Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Houston, State of Texas, on July 31, 2000.
By:/s/ J.H. Pyne
J. H. Pyne
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each individual whose signature appears
below hereby 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
or all amendments to this registration statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person hereby ratifying and confirming that said
attorney-in-fact and agent or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates included:
Signature Capacity Date
/s/ C. Berdon Lawrence Chairman of the Board and July 31, 2000
- -------------------------------------------------- Director of the Company
C. Berdon Lawrence
/s/ J. H. Pyne President, Director and Principal July 31, 2000
- ------------------------------------------------- Executive Officer of the Company
J. H. Pyne
/s/ Norman W. Nolen Executive Vice President, July 31, 2000
- --------------------------------------------------- Treasurer, Assistant Secretary and
Norman W. Nolen Principal Financial Officer of the
/s/ G. Stephen Holcomb Vice President, Controller, July 31, 2000
- --------------------------------------------------- Assistant Secretary and Principal
G. Stephen Holcomb Accounting Officer of the
/s/ Philip J. Burguieres Director of the Company July 31, 2000
Philip J. Burguieres
/s/ C. Sean Day Director of the Company July 31, 2000
C. Sean Day
/s/ Bob G. Gower Director of the Company July 31, 2000
Bob G. Gower
/s/ William M. Lamont, Jr. Director of the Company July 31, 2000
William M. Lamont, Jr.
/s/ George A. Peterkin, Jr. Director of the Company July 31, 2000
George A. Peterkin, Jr.
/s/ Robert G. Stone, Jr. Director of the Company July 31, 2000
Robert G. Stone, Jr.
2000 DIRECTOR STOCK OPTION PLAN
1. Purpose. The purpose of this Plan is to advance the interests of Kirby
Corporation, a Nevada corporation (the "Company"), by providing an additional
incentive to attract and retain qualified and competent directors, upon whose
efforts and judgment the success of the Company is largely dependent, through
the encouragement of stock ownership in the Company by such persons.
2. Definitions. As used herein, the following terms shall have the meaning
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the Compensation Committee, if any, appointed by
(c) "Date of Grant" shall mean the date on which an Option is granted to an
Eligible Person, provided it is followed, as soon as reasonably possible, by
written notice to the Eligible Person of the grant.
(d) "Director" shall mean a member of the Board.
(e) "Eligible Person(s)" shall mean those persons who are Directors of the
Company and who are not employees of the Company or a Subsidiary.
(f) "Fair Market Value" of a Share shall be the mean of the high and low
sales price on the New York Stock Exchange on the day of reference as quoted in
any newspaper of general circulation or, if the Shares shall not have been
traded on such exchange on such date, the mean of the high and low sales price
on such exchange on the next day prior thereto on which the Shares were so
traded, as quoted in any newspaper of general circulation. If the Shares are not
listed for trading on the New York Stock Exchange, the fair market value on the
date of reference shall be determined by any fair and reasonable means
prescribed by the Board.
(g) "Internal Revenue Code" or "Code" shall mean the Internal Revenue Code
of 1986, as it now exists or may be amended from time to time.
(h) "Non-Employee Director" shall have the meaning given to such term in
Rule 16b- 3(b)(3) under the Securities Act of 1934, as amended.
(i) "Nonincentive Stock Option" shall mean an option that is not an
incentive stock option as defined in Section 422A of the Internal Revenue Code.
(j) "Option" (when capitalized) shall mean any option granted under this
(k) "Optionee" shall mean a person to whom a stock option is granted under
this Plan or
any successor to the rights of such person under this Plan by reason of the
death of such person.
(l) "Plan" shall mean this 2000 Director Stock Option Plan for Kirby
(m) "Share(s)" shall mean a share or shares of the common stock, par value
ten cents ($0.10) per share, of the Company.
(n) "Subsidiary" shall mean any corporation (other than the Company) in any
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
3. Shares and Options. The maximum number of Shares to be issued
pursuant to Options under this Plan shall be ONE HUNDRED THOUSAND (100,000)
Shares from Shares held in the Company's treasury. If any Option granted under
the Plan shall terminate, expire or be cancelled or surrendered as to any
Shares, new Options may thereafter be granted covering such Shares. Any Option
granted hereunder shall be a Nonincentive Stock Option.
4. Automatic Grant of Options.
(a) Options shall automatically be granted to Eligible Persons as provided
in this Section 4. Each Option shall be evidenced by an option agreement and
shall contain such terms as are not inconsistent with this Plan or any
applicable law. Any person who files with the Committee, in a form satisfactory
to the Committee, a written waiver of eligibility to receive any Option under
this Plan shall not be eligible to receive any Option under this Plan for the
duration of such waiver.
(b) The Options automatically granted to Directors under this Plan shall be
in addition to regular director's fees or other benefits with respect to the
Director's position with the Company or its Subsidiaries. Neither the Plan nor
any Option granted under the Plan shall confer upon any person any right to
continue to serve as a Director.
(c) Any Eligible Person who is elected a Director for the first time after
July 25, 1999 (the date of the termination of the 1989 Director Stock Option
Plan for the Company) shall automatically be granted an Option for FIVE THOUSAND
(5,000) Shares on the later of (i) the effective date of this Plan or (ii) the
date of such Eligible Person's first election as a Director, which date shall be
the Date of Grant for such Option.
5. Option Price. The option price per Share of any Option shall be the Fair
Market Value per Share on the date of the Optionee's first election as a
6. Exercise of Options. Any Option may be exercised on or after the Date of
Grant. An Option shall be deemed exercised when (i) the Company has received
written notice of such exercise in accordance with the terms of the Option, (ii)
full payment of the aggregate option price of the Shares as to which the Option
is exercised has been made, and (iii) arrangements that are satisfactory
to the Committee in its sole discretion have been made for the Optionee's
payment to the Company of the amount, if any, that the Committee determines to
be necessary for the Company to withhold in accordance with applicable Federal
or state income tax withholding requirements. Pursuant to procedures approved by
the Committee, tax withholding requirements, at the option of an Optionee, may
be met by withholding Shares otherwise deliverable to the Optionee upon the
exercise of an Option. Unless further limited by the Committee in any Option,
the option price of any Shares purchased shall be paid solely in cash, by
certified or cashier's check, by money order, by personal check or with Shares
(but with Shares only if permitted by any option agreement or otherwise
permitted by the Committee in its sole discretion at the time of exercise) or by
a combination of the above. If the option price is paid in whole or in part with
Shares, the value of the Shares surrendered shall be their Fair Market Value on
the date received by the Company.
7. Termination of Option Period. The unexercised portion of an Option shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(a) thirty (30) days after the date that Optionee ceases to be a
Director regardless of the reason therefor other than as a result of such
termination by death of the Optionee;
(b) (i) one year after the date that the Optionee ceases to be a Director
by reason of death of the Optionee, or (ii) six months after the Optionee shall
die if that shall occur during the thirty-day period described in Subsection
(c) the tenth (10th) anniversary of the Date of Grant of the Option.
8. Adjustment of Shares.
(a) If at any time while the Plan is in effect or unexercised Options are
outstanding, there shall be any increase or decrease in the number of issued and
outstanding Shares through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of
Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number of
Shares then subject to being optioned under the Plan, so that the same
proportion of the Company's issued and outstanding Shares shall continue to
be subject to being so optioned, and
(ii) appropriate adjustment shall be made in the number of Shares and
the exercise price per Share thereof then subject to any outstanding
Option, so that the same proportion of the Company's issued and outstanding
Shares shall remain subject to purchase at the same aggregate exercise
(b) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of or exercise price of Shares then subject
to outstanding Options granted under the Plan.
(c) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
9. Transferability of Options. Each Option shall provide that such Option
shall not be transferable by the Optionee otherwise than by will or the laws of
descent and distribution and that so long as an Optionee lives, only such
Optionee or his guardian or legal representative shall have the right to
exercise such Option.
10. Issuance of Shares. No person shall be, or have any of the rights
or privileges of, a stockholder of the Company with respect to any of the Shares
subject to any Option unless and until certificates representing such Shares
shall have been issued and delivered to such person. As a condition of any
transfer of the certificate for Shares, the Committee may obtain such agreements
or undertakings, if any, as it may deem necessary or advisable to assure
compliance with any provision of the Plan, any agreement or any law or
regulation including, but not limited to, the following:
(a) a representation, warranty or agreement by the Optionee to the
Company, at the time any Option is exercised, that he or she is acquiring
the Shares to be issued to him or her for investment and not with a view
to, or for sale in connection with, the distribution of any such Shares;
(b) a representation, warranty or agreement to be bound by any legends
that are, in the opinion of the Committee, necessary or appropriate to
comply with the provisions of any securities law deemed by the Committee to
be applicable to the issuance of the Shares and are endorsed upon the Share
Share certificates issued to an Optionee who is a party to any shareholders
agreement or a similar agreement shall bear the legends contained in such
11. Administration of the Plan.
(a) The Plan shall be administered by the Committee consisting of not
less than three (3) Directors who are Non-Employee Directors; provided,
however, that if no such Committee is appointed, the Board (if a majority
of which and a majority of the Directors acting on any matter are
Non-Employee Directors) shall administer the Plan and in such case all
references to the Committee shall be deemed to be references to the Board.
The Committee shall have all of the powers of the Board with respect to the
(b) The Committee, from time to time, may adopt rules and regulations
for carrying out the purposes of the Plan. The determinations and the
interpretation and construction of any provision of the Plan by the
Committee shall be final and conclusive.
(a) If any provision of the Plan is held invalid for any reason, such
holding shall not affect the remaining provisions hereof, but instead the
Plan shall be construed and enforced as if such provision had never been
included in the Plan.
(b) THIS PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
(c) Headings contained in this Agreement are for convenience only and
shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine or neuter gender shall be
a reference to each other gender as appropriate.
13. Effective Date and Termination Date. The effective date of the Plan is
the date set forth below, on which date the Board adopted this Plan. The Plan
shall terminate on the tenth anniversary of the effective date.
ADOPTED BY THE BOARD: January 18, 2000
EFFECTIVE DATE: January 18, 2000
NONINCENTIVE STOCK OPTION AGREEMENT
2000 DIRECTOR STOCK OPTION PLAN
A Nonincentive Stock Option for a total of _________ shares of Common
Stock, par value $0.10 per share, of Kirby Corporation (the "Company"), is
hereby granted to
(the "Optionee") at the price determined as provided in, and in all respects
subject to the terms, definitions and provisions of, the 2000 Director Stock
Option Plan for Kirby Corporation (the "Plan"), which is incorporated herein by
1. Option Price. The option price is $_________ for each share, being 100%
of the ------------ Fair Market Value (as defined in the Plan) of the Common
Stock on __________, the date the Optionee was first elected as a Director.
2. Exercise of Option. This Option shall be exercisable in whole or in part
on or ------------------ after the Date of Grant as follows:
(i) Method of Exercise. This Option shall be exercisable by a written
notice ------------------ delivered to the Company which shall:
(a) state the election to exercise the Option and the number of
shares in respect of which it is being exercised; and
(b) be signed by the person or persons entitled to exercise the
Option and, if the Option is being exercised by any person or persons
other than the Optionee, be accompanied by proof, satisfactory to the
Company, of the right of such person or persons to exercise the
(ii) Payment. Payment of the purchase price of any shares with respect
to which this Option is being exercised shall be by cash, certified or
cashier's check, money order, personal check, shares of Common Stock of the
Company, or by a combination of the above, delivered to the Company and the
exercise shall not be effective until such payment is made. If the exercise
price is paid in whole or in part with shares of Common Stock of the
Company, the value of the shares surrendered shall be their Fair Market
Value on the date received by the Company. The certificate or certificates
for shares of Common Stock as to which the Option shall be exercised shall
be registered in the name of the person or persons exercising the Option.
(iii) Withholding. Optionee shall make satisfactory arrangements for
the ----------- withholding of any amounts necessary for withholding in
accordance with applicable Federal or State income tax laws.
(iv) Restrictions on Exercise. ------------------------
(a) This Option may not be exercised if the issuance of the
shares upon such exercise would constitute a violation of any
applicable Federal or State securities or other law or valid
regulation. As a condition to the exercise of this Option, the Company
may require the person exercising this Option to make any agreements
and undertakings that may be required by any applicable law or
(b) Shares issued upon the exercise of this Option without
registration of such shares under the Securities Act of 1933, as
amended (the "Act"), shall be restricted securities subject to the
terms of Rule 144 under the Act. The certificates representing any
such shares shall bear an appropriate legend restricting transfer and
the transfer agent of the Company shall be given stop transfer
instructions with respect to such shares.
3. Nontransferability of Option. This Option may not be transferred by the
Optionee otherwise than by will or the laws of descent and distribution and so
long as the Optionee lives, only the Optionee or his guardian or legal
representative shall have the right to exercise this Option. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of the Optionee.
4. Term of Option. This Option may not be exercised after the expiration of
ten (10) years from the Date of Grant of this Option and is subject to earlier
termination as provided in the Plan. This Option may be exercised during such
times only in accordance with the Plan and the terms of this Option.
Date of Grant: KIRBY CORPORATION
Optionee acknowledges receipt of a copy of the Plan, and represents
that he is familiar with the terms and provisions thereof, and hereby accepts
this Option subject to all of the terms and provisions of the Plan. Optionee
hereby agrees to accept as binding, conclusive and final all decision or
interpretations of the Committee (as defined in the Plan) upon any questions
arising under the Plan.
July 31, 2000
55 Waugh Drive, Suite 1000
Houston, Texas 77007
Re: Registration Statement on Form S-8
We have acted as counsel to Kirby Corporation, a Nevada corporation
(the "Corporation"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission on July 31, 2000, under the Securities Act of
1933, as amended (the "Securities Act"), relating to 100,000 shares of the $0.10
par value common stock (the "Common Stock") of the Corporation that may be
issued upon the exercise of option granted or that may be granted under the 2000
Director Stock Option Plan for Kirby Corporation (the "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 Articles of Incorporation and the Bylaws of the Corporation, as
amended; (2) minutes and records of the corporate proceedings of the Corporation
with respect to the establishment of the Plan and the reservation of 100,000
shares of Common Stock to be issued under the Plan and to which the Registration
Statement relates; (3) the Registration Statement and exhibits thereto,
including the 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 Articles of Incorporation, the Bylaws,
minutes, records, resolutions and other documents or writings of the
Corporation, we have relied, to the extent we deem reasonably appropriate, upon
representations or certificates of officers or directors of the Corporation and
upon documents, records and instruments furnished to us by the Corporation,
without independent check or verification of their accuracy.
Based upon our examination and consideration of, and reliance on, the
documents and other matters described above, and subject to the comments and
July 31, 2000
assumptions noted below, we are of the opinion that the Corporation presently
has available at least 100,000 shares of authorized but unissued shares of
Common Stock and/or treasury shares of Common Stock. From these shares of Common
Stock, the shares of Common Stock proposed to be sold through the Plan may be
issued. 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 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 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 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
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 persons whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities and Exchange
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By:/s/ Thomas G. Adler
Thomas G. Adler
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
July 31, 2000
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, 1998, relating to the consolidated balance sheets of Universal Insurance
Company and subsidiaries as of December 31, 1997 and the related consolidated
statements of earnings, stockholders' equity and cash flows for the year then
ended, which report appears in the December 31, 1999 Annual Report on Form 10-K
of Kirby Corporation and consolidated subsidiaries.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
San Juan, Puerto Rico
July 31, 2000