As filed with the Securities and Exchange Commission on April 28, 2004
Registration No. 333-72592
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
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)
_________________________________
2000 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
__________________________________
Joseph 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)
EXPLANATORY NOTE
On November 1, 2001, the registrant filed with the Securities and
Exchange Commission ("SEC") a Registration Statement on Form S-8, No. 333-72592,
pertaining to its 2000 Nonemployee Director Stock Option Plan (the "Plan"),
which provided for the granting of stock options to eligible participants under
the Plan. At its Annual Meeting of Stockholders held on April 27, 2004, the
shareholders of the registrant approved an amendment to the Plan which permits
the registrant to award restricted stock awards to eligible participants under
the Plan in addition to stock options. The registrant is filing this
Post-Effective Amendment to file the Plan, as amended, which is attached hereto
as Exhibit 4.4. No additional securities are being registered.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
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, 2003;
(2) the Corporation's Current Report on Form 8-K filed with
the Commission on January 29, 2004; and
(3) 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.
--------
*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.
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.
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, Joseph 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.
(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* 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 the
Company's Registration Statement on Form S-8 (No. 333-72592))
____________________
* Filed herewith.
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 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
post-effective amendment no. 1 to registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Houston,
State of Texas, on April 27, 2004.
KIRBY CORPORATION
By: /s/ Joseph H. Pyne
------------------------------------
Joseph H. Pyne
President and Chief Executive
Officer
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/ * Chairman of the Board and Director April 27, 2004
-------------------------------- of the Company
C. Berdon Lawrence
/s/ Joseph H. Pyne President, Director and Chief April 27, 2004
-------------------------------- Executive Officer of the Company
Joseph H. Pyne (principal executive officer)
/s/ * Executive Vice President, April 27, 2004
-------------------------------- Treasurer and Chief Financial
Norman W. Nolen Officer of the Company (principal
financial officer)
/s/ Ronald A. Dragg
------------------------------- Controller (principal accounting April 27, 2004
Ronald A. Dragg officer)
/s/ * Director of the Company April 27, 2004
-------------------------------
C. Sean Day
/s/ * Director of the Company April 27, 2004
-------------------------------
Bob G. Gower
------------------------------- Director of the Company April 27, 2004
Walter E. Johnson
/s/ * Director of the Company April 27, 2004
-------------------------------
William M. Lamont, Jr.
/s/ * Director of the Company April 27, 2004
-------------------------------
George A. Peterkin, Jr.
/s/ * Director of the Company April 27, 2004
-------------------------------
Robert G. Stone, Jr.
/s/ *
------------------------------- Director of the Company April 27, 2004
Richard C. Webb
*By: /s/ Joseph H. Pyne
---------------------------
Joseph H. Pyne
Attorney-in-fact
EXHIBIT INDEX
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* 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 the
Company's Registration Statement on Form S-8 (No. 333-72592))
____________________
* Filed herewith.