1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 18, 2001
REGISTRATION NO. 333-61898
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
KERR-MCGEE HOLDCO, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 1311 73-1612389
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or Organization) Classification Code Number) Identification Number)
123 ROBERT S. KERR AVENUE
OKLAHOMA CITY, OKLAHOMA 73102
(405) 270-1313
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
GREGORY F. PILCHER, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
123 ROBERT S. KERR AVENUE
OKLAHOMA CITY, OKLAHOMA 73102
(405) 270-1313
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
---------------------
Copies to:
PETER J. GORDON, ESQ. RONALD R. LEVINE II, ESQ.
BRIAN M. STADLER, ESQ. DAVIS GRAHAM & STUBBS LLP
SIMPSON THACHER & BARTLETT 1550 17TH STREET
425 LEXINGTON AVENUE SUITE 500
NEW YORK, NEW YORK 10017 DENVER, COLORADO 80202
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
possible after this registration statement is declared effective.
---------------------
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) REGISTRATION FEE(2)
----------------------------------------------------------------------------------------------------------------------
Common Stock, $1.00 per
share....................... 5,567,104 shares $64.75 $383,315,597 $95,829
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
(1) The number of shares of the registrant being registered is based upon an
estimate of (x) the maximum number of shares of common stock, par value
$0.01 per share, of HS Resources, Inc. ("HS Resources Common Stock")
expected to be converted into shares of common stock of the registrant
pursuant to the merger of HS Resources, Inc. with a wholly owned subsidiary
of the registrant (5,919,932) multiplied by (y) the exchange ratio of .9404
shares of common stock, par value $1.00 per share, of the registrant for
each share of HS Resources Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f) of the Securities Act. The aggregate offering price
is the product of (A) the average of the high and low prices of HS Resources
as reported on the New York Stock Exchange Composite Transaction Tape on May
25, 2001 ($64.75) and (B) the maximum number of shares of HS Resources, Inc.
Common Stock expected to be converted into shares of common stock of the
registrant pursuant to the merger (5,919,932). The registration fee is
calculated by multiplying the estimated aggregate offering of securities to
be registered by .000250. The registration fee was paid with the previous
filing of the Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except to the extent indicated below, there is no charter provision,
by-law, contract, arrangement or statute under which any director or officer of
Kerr-McGee Holdco, Inc. (the "New Holding Company") is insured or indemnified in
any manner against any liability which he or she may incur in his or her
capacity as such.
Article Seventh of the certificate of incorporation of the New Holding
Company (as the same will be amended and restated upon consummation of the
merger, the "Charter") contains a provision, permitted by Section 102(b)(7) of
the Delaware General Corporation Law (the "DGCL"), limiting the personal
monetary liability of directors for breach of fiduciary duty as a director. The
DGCL and the certificate of incorporation of the combined company provide that
such provision does not eliminate or limit liability (i) for any breach of the
director's duty of loyalty to the New Holding Company or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the
DGCL, or (iv) for any transaction from which the director derived an improper
benefit.
Section 145 of the DGCL permits indemnification against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with actions, suits or proceedings in which an
officer, director, employee or agent is a party by reason of the fact that he is
or was such a director, officer, employee or agent, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
However, in connection with actions by or in the right of the corporation, such
indemnification is not permitted if such person has been adjudged liable to the
corporation unless the court determines that, under all of the circumstances,
such person is nonetheless fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. Article Seventh of the Charter provides that
the New Holding Company shall indemnify such persons to the fullest extent
permitted by the DGCL.
Section 145 also permits a corporation to purchase and maintain insurance
on behalf of its directors and officers against any liability which may be
asserted against, or incurred by, such persons in their capacities as directors
or officers of the corporation whether or not the New Holding Company would have
the power to indemnify such persons against such liabilities under the
provisions of such sections. The New Holding Company will have such insurance.
Section 145 further provides that the statutory provision is not exclusive
of any other right to which those seeking indemnification or advancement of
expenses may be entitled under any by-law, agreement, vote of stockholders or
independent directors, or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office.
Article XXII of the by-laws of the New Holding Company contains provisions
regarding indemnification which parallel those described above.
II-1
3
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) The following Exhibits are filed herewith unless otherwise indicated:
EXHIBIT
NO. DESCRIPTION
------- -----------
2.1* -- Agreement and Plan of Merger, dated as of May 13, 2001,
among Kerr-McGee Corporation, HS Resources, Inc.,
Kerr-McGee Holdco, Inc. (formerly known as King Holdco,
Inc.), Kerr-McGee Merger Sub, Inc. (formerly known as
King Merger Sub, Inc.), and HS Resources Merger Sub, Inc.
(formerly known as Hawk Merger Sub, Inc.) (attached as
Annex A to the proxy statement-prospectus contained in
this Registration Statement).
4.1 -- Form of Amended and Restated Certificate of Incorporation
of Kerr-McGee Holdco, Inc.
4.2 -- Form of Amended and Restated By-Laws of Kerr-McGee
Holdco, Inc.
5.1 -- Opinion of Simpson Thacher & Bartlett regarding the
legality of the shares of Kerr-McGee Holdco common stock
to be registered under this Registration Statement.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Arthur Andersen LLP.
23.3 -- Consent of PricewaterhouseCoopers LLP.
23.4 -- Consent of Simpson Thacher & Bartlett (included in the
opinion filed as Exhibit 5.1 to this Registration
Statement).
23.5* -- Consent of Lehman Brothers Inc.
24.1* -- Powers of Attorney of the directors of Kerr-McGee Holdco,
Inc.
99.1 -- Form of Proxy for holders of HS Resources, Inc.
99.2** -- Consents of the directors of Kerr-McGee Corporation to be
named as a director of Kerr-McGee Holdco, Inc.
---------------
* Previously filed.
** To be filed by amendment.
(b) Financial Data Schedule.
Schedules are omitted because they either are not required or are not
applicable or because equivalent information has been included in the
financial statements, the notes thereto or elsewhere herein.
ITEM 22. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(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; and
II-2
4
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act 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 which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
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 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) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items
of the applicable form.
(6) That every prospectus (i) that is filed pursuant to paragraph (2)
immediately preceding, or (ii) that purports to meet the requirements of
Section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes 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.
(7) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of any such request, and to send
the incorporated documents by first class mail or other equally prompt
means, including information contained in documents filed after the
effective date of this registration statement through the date of
responding to such request.
(8) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in this registration statement
when it became effective.
Insofar as indemnification for liabilities under the Securities Act of 1933
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 20 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable. If a claim of
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 a successful defense of any action, suit or
proceeding, is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
5
Pursuant to the requirements of the Securities Act of 1933, as amended,
Kerr-McGee Holdco, Inc. has duly caused this amendment to be signed on its
behalf by the undersigned, thereunto duly authorized, in Oklahoma City,
Oklahoma, on June 18, 2001.
KERR-MCGEE HOLDCO, INC.
By: *
----------------------------------
Name: Luke R. Corbett
Title: Chairman of the Board
and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
* Director, Chairman of the Board June 18, 2001
----------------------------------------------------- and Chief Executive Officer
Luke R. Corbett (Principal Executive Officer)
* Director, Senior Vice President June 18, 2001
----------------------------------------------------- and Chief Financial Officer
Robert M. Wohleber
/s/ GREGORY F. PILCHER Director, Senior Vice President, June 18, 2001
----------------------------------------------------- General Counsel and Secretary
Gregory F. Pilcher
---------------
* Gregory F. Pilcher hereby signs this registration statement on behalf of each
of the indicated persons for whom he is attorney-in-fact on June 18, 2001
pursuant to a power of attorney previously filed.
II-4
6
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
------- -----------
2.1* -- Agreement and Plan of Merger, dated as of May 13, 2001,
among Kerr-McGee Corporation, HS Resources, Inc.,
Kerr-McGee Holdco, Inc. (formerly known as King Holdco,
Inc.), Kerr-McGee Merger Sub, Inc. (formerly known as
King Merger Sub, Inc.), and HS Resources Merger Sub, Inc.
(formerly known as Hawk Merger Sub, Inc.) (attached as
Annex A to the proxy statement-prospectus contained in
this Registration Statement).
4.1 -- Form of Amended and Restated Certificate of Incorporation
of Kerr-McGee Holdco, Inc.
4.2 -- Form of Amended and Restated By-Laws of Kerr-McGee
Holdco, Inc.
5.1 -- Opinion of Simpson Thacher & Bartlett regarding the
legality of the shares of Kerr-McGee Holdco Common Stock
to be registered under this Registration Statement.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Arthur Andersen LLP.
23.3 -- Consent of PricewaterhouseCoopers LLP.
23.4 -- Consent of Simpson Thacher & Bartlett (included in the
opinion filed as Exhibit 5.1 to this Registration
Statement).
23.5* -- Consent of Lehman Brothers Inc.
24.1* -- Powers of Attorney of the directors of Kerr-McGee Holdco,
Inc.
99.1 -- Form of Proxy for holders of HS Resources, Inc.
99.2** -- Consents of the directors of Kerr-McGee Corporation to be
named as a director of Kerr-McGee Holdco, Inc.
---------------
* Previously filed.
** To be filed by amendment.