SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934 (Amendment No. __)
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [x]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-12
Kerr-McGee Corporation
(Name of Registrant as Specified In Its Charter)
Icahn Partners LP
Icahn Partners Master Fund LP
High River Limited Partnership
Carl C. Icahn
Keith A. Meister
Vincent J. Intrieri
JANA Partners LLC
JANA Master Fund, Ltd.
Barry S. Rosenstein
August H. Roth
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rule 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
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2005 ANNUAL MEETING OF STOCKHOLDERS
OF
KERR-MCGEE CORPORATION
-------------------
PROXY STATEMENT
OF
ICAHN PARTNERS LP,
ICAHN PARTNERS MASTER FUND LP,
HIGH RIVER LIMITED PARTNERSHIP
AND
JANA PARTNERS LLC
-------------------
To Our Fellow Kerr-McGee Stockholders:
This Proxy Statement and the accompanying GOLD proxy card are being
furnished to stockholders ("Stockholders") of Kerr-McGee Corporation
("Kerr-McGee") in connection with the solicitation of proxies by Carl C. Icahn,
Barry S. Rosenstein and certain of their affiliates and associates, to be used
at the 2005 Annual Meeting (the "Annual Meeting") of Stockholders of Kerr-McGee
which is scheduled to be held at 9:00 a.m. on Tuesday, May 10, 2005, in the
Robert S. Kerr Auditorium, Kerr-McGee Center, 123 Robert S. Kerr Avenue,
Oklahoma City, Oklahoma, and at any adjournments, postponements or continuations
thereof. This Proxy Statement and the GOLD proxy card are first being furnished
to Stockholders on or about March __, 2005.
At the Annual Meeting, the Participants (as hereinafter defined)
will seek to elect to the Board of Directors of Kerr-McGee a slate of two
nominees, comprised of Carl C. Icahn and Barry S. Rosenstein. Each of the
nominees (each a "Nominee" and, collectively, the "Nominees") has consented, if
elected, to serve as a director.
Mr. Icahn, Mr. Rosenstein and each of the other Participants have no
interest in Kerr-McGee other than as Stockholders.
THE NOMINEES ARE COMMITTED TO ACTING IN THE BEST INTEREST OF THE
STOCKHOLDERS. WE BELIEVE THAT YOUR VOICE IN THE FUTURE OF KERR-MCGEE CAN BEST BE
EXPRESSED THROUGH THE ELECTION OF THE NOMINEES. ACCORDINGLY, WE URGE YOU TO VOTE
YOUR GOLD PROXY CARD FOR CARL C. ICAHN AND BARRY S. ROSENSTEIN.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK
NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES
AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT
THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON
YOUR BEHALF THE GOLD PROXY CARD AS SOON AS POSSIBLE.
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IMPORTANT
The election of the Nominees requires the affirmative vote of a
plurality of the votes cast, assuming a quorum is present or otherwise
represented at the Annual Meeting. As a result, your vote is extremely important
in deciding the future of Kerr-McGee. We urge you to mark, sign, date and return
the enclosed GOLD proxy card to vote FOR the election of Carl C. Icahn and Barry
S. Rosenstein.
WE URGE YOU NOT TO SIGN ANY PROXY CARD SENT TO YOU BY KERR-MCGEE. IF
YOU HAVE ALREADY DONE SO, YOU MAY REVOKE YOUR PROXY BY DELIVERING A LATER-DATED
GOLD PROXY CARD IN THE ENCLOSED POSTAGE-PREPAID ENVELOPE, OR BY VOTING IN PERSON
AT THE ANNUAL MEETING. SEE "VOTING PROCEDURES" AND "PROXY PROCEDURES" BELOW.
Only holders of record of Kerr-McGee's voting securities as of the
close of business on March 11, 2005 (the "Record Date") are entitled to notice
of, and to attend and to vote at, the Annual Meeting and any adjournments or
postponements thereof. According to the proxy statement of Kerr-McGee filed with
the Securities and Exchange Commission ("Kerr-McGee's Proxy Statement"), as of
the Record Date, there were outstanding 163,442,818 shares of common stock, par
value $1.00 per share (the "Common Stock"). Stockholders of record at the close
of business on the Record Date will be entitled to one vote at the Annual
Meeting for each share of Common Stock of Kerr-McGee held on the Record Date.
As of the Record Date, the Participants and their affiliates
beneficially owned an aggregate of 9,907,100 shares of Common Stock,
representing approximately 6.1% of the outstanding shares of Common Stock.(1)
The Participants and their affiliates intend to vote such shares FOR the
election of the Nominees.
PLEASE VOTE FOR CARL C. ICAHN AND BARRY S. ROSENSTEIN BY RETURNING
YOUR COMPLETED GOLD PROXY TODAY.
PARTICIPANTS IN SOLICITATION OF PROXIES
In addition to the Nominees (who are Mr. Carl C. Icahn and Mr. Barry
S. Rosenstein), the participants in the solicitation of proxies (the
"Participants") are Icahn Partners LP ("Icahn Partners"), Icahn Partners Master
Fund LP ("Icahn Master"), High River Limited Partnership ("High River"), JANA
Partners LLC ("JANA"), JANA Master Fund, Ltd. ("JANA Master"), Mr. Keith A.
Meister, Mr. Vincent J. Intrieri and Mr. August H. Roth.
Icahn Partners, Icahn Master and High River (collectively, the
"Icahn Parties") are entities controlled by Carl C. Icahn. JANA and JANA Master
(collectively, the "JANA Parties") are entities controlled by Barry S.
Rosenstein and Gary Claar. Keith A. Meister and Vincent J. Intrieri are
employees of the Icahn Parties who may also participate in soliciting proxies
from Kerr-McGee Stockholders. August H. Roth is an employee of JANA who may also
participate in soliciting proxies from Kerr-McGee Stockholders. Messrs. Meister,
Intrieri and
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(1) These amounts do not include options to purchase shares of Common Stock held
by the JANA Parties (as hereinafter defined) as of the Record Date, as such
shares are not eligible to be voted by the JANA Parties at the Annual Meeting.
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Roth do not own beneficially any interest in securities of Kerr-McGee, and none
will receive any special compensation in connection with such solicitation.
The Icahn Parties
Icahn Partners is a Delaware limited partnership principally engaged
in the business of investing in securities. Icahn Onshore LP ("Icahn Onshore")
is a Delaware limited partnership primarily engaged in the business of acting as
the general partner of Icahn Partners. CCI Onshore LLC ("CCI Onshore") is a
Delaware limited liability company primarily engaged in the business of acting
as the general partner of Icahn Onshore. CCI Onshore is wholly owned by Mr.
Icahn.
Icahn Master is a Cayman Islands exempted limited partnership
principally engaged in the business of investing in securities. Icahn Offshore
LP ("Icahn Offshore") is a Delaware limited partnership primarily engaged in the
business of acting as the general partner of Icahn Master. CCI Offshore LLC
("CCI Offshore") is a Delaware limited liability company primarily engaged in
the business of acting as the general partner of Icahn Offshore. CCI Offshore is
wholly owned by Mr. Icahn.
High River is a Delaware limited partnership principally engaged in
the business of investing in securities. Hopper Investments LLC ("Hopper") is a
Delaware limited liability company that serves as the general partner of High
River. Barberry Corp. ("Barberry") is a Delaware corporation that serves as the
sole member of Hopper. Each of Hopper and Barberry is primarily engaged in the
business of investing in securities. Barberry is wholly owned by Mr. Icahn.
Keith A. Meister, age 32, has been a senior investment analyst of
High River since June 2002. Mr. Meister is also a Senior Investment Analyst of
Icahn Partners LP and Icahn Partners Master Fund LP. He is also a director of
Icahn Fund Ltd., which is the feeder fund of Icahn Partners Master Fund LP.
Since August 2003, Mr. Meister has served as the President and Chief Executive
Officer of American Property Investors, Inc., which is the general partner of
American Real Estate Partners, L.P., a public limited partnership controlled by
Mr. Icahn that invests in real estate and holds various other interests,
including the interests in its subsidiaries that are engaged, among other
things, in the oil and gas business and casino entertainment business. From
March 2000 through the end of 2001, Mr. Meister co-founded and served as
co-president of J Net Ventures, a venture capital fund focused on investments in
information technology and enterprise software businesses. From 1997 through
1999, Mr. Meister served as an investment professional at Northstar Capital
Partners, an opportunistic real estate investment partnership. Prior to his work
at Northstar, Mr. Meister served as an investment analyst in the investment
banking group at Lazard Freres. Mr. Meister is a director of TransTexas Gas
Corporation, an oil and gas exploration company controlled by Carl C. Icahn. Mr.
Meister serves on the Board of Directors of XO Communications, Inc., a publicly
held telecommunications company controlled by Mr. Icahn. Mr. Meister also is a
director of American Entertainment Properties Corp. and American Casino &
Entertainment Properties Finance Corp., which are gaming companies controlled by
American Real Estate Partners, L.P., which is controlled by Mr. Icahn. Mr.
Meister received his A.B. in Government cum laude from Harvard College in 1995.
Vincent J. Intrieri, age 48, is a Senior Managing Director of Icahn
Partners LP and Icahn Partners Master Fund LP. Since January 1, 2005 Mr.
Intrieri has been Senior
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Managing Director of High River and Icahn Associates Corp., an entity controlled
by Mr. Icahn whose principal business is to hold a lease to premises at 767
Fifth Avenue, New York, New York. From March 2003 to December 2004 Mr. Intrieri
served as a Managing Director and from 1998 to March 2003, he served as a
portfolio manager of Icahn Associates Corp. and High River. From 1995 to 1998,
Mr. Intrieri served as portfolio manager for distressed investments with Elliott
Associates L.P., a New York investment fund. Prior to 1995, Mr. Intrieri was a
partner at the Arthur Anderson accounting firm. Mr. Intrieri is a certified
public accountant. Mr. Intrieri is a director of TransTexas Gas Corporation and
Panaco Inc., each of which is an oil and gas exploration company controlled by
Carl C. Icahn. Mr. Intrieri is Chairman of the Board of Directors and a director
of Viskase Companies, Inc., a publicly owned producer of cellulosic and plastic
casings used in preparing and packaging processed meat products, in which Carl
C. Icahn has an interest through the ownership of securities. In addition, Mr.
Intrieri serves on the board of directors of XO Communications, Inc., a publicly
owned telecommunications company controlled by Carl C. Icahn. Mr. Intrieri
received a B.S. in Accounting in 1984 from The Pennsylvania State University.
The address of each of Icahn Partners, Icahn Onshore, CCI Onshore,
Icahn Master, Icahn Offshore, CCI Offshore, High River, Hopper, Barberry and
Messrs. Icahn, Meister and Intrieri is c/o Icahn Associates Corp., 767 Fifth
Avenue, 47th Floor, New York, New York 10153.
Mr. Icahn, through his control of the Icahn Parties, may be deemed
to be the indirect beneficial owner of 7,801,500 shares of the Common Stock,
which represents approximately 4.8% of outstanding shares of Common Stock.(2)
High River is the direct beneficial owner of 1,560,300 shares of the
Common Stock, Icahn Master is the direct beneficial owner of 3,184,976 shares of
the Common Stock, and Icahn Partners is the direct beneficial owner of 3,056,224
shares of the Common Stock. Hopper, as the general partner of High River, and
Barberry, as the sole member of Hopper, may each be deemed to be the indirect
beneficial owner of the shares of Common Stock directly owned by High River.
Icahn Offshore, as the general partner of Icahn Master, and CCI Offshore, as the
general partner of Icahn Offshore, may each be deemed to be the indirect
beneficial owner of the shares of Common Stock directly owned by Icahn Master.
Icahn Onshore, as the general partner of Icahn Partners, and CCI Onshore, as the
general partner of Icahn Onshore, may each be deemed to be the indirect
beneficial owner of the shares of Common Stock directly owned by Icahn Partners.
Carl C. Icahn, as the sole stockholder of Barberry and the sole member of each
of CCI Offshore and CCI Onshore, may be deemed to be the indirect beneficial
owner of the shares of Common Stock directly owned by High River, Icahn Master
and Icahn Partners.
The purchase of the 7,801,500 shares of Common Stock owned by the
Icahn Parties was made with the respective general working capital of the
purchasers and, with respect to High River, pursuant to margin accounts in the
regular course of business. As of the date hereof, the Icahn Parties have no
Common Stock in any of their margin accounts.
All transactions in the securities of Kerr-McGee effected within the
past 2 years by the Icahn Parties, Mr. Icahn and each other Participant are
contained in Appendix I attached hereto.
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(2) Except as otherwise noted herein, all share amounts are reported as of the
close of business on March 22, 2005.
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The JANA Parties
JANA is a Delaware limited liability company principally engaged in
the business of making investments. JANA Master is a Cayman Islands exempted
company principally engaged in the business of making investments. JANA serves
as the investment manager to JANA Master and a separate managed account.
August H. Roth, age 26, is an investment analyst employed by JANA.
The address of each of JANA, JANA Master and Messrs. Rosenstein and
Roth is 201 Post Street, San Francisco, CA 94108
Mr. Rosenstein, through his control of the JANA Parties, may be
deemed to be the indirect beneficial owner of 4,378,000 shares of the Common
Stock (including options to purchase 1,576,900 shares of Common Stock), which
represents approximately 2.7% of outstanding shares of Common Stock.
JANA Master is the direct beneficial owner of 3,996,835 shares of
Common Stock (including options to purchase 1,439,500 shares of Common Stock).
In addition, a separate account managed by JANA is the direct beneficial owner
of 381,165 shares of Common Stock (including options to purchase 137,400 shares
of Common Stock). JANA, as the investment manager to both JANA Master and the
managed account, may be deemed to be the indirect beneficial owner of the shares
of Common Stock directly beneficially owned by such parties. Barry S.
Rosenstein, as a managing member of JANA, may be deemed to be the indirect
beneficial owner of the shares of Common Stock directly beneficially owned by
such parties.
The purchase of the 4,378,000 shares of Common Stock beneficially
owned by JANA Master and the managed account was made with respective working
capital of such parties. As of the date hereof, JANA Master and the managed
account have no shares of Common Stock in margin accounts.
All transactions in the securities of Kerr-McGee effected within the
past 2 years by the JANA Parties, Mr. Rosenstein and each other Participant are
contained in Appendix I attached hereto. Information with respect to all options
to purchase shares of Common Stock owned beneficially by the JANA Parties is
contained in Appendix II attached hereto.
Certain Information Regarding the Icahn Parties and the JANA Parties
The Icahn Parties and the JANA Parties may be deemed to be members
of a "group" within the meaning of Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"). As such, the "group" may be deemed
to beneficially own all of the shares of Common Stock owned by the Icahn Parties
and the JANA Parties. Accordingly, the "group" may be deemed to be beneficially
own 12,179,500 shares of Common Stock in the aggregate, constituting
approximately 7.5% of the shares of Common Stock outstanding. However, neither
the fact of this filing nor anything contained herein shall be deemed to be an
admission by any of (i) the Icahn Parties that they are the beneficial owners of
shares beneficially owned by the JANA Parties or (ii) the JANA Parties that they
are the beneficial owners of shares beneficially owned by any of the Icahn
Parties.
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ELECTION OF DIRECTORS
According to Kerr-McGee's Proxy Statement, Kerr-McGee's board of
directors intends to nominate two candidates for election as directors at the
Annual Meeting. The Participants propose that Kerr-McGee Stockholders elect Carl
C. Icahn and Barry S. Rosenstein as directors of Kerr-McGee at the Annual
Meeting. Each Nominee, if elected, would hold office until the 2008 Annual
Meeting of Stockholders and until a successor has been duly elected and
qualified.
Background information about the Nominees is set forth below. The
Nominees are not receiving any compensation from any of the Participants or any
of their affiliates in connection with this proxy solicitation. See Appendix I
and Appendix II for additional information about the Nominees, including their
beneficial ownership, purchase and sale of securities issued by Kerr-McGee.
CARL C. ICAHN, age 69, has served as Chairman of the Board and a
director of Starfire Holding Corporation ("Starfire") (formerly Icahn Holding
Corporation), a privately-held holding company, and Chairman of the Board and a
director of various subsidiaries of Starfire, since 1984. Mr. Icahn is and has
been since 1994 a majority shareholder, the Chairman of the Board and a Director
of American Railcar Industries, Inc. ("ARI"), a Missouri corporation. ARI is
primarily engaged in the business of manufacturing, managing, leasing and
selling of railroad freight and tank cars. Mr. Icahn has also been Chairman of
the Board and President of Icahn & Co., Inc., a registered broker-dealer and a
member of the National Association of Securities Dealers, since 1968. Since
November 1990, Mr. Icahn has been Chairman of the Board of American Property
Investors, Inc., the general partner of American Real Estate Partners, L.P., a
public limited partnership that invests in real estate and holds various other
interests, including the interests in its subsidiaries that are engaged, among
other things, in the oil and gas business and casino entertainment business. Mr.
Icahn has been a director of Cadus Pharmaceutical Corporation, a firm that holds
various biotechnology patents, since 1993. From August 1998 to August 2002, Mr.
Icahn served as Chairman of the Board of Maupintour Holding LLC (f/k/a/
Lowestfare.com, LLC), an internet travel reservations company. From October 1998
through May, 2004, Mr. Icahn was the President and a director of Stratosphere
Corporation, which operates the Stratosphere Hotel and Casino. Since September
29, 2000, Mr. Icahn has served as the Chairman of the Board of GB Holdings,
Inc., which owns all of the outstanding stock of Atlantic Coast Entertainment
Holdings, Inc., which through its wholly-owned subsidiary owns and operates The
Sands Hotel and Casino in Atlantic City, New Jersey. Mr. Icahn also serves in
the same capacity with Atlantic Coast Entertainment Holdings, Inc. In January
2003, Mr. Icahn became Chairman of the Board and a director of XO
Communications, Inc., a telecommunications company. Please see Appendix I for
additional information.
BARRY S. ROSENSTEIN, age 46, is the founder and Managing Partner of
JANA, a position he has held since 2001. Mr. Rosenstein also founded, and from
1993 to 2001 served as Managing Partner of, Sagaponack Partners L.P., a private
equity fund. He received his M.B.A. from the University of Pennsylvania's
Wharton School of Business in 1984. In 1981, Mr. Rosenstein graduated Phi Beta
Kappa from Lehigh University. Mr. Rosenstein is also a C.P.A. Mr. Rosenstein
serves on the board of directors of Cobra Electronics and Marisa Christina, Inc.
Please see Appendix I and Appendix II for additional information.
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WE STRONGLY URGE YOU TO VOTE FOR THE ELECTION OF CARL C. ICAHN AND
BARRY S. ROSENSTEIN BY SIGNING, DATING AND RETURNING THE ENCLOSED GOLD PROXY
CARD IN THE POSTAGE PAID ENVELOPE PROVIDED TO YOU WITH THIS PROXY STATEMENT. IF
YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE DEEMED
TO HAVE GIVEN A DIRECTION TO VOTE ALL THE SHARES REPRESENTED BY THE GOLD PROXY
CARD FOR THE ELECTION OF ALL THE NOMINEES NAMED ON THE GOLD PROXY CARD.
BACKGROUND
On February 10, 2005, representatives of the Icahn Parties and the
JANA Parties had a meeting in which they discussed Kerr-McGee. The parties also
discussed the possibility of JANA Master selling to the Icahn Parties an option
to purchase shares of Common Stock.
On February 14, 2005, the Icahn Parties acquired, for $1,500,000, an
option (the "JANA Option") to purchase, in the aggregate, 250,000 shares of
Common Stock of Kerr-McGee from JANA Master. Pursuant to the exercise of the
JANA Option on March 1, 2005, Icahn Partners purchased 96,000 shares of Common
Stock, Icahn Master purchased 104,000 shares of Common Stock and High River
purchased 50,000 shares of Common Stock. The JANA Option had an exercise price
of $60.00 per share and an expiration date of August 14, 2005.
On or about February 23, 2004, Carl C. Icahn and Barry S. Rosenstein
spoke with Luke R. Corbett, Chairman and Chief Executive Officer of Kerr-McGee,
and suggested various actions to be taken by Kerr-McGee that they believe would
enhance stockholder value.
On March 2, 2005, the Icahn Parties delivered a letter to
Kerr-McGee, notifying Kerr-McGee that the Icahn Parties intend to appear at the
Annual Meeting, in person or by proxy, to nominate and seek to elect Carl C.
Icahn and Barry S. Rosenstein as members of the board of directors of
Kerr-McGee.
On March 3, 2005, Carl C. Icahn and Barry S. Rosenstein sent a
letter to Kerr-McGee, proposing that Kerr-McGee (i) sell its chemical business,
(ii) enter into a transaction to monetize forward production of a portion of its
reserves and (iii) utilize the proceeds to buy back shares of its stock.
On March 10, 2005, Carl C. Icahn and Barry S. Rosenstein sent a
letter to Kerr-McGee, responding to Kerr-McGee's March 8, 2005 announcement
regarding the proposed sale of its chemicals business and share repurchase
program.
On March 10, 2005, Kerr-McGee filed a lawsuit in federal court in
Oklahoma against the Icahn Parties, the JANA Parties and certain of their
respective affiliates, claiming: (i) that the Icahn Parties and the JANA Parties
have violated their disclosure obligations under Section 13(d) of the Exchange
Act, including by filing misleading Schedules 13D which falsely disclaim that
they are acting with each other as a group, and mischaracterize their purpose in
acquiring shares; (ii) that the March 2, 2005 letter in which the Icahn Parties
notified Kerr-McGee of their intention to seek to elect Carl C. Icahn and Barry
S. Rosenstein to the board of directors fails to comply with Kerr-McGee's
bylaws; and (iii) that the Icahn Parties and the JANA Parties have
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violated Section 14(a) of the Exchange Act and Rule 14a-9 thereunder by filing
false and misleading proxy solicitation materials. The lawsuit requests that the
court enter a judgment: (i) declaring the March 2, 2005 letter from the Icahn
Parties invalid; (ii) ordering the Icahn Parties and the JANA Parties to file
accurate disclosures in accordance with the requirements of Sections 13(d) and
14(a) of the Exchange Act and the regulations promulgated thereunder; (iii)
enjoining the Icahn Parties and the JANA Parties from voting any shares acquired
prior to the filing of true and accurate Schedules 13D; (iv) ordering the Icahn
Parties and the JANA Parties to return any proxies received prior to the filing
of true and accurate disclosures under Section 14(a) of the Exchange Act and the
regulations promulgated thereunder; (v) enjoining the Icahn Parties and the JANA
Parties from undertaking any action -- including (without limitation) soliciting
proxies, exercising stockholder voting rights, or purchasing additional shares
of Kerr-McGee --designed to change or affect control of Kerr-McGee until 30 days
following the filing of such true and accurate disclosures pursuant to Sections
13(d) and 14(a) of the Exchange Act; and (vi) granting such other and further
relief as the court may deem just and proper.
On March 17, 2005, the Icahn Parties sent a letter to Kerr-McGee
demanding, pursuant to Delaware law, the right as stockholders to inspect
certain documents and records of Kerr-McGee (including stockholder list
materials).
In addition, representatives of the Icahn Parties and the JANA
Parties have from time to time had conversations and met with Luke R. Corbett,
the Chairman and Chief Executive Officer of Kerr-McGee, as well as other
representatives of Kerr-McGee, and have discussed, among other things, the March
3, 2005 and March 10, 2005 letters from Carl C. Icahn and Barry S. Rosenstein
and Kerr-McGee's reaction to the transactions proposed therein.
Appendix I attached hereto sets forth, as to each of the Nominees
and the other Participants, all transactions in securities of Kerr-McGee
effected during the past two years. Appendix II attached hereto sets forth
information with respect to all options to purchase shares of Common Stock owned
beneficially by the JANA Parties.
Except as set forth herein or in any of the Appendices attached
hereto, neither of the Nominees nor or any of the other Participants: (i) owns
any securities of Kerr-McGee of record but not beneficially; (ii) owns
beneficially any securities of Kerr-McGee or any parent or subsidiary of
Kerr-McGee; (iii) has any agreement or understanding with any person with
respect to any future employment by Kerr-McGee or its affiliates; (iv) has any
agreement or understanding with any person with respect to any future
transactions to which Kerr-McGee or any of its affiliates will or may be a
party; (v) has engaged in or had a direct or indirect interest in any
transaction, or series of similar transactions, since the beginning of
Kerr-McGee's last fiscal year, or any currently proposed transaction, or series
of similar transactions, to which Kerr-McGee or any of its subsidiaries was or
is to be a party, in which the amount involved exceeds $60,000; (vi) borrowed
any funds for the purpose of acquiring or holding any securities of Kerr-McGee;
or (vii) is presently, or has been within the past year, a party to any
contract, arrangement or understanding with any person with respect to
securities of Kerr-McGee.
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OTHER MATTERS TO BE CONSIDERED AT THE ANNUAL MEETING
According to Kerr-McGee's Proxy Statement, Kerr-McGee is soliciting
proxies with respect to four proposals other than the election of directors.
Please refer to Kerr-McGee's Proxy Statement for a detailed discussion of these
proposals, including various arguments in favor of and against such proposals.
These proposals are discussed briefly below. THE PARTICIPANTS MAKE NO
RECOMMENDATION AS TO THESE PROPOSALS AND INTEND TO ABSTAIN FROM VOTING THEREON.
IF YOU HAVE SIGNED THE GOLD PROXY CARD AND NO MARKING IS MADE, YOU WILL BE
DEEMED TO HAVE GIVEN A DIRECTION TO ABSTAIN FROM VOTING ALL THE SHARES
REPRESENTED BY THE GOLD PROXY CARD WITH RESPECT TO THESE PROPOSALS.
ITEM 2 -- RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
At the Annual Meeting, the Stockholders will be asked to ratify the
appointment of Ernst & Young LLP as Kerr-McGee's independent auditors for 2005.
Kerr-McGee's board of directors unanimously recommended a vote for this
proposal. The Participants make no recommendation as to this proposal.
VOTING ON ITEM 2
The accompanying GOLD proxy card will be voted in accordance with
your instruction on such card. You may vote for or vote against, or abstain from
voting on, Item 2 described above by marking the proper box on the GOLD proxy
card.
ITEM 3 -- APPROVAL OF THE 2005 LONG TERM INCENTIVE PLAN
At the Annual Meeting, the Stockholders will be asked to approve
Kerr-McGee's 2005 Long Term Incentive Plan to replace the 2002 Long Term
Incentive Plan. Kerr-McGee's board of directors unanimously recommended a vote
for this proposal. The Participants make no recommendation as to this proposal.
VOTING ON ITEM 3
The accompanying GOLD proxy card will be voted in accordance with
your instruction on such card. You may vote for or vote against, or abstain from
voting on, Item 3 described above by marking the proper box on the GOLD proxy
card.
ITEM 4 - APPROVAL TO AMEND THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
TO INCREASE THE AUTHORIZED NUMBER OF SHARES OF COMMON STOCK FROM 300,000,000 TO
500,000,000
At the Annual Meeting, the Stockholders will be asked to approve an
amendment to Kerr-McGee's Amended and Restated Certificate of Incorporation to
increase the authorized number of shares of Common Stock from 300,000,000 to
500,000,000. Kerr-McGee's board of directors unanimously recommended a vote for
this proposal. The Participants make no recommendation as to this proposal.
11
VOTING ON ITEM 4
The accompanying GOLD proxy card will be voted in accordance with
your instruction on such card. You may vote for or vote against, or abstain from
voting on, Item 4 described above by marking the proper box on the GOLD proxy
card.
ITEM 5 -- STOCKHOLDER PROPOSAL REQUESTING ESTABLISHMENT OF AN OFFICE OF THE
BOARD OF DIRECTORS
At the Annual Meeting, the Stockholders will be presented with a
stockholder proposal requesting establishment of an Office of the Board of
Directors. Kerr-McGee's board of directors unanimously recommended a vote
against this proposal. The Participants make no recommendation as to this
proposal.
VOTING ON ITEM 5
The accompanying GOLD proxy card will be voted in accordance with
your instruction on such card. You may vote for or vote against, or abstain from
voting on, Item 5 described above by marking the proper box on the GOLD proxy
card.
OTHER PROPOSALS
The Participants and their affiliates know of no other business to
be presented at the 2005 Annual Meeting. If any other matters should properly
come before the Annual Meeting, it is intended that the persons named on the
enclosed GOLD proxy card will vote that proxy on such other matters in
accordance with their judgment.
VOTING PROCEDURES
According to Kerr-McGee's Proxy Statement, the voting procedures are
as set forth below.
A majority of the shares of the Common Stock of Kerr-McGee, present
in person or represented by proxy, shall constitute a quorum for purposes of the
Annual Meeting. Abstentions and broker non-votes are considered to be shares
present for the purpose of determining whether a quorum exists. A broker
non-vote occurs when a nominee holding shares for a beneficial owner does not
vote on a particular proposal because the nominee does not have discretionary
voting power with respect to that item and has not received voting instructions
from the beneficial owner.
Directors shall be elected by a plurality of the votes present in
person or represented by proxy at the Annual Meeting and entitled to vote on the
election of directors. Abstentions and broker non-votes are not counted as votes
present for the purpose of electing directors. The proposal to amend the Amended
and Restated Certificate of Incorporation of Kerr-McGee requires the affirmative
vote of a majority of the outstanding shares of Common Stock. Abstentions and
broker non-votes will have the effect of votes against the proposal to amend the
Amended and Restated Certificate of Incorporation of Kerr-McGee. In all matters
other than the
12
election of directors and the amendment of the Amended and Restated Certificate
of Incorporation of Kerr-McGee, the affirmative vote of a majority of shares
present in person or represented by proxy at the Annual Meeting and entitled to
vote on the subject matter shall be the act of the stockholders. With respect to
such matters, broker non-votes are not considered to be shares present in person
or represented by proxy, but abstentions are considered to be shares present in
person or represented by proxy, and, therefore, abstentions will have the effect
of votes against the proposal.
The New York Stock Exchange has determined that the appointment of
independent auditors is a "routine" item. Therefore, a broker or nominee may
vote shares held by it with respect to that item if no instructions have been
received for it at least 15 days before the Annual Meeting.
Whether or not you are able to attend the Annual Meeting, you are
urged to complete the enclosed GOLD proxy and return it in the enclosed
self-addressed, prepaid envelope. All valid proxies received prior to the
meeting will be voted. If you specify a choice with respect to any item by
marking the appropriate box on the proxy, the shares will be voted in accordance
with that specification. IF NO SPECIFICATION IS MADE, THE PERSONS NAMED ON THE
ENCLOSED GOLD PROXY CARD WILL VOTE YOUR SHARES FOR CARL C. ICAHN AND BARRY S.
ROSENSTEIN WITH RESPECT TO PROPOSAL 1, AND WILL ABSTAIN FROM VOTING WITH RESPECT
TO THE REMAINING PROPOSALS.
PROXY PROCEDURES
IN ORDER FOR YOUR VIEWS TO BE REPRESENTED AT THE ANNUAL MEETING,
PLEASE MARK, SIGN, DATE AND RETURN THE ENCLOSED GOLD PROXY CARD IN THE ENCLOSED
POSTAGE-PREPAID ENVELOPE.
The accompanying GOLD proxy card will be voted at the Annual Meeting
in accordance with your instructions on such card.
REVOCATION OF PROXIES
Any Stockholder who has mailed a white proxy card to Kerr-McGee may
revoke it before it is voted by mailing a duly executed GOLD proxy card to the
Participants bearing a date LATER than the white proxy card delivered to
Kerr-McGee. Proxies may also be revoked at any time prior to voting by: (i)
delivering to the corporate secretary of Kerr-McGee, a written notice, bearing a
date later than the date of the proxy, stating that the proxy is revoked; (ii)
delivering a duly executed proxy bearing a later date than the proxy delivered
previously; or (iii) attending the Annual Meeting and voting in person.
Only holders of record as of the close of business on the Record
Date will be entitled to vote. If you were a Stockholder of record on the Record
Date, you will retain your voting rights at the Annual Meeting even if you sell
such shares after the Record Date. Accordingly, it is important that you vote
the shares held by you on the Record Date, or grant a
13
proxy to vote such shares on the GOLD proxy card, even if you sell such shares
after the Record Date.
IF YOUR SHARES ARE HELD IN THE NAME OF A BROKERAGE FIRM, BANK, BANK
NOMINEE OR OTHER INSTITUTION ON THE RECORD DATE, ONLY IT CAN VOTE SUCH SHARES
AND ONLY UPON RECEIPT OF YOUR SPECIFIC INSTRUCTIONS. ACCORDINGLY, PLEASE CONTACT
THE PERSON RESPONSIBLE FOR YOUR ACCOUNT AND INSTRUCT THAT PERSON TO EXECUTE ON
YOUR BEHALF THE GOLD PROXY CARD AS SOON AS POSSIBLE.
COST AND METHOD OF SOLICITATION
Solicitation of proxies shall be made by Messrs. Icahn, Meister,
Intrieri, Rosenstein and Roth.
The Icahn Parties and the JANA Parties have retained D.F. King &
Co., Inc. ("King") to conduct the solicitation, for which King is to receive a
fee of approximately $200,000, plus a fee per call and reimbursement for its
reasonable out-of-pocket expenses. The Icahn Parties and the JANA Parties have
agreed to indemnify King against certain liabilities and expenses, including
certain liabilities under the federal securities laws. Insofar as
indemnification for liabilities arising under the federal securities laws may
be permitted to King pursuant to the foregoing provisions, we have been
informed that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy and is therefore unenforceable.
Proxies may be solicited by mail, courier services, Internet, advertising,
telephone or telecopier or in person. It is anticipated that King will employ
approximately 100 persons to solicit proxies from Stockholders for the Annual
Meeting. The total expenditures in furtherance of, or in connection with, the
solicitation of proxies is $[_________] to date, and is estimated to
be $[________] in total.
The Icahn Parties and the JANA Parties agreed on March 24,
2005 to each pay half of all costs related to the solicitation of proxies
(including expenditures for public relations and financial advisers, proxy
solicitors, advertising, printing, transportation and related expenses), except
that the Icahn Parties and the JANA Parties will each bear their own legal
expenses. The Icahn Parties and the JANA Parties intend to seek reimbursement
for the costs and expenses associated with the proxy solicitation in the event
that the Nominees are elected to the Board of Directors of Kerr-McGee, but do
not intend to submit the issue of reimbursement to a vote of security holders.
ADDITIONAL INFORMATION
Certain information regarding the securities of Kerr-McGee
held by Kerr-McGee's Directors, nominees, management and 5% Stockholders is
contained in Kerr-McGee's Proxy Statement. Information concerning the date by
which proposals of security holders intended to be presented at the next annual
meeting of Stockholders of Kerr-McGee must be received by Kerr-McGee for
inclusion in Kerr-McGee's Proxy Statement and form of proxy for that meeting is
also contained in Kerr-McGee's Proxy Statement. This information is contained in
Kerr-McGee's public filings. The Participants take no responsibility for the
accuracy or completeness of such information.
14
Date: March __, 2005 ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
HIGH RIVER LIMITED PARTNERSHIP
JANA PARTNERS LLC
15
APPENDIX I
SUPPLEMENTAL NOMINEE AND OTHER INFORMATION
Set forth below are the dates, types and amounts of each Participant's purchases
and sales of Kerr-McGee's securities within the past two years.
Transactions Within the Past Two Years in Kerr-McGee Voting Securities by Icahn
Partners, Icahn Master and High River
Shares Price
Name Date Purchased Per Share ($)**
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 01/24/05 45,000 60.1318
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 01/25/05 45,000 60.3339
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 01/26/05 67,000 59.2852
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 01/26/05 12,000 60.5174
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 01/28/05 60,000 60.5075
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 01/31/05 10,000 60.8514
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/03/05 30,000 62.5149
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/04/05 27,000 62.9524
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/24/05 118,000* 66.1770
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/24/05 30,000* 65.8539
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/24/05 25,400* 64.0752
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/24/05 20,000* 65.9420
--------------- ----------- ----------- ---------------
16
--------------- ----------- ----------- ---------------
High River 02/24/05 300,000 76.4535
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 02/28/05 125,000 77.1996
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/01/05 50,000* 66.0000
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/01/05 238,600 77.1092
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/01/05 110,000 76.7300
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/02/05 108,200 77.7004
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/10/05 55,000 77.0961
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/11/05 10,000 77.5100
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/16/05 60,000 78.7567
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
High River 03/23/05 14,100 77.9401
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 01/24/05 91,800 60.1318
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 01/25/05 91,800 60.3339
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 01/26/05 136,680 59.2852
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 01/26/05 24,480 60.5174
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 01/28/05 122,400 60.5075
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 01/31/05 20,400 60.8514
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
17
Icahn Master 02/03/05 61,200 62.5149
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/04/05 55,080 62.9524
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/24/05 240,700* 66.2058
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/24/05 61,200* 65.8823
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/24/05 51,800* 64.1035
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/24/05 40,800* 65.9700
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/24/05 612,000 76.4535
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 02/28/05 255,000 77.1996
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/01/05 104,000* 66.0000
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/01/05 486,744 77.1092
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/01/05 224,400 76.7300
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/02/05 220,728 77.7004
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/10/05 112,200 77.0961
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/11/05 20,400 77.5100
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/16/05 122,400 78.7567
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Master 03/23/05 28,764 77.9401
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 01/24/05 88,200 60.1318
18
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 01/25/05 88,200 60.3339
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 01/26/05 131,320 59.2852
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 01/26/05 23,520 60.5174
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 01/28/05 117,600 60.5075
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 01/31/05 19,600 60.8514
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/03/05 58,800 62.5149
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/04/05 52,920 62.9524
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/24/05 231,300* 66.2062
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/24/05 58,800* 65.8823
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/24/05 49,800* 64.1035
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/24/05 39,200* 65.9700
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/24/05 588,000 76.4535
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 02/28/05 245,000 77.1996
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/01/05 96,000* 66.0000
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/01/05 467,656 77.1092
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/01/05 215,600 76.7300
--------------- ----------- ----------- ---------------
19
--------------- ----------- ----------- ---------------
Icahn Partners 03/02/05 212,072 77.7004
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/10/05 107,800 77.0961
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/11/05 19,600 77.5100
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/16/05 117,600 78.7567
--------------- ----------- ----------- ---------------
--------------- ----------- ----------- ---------------
Icahn Partners 03/23/05 27,636 77.9401
* Shares acquired upon exercise of options (including, where applicable, the
JANA Option).
** Per share prices include commissions paid and, with respect to options, the
purchase price of options.
20
Transactions Within the Past Two Years in Kerr-McGee Voting Securities by the
JANA Parties*
Date of Purchase Shares of Common Stock Price per Share
(Sale) Purchased (Sold) ($)
----------------------------------------------------------------------------
12/16/04 100,000 59.0389
12/22/04 100,000 58.3149
12/30/04 35,000 58.1890
01/03/05 100,000 56.9715
01/04/05 65,000 55.8455
01/07/05 75,000 56.4429
01/13/05 27,400 58.5759
01/13/05 100,000 58.7622
01/14/05 500 58.6570
01/14/05 100,000 58.7027
01/18/05 50,000 59.7400
01/20/05 98,000 58.3727
01/21/05 25,000 59.6000
01/24/05 50,000 60.0846
01/25/05 75,000 60.3329
01/26/05 125,000 59.6540
01/27/05 100,000 60.7730
01/28/05 75,000 60.4541
01/31/05 200,000 61.6390
01/31/05 245,000 61.7078
01/31/05 10,700 61.4280
01/31/05 22,800 60.4686
02/01/05 150,000 62.5734
02/04/05 200,000 62.9580
02/04/05 1,400 62.8050
02/07/05 80,300 63.6141
02/07/05 45,000 64.2684
02/08/05 100,000 64.3024
02/11/05 50,000 66.8984
02/14/05 100,000 67.3423
02/14/05 100,000 67.5628
02/14/05 50,000 67.6016
02/15/05 95,000 68.2814
02/15/05 100,000 68.6418
02/15/05 100,000 68.3215
02/15/05 100,000 68.4526
03/01/05 (250,000)** 60.0000
* Of the shares of Common Stock reported herein, 2,557,335 shares are
beneficially owned by JANA Master and 243,765 shares are beneficially owned by a
separate account managed by JANA.
** Sold pursuant to an option that had been issued to and exercised by the Icahn
Parties.
21
APPENDIX II
Below is information with respect to all options to purchase shares of Common
Stock beneficially owned by the JANA Parties:*
Shares
Date of Underlying Exercise Price Purchase Price
Purchase Options per Share ($) Expiration Date per Option ($)
--------------------------------------------------------------------------------
02/28/05 73,300 80.00 04/15/05 2.0558
03/01/05 100,000 80.00 04/15/05 2.7408
03/02/05 126,900 80.00 04/15/05 3.1693
03/17/05 352,200 80.00 04/15/05 2.8197
03/17/05 180,200 75.00 04/15/05 6.7099
03/17/05 356,600 75.00 04/15/05 6.0286
03/18/05 135,800 80.00 04/15/05 3.8348
03/18/05 81,900 75.00 04/15/05 7.0596
03/21/05 20,000 80.00 04/15/05 4.1500
03/21/05 50,000 75.00 04/15/05 7.4000
03/21/05 100,000 80.00 05/20/05 5.1000
* Of the options reported herein, options to purchase 1,439,500 shares of Common
Stock are beneficially owned by JANA Master and options to purchase 137,400
shares of Common Stock are beneficially owned by a separate account managed by
JANA.
22
IMPORTANT
1. If your shares are held in your own name, please mark, date and mail
the enclosed GOLD proxy card to our Proxy Solicitor, [___________], in the
postage-paid envelope provided.
2. If your shares are held in the name of a brokerage firm, bank nominee
or other institution, only it can vote such shares and only upon receipt of your
specific instructions. Accordingly, you should contact the person responsible
for your account and give instructions for a GOLD proxy card to be signed
representing your shares.
3. If you have already submitted a white proxy card to Kerr-McGee for the
Annual Meeting, you may change your vote to a vote FOR the election of the
Nominees by marking, signing, dating and returning the enclosed GOLD proxy card
for the Annual Meeting, which must be dated after any proxy you may have
submitted to Kerr-McGee. ONLY YOUR LATEST DATED PROXY FOR THE ANNUAL MEETING
WILL COUNT AT THE ANNUAL MEETING.
23
PROXY CARD
KERR-MCGEE CORPORATION
2005 ANNUAL MEETING OF STOCKHOLDERS
THIS PROXY IS SOLICITED BY
ICAHN PARTNERS LP
ICAHN PARTNERS MASTER FUND LP
HIGH RIVER LIMITED PARTNERSHIP AND
JANA PARTNERS LLC
The undersigned hereby appoints and constitutes each of
________________, ________________ and __________________ (acting alone or
together) as proxies, with full power of substitution in each, to represent the
undersigned at the Annual Meeting of Stockholders of Kerr-McGee Corporation
("Kerr-McGee") to be held on May 10, 2005 at 9:00 a.m. local time, and at any
adjournment or postponement thereof, hereby revoking any proxies previously
given, to vote all shares of Common Stock of Kerr-McGee held or owned by the
undersigned as directed below, and in their discretion upon such other matters
as may come before the meeting. IF NO DIRECTION IS MADE, THE PERSONS NAMED ON
THIS GOLD PROXY CARD WILL VOTE YOUR SHARES FOR CARL C. ICAHN AND BARRY S.
ROSENSTEIN FOR DIRECTOR, AND WILL ABSTAIN FROM VOTING WITH RESPECT TO THE
REMAINING PROPOSALS.
SIGN, DATE AND MAIL YOUR PROXY TODAY
(CONTINUED AND TO BE SIGNED ON THE REVERSE SIDE.)
ICAHN PARTNERS, ICAHN MASTER, HIGH RIVER AND JANA EACH RECOMMEND A VOTE "FOR"
THE ELECTION OF THE NOMINEES LISTED IN PROPOSAL 1 BELOW. NO RECOMMENDATION IS
MADE AS TO THE REMAINING PROPOSALS.
[X] PLEASE MARK VOTES AS IN THIS EXAMPLE.
STOCKHOLDERS ARE URGED TO DATE, MARK, SIGN, AND RETURN THIS PROXY.
YOUR VOTE IS VERY IMPORTANT TO US.
1. Election of directors -- Nominees: [ ] [ ] [ ]
(01) Carl C. Icahn FOR ALL WITHHELD FOR ALL
(02) Barry S. Rosenstein NOMINEES FROM ALL EXCEPT
NOMINEES
NOTE: If you do not wish your shares voted "For" a particular nominee,
mark the "FOR ALL EXCEPT" box and write the name(s) of the nominee(s) you
do not support on the line below. Your shares will be voted for the
remaining nominee(s).
----------------------------------------------------------
[ ] [ ] [ ]
2. Ratification of appointment of Ernst & Young LLP as FOR AGAINST ABSTAIN
independent auditors for 2005.
[ ] [ ] [ ]
3. Approval of 2005 Long Term Incentive Plan. FOR AGAINST ABSTAIN
[ ] [ ] [ ]
4. Approval to amend the Amended and Restated FOR AGAINST ABSTAIN
Certificate of Incorporation to Increase the
Authorized Number of Shares of Common Stock from
300,000,000 to 500,000,000.
[ ] [ ] [ ]
5. Stockholder proposal requesting establishment of FOR AGAINST ABSTAIN
an Office of the Board of Directors.
MARK HERE IF YOU PLAN TO ATTEND THE MEETING [ ]
MARK HERE IF AN ADDRESS CHANGE HAS BEEN [ ]
NOTED ON THE REVERSE SIDE OF THIS CARD
Please be sure to sign and date this Proxy.
-------------------------------------------------- ------------------
SIGNATURE(S) OF STOCKHOLDER(S) DATE
-----------------------------------------------------------------------
TITLE, IF ANY
SIGNATURE (IF HELD JOINTLY):
-------------------------------------------