As filed with the Securities and Exchange Commission on August 1, 2001
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KERR-MCGEE HOLDCO, INC.
(Exact name of Registrant as specified in its charter)
Delaware 73-1612389
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
Kerr-McGee Holdco, Inc.
123 Robert S. Kerr Avenue
Oklahoma City, Oklahoma 73102
(Address, including zip code, of Registrant's principal executive office)
Kerr-McGee Performance Share Plan
Kerr-McGee Corporation Executive Deferred Compensation Plan
(Full title of the Plans)
------------------------
Gregory F. Pilcher, Esq.
Senior Vice President, General Counsel and Secretary
Kerr-McGee Holdco, Inc.
123 Robert S. Kerr Avenue
Oklahoma City, Oklahoma 73102
(405) 270-1313
(Name, address, including zip code, and telephone number, including area
code, of Registrant's agent for service)
Copies to:
Peter J. Gordon, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
------------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share Offering Price Fee
--------------------------------------------------- ---------------- --------------- ------------------ -------------
Common Stock, $1.00 par value per share(a)(b).. 1,771,381 $58.92(c) $104,369,768.52(c) $26,092.44(c)
(a) Includes certain rights issued to the holders of Common Stock pursuant to
a rights agreement.
(b) The shares are issuable pursuant to the respective Plans as follows:
Kerr-McGee Performance Share Plan--1,359,100 shares;
Kerr-McGee Corporation Executive Deferred Compensation Plan--412,281 shares.
(c) Pursuant to Rule 457(h)(1) under the Securities Act of 1933, the
proposed maximum offering price per share, the proposed maximum
aggregate offering price and the amount of registration fee have been
computed on the basis of the average of the high and low prices of the
Common Stock reported on the New York Stock Exchange Composite Tape on
July 25, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Kerr-McGee Holdco, Inc. (the "Company"
or the "Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
(a) The Annual Report of Kerr-McGee Corporation on Form 10-K for the fiscal
year ended December 31, 2000.
(b) The Quarterly Report of Kerr-McGee Corporation on Form 10-Q for the
fiscal quarter ending March 31, 2001.
(c) The Quarterly Report of Kerr-McGee Corporation on Form 10-Q for the
fiscal quarter ended June 30, 2001.
(d) The Current Reports of Kerr-McGee Corporation on Form 8-K filed on
January 17, 2001, February 20, 2001, March 19, 2001, March 23, 2001,
April 10, 2001, May 14, 2001, May 15, 2001, May 16, 2001, May 24, 2001,
June 25, 2001 and July 20, 2001.
(e) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form S-4 dated June 28,
2001 (file No. 333-61898).
(f) The description of certain rights issued to holder of the Company's
Common Stock contained in the Company's Registration Statement on Form
8-A dated July 27, 2001.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not required.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
empowers a Delaware corporation to indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation),
by reason of the fact that such person is or was an officer, director,
employee or agent of such corporation, or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided that such
officer, director, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe
his conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which such officer or director actually and
reasonably incurred.
The Company's Amended and Restated Certificate of Incorporation provides
that the Company shall indemnify directors and officers made party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, including appeals, to the fullest
extent permitted by the laws of the State of Delaware. Such indemnification
shall continue after an individual ceases to be an officer or director and
shall inure to the benefit of the heirs, executors and administrators of such
person. The Amended and Restated Company's Certificate of Incorporation also
provides that a director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended.
The indemnification rights conferred by the Amended and Restated
Certificate of Incorporation of the Company are not exclusive of any other
right to which a person seeking indemnification may otherwise be entitled. The
Company will also provide liability insurance for the directors and officers
for certain losses arising from claims or charges made against them while
acting in their capacities as directors or officers.
Article XXII of the Amended Restated By-Laws of the Company contains
provisions regarding indemnification which parallels those described above.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement:
4.1 Form of Amended and Restated Certificate of Incorporation of the Company
(incorporated herein by reference to Exhibit 4.1 to the Registration
Statement on Form S-4 dated June 28, 2001)
4.2 Form of Amended and Restated By-Laws of the Company (incorporated herein
by reference to Exhibit 4.2 to the Registration Statement on Form S-4
dated June 28, 2001)
4.3 Rights Agreement, dated as of July 26, 2001, by and between the Company
and UMB Bank, N.A. (incorporated herein by reference to Exhibit 4.1 to
the Company's Registration Statement on Form 8-A filed on July 27, 2001)
4.4 First Amendment to Rights Agreement, dated as of July 30, 2001, by and
between the Company and UMB Bank, N.A. (incorporated herein by reference
to Exhibit 4.1 to the Company's Registration Statement on Form 8-A/A
filed on August 1, 2001)
5 Opinion of Gregory F. Pilcher, Esq., Director, Senior Vice President,
General Counsel and Secretary
23.1 Consent of Arthur Andersen LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Gregory F. Pilcher, Esq. (included in Exhibit 5)
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this Registration Statement (except to the extent the
information required to be included by clauses (i) or (ii) is
contained in periodic reports filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by
reference into this Registration Statement);
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement.
(2) That, for the purposes of determining any liability under the Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(5) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the 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 Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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-8 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 1st day of August, 2001.
KERR-MCGEE HOLDCO, INC.
(Registrant)
By /s/ Luke R. Corbett
---------------------------------------------
Luke R. Corbett
Chairman of the Board and Chief
Executive Officer
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 date indicated.
Signature Title Date
--------- ----- ----
/s/ Luke R. Corbett Director, Chairman of the Board and Chief August 1, 2001
---------------------------------------- Executive Officer (principal executive officer)
Luke R. Corbett
/s/ Robert M. Wohleber Director, Senior Vice President and Chief August 1, 2001
---------------------------------------- Financial Officer (principal financial and
Robert M. Wohleber accounting officer)
/s/ Gregory R. Pilcher Director, Senior Vice President, General Counsel August 1, 2001
---------------------------------------- and Secretary
Gregory F. Pilcher
INDEX TO EXHIBITS
Exhibit Description
Number
4.1 Form of Amended and Restated Certificate of Incorporation of
the Company (incorporated herein by reference to Exhibit 4.1 to
the Registration Statement on Form S-4 dated June 28, 2001)
4.2 Form of Amended and Restated By-Laws of the Company
(incorporated herein by reference to Exhibit 4.2 to the
Registration Statement on Form S-4 dated June 28, 2001)
4.3 Rights Agreement, dated as of July 26, 2001, by and between the
Company and UMB Bank, N.A. (incorporated herein by reference to
Exhibit 4.1 to the Company's Registration Statement on Form 8-A
filed on July 27, 2001)
4.4 First Amendment to Rights Agreement, dated as of July 30, 2001,
by and between the Company and UMB Bank, N.A. (incorporated
herein by reference to Exhibit 4.1 to the Company's
Registration Statement on Form 8-A/A filed on August 1, 2001)
5 Opinion of Gregory F. Pilcher, Esq., Director, Senior Vice
President, General Counsel and Secretary
23.1 Consent of Arthur Andersen LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Gregory F. Pilcher, Esq. (included in Exhibit 5)