sv8
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Kirby Corporation
(Exact name of registrant as specified in its charter)
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Nevada
(State or other jurisdiction of
incorporation or organization)
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74-1884980
(I.R.S. Employer Identification No.) |
55 Waugh Drive, Suite 1000
Houston, Texas 77007
KIRBY CORPORATION 2005 STOCK AND INCENTIVE PLAN
(Full title of the plan)
Joseph 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.
Fulbright & Jaworski L.L.P.
2200 Ross Avenue
Suite 2800
Dallas, Texas 75201
(214) 855-8000
CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Title of securities |
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Amount to |
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maximum offering |
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maximum aggregate |
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Amount of |
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to be registered |
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be registered (1) |
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price per share (2) |
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offering price (2) |
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registration fee |
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Stock Options and
Common Stock, par
value $0.10 per share |
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1,000,000 shares |
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$47.53 |
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$47,530,000 |
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$5,594.28 |
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(1) |
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Consists of 1,000,000 shares of common stock, par value $0.10 per share, reserved for
issuance to employees of Kirby Corporation and its subsidiaries pursuant to the Kirby
Corporation 2005 Stock and Incentive Plan. In addition, if, as a result of stock splits,
stock dividends or similar transactions, the number of securities purported to be registered
on this Registration Statement changes, the provisions of Rule 416 under the Securities Act of
1933, as amended, shall apply to this Registration Statement, and this Registration Statement
shall be deemed to cover the additional securities resulting from the split of, or dividend
on, the securities covered by this Registration Statement. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
and 457(h) under the Securities Act of 1933, as amended. The offering price per share and
aggregate offering price are based upon the average of the high and low prices reported on the
New York Stock Exchange on October 26, 2005. |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* 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, as
amended (the Securities Act), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Kirby Corporation (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):
(a) the Corporations Annual Report on Form 10-K for the fiscal year ended December 31,
2004;
(b)(1) the Corporations Quarterly Report on Form 10-Q for the period ended March 31,
2005;
(b)(2) the Corporations Quarterly Report on Form 10-Q for the period ended June 30,
2005;
(b)(3)* the Corporations Current Report on Form 8-K filed on January 27, 2005;
(b)(4) the Corporations Current Report on Form 8-K filed on January 28, 2005;
(b)(5) the Corporations Current Report on Form 8-K filed on March 8, 2005;
(b)(6)* the Corporations Current Report on Form 8-K filed on April 15, 2005;
(b)(7) the Corporations Current Report on Form 8-K filed on April 28, 2005;
(b)(8)* the Corporations Current Report on Form 8-K filed on April 29, 2005;
(b)(9)* the Corporations Current Report on Form 8-K filed on May 12, 2005;
(b)(10)* the Corporations Current Report on Form 8-K filed on May 19, 2005;
(b)(11)* the Corporations Current Report on Form 8-K filed on June 2, 2005;
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(b)(12)* the Corporations Current Report on Form 8-K filed on July 28, 2005;
(b)(13)* the Corporations Current Report on Form 8-K filed on October 13, 2005;
(b)(14)* the Corporations Current Report on Form 8-K filed on October 27, 2005; and
(c) 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 reports and other documents subsequently filed by the Corporation pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
prior to the filing of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this Registration Statement from the date of
the filing of such reports and documents.
* This asterisk indicates Reports submitted to the Commission which include information
furnished pursuant to Items 2.02 or 7.01 of Form 8-K, which pursuant to General Instruction B of
Form 8-K is not deemed to be filed for the purpose of Section 18 of the Exchange Act. The
information furnished pursuant to Items 2.02 or 7.01 in such reports is not subject to the
liabilities of Section 18 of the Exchange Act, is not incorporated into this Report on Form S-8 and
the Corporation does not intend to incorporate it by reference into any filing under the Securities
Act or the Exchange Act.
Item 6. Indemnification of Directors and Officers.
Nevada General Corporation Law
Under Section 78.7502 of the Nevada Revised Statutes (the Nevada Law), the Corporation has
broad powers to indemnify its directors and officers, under certain circumstances, against
liabilities they may incur in such capacities. To the extent a director or officer of the
Corporation is successful on the merits or otherwise in defense of any action, suit or proceeding
brought against such director or officer in such capacity under paragraphs 1 or 2 of Section
78.7502 of the Nevada Law, the Corporation must indemnify him against expenses, including
attorneys fees, actually and reasonably incurred in connection with the defense.
Articles of Incorporation of the Corporation
The Restated Articles of Incorporation 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
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for any claim, issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
corporation or for amounts paid in settlement to the corporation unless and only to the
extent that the court in which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses as the court
deems proper.
3. To the extent that a director, officer, employee or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred
to in sections 1 and 2 of this Article Twelfth, or in defense of any claim, issue or matter
therein, he must be indemnified by the corporation against expenses, including attorneys
fees, actually and reasonably incurred by him in connection with the defense.
4. Any indemnification under sections 1 and 2 of this Article Twelfth, unless ordered
by a court or advanced pursuant to section 5 of this Article Twelfth, must be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the circumstances.
The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting of
directors who were not parties to the act, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who where 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 directors or officer to repay the amount if it is
ultimately determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this section 5 of this Article Twelfth do
not affect any rights to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
6. The indemnification and advancement of expenses provided by this Article Twelfth:
(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 this section 7
of this Article Twelfth may include the following:
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(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 be provided by the corporation or any other person approved by the
board of directors, even if all or part of the other persons 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.
Bylaws of the Corporation
The Corporations 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 Corporations 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 corporations 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
of 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 shall be in addition to any
other rights to which a person may otherwise be entitled by any other provisions of the
Corporations Restated Articles of Incorporation, statute, agreement, vote of stockholders or
otherwise.
The Corporations 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 Corporations Restated Articles of Incorporation.
Additionally, the Corporations 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.
The Corporation has entered into indemnification agreements with each of its directors,
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, Ronald A. Dragg and Thomas G. Adler, and
certain officers of subsidiaries of the Corporation, including Steven P. Valerius and Dorman L.
Strahan. Such indemnity agreements contain provisions
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which are in some respects broader than the specific indemnification provisions under the
Nevada Law and provide for indemnification under certain circumstances for acts and omissions which
may not be covered by the Corporations liability insurance.
Item 8. Exhibits.
The following documents are filed as a part of this Registration Statement.
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Exhibit |
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Number |
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Description |
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4.1 |
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Restated Articles of Incorporation of the Registrant, as amended (incorporated by reference
to Exhibit 3.1 to the Registrants Registration Statement on Form S-3, Reg. No. 33-3082,
filed with the Commission on August 30, 1989). |
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4.2 |
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Certificate of Amendment of Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.2 to the Registrants Annual Report on Form 10-K for
the year ended December 31, 1990, File
No. 001-07615). |
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4.3 |
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Bylaws of the Registrant, as amended (incorporated by reference to Exhibit 2 to the
Registrants July 20, 2000 Registration Statement on Form 8A (Reg. No. 01-07615)). |
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4.4 |
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Rights Agreement, dated as of July 18, 2000, between the Registrant and Fleet National Bank,
a national bank association, which includes the Form of Resolutions Establishing
Designations, Preference and Rights of Series A Junior Participating Preferred Stock of the
Registrant, the form of Rights Certificate and the Summary of Rights (incorporated by
reference to Exhibit 4.1 to the Registrants Current Report on Form 8-K filed with the
Commission on July 20, 2000, File No. 001-07615). |
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4.5 |
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Kirby Corporation 2005 Stock and Incentive Plan (incorporated by reference to Exhibit 10.1
of the Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005,
File No. 001-07615). |
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4.6 |
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Form of Nonincentive Stock Option Agreement (incorporated by reference to Exhibit 10.2 to
the Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005,
File No. 001-07615). |
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4.7 |
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Form of Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.3 to the
Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005, File
No. 001-07615). |
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4.8 |
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Form of Restricted Stock Agreement (incorporated by reference to Exhibit 10.4 to the
Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005, File
No. 001-07615). |
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5.1* |
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Opinion of Fulbright & Jaworski L.L.P. |
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23.1* |
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Consent of Fulbright & Jaworski L.L.P. (included in the opinion filed as Exhibit 5.1 hereto). |
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23.2* |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
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24.1* |
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Power of Attorney (included with signature page of this Registration Statement). |
Item 9. Undertakings.
(a) |
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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:
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(i) To include any prospectus required by section 10(a)(3) of the Securities Act or
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective registration statement.
(iii) 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;
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference 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.
(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, each filing of the registrants 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 plans 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.
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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
Securities and Exchange Commission such indemnification is against public policy as expressed in
the 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 whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Corporation
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 25,
2005.
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KIRBY CORPORATION
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By: |
/s/ Joseph H. Pyne
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Joseph H. Pyne |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below
constitutes and appoints Joseph 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 and all amendments, including post-effective
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 each such
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, as amended, this Registration
Statement has been signed by the following persons in the capacities and on the date indicated.
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Signature |
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Capacity |
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Date |
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/s/ Joseph H. Pyne
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President and Chief Executive Officer, Director |
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Joseph H. Pyne
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(Principal Executive Officer)
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October 25, 2005 |
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Executive Vice President, Treasurer and Chief
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/s/ Norman W. Nolen
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Financial Officer |
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Norman W. Nolen
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(Principal Financial Officer)
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October 25, 2005 |
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/s/ Ronald A. Dragg
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Controller |
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Ronald A. Dragg
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(Principal Accounting Officer)
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October 25, 2005 |
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/s/ C. Berdon Lawrence |
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C. Berdon Lawrence
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Chairman of the Board of Directors
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October 25, 2005 |
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/s/ C. Sean Day |
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C. Sean Day
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Director
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October 25, 2005 |
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/s/ Bob G. Gower |
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Bob G. Gower
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Director
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October 25, 2005 |
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Signature |
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Capacity |
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Date |
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/s/ Walter E. Johnson |
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Walter E. Johnson
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Director
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October 25, 2005 |
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/s/ William M. Lamont, Jr. |
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William M. Lamont, Jr.
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Director
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October 25, 2005 |
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/s/ George A. Peterkin, Jr. |
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George A. Peterkin, Jr.
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Director
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October 25, 2005 |
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/s/ Robert G. Stone, Jr. |
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Robert G. Stone, Jr.
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Director
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October 25, 2005 |
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/s/ Richard C. Webb |
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Richard C. Webb
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Director
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October 25, 2005 |
9
INDEX TO EXHIBITS
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Exhibit |
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Number |
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Description |
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4.1 |
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Restated Articles of Incorporation of the Registrant, as amended (incorporated by reference
to Exhibit 3.1 to the Registrants Registration Statement on Form S-3, Reg. No. 33-3082,
filed with the Commission on August 30, 1989). |
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4.2 |
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Certificate of Amendment of Restated Articles of Incorporation of the Registrant
(incorporated by reference to Exhibit 3.2 to the Registrants Annual Report on Form 10-K for
the year ended December 31, 1990, File No. 001-07615). |
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4.3 |
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Bylaws of the Registrant, as amended (incorporated by reference to Exhibit 2 to the
Registrants July 20, 2000 Registration Statement on Form 8A (Reg. No. 01-07615)). |
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4.4 |
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Rights Agreement, dated as of July 18, 2000, between the Registrant and Fleet National Bank,
a national bank association, which includes the Form of Resolutions Establishing
Designations, Preference and Rights of Series A Junior Participating Preferred Stock of the
Registrant, the form of Rights Certificate and the Summary of Rights (incorporated by
reference to Exhibit 4.1 to the Registrants Current Report on Form 8-K filed with the
Commission on July 20, 2000, File No. 001-07615). |
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4.5 |
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Kirby Corporation 2005 Stock and Incentive Plan (incorporated by reference to Exhibit 10.1
of the Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005,
File No. 001-07615). |
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4.6 |
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Form of Nonincentive Stock Option Agreement (incorporated by reference to Exhibit 10.2 to
the Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005,
File No. 001-07615). |
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4.7 |
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Form of Incentive Stock Option Agreement (incorporated by reference to Exhibit 10.3 to the
Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005, File
No. 001-07615). |
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4.8 |
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Form of Restricted Stock Agreement (incorporated by reference to Exhibit 10.4 to the
Registrants Current Report on Form 8-K filed with the Commission on April 29, 2005, File
No. 001-07615). |
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5.1* |
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Opinion of Fulbright & Jaworski L.L.P. |
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23.1* |
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Consent of Fulbright & Jaworski L.L.P. (included in the opinion filed as Exhibit 5.1 hereto). |
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23.2* |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
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24.1* |
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Power of Attorney (included with signature page of this Registration Statement). |
10
exv5w1
Exhibit 5.1
Fulbright & Jaworski l.l.p.
A Registered Limited Liability Partnership
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201-2784
www.fulbright.com
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telephone:
(214) 855-8000
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facsimile:
(214) 855-8200 |
October 25, 2005
Kirby Corporation
55 Waugh Drive, Suite 1000
Houston, Texas 77007
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Re:
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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 28, 2005,
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 may be issued
pursuant to the Kirby Corporation 2005 Stock and Incentive Plan (the Plan).
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 adoption 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.
Based upon our examination and consideration of, and reliance on, the documents and other
matters described above, we are of the opinion that the shares of Common Stock covered by the
Registration Statement, when issued in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to 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.
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Respectfully submitted, |
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/s/ FULBRIGHT & JAWORSKI L.L.P. |
exv23w2
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Kirby Corporation
We consent to the use of our reports dated March 4, 2005, with respect to the consolidated balance
sheets of Kirby Corporation and its consolidated subsidiaries as of December 31, 2004 and December
31, 2003, and the related consolidated statements of earnings, stockholders equity and cash flows
for each of the years in the three-year period ended December 31, 2004, managements assessment of
the effectiveness of internal control over financial reporting as of December 31, 2004 and the
effectiveness of internal control over financial reporting as of December 31, 2004, which reports
are included in the Annual Report on Form 10-K of Kirby Corporation for the year ended December 31,
2004, which is incorporated by reference in this Registration Statement on Form S-8.
/s/ KPMG LLP
Houston, Texas
October 24, 2005