As filed with the Securities and Exchange Commission on October 31, 2001
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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KIRBY CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 74-1884980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Waugh Drive, Suite 1000
Houston, Texas 77007
(Address of principal executive offices, including zip code)
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2001 EMPLOYEE STOCK OPTION PLAN FOR KIRBY CORPORATION
2000 NONEMPLOYEE DIRECTOR PLAN FOR KIRBY CORPORATION
(Full title of the plans)
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J. H. Pyne Copy to: Thomas G. Adler, Esq.
President and Chief Executive Officer Jenkens & Gilchrist,
KIRBY CORPORATION A Professional Corporation
55 Waugh Drive, Suite 1000 1445 Ross Avenue, Suite 3200
Houston, Texas 77007 Dallas, Texas 75202
(Name and address of agent for service)
(713) 435-1000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Proposed maximum aggregate Amount of
Title of each class of Amount to offering price offering price registration fee
securities to be registered be registered (1) per share (2)(3)(4) (2)(3)(4) (3)(4)
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Common Stock, par value $.10
per share 1,300,000 $26.37 $30,395,280.00 $7,598.82
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<FN>
(1) Consists of 1,000,000 shares of common stock, par value $.10 per share (the
"Common Stock") reserved for issuance to employees of Kirby Corporation (the
"Corporation") pursuant to the 2001 Employee Stock Option Plan for Kirby
Corporation (the "2001 Employee Plan") and 300,000 shares of Common Stock
reserved for issuance to directors of the Corporation pursuant to the 2000
Nonemployee Director Stock Option Plan for Kirby Corporation (the "Nonemployee
Director Plan," and together with the 2001 Employee Plan, the "Plans"). In
addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate number of additional shares
of Common Stock issuable pursuant to the exercise of options and/or awards
granted or to be granted under the Plans to prevent dilution that may result
from any future stock splits, stock dividends or similar transactions affecting
the Common Stock.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per share
of common stock offered hereunder pursuant to the Plans is based upon 942,000
shares of Common Stock reserved for issuance under the Plans at a price of
$26.37, which is the average of the highest and lowest price per share of
Common Stock on the New York Stock Exchange on October 30, 2001; and (ii)
258,000 shares of Common Stock reserved for issuance and subject to stock
options already granted under the 2001 Employee Plan at an exercise price of
$21.53 per share.
(4) An aggregate of 100,000 shares of the shares being registered under the
Nonemployee Director Plan are shares which were previously registered under the
2000 Director Stock Option Plan for Kirby Corporation (the "Predecessor Plan")
on the Registration Statement on Form S-8 (Registration No. 333-42794). The
Corporation has filed a post-effective amendment to deregister those shares, and
accordingly, the associated registration fee previously paid on these shares
under the prior registration statement is hereby also carried forward to cover
that portion of the registration fee under this Registration Statement that
corresponds to the shares which were previously available for grant under the
Predecessor Plan. Accordingly, the registration fee under this registration
statement is calculated with respect to 1,200,000 shares.
</FN>
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, 2000;
(2) the Corporation's Annual Report on Form 11-K for the fiscal year
ended December 31, 2000;
(3) the Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2001;
(4) the Corporation's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001; and
(5) the description of the Common Stock, par value $0.10 per share, of
the Corporation (the "Common Stock") set forth in the Registration
Statement on Form 8-B, dated October 14, 1976, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Corporation with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement, shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until
-----------------------
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
such time as there shall have been filed a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters
all securities remaining unsold at the time of such amendment.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Certain matters with respect to the validity of the Common Stock to be
offered hereby will be passed on for the Corporation by Jenkens & Gilchrist, a
Professional Corporation. Thomas G. Adler, the Secretary of the Corporation, is
a shareholder of Jenkens & Gilchrist, a Professional Corporation.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
(a) The Restated Articles of Incorporation of the Corporation provide
for indemnification as follows:
"TWELFTH: 1. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative,
except an action by or in the right of the Corporation, by
reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in
good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the Corporation, and that, with respect
to any criminal action or proceeding, he had reasonable cause
to believe that his conduct was unlawful.
2. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including
amounts paid in settlement and attorneys' fees actually and
reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and
in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation.
Indemnification shall not be made for any claim, issue or
matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or for amounts paid
in settlement to the corporation unless and only to the extent
that the court in which the action or suit was brought or
other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
3. To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in sections 1 and 2 of this Article Twelfth, or in
defense of any claim, issue or matter therein, he must be
indemnified by the corporation against expenses, including
attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
4. Any indemnification under section 1 and 2 of this
Article Twelfth, unless ordered by a court or advanced
pursuant to section 5 of this Article Twelfth, must be made by
the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. The
determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a
quorum consisting of directors who were not parties to the
act, suit or proceeding;
(c) If a majority vote of a quorum consisting of
directors who were not parties to the act, suit or
proceeding so orders, by independent legal counsel in a
written opinion; or
(d) If a quorum consisting of directors who were not
parties to the act, suit or proceeding cannot be obtained,
by independent legal counsel in a written opinion.
5. The expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must
be paid by the Corporation as they are incurred and in advance
of the final disposition of the action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director
or officer to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he is not entitled
to be indemnified by the Corporation. The provisions of this
section 5 of this Article Twelfth do no affect any rights to
advancement of expenses to which corporate personnel other
than directors or officers may be entitled under any contract
or otherwise by law.
6. The indemnification and advancement of expenses
provided by this Article Twelfth:
(a) Does not exclude any other rights to
which a person seeking indemnification or advancement
of expenses may be entitled under these articles of
incorporation or any bylaws, agreement, vote of
stockholders or disinterested directors or otherwise,
for either an action in his official capacity or an
action in another capacity while holding his office,
except that indemnification, unless ordered by a
court pursuant to section 2 of this Article Twelfth
or for the advancement of expenses of any director or
officer, if a final adjudication establishes that his
acts or omissions involved intentional misconduct,
fraud or a knowing violation of the law and was
material to the cause of action.
(b) Continues for a person who has ceased to
be a director, officer, employee or agent and inures
to the benefit of the heirs, executors and
administrators of such person.
7. The Corporation may purchase and maintain
insurance or make other financial arrangements on behalf of
any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise for any liability asserted against him and
liability and expenses incurred by him in his capacity as a
director, officer, employee or agent, or arising out of his
status as such, whether or not the corporation has the
authority to indemnify him against such liability and
expenses.
8. The other financial arrangements made by the
corporation pursuant to section 7 of this Article Twelfth may
include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification
by granting a security interest or other lien on any assets of
the Corporation.
(d) The establishment of a letter of credit, guaranty
or surety.
No financial arrangement made pursuant to this section may
provide protection for a person adjudged by a court of
competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of law, except with respect to the
advancement of expenses or indemnification ordered by a court.
9. Any insurance or other financial arrangement made
on behalf of a person pursuant to this Article Twelfth may he
provided by the Corporation or any other person approved by
the board of directors, even if all or part of the other
person's stock or other securities is owned by the
Corporation.
10. In the absence of fraud:
(a) The decision of the board of directors as to the
propriety of the terms and conditions of any insurance or
other financial arrangement made pursuant to this Article
Twelfth and the choice of the person to provide the insurance
or other financial arrangement shall be conclusive; and
(b) The insurance or other financial arrangement:
(1) is not void or voidable; and
(2) does not subject any director approving
it to personal liability for his action, even if a
director approving the insurance or other financial
arrangement is a beneficiary of the insurance or
other financial arrangement."
(b) The Corporation's Bylaws provide that the Corporation shall
indemnify each and every present and former director and officer of the
Corporation, and each and every person who may have served at the Corporation's
request as a director or officer of another corporation in which the Corporation
owns shares of capital stock or of which the Corporation is a creditor (each of
which other corporation is individually referred to herein as an "Other
Enterprise"), against any and all expenses (including attorneys' fees) actually
and necessarily incurred by him in connection with the defense of any action,
suit or proceeding in which he was or is a party by reason of being or having
been a director or officer of the Corporation or Other Enterprise to the fullest
extent permitted by law. The rights of indemnification provided in the Bylaws
are in addition to any other rights to which a person may otherwise be entitled
by any other provisions of the Corporation's Restated Articles of Incorporation,
statute, agreement, vote of stockholders or otherwise.
The Corporation's Bylaws further provide that the Corporation shall
indemnify officers and directors of the Corporation, as well as other persons
who serve as agents and employees of the Corporation, to the extent set forth in
the Corporation's Restated Articles of Incorporation.
Additionally, the Corporation's Bylaws provide that the Corporation may
purchase and maintain insurance on behalf of, and contractually agree to
indemnify, any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of the Bylaws.
(c) The Corporation has entered into agreements with each Director and
certain key officers, including C. Berdon Lawrence, J.H. Pyne, Norman W. Nolen,
Mark R. Buese, Jack M. Sims, Connie C. Power, Howard G. Runser, G. Stephen
Holcomb and Thomas G. Adler, and certain officers of subsidiaries of the
Corporation, including Steven P. Valerius and Dorman L. Strahan, that provide
for the indemnification of such individuals for certain liabilities incurred in
such capacity.
Item 8. Exhibits.
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(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1 Restated Articles of Incorporation of Kirby Exploration
Company, Inc., as amended (incorporated by reference from
Exhibit 3.1 to the Corporation's Registration Statement on
Form S-3, Reg. No. 33-30832, filed with the Commission on
August 30, 1989).
4.2 Certificate of Amendment of Restated Articles of Incorporation
of the Corporation (incorporated by reference from Exhibit 3.2
to the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1990).
4.3 Rights Agreement, dated as of July 18, 2000, between Kirby
Corporation and Fleet National Bank, a national banking
association, which includes the Form of Resolutions
Establishing Designations, Preferences and Rights of Series A
Junior Participating Preferred Stock of Kirby Corporation as
Exhibit A, the form of Rights Certificate as Exhibit B, and
the Summary of Rights as Exhibit C (incorporated by reference
from Exhibit 4.1 to the Corporation's Current Report on Form
8-K filed with the Commission on July 20, 2000).
4.4* 2001 Employee Stock Option Plan for Kirby Corporation
4.5* 2000 Nonemployee Director Stock Option Plan for Kirby
Corporation
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1* Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2* Consent of KPMG LLP
24 Power of Attorney (included with signature page of this
Registration Statement)
--------------------
* Filed herewith.
Item 9. Undertakings.
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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 31, 2001.
KIRBY CORPORATION
By: /s/ J. H. Pyne
-------------------------------------
J. H. Pyne
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each individual whose signature
appears below hereby constitutes and appoints J. H. Pyne and Norman W. Nolen his
true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this registration statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming that said attorney-in-fact and agent or his substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Capacity Date
--------- -------- ----
/s/ C. Berdon Lawrence Chairman of the Board and Director October 31, 2001
-------------------------------------------- of the Company
C. Berdon Lawrence
/s/ J. H. Pyne President, Director and Principal October 31, 2001
-------------------------------------------- Executive Officer of the Company
J. H. Pyne
/s/ Norman W. Nolen Executive Vice President, October 31, 2001
-------------------------------------------- Treasurer, Assistant Secretary and
Norman W. Nolen Principal Financial Officer of the
Company
/s/ G. Stephen Holcomb Vice President, Controller, October 31, 2001
-------------------------------------------- Assistant Secretary and Principal
G. Stephen Holcomb Accounting Officer of the Company
/s/ C. Sean Day Director of the Company October 31, 2001
--------------------------------------------
C. Sean Day
/s/ Bob G. Gower Director of the Company October 31, 2001
--------------------------------------------
Bob G. Gower
Director of the Company October __, 2001
--------------------------------------------
Walter E. Johnson
/s/ William M. Lamont, Jr. Director of the Company October 31, 2001
--------------------------------------------
William M. Lamont, Jr.
/s/ George A. Peterkin, Jr. Director of the Company October 31, 2001
--------------------------------------------
George A. Peterkin, Jr.
/s/ Robert G. Stone, Jr. Director of the Company October 31, 2001
--------------------------------------------
Robert G. Stone, Jr.
/s/ Richard C. Webb Director of the Company October 31, 2001
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Richard C. Webb