As filed with the Securities and Exchange Commission on October 25, 2002
Registration No. 333-
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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)
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KIRBY CORPORATION 2002 STOCK AND INCENTIVE PLAN
(Full title of the plan)
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J. H. Pyne
President and Chief Executive Officer
KIRBY CORPORATION
55 Waugh Drive, Suite 1000
Houston, Texas 77007
(Name and address of agent for service)
(713) 435-1000
(Telephone number, including area code, of agent for service)
Copy to:
Thomas G. Adler, Esq.
Jenkens & Gilchrist,
A Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
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 1,000,000 $23.40 $12,311,044.20 $1,132.62
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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 Kirby Corporation 2002 Stock and
Incentive Plan (the "Plan"). 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
Plan 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 Plan is based upon
526,113 shares of Common Stock reserved for issuance under the Plan at a
price of $23.40, which is the average of the highest and lowest price per
share of Common Stock on the New York Stock Exchange on October 21, 2002
(4) An aggregate of 473,887 shares of the shares being registered under the
Plan are shares which were previously registered under the 2001 Employee
Stock Option Plan for Kirby Corporation (the "2001 Plan") on the
Registration Statement on Form S-8 (Registration No. 333-72592). 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 2001 Plan. Accordingly, the registration fee
under this registration statement is calculated with respect to 526,113
shares.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
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Item 2. Registrant Information and Employee Plan Annual Information*
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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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, 2001;
(2) the Corporation's Annual Report on Form 11-K for the fiscal year
ended December 31, 2001;
(3) The Corporation's Quarterly Report on Form 10-Q for the period
ended March 31, 2002;
(4) The Corporation's Quarterly Report on Form 10-Q for the period
ended June 30, 2002; 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
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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
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(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, 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
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4.1 Restated Articles of Incorporation of Kirby Exploration Company,
Inc., as amended (incorporated by reference from Exhibit 3.1 to
the 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* Kirby Corporation 2002 Stock and Incentive Plan
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)
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* Filed herewith.
Item 9. Undertakings.
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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 23, 2002.
KIRBY CORPORATION
By: /s/ J.H. Pyne
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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
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/s/ C. Berdon Lawrence Chairman of the Board and Director October 23, 2002
- -------------------------------------------- of the Corporation
C. Berdon Lawrence
/s/ J. H. Pyne President, Director and Principal October 23, 2002
- -------------------------------------------- Executive Officer of the Corporation
J. H. Pyne
/s/ Norman W. Nolen Executive Vice President, Treasurer, October 23, 2002
- -------------------------------------------- Assistant Secretary and Principal
Norman W. Nolen Financial Officer of the Corporation
/s/ G. Stephen Holcomb Vice President, Controller, Assistant October 23, 2002
- -------------------------------------------- Secretary and Principal Accounting
G. Stephen Holcomb Officer of the Corporation
/s/ C. Sean Day Director of the Corporation October 23, 2002
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C. Sean Day
/s/ Bob G. Gower Director of the Corporation October 23, 2002
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Bob G. Gower
/s/ Walter E. Johnson Director of the Corporation October 23, 2002
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Walter E. Johnson
Director of the Corporation October 23, 2002
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William M. Lamont, Jr.
/s/ George A. Peterkin, Jr Director of the Corporation October 23, 2002
- --------------------------------------------
George A. Peterkin, Jr.
/s/ Robert G. Stone, Jr. Director of the Corporation October 23, 2002
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Robert G. Stone, Jr.
/s/ Richard C. Webb Director of the Corporation October 23, 2002
- --------------------------------------------
Richard C. Webb
EXHIBIT 4.4
KIRBY CORPORATION
2002 STOCK AND INCENTIVE 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 award of (i) Options to purchase
shares of Common Stock (which Options may be Incentive Stock Options or
Nonincentive Stock Options); (ii) shares of Restricted Stock; and (iii)
Performance Awards.
Section 1.2. Definitions. As used herein, the following terms shall have
the meaning indicated:
(a) "Award" means a grant under this Plan in the form of Options,
Restricted Stock, Performance Awards or any combination of the foregoing.
(b) "Board" means the Board of Directors of the Company.
(c) "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;
(ii) The Board ceases to consist of a majority of Continuing
Directors, with the term "Continuing Director" meaning a Director who
(A) is a Director on the effective date of the Plan or (B) is
nominated or appointed to serve as a Director by a majority of the
then Continuing Directors;
(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.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means the Compensation Committee, if any, appointed by
the Board.
(f) "Date of Grant" means the date on which the Committee takes formal
action to grant an Award to an Eligible Person.
(g) "Director" means a member of the Board.
(h) "Disability" means mental or physical disability as determined by
a medical doctor satisfactory to the Committee.
(i) "Eligible Person" means an employee of the Company or a
Subsidiary.
(j) "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.
(k) "Incentive Stock Option" means an option that is an incentive
stock option as defined in Section 422 of the Code.
(l) "Nonincentive Stock Option" means an option that is not an
Incentive Stock Option.
(m) "Option" means any option granted under this Plan.
(n) "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.
(o) "Participant" means a person to whom an Award is granted under the
Plan.
(p) "Performance Award" means an Award granted pursuant to Article IV.
(q) "Performance Objectives" means the objectives established by the
Committee pursuant to Section 4.1(b).
(r) "Performance Period" means the period over which the performance
of a holder of a Performance Award is measured.
(s) "Plan" means this Kirby Corporation 2002 Stock and Incentive Plan
for Kirby Corporation.
(u) "Restricted Stock" means Shares granted under this Plan that are
subject to restrictions imposed by the Committee pursuant to Article III.
(v) "Restricted Stock Award" means an award of Restricted Stock under
this Plan.
(w) "Section 162(m) Participant" means each Participant who is, on the
last day of the applicable fiscal year of the Company, either (i) the chief
executive officer of the Company or (ii) one of the four most highly
compensated officers of the Company other than the chief executive officer.
(x) "Share" means a share of the common stock, par value ten cents
($0.10) per share, of the Company.
(y) "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 and Limitations.
(a) 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 Award
granted under the Plan shall terminate, expire or be cancelled or
surrendered as to any Shares, or the Award is paid in cash in lieu of
Shares, such Award shall not count against the above limit and shall again
become available for grants under the Plan. Shares equal in number to the
Shares surrendered in payment of the option price of an Option and Shares
that are withheld in order to satisfy federal, state or local tax
liability, shall not count against the above limits.
(b) No Participant may be granted Options covering more than 250,000
Shares during the term of the Plan.
(c) The maximum number of Shares that may be issued to any Participant
pursuant to any Performance Award during the term of the Plan shall be
120,000.
(d) The maximum amount of cash that may be paid to any Participant
pursuant to any Performance Award during any calendar year shall be
$1,200,000.
Section 1.4. Awards Under the Plan.
(a) Only Eligible Persons may receive awards under the Plan. Awards to
Eligible Persons may be in the form of (i) Options; (ii) shares of
Restricted Stock; (iii) Performance Awards; or (iv) any combination of the
foregoing. No Award shall confer on any person any right to continue as an
employee of the Company or any Subsidiary.
(b) Each Award shall be evidenced by an agreement containing any terms
deemed necessary or desirable by the Committee that are not inconsistent
with the Plan or applicable law.
ARTICLE II. STOCK OPTIONS
Section 2.1. Grant of Options. The Committee 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.
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, if 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 stock of the Company, 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 any Options.
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) Disability 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 Disability;
(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. Corporate Transactions.
(a) 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 payment in cash or in securities of the Company or the
surviving entity in lieu of and in complete satisfaction of Options.
(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.
Section 2.8. 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.
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, the date or dates on which the Restricted Stock will
vest and any other terms and conditions that the Committee may determine. 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 that a Participant
ceases to be an Employee 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 agreement, the shares of Restricted Stock that have not
vested shall be forfeited and any purchase price paid by the Participant for the
forfeited Shares 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 in 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. PERFORMANCE AWARDS
Section 4.1. Terms and Conditions of Performance Awards. The Committee may
from time to time grant Awards that are intended to be "performance-based
compensation," which are payable in stock, cash or a combination thereof, at the
discretion of the Committee.
(a) Performance Period. The Committee shall establish a Performance
Period for each Performance Award at the time such Performance Award is
granted. A Performance Period may overlap with Performance Periods relating
to other Performance Awards granted hereunder to the same Participant. The
Committee shall not grant Performance Awards to Section 162(m) Participants
after the earliest to occur of (i) the 90th day after the start of the
Performance Period, (ii) the date on which 25% of the Performance Period
has elapsed or (iii) the date on which the satisfaction of the Performance
Objectives becomes substantially certain.
(b) Performance Objectives. The Committee shall establish written
performance objectives for the Participant at the time of the grant of each
Performance Award. Each Performance Award shall be contingent upon the
achievement of the Performance Objectives established by the Committee.
Performance Objectives shall be based on earnings, cash flow, economic
value added, total stockholder return, return on equity, return on capital,
return on assets, revenues, operating profit, EBITDA, net profit, earnings
per share, stock price, cost reduction goals, debt to capital ratio,
financial return ratios, profit or operating margins, working capital or
other comparable objective tests selected by the Committee, or any
combination of the foregoing, for the Company on a
consolidated basis or, if applicable, for one or more Subsidiaries,
divisions, departments or other units of the Company or one or more of its
Subsidiaries.
(c) Amount; Frequency. The Committee shall determine at the time of
grant of Performance Awards the target and maximum values of Performance
Awards and the date or dates when Performance Awards are earned.
(d) Payment. Following the end of each Performance Period, the holder
of each Performance Award will be entitled to receive payment of an amount,
not exceeding the maximum value of the Performance Award, based on the
achievement of the Performance Objectives for such Performance Period, as
determined in writing by the Committee. Unless otherwise provided in the
Performance Award, if the Participant exceeds the specified minimum level
of acceptable achievement but does not attain such objectives, the
Participant shall be deemed to have partly earned the Performance Award,
and shall become entitled to receive a portion of the total award, as
determined by the Committee. Unless otherwise provided in the Performance
Award, if a Performance Award is granted after the start of a Performance
Period, the Performance Award shall be reduced to reflect the portion of
the Performance Period during which the Performance Award was in effect.
(e) Termination of Employment. Unless otherwise provided in the
Performance Award, a Participant who receives a Performance Award and who
ceases to be an Employee as a result of death, Disability or retirement
before the end of the applicable Performance Period shall be entitled to
receive, to the extent earned as a result of the full or partial
achievement of the Performance Objectives during the Performance Period, a
portion of the Performance Award that is proportional to the portion of the
Performance Period during which the Participant was employed, with payment
to be made following the end of the Performance Period. Unless otherwise
provided in the Performance Award, a Participant who receives a Performance
Award who ceases to be an Employee for any reason other than death,
Disability or retirement shall not be entitled to any part of the
Performance Award unless the Committee determines otherwise.
(f) Accelerated Vesting. Notwithstanding the vesting conditions set
forth in a Performance Award, unless the Performance Award specifies
otherwise (i) the Committee may in its discretion at any time accelerate
the time at which the Performance Award is considered to have been earned
or otherwise waive or amend any conditions (including but not limited to
Performance Objectives) in respect of a Performance Award, and (ii) all
Performance Awards shall be considered earned upon a Change in Control of
the Company. In addition, upon a Change in Control of the Company, unless a
Performance Award specifies otherwise, each Participant shall receive the
target Performance Award such Participant could have earned for the
proportionate part of the Performance Period prior to the Change in
Control, and shall retain the right to earn any additional portion of his
or her Performance Award if such Participant remains in the Company's
employ through the end of the Performance Period.
(g) Stockholder Rights. The holder of a Performance Award shall, as
such, have none of the rights of a stockholder.
ARTICLE V. ADDITIONAL PROVISIONS
Section 5.1. 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, to establish performance criteria in respect of Awards
under the Plan, to determine whether Plan requirements have been met for any
Participant in 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
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 5.2 Adjustments for Changes in Capitalization. In the event of any
stock dividends, stock splits, recapitalizations, combinations, exchanges of
shares, mergers, consolidations, liquidations, split-ups, split-offs, spin-offs
or other similar changes in capitalization, or any distributions to
stockholders, including a rights offering, other than regular cash dividends,
changes in the outstanding stock of the Company by reason of any increase or
decrease in the number of issued Shares resulting from a split-up or
consolidation of Shares or any similar capital adjustment or the payment of any
stock dividend, any Share repurchase at a price in excess of the market price of
the Shares at the time such repurchase is announced or other increase or
decrease in the number of the Shares, the Committee shall make appropriate
adjustment in the number and kind of shares authorized by the Plan (including
the numbers of Shares specified in Section 1.3(b) and (c)), in the number, price
or kind of shares covered by the Awards and in any outstanding Awards under the
Plan. In the event of any adjustment in the number of Shares covered by any
Award, any fractional Shares resulting from such adjustment shall be disregarded
and each such Award shall cover only the number of full Shares resulting from
such adjustment.
Section 5.3. Amendment.
(a) 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 Participant with
respect to any Award outstanding on the date of the amendment or
modification without the Participant's written consent.
(b) The Committee shall have the authority to amend any Award to
include any provision which, at the time of such amendment, is authorized
under the terms of the Plan; however, no outstanding Award may be revoked
or altered in a manner unfavorable to the Participant without the written
consent of the Participant.
Section 5.4. Transferability of Awards. An Award shall not be transferable
by the Participant otherwise than by will or the laws of descent and
distribution. So long as a Participant lives, only such Participant or his or
her guardian or legal representative shall have the right to exercise such
Award.
Section 5.5. Beneficiary. A Participant may file with the Company a written
designation of beneficiary, on such form as may be prescribed by the Committee,
to receive any Shares, Awards or payments that become deliverable to the
Participant pursuant to the Plan after the Participant's death. A Participant
may, from time to time, amend or revoke a designation of beneficiary. If no
designated beneficiary survives the Participant, the executor or administrator
of the Participant's estate shall be deemed to be the Participant's beneficiary.
Section 5.6. Non-uniform Determinations. Determinations by the Committee
under the Plan (including, without limitation, determinations of the Eligible
Persons to receive Awards, the form, amount and timing of Awards, the terms and
provisions of Awards and the agreements evidencing Awards and provisions with
respect to termination of employment) need not be uniform and may be made by the
Committee selectively among persons who receive, or are eligible to receive,
Awards under the Plan, whether or not such persons are similarly situated.
Section 5.7. 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 effective date of the Plan. 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 Award outstanding on the
date of the Plan's suspension, discontinuance or termination without the
holder's written consent.
Section 5.8. 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 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 Participant to withhold in accordance with applicable federal or
state income tax withholding requirements. When payments under the Plan are made
in cash, such payments shall be net of an amount sufficient to satisfy such
withholding requirements.
Section 5.9. 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 Participant to the
Company that the 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 5.10. 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 5.11. Effective Date. The Plan shall be effective as of February
28, 2002, the date of its adoption by the Board, subject to approval 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. If the Plan is not so approved by 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,
the Plan and all Awards shall automatically terminate and be null and void ab
initio. Notwithstanding any provision of the Plan or any Award, no Award shall
be exercisable or shall vest prior to such stockholder approval.
ADOPTED BY THE BOARD: February 28, 2002
EXHIBIT 5.1
October 25, 2002
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 or about October 25, 2002, under the Securities Act of
1933, as amended (the "Securities Act"), relating to 1,000,000 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 Kirby Corporation 2002 Stock and Incentive Plan (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 1,000,000 shares of
Common Stock to be issued under the Plan; (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
assumptions noted below, we
Kirby Corporation
October 25, 2002
Page 2
are of the opinion that the Corporation presently has available at least
1,000,000 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 and may be issued. Assuming
that: (i) the outstanding options were duly granted in accordance with the terms
of the Plan, 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 under the Plan are duly issued in
accordance with the terms of the Plan, (ii) 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 Plan, and (iii) the consideration for shares of Common Stock
issued pursuant to the exercise of options under the Plan is actually received
by the Corporation 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
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By:/s/ Thomas G. Adler
--------------------------
Thomas G. Adler
EXHIBIT 23.2
The Board of Directors
Kirby Corporation
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
Houston, Texas
October 23, 2002