Item 1.01 Entry into a Material Definitive Agreement.
On February 3, 2023, Kirby Corporation (the "Company") entered into a
Cooperation Agreement (the "Cooperation Agreement") with JCP Investment
Management, LLC and certain of its affiliates and associates (collectively,
"JCP") regarding matters relating to the election of members of the Company's
Board of Directors (the "Board") and certain other matters. The following
description of the Cooperation Agreement does not purport to be complete and is
qualified in its entirety by reference to the Cooperation Agreement, a copy of
which is attached as Exhibit 10.1 hereto and is incorporated herein by
reference.
Pursuant to the Cooperation Agreement, the Company agreed, among other things,
to appoint Rocky B. Dewbre to the Board as a Class II director with a term
expiring at the Company's 2024 annual meeting of stockholders (the "2024 Annual
Meeting").
During the period beginning on the date of the Cooperation Agreement and ending
on the earlier of (a) thirty (30) days prior to the deadline under the Company's
Bylaws for director nominations and stockholder proposals for the 2024 Annual
Meeting and (b) one hundred and twenty (120) days prior to the first anniversary
of the 2023 annual meeting of stockholders (the "Standstill Period"), JCP has
agreed to certain standstill provisions, including, among other things, agreeing
not to (i) acquire beneficial ownership in excess of four-and-a-half times
(4.5x) the percentage of the Company's outstanding common stock represented by
JCP's current aggregate beneficial ownership, (ii) seek to submit nominations in
furtherance of a contested solicitation for the election or removal of directors
with respect to the Company, (iii) submit any stockholder proposal or any notice
of nomination or other business for consideration, (iv) nominate any candidate
for election to the Board or (v) solicit any proxy or written consent of
stockholders or conduct any other type of referendum with respect to, or from
the holders of, the voting securities of the Company.
Pursuant to the Cooperation Agreement, JCP has also agreed during the Standstill
Period to vote its voting securities of the Company at any annual or special
meeting of stockholders in accordance with the Board's recommendations with
respect to (i) the election, removal or replacement of directors, (ii) the
ratification of the appointment of the Company's independent registered public
accounting firm, (iii) the Company's "say-on-pay" proposal and (iv) any other
proposal to be submitted to the stockholders of the Company by either the
Company or any stockholder of the Company; provided, however, that (i) if
Institutional Shareholder Services Inc. ("ISS") recommends otherwise with
respect to any proposals (other than as related to the election, removal or
replacement of directors), JCP shall be permitted to vote in accordance with
ISS's recommendation and (ii) that JCP shall be permitted to vote in its sole
discretion in connection with an Extraordinary Transaction (as defined in the
Cooperation Agreement). The Cooperation Agreement also includes a mutual
non-disparagement provision.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information set forth in Item 1.01 is incorporated into this Item 5.02 by
reference.
On February 3, 2023, the Company increased the size of the Board from 10 to 11
directors and elected Mr. Dewbre to fill the vacancy, to serve as a Class II
director until the 2024 Annual Meeting. The Board determined that Mr. Dewbre
will serve as an independent director. At this time, Mr. Dewbre has not been
appointed to serve on a committee of the Board. The Board will take action to
approve Mr. Dewbre's director compensation at its next meeting, but it is
anticipated that Mr. Dewbre will receive the standard compensation for directors
under Kirby's Nonemployee Director Compensation Program, prorated for his
current term of office, including an automatic grant of approximately $41,875 in
value of restricted shares of Kirby common stock and a prorated annual director
fee of $18,750 payable quarterly. The shares of restricted stock vest six months
after the date of grant.
As of the date hereof, there are no transactions between Mr. Dewbre and the
Company that would be reportable under Item 404(a) of Regulation S-K.
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Item 8.01 Other Events.
On February 3, 2023, the Company issued a press release announcing the
Cooperation Agreement, a copy of which is attached as Exhibit 99.1 hereto and is
incorporated by reference.
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