View:
As filed with the Securities and Exchange Commission on August 19, 1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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KIRBY CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 74-1884980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1775 St. James Place, Suite 200
Houston, Texas 77056
(Address of principal executive offices) (Zip Code)
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1996 EMPLOYEE STOCK OPTION PLAN FOR KIRBY CORPORATION
(Full title of the plan)
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J. H. Pyne Copy to:
President Henry Gilchrist, Esq.
Kirby Corporation Jenkens & Gilchrist,
1775 St. James Place, Suite 200 A Professional Corporation
Houston, Texas 77056 1445 Ross Avenue, Suite 3200
(713) 629-9370 Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of
Class of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) per Share(2)(3) Offering Price(2)(3) Fee(3)
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Common
Stock,
$0.10 par
value per 900,000
share Shares $19.50 $17,518,125 $5,309
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(1) The securities to be registered consist of 900,000 shares reserved for
issuance under the 1996 Employee Stock Option Plan for Kirby Corporation (the
"Plan").
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per
share of the Common Stock offered hereunder pursuant to the Plan is based on (i)
204,000 shares of Common Stock reserved for issuance under the Plan, but not
subject to outstanding stock options, at a price per share of $19.34375, which
is the average of the highest and lowest selling price per share of Common Stock
on the New York Stock Exchange, Inc. on August 14, 1997, and (ii) the following
shares of Common Stock reserved for issuance under the Plan and subject to
options already granted thereunder at the following exercise price:
Number of Shares
of Common Stock Exercise Price
Subject to Outstanding Options Per Share
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696,000 $19.50
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CORPDAL:62512.3 13085-00001
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
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Item 2. Registrant Information and Employee Plan Annual Information*
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this registration
statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1996;
(2) the registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 30, 1997, each filed with the Commission;
(3) the description of the Common Stock, par value $0.10 per share, of
the registrant (the "Common Stock") set forth in the Registration Statement
on Form 8-B, dated October 14, 1976, including any amendment or report
filed for the purpose of updating such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 5. Interests of Named Experts and Counsel
Certain matters with respect to the validity of the common Stock to be
offered hereby will be passed on for the Company by Jenkens & Gilchrist, a
Professional Corporation. Thomas G. Adler, the Secretary of the registrant is a
shareholder of Jenkens & Gilchrist, a Professional Corporation and Henry
Gilchrist, an Advisory Director of the registrant, is Of Counsel to Jenkens &
Gilchrist, a Professional Corporation. As of June 30, 1997, Mr. Gilchrist owned
1,000 shares of Common Stock and held options to purchase 7,500 shares of Common
Stock.
Item 6. Indemnification of Directors and Officers.
(a) The Restated Articles of Incorporation of the registrant provide for
indemnification as follows:
"TWELFTH: 1. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right of
the corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
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*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
CORPDAL:62512.3 13085-00001
II-1
other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with the action, suit or proceeding if he
acted in good faith and in a manner which 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, has no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts
paid in settlement and attorneys' fees actually and reasonably
incurred by him in connection with the defense or settlement of the
action or suit if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the corporation. Indemnification shall not be made for any claim,
issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom,
to be liable to the corporation or for amounts paid in settlement to
the corporation unless and only to the extent that the court in which
the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in sections 1 and 2 of
this Article Twelfth, or in defense of any claim, issue or matter
therein, he must be indemnified by the corporation against expenses,
including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
4. Any indemnification under sections 1 and 2 of this Article
Twelfth, unless ordered by a court or advanced pursuant to section 5
of this Article Twelfth, must be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the act, suit or
proceeding;
(c) If a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties
to the act, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion.
5. The expenses of officers and directors incurred in defending a
civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay the
amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this section 5 of this Article Twelfth
do not affect any rights to advancement of expenses to which corporate
personnel other than directors or officers may be entitled under any
contract or otherwise by law.
6. The indemnification and advancement of expenses provided by
this Article Twelfth:
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(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be
entitled under these articles of incorporation or any bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to section 2
of this Article Twelfth or for the advancement of expenses of any
director or officer, if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the cause of
action.
(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the
heirs, executors and administrators of such a person.
7. The corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise for any liability asserted against him and
liability and expenses incurred by him in his capacity as a director,
officer, employee or agent, or arising out of his status as such,
whether or not the corporation has the authority to indemnify him
against such liability and expenses.
8. The other financial arrangements made by the corporation
pursuant to section 7 of this Article Twelfth may include the
following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
corporation.
(d) The establishment of a letter of credit, guaranty or
surety.
No financial arrangement made pursuant to this section may provide
protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for intentional
misconduct, fraud or a knowing violation of law, except with respect to
the advancement of expenses or indemnification ordered by a court.
9. Any insurance or other financial arrangement made on behalf of
a person pursuant to this Article Twelfth may he provided by the
corporation or any other person approved by the board of directors,
even if all or part of the other person's stock or other securities is
owned by the corporation.
10. In the absence of fraud:
(a) The decision of the board of directors as to the
propriety of the terms and conditions of any insurance or other
financial arrangement made pursuant to this Article Twelfth and
the choice of the person to provide the insurance or other
financial arrangement shall be conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to
personal liability for his action, even if a director
approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial
arrangement."
(b) The registrant's Bylaws provide that the registrant shall indemnify
each and every present and former director and officer of the registrant, and
each and every person who may have served at the registrant's request as a
director or officer of another corporation in which the registrant
CORPDAL:62512.3 13085-00001
II-3
owns shares of capital stock or of which the registrant is a creditor (each
ofwhich other corporation is individually referred to herein as an "Other
Enterprise"), against any and all expenses (including attorneys' fees) actually
and necessarily incurred by him in connection with the defense of any action,
suit or proceeding in which he was or is a party by reason of being or having
been a director or officer of the registrant or Other Enterprise to the fullest
extent permitted by law. The rights of indemnification provided in the Bylaws
are in addition to any other rights to which a person may otherwise be entitled
by any other provisions of the registrant's Restated Articles of Incorporation,
statute, agreement, vote of stockholders or otherwise.
The registrant's Bylaws further provide that the registrant shall indemnify
officers and directors of the registrant, as well as other persons who serve as
agents and employees of the registrant, to the extent set forth in the Restated
Articles.
Additionally, the registrant's Bylaws provide that the registrant may
purchase and maintain insurance on behalf of, and contractually agree to
indemnify, any person who is or was a director, officer, employee or agent of
the registrant, or is or was serving at the request of the registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the registrant would have the power to indemnify him against such
liability under the provisions of the Bylaws.
(c) The registrant has entered into agreements with each Director, Advisory
Director, certain key employees, including Brian K. Harrington and G. Stephen
Holcomb and Thomas G. Adler, and certain directors of subsidiaries of the
registrant, that provide for the indemnification of such individuals for certain
liabilities incurred in such capacity.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
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4.1 Restated Articles of Incorporation of Kirby Exploration Company,
Inc., as amended (incorporated by reference from Exhibit 3.1 to
the registrant's Registration Statement on Form S-3, Reg. No.
33-30832, filed with the Commission on August 30, 1989).
4.2 Certificate of Amendment of Restated Articles of Incorporation of
the registrant (incorporated by reference from Exhibit 3.2 to the
registrant's Annual Report on Form 10-K for the year ended
December 31, 1990).
4.3 Bylaws of the registrant, as amended, (incorporated by reference
from Exhibit 3.2 to the registrant's Registration Statement on
Form S-3, Reg. No. 33-30832, filed with the Commission on August
30, 1989).
4.4 Amendment to Bylaws of the registrant (incorporated by reference
from Exhibit 3.4 to the registrant's Annual Report on Form 10-K
for the year ended December 31, 1990).
4.5 1996 Employee Stock Option Plan for Kirby Corporation
(incorporated by reference from Exhibit 10.24 to the registrant's
Annual Report on Form 10-K for the year ended December 31, 1996).
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1*Consent of Jenkens & Gilchrist, a Professional Corporation
[included in their opinion filed as Exhibit 5.1]
23.2*Consent of KPMG Peat Marwick, LLP
CORPDAL:62512.3 13085-00001
II-4
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* Filed herewith.
Item 9. Undertakings.
A. 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
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of 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.
CORPDAL:62512.3 13085-00001
II-5
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
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 Houston, Texas, on August 19, 1997.
KIRBY CORPORATION
By: /s/ J. H. Pyne
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J. H. Pyne
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints J. H. Pyne, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same with all exhibits thereto and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Capacity Date
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/s/George A. Peterkin, Jr. Chairman of the Board and August 19, 1997
- -------------------------- Director of the Company
George A. Peterkin, Jr.
/s/J. H. Pyne President, Director of the August 19, 1997
- -------------------------- Company and Principal
J. H. Pyne Executive Officer
/s/Brian K. Harrington Senior Vice President, Treasurer, August 19, 1997
- -------------------------- Assistant Secretary and Principal
Brian K. Harrington Financial Officer of the Company
/s/G. Stephen Holcomb Vice President, Controller, August 19, 1997
- -------------------------- Assistant Secretary and Principal
G. Stephen Holcomb Accounting Officer of the Director
of the Company
/s/George F. Clements, Jr. Director of the Company August 19, 1997
- --------------------------
George F. Clements, Jr.
/s/C. Sean Day Director of the Company August 19, 1997
- --------------------------
C. Sean Day
CORPDAL:62512.3 13085-00001
/s/William M. Lamont, Jr. Director of the Company August 19, 1997
- --------------------------
William M. Lamont, Jr.
/s/Robert G. Stone, Jr. Director of the Company August 19, 1997
- --------------------------
Robert G. Stone, Jr.
/s/Thomas M. Taylor Director of the Company August 19, 1997
- --------------------------
Thomas M. Taylor
/s/J. Virgil Waggoner Director of the Company August 19, 1997
- --------------------------
J. Virgil Waggoner
CORPDAL:62512.3 13085-00001
Exhibit 5.1
[JENKENS & GILCHRIST LETTERHEAD]
August 19, 1997
Kirby Corporation
1775 St. James Place, Suite 200
Houston, Texas 77056
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Kirby Corporation, a Nevada corporation (the
"Company"), in connection with the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission on or about August 19, 1997, under the Securities Act of
1993, as amended (the "Securities Act"), relating to 900,000 shares of the $.10
par value common stock (the "Common Stock") of the Company that may be issued
upon the exercise of options granted or that may be granted under 1996 Employee
Stock Option Plan for Kirby Corporation (the "1996 Employee Plan").
You have requested the opinion of this firm with respect to certain legal
aspects of the proposed offering. In connection therewith, we have examined and
relied upon the original, or copies identified to our satisfaction, of (1) the
Restated Articles of Incorporation and the Bylaws of the Company, each as
amended; (2) minutes and records of the corporate proceedings of the Company
with respect to the establishment of the 1996 Employee Plan and the reservation
of 900,000 shares of Common Stock to be issued upon the exercise of options
granted or to be granted under the 1996 Employee Plan (the "Options") and to
which the Registration Statement relates; (3) the Registration Statement and
exhibits thereto, including the 1996 Employee Plan; and (4) such other documents
and instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, and as to the content and form of the Restated
Articles of Incorporation, the Bylaws, minutes, records, resolutions and other
documents or writings of the Company, we have relied, to the extent we deem
reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and instruments furnished
to us by the Company, without independent confirmation or verification of their
accuracy.
CORPDAL:67031.1 13085-00064
Kirby Corporation
August 19, 1997
Page 2
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, and subject to the comments and
exceptions noted below, we are of the opinion that the Company presently has
available sufficient shares of authorized but unissued shares of Common Stock
from which the 900,000 shares of Common Stock subject to the exercise of Options
may be issued. Furthermore, assuming that (i) the outstanding Options were duly
granted, the Options to be granted in the future are duly granted in accordance
with the terms of the 1996 Employee Plan and the shares of Common Stock to be
issued pursuant to the exercise of Options are duly issued in accordance with
the terms of the 1996 Employee Plan, (ii) the Company maintains an adequate
number of authorized but unissued shares and/or treasury shares of Common Stock
available for issuance to those persons who exercise Options, and (iii) the
consideration for shares of Common Stock issued pursuant to the exercise of
Options is actually received by the Company in accordance with the terms of the
1996 Employee Plan and exceeds the par value of such shares, then we are of the
opinion that the shares of Common Stock issued pursuant to the exercise of
Options and in accordance with the terms of the 1996 Employee Plan, will be duly
and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to our firm included in or made a part
of the Registration Statement. In giving this consent, we do not admit that we
come within the category of person whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ L. Steven Leshin
-----------------------------
L. Steven Leshin, Authorized Signatory
LSL/ts
CORPDAL:67031.1 13085-00064
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to incorporate by reference in the Registration Statement on Form S-8
of Kirby Corporation and consolidated subsidiaries of our report dated February
18, 1997, relating to the consolidated balance sheets of Kirby Corporation and
consolidated subsidiaries as of December 31, 1996, and 1995, and the related
consolidated statements of earnings, stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1996, which report
appears in the December 31, 1996 Annual Report on Form 10-K of Kirby Corporation
and consolidated subsidiaries.
/s/ KPMG Peat Marwick LLP
-------------------------
Houston, Texas
August 14, 1997
CORPDAL:69678. 99999-00001