As filed with the Securities and Exchange Commission on October 31, 2001
Registration No. 333-
UNITED STATES
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.)
55 Waugh Drive, Suite 1000
Houston, Texas 77007
(Address of principal executive offices, including zip code)
---------------------------------
2001 EMPLOYEE STOCK OPTION PLAN FOR KIRBY CORPORATION
2000 NONEMPLOYEE DIRECTOR PLAN FOR KIRBY CORPORATION
(Full title of the plans)
----------------------------------
J. H. Pyne Copy to: Thomas G. Adler, Esq.
President and Chief Executive Officer Jenkens & Gilchrist,
KIRBY CORPORATION A Professional Corporation
55 Waugh Drive, Suite 1000 1445 Ross Avenue, Suite 3200
Houston, Texas 77007 Dallas, Texas 75202
(Name and address of agent for service)
(713) 435-1000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Proposed maximum aggregate Amount of
Title of each class of Amount to offering price offering price registration fee
securities to be registered be registered (1) per share (2)(3)(4) (2)(3)(4) (3)(4)
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Common Stock, par value $.10
per share 1,300,000 $26.37 $30,395,280.00 $7,598.82
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(1) Consists of 1,000,000 shares of common stock, par value $.10 per share (the
"Common Stock") reserved for issuance to employees of Kirby Corporation (the
"Corporation") pursuant to the 2001 Employee Stock Option Plan for Kirby
Corporation (the "2001 Employee Plan") and 300,000 shares of Common Stock
reserved for issuance to directors of the Corporation pursuant to the 2000
Nonemployee Director Stock Option Plan for Kirby Corporation (the "Nonemployee
Director Plan," and together with the 2001 Employee Plan, the "Plans"). In
addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of additional shares
of Common Stock issuable pursuant to the exercise of options and/or awards
granted or to be granted under the Plans to prevent dilution that may result
from any future stock splits, stock dividends or similar transactions affecting
the Common Stock.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per share
of common stock offered hereunder pursuant to the Plans is based upon 942,000
shares of Common Stock reserved for issuance under the Plans at a price of
$26.37, which is the average of the highest and lowest price per share of
Common Stock on the New York Stock Exchange on October 30, 2001; and (ii)
258,000 shares of Common Stock reserved for issuance and subject to stock
options already granted under the 2001 Employee Plan at an exercise price of
$21.53 per share.
(4) An aggregate of 100,000 shares of the shares being registered under the
Nonemployee Director Plan are shares which were previously registered under the
2000 Director Stock Option Plan for Kirby Corporation (the "Predecessor Plan")
on the Registration Statement on Form S-8 (Registration No. 333-42794). The
Corporation has filed a post-effective amendment to deregister those shares, and
accordingly, the associated registration fee previously paid on these shares
under the prior registration statement is hereby also carried forward to cover
that portion of the registration fee under this Registration Statement that
corresponds to the shares which were previously available for grant under the
Predecessor Plan. Accordingly, the registration fee under this registration
statement is calculated with respect to 1,200,000 shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
----------------
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 Corporation hereby incorporates by reference in this registration
statement the following documents previously filed by the Corporation with the
Securities and Exchange Commission (the "Commission"):
(1) the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000;
(2) the Corporation's Annual Report on Form 11-K for the fiscal year
ended December 31, 2000;
(3) the Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
(4) the Corporation's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001; and
(5) the description of the Common Stock, par value $0.10 per share, of
the Corporation (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 Corporation 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
-----------------------
*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.
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 Corporation by Jenkens & Gilchrist, a
Professional Corporation. Thomas G. Adler, the Secretary of the Corporation, is
a shareholder of Jenkens & Gilchrist, a Professional Corporation.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
(a) The Restated Articles of Incorporation of the Corporation 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 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 section 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 no 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:
(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 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 Corporation's Bylaws provide that the Corporation shall
indemnify each and every present and former director and officer of the
Corporation, and each and every person who may have served at the Corporation's
request as a director or officer of another corporation in which the Corporation
owns shares of capital stock or of which the Corporation is a creditor (each of
which 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 Corporation 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 Corporation's Restated Articles of Incorporation,
statute, agreement, vote of stockholders or otherwise.
The Corporation's Bylaws further provide that the Corporation shall
indemnify officers and directors of the Corporation, as well as other persons
who serve as agents and employees of the Corporation, to the extent set forth in
the Corporation's Restated Articles of Incorporation.
Additionally, the Corporation's Bylaws provide that the Corporation 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 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 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 Corporation would have the power to indemnify him against
such liability under the provisions of the Bylaws.
(c) The Corporation has entered into agreements with each Director and
certain key officers, including C. Berdon Lawrence, J.H. Pyne, Norman W. Nolen,
Mark R. Buese, Jack M. Sims, Connie C. Power, Howard G. Runser, G. Stephen
Holcomb and Thomas G. Adler, and certain officers of subsidiaries of the
Corporation, including Steven P. Valerius and Dorman L. Strahan, that provide
for the indemnification of such individuals for certain liabilities incurred in
such capacity.
Item 8. Exhibits.
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(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1 Restated Articles of Incorporation of Kirby Exploration
Company, Inc., as amended (incorporated by reference from
Exhibit 3.1 to the Corporation'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 Corporation (incorporated by reference from Exhibit 3.2
to the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1990).
4.3 Rights Agreement, dated as of July 18, 2000, between Kirby
Corporation and Fleet National Bank, a national banking
association, which includes the Form of Resolutions
Establishing Designations, Preferences and Rights of Series A
Junior Participating Preferred Stock of Kirby Corporation as
Exhibit A, the form of Rights Certificate as Exhibit B, and
the Summary of Rights as Exhibit C (incorporated by reference
from Exhibit 4.1 to the Corporation's Current Report on Form
8-K filed with the Commission on July 20, 2000).
4.4* 2001 Employee Stock Option Plan for Kirby Corporation
4.5* 2000 Nonemployee Director Stock Option Plan for Kirby
Corporation
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 LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
--------------------
* 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 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; 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 of 1933 (the "Securities
Act"), 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 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.
SIGNATURES
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 October 31, 2001.
KIRBY CORPORATION
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 and Norman W. Nolen 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 indicated:
Signature Capacity Date
--------- -------- ----
/s/ C. Berdon Lawrence Chairman of the Board and Director October 31, 2001
-------------------------------------------- of the Company
C. Berdon Lawrence
/s/ J. H. Pyne President, Director and Principal October 31, 2001
-------------------------------------------- Executive Officer of the Company
J. H. Pyne
/s/ Norman W. Nolen Executive Vice President, October 31, 2001
-------------------------------------------- Treasurer, Assistant Secretary and
Norman W. Nolen Principal Financial Officer of the
Company
/s/ G. Stephen Holcomb Vice President, Controller, October 31, 2001
-------------------------------------------- Assistant Secretary and Principal
G. Stephen Holcomb Accounting Officer of the Company
/s/ C. Sean Day Director of the Company October 31, 2001
--------------------------------------------
C. Sean Day
/s/ Bob G. Gower Director of the Company October 31, 2001
--------------------------------------------
Bob G. Gower
Director of the Company October __, 2001
--------------------------------------------
Walter E. Johnson
/s/ William M. Lamont, Jr. Director of the Company October 31, 2001
--------------------------------------------
William M. Lamont, Jr.
/s/ George A. Peterkin, Jr. Director of the Company October 31, 2001
--------------------------------------------
George A. Peterkin, Jr.
/s/ Robert G. Stone, Jr. Director of the Company October 31, 2001
--------------------------------------------
Robert G. Stone, Jr.
/s/ Richard C. Webb Director of the Company October 31, 2001
--------------------------------------------
Richard C. Webb
EXHIBIT 4.4
KIRBY CORPORATION
2001 EMPLOYEE STOCK OPTION PLAN
ARTICLE 1. GENERAL
Section 1.1. 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
employees for the Company and its subsidiaries, 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.
Section 1.2. Definitions. As used herein, the following terms shall
have the meaning indicated:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" means the occurrence of any of the following
events:
(i) Any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended) becomes the beneficial owner, directly or indirectly,
of voting securities representing thirty percent (30%) or more
of the combined voting power of the Company's then outstanding
voting securities or, if a person is the beneficial owner,
directly or indirectly, of voting securities representing
thirty percent (30%) or more of the combined voting power of
the Company's outstanding voting securities as of the date the
particular Option is granted, such person becomes the
beneficial owner, directly or indirectly, of additional voting
securities representing ten percent (10%) or more of the
combined voting power of the Company's then outstanding voting
securities;
(ii) During any period of twelve (12) months,
individuals who at the beginning of such period constitute the
Board cease for any reason to constitute a majority of the
Directors unless the election, or the nomination for election
by the Company's stockholders, of each new Director was
approved by a vote of at least a majority of the Directors
then still in office who were Directors at the beginning of
the period;
(iii) The stockholders of the Company approve (A) any
consolidation or merger of the Company or any Subsidiary that
results in the holders of the Company's voting securities
immediately prior to the consolidation or merger having
(directly or indirectly) less than a majority ownership
interest in the outstanding voting securities of the surviving
entity immediately after the consolidation or merger, (B) any
sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all
of the assets of the Company or (C) any plan or proposal for
the liquidation or dissolution of the Company;
(iv) The stockholders of the Company accept a share
exchange, with the result that stockholders of the Company
immediately before such share exchange do not own, immediately
following such share exchange, at least a majority of the
voting securities of the entity resulting from such share
exchange in substantially the same proportion as their
ownership of the voting securities outstanding immediately
before such share exchange; or
(v) Any tender or exchange offer is made to acquire
thirty percent (30%) or more of the voting securities of the
Company, other than an offer made by the Company, and shares
are acquired pursuant to that offer.
For purposes of this definition, the term "voting securities" means equity
securities, or securities that are convertible or exchangeable into equity
securities, that have the right to vote generally in the election of Directors.
(c) "Code" means the Internal Revenue Code of 1986, as
amended.
(d) "Committee" means the Compensation Committee, if any,
appointed by the Board.
(e) "Date of Grant" means the date on which the Committee
takes formal action to grant an Option or a Restricted Stock Award to
an Eligible Person.
(f) "Director" means a member of the Board.
(g) "Eligible Person" means an employee of the Company or a
Subsidiary.
(h) "Fair Market Value" of a Share means 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 Committee.
(i) "Incentive Stock Option" means an option that is an
incentive stock option as defined in Section 422 of the Code.
(j) "Nonincentive Stock Option" means an option that is not an
Incentive Stock Option.
(k) "Option" means any option granted under this Plan.
(l) "Optionee" means 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.
(m) "Participant" means a person to whom a Restricted Stock
Award is granted under the Plan.
(n) "Plan" means this 2001 Employee Stock Option Plan for
Kirby Corporation.
(o) "Restricted Stock" means Shares granted under this Plan
that are subject to restrictions imposed by the Committee pursuant to
Article III.
(p) "Restricted Stock Award" means an award of Restricted
Stock under this Plan.
(q) "Share" means a share of the common stock, par value ten
cents ($0.10) per share, of the Company.
(r) "Subsidiary" means any corporation (other than the
Company) in any unbroken chain of corporations beginning with the
Company if 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 the chain.
Section 1.3. Total Shares. The maximum number of Shares that may be
issued under the Plan shall be One Million (1,000,000) Shares, which may be from
Shares held in the Company's treasury or from authorized and unissued Shares. If
any Option or Restricted Stock Award granted under the Plan shall terminate,
expire or be cancelled or surrendered as to any Shares, new Options or
Restricted Stock Awards may thereafter be granted covering such Shares.
Section 1.4. Awards Under the Plan. Only Eligible Persons may receive
awards under the Plan. Awards to Eligible Persons may be in the form of Options
or shares of Restricted Stock. No Option or Restricted Stock Award shall confer
on any person any right to continue as an employee of the Company or any
Subsidiary.
ARTICLE II. STOCK OPTIONS
Section 2.1. Grant of Options. The Company may from time to time grant
Options to Eligible Persons. Options may be Incentive Stock Options or
Nonincentive Stock Options as designated by the Committee on the Date of Grant.
If no such designation is made by the Committee for an Option, the Option shall
be a Nonincentive Stock Option. The aggregate Fair Market Value (determined as
of the Date of Grant) of the Shares with respect to which Incentive Stock
Options are exercisable for the first time by an Optionee during any calendar
year under the Plan and all such plans of the Company and any parent or
subsidiary of the Company (as defined in Section 424 of the Code) shall not
exceed $100,000. Each Option shall be evidenced by an option agreement
containing any terms deemed necessary or desirable by the Committee that are not
inconsistent with the Plan or applicable law.
Section 2.2. Exercise Price. The exercise price per Share for any
Option shall be determined by the Committee, but shall not be less than the Fair
Market Value on the Date of Grant and shall not be less than 110% of the Fair
Market Value on the Date of Grant for any Incentive Stock Option if the Optionee
is a person who owns directly or indirectly (within the meaning of Section
422(b)(6) of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company.
Section 2.3. Term of Option. The term of an Option shall be determined
by the Committee, provided that, in the case of an Incentive Stock Option, the
term of the Option shall not exceed ten years from the Date of Grant unless the
grant is to a person who owns directly or indirectly (within the meaning of
Section 422(b)(6) of the Code) stock possessing more than 10% of the total
combined voting power of all classes of the Company, in which case the term of
the Option shall not exceed five years from the Date of Grant. Notwithstanding
any other provision of this Plan, no Option shall be exercised after the
expiration of its term.
Section 2.4. Vesting. Options shall be exercisable at such times and
subject to such terms and conditions as the Committee shall specify in the
option agreement. Unless the option agreement specifies otherwise, the Committee
shall have discretion at any time to accelerate such times and otherwise waive
or amend any conditions in respect of all or any portion of the Options held by
any Optionee. Notwithstanding the other provisions of this Section 2.4 and
unless otherwise provided in the option agreement, upon the occurrence of a
Change in Control, all Options outstanding at the time of the Change in Control
shall become immediately exercisable.
Section 2.5. Termination of Options.
(a) Except as otherwise provided in the option agreement, the
portion of an Option that is exercisable shall automatically and
without notice terminate upon the earliest to occur of the following:
(i) thirty (30) days after the date on which Optionee
ceases to be an Employee for any reason other than (x) death,
(y) mental or physical disability as determined by a medical
doctor satisfactory to the Committee or (z) termination for
cause;
(ii) one (1) year after the date on which Optionee
ceases to be an Employee as a result of a mental or physical
disability as determined by a medical doctor satisfactory to
the Committee;
(iii) either (y) one (1) year after the death of
Optionee or (z) six (6) months after the death of Optionee if
Optionee dies during the 30-day period described in Section
2.5(a)(i) or the one-year period described in Section
2.5(a)(ii);
(iv) the date on which Optionee ceases to be an
Employee as a result of a termination for cause; and
(v) the tenth anniversary of the Date of Grant of the
Option.
(b) The portion of an Option that is not exercisable shall
automatically and without notice terminate on the date on which
Optionee ceases to be an Employee for any reason.
(c) The Committee shall have discretion at any time to extend
the term of any Nonincentive Stock Option to any date that is not later
than the date described in Section 2.5(a)(v).
Section 2.6. Exercise of Options. An Option may be exercised in whole
or in part to the extent exercisable in accordance with Section 2.4 and the
option agreement. 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 and (ii) full payment of the aggregate exercise price of the Shares as to
which the Option is exercised has been made. Unless further limited by the
Committee in any Option, the exercise 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 owned by the Optionee for at least six months, or
by a combination of the foregoing. If the exercise 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.
Section 2.7. 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, 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 price.
(b) In the event of a merger, consolidation or other
reorganization of the Company in which the Company is not the surviving
entity, the Board or the Committee may provide for any or all of the
following alternatives: (i) for Options to become immediately
exercisable, (ii) for exercisable Options to be cancelled immediately
prior to such transaction, (iii) for the assumption by the surviving
entity of the Plan and the Options, with appropriate adjustments in the
number and kind of shares and exercise prices or (iv) for payment in
cash or stock in lieu of and in complete satisfaction of Options.
(c) Any fractional shares resulting from any adjustment under
this Section 2.7 shall be disregarded and each Option shall cover only
the number of full shares resulting from such adjustment.
(d) 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.
(e) 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.
Section 2.8. Transferability of Options. An Option shall not be
transferable by the Optionee otherwise than by will or the laws of descent and
distribution. So long as an Optionee lives, only such Optionee or his or her
guardian or legal representative shall have the right to exercise such Option.
Section 2.9. 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.
ARTICLE III. RESTRICTED STOCK
Section 3.1. Grant of Restricted Stock Awards. The Committee may from
time to time grant Restricted Stock Awards to Eligible Persons. Subject to the
provisions of the Plan and applicable law, all Restricted Stock Awards under the
Plan shall be in such form and shall have such terms and conditions as the
Committee, in its discretion, may from time to time determine.
Section 3.2. Terms and Conditions of Restricted Stock Awards. Each
Restricted Stock Award shall specify the number of shares of Restricted Stock
awarded, the price, if any, to be paid by the Participant receiving the
Restricted Stock Award and the date or dates on which the Restricted Stock will
vest. The vesting and number of shares of Restricted Stock may be conditioned
upon the completion of a specified period of service with the Company or its
Subsidiaries or upon the attainment of any performance goals established by the
Committee, including without limitation goals related to the performance of the
Company or any Subsidiary, division, department or other unit of the Company,
the performance of the Company's common stock or other securities, the
performance of the recipient of the Restricted Stock Award or any combination of
the foregoing.
Section 3.3. Restrictions on Transfer. Unless otherwise provided in the
grant relating to a Restricted Stock Award, stock certificates representing the
Restricted Stock granted to a Participant shall be registered in the
Participant's name or, at the option of the Committee, not issued until such
time as the Restricted Stock shall become vested or as otherwise determined by
the Committee. If certificates are issued prior to the shares of Restricted
Stock becoming vested, such certificates shall either be held by the Company on
behalf of the Participant, or delivered to the Participant bearing a legend to
restrict transfer of the certificate until the Restricted Stock has vested, as
determined by the Committee. The Committee shall determine whether the
Participant shall have the right to vote and/or receive dividends on the
Restricted Stock before it has vested. Except as may otherwise be expressly
permitted by the Committee, no share of Restricted Stock may be sold,
transferred, assigned or pledged by the Participant until such share has vested
in accordance with the terms of the Restricted Stock Award. Unless the grant of
a Restricted Stock Award specifies otherwise, in the event of a Participant's
termination of employment before all the Participant's Restricted Stock has
vested, or in the event other conditions to the vesting of Restricted Stock have
not been satisfied prior to any deadline for the satisfaction of such conditions
set forth in the award, the shares of Restricted Stock that have not vested
shall be forfeited and any purchase price paid by the Participant shall be
returned to the Participant. At the time Restricted Stock vests (and, if the
Participant has been issued legended certificates for Restricted Stock, upon the
return of such certificates to the Company), a certificate for such vested
shares shall be delivered to the Participant (or the beneficiary designated by
the Participant in the event of death), free of all restrictions.
Section 3.4. Accelerated Vesting. Notwithstanding the vesting
conditions set forth in a Restricted Stock Award, unless the Restricted Stock
Award grant or other agreement with the Participant specifies otherwise:
(a) the Committee may in its discretion at any time accelerate
the vesting of Restricted Stock or otherwise waive or amend any
conditions of a grant of a Restricted Stock Award, and
(b) all shares of Restricted Stock shall vest upon a Change of
Control of the Company.
Section 3.5. Section 83(b) Election. If a Participant receives
Restricted Stock that is subject to a "substantial risk of forfeiture," such
Participant may elect under Section 83(b) of the Code to include in his or her
gross income, for the taxable year in which the Restricted Stock is received,
the excess of the Fair Market Value of such Restricted Stock on the Date of
Grant (determined without regard to any restriction other than one which by its
terms will never lapse), over the amount paid for the Restricted Stock. If the
Participant makes the Section 83(b) election, the Participant shall (a) make
such election in a manner that is satisfactory to the Committee, (b) provide the
Company with a copy of such election, (c) agree to promptly notify the Company
if any Internal Revenue Service or state tax agent, on audit or otherwise,
questions the validity or correctness of such election or of the amount of
income reportable on account of such election and (d) agree to such federal and
state income tax withholding as the Committee may reasonably require in its sole
discretion.
ARTICLE IV. ADDITIONAL PROVISIONS
Section 4.1. Administration of the Plan. The Plan shall be administered
by the Committee. The Committee shall have the authority to interpret the
provisions of the Plan, to adopt such rules and regulations for carrying out the
Plan as it may deem advisable, to decide conclusively all questions arising with
respect to the Plan and to make all other determinations and take all other
actions necessary or desirable for the administration of the Plan. All decisions
and acts of the Committee shall be final and binding upon all affected Optionees
and Participants. If there is no Committee, the Board shall administer the Plan
and in such case all references to the Committee shall be deemed to be
references to the Board.
Section 4.2. Amendment. The Board may amend or modify the Plan in any
respect at any time. Such action shall not impair any of the rights of any
holder of any Option or Restricted Stock outstanding on the date of the
amendment or modification without the holder's written consent.
Section 4.3. Duration and Termination. The Plan shall be of unlimited
duration, provided that no Incentive Stock Option shall be granted under the
Plan on or after the tenth anniversary of the approval of the Plan by the
stockholders of the Company. The Board may suspend, discontinue or terminate the
Plan at any time. Such action shall not impair any of the rights of any holder
of any Option or Restricted Stock outstanding on the date of the Plan's
suspension, discontinuance or termination without the holder's written consent.
Section 4.4. Withholding. Prior to the issuance of any Shares under the
Plan, arrangements satisfactory to the Committee in its sole discretion shall
have been made for the Optionee's or Participant's payment to the Company of the
amount, if any, that the Committee determines to be necessary for the Company or
Subsidiary employing the Optionee or Participant to withhold in accordance with
applicable federal or state income tax withholding requirements.
Section 4.5. Agreements and Undertakings. As a condition of any
issuance or transfer of a 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 or
Participant to the Company that the Optionee or Participant is
acquiring the Shares for investment and not with a view to, or for sale
in connection with, the distribution of any such Shares; and
(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 on the Share certificates.
Section 4.6. Governing Law. The Plan shall be governed by the laws of
the State of Texas except to the extent that federal law or Nevada corporate law
is controlling.
Section 4.7. Effective Date. The Plan shall be effective as of January
15, 2001. If the Plan is not approved by a majority of the Company's
stockholders represented in person or by proxy at a duly convened meeting on or
before the first anniversary of the effective date of the Plan, (a) each
Nonincentive Stock Option theretofore granted under the Plan shall remain
outstanding, (b) each Incentive Stock Option theretofore granted under the Plan
shall be deemed to be a Nonincentive Stock Option and shall remain outstanding
as such, (c) any Restricted Stock theretofore granted under the Plan shall
remain outstanding and (d) no further Options or Restricted Stock shall be
granted under the Plan after the first anniversary of the effective date of the
Plan or, if earlier, the date of a meeting of stockholders of the Company at
which the Plan is proposed for approval but is not approved.
ADOPTED BY THE BOARD: January 15, 2001
EXHIBIT 4.5
KIRBY CORPORATION
2000 NONEMPLOYEE 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 indicated:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" means the occurrence of any of the following
events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended) becomes the
beneficial owner, directly or indirectly, of voting securities representing
thirty percent (30%) or more of the combined voting power of the Company's then
outstanding voting securities or, if a person is the beneficial owner, directly
or indirectly, of voting securities representing thirty percent (30%) or more of
the combined voting power of the Company's outstanding voting securities as of
the date the particular Option is granted, such person becomes the beneficial
owner, directly or indirectly, of additional voting securities representing ten
percent (10%) or more of the combined voting power of the Company's then
outstanding voting securities;
(ii) During any period of twelve (12) months, individuals who
at the beginning of such period constitute the Board cease for any reason to
constitute a majority of the Directors unless the election, or the nomination
for election by the Company's stockholders, of each new Director was approved by
a vote of at least a majority of the Directors then still in office who were
Directors at the beginning of the period;
(iii) The stockholders of the Company approve (A) any
consolidation or merger of the Company or any Subsidiary that results in the
holders of the Company's voting securities immediately prior to the
consolidation or merger having (directly or indirectly) less than a majority
ownership interest in the outstanding voting securities of the surviving entity
immediately after the consolidation or merger, (B) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all of the assets of the Company or (C) any plan or proposal
for the liquidation or dissolution of the Company;
(iv) The stockholders of the Company accept a share exchange,
with the result that stockholders of the Company immediately before such share
exchange do not own, immediately following such share exchange, at least a
majority of the voting securities of the entity resulting from such share
exchange in substantially the same proportion as their ownership of the voting
securities outstanding immediately before such share exchange; or
(v) Any tender or exchange offer is made to acquire thirty
percent (30%) or more of the voting securities of the Company, other than an
offer made by the Company, and shares are acquired pursuant to that offer.
For purposes of this definition, the term "voting securities" means equity
securities, or securities that are convertible or exchangeable into equity
securities, that have the right to vote generally in the election of Directors.
(c) "Committee" means the Compensation Committee, if any, appointed by
the Board.
(d) "Compensation Plan" means the written plan or program in effect
from time to time, as approved by the Board, which sets forth the compensation
to be paid to Eligible Directors.
(e) "Date of Grant" means the date on which an Option is granted to an
Eligible Director.
(f) "Director" means a member of the Board.
(g) "Eligible Director" means a Director who is not an employee of the
Company or a Subsidiary.
(h) "Fair Market Value" of a Share means 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 Committee.
(i) "Nonincentive Stock Option" means an option that is not an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended.
(j) "Option" means any option granted under this Plan.
(k) "Optionee" means 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) "Payment Date" means the last day of a calendar quarter.
(m) "Plan" means this 2000 Nonemployee Director Stock Option Plan for
Kirby Corporation.
(n) "Share" means a share of the common stock, par value ten cents
($0.10) per share, of the Company.
(o) "Subsidiary" means 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
chain.
3. Total Shares. The maximum number of Shares to be issued pursuant to
Options under this Plan shall be THREE HUNDRED THOUSAND (300,000) 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.
4. Automatic Grant of Options. Options shall automatically be granted
to Eligible Directors as provided in Sections 5, 6 and 7. All Options shall be
Nonincentive Stock Options. Each Option shall be evidenced by an option
agreement containing such terms deemed necessary or desirable by the Committee
that are not inconsistent with the Plan or any applicable law. Neither the Plan
nor any Option shall confer upon any person any right to continue to serve as a
Director.
5. Automatic One-Time Grant. Each Eligible Director shall automatically
be granted an Option for FIVE THOUSAND (5,000) Shares on the date of such
Eligible Director's first election as a Director.
6. Automatic Annual Grants. Immediately after each annual meeting of
stockholders of the Company, each Eligible Director shall automatically be
granted an Option for THREE THOUSAND (3,000) Shares.
7. Election to Receive Options. If the Compensation Plan permits
Eligible Directors to elect to receive an Option in lieu of all or part of
Director fees otherwise payable in cash, each Eligible Director who has properly
and timely made such election as provided in the Compensation Plan shall
automatically be granted an Option for a number of Shares equal to (i) the
amount of the fee such Eligible Director elects to receive in the form of an
Option divided by (ii) the Fair Market Value of a Share on the Date of Grant
multiplied by (iii) 3, with the result rounded to the nearest whole Share.
8. Option Price. The option price per Share for any Option shall be the
Fair Market Value on the Date of Grant.
9. Date of Grant.
(a) The Date of Grant of an Option granted under Section 5 shall be the
date of the Eligible Director's first election as a Director.
(b) The Date of Grant of an Option granted under Section 6 shall be the
date of the annual meeting of stockholders of the Company.
(c) The Date of Grant of an Option granted under Section 7 shall be the
date by which the Eligible Director must make an election pursuant to the
Compensation Plan to receive the Option in lieu of cash fees.
10. Vesting.
(a) An Option granted under Section 5 shall be exercisable on or after
the Date of Grant.
(b) An Option granted under Section 6 shall become exercisable six
months after the Date of Grant.
(c) An Option granted under Section 7 shall become exercisable on the
Payment Date(s) following the Date of Grant as provided in this Section 10(c).
The number of Shares as to which an Option granted under Section 7 will become
exercisable on each Payment Date after the Date of Grant shall equal the number
of Shares subject to the Option divided by the number of Payment Dates occurring
after the Date of Grant and before the first anniversary of the most recent
annual meeting of stockholders of the Company.
(d) Notwithstanding the other provisions of this Section 10, (i) an
Option shall only become exercisable as provided in this Section 10 if the
Optionee is a Director at the time the Option would otherwise become exercisable
and (ii) upon the occurrence of a Change in Control, all Options outstanding at
the time of the Change in Control shall become immediately exercisable.
11. Term of Options. The portion of an Option that is exercisable shall
automatically and without notice terminate upon the earlier of (a) one (1) year
after the Optionee ceases to be a Director for any reason or (b) ten (10) years
after the Date of Grant of the Option. The portion of an Option that is not
exercisable shall automatically and without notice terminate at the time the
Optionee ceases to be a Director for any reason.
12. Exercise of Options. Any Option may be exercised in whole or in
part to the extent exercisable in accordance with Section 10. 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 and (ii) full payment of the
aggregate option price of the Shares as to which the Option is exercised has
been made. 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 owned by the
Optionee for at least six months, or by a combination of the foregoing. 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.
13. 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, 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, and the numbers of
Options to be granted under Sections 5, 6 and 7, 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 price.
(b) In the event of a merger, consolidation or other reorganization of
the Company in which the Company is not the surviving entity, the Board or the
Committee may provide for any or all of the following alternatives: (i) for
Options to become immediately exercisable, (ii) for exercisable Options to be
cancelled immediately prior to such transaction, (iii) for the assumption by the
surviving entity of the Plan and the Options, with appropriate adjustments in
the number and kind of shares and exercise prices or (iv) for payment in cash or
stock in lieu of and in complete satisfaction of Options.
(c) Any fractional shares resulting from any adjustment under this
Section 13 shall be disregarded and each Option shall cover only the number of
full shares resulting from such adjustment.
(d) 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.
(e) 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.
14. 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.
15. 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 the Optionee is acquiring the
Shares for investment and not with a view to, or for sale in connection with,
the distribution of any such Shares; and
(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
certificates.
16. Administration of the Plan. The Plan shall be administered by the
Committee. The Committee shall have the authority to interpret the provisions of
the Plan, to adopt such rules and regulations for carrying out the Plan as it
may deem advisable, to decide conclusively all questions arising with respect to
the Plan and to make all other determinations and take all other actions
necessary or desirable for the administration of the Plan. All decisions and
acts of the Committee shall be final and binding upon all affected Optionees. If
there is no Committee, the Board shall administer the Plan and in such case all
references to the Committee shall be deemed to be references to the Board.
17. Amendment. The Board may amend or modify the Plan in any respect at
any time.
18. Duration and Termination. The Plan shall be of unlimited duration.
The Board may suspend, discontinue or terminate the Plan at any time. Such
action shall not impair any of the rights of any holder of any Option
outstanding on the date of the Plan's suspension, discontinuance or termination
without the holder's written consent.
19. Effective Date. The Plan shall be effective as of September 26,
2000.
ADOPTED BY THE BOARD: September 26, 2000
EXHIBIT 5.1
October 31, 2001
Kirby Corporation
55 Waugh Drive, Suite 1000
Houston, Texas 77007
Re: Registration Statement on Form S-8
Gentlemen:
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 October 31, 2001, under the Securities
Act of 1933, as amended (the "Securities Act"), relating to 1,300,000 shares of
the $0.10 par value common stock (the "Common Stock") of the Corporation that
have been or may be issued upon the exercise of options granted or that may be
granted under the 2001 Employee Stock Option Plan for Kirby Corporation (the
"2001 Employee Plan") and 300,000 shares of Common Stock that have been or may
be issued upon exercise of options granted or that may be granted under the 2000
Nonemployee Director Stock Option Plan for Kirby Corporation (the "Nonemployee
Director Plan," and together with the 2001 Employee Plan, the "Plans").
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 Plans and the reservation of 1,000,000
shares of Common Stock to be issued under the 2001 Employee Plan and the
reservation of 300,000 shares of Common Stock to be issued under the Nonemployee
Director Plan to which the Registration Statement relates; (3) the Registration
Statement and exhibits thereto, including the Plans; 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
assumptions noted below, we are of the opinion that the Corporation presently
has available at least 1,300,000 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 2001 Employee
Plan and Nonemployee Director Plan may be issued. Assuming that: (i) the
outstanding options were duly granted in accordance with the terms of the 2001
Employee Plan, the options to be granted in the future are duly granted in
accordance with the terms of the 2001 Employee Plan, and the shares of Common
Stock to be issued pursuant to the exercise of options under the 2001 Employee
Plan are duly issued in accordance with the terms of the 2001 Employee Plan,
(ii) the outstanding options were duly granted in accordance with the terms of
the Nonemployee Director Plan, the options to be granted in the future are duly
granted in accordance with the terms of the Nonemployee Director Plan, and the
shares of Common Stock to be issued pursuant to the exercise of options under
the Nonemployee Director Plan are duly issued in accordance with the terms of
the Nonemployee Director Plan, (iii) the Corporation 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 pursuant to the
Plans, (iv) the consideration for shares of Common Stock issued pursuant to the
exercise of options under the 2001 Employee Plan is actually received by the
Corporation in accordance with the terms of the 2001 Employee Plan, and exceeds
the par value of such shares, and (v) the consideration for shares of Common
Stock issued pursuant to the exercise of options under the Nonemployee Director
Plan is actually received by the Corporation in accordance with the terms of the
Nonemployee Director 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 Plans, 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
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ Thomas G. Adler
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Thomas G. Adler
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Kirby Corporation
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
KPMG LLP
Houston, Texas
October 31, 2001