EXHIBIT 4.5
KIRBY CORPORATION
2000 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purpose. The purpose of this Plan is to advance the interests of
Kirby Corporation, a Nevada corporation (the "Company"), by providing an
additional incentive to attract and retain qualified and competent directors,
upon whose efforts and judgment the success of the Company is largely dependent,
through the encouragement of stock ownership in the Company by such persons.
2. Definitions. As used herein, the following terms shall have the
meaning indicated:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" means the occurrence of any of the following
events:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended) becomes the
beneficial owner, directly or indirectly, of voting securities representing
thirty percent (30%) or more of the combined voting power of the Company's then
outstanding voting securities or, if a person is the beneficial owner, directly
or indirectly, of voting securities representing thirty percent (30%) or more of
the combined voting power of the Company's outstanding voting securities as of
the date the particular Option is granted, such person becomes the beneficial
owner, directly or indirectly, of additional voting securities representing ten
percent (10%) or more of the combined voting power of the Company's then
outstanding voting securities;
(ii) During any period of twelve (12) months, individuals who
at the beginning of such period constitute the Board cease for any reason to
constitute a majority of the Directors unless the election, or the nomination
for election by the Company's stockholders, of each new Director was approved by
a vote of at least a majority of the Directors then still in office who were
Directors at the beginning of the period;
(iii) The stockholders of the Company approve (A) any
consolidation or merger of the Company or any Subsidiary that results in the
holders of the Company's voting securities immediately prior to the
consolidation or merger having (directly or indirectly) less than a majority
ownership interest in the outstanding voting securities of the surviving entity
immediately after the consolidation or merger, (B) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all of the assets of the Company or (C) any plan or proposal
for the liquidation or dissolution of the Company;
(iv) The stockholders of the Company accept a share exchange,
with the result that stockholders of the Company immediately before such share
exchange do not own, immediately following such share exchange, at least a
majority of the voting securities of the entity resulting from such share
exchange in substantially the same proportion as their ownership of the voting
securities outstanding immediately before such share exchange; or
(v) Any tender or exchange offer is made to acquire thirty
percent (30%) or more of the voting securities of the Company, other than an
offer made by the Company, and shares are acquired pursuant to that offer.
For purposes of this definition, the term "voting securities" means equity
securities, or securities that are convertible or exchangeable into equity
securities, that have the right to vote generally in the election of Directors.
(c) "Committee" means the Compensation Committee, if any, appointed by
the Board.
(d) "Compensation Plan" means the written plan or program in effect
from time to time, as approved by the Board, which sets forth the compensation
to be paid to Eligible Directors.
(e) "Date of Grant" means the date on which an Option is granted to an
Eligible Director.
(f) "Director" means a member of the Board.
(g) "Eligible Director" means a Director who is not an employee of the
Company or a Subsidiary.
(h) "Fair Market Value" of a Share means the mean of the high and low
sales price on the New York Stock Exchange on the day of reference as quoted in
any newspaper of general circulation or, if the Shares shall not have been
traded on such exchange on such date, the mean of the high and low sales price
on such exchange on the next day prior thereto on which the Shares were so
traded, as quoted in any newspaper of general circulation. If the Shares are not
listed for trading on the New York Stock Exchange, the Fair Market Value on the
date of reference shall be determined by any fair and reasonable means
prescribed by the Committee.
(i) "Nonincentive Stock Option" means an option that is not an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended.
(j) "Option" means any option granted under this Plan.
(k) "Optionee" means a person to whom a stock option is granted under
this Plan or any successor to the rights of such person under this Plan by
reason of the death of such person.
(l) "Payment Date" means the last day of a calendar quarter.
(m) "Plan" means this 2000 Nonemployee Director Stock Option Plan for
Kirby Corporation.
(n) "Share" means a share of the common stock, par value ten cents
($0.10) per share, of the Company.
(o) "Subsidiary" means any corporation (other than the Company) in any
unbroken chain of corporations beginning with the Company if, at the time of the
granting of the Option, each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in such
chain.
3. Total Shares. The maximum number of Shares to be issued pursuant to
Options under this Plan shall be THREE HUNDRED THOUSAND (300,000) Shares from
Shares held in the Company's treasury. If any Option granted under the Plan
shall terminate, expire or be cancelled or surrendered as to any Shares, new
Options may thereafter be granted covering such Shares.
4. Automatic Grant of Options. Options shall automatically be granted
to Eligible Directors as provided in Sections 5, 6 and 7. All Options shall be
Nonincentive Stock Options. Each Option shall be evidenced by an option
agreement containing such terms deemed necessary or desirable by the Committee
that are not inconsistent with the Plan or any applicable law. Neither the Plan
nor any Option shall confer upon any person any right to continue to serve as a
Director.
5. Automatic One-Time Grant. Each Eligible Director shall automatically
be granted an Option for FIVE THOUSAND (5,000) Shares on the date of such
Eligible Director's first election as a Director.
6. Automatic Annual Grants. Immediately after each annual meeting of
stockholders of the Company, each Eligible Director shall automatically be
granted an Option for THREE THOUSAND (3,000) Shares.
7. Election to Receive Options. If the Compensation Plan permits
Eligible Directors to elect to receive an Option in lieu of all or part of
Director fees otherwise payable in cash, each Eligible Director who has properly
and timely made such election as provided in the Compensation Plan shall
automatically be granted an Option for a number of Shares equal to (i) the
amount of the fee such Eligible Director elects to receive in the form of an
Option divided by (ii) the Fair Market Value of a Share on the Date of Grant
multiplied by (iii) 3, with the result rounded to the nearest whole Share.
8. Option Price. The option price per Share for any Option shall be the
Fair Market Value on the Date of Grant.
9. Date of Grant.
(a) The Date of Grant of an Option granted under Section 5 shall be the
date of the Eligible Director's first election as a Director.
(b) The Date of Grant of an Option granted under Section 6 shall be the
date of the annual meeting of stockholders of the Company.
(c) The Date of Grant of an Option granted under Section 7 shall be the
date by which the Eligible Director must make an election pursuant to the
Compensation Plan to receive the Option in lieu of cash fees.
10. Vesting.
(a) An Option granted under Section 5 shall be exercisable on or after
the Date of Grant.
(b) An Option granted under Section 6 shall become exercisable six
months after the Date of Grant.
(c) An Option granted under Section 7 shall become exercisable on the
Payment Date(s) following the Date of Grant as provided in this Section 10(c).
The number of Shares as to which an Option granted under Section 7 will become
exercisable on each Payment Date after the Date of Grant shall equal the number
of Shares subject to the Option divided by the number of Payment Dates occurring
after the Date of Grant and before the first anniversary of the most recent
annual meeting of stockholders of the Company.
(d) Notwithstanding the other provisions of this Section 10, (i) an
Option shall only become exercisable as provided in this Section 10 if the
Optionee is a Director at the time the Option would otherwise become exercisable
and (ii) upon the occurrence of a Change in Control, all Options outstanding at
the time of the Change in Control shall become immediately exercisable.
11. Term of Options. The portion of an Option that is exercisable shall
automatically and without notice terminate upon the earlier of (a) one (1) year
after the Optionee ceases to be a Director for any reason or (b) ten (10) years
after the Date of Grant of the Option. The portion of an Option that is not
exercisable shall automatically and without notice terminate at the time the
Optionee ceases to be a Director for any reason.
12. Exercise of Options. Any Option may be exercised in whole or in
part to the extent exercisable in accordance with Section 10. An Option shall be
deemed exercised when (i) the Company has received written notice of such
exercise in accordance with the terms of the Option and (ii) full payment of the
aggregate option price of the Shares as to which the Option is exercised has
been made. Unless further limited by the Committee in any Option, the option
price of any Shares purchased shall be paid solely in cash, by certified or
cashier's check, by money order, by personal check or with Shares owned by the
Optionee for at least six months, or by a combination of the foregoing. If the
option price is paid in whole or in part with Shares, the value of the Shares
surrendered shall be their Fair Market Value on the date received by the
Company.
13. Adjustment of Shares.
(a) If at any time while the Plan is in effect or unexercised Options
are outstanding, there shall be any increase or decrease in the number of issued
and outstanding Shares through the declaration of a stock dividend or through
any recapitalization resulting in a stock split, combination or exchange of
Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number
of Shares then subject to being optioned under the Plan, and the numbers of
Options to be granted under Sections 5, 6 and 7, so that the same proportion of
the Company's issued and outstanding Shares shall continue to be subject to
being so optioned, and
(ii) appropriate adjustment shall be made in the number of
Shares and the exercise price per Share thereof then subject to any outstanding
Option, so that the same proportion of the Company's issued and outstanding
Shares shall remain subject to purchase at the same aggregate exercise price.
(b) In the event of a merger, consolidation or other reorganization of
the Company in which the Company is not the surviving entity, the Board or the
Committee may provide for any or all of the following alternatives: (i) for
Options to become immediately exercisable, (ii) for exercisable Options to be
cancelled immediately prior to such transaction, (iii) for the assumption by the
surviving entity of the Plan and the Options, with appropriate adjustments in
the number and kind of shares and exercise prices or (iv) for payment in cash or
stock in lieu of and in complete satisfaction of Options.
(c) Any fractional shares resulting from any adjustment under this
Section 13 shall be disregarded and each Option shall cover only the number of
full shares resulting from such adjustment.
(d) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of or exercise price of Shares then subject
to outstanding Options granted under the Plan.
(e) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
14. Transferability of Options. Each Option shall provide that such
Option shall not be transferable by the Optionee otherwise than by will or the
laws of descent and distribution and that so long as an Optionee lives, only
such Optionee or his guardian or legal representative shall have the right to
exercise such Option.
15. Issuance of Shares. No person shall be, or have any of the rights
or privileges of, a stockholder of the Company with respect to any of the Shares
subject to any Option unless and until certificates representing such Shares
shall have been issued and delivered to such person. As a condition of any
transfer of the certificate for Shares, the Committee may obtain such agreements
or undertakings, if any, as it may deem necessary or advisable to assure
compliance with any provision of the Plan, any agreement or any law or
regulation including, but not limited to, the following:
(a) a representation, warranty or agreement by the Optionee to the
Company, at the time any Option is exercised, that the Optionee is acquiring the
Shares for investment and not with a view to, or for sale in connection with,
the distribution of any such Shares; and
(b) a representation, warranty or agreement to be bound by any legends
that are, in the opinion of the Committee, necessary or appropriate to comply
with the provisions of any securities law deemed by the Committee to be
applicable to the issuance of the Shares and are endorsed upon the Share
certificates.
16. Administration of the Plan. The Plan shall be administered by the
Committee. The Committee shall have the authority to interpret the provisions of
the Plan, to adopt such rules and regulations for carrying out the Plan as it
may deem advisable, to decide conclusively all questions arising with respect to
the Plan and to make all other determinations and take all other actions
necessary or desirable for the administration of the Plan. All decisions and
acts of the Committee shall be final and binding upon all affected Optionees. If
there is no Committee, the Board shall administer the Plan and in such case all
references to the Committee shall be deemed to be references to the Board.
17. Amendment. The Board may amend or modify the Plan in any respect at
any time.
18. Duration and Termination. The Plan shall be of unlimited duration.
The Board may suspend, discontinue or terminate the Plan at any time. Such
action shall not impair any of the rights of any holder of any Option
outstanding on the date of the Plan's suspension, discontinuance or termination
without the holder's written consent.
19. Effective Date. The Plan shall be effective as of September 26,
2000.
ADOPTED BY THE BOARD: September 26, 2000