As filed with the Securities and Exchange Commission on July 31, 2000
Registration No. 333-
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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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2000 DIRECTOR STOCK OPTION PLAN FOR KIRBY CORPORATION
(Full title of the plan)
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J. H. Pyne Copy to: Thomas G. Adler, Esq.
President 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
Title of Amount to offering price aggregate Amount of
securities to be registered be registered (1) per share (2)(3) offering price (2)(3) registration fee (3)
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Common Stock, par value 100,000 $22.125 $2,197,187.50 $580.06
$.10 per share
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(1) Consists of 100,000 shares of common stock reserved for issuance to
directors of Kirby Corporation (the "Corporation") pursuant to the 2000 Director
Stock Option Plan for Kirby Corporation (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 the Corporation's Common
Stock (the "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 95,000
shares of Common Stock reserved for issuance under the Plan, but not subject to
outstanding stock options issued under the Plan, at a price of $22.125, which is
the average of the highest and lowest price per share of Common Stock on the New
York Stock Exchange on July 28, 2000; and (ii) 5,000 shares of Common Stock
reserved for issuance and subject to stock options already granted under the
Plan at an exercise price of $19.0625 per share.
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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
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, 1999 filed with the Commission;
(2) the Corporation's Annual Report on Form 11-K for the fiscal year ended
December 31, 1999, filed with the Commission;
(3) the Corporation's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000, filed with the Commission;
(4) the Corporation's Current Report on Form 8-K filed with the Commission
on October 14, 1999;
(5) the Corporation's Current Report on Form 8-K filed with the Commission
on July 20, 2000; and
(6) 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 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.
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*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.
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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 Company 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 registrant 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
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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 thes articles of incorporation or any bylaws,
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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:
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(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 Norman W.
Nolen, Mark R. Buese, Steven P. Valerius, Dorman L. Strahan,
Jack M. Sims, Connie C. Power, Howard G. Runser, G. Stephen
Holcomb and Thomas G. Adler, and certain officers of
subsidiaries of the Corporation, that provide for the
indemnification of such individuals for certain liabilities
incurred in such capacity.
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Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this registration
statement.
Exhibit Description of Exhibit
4.1 Restated Articles of Incorporation of Kirby Exploration Company,
Inc., as amended (incorporated by reference from Exhibit 3.1 to
the Corporation's Registration Statement on Form S-3, Reg. No.
33-30832, filed with the Commission on August 30, 1989).
4.2 Certificate of Amendment of Restated Articles of Incorporation of
the Corporation (incorporated by reference from Exhibit 3.2 to
the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1990).
4.3* 2000 Director Stock Option Plan for Kirby Corporation
4.4* Form of Nonincentive Stock Option Agreement, Kirby Corporation
2000 Director Stock Option 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
23.3* Consent of Deloitte & Touche LLP
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* Filed herewith.
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Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) 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.
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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 July 31, 2000.
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 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 included:
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Signature Capacity Date
/s/ C. Berdon Lawrence Chairman of the Board and July 31, 2000
-------------------------------------------------- Director of the Company
C. Berdon Lawrence
/s/ J. H. Pyne President, Director and Principal July 31, 2000
------------------------------------------------- Executive Officer of the Company
J. H. Pyne
/s/ Norman W. Nolen Executive Vice President, July 31, 2000
--------------------------------------------------- Treasurer, Assistant Secretary and
Norman W. Nolen Principal Financial Officer of the
Company
/s/ G. Stephen Holcomb Vice President, Controller, July 31, 2000
--------------------------------------------------- Assistant Secretary and Principal
G. Stephen Holcomb Accounting Officer of the
Company
/s/ Philip J. Burguieres Director of the Company July 31, 2000
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Philip J. Burguieres
/s/ C. Sean Day Director of the Company July 31, 2000
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C. Sean Day
/s/ Bob G. Gower Director of the Company July 31, 2000
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Bob G. Gower
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/s/ William M. Lamont, Jr. Director of the Company July 31, 2000
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William M. Lamont, Jr.
/s/ George A. Peterkin, Jr. Director of the Company July 31, 2000
---------------------------------------------------
George A. Peterkin, Jr.
/s/ Robert G. Stone, Jr. Director of the Company July 31, 2000
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Robert G. Stone, Jr.
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