be required to qualify as a foreign corporation or
execute or file any consent to general service of process under the laws of
any state where it is not so qualified or so subject;
(h) To pay all costs and expenses incident to the performance of its
obligations under this Agreement, including all expenses incident to the
authorization of the Securities and their issue and delivery, any taxes
payable in connection therewith, the fees and expenses of the Company's
counsel and accountants, the costs and expenses incident to preparing,
printing and filing under the Act or the Exchange Act of the Registration
Statement and any amendments and supplements thereto (including all
exhibits thereto), the Preliminary Prospectus, the Prospectus and all
documents incorporated therein by reference, and the distribution thereof
to the several Underwriters and selected dealers, the costs of printing the
Indenture, this Agreement and any selling agreement, the costs incident to
any listing of the Securities on the New York Stock Exchange, the cost of
any filings with the National Association of Securities Dealers, Inc., any
fees required to be paid to rating agencies incurred in connection with the
offering of the Securities, and the cost (including counsel fees not in
excess of $7,500 and any filing fees payable in this connection) of
qualifying the Securities under the securities or Blue Sky laws of the
several states as provided in Paragraph 5(g) hereof and of providing the
Underwriters with a memorandum from their counsel concerning the legality
of the Securities as an investment; it being understood that, except as
provided in this Paragraph 5(h) or in Paragraph 10 hereof, the Underwriters
will pay all their own costs and expenses, including fees and expenses of
their counsel, transfer taxes, if any, on
7
<PAGE> 8
any Securities which they may sell, and any advertising expenses connected
with any offering they may make;
(i) Until the termination of the offering of the securities, to file
timely all documents, and any amendments to previously filed documents,
required to be filed by it pursuant to Sections 12, 13, 14 or 15(d) of the
Exchange Act; and
(j) Without the prior written consent of the Underwriters, during the
period beginning on the date of this Agreement and continuing to the date
of delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company with maturities longer than one year,
other than indebtedness incurred under the Company's existing bank loan
agreements and Securities to be issued to the Underwriters.
6. (a) The Company shall indemnify and hold harmless each Underwriter,
each other person, if any, participating with the Underwriters in the
distribution of the Securities who is an "underwriter" within the meaning of
Section 2(11) of the Act with respect to the distribution of the Securities (the
"Participants") and each person, if any, who controls any Underwriter or any
Participant within the meaning of the Act from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which that Underwriter, Participant or controlling person may become subject,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, the Registration Statement or the
Prospectus or arises out of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse each
Underwriter, Participant and such controlling person for any legal and other
expenses reasonably incurred by that Underwriter, Participant or controlling
person in investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred; provided
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Prospectus, the Registration Statement or the Prospectus in
reliance upon and in conformity with written information furnished to the
Company through the Underwriters by or on behalf of any Underwriter specifically
for inclusion therein; and provided further that as to any Preliminary
Prospectus this indemnity agreement shall not inure to the benefit of any
Underwriter, Participant or any person controlling that Underwriter or
Participant on account of any loss, claim, damage, liability or action arising
from the sale of Securities to any person by that Underwriter or Participant if
it is established that such Underwriter or Participant failed to send or give a
copy of the Prospectus, as the same may be amended or supplemented, to that
person if required by the Act within the time required by the Act, and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in the Preliminary Prospectus was
corrected in the Prospectus and delivery of the Prospectus would have cured the
defect giving rise to such loss, claim, damage or liability, unless such failure
resulted from non-compliance by the Company with Paragraph 5(b) or 5(c) hereof.
For purposes of the
8
<PAGE> 9
second proviso to the immediately preceding sentence, the term "Prospectus"
shall not be deemed to include any document incorporated therein by reference.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter Participant or controlling person.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and any person who controls the Company within
the meaning of the Act from and against any loss, claim, damage or liability,
joint or several, and any action in respect thereof, to which the Company or any
such director, officer or controlling person may become subject, insofar as such
loss, claim, damage, liability or action, arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus, or arises
out of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company through the Underwriters by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company for any
legal and other expenses reasonably incurred by the Company or any such
director, officer or controlling person in investigating or preparing to defend
against any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any of its directors, officers or controlling
persons.
(c) Promptly after receipt by an indemnified party under this Paragraph
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have under this Paragraph 6 except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Paragraph 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Paragraph 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided that the
Underwriters shall have the right to employ one firm of counsel (in addition to
local counsel) to represent the Underwriters, those other Underwriters and
Participants and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company under this Paragraph 6 if, in the
reasonable
9
<PAGE> 10
judgment of the Underwriters, it is advisable for the Underwriters, Participants
and controlling persons to be represented by separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the Company. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Paragraph 6 shall for
any reason be unavailable or insufficient to an indemnified party under
Paragraph 6(a) or 6(b) hereof in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or any action in respect thereof, (i)
in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters and Participants on
the other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on one hand and the
Underwriters and Participants on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
and the Participants on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters and the
Participants with respect to such offering, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Paragraph 6(d) were to be determined by pro rata allocation (even if the
Underwriters and Participants were treated as one entity for such purpose) or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this
10
<PAGE> 11
Paragraph 6(d) shall be deemed to include, for purposes of this Paragraph 6(d),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph 6(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Paragraph 6(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The indemnity agreements contained in this Paragraph 6 and the
representations, warranties and agreements of the Company in Paragraph 1,
Paragraph 5 and Paragraph 9 hereof shall survive the delivery of the Securities
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
(f) The Underwriters severally confirm that the statements with respect
to the public offering of the Securities set forth on the cover page of, and
under the caption "Underwriting" in, the prospectus supplement to the Prospectus
are correct and constitute the only information furnished to the Company by or
on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
7. The obligations of the Underwriters under this Agreement shall be
subject to termination, in the absolute discretion of the Underwriters, by
notice given to and received by the Company prior to the date of delivery, if
after the execution hereof (i) trading in securities generally on the New York
Stock Exchange, the American Stock Exchange or the over-the-counter market shall
have been suspended or minimum prices shall have been established on such
exchanges, or such market by the Commission, by such exchanges or by any other
regulatory body or governmental body having jurisdiction, (ii) a banking
moratorium shall have been declared either by Federal or State authorities,
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States, (iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as to
make it, in the judgment of a majority in interest of the several Underwriters,
unpractical, or inadvisable to proceed with the public offering of or delivery
of the Securities under the terms and in the manner contemplated in the
Prospectus, (v) trading in any securities of the Company shall have been
suspended or halted by any national securities exchange, the National
Association of Securities Dealers, Inc. or the Commission or (vi) a downgrading
shall have occurred in the rating accorded the Company's debt securities by any
of Duff & Phelps Credit Rating Co., Standard & Poor's Corporation, and Moody's
Investors Service, Inc. or such organization shall have publicly announced that
it has under
11
<PAGE> 12
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities.
8. The respective obligations of the Underwriters under this Agreement
with respect to the Securities are subject to the accuracy, on the date of this
Agreement and on the date of delivery, of the representations and warranties of
the Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Securities:
(a) At or before the date of delivery, no stop order suspending the
effectiveness of the Registration Statements nor any order directed to any
document incorporated by reference in the Prospectus shall have been issued
and prior to that time no stop order proceeding shall have been initiated
or threatened by the Commission and no challenge shall have been made by
the Commission to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statements or any Prospectus or
otherwise shall have been complied with; and after the date of this
Agreement the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statements or the Prospectus
(or any document incorporated by reference therein) without the consent of
the Underwriters, which consent shall not be unreasonably withheld.
(b) No Underwriter shall have discovered and disclosed to the Company
prior to the date of delivery that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of Simpson Thacher & Bartlett,
counsel for the Underwriters, is material, or omits to state a fact which,
in the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) The authorization and issue of the Securities, the Indenture, the
Registration Statement, the Prospectus, any amendments or supplements
thereto and all corporate proceedings and other legal matters incident
thereto shall be satisfactory in all respects to Simpson Thacher &
Bartlett, and the Company shall have furnished to them such documents as
they may reasonably have requested to enable them to pass upon the matters
referred to in this subparagraph.
(d) The Company shall have furnished to the Underwriters a certificate
of the Chairman of the Board, Vice Chairman of the Board, the President, or
any Vice President dated the date of delivery, in which such officer, to
the best of his knowledge after reasonable investigation, shall state that
the representations and warranties of the Company in this Agreement are
true and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the date of delivery, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are
12
<PAGE> 13
contemplated by the Commission, and that, subsequent to the dates of the
most recent financial statements in the Prospectus, there has been no
material adverse change in the business, financial position, results of
operations or prospects of the Company and its subsidiaries, taken as a
whole, except as set forth or contemplated in the Prospectus.
(e) On the date of delivery, the Company shall have furnished to the
Underwriters a letter of Arthur Andersen LLP, dated the date of delivery,
which shall state, as of such date (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five business days prior to the date of such letter), the conclusions
and findings of said firm with respect to the financial information and
other matters covered by its letter furnished to the Underwriters
concurrently with the execution of this Agreement; and the effect of the
letter so to be furnished on the date of delivery shall be to confirm in
all material respects the conclusions and findings set forth in such prior
letter.
(f) On or before the date of delivery neither the Company nor any of its
Material Subsidiaries shall have sustained any loss on account of fire,
flood, accident or other calamity since the date hereof, (i) of such a
character as to interfere materially and adversely with the continuous
operation of the business of the Company and its Material Subsidiaries, or
(ii) which, in the judgment of the Underwriters, materially and adversely
affects the Company and its Material Subsidiaries taken as a whole,
regardless of whether or not such loss shall have been insured.
(g) On the date of delivery, the Company shall have furnished to the
Underwriters, the opinion of Gregory F. Pilcher, Esq., Vice President,
General Counsel and Secretary of the Company, dated the date of delivery,
to the effect that:
(i) The Company is a validly organized and existing corporation in
good standing under the laws of the State of Delaware, has all necessary
corporate power and authority to conduct its business as described in
the Prospectus, and is duly qualified and in good standing in all
jurisdictions in which the failure to so qualify would have a material
adverse effect on the financial condition of the Company and its
Material Subsidiaries taken as a whole;
(ii) Each of the Company's Material Subsidiaries is a validly
organized and existing corporation in good standing under the laws of
the jurisdiction of its organization, has all necessary corporate power
and authority to conduct its business as described in the Prospectus and
is duly qualified to do business in all jurisdictions in which the
failure so to qualify would have a material adverse effect on the
financial condition of the Company and its Material Subsidiaries taken
as a whole;
13
<PAGE> 14
(iii) All the issued and outstanding shares of capital stock of
each Material Subsidiary of the Company, except for directors'
qualifying shares and as otherwise indicated in the Registration
Statement, are owned by the Company, free and clear of all liens,
encumbrances, security interests and, to the best of the knowledge of
such counsel, claims;
(iv) The Indenture has been validly authorized, duly executed and
delivered by the Company and the Trustee and duly qualified under the
Trust Indenture Act and is a valid and legally binding obligation of the
Company;
(v) The Securities have been validly authorized, duly executed by
the proper officers of the Company, duly authenticated by the Trustee in
the manner described in a certificate of the Trustee delivered to the
Underwriters (which authentication certificate may be relied upon
without an inspection of the Securities) and delivered, and are the
validly issued and outstanding and legally binding obligations of the
Company, entitled to the benefits of the Indenture;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) Neither the execution and delivery of this Agreement, the
Indenture or the Securities nor the consummation of the transactions
contemplated herein and therein will conflict with or constitute a
breach of, or a default under, the certificate of incorporation or
charter, as the case may be, or by-laws of the Company or any Material
Subsidiary, any material agreement, indenture or other instrument known
to such counsel by which the Company or any Material Subsidiary is
bound, or any applicable law, administrative regulation or court decree
applicable to the Company or any Material Subsidiary, or result in the
creation or imposition of any material lien, charge or encumbrance upon
any of the property or assets of the Company or any Material Subsidiary;
provided, however, with respect to any material agreement, indenture or
other instrument by which the Company or any Material Subsidiary is
bound, such counsel may rely upon a certificate of the Treasurer or
Controller of the Company as to the nonexistence of a default or breach
by the Company of any covenant or restriction respecting its financial
condition;
(viii) The Securities and the Indenture conform as to legal
matters in all material respects to the statements concerning them in
the Registration Statements and the Prospectus;
(ix) The Registration Statement, as of its effective date, and the
Prospectus as of the date it was filed with the Commission, comply as to
form in all material respects with the requirements of the Act and the
Trust Indenture Act and the applicable rules and regulations
14
<PAGE> 15
thereunder (except that no opinion need be expressed as to the financial
statements and other financial or statistical data contained therein);
and the documents incorporated in the Prospectus on the date of delivery
as of the dates they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act and
the applicable rules and regulations thereunder (except that no opinion
need be expressed as to the financial statements and other financial or
statistical data contained therein); and the statements made in the
Prospectus under the following (or comparable) captions "Description of
Debt Securities" and "Terms of the Securities", insofar as they are or
refer to statements of law or legal conclusions or summarize provisions
of documents, have been prepared or reviewed by such counsel and are in
all material respects correct;
(x) Such counsel does not know of any contracts or other documents
required to be filed or incorporated by reference which are not so filed
or incorporated by reference and does not know of any contracts or other
documents which are required to be described in the Prospectus which are
not so described;
(xi) No consent, approval, authorization, registration or
qualification of any governmental authority is required in respect of
the sale of the Securities other than registration thereof under the Act
and qualification of the Indenture under the Trust Indenture Act and any
necessary qualifications under securities or Blue Sky laws of the
various jurisdictions in which the Securities are to be offered;
(xii) The Registration Statement has become effective under the
Act, and to the best knowledge of such counsel, no proceeding for a
stop-order suspending the effectiveness of the Registration Statement
has been issued and no proceeding for that purpose is pending or
threatened under Section 8(d) of the Act;
(xiii) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed documents
required to be filed by it pursuant to Sections 12, 13, 14 or 15(d) of
the Exchange Act; and
(xiv) Such counsel does not know of any litigation or any
governmental proceeding instituted or threatened against the Company or
any of its Material Subsidiaries which would interfere with the issuance
and sale of the Securities as contemplated by this Agreement or is
required to be disclosed in the Prospectus which is not disclosed and
correctly summarized therein.
In addition, such counsel shall state that no facts have come to such
counsel's attention which lead such counsel to believe that the Registration
Statement contained, as of the date of the filing of the Annual Report on Form
10-K of the
15
<PAGE> 16
Company for the year ended December 31, _____, or the Prospectus as
of its date and the date of delivery contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein not misleading.
All the opinions, affidavits, letters, evidence and certificates
mentioned above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are satisfactory to Simpson
Thacher & Bartlett.
(h) On the date of delivery, the Underwriters shall have received the
opinion of Simpson Thacher & Bartlett, dated the date of delivery, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(i) Subsequent to the dates of the most recent financial statements in
the Prospectus, there shall not have been any material adverse change in
the business, financial position, results of operations or prospects of the
Company and its subsidiaries, taken as a whole, except as set forth or
contemplated in the Prospectus.
9. The Company will mail and make generally available to its security
holders, as soon as practicable and for the time period specified by Rule 158
under the Act, a consolidated earnings statement which shall satisfy the
provisions of Section 11(a) and Rule 158 of the Act and will advise the
Underwriters in writing when such statement has been made available.
10. Anything herein to the contrary notwithstanding, if the Company
shall fail to tender the Securities in accordance with this Agreement, or if the
Underwriters shall for any reason permitted under this Agreement (other than
pursuant to Paragraph 7 hereof) decline to purchase the Securities, the sole
liability of the Company to the several Underwriters will be to reimburse the
several Underwriters up to a reasonable amount for the fees and expenses of
their counsel and for such other out-of-pocket expenses as shall have been
incurred by them in connection with this Agreement and the proposed purchase of
the Securities, and upon demand the Company will pay the full amount thereof to
the Underwriters. The Company will not be obligated to reimburse the several
Underwriters on account of any such expenses if this Agreement shall be
terminated for the reasons set forth in Paragraph 3 hereof or shall be
terminated by the Underwriters pursuant to Paragraph 7 hereof.
11. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by _____________ on behalf of the Underwriters. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing and delivered or sent by mail, telex or facsimile transmission to
______________ with a copy, in the case of any notice pursuant to Paragraph 6 to
the ___________ and any notices to the Company shall be sufficient if given by
the Underwriters in writing and delivered or sent by mail, telex or facsimile
transmission addressed to Kerr-McGee
16
<PAGE> 17
Corporation, Attention: Chief Financial Officer (Fax: 405-270-4211) (with a copy
to the General Counsel), Kerr-McGee Center, P.O. Box 25861, Oklahoma City,
Oklahoma 73125 (Fax: 405-270-4211.)
12. This Agreement shall inure to the benefit of and be binding upon the
several Underwriters, the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person other than the persons mentioned in the preceding sentence any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person; except that the
warranties, indemnities and agreements of the Company contained in this
Agreement shall also be for the benefit of any Participant and any person who
controls any Underwriter or any Participant within the meaning of Section 15 of
the Act, and except that the indemnities of the Underwriters shall be for the
benefit of the directors of the Company, such officers as shall have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Act.
13. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. For purposes of this Agreement,
business day means any day on which the New York stock Exchange is open for
trading.
14. This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
17
<PAGE> 18
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
KERR-McGEE CORPORATION
By:
-------------------------------------
Accepted:
By:
---------------------------------
By:
---------------------------------
Authorized Representative
18
<PAGE> 19
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Underwriter Notes
----------- ---------
<S> <C>
Total.................................................. $
=========
</TABLE>
<PAGE> 1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
KERR-MCGEE CORPORATION
TO
CITIBANK, N.A.,
AS TRUSTEE
-----------------------
SECOND SUPPLEMENTAL INDENTURE
DATED AUGUST 2, 1999
SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF AUGUST 1, 1982
- --------------------------------------------------------------------------------
<PAGE> 2
THIS SECOND SUPPLEMENTAL INDENTURE, dated August 2, 1999
(hereinafter called the "Supplemental Indenture"), is between KERR-McGEE
CORPORATION, a Delaware corporation (hereinafter called the "Corporation"), and
CITIBANK, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee under the Indenture
referred to below (hereinafter called the "Trustee").
RECITALS
The Company and the Trustee are parties to an Indenture, dated
as of August 1, 1982, as amended (the "Indenture"), relating to the issuance
from time to time by the Company of its Securities on terms to be specified at
the time of issuance. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Indenture.
The Company has duly authorized the creation of a series of
its Securities denominated its "5 1/2% Exchangeable Notes Due August 2, 2004"
representing up to 9,954,000 of its "Debt Exchangeable for Common Stock(SM)"
(such Securities being referred to herein as the "DECSSM"), the principal amount
of which is mandatorily exchangeable at Maturity into shares of Common Stock,
par value $0.10 per share (the "Devon Common Stock") of Devon Energy Corporation
("Devon"), or, at the option of the Company (under the circumstances described
herein), cash, in either case at the Exchange Rate (as defined herein) and/or
such other consideration as permitted or required by the terms of the DECS.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture in order to provide for the issuance of the DECS.
The Company has requested the Trustee and the Trustee has
agreed to join with it in the execution and delivery of this Supplemental
Indenture.
Section 901(f) of the Indenture provides that the Company,
acting pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into an indenture supplemental to the Indenture to make
such provisions in regard to matters or questions arising under the Indenture
which shall not adversely affect the interests of any Holders of Securities.
The Company has determined that this Supplemental Indenture
complies with Section 901(f) and does not require the consent of any Holders of
Securities. On the basis of the foregoing, the Trustee has determined that this
Supplemental Indenture is in form satisfactory to it.
<PAGE> 3
2
The Company has furnished the Trustee with an Officer's
Certificate and an Opinion of Counsel complying with the requirements of Section
905 of the Indenture, stating that the execution of this Supplemental Indenture
is authorized or permitted by the Indenture, and has delivered to the Trustee a
Board Resolution authorizing the execution and delivery of this Supplemental
Indenture, together with such other documents as may have been required by
Section 102 of the Indenture.
All things necessary to make this Supplemental Indenture a
valid agreement of the Company and the Trustee and a valid amendment of and
supplement to the Indenture have been done.
The entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture, and all things necessary have been done to make the
DECS, when executed by the Company and authenticated and delivered hereunder and
duly issued by the Company, the valid obligations of the Company, and to make
this Supplemental Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW THEREFORE:
It is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the DECS, as follows:
ARTICLE I
SECTION 1.01. Definitions.
For all purposes of the Indenture and this Supplemental
Indenture as they relate to the DECS, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article;
(2) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to the Indenture and this Supplemental Indenture
as a whole and not to any particular Article, Section or other subdivision; and
(3) capitalized terms used but not defined herein are used as
they are defined in the Indenture.
"Adjustment Event" has the meaning set forth in Section
2.04(b).
<PAGE> 4
3
"Business Day" means any day that is not a Saturday, a Sunday
or a day on which the NYSE or banking institutions or trust companies in The
City of New York are authorized or obligated by law or executive order to close.
"Closing Price" of any security on any date of determination
means (i) the closing sale price (or, if no closing price is reported, the last
reported sale price) of such security (regular way) on the NYSE on such date,
(ii) if such security is not listed for trading on the NYSE on any such date, as
reported in the composite transactions for the principal United States
securities exchange on which such security is so listed, (iii) if such security
is not so listed on a United States national or regional securities exchange, as
reported by the Nasdaq Stock Market, (iv) if such security is not so reported,
the last quoted bid price for such security in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or (v) if
such security is not so quoted, the average of the mid-point of the last bid and
ask prices for such security from each of at least three nationally recognized
independent investment banking firms selected by the Company for such purpose.
"DECS" has the meaning set forth in the recitals to this
Supplemental Indenture.
"Devon Common Stock" has the meaning set forth in the recitals
to this Supplemental Indenture.
"Dilution Event" has the meaning set forth in Section
2.05(a)(ii).
"Exchange Rate" means a rate equal to (a) if the Maturity
Price is greater than or equal to $39.16125 (the "Threshold Appreciation
Price"), 0.84746 shares of Devon Common Stock per DECS, (b) if the Maturity
Price is less than the Threshold Appreciation Price but is greater than the
Initial Price, a fraction equal to (i) the Initial Price divided by (ii) the
Maturity Price of one share of Devon Common Stock per DECS (such fractional
share being calculated to the nearest 1/100,000th of a share or, if there is not
a nearest 1/100,000th of a share, to the next higher 1/100,000th of a share) and
(c) if the Maturity Price is less than or equal to the Initial Price, one share
of Devon Common Stock per DECS; provided, however, that the Exchange Rate is
subject to adjustment from time to time pursuant to Section 2.04(a).
"Initial Price" means $33.1875 per share of Devon Common
Stock.
"Market Price" means, as of any date of determination, the
average Closing Price per share of Devon Common Stock for the 20 Trading Days
immediately prior to (but not including) the date of determination; provided,
however, that if there are not 20 Trading Days for the Devon Common Stock
occurring later than the 60th calendar day immediately prior to, but not
including, such date, the Market Price shall mean the market value per share of
Devon Common Stock as of such date as determined by a nationally recognized
investment banking firm retained for such purpose by the Company.
<PAGE> 5
4
"Maturity" means the date on which the principal of a DECS
becomes due and payable as provided herein, whether at Stated Maturity or by
declaration of acceleration or otherwise.
"Maturity Price" means the average Closing Price per share of
Devon Common Stock on the 20 Trading Days immediately prior to (but not
including) the date of Maturity; provided, however, that if there are not 20
Trading Days for the Devon Common Stock occurring later than the 60th calendar
day immediately prior to, but not including, the date of Maturity, Maturity
Price means the market value per share of Devon Common Stock as of Maturity as
determined by a nationally recognized independent investment banking firm
retained for such purpose by the Company.
"NYSE" means the New York Stock Exchange, Inc.
"Ordinary Cash Dividend" has the meaning set forth in
subparagraph (b)(5) of Section 2.04.
"Reported Securities" has the meaning set forth in
subparagraph (b)(3) of Section 2.04.
"Share Components" means the ratios of shares of Devon Common
Stock per DECS specified in clauses (a), (b) and (c) of the definition of
"Exchange Rate" set forth in this Article.
"Threshold Appreciation Price" has the meaning specified in
the definition of "Exchange Rate" set forth in this Article.
"Trading Day" means a Business Day on which the security, the
Closing Price of which is being determined, (a) is not suspended from trading on
any national or regional securities exchange or association or over-the-counter
market at the close of business and (b) has traded at least once on the national
or regional securities exchange or association or over-the-counter market that
is the primary market for the trading of such security.
"Transaction Value" means (a) for any cash received in any
Adjustment Event, the amount of cash received per share of Devon Common Stock,
(b) for any Reported Securities received in any Adjustment Event, an amount
equal to (x) the average Closing Price per security of such Reported Securities
for the 20 Trading Days immediately prior to (but not including) Maturity
multiplied by (y) the number of such Reported Securities (as adjusted pursuant
to subparagraph (b)(4) of Section 2.04) received per share of Devon Common Stock
and (c) for any property received in any Adjustment Event other than cash or
such Reported Securities, an amount equal to the fair market value of the
property received per share of Devon Common Stock on the date such property is
received, as determined by a nationally recognized investment banking firm
retained for this purpose by the Company; provided, however, that in the case of
<PAGE> 6
5
clause (b), (x) with respect to securities that are Reported Securities by
virtue of only clause (iv) of the definition of Reported Security, Transaction
Value with respect to any such Reported Security means the average of the
mid-point of the last bid and ask prices for such Reported Security as of
Maturity from each of at least three nationally recognized independent
investment banking firms retained for such purpose by the Company multiplied by
the number of such Reported Securities (as adjusted pursuant to subparagraph
(b)(4) of Section 2.04) received per share of Devon Common Stock and (y) with
respect to all other Reported Securities, if there are not 20 Trading Days for
any particular Reported Security occurring later than the 60th calendar day
immediately prior to, but not including, the date of Maturity, Transaction Value
with respect to such Reported Security means the market value per security of
such Reported Security as of Maturity as determined by a nationally recognized
investment banking firm retained for such purpose by the Company multiplied by
the number of such Reported Securities (as adjusted pursuant to subparagraph
(b)(4) of Section 2.04) received per share of Devon Common Stock. For purposes
of calculating the Transaction Value, any cash, Reported Securities or other
property receivable in any Adjustment Event shall be deemed to have been
received immediately prior to the close of business on the record date for such
Adjustment Event or, if there is no record date for such Adjustment Event,
immediately prior to the close of business on the effective date of such
Adjustment Event.
Section 1.02. Effect of Headings.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
Section 1.03. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.04. Separability.
In case any provision in this Supplemental Indenture or the
DECS shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.05. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act of 1939, as
amended, such required provisions shall control.
<PAGE> 7
6
Section 1.06. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, expressed or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, and the Holders of the DECS any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture.
Section 1.07. Application of Supplemental Indenture.
This Supplemental Indenture shall take effect on the date
hereof, and shall, except with respect to Section 1.09, apply only to the DECS.
This Supplemental Indenture shall have no effect on any other Securities,
whether originally issued prior to the date hereof or thereafter. If any
provision of this Supplemental Indenture is inconsistent with any provision of
the Indenture, then, to the extent permitted by the Indenture, the provision in
this Supplemental Indenture shall control.
SECTION 1.08. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND THE DECS SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS SUPPLEMENTAL
INDENTURE AND EACH SUCH DECS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 1.09. Section 301 of the Indenture is hereby amended
as follows:
(a) By amending Section 301 of the Indenture by deleting the
word "and" at the end of clause (12), by renumbering clause (13) of Section 301
as clause (14), and by inserting a new Section (13) as follows:
(13) the terms and conditions, if any, upon which the
Securities of the series may or shall be convertible into or exchangeable or
exercisable for or payable in, among other things, other securities,
instruments, contracts, currencies, commodities or other forms of property,
rights or interests or any combination of the foregoing; and
(b) By amending clause (c) of Section 601 by deleting the word
"and" at the end of clause (3), by replacing the period at the end of clause (4)
with "and", and by inserting as a new clause (5) as follows:
(5) the Trustee shall not at any time be under any
duty or responsibility to any Holder of a Security that may or shall be
convertible into or exchangeable or exercisable for or payable in, among other
things, other securities, instruments, contracts, currencies, commodities or
other forms of property, rights or interests or any combination of the
<PAGE> 8
7
foregoing, (A) to make or cause to be made any adjustment of the amount of the,
among other things securities, instruments, contracts, currencies, commodities
or other forms of property, rights or interests or any combination of the
foregoing that may be issued, transferred or delivered to such Holder, or to
determine whether any facts exist which may require any such adjustment, or with
respect to the nature or extent of any such adjustment when made, or with
respect to any method employed in making the same, (B) to account for the
validity or value (or the kind or amount) of the, among other things,
securities, instruments, contracts, currencies, commodities or others forms of
property, rights or interests or any combination of the foregoing that may at
any time be issued, transferred or delivered to such Holder or (C) with respect
to the failure of the Company to issue, transfer or deliver any of the, among
other things, securities, instruments, contracts, currencies, commodities or
other forms of property, rights or interests or any combination of the foregoing
pursuant to the terms of such Security.
(c) By amending clause (i) of Section 902 by inserting after
the last comma at the end of such clause the following: "or change the terms
or conditions of any Securities so as to adversely affect the terms or
conditions upon which such Securities are convertible into or exchangeable or
exercisable for or payable in, among other things, other securities,
instruments, contracts, currencies, commodities or other forms of property,
rights or interests or any combination of the foregoing."
ARTICLE II
The DECS
Section 2.01 Title and Terms.
There is hereby created under the Indenture a series of
Securities known and designated as the "5 1/2% Exchangeable Notes Due August 2,
2004" of the Company. The aggregate principal amount of DECS that may be
authenticated and delivered under this Indenture is limited to $330,348,375
million, except for DECS authenticated and delivered upon reregistration of,
transfer of, or in exchange for, or in lieu of, other DECS pursuant to Section
305, 306, 307, 904 and 1103 of the Indenture.
The Stated Maturity for payment of principal of the DECS shall
be August 2, 2004 and the DECS shall bear interest (computed on the basis of a
360-day year of twelve 30-day months) at the rate of 5 1/2% of the principal
amount per annum, from the date of original issuance or the most recent Interest
Payment Date to which interest has been paid or duly provided for, until the
principal amount thereof is exchanged at maturity pursuant to the terms of the
DECS. Interest on the DECS shall be payable quarterly in arrears on February 1,
May 1, August 1 and November 1 of each year, commencing November 1, 1999 (each,
an "Interest Payment Date"), to the persons in whose names the DECS (or any
predecessor securities) are registered at the close of business on the January
15, April 15, July 15 and October 15 immediately preceding such Interest Payment
Date, until the principal thereof is paid or made
<PAGE> 9
8
available for payment provided that interest payable at Maturity shall be
payable to the person to whom the Devon Common Stock is deliverable.
The DECS shall be initially issued in the form of a Global
Security and the Depositary for the DECS shall be the Depository Trust Company,
New York, New York.
The DECS shall not be redeemable prior to their Stated
Maturity and shall not be subject to any sinking fund. The DECS are not subject
to payment prior to the date of Maturity at the option of the Holder.
The DECS shall be mandatorily exchangeable as provided in
Section 2.02.
The Company shall not be obligated to pay any additional
amounts on the DECS in respect of taxes, except as otherwise provided in Section
2.06 and 3.01.
The DECS shall be issuable in denominations of $1000 and any
amounts in excess thereof.
The DECS shall not be issued as Original Issue Discount
Securities.
The form of DECS attached hereto as Exhibit A is hereby
adopted, as a form of Securities of a series that consists of DECS. Certain
terms of the DECS are set forth in the form of the DECS.
With respect to the DECS only and for the benefit of only the
Holders thereof, the failure on the part of the Company to observe or perform
any of the covenants or agreements on the part of the Company in this Second
Supplemental Indenture not otherwise specified in Section 501 of the Indenture
shall be an additional Event of Default with respect to the DECS as if and, for
all purposes under the Indenture, to the same extent as if the same were
specified in paragraph (d) of such Section 501 of the Indenture.
Section 2.02. Exchange at Maturity.
Subject to Section 2.04(b), at Maturity the principal amount
of each DECS shall be mandatorily exchanged by the Company into a number of
shares of Devon Common Stock at the Exchange Rate; provided, however, that,
pursuant to Section 2.03, no fraction of a share of Devon Common Stock shall be
issued. The Holders of the DECS shall be responsible for the payment of any and
all brokerage costs upon the subsequent sale of such shares. The Company may, at
its option, in lieu of delivering Devon Common Stock, deliver cash in an amount
(calculated to the nearest 1/100th of a dollar per DECS or, if there is not a
nearest 1/100th of a dollar, then to the next higher 1/100th of a dollar) equal
to the product of the number of shares of Devon Common Stock otherwise
deliverable in respect of such DECS on the date of Maturity, multiplied by the
Maturity Price; provided, however, that if such option is exercised,
<PAGE> 10
9
the Company shall deliver cash with respect to all, but not less than all, of
the Devon Common Stock that would otherwise be deliverable. In determining the
amount of cash deliverable in exchange for the DECS in lieu of Devon Common
Stock pursuant to the prior sentence hereof, if more than one DECS shall be
surrendered for exchange at one time by the same Holder, the amount of cash
which shall be delivered upon exchange shall be computed on the basis of the
aggregate number of DECS so surrendered at Maturity.
Section 2.03. No Fractional Shares.
If more than one DECS shall be surrendered for exchange
pursuant to Section 2.02 at one time by the same Holder, the number of full
shares of Devon Common Stock or Reported Securities which shall be delivered
upon such exchange, in whole or in part, as the case may be, shall be computed
on the basis of the aggregate number of DECS surrendered at Maturity. No
fractional shares or scrip representing fractional shares of Devon Common Stock
or Reported Securities shall be issued or delivered upon any exchange pursuant
to Section 2.02 of any DECS. In lieu of any fractional share of Devon Common
Stock or of Reported Securities which, but for the immediately preceding
sentence, would otherwise be deliverable upon such exchange, the Company,
through any applicable Paying Agent, shall make a cash payment in respect of
such fractional interest in an amount equal to the value of such fractional
share of Devon Common Stock or Reported Security at the Maturity Price. The
Company shall, upon such exchange of any DECS, provide cash to any applicable
Paying Agent in an amount equal to the cash payable with respect to any
fractional shares of Devon Common Stock deliverable upon such exchange, and the
Company shall retain such fractional shares of Devon Common Stock.
Section 2.04. Adjustment of Exchange Rate.
(a) Adjustment for Distributions, Reclassifications, etc. The
Exchange Rate shall be subject to adjustment from time to time as follows:
(i) If Devon shall:
(A) pay a stock dividend or make a distribution, in
either case, with respect to the Devon Common Stock in shares
of such stock;
(B) subdivide or split the outstanding shares of
Devon Common Stock into a greater number of shares;
(C) combine the outstanding shares of Devon Common
Stock into a smaller number of shares; or
(D) issue by reclassification (other than a
reclassification pursuant to clause (ii), (iii), (iv) or (v)
of the definition of Adjustment Event in paragraph (b)
<PAGE> 11
10
of this Section) of shares of Devon Common Stock any shares of
common stock of Devon;
then, in any such event, the Exchange Rate shall be adjusted
by adjusting each of the Share Components of the Exchange Rate
in effect immediately prior to such event so that a holder of
any DECS shall be entitled to receive, upon exchange pursuant
to Section 2.02 of the principal amount of such DECS at
Maturity, the number of shares of Devon Common Stock (or, in
the case of a reclassification referred to in clause (D) of
this sentence, the number of shares of other common stock of
Devon issued pursuant thereto) which such holder of such DECS
would have owned or been entitled to receive immediately
following such event had such DECS been exchanged immediately
prior to such event or any record date with respect thereto.
Each such adjustment shall become effective at the opening of
business on the Business Day next following the record date
for determination of holders of Devon Common Stock entitled to
receive such dividend or distribution in the case of a
dividend or distribution and shall become effective
immediately after the effective date in the case of a
subdivision, split, combination or reclassification. Each such
adjustment shall be made successively.
(ii) If Devon shall, after the date hereof, issue rights
or warrants to all holders of Devon Common Stock entitling them to
subscribe for or purchase shares of Devon Common Stock (other than
rights to purchase Devon Common Stock pursuant to a plan for the
reinvestment of dividends) at a price per share less than the Market
Price of the Devon Common Stock on the Business Day next following
the record date for the determination of holders of shares of Devon
Common Stock entitled to receive such rights or warrants, then in
each case, the Exchange Rate shall be adjusted by multiplying each of
the Share Components of the Exchange Rate in effect on the record
date for the determination of holders of Devon Common Stock entitled
to receive such rights or warrants, by a fraction, of which the
numerator shall be (A) the number of shares of Devon Common Stock
outstanding on such record date plus (B) the number of additional
shares of Devon Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and of which the denominator
shall be (x) the number of shares of Devon Common Stock outstanding
on such record date plus (y) the number of additional shares of Devon
Common Stock which the aggregate offering price of the total number
of shares of Devon Common Stock so offered for subscription or
purchase pursuant to such rights or warrants would purchase at the
Market Price of the Devon Common Stock on the Business Day next
following such record date, which number of additional shares shall
be determined by multiplying such total number of shares by the
exercise price of such rights or warrants and dividing the product so
obtained by such Market Price of Devon Common Stock. Such adjustment
shall become effective at the opening of business on the Business Day
next following the record date for the determination of holders of
Devon Common Stock entitled to receive such rights or warrants. To
the
<PAGE> 12
11
extent that such rights or warrants expire prior to the Maturity of
the DECS and shares of Devon Common Stock are not delivered pursuant
to such rights or warrants prior to such expiration, the Exchange
Rate shall be readjusted to the Exchange Rate which would then be in
effect had such adjustments for the issuance of such rights or
warrants been made upon the basis of delivery of only the number of
shares of Devon Common Stock actually delivered pursuant to such
rights or warrants. Each such adjustment shall be made successively.
(iii) Any shares of Devon Common Stock issuable in payment
of a dividend shall be deemed to have been issued immediately prior
to the close of business on the record date for such dividend for
purposes of calculating the number of outstanding shares of Devon
Common Stock under paragraph (a)(ii) of this Section.
(iv) All adjustments to the Exchange Rate will be
calculated to the nearest 1/100,000th of a share of Devon Common
Stock (or, if there is not a nearest 1/100,000th of a share of Devon
Common Stock, to the next lower 1/100,000th of a share of Devon
Common Stock). No adjustment in the Exchange Rate shall be required
unless such adjustment would require an increase or decrease of at
least one percent therein; provided, however, that any adjustments
which by reason of this paragraph (a)(iv) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. If an adjustment is made to the Exchange Rate pursuant to
paragraphs (a)(i) or (a)(ii) of this Section, an adjustment shall
also be made to the Maturity Price as such term is used throughout
the definition of Exchange Rate set forth in Section 1.01. The
required adjustment to the Maturity Price shall be made at Maturity
by multiplying the original Maturity Price by the number or fraction
determined under paragraphs (a)(i) and/or (a)(ii) of this Section by
which the original Exchange Rate was multiplied to adjust such rate.
In the case of a reclassification of any shares of Devon Common Stock
into any common stock of Devon other than Devon Common Stock, such
common stock shall be deemed to be shares of Devon Common Stock
solely to determine the Maturity Price and to apply the Exchange Rate
at Maturity. Each such adjustment to the Exchange Rate and the
Maturity Price shall be made successively.
(b) Other Adjustment Events. In the event of (i) any dividend
or distribution by Devon to all holders of Devon Common Stock of evidences of
its indebtedness or other assets (excluding any dividends or distributions
referred to in clause (A) of paragraph (a)(i) of this Section, any common shares
issued pursuant to a reclassification referred to in clause (D) of paragraph
(a)(i) of this Section and any Ordinary Cash Dividends (as defined below)) or
any issuance by Devon to all holders of Devon Common Stock of rights or warrants
to subscribe for or purchase any of its Securities (other than rights or
warrants referred to in paragraph (a)(ii) of this Section), (ii) any
consolidation or merger of Devon or any surviving entity or subsequent surviving
entity of Devon (a "Devon Successor") with or into another entity (other than a
merger or consolidation in which Devon is the continuing corporation and in
which the Devon Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash,
<PAGE> 13
12
securities or other property of Devon or another corporation), (iii) any sale,
transfer, lease or conveyance to another corporation of the property of Devon or
any Devon Successor as an entirety or substantially as an entirety, (iv) any
statutory exchange of securities of Devon or any Devon Successor with another
corporation (other than in connection with a merger or acquisition) or (v) any
liquidation, dissolution or winding up of Devon or any Devon Successor (any such
event, an "Adjustment Event"), the property receivable by Holders of DECS at
Maturity shall be subject to adjustment from time to time as follows:
(1) Each Holder of a DECS will receive at Maturity, in lieu of
or (in the case of an Adjustment Event described in clause (i) of this
paragraph (b)) in addition to, the shares of Devon Common Stock that it
would otherwise receive as required by Section 2.02, cash in an amount
equal to (A) if the Maturity Price is greater than or equal to the
Threshold Appreciation Price, 0.84746 multiplied by the Transaction
Value, (B) if the Maturity Price is less than the Threshold
Appreciation Price but is greater than the Initial Price, the product
of (x) the Initial Price divided by the Maturity Price multiplied by
(y) the Transaction Value and (C) if the Maturity Price is less than or
equal to the Initial Price, the Transaction Value.
(2) Following an Adjustment Event, the Maturity Price, as such
term is used in subparagraph (b)(1) above and throughout the definition
of Exchange Rate, shall be deemed to equal (A) if shares of Devon
Common Stock are outstanding at Maturity, subject to clause (B) below,
the Maturity Price of Devon Common Stock, as adjusted pursuant to the
provisions of paragraph (a)(iv) of this Section, plus the Transaction
Value or (B) if shares of Devon Common Stock are not outstanding at
maturity (or if the Devon Common Stock, as a result of an Adjustment
Event, is not (i) listed on a United States national securities
exchange, (ii) reported on a United States national securities system
subject to last sale reporting or (iii) traded in the over-the-counter
market and reported on the National Quotation Bureau or similar
organization, and for which bid and ask prices are not available from
at least three nationally recognized investment banking firms), the
Transaction Value.
(3) Notwithstanding the foregoing, with respect to any
securities received in an Adjustment Event that (A) are (i) listed on a
United States national securities exchange, (ii) reported on a United
States national securities system subject to last sale reporting, (iii)
traded in the over-the-counter market and reported on the National
Quotation Bureau or similar organization or (iv) for which bid and ask
prices are available from at least three nationally recognized
investment banking firms and (B) are either (x) perpetual equity
securities or (y) non-perpetual equity or debt securities with a stated
maturity after the Stated Maturity ("Reported Securities"), the Company
may, at its option, in lieu of delivering the amount of cash
deliverable in respect of Reported Securities received in an Adjustment
Event, as determined in accordance with subparagraph (b)(1), deliver a
number of such Reported Securities with a value equal to such cash
amount, as determined in accordance with clause (b) of the definition
of Transaction Value set forth
<PAGE> 14
13
in Section 1.01; provided, however, that (i) if such option is
exercised, the Company shall deliver Reported Securities in respect of
all, but not less than all, cash amounts that would otherwise be
deliverable in respect of Reported Securities received in an Adjustment
Event, (ii) the Company may not exercise such option if the Company has
elected to deliver cash in lieu of Devon Common Stock, if any,
deliverable upon Maturity or if such Reported Securities have not yet
been delivered to the holders entitled thereto following such
Adjustment Event or any record date with respect thereto, and (iii)
subject to clause (ii) of this proviso, the Company must exercise such
option if the Company does not elect to deliver cash in lieu of Devon
Common Stock, if any, deliverable upon Maturity. If the Company elects
to deliver Reported Securities, each Holder of a DECS will be
responsible for the payment of any and all brokerage and other
transaction costs upon the sale of such Reported Securities. If,
following any Adjustment Event, any Reported Security ceases to qualify
as a Reported Security, then (x) the Company may no longer elect to
deliver such Reported Security in lieu of an equivalent amount of cash
and (y) notwithstanding clause (b) of the definition of Transaction
Value, the Transaction Value of such Reported Security shall mean the
fair market value of such Reported Security on the date such security
ceases to qualify as a Reported Security, as determined by a nationally
recognized investment banking firm retained for this purpose by the
Company.
(4) The amount of cash and/or the kind and number of
securities into which the DECS shall be exchangeable after an
Adjustment Event shall be subject to adjustment following such
Adjustment Event in the same manner and upon the occurrence of the same
type of events as described in paragraphs (a) and (b) of this Section
with respect to Devon Common Stock and Devon.
(5) For purposes of the foregoing, the term "Ordinary Cash
Dividend" means, with respect to any consecutive 365-day period, any
dividend with respect to Devon Common Stock paid in cash to the extent
that the amount of such dividend, together with the aggregate amount of
all other dividends on Devon Common Stock paid in cash during such
365-day period, does not exceed on a per-share basis 10% of the average
of the Closing Prices of Devon Common Stock over such 365-day period.
For purposes of this subparagraph (b)(5), any cash dividend shall be
deemed to be paid as of the record date for such cash dividend.
Section 2.05. Notice of Adjustment and Certain Other Events.
(a) Whenever the Exchange Rate is adjusted as herein provided
or an Adjustment Event occurs, the Company shall:
(i) forthwith compute the adjusted Exchange Rate (or
Transaction Value) in accordance with Section 2.04 and prepare a
certificate signed by an officer of the Company setting forth the
adjusted Exchange Rate (or Transaction Value), the method of
<PAGE> 15
14
calculation thereof in reasonable detail and the facts requiring such
adjustment and upon which such adjustment is based, which certificate
shall be conclusive, final and binding evidence of the correctness of
the adjustment, and file such certificate forthwith with the Trustee;
and
(ii) within ten Business Days following the occurrence of
an event that permits or requires an adjustment to the Exchange Rate
pursuant to Section 2.04(a) (each, a "Dilution Event") or an
Adjustment Event that permits or requires a change in the
consideration to be received by Holders pursuant to Section 2.04(b)
(or, in either case, if the Company is not aware of such occurrence,
as soon as practicable after becoming so aware), provide written
notice to the Trustee and to the Holders of the outstanding DECS of
the occurrence of such Dilution Event or Adjustment Event including a
statement in reasonable detail setting forth the method by which any
adjustment to the Exchange Rate or change in the consideration to be
received by Holders of DECS following the Adjustment Event was
determined and setting forth the revised Exchange Rate or
consideration, as the case may be; provided, however, that in respect
of any adjustment of the Maturity Price, such notice need only
disclose the factor by which the Maturity Price is to be multiplied
pursuant to Section 2.04(a)(iv) in order to determine which clause of
the definition of the Exchange Rate will apply at Maturity, it being
understood that, until Maturity, the Exchange Rate itself cannot be
determined.
(b) In case at any time while any of the DECS are outstanding
the Company becomes aware that:
(i) Devon will declare a dividend (or any other
distribution) on or in respect of the Devon Common Stock to which
Section 2.04(a)(i) or (ii) shall apply (other than any cash dividends
and distributions, if any, paid from time to time by Devon that
constitute Ordinary Cash Dividends);
(ii) Devon will authorize the issuance to all holders of
Devon Common Stock of rights or warrants to subscribe for or purchase
shares of Devon Common Stock or of any other subscription rights or
warrants;
(iii) there will occur any conversion or reclassification
of Devon Common Stock (other than a subdivision or combination of
outstanding shares of such Devon Common Stock) or any consolidation,
merger or reorganization to which Devon is a party and for which
approval of any stockholders of Devon is required, or the sale or
transfer of all or substantially all of the assets of Devon; or
(iv) there will occur the voluntary or involuntary
dissolution, liquidation or winding up of Devon;
<PAGE> 16
15
then, if the Company becomes aware of the information described in
clause (x) and (y) below (other than the proposed merger between Devon
Delaware and PennzEnergy Corp. for the terms disclosed on the date
hereof) a reasonable amount of time in advance of the delivery and
filing requirements set forth in this subparagraph (b), the Company
shall cause to be delivered to the Trustee and any applicable Paying
Agent and filed at the office or agency maintained for the purpose of
exchange of DECS at Maturity in the Borough of Manhattan, in The City
of New York by the Trustee (or any applicable Paying Agent), and shall
promptly cause to be mailed to the Holders of DECS at their last
addresses as they shall appear upon the registration books of the
Security Registrar, at least ten days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the
event that more than one is specified), a notice stating (x) the date
on which a record is to be taken for the purpose of such dividend,
distribution or grant of rights or warrants or, if a record is not to
be taken, the date as of which holders of Devon Common Stock of record
to be entitled to such dividend, distribution or grant of rights or
warrants are to be determined, or (y) the date, if known by the
Company, on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective. Following any Adjustment Event, the provisions of this
paragraph (b) shall apply with respect to any Reported Securities in
the same manner as with respect to Devon and the Devon Common Stock.
(c) On or prior to the twenty-first Business Day preceding the
Stated Maturity of the DECS, the Company shall notify the Trustee and will
publish a notice in a daily newspaper of national circulation stating whether
the Company will deliver, in accordance with Section 2.02, shares of Devon
Common Stock or cash (and/or, in accordance with Section 2.04(b), cash or
Reported Securities) upon the mandatory exchange of the principal amount of the
DECS. The Trustee shall notify DTC of the form of consideration to be delivered
by the Company. After the close of business on the Business Day immediately
preceding the Stated Maturity of the DECS, the Company shall notify the Trustee
in writing of the number of shares of Devon Common Stock and/or Reported
Securities, or the amount of cash to be paid per DECS.
Section 2.06. Taxes.
(a) The Company will pay any and all documentary, stamp,
transfer or similar taxes that may be payable in respect of the transfer and
delivery of Devon Common Stock (or Reported Securities) pursuant hereto;
provided, however, that the Company shall not be required to pay any such tax
which may be payable in respect of any transfer involved in the delivery of
Devon Common Stock (or Reported Securities) in a name other than that in which
the DECS so exchanged were registered, and no such transfer or delivery shall be
made unless and until the person requesting such transfer has paid to the
Company the amount of any such tax, or has established, to the satisfaction of
the Company, that such tax has been paid.
(b) The parties hereto hereby agree, and each Holder of a DECS
by its purchase of a DECS hereby agrees:
<PAGE> 17
16
(i) to treat, for U.S. federal income tax purposes, each
DECS as a forward purchase contract to purchase Devon Common Stock at
Maturity (including as a result of acceleration or otherwise) (the
"forward purchase contract characterization"), under the terms of
which contract (a) at the time of issuance of the DECS the Holder
deposits irrevocably with the Company a fixed amount of cash equal to
the purchase price of the DECS to assure the fulfillment of the
Holder's purchase obligation described in clause (c) below, which
deposit will unconditionally and irrevocably be applied at Maturity
to satisfy such obligation, (b) until Maturity the Company will be
obligated to pay interest on such deposit at a rate equal to the
stated rate of interest on the DECS as compensation to the Holder for
the Company's use of such cash deposit during the term of the DECS,
and (c) at Maturity such cash deposit unconditionally and irrevocably
will be applied by the Company in full satisfaction of the Holder's
obligation under the forward purchase contract, and the Company will
deliver to the Holder the number of shares of Devon Common Stock that
the Holder is entitled to receive at the time pursuant to the terms
of the DECS (subject to the Company's right to deliver cash in lieu
of the shares of Devon Common Stock);
(ii) to treat, consistent with the above characterization,
(x) amounts paid to the Company in respect of the original issue of a
DECS as allocable in their entirety to the amount of the cash deposit
attributable to such DECS, and (y) amounts denominated as interest
that are payable with respect to the DECS as interest payable on the
amount of such deposit, includible annually in the income of the
Holder as interest income in accordance with its method of
accounting; and
(iii) to file all U.S. federal, state and local income and
franchise tax returns consistent with the forward purchase contract
characterization (unless required otherwise by an applicable taxing
authority).
Section 2.07. Delivery of Securities upon Maturity.
All Devon Common Stock and Reported Securities deliverable to
Holders upon the Maturity of the DECS shall be delivered to such Holders,
whenever practicable, in such manner (such as by book-entry transfer) so as to
assure same-day transfer of such securities to Holders and otherwise in the
manner customary at such time for delivery of such securities and securities of
the same type.
ARTICLE III
Covenants
Section 3.01 Shares Free and Clear; No Rights in the Stock.
<PAGE> 18
17
With respect to the DECS only and for the benefit of only the
Holders thereof, the Company covenants and warrants that upon exchange of a DECS
at Maturity pursuant to the Indenture and this Supplemental Indenture, the
Holder of a DECS shall receive valid title to the Devon Common Stock (and, in
the event an Adjustment Event has occurred, the Reported Securities, if Reported
Securities are delivered) for which such DECS is at such time exchangeable
pursuant to this Indenture, free and clear of any and all liens, claims, charges
and encumbrances whatsoever, except to the extent such liens, claims, charges
and encumbrances as may have been placed on any Devon Energy Common Stock by the
prior owner thereof, prior to the time such Devon Energy Common Stock was
acquired by the Company, or are caused by the Holders. In addition, the Company
further warrants that any Devon Common Stock (and Reported Securities) so
delivered in exchange for DECS hereunder shall be free of any transfer
restrictions (other than such as are solely attributable to any Holder's status
as an affiliate of Devon or the issuer of such Reported Securities). Except as
provided in Section 2.06(a), the Company shall pay all taxes and charges with
respect to the delivery of Devon Common Stock (and Reported Securities)
delivered in exchange for DECS hereunder. Until such time, if any, as the
Company shall deliver shares of Devon Common Stock to Holders of the DECS at
Maturity, the Holders shall not be entitled to any rights with respect to the
Devon Common Stock (including, without limitation, voting rights and the rights
to receive any dividends or other distributions in respect thereof.
Section 3.02 Discharge of Indenture.
With respect to the DECS only and for the benefit of only the
Holders thereof, Article Four of the Indenture is amended to read in its
entirety as follows:
(a) If at any time (i) the Company shall have delivered to the Trustee
for cancellation all of the DECS theretofore authenticated and
delivered (other than (1) any DECS which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided
in Section 306 and (2) DECS for whose payment money has theretofore
been deposited in trust and thereafter repaid to the Company as
provided in Section 1003) or (ii) all DECS not theretofore delivered to
the Trustee for cancellation shall have become due and payable, and the
Company shall deposit with the Trustee in trust the number of shares of
Devon Energy Common Stock (and/or Reported Securities) or the entire
amount of money in Dollars sufficient to pay all DECS not theretofore
delivered to the Trustee for cancellation, including principal and
interest due, in accordance with the terms of such DECS, and if in
either case the Company shall also pay or cause to be paid all other
the sums payable hereunder by the Company, then this Second
Supplemental Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such
DECS herein expressly provided for and rights to receive payments of
principal of, and interest on, the DECS with respect to the DECS), and
the Trustee, on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and
<PAGE> 19
18
at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this
Indenture.
ARTICLE IV
Miscellaneous
Section 4.01. Confirmation of Indenture.
The Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and construed as
one and the same instrument.
Section 4.02. Concerning the Trustee.
The Trustee assumes no duties, responsibilities or liabilities
by reason of this Supplemental Indenture other than as set forth in the
Indenture.
The recitals contained herein shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of
same, except for the recital indicating the Trustee's approval of the form of
this Second Supplemental Indenture. The Trustee makes no representation as to
the validity of this Second Supplemental Indenture.
The Trustee accepts the trust created by the Indenture, as
supplemented by this Second Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as supplemented by this
Second Supplemental Indenture.
Section 4.03. Payment of Principal.
Each reference in the Indenture to the payment by the Company
of the principal of any Security (or words of like import) shall be deemed, for
purposes of the DECS only, to mean the delivery of the Devon Common Stock (or,
at the Company's option, the cash equivalent thereof) at the time, rate and
manner set forth herein.
------------
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
<PAGE> 20
19
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
KERR-McGEE CORPORATION
By: /s/ JOHN C. LINEHAN
----------------------------
Name: John C. Linehan
Title: Executive Vice President
[CORPORATE SEAL]
Attest: /s/ DON HAGER
--------------------
Name: Don Hager
Title: Assistant Secretary
CITIBANK, N.A.,
as Trustee
By: /s/ P. DEFELICE
----------------------------
Name: P. DeFelice
Title: Vice President
Attest: /s/ NANCY FORTE
--------------------
Name: Nancy Forte
Title: Trust Officer
<PAGE> 21
STATE OF OKLAHOMA )
) ss.:
COUNTY OF OKLAHOMA )
On the 2nd day of August, 1999, before me personally appeared
John C. Linehan, to me known, who, being by me duly sworn, did depose and say
that he is the Executive Vice President of KERR-McGEE CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ KAREN D. HANSON
---------------------------
Notary Public
[SEAL]
My Commission Expires:
October 30, 2000
<PAGE> 22
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 2nd day of August, 1999, before me personally came
P. DeFelice, to me known, who, being by me duly sworn, did depose and say that
he is the Vice President of CITIBANK, N.A., one of the corporations described in
and which executed the foregoing instrument; that she/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that she/he signed her/his name thereto by like authority.
/s/ PETER M. PAVLYSHIN
-----------------------
Notary Public
[SEAL] [STAMP]
<PAGE> 23
EXHIBIT A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR THE INDIVIDUAL DEBT SECURITIES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 24
This Note is a Global Note within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This DECS may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary, unless and until this Note is exchanged in whole or in part for DECS
in definitive form.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Company or the Trustee (each as hereafter defined) for registration of
transfer, exchange, or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
NO. D-3 CUSIP NO. 492386305
$43,088,925
KERR-McGEE CORPORATION
1,298,348 DECS (SM)
(Debt Exchangeable for Common Stock (SM))
5 1/2% Exchangeable Note Due August 2, 2004
(Subject to Exchange at Maturity into Shares of Common Stock,
Par Value $.10 Per Share, of Devon Energy Corporation)
KERR-McGEE CORPORATION, a Delaware corporation (hereinafter
called the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO. or registered assigns, on August 2, 2004 a number of shares of
Common Stock, par value $.10 per share (the "Devon Common Stock"), of Devon
Energy Corporation ("Devon") (or, at the Company's option, the cash equivalent
thereof and/or such other consideration as permitted or required by the terms of
the DECS) at the Exchange Rate (as defined herein), and to pay interest
(computed on the basis of a 360-day year of twelve 30-day months) on such
principal amount from the date of original issuance or from the most recent
Interest Payment Date (as defined below) to which interest has been paid or duly
provided for, quarterly on February 1, May 1, August 1 and November 1 of each
year (each, an "Interest Payment Date" and, collectively, the "Interest Payment
Dates"),
<PAGE> 25
2
commencing November 1, 1999, at the rate per annum specified in the title of
this note, until Maturity. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in said Indenture,
be paid to the person in whose name this DECS (or the DECS in exchange or
substitution for which this DECS was issued) is registered at the close of
business on the Regular Record Date (as defined below) for interest payable on
such Interest Payment Date. The "Regular Record Date" for any interest payment
is the close of business on the January 15, April 15, July 15 and October 15
immediately preceding the relevant Interest Payment Date, whether or not a
Business Day (as defined below), provided that interest payable at Maturity
shall be payable to the person to whom the Devon Common Stock is deliverable. In
any case where such Interest Payment Date shall not be a Business Day, then
(notwithstanding any other provision of said Indenture or this DECS) payment of
such interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and, if such payment is so made, no interest shall accrue
for the period from and after such Interest Payment Date. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holder on such Regular Record Date, and may be paid to the person
in whose name this DECS (or the DECS in exchange or substitution for which this
DECS was issued) is registered at the close of business on a record date for the
payment of such interest to be fixed by the Trustee for the DECS, notice whereof
shall be given to Holders of the DECS not less than ten days prior to such
record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the DECS
may be listed and not deemed impracticable by the Trustee, and upon such notice
as may be required by such exchange.
At Maturity, the principal amount of this DECS will be
mandatorily exchanged into a number of shares of Devon Common Stock, at the
Exchange Rate. The "Exchange Rate" is equal to (a) if the Maturity Price (as
defined below) is greater than or equal to $39.16125 (the "Threshold
Appreciation Price"), 0.84746 shares of Devon Common Stock per DECS, (b) if the
Maturity Price is less than the Threshold Appreciation Price but is greater than
$33.1875 (the "Initial Price"), a fraction equal to the Initial Price divided by
the Maturity Price of one share of Devon Common Stock per DECS (such fractional
share being calculated to the nearest 1/100,000th of a share or, if there is not
a nearest 1/100,000th of a share, to the next higher 1/100,000th of a share) and
(c) if the Maturity Price is less than or equal to the Initial Price, one share
of Devon Common Stock per DECS. Any shares of Devon Common Stock delivered by
the Company to the Holders of the DECS that are not affiliated with Devon shall
be free of any transfer restrictions except to the extent any transfer
restrictions are caused by the Holders of DECS, and the holders of DECS will be
responsible for the payment of any and all brokerage costs upon the subsequent
sale of such shares. No fractional shares of Devon Common Stock will be issued
at Maturity as provided in the Indenture.
The Company may at its option, in lieu of delivering shares of
Devon Common Stock, deliver cash in an amount equal to the value of such number
of shares of Devon Common Stock at the Maturity Price as provided in the
Indenture; provided, however, that if such option
<PAGE> 26
3
is exercised, the Company shall deliver cash with respect to all, but not less
than all, of the shares of Devon Common Stock that would otherwise be
deliverable.
Notwithstanding the foregoing, (i) in the case of certain
dilution events, the Exchange Rate will be subject to adjustment and (ii) in the
case of certain adjustment events, the consideration received by Holders of DECS
at Maturity will be shares of Devon Common Stock, other securities and/or cash,
each as provided in the Indenture.
The "Maturity Price" is defined as the average Closing Price
per share of Devon Common Stock on the 20 Trading Days immediately prior to (but
not including) the date of Maturity or, under certain circumstances as provided
in the Indenture, the market value per share of Devon Common Stock as of the
date of Maturity as determined by a nationally recognized independent investment
banking firm retained for this purpose by the Company. The "Closing Price" of
any security on any date of determination means (i) the closing sale price (or,
if no closing sale price is reported, the last reported sale price) of such
security (regular way) on the New York Stock Exchange (the "NYSE") on such date,
(ii) if such security is not listed for trading on the NYSE on any such date, as
reported in the composite transactions for the principal United States
securities exchange on which such security is so listed, (iii) if such security
is not so listed on a United States national or regional securities exchange, as
reported by the Nasdaq Stock Market, (iv) if such security is not so reported,
the last quoted bid price for such security in the over-the-counter market as
reported by the National Quotation Bureau or similar organization or (v) if such
security is not so quoted, the average of the mid-point of the last bid and ask
prices for such security from each of at least three nationally recognized
investment banking firms selected for this purpose by the Company. A "Trading
Day" is defined as a Business Day on which the security the Closing Price of
which is being determined (i) is not suspended from trading on any national or
regional securities exchange or association or over-the-counter market at the
close of business and (ii) has traded at least once on the national or regional
securities exchange or association or over-the-counter market that is the
primary market for the trading of such security. "Business Day" means any day
that is not a Saturday, a Sunday or a day on which the NYSE, banking
institutions or trust companies in The City of New York, New York are authorized
or obligated by law or executive order to close.
Interest on this DECS will be payable, and delivery of Devon
Common Stock (or, at the Company's option, the cash equivalent of such Devon
Common Stock and/or such other consideration as permitted or required herein and
in the Indenture) in exchange for the principal amount of this DECS at Maturity
will be made upon surrender of this DECS, at the office or agency of the Company
maintained for that purpose in the City of New York, New York, and payment of
interest on (and, if the Company elects not to deliver Devon Common Stock and/or
other Reported Securities upon exchange at Maturity, the cash equivalent thereof
payable upon exchange for the principal amount of) this DECS will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; provided, however, that
at the option of the Company payment of interest may be made by check mailed to
the persons in whose names the DECS are registered on the Regular
<PAGE> 27
4
Record Date with respect to the relevant Interest Payment Date. Initially, such
office shall be the principal corporate trust office of the Trustee in New York
City, which is located at 111 Wall Street, 5th Floor, New York, New York 10005.
Reference is hereby made to the further provisions of this
DECS set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as of set forth at this place.
Unless the certificate of authentication hereon has been
executed by manual signature by the Trustee referred to on the reverse hereof,
this DECS shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
"DECS" and "Debt Exchangeable for Common Stock" are service
marks of Salomon Smith Barney Inc.
<PAGE> 28
5
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal by the manual or facsimile signatures
of its officers thereunto duly authorized.
KERR-McGEE CORPORATION
By:
-------------------
Attest:
By:
-------------------
Dated: August 9, 1999
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt Securities
issued under the within mentioned Indenture.
Date of Authentication:
CITIBANK, N.A.,
as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE> 29
6
[Reverse of DECS]
KERR-McGEE CORPORATION
5 1/2% Exchangeable Note Due August 2, 2004
(Subject to Exchange at Maturity into Shares of Common Stock,
Par Value $.10 Per Share, of Devon Energy Corporation)
This DECS is one of a duly authorized issue of notes of the
Company of the series designated 5 1/2% Exchangeable Notes due August 2, 2004,
(herein called the "DECS"), limited in aggregate principal amount to
$330,348,375 issued and to be issued under an Indenture dated as of August 1,
1982, between the Company and Citibank, N.A., as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture dated as of May 7, 1996 and the
Second Supplemental Indenture thereto dated August 2, 1999 (said Indenture, as
so supplemented, herein and as it may be further supplemented from time to time,
called the "Indenture"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee and the Holders of the DECS, and of the terms upon which
the DECS are, and are to be, authenticated and delivered.
The DECS may not be redeemed prior to Stated Maturity and are
not entitled to the benefit of any sinking fund.
The provisions contained in the Indenture for defeasance of
the Company's obligations and discharge of the entire principal of all the
Securities of any series upon compliance by the Company with certain conditions
set forth therein will not be applicable to the DECS. Certain other provisions
contained in the Indenture pertaining to satisfaction and discharge of the
Indenture upon deposit of funds with the Trustee shall apply to the DECS in the
manner set forth in the Second Supplemental Indenture referred to above.
If an Event of Default with respect to the DECS, as defined in
the Indenture, shall occur and be continuing, the principal of all DECS may be
declared due and payable and therefore will result in the mandatory exchange of
the principal amount thereof for Devon Common Stock (or, at the Company's
option, cash and/or such other consideration as permitted or required herein),
all in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company with
<PAGE> 30
7
respect to the DECS and the rights of the Holders of each series of the DECS
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Outstanding DECS of the series to be affected thereby. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the DECS of any series at the time Outstanding, on behalf of
the Holders of all the DECS of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences with respect to such series. Any such consent
or waiver by the Holder of this DECS shall be conclusive and binding upon such
Holder and upon all future Holders of this DECS and of any DECS issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this DECS.
Holders of DECS may not enforce their rights pursuant to the
Indenture or the DECS except as provided in the Indenture. No reference herein
to the Indenture and no provision of this DECS or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this DECS at the times, place, and rate,
and in the manner herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this DECS is transferable on the Security
Register of the Company, upon surrender of this DECS for registration of
transfer at the office of the Company maintained for such purpose in the Borough
of Manhattan, the City and State of New York, duly endorsed, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new DECS of like aggregate
principal amount of such denominations as are authorized for DECS and of a like
Stated Maturity and with like terms and conditions will be issued in the name of
the designated transferee or transferees.
The DECS are issuable in registered form without coupons, in
denominations of $1,000 and any amounts in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, DECS are
exchangeable for other DECS of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of DECS, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this DECS is registered as the owner
hereof for all purposes, whether or not this DECS be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
<PAGE> 31
8
All terms used in this DECS which are defined in the Indenture
shall have the meanings assigned to them therein.
THIS DECS SHALL FOR ALL PURPOSES BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
-------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of the within DECS, shall be construed as though they were written out
in full according to applicable laws or regulations.
TEN COM - as tenants in common -
TEN ENT - as tenants by the entireties UNIF GIFT MIN ACT
___________Custodian_____________
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as Under Uniform Gifts to Minors Act
tenants in common _________________________________
(State)
Additional abbreviations may also be used though
not in the above list
----------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY ------------------------------
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
(Name and Address of Assignee, including zip code,
must be printed or typewritten)
<PAGE> 32
9
the within DECS, and all rights thereunder, hereby irrevocably constituting and
appointing Attorney to transfer said DECS on the books of the Company, with full
power of substitution in the premises.
Dated:
--------------------- ------------------------------
Signature
NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within DECS in every
particular, without alteration or enlargement or any change whatever.
<PAGE> 1
EXHIBIT 4.4
- --------------------------------------------------------------------------------
KERR-MCGEE CORPORATION
TO
CITIBANK, N.A.,
AS TRUSTEE
-----------------------
THIRD SUPPLEMENTAL INDENTURE
DATED NOVEMBER 1, 1999
SUPPLEMENTING AND AMENDING THE INDENTURE
DATED AS OF AUGUST 1, 1982
- --------------------------------------------------------------------------------
<PAGE> 2
THIS THIRD SUPPLEMENTAL INDENTURE, dated November 1, 1999
(hereinafter called the "Supplemental Indenture"), is between KERR-McGEE
CORPORATION, a Delaware corporation (hereinafter called the "Company"), and
CITIBANK, N.A., a national banking association duly organized and existing under
the laws of the United States of America, as Trustee under the Indenture
referred to below (hereinafter called the "Trustee").
RECITALS
The Company and the Trustee are parties to an Indenture, dated
as of August 1, 1982, as amended (the "Indenture"), relating to the issuance
from time to time by the Company of its Securities on terms to be specified at
the time of issuance. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Indenture.
The Company has duly authorized the creation of a series of
its Securities denominated its "Floating Rate Notes due 2001" (such Securities
being referred to herein as the "Notes").
The Company has duly authorized the execution and delivery of
this Supplemental Indenture in order to provide for the issuance of the Notes.
The Company has requested the Trustee and the Trustee has
agreed to join with it in the execution and delivery of this Supplemental
Indenture.
Section 901(f) of the Indenture provides that the Company,
acting pursuant to a Board Resolution, and the Trustee, at any time and from
time to time, may enter into an indenture supplemental to the Indenture to make
such provisions in regard to matters or questions arising under the Indenture
which shall not adversely affect the interests of any Holders of Securities.
The Company has determined that this Supplemental Indenture
complies with Section 901(f) and does not require the consent of any Holders of
Securities. On the basis of the foregoing, the Trustee has determined that this
Supplemental Indenture is in form satisfactory to it.
The Company has furnished the Trustee with an Officer's
Certificate and an Opinion of Counsel complying with the requirements of Section
905 of the Indenture, stating that the execution of this Supplemental Indenture
is authorized or permitted by the Indenture, and has
<PAGE> 3
2
delivered to the Trustee a Board Resolution authorizing the execution and
delivery of this Supplemental Indenture, together with such other documents as
may have been required by Section 102 of the Indenture.
All things necessary to make this Supplemental Indenture a
legal, valid and binding agreement of the Company and the Trustee and a valid
amendment of and supplement to the Indenture have been done.
The entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture.
The Company has duly authorized the execution and delivery of
this Supplemental Indenture, and all things necessary have been done to make the
Notes, when executed by the Company and authenticated and delivered hereunder
and duly issued by the Company, the valid obligations of the Company, and to
make this Supplemental Indenture a valid agreement of the Company, in accordance
with their and its terms.
NOW THEREFORE:
It is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
Section I.1. Definitions.
For all purposes of the Indenture and this Supplemental
Indenture as they relate to the Notes, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article;
(2) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to the Indenture and this Supplemental
Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(3) capitalized terms used but not defined herein are used as
they are defined in the Indenture.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Regulation S Global Note or beneficial interest therein,
the rules and procedures of
<PAGE> 4
3
the Depositary for such Global Note, Euroclear and Cedel, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Cedel" means Cedel Bank, S.A., or any successor securities
clearing agency.
"Depositary" means The Depository Trust Company, its nominees
and their respective successors.
"Euroclear" means the Euroclear Clearance System or any
successor securities clearing agency.
"Global Notes Legend" means the legend set forth under that
caption in Exhibit B to this Third Supplemental Indenture.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Notes" means all Notes offered and sold outside
the United States in reliance on Regulation S.
"Restricted Period", with respect to any Notes, means the
period of 40 consecutive days beginning on and including the later of (a) the
day on which such Notes are first offered to persons other than distributors (as
defined in Regulation S under the Securities Act) in reliance on Regulation S,
notice of which day shall be promptly given by the Company to the Trustee, and
(b) the issue date with respect to such Notes.
"Restricted Notes Legend" means the legend set forth in
Section 2.03.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Notes" means all Notes offered and sold to QIBs in
reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
Section I.2. Effect of Headings.
The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
<PAGE> 5
4
Section I.3. Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by
the Company shall bind its successors and assigns, whether so expressed or not.
Section I.4. Separability.
In case any provision in this Supplemental Indenture or the
Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section I.5. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act of 1939, as
amended, such required provisions shall control.
Section I.6. Benefits of Supplemental Indenture.
Nothing in this Supplemental Indenture, expressed or implied,
shall give to any person, other than the parties hereto and their successors
hereunder, and the Holders of the Notes any benefit or any legal or equitable
right, remedy or claim under this Supplemental Indenture.
Section I.7. Application of Supplemental Indenture.
This Supplemental Indenture shall take effect on the date
hereof, and shall apply only to the Notes. This Supplemental Indenture shall
have no effect on any other Securities, whether originally issued prior to the
date hereof or thereafter. If any provision of this Supplemental Indenture is
inconsistent with any provision of the Indenture, then, to the extent permitted
by the Indenture, the provision in this Supplemental Indenture shall control.
Section I.8. Governing Law.
THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND THIS SUPPLEMENTAL
INDENTURE AND EACH SUCH NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
<PAGE> 6
5
ARTICLE II
The Notes
Section II.1. Title and Terms.
There is hereby created under the Indenture a series of
Securities known and designated as the "Floating Rate Notes due 2001" of the
Company. The aggregate principal amount of Notes that may be authenticated and
delivered under this Supplemental Indenture is limited to $200,000,000 million,
except for Notes authenticated and delivered upon reregistration of, transfer
of, or in exchange for, or in lieu of, other Notes pursuant to Section 305, 306,
307, 904 and 1103 of the Indenture.
The Notes shall be initially issued in the form of a Global
Security and the Depositary for the Notes shall be The Depository Trust Company,
New York, New York.
The form of Notes attached hereto as Exhibit A is hereby
adopted, as a form of Securities of a series that consists of Notes. Certain
terms of the Notes are set forth in the form of the Notes.
Section II.2. Form and Dating.
Rule 144A Notes shall be issued initially in the form of one
or more permanent Global Securities in definitive, fully registered form
(collectively, the "Rule 144A Global Note") and Regulation S Notes shall be
issued initially in the form of one or more Global Securities (collectively, the
"Regulation S Global Note"), in each case without interest coupons and bearing
the Global Notes Legend and Restricted Notes Legend. Beneficially ownership
interests in the Regulation S Global Note shall not be exchangeable for
interests in the Rule 144A Global Note until the expiration of the Restricted
Period. The Rule 144A Global Note, and the Regulation S Global Note are each
referred to herein as a "Global Note" and are collectively referred to herein as
"Global Notes". The aggregate principal amount of the Global Notes may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary or its nominee and on the schedules thereto as
hereinafter provided.
Section II.3. Transfer and Exchange.
(a) A transferor of a beneficial interest in a Global Note
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Note or
another Global Note and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Note and the account
of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Note being transferred. Transfers by an owner
of a beneficial interest in the Rule 144A Global Note to a transferee who takes
delivery of such interest through the Regulation S Global Note, whether before
or after the expiration of the Restricted Period, shall be made only upon
receipt by the Trustee of a certification from the transferor in the form
provided on the reverse side of the Note
<PAGE> 7
6
to the effect that such transfer is being made in accordance with Regulation S
or (if available) Rule 144 under the Securities Act and that, if such transfer
is being made prior to the expiration of the Restricted Period, the interest
transferred shall be held immediately thereafter through Euroclear or Cedel.
If the proposed transfer is a transfer of a beneficial
interest in one Global Note to a beneficial interest in another Global Note, the
Securities Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Global Note to which such interest is
being transferred in an amount equal to the principal amount of the interest to
be so transferred, and the Securities Registrar shall reflect on its books and
records the date and a corresponding decrease in the principal amount of Global
Note from which such interest is being transferred.
(b) Restrictions on Transfer of Regulation S Global Note. (i)
Prior to the expiration of the Restricted Period, interests in the Regulation S
Global Note may only be held through Euroclear or Cedel. During the Restricted
Period, beneficial ownership interests in the Regulation S Global Note may only
be sold, pledged or transferred through Euroclear or Cedel in accordance with
the Applicable Procedures and only (1) to the Company, (2) in a transaction
entitled to an exemption from registration provided by Rule 144 under the
Securities Act, (3) so long as the security is eligible for resale pursuant to
Rule 144A under the Securities Act, to a person who the seller reasonably
believes is a QIB within the meaning of Rule 144A purchasing for its own account
or for the account of a QIB to whom notice is given that the resale, pledge or
other transfer is being made in reliance on Rule 144A or (4) in an offshore
transaction in accordance with 904 of Regulation S under the Securities Act.
Prior to the expiration of the Restricted Period, transfers by an owner of a
beneficial interest in the Regulation S Global Note to a transferee who takes
delivery of such interest through the Rule 144A Global Note shall be made only
in accordance with Applicable Procedures and upon receipt by the Trustee of a
written certification from the transferor of the beneficial interest
substantially in the form provided on the reverse side of the Note to the effect
that such transfer is being made to a QIB within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A. Such written certification
shall no longer be required after the expiration of the Restricted Period.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in the Regulation S Global Note shall be transferable in
accordance with applicable law and the other terms of the Indenture.
(c) Legend.
(i) Each Note certificate evidencing the Global Notes (and all
Notes issued in exchange therefor or in substitution thereof) shall bear a
legend in substantially the following form (each defined term in the legend
being defined as such for purposes of the legend only):
<PAGE> 8
7
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED OTHER THAN (1) TO THE COMPANY, (2)
IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT, (3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A (AS INDICATED BY THE BOX
CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY) OR (4) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY)."
(ii) Upon a sale or transfer after the expiration of the
Restricted Period of any Note acquired pursuant to Regulation S, all
requirements that such Initial Note bear the Restricted Notes Legend shall cease
to apply and the requirements requiring any such Initial Note be issued in
global form shall continue to apply.
<PAGE> 9
8
ARTICLE III
Miscellaneous
Section III.1. Confirmation of Indenture.
The Indenture, as supplemented and amended by this
Supplemental Indenture and all other indentures supplemental thereto, is in all
respects ratified and confirmed, and the Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and construed as
one and the same instrument.
Section III.2. Concerning the Trustee.
The Trustee assumes no duties, responsibilities or liabilities
by reason of this Supplemental Indenture other than as set forth in the
Indenture.
The recitals contained herein shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of
same, except for the recital indicating the Trustee's approval of the form of
this Third Supplemental Indenture. The Trustee makes no representation as to the
validity of this Third Supplemental Indenture.
The Trustee accepts the trust created by the Indenture, as
supplemented by this Third Supplemental Indenture, and agrees to perform the
same upon the terms and conditions in the Indenture, as supplemented by this
Third Supplemental Indenture.
----------------
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
<PAGE> 10
9
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
KERR-McGEE CORPORATION
By:
----------------------------------
John C. Linehan
Executive Vice President and
Chief Financial Officer
By:
----------------------------------
John M. Rauh
Vice President and Treasurer
[CORPORATE SEAL]
Attest:
---------------------------
Name:
Title:
CITIBANK, N.A.,
as Trustee
By:
----------------------------------
Name:
Title:
Attest:
---------------------------
Name:
Title:
<PAGE> 11
STATE OF OKLAHOMA )
) SS.:
COUNTY OF OKLAHOMA )
On the 1st day of November, 1999, before me personally came
John C. Linehan , to me known, who, being by me duly sworn, did depose and say
that he is the Executive Vice President and Chief Financial Officer of
KERR-McGEE CORPORATION, one of the corporations described in and which executed
the foregoing instrument; that she/he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that
she/he signed her/his name thereto by like authority.
---------------------------
Notary Public
My Commission Expires:
- ----------------------
STATE OF OKLAHOMA )
) SS.:
COUNTY OF OKLAHOMA )
On the 1st day of November, 1999, before me personally came
John M. Rauh , to me known, who, being by me duly sworn, did depose and say that
he is the Vice President and Treasurer of KERR-McGEE CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that
she/he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that she/he signed her/his name
thereto by like authority.
---------------------------
Notary Public
My Commission Expires:
- ----------------------
<PAGE> 12
STATE OF NEW YORK )
) SS.:
COUNTY OF NEW YORK )
On the ___ day of __________, 1999, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
she/he is the _________ of CITIBANK, N.A., one of the corporations described in
and which executed the foregoing instrument; that she/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that she/he signed her/his name thereto by like authority.
-----------------------
Notary Public
SEAL
<PAGE> 13
EXHIBIT A
KERR-McGEE CORPORATION
Floating Rate Note due November 1, 2001
$
Number R-1 CUSIP ________
KERR-McGEE CORPORATION, a Delaware corporation (hereinafter
called the "Company", which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to CEDE & CO. or registered assigns, the principal sum of One Hundred Fifty
Million Dollars on November 1, 2001 and to pay interest thereon from the later
of November 1, 1999 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for quarterly in arrears on February 1,
May 1, August 1 and November 1 of each year, commencing February 1, 2000, at the
rates determined quarterly as described on the reverse hereof until the
principal hereof is paid or made available for payment. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in said Indenture, be paid to the Person in whose name this Note (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be the 15th calendar day
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the registered
holder on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee. Payment of the principal of and interest on this Note
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, the City and State of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Security Register or, at the option of the Company, by wire transfer to an
account designated by such Person in a bank located in the United States of
America.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as of set forth at this place.
Unless the certificate of authentication hereon has been
executed by manual signature by the Trustee referred to on the reverse hereof,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
<PAGE> 14
13
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal by the manual or facsimile signatures
of its officers thereunto duly authorized.
KERR-McGEE CORPORATION
By:
--------------------------------
Attest:
By:
--------------------------------
[CORPORATE SEAL]
Trustee's Certificate of Authentication
This is one of the series of Debt Securities
issued under the within mentioned Indenture.
Date of Authentication:
CITIBANK, N.A.,
as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE> 15
[Form of Reverse of Note]
KERR-McGEE CORPORATION
Floating Rate Notes due November 1, 2001
This Note is one of a duly authorized issue of notes of the
Company designated the Floating Rate Notes due November 1, 2001, of the Company,
limited in aggregate principal amount of $200,000,000 (herein called the
"Notes"), issued and to be issued under an Indenture dated as of August 1, 1982,
between the Company and Citibank, N.A., as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), as supplemented
by the First Supplemental Indenture dated as of May 7, 1996 and the Third
Supplemental Indenture dated as of November 1, 1999 (said Indenture, as so
supplemented, herein called the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee and the Holders of the Notes, and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
The Notes may be redeemed on any quarterly interest payment
date on or after May 1, 2000 at the option of the Company, in whole but not in
part, at a redemption price equal to 100% of the principal amount of the Notes
plus accrued interest thereon to the redemption date.
The Notes will bear interest for each interest period at a per
annum rate determined by Citibank, N.A., or its successor appointed by the
Company, acting as calculation agent. The interest rate will be equal to LIBOR
(as defined below) on the second London business day (as defined below)
immediately preceding the first day of such interest period (an "interest
determination date") plus 0.50%; provided, however, that in certain
circumstances described below, the interest rate will be determined in an
alternative manner without reference to LIBOR. Promptly upon such determination,
the calculation agent will notify the Trustee of the interest rate for the new
interest period. Notwithstanding the foregoing, the interest rate for the period
from November 1, 1999 to January 31, 2000 shall be 6.7025%.
For purposes of this calculation, "London business day" is
defined as a day on which dealings in deposits in U.S. dollars are transacted,
or with respect to any future date, are expected to be transacted, in the London
interbank market.
"LIBOR" for any interest determination date will be the
offered rate for deposits in U.S. dollars having an index maturity of three
months for a period commencing on the second London business day immediately
following the interest determination date ("three month deposits") in amounts of
not less than $1,000,000, as such rate appears on Telerate Page 3750 (as defined
below), or a successor reporter of such rates selected by the calculation agent
and
<PAGE> 16
acceptable to The Company at approximately 11:00 a.m., London time, on the
interest determination date (the "reported rate").
"Telerate Page 3750" means the display designated on page
"3750" on Dow Jones Markets Limited (or such other page as may replace the 3750
page on that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits).
If the following circumstances exist on any interest
determination date, the calculation agent shall determine the interest rate for
the Notes as follows:
(i) In the event the reported rate cannot be determined as of
approximately 11:00 a.m. London time on an interest
determination date, the calculation agent shall request the
principal London offices of each of four major banks in the
London interbank market selected by the calculation agent
(after consultation with Kerr-McGee) to provide a quotation of
the rate (a "rate quotation") at which three month deposits in
amounts of not less than $1,000,000 are offered by it to prime
banks in the London interbank market, as of approximately
11:00 a.m. London time on such interest determination date,
that is representative of single transactions at such time
("representative amounts"). If at least two rate quotations
are provided, the interest rate will be the arithmetic mean of
the rate quotations obtained by the calculation agent, plus
0.50%.
(ii) In the event the reported rate cannot be determined and
there are fewer than two rate quotations, the interest rate
will be the arithmetic mean of the rates quoted at
approximately 11:00 a.m. New York City time on such interest
determination date, by three major banks in New York City,
selected by the calculation agent (after consultation with
Kerr-McGee), for loans in representative amounts in U.S.
dollars to leading European banks, having an index maturity of
three months for a period commencing on the second London
business day immediately following such interest determination
date, plus 0.50%; provided, however, that if fewer than three
banks selected by the calculation agent are quoting such
rates, the interest rate for the applicable period will be the
same as the interest rate in effect for the immediately
preceding interest period.
Upon the request of the holder of any Note, the calculation
agent will provide to such holder the interest rate in effect on the date of
such request and, if determined, the interest rate for the next interest period.
Interest on the Notes will be calculated on the basis of the
actual number of days for which interest is payable in the relevant interest
period, divided by 360. All dollar amounts resulting from such calculation will
be rounded, if necessary, to the nearest cent with one-half cent rounded upward.
<PAGE> 17
3
The Notes are subject to the provisions of the Indenture
relating to defeasance of the entire indebtedness represented by the Notes.
If any Event of Default, as defined in the Indenture, with
respect to the Notes shall occur and be continuing, the principal of all the
Notes may be declared due and payable in the manner and with the effect provided
in the Indenture. The Notes are subject to the provisions of the Indenture
relating to defeasance of the entire indebtedness represented by the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company with respect to the Notes and the rights of the
Holders of the Notes under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Outstanding Notes. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Notes at the time Outstanding, on behalf of the Holders of all the Notes, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange here for or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
Holders of Notes may not enforce their rights pursuant to the
Indenture or the Notes except as provided in the Indenture. No reference herein
to the Indenture and no provision of this Note or of the Indenture shall alter
or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest on this Note at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Note is transferable on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office of the Company maintained for such purpose in the Borough
of Manhattan, the City and State of New York, duly endorsed, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed, by the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Notes of like
aggregate principal amount of such denominations as are authorized for Notes and
of a like Stated Maturity and with like terms and conditions will be issued in
the name of the designated transferee or transferees.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for other Notes of like aggregate principal amount and of a like
Stated Maturity and with like terms and conditions, as requested by the Holder
surrendering the same.
<PAGE> 18
4
No service charge shall be made for any registration or
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as the owner
hereof for all purposes, whether or not this Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them therein.
----------------------
<PAGE> 19
5
The following abbreviations, when used in the inscription on
the face of the within Note, shall be construed as though they were written out
in full according to applicable laws or regulations.
<TABLE>
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
TEN COM -- as tenants in common UNIF GIFT MIN Act -- _______ Custodian _______
TEN ENT -- as tenants by the (Cust)
JT TEN -- entireties (Minor)
as joint tenants with under Uniform Gifts to Minors
right of survivorship and Act
not as tenants in common ---------------------------
(State)
- -------------------------------------------------------------------------------------------------------
</TABLE>
Additional abbreviations may also be used though
not in the above list
----------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- ---------------------------------
- ---------------------------------
(Name and Address of Assignee, including zip code,
must be printed or typewritten)
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing ______________ Attorney to transfer said Note on the books of the
Company, with full power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
<PAGE> 20
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $[ ].
The following increases or decreases in this Global Note have been made:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Signature of
Amount of decrease Amount of increase Principal amount of authorized officer
Date of in Principal Amount in Principal Amount this Global Note of signatory of
Exchange of this Global Note of this Global Note following such Trustee or Notes
decrease or increase Custodian
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 21
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFER RESTRICTED SECURITIES
This certificate relates to $_______ principal amount of Notes held in (check
applicable space) _____ book-entry or ___ definitive form by the undersigned.
The undersigned has requested the Trustee by written order to exchange or
register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act, the undersigned confirms that such Notes are
being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) - to the Company; or
(2) - to the Securities Registrar for the registration in the
name of the Holder, without transfer; or
(3) - inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom notice
is given that such transfer is being made in reliance on
Rule 144A, in each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
(4) - outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933 and such Note shall be held immediately after the
transfer through Euroclear and Cedel until the expiration
of the Restricted Period (as defined in the Indenture); or
(5) - pursuant to another available exemption from registration
provided by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register
any of the Notes evidenced by this certificate in the name of any
Person other than the registered holder thereof; provided, however,
that if box (4) or (5) is checked, the Trustee may require, prior to
registering any such transfer of the Notes, such legal opinions,
certifications and other information as the Company has reasonably
requested to confirm that such transfer
<PAGE> 22
is being made pursuant to an exemption from or in a transaction not
subject to, the registration requirements of the Securities Act of
1933.
<TABLE>
- ----------------------------------------------------------- --------------------------------------------------------
<S> <C>
-----------------------------------
Your Signature
- ----------------------------------------------------------- --------------------------------------------------------
Signature Guarantee:
- ----------------------------------------------------------- --------------------------------------------------------
Date:
--------------------------- ----------------------------------
Signature must be guaranteed by a Signature of Signature
participant in a recognized signature guaranty medallion Guarantee
program or other signature guarantor acceptable to the
Trustee
- ----------------------------------------------------------- --------------------------------------------------------
</TABLE>
---------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
9133, and is aware that the sale to it is being made in reliance on Rule 144A
and acknowledges that it has received such information regarding the Company as
the undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon the undersigned's foregoing representations in order to claim the exemption
from registration provided Rule 144A.
Dated:
--------------------------- ----------------------------------
NOTICE: To be executed by an
executive officer
<PAGE> 23
EXHIBIT B
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY, UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE COMPANY OR THE TRUSTEE (EACH AS HEREAFTER DEFINED) FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
<PAGE> 1
EXHIBIT 5
January 3, 2000
Kerr-McGee Corporation
123 Robert S. Kerr Avenue
Oklahoma City, Oklahoma 73102
Ladies and Gentlemen:
I am the General Counsel of Kerr-McGee Corporation, a Delaware
Corporation ("Kerr-McGee"), and I served as counsel in connection with the
Registration Statement on Form S-3 (the "Registration Statement") filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), by Kerr-McGee which relates to preferred stock
of Kerr-McGee ("Preferred Stock"), common stock of Kerr-McGee ("Common Stock"),
unsecured debt securities of Kerr-McGee consisting of notes, debentures or other
evidences of indebtedness ("Debt Securities"), and warrants to purchase
Preferred Stock, Common Stock or Debt Securities ("Warrants") to be issued and
sold by Kerr-McGee from time to time pursuant to Rule 415 under the Act for an
aggregate initial offering price not to exceed $1,500,000,000 together with any
additional such securities that may be sold pursuant to a Registration Statement
filed under Rule 462 of the Act.
In so acting, I, or a member of my staff, have examined and relied upon
the accuracy of original, certified or photographic copies of such records,
agreements, certificates and other documents as I have deemed necessary or
appropriate to enable me to render the opinions set below. In all such
examinations, I have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all documents submitted to
me as certified or photostatic copies and the authenticity of the originals of
such latter documents.
I have also assumed that (i) the Registration Statement, and any
amendments thereto (including post-effective amendments) and any additional
Registration Statement filed under Rule 462, will have become effective under
the Act, (ii) a prospectus supplement (a "Prospectus Supplement") will have been
prepared and filed with the Commission describing the Preferred Stock, Common
Stock, Debt Securities and/or Warrants offered thereby, (iii) all Preferred
Stock, Common Stock, Debt Securities and Warrants issued will be issued and sold
in compliance with applicable
<PAGE> 2
Kerr-McGee Corporation
January 3, 2000
Page 2
federal and state securities laws and solely in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement and (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Preferred Stock, Common Stock, Debt Securities and/or Warrants offered will have
been duly authorized and validly executed and delivered by Kerr-McGee and the
other parties thereto.
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, I am of the opinion that:
1. With respect to Preferred Stock, when (i) the shares of Preferred
Stock to be issued have been duly authorized by the shareholders of
Kerr-McGee, (ii) the Board of Directors of Kerr-McGee (the "Board") has
taken all necessary corporate action to approve the issuance and terms
of such Preferred Stock, the terms of the offering thereof and related
matters and (iii) such shares of Preferred Stock have been issued and
delivered in accordance with the provisions of the applicable
definitive purchase, underwriting or similar agreement approved by the
Board, upon payment of the consideration therefor provided for therein,
such shares of Preferred Stock will be legally issued, fully paid and
nonassessable.
2. With respect to Common Stock, when (i) the shares of Common Stock to
be issued have been duly authorized by the shareholders of Kerr-McGee,
(ii) the Board has taken all necessary corporate action to approve the
issuance and terms of such Common Stock, the terms of the offering
thereof and related matters and (iii) such shares of Common Stock have
been issued and delivered in accordance with the provisions of the
applicable definitive purchase, underwriting or similar agreement
approved by the Board, upon payment of the consideration therefor
provided for therein, such shares of Common Stock will be legally
issued, fully paid and nonassessable.
3. With respect to Debt Securities to be issued under the Indenture,
dated as of August 1, 1982, and supplemented by the First Supplemental
Indenture, dated May 7, 1996; the Second Supplemental Indenture, dated
August 2, 1999; and, the Third Supplemental Indenture dated November 1,
1999 (the "Indenture") between Kerr-McGee and Citibank, N.A., as
Trustee (the "Trustee") when (i) the Indenture has been duly
authorized, executed and delivered by the Trustee, (ii) the Indenture
has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), (iii) the Board has taken all
necessary corporate action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related matters
and (iv) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the Indenture
and the applicable definitive purchase,
<PAGE> 3
Kerr-McGee Corporation
January 3, 2000
Page 3
underwriting or similar agreement approved by the Board, upon payment
of the consideration therefor provided for therein, such Debt
Securities will be legally issued by Kerr-McGee and will constitute
valid and legally binding obligations of Kerr-McGee, enforceable
against Kerr-McGee in accordance with their terms.
4. With respect to the Warrants, when (i) the Board has taken all
necessary corporate action to approve the creation of and issuance and
terms of the Warrants, the terms of the offering thereof and related
matters, (ii) any Warrant Agreement entered into in connection
therewith (the "Warrant Agreement") has been duly authorized and
validly executed and delivered by Kerr-McGee and (iii) the Warrants or
certificates representing the Warrants have been duly executed,
countersigned, registered and delivered in accordance with the
applicable Warrant Agreement and the applicable definitive purchase,
underwriting or similar agreement approved by the Board, upon payment
of the consideration therefor provided for therein, the Warrants will
be duly authorized and validly issued by Kerr-McGee and will constitute
valid and legally binding obligations of Kerr-McGee, enforceable
against Kerr-McGee in accordance with their terms.
My opinions set forth in paragraphs 3 and 4 above are subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
I hereby consent to the filing of this opinion of counsel as Exhibit 5
to the Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus forming a part of the Registration Statement.
Sincerely,
Gregory F. Pilcher
Vice President,
General Counsel and
Secretary
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of our report dated
February 26, 1999, included in the Form 8-K/A, filed July 26, 1999, of
Kerr-McGee Corporation for the year ended December 31, 1998, and to all
references to our Firm included in the Registration Statement.
ARTHUR ANDERSEN LLP
Oklahoma City, Oklahoma
January 3, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Kerr-McGee Corporation of our report dated February 26,
1999 appearing in Kerr-McGee Corporation's Current Report on Form 8-K/A and
relating to the consolidated financial statements of Oryx Energy Company, which
financial statements are not separately presented therein.
PricewaterhouseCoopers LLP
Dallas, Texas
January 3, 2000
<PAGE> 1
EXHIBIT 24
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
--------------------------------
WILLIAM E. BRADFORD, DIRECTOR
<PAGE> 2
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in her capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, her true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
her and in her name, place and stead, in her capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
----------------------------
SYLVIA A. EARLE, DIRECTOR
<PAGE> 3
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
-----------------------------------
DAVID C. GENEVER-WATLING, DIRECTOR
<PAGE> 4
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
------------------------------
MARTIN C. JISCHKE, DIRECTOR
<PAGE> 5
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
------------------------------
WILLIAM C. MORRIS, DIRECTOR
<PAGE> 6
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
--------------------------------
JOHN J. MURPHY, DIRECTOR
<PAGE> 7
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
----------------------------
LEROY C. RICHIE, DIRECTOR
<PAGE> 8
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
--------------------------------
MATTHEW R. SIMMONS, DIRECTOR
<PAGE> 9
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in her capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, her true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
her and in her name, place and stead, in her capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
-------------------------------
FARAH M. WALTERS, DIRECTOR
<PAGE> 10
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
--------------------------------
IAN L. WHITE-THOMSON, DIRECTOR
<PAGE> 11
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director and
Officer of the Company, does hereby appoint Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director and Officer
of the Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
------------------------------------
LUKE R. CORBETT
DIRECTOR, CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
<PAGE> 12
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as a Director and
Officer of the Company, does hereby appoint Luke R. Corbett and Robert M.
Wohleber, and each of them severally, his true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
him and in his name, place and stead, in his capacity as a Director and Officer
of the Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
--------------------------------
TOM J. MCDANIEL, DIRECTOR AND
VICE CHAIRMAN OF THE BOARD
<PAGE> 13
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in his capacity as an Officer of the
Company, does hereby appoint Luke R. Corbett and Tom J. McDaniel, and each of
them severally, his true and lawful attorneys or attorney-in-fact and agents or
agent with power to act with or without the others and with full power of
substitution and resubstitution, to execute for him and in his name, place and
stead, in his capacity as an Officer of the Company, the Registration Statement
and any and all amendments thereto, including post-effective amendments, as said
attorneys or any of them shall deem necessary or appropriate, together with all
instruments necessary or incidental in connection therewith, and to file the
same or cause the same to be filed with the Commission. Each of said attorneys
shall have full power and authority to do and perform in the name and on behalf
of the undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
-----------------------------------
ROBERT M. WOHLEBER
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
<PAGE> 14
KERR-McGEE CORPORATION
POWER OF ATTORNEY
WHEREAS, Kerr-McGee Corporation, a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), a
Registration Statement on Form S-3, including a Prospectus (the "Registration
Statement") with such amendment or amendments thereto as may be necessary or
appropriate, together with any and all exhibits and other documents having
relation to the Registration Statement, in connection with the Company's
proposal to issue and sell up to $1,500,000,000 debt securities of the Company;
NOW, THEREFORE, the undersigned in her capacity as an Officer of the
Company, does hereby appoint Luke R. Corbett, Tom J. McDaniel and Robert M.
Wohleber, and each of them severally, her true and lawful attorneys or
attorney-in-fact and agents or agent with power to act with or without the
others and with full power of substitution and resubstitution, to execute for
her and in her name, place and stead, in her capacity as an Officer of the
Company, the Registration Statement and any and all amendments thereto,
including post-effective amendments, as said attorneys or any of them shall deem
necessary or appropriate, together with all instruments necessary or incidental
in connection therewith, and to file the same or cause the same to be filed with
the Commission. Each of said attorneys shall have full power and authority to do
and perform in the name and on behalf of the undersigned, in any and all
capacities, every act whatsoever necessary or desirable to be done in the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, the undersigned hereby ratifying and approving the acts of
said attorney or attorneys.
IN WITNESS WHEREOF, the undersigned has executed this instrument
effective the 15th day of December, 1999.
---------------------------------
DEBORAH A. KITCHENS
VICE PRESIDENT, CONTROLLER AND
CHIEF ACCOUNTING OFFICER
