As filed with the Securities and Exchange Commission on April 28, 2004
Registration No. 333-72592
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
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)
_________________________________
2000 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
__________________________________
Joseph 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)
EXPLANATORY NOTE
On November 1, 2001, the registrant filed with the Securities and
Exchange Commission ("SEC") a Registration Statement on Form S-8, No. 333-72592,
pertaining to its 2000 Nonemployee Director Stock Option Plan (the "Plan"),
which provided for the granting of stock options to eligible participants under
the Plan. At its Annual Meeting of Stockholders held on April 27, 2004, the
shareholders of the registrant approved an amendment to the Plan which permits
the registrant to award restricted stock awards to eligible participants under
the Plan in addition to stock options. The registrant is filing this
Post-Effective Amendment to file the Plan, as amended, which is attached hereto
as Exhibit 4.4. No additional securities are being registered.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
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, 2003;
(2) the Corporation's Current Report on Form 8-K filed with
the Commission on January 29, 2004; and
(3) 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.
- --------
*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.
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 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, Joseph 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.
(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* 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 the
Company's Registration Statement on Form S-8 (No. 333-72592))
____________________
* 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
post-effective amendment no. 1 to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on April 27, 2004.
KIRBY CORPORATION
By: /s/ Joseph H. Pyne
------------------------------------
Joseph H. Pyne
President and Chief Executive
Officer
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/ * Chairman of the Board and Director April 27, 2004
- -------------------------------- of the Company
C. Berdon Lawrence
/s/ Joseph H. Pyne President, Director and Chief April 27, 2004
- -------------------------------- Executive Officer of the Company
Joseph H. Pyne (principal executive officer)
/s/ * Executive Vice President, April 27, 2004
- -------------------------------- Treasurer and Chief Financial
Norman W. Nolen Officer of the Company (principal
financial officer)
/s/ Ronald A. Dragg
- ------------------------------- Controller (principal accounting April 27, 2004
Ronald A. Dragg officer)
/s/ * Director of the Company April 27, 2004
- -------------------------------
C. Sean Day
/s/ * Director of the Company April 27, 2004
- -------------------------------
Bob G. Gower
- ------------------------------- Director of the Company April 27, 2004
Walter E. Johnson
/s/ * Director of the Company April 27, 2004
- -------------------------------
William M. Lamont, Jr.
/s/ * Director of the Company April 27, 2004
- -------------------------------
George A. Peterkin, Jr.
/s/ * Director of the Company April 27, 2004
- -------------------------------
Robert G. Stone, Jr.
/s/ *
- ------------------------------- Director of the Company April 27, 2004
Richard C. Webb
*By: /s/ Joseph H. Pyne
---------------------------
Joseph H. Pyne
Attorney-in-fact
EXHIBIT INDEX
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* 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 the
Company's Registration Statement on Form S-8 (No. 333-72592))
____________________
* Filed herewith.
Exhibit 4.4
KIRBY CORPORATION
2000 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
ARTICLE I. 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
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.
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.
"Code" means the Internal Revenue Code of 1986, as amended.
(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 or Restricted
Stock 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, as amended from time to time.
(n) "Restricted Stock" means Shares granted under this Plan that are
subject to restrictions described in Article III and the Compensation Plan.
(o) "Share" means a share of the common stock, par value ten cents
($0.10) per share, of the Company.
(p) "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.
Section 1.3. Total Shares. The maximum number of Shares that may be
issued 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 or such Shares may
thereafter be issued as Restricted Stock.
ARTICLE II. STOCK OPTIONS
Section 2.1. Automatic Grant of Options. Options shall automatically be
granted to Eligible Directors as provided in Sections 2.2, 2.3 and 2.4. 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.
Section 2.2. 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.
Section 2.3. 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.
Section 2.4. 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.
Section 2.5. Option Price. The option price per Share for any Option
shall be the Fair Market Value on the Date of Grant.
Section 2.6. Date of Grant.
(a) The Date of Grant of an Option granted under Section 2.2 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 2.3 shall be
the date of the annual meeting of stockholders of the Company.
(c) The Date of Grant of an Option granted under Section 2.4 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.
Section 2.7. Vesting.
(a) An Option granted under Section 2.2 shall be exercisable on or
after the Date of Grant.
(b) An Option granted under Section 2.3 shall become exercisable six
months after the Date of Grant.
(c) An Option granted under Section 2.4 shall become exercisable on the
Payment Date(s) following the Date of Grant as provided in this Section 2.7(c).
The number of Shares as to which an Option granted under Section 2.4 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 2.7, (i) an
Option shall only become exercisable as provided in this Section 2.7 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.
Section 2.8. 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.
Section 2.9. Exercise of Options. Any Option may be exercised in whole
or in part to the extent exercisable in accordance with Section 2.7. 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.
Section 2.10. 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 2.2, 2.3 and 2.4, 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 2.10 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 2.11. 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.
Section 2.12. 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.
ARTICLE III. RESTRICTED STOCK
Section 3.1. Election to Receive Restricted Stock. If the Compensation
Plan permits Eligible Directors to elect to receive Restricted Stock 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 a number of Shares of Restricted Stock equal
to (i) the amount of the fee such Eligible Director elects to receive in the
form of Restricted Stock divided by (ii) the Fair Market Value of a Share on the
Date of Grant multiplied by (iii) 1.2, with the result rounded to the nearest
whole Share.
Section 3.2. Date of Grant. The Date of Grant of Restricted Stock
granted under Section 3.1 shall be the date by which the Eligible Director must
make an election pursuant to the Compensation Plan to receive the Restricted
Stock in lieu of cash fees.
Section 3.3. Vesting.
(a) Restricted Stock granted under Section 3.1 shall vest on the
Payment Date(s) following the Date of Grant as provided in this Section 3.3(a).
The number of Shares of Restricted Stock granted under Section 3.1 that will
vest on each Payment Date after the Date of Grant shall equal the number of
Shares of Restricted Stock granted 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.
(b) Notwithstanding the other provisions of this Section 3.3, (i)
Restricted Stock shall only vest as provided in this Section 3.3 if the holder
is a Director at the time the Restricted Stock would otherwise vest and (ii)
upon the occurrence of a Change in Control, all Restricted Stock issued under
the Plan that is outstanding at the time of the Change in Control shall
immediately vest.
(c) Notwithstanding the vesting conditions set forth in the Plan or the
Compensation Plan, 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 Restricted Stock under the Plan.
Section 3.4. Restrictions on Transfer. Stock certificates representing
Restricted Stock granted to an Eligible Director under the Plan shall be
registered in the Director'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 Director, or delivered to the Director bearing a legend
to restrict transfer of the certificate until the Restricted Stock has vested,
as determined by the Committee. The Director shall have the right to vote and
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 Director until such Share
has vested. In the event that a Director ceases to be a Director before all the
Director's Restricted Stock has vested, the Shares of Restricted Stock that have
not vested shall be forfeited. At the time Restricted Stock vests (and, if the
Director 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 Director free of all restrictions.
Section 3.5. Issuance of Shares. As a condition of the issuance of any
certificate for Shares of Restricted Stock, 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 Eligible Director to
the Company that the Eligible Director 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.
Section 3.6. Section 83(b) Election. If a Director receives Restricted
Stock that is subject to a "substantial risk of forfeiture," the Director 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 Fair Market
Value of such Restricted Stock on the Date of Grant. If the Director makes the
Section 83(b) election, the Director shall (a) make such election in a manner
that is satisfactory to the Committee, (b) provide the Company with a copy of
such election and (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.
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 holders of Restricted Stock. 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. Adjustment of Shares. If at any time while the Plan is in
effect, 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,
the Committee shall make an appropriate adjustment in the number and kind of
Shares then subject to being issued under the Plan, so that the same proportion
of the Company's issued and outstanding Shares shall continue to be subject to
issuance under the Plan upon the exercise of Options or as Restricted Stock.
Section 4.3. Amendment. The Board may amend or modify the Plan in any
respect at any time.
Section 4.4. 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 or
Restricted Stock outstanding on the date of the Plan's suspension,
discontinuance or termination without the holder's written consent.
Section 4.5. Effective Date. The Plan shall be effective as of
September 26, 2000.
ADOPTED BY THE BOARD OF DIRECTORS ON SEPTEMBER 26, 2000.
AMENDMENT APPROVED BY THE BOARD OF DIRECTORS ON JANUARY 27, 2004 AND APPROVED BY
THE STOCKHOLDERS OF THE COMPANY ON APRIL 27, 2004.
EXHIBIT 5.1
April 28, 2004
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 Post-Effective
Amendment No. 1 to the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission on or about
April 28, 2004, under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 300,000 shares of the $0.10 par value common stock (the
"Common Stock") of the Corporation that have been or may be issued under the
Kirby Corporation 2000 Nonemployee Director Stock Option Plan (the "Plan") or
upon the exercise of options granted or that may be granted under 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 and amendment of the Plan and the reservation
of 300,000 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
Kirby Corporation
April 28, 2004
Page 2
assumptions noted below, we are of the opinion that the Corporation presently
has available at least 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 or issued through the Plan
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, the shares of Common
Stock to be issued under the Plan are duly issued 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
under the Plan or 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 Plan or 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 in accordance with the terms of the Plan or 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
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Kirby Corporation
We consent to the use of our report incorporated by reference herein.
/s/ KPMG LLP
Houston, Texas
April 28, 2004