As filed with the Securities and Exchange Commission on October 25, 2002
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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KIRBY CORPORATION
(Exact name of registrant as specified in its charter)
Nevada 74-1884980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
55 Waugh Drive, Suite 1000
Houston, Texas 77007
(Address of principal executive offices, including zip code)
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KIRBY CORPORATION 2002 STOCK AND INCENTIVE PLAN
(Full title of the plan)
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J. H. Pyne
President and Chief Executive Officer
KIRBY CORPORATION
55 Waugh Drive, Suite 1000
Houston, Texas 77007
(Name and address of agent for service)
(713) 435-1000
(Telephone number, including area code, of agent for service)
Copy to:
Thomas G. Adler, Esq.
Jenkens & Gilchrist,
A Professional Corporation
1445 Ross Avenue, Suite 3200
Dallas, Texas 75202
CALCULATION OF REGISTRATION FEE
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Proposed maximum
Proposed maximum aggregate Amount of
Title of each class of Amount to offering price offering price registration fee
securities to be registered be registered (1) per share (2)(3)(4) (2)(3)(4) (3)(4)
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Common Stock, par value $.10
per share 1,000,000 $23.40 $12,311,044.20 $1,132.62
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<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 Kirby Corporation 2002 Stock and
Incentive Plan (the "Plan"). In addition, pursuant to Rule 416 under the
Securities Act of 1933, this Registration Statement also covers an
indeterminate number of additional shares of Common Stock issuable pursuant
to the exercise of options and/or awards granted or to be granted under the
Plan to prevent dilution that may result from any future stock splits,
stock dividends or similar transactions affecting the Common Stock.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per
share of common stock offered hereunder pursuant to the Plan is based upon
526,113 shares of Common Stock reserved for issuance under the Plan at a
price of $23.40, which is the average of the highest and lowest price per
share of Common Stock on the New York Stock Exchange on October 21, 2002
(4) An aggregate of 473,887 shares of the shares being registered under the
Plan are shares which were previously registered under the 2001 Employee
Stock Option Plan for Kirby Corporation (the "2001 Plan") on the
Registration Statement on Form S-8 (Registration No. 333-72592). The
Corporation has filed a post-effective amendment to deregister those
shares, and accordingly, the associated registration fee previously paid on
these shares under the prior registration statement is hereby also carried
forward to cover that portion of the registration fee under this
Registration Statement that corresponds to the shares which were previously
available for grant under the 2001 Plan. Accordingly, the registration fee
under this registration statement is calculated with respect to 526,113
shares.
</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, 2001;
(2) the Corporation's Annual Report on Form 11-K for the fiscal year
ended December 31, 2001;
(3) The Corporation's Quarterly Report on Form 10-Q for the period
ended March 31, 2002;
(4) The Corporation's Quarterly Report on Form 10-Q for the period
ended June 30, 2002; and
(5) the description of the Common Stock, par value $0.10 per share, of
the Corporation (the "Common Stock") set forth in the Registration
Statement on Form 8-B, dated October 14, 1976, including any amendment or
report filed for the purpose of updating such description.
All documents filed by the Corporation with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement, shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until
________________________
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
such time as there shall have been filed a post-effective amendment that
indicates that all securities offered hereby have been sold or that deregisters
all securities remaining unsold at the time of such amendment.
Item 5. Interests of Named Experts and Counsel
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Certain matters with respect to the validity of the Common Stock to be
offered hereby will be passed on for the Corporation by Jenkens & Gilchrist, a
Professional Corporation. Thomas G. Adler, the Secretary of the Corporation, is
a shareholder of Jenkens & Gilchrist, a Professional Corporation.
Item 6. Indemnification of Directors and Officers
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(a) The Restated Articles of Incorporation of the Corporation provide for
indemnification as follows:
"TWELFTH: 1. The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, except an action by or in the right
of the Corporation, by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suit or
proceeding if he acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or
proceeding, has no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his
conduct was unlawful.
2. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts
paid in settlement and attorneys' fees actually and reasonably
incurred
by him in connection with the defense or settlement of the action or
suit if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
Corporation. Indemnification shall not be made for any claim, issue or
matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the Corporation or for amounts paid in settlement to the
Corporation unless and only to the extent that the court in which the
action or suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of
the case, the person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in sections 1 and 2 of
this Article Twelfth, or in defense of any claim, issue or matter
therein, he must be indemnified by the Corporation against expenses,
including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
4. Any indemnification under section 1 and 2 of this Article
Twelfth, unless ordered by a court or advanced pursuant to section 5
of this Article Twelfth, must be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the act, suit or
proceeding;
(c) If a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties
to the act, suit or proceeding cannot be obtained, by independent
legal counsel in a written opinion.
5. The expenses of officers and directors incurred in defending a
civil or criminal action, suit or proceeding must be paid by the
Corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court
of competent jurisdiction that he is not entitled to be indemnified by
the Corporation. The provisions of this section 5 of this Article
Twelfth do no affect any rights to advancement of expenses to which
corporate personnel other than directors or officers may be entitled
under any contract or otherwise by law.
6. The indemnification and advancement of expenses provided by
this Article Twelfth:
(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be
entitled under these articles of incorporation or any bylaws,
agreement, vote of stockholders or disinterested directors or
otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to section 2
of this Article Twelfth or for the advancement of expenses of any
director or officer, if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a
knowing violation of the law and was material to the cause of
action.
(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the
heirs, executors and administrators of such person.
7. The Corporation may purchase and maintain insurance or make
other financial arrangements on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise for any liability asserted against him and
liability and expenses incurred by him in his capacity as a director,
officer, employee or agent, or arising out of his status as such,
whether or not the corporation has the authority to indemnify him
against such liability and expenses.
8. The other financial arrangements made by the corporation
pursuant to section 7 of this Article Twelfth may include the
following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
Corporation.
(d) The establishment of a letter of credit, guaranty or
surety.
No financial arrangement made pursuant to this section may provide
protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for
intentional misconduct, fraud or a knowing violation of law, except
with respect to the advancement of expenses or indemnification ordered
by a court.
9. Any insurance or other financial arrangement made on behalf of
a person pursuant to this Article Twelfth may he provided by the
Corporation or any other person approved by the board of directors,
even if all or part of the other person's stock or other securities is
owned by the Corporation.
10. In the absence of fraud:
(a) The decision of the board of directors as to the
propriety of the terms and conditions of any insurance or other
financial arrangement made pursuant to this Article Twelfth and
the choice of the person to provide the insurance or other
financial arrangement shall be conclusive; and
(b) The insurance or other financial arrangement:
(1) is not void or voidable; and
(2) does not subject any director approving it to
personal liability for his action, even if a director
approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial
arrangement."
(b) The Corporation's Bylaws provide that the Corporation shall indemnify
each and every present and former director and officer of the Corporation, and
each and every person who may have served at the Corporation's request as a
director or officer of another corporation in which the Corporation owns shares
of capital stock or of which the Corporation is a creditor (each of which other
corporation is individually referred to herein as an "Other Enterprise"),
against any and all expenses (including attorneys' fees) actually and
necessarily incurred by him in connection with the defense of any action, suit
or proceeding in which he was or is a party by reason of being or having been a
director or officer of the Corporation or Other Enterprise to the fullest extent
permitted by law. The rights of indemnification provided in the Bylaws are in
addition to any other rights to which a person may otherwise be entitled by any
other provisions of the Corporation's Restated Articles of Incorporation,
statute, agreement, vote of stockholders or otherwise.
The Corporation's Bylaws further provide that the Corporation shall
indemnify officers and directors of the Corporation, as well as other persons
who serve as agents and employees of the Corporation, to the extent set forth in
the Corporation's Restated Articles of Incorporation.
Additionally, the Corporation's Bylaws provide that the Corporation may
purchase and maintain insurance on behalf of, and contractually agree to
indemnify, any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of the Bylaws.
(c) The Corporation has entered into agreements with each Director and
certain key officers, including C. Berdon Lawrence, J.H. Pyne, Norman W. Nolen,
Mark R. Buese, Jack M. Sims, Howard G. Runser, G. Stephen Holcomb and Thomas G.
Adler, and certain officers of subsidiaries of the Corporation, including Steven
P. Valerius and Dorman L. Strahan, that provide for the indemnification of such
individuals for certain liabilities incurred in such capacity.
Item 8. Exhibits.
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(a) Exhibits.
The following documents are filed as a part of this registration
statement.
Exhibit Description of Exhibit
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4.1 Restated Articles of Incorporation of Kirby Exploration Company,
Inc., as amended (incorporated by reference from Exhibit 3.1 to
the Corporation's Registration Statement on Form S-3, Reg. No.
33-30832, filed with the Commission on August 30, 1989)
4.2 Certificate of Amendment of Restated Articles of Incorporation of
the Corporation (incorporated by reference from Exhibit 3.2 to
the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1990)
4.3 Rights Agreement, dated as of July 18, 2000, between Kirby
Corporation and Fleet National Bank, a national banking
association, which includes the Form of Resolutions Establishing
Designations, Preferences and Rights of Series A Junior
Participating Preferred Stock of Kirby Corporation as Exhibit A,
the form of Rights Certificate as Exhibit B, and the Summary of
Rights as Exhibit C
(incorporated by reference from Exhibit 4.1 to the Corporation's
Current Report on Form 8-K filed with the Commission on July 20,
2000)
4.4* Kirby Corporation 2002 Stock and Incentive Plan
5.1* Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1* Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1)
23.2* Consent of KPMG LLP
24 Power of Attorney (included with signature page of this
registration statement)
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* Filed herewith.
Item 9. Undertakings.
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A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on October 23, 2002.
KIRBY CORPORATION
By: /s/ J.H. Pyne
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J. H. Pyne
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each individual whose signature appears
below hereby constitutes and appoints J. H. Pyne and Norman W. Nolen his true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this registration statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming that said attorney-in-fact and agent or his substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Capacity Date
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/s/ C. Berdon Lawrence Chairman of the Board and Director October 23, 2002
- -------------------------------------------- of the Corporation
C. Berdon Lawrence
/s/ J. H. Pyne President, Director and Principal October 23, 2002
- -------------------------------------------- Executive Officer of the Corporation
J. H. Pyne
/s/ Norman W. Nolen Executive Vice President, Treasurer, October 23, 2002
- -------------------------------------------- Assistant Secretary and Principal
Norman W. Nolen Financial Officer of the Corporation
/s/ G. Stephen Holcomb Vice President, Controller, Assistant October 23, 2002
- -------------------------------------------- Secretary and Principal Accounting
G. Stephen Holcomb Officer of the Corporation
/s/ C. Sean Day Director of the Corporation October 23, 2002
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C. Sean Day
/s/ Bob G. Gower Director of the Corporation October 23, 2002
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Bob G. Gower
/s/ Walter E. Johnson Director of the Corporation October 23, 2002
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Walter E. Johnson
Director of the Corporation October 23, 2002
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William M. Lamont, Jr.
/s/ George A. Peterkin, Jr Director of the Corporation October 23, 2002
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George A. Peterkin, Jr.
/s/ Robert G. Stone, Jr. Director of the Corporation October 23, 2002
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Robert G. Stone, Jr.
/s/ Richard C. Webb Director of the Corporation October 23, 2002
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Richard C. Webb