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EXHIBIT 4.1
FIXED RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
PRINCIPAL OR FACE REGISTERED
AMOUNT
No. FX___ CUSIP No. ___________________ $_______________________
KIRBY CORPORATION
MEDIUM-TERM NOTE
(Fixed Rate)
________________________________________________________________________________
* * * ( ) CHECK IF AN INDEXED NOTE * * *
IF CHECKED, CALCULATION AGENT: __________________
If this is an Indexed Note, references herein to "principal" shall be deemed to
be the face amount hereof, except that the amount payable upon Maturity of this
Note shall be determined in accordance with the formula or formulas set forth
below or in an attached Addendum hereto.
________________________________________________________________________________
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY DATE:
INTEREST PAYMENT DATES:
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INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S):
DAY COUNT CONVENTION
( ) 30/360 FOR THE PERIOD FROM TO .
( ) ACTUAL/360 FOR THE PERIOD FROM TO .
( ) ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
( ) Yes ( ) Yes
( ) No ( ) No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
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Kirby Corporation, a Nevada corporation ("Issuer" or the "Company,"
which terms include any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of ____________________________________
DOLLARS, or if this is an Indexed Note, the principal amount as determined in
accordance with the terms set forth under "Other Provisions" above and/or in
the Addendum attached hereto, on the Stated Maturity Date specified above
(except to the extent redeemed or repaid prior to the Stated Maturity Date),
and to pay interest on the principal or face amount as set forth above at the
Interest Rate per annum specified above, until the principal hereof is paid or
duly made available for payment. Reference herein to "this Note", "hereof",
"herein" and comparable terms shall include an Addendum hereto if an Addendum
is specified above.
The Company will pay interest on each Interest Payment Date specified
above, commencing on the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Stated Maturity Date or any
Redemption Date or Optional Repayment Date (if specified as repayable at the
option of the Holder in an attached Addendum) (the date of each such Stated
Maturity Date, Redemption Date and Optional Repayment Date and the date on
which principal or an installment of principal is due and payable by
declaration of acceleration pursuant to the Indenture being referred to
hereinafter as a "Maturity" with respect to principal payable on such date);
provided, however, that if the Original Issue Date is between a Regular Record
Date (as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the Interest Payment Date immediately following the
next succeeding Regular Record Date. Except as provided above, interest
payments will be made on the Interest Payment Dates shown above. Unless
otherwise specified above, the "Regular Record Date" shall be the date 15
calendar days (whether or not a Business Day) prior to the applicable Interest
Payment Date. Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid, from the Original Issue Date specified
above, to, but excluding such Interest Payment Date. If the Maturity or an
Interest Payment Date falls on a day which is not a Business Day as defined
below, the payment due on such Maturity or Interest Payment Date will be paid
on the next succeeding Business Day with the same force and effect as if made
on such Maturity or Interest Payment Date, as the case may be, and no interest
shall accrue with respect to such payment for the period from and after such
Maturity or Interest Payment Date. The interest so payable and punctually paid
or duly provided for on any Interest Payment Date will as provided in the
Indenture be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such Interest Payment Date. Any such interest which is
payable, but not punctually paid or duly provided for on any Interest Payment
Date (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on such Regular Record Date, and may be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Paying Agent, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture.
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Payment of the principal of and interest on this Note will be made at
the office or agency of the Company maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register; and provided, further, that upon the
request of the Holder hereof, if the principal amount of this Note is
$10,000,000 or more, such Holder will be entitled to receive interest payments
by wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the office or agency of the
Company maintained by the Company for such purpose not less than 15 days prior
to such Interest Payment Date.
Unless the certificate of authentication hereon has been executed by
or on behalf of Texas Commerce Bank National Association, the Trustee for this
Note under the Indenture, or its successor thereunder, by the manual signature
of one of its authorized officers, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized series of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes (the "Notes"). The Notes are issued and to be issued under
an Indenture dated as of December 2, 1994 (herein called the "Indenture")
between the Company and Texas Commerce Bank National Association, to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Company, the
Trustee and the Holders of the Notes and the terms upon which the Notes are
to be authenticated and delivered. The terms of individual Notes may vary with
respect to interest rates or interest rate formulas, issue dates, maturity,
redemption, repayment, currency of payment and otherwise.
Except as otherwise provided in the Indenture, the Notes will be
issued in global form only registered in the name of The Depository Trust
Company (the "Depositary") or its nominee. The Notes will not be issued in
definitive form, except as otherwise provided in the Indenture, and ownership
of the Notes shall be maintained in book entry form by the Depositary for the
accounts of participating organizations of the Depositary.
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs,
is not redeemable or repayable prior to the Stated Maturity Date.
If so provided above,this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set forth above, this Note may not be redeemed prior
to the Stated Maturity Date. On and after the Initial Redemption Date, if any,
this Note may be redeemed at any time in whole or from time to time in part in
increments of $1,000 (provided that any remaining principal hereof shall be at
least $1,000) at the option of the Company at the applicable Redemption Price
(as defined below), together with accrued interest hereon at the applicable
rate payable to the date of redemption (each such date, a "Redemption Date"),
on written notice given not
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more than 60 nor less than 30 days prior to the Redemption Date. In the event
of redemption of this Note in part only, a new Note for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the surrender
hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified above hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
Unless otherwise specified in an Addendum attached hereto, this Note
is not subject to repayment at the option of the Holder. If this Note shall be
repayable at the option of the Holder as specified in an attached Addendum
hereto, unless otherwise specified in such Addendum, on any Optional Repayment
Date, this Note shall be repayable in whole or in part in increments of $1,000
(provided that any remaining principal hereof shall be at least $1,000) at the
option of the Holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the date of
repayment. If specified as repayable at the option of the Holder in such
Addendum, for this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Paying Agent at its principal
office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
related Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable.
Unless otherwise specified above, the "Interest Payment Dates" for the
Fixed Rate Notes will be April 15 and October 15 of each year and the Maturity
Date. Unless otherwise specified above, interest on Fixed Rate Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date or the Maturity Date of a Fixed Rate Note
falls on a day that is not a Business Day, the required payment of principal,
premium, if any, and/or interest will be made on the next succeeding Business
Day as if made on the date such payment was due, and no interest will accrue on
such payment for the period from and after such Interest Payment Date or the
Maturity Date, as the case may be, to the date of such payment on the next
succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close.
Notwithstanding anything to the contrary contained herein or in the
Indenture, for purposes of determining the rights of a Holder of a Note for
which the principal thereof is determined by reference to the price or prices
of specified commodities or stocks, interest rate indices, interest or exchange
rate swap indices, the exchange rate of one or more
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specified currencies (including a composite currency such as the European
Currency Unit) relative to an indexed currency or such other price, exchange
rate or other financial index or indices as specified above (an "Indexed
Note"), in respect of voting for or against amendments to the Indenture and
modifications and the waiver of rights thereunder, the principal amount of any
such Indexed Note shall be deemed to be equal to the face amount thereof upon
issuance. The method for determining the amount of principal payable at
Maturity on an Indexed Note will be specified in an attached Addendum.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its payment dates or any other matter
relating hereto may be modified as specified in an Addendum relating hereto if
so specified above, and references herein to "as specified above" or similar
language of like import shall also be references to any such Addendum.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the a majority of the Holders of the aggregate principal amount of the
Outstanding Securities of each series affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all the Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or by its attorney duly authorized in writing,
and thereupon one or more new Notes of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
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The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
(FACSIMILE OF SEAL) KIRBY CORPORATION
By:___________________________________
Title:________________________________
Attest:
By:_____________________________________
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CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt
Securities issued under the
within mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
By _______________________________
As Authenticating Agent
By _______________________________
Authorized Signatory
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at ____________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Paying Agent must receive at its
principal office, or at such other place or places of which the Company shall
from time to time notify the Holder of this Note, not more than 60 nor less
than 30 days prior to an Optional Repayment Date, if any, shown on the face of
this Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$_________________________________ ____________________________________
NOTICE: The signature on this
Date:_____________________________ Option to Elect Repayment must
correspond with the name as written upon
the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
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ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto (insert Taxpayer Identification No.)
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code
of assignee)
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
attorney to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated: _________________________ ____________________________________
NOTICE: The signature of the registered Holder to this assignment
must correspond with the name as written upon the face of the within
instrument in every particular, without alteration or enlargement or
any change whatsoever.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN ACT--................Custodian.............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
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