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1994 EMPLOYEE STOCK OPTION PLAN
FOR
KIRBY CORPORATION
Section 1. Purpose. The purpose of this 1994 Employee Stock Option Plan for
Kirby Corporation 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 employees for the Company and its subsidiaries,
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.
Section 2. Definitions. As used herein, the following terms shall have the
meaning indicated:
(a) "Act" shall mean the Securities Exchange Act of 1934, as amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Business Day" shall mean (i) if the Shares trade on a national
exchange, any day that the national exchange on which the Shares trade is
open or (ii) if the Shares do not trade on a national exchange, any day
that commercial banks in the City of New York are open.
(d) "Commission" shall mean the Securities and Exchange Commission.
(e) "Committee" shall mean the Compensation Committee of the Board or
other committee, if any, appointed by the Board pursuant to Section 14
hereof.
(f) "Company" shall mean Kirby Corporation, a Nevada corporation.
(g) "Date of Grant" shall mean the date on which the Committee takes
formal action to grant an Option to an Eligible Person, provided it is
followed, as soon as reasonably possible, by written notice to the Eligible
Person of the grant.
(h) "Director" shall mean a member of the Board.
(i) "Disinterested Person" shall mean a person who, at the time he or
she acts on the granting of any Option is not eligible, and within one year
prior thereto has not been eligible, to receive Shares, stock options or
stock appreciation rights under (i) this Plan or (ii) any other plan of the
Company or any of its affiliates in which administrators of such plan use
discretion in granting stock, stock options, stock appreciation rights or
any other rights to such person. Persons who are eligible to receive stock
options under the 1989 Director Stock Option Plan of Kirby Exploration
Company, Inc. or the 1994 Director Stock Option Plan of Kirby Corporation,
are deemed "Disinterested Persons" for purposes of this Plan.
(j) "Eligible Person(s)" shall mean those persons who are Employees or
members of the Board of Directors of any Subsidiary, but excluding
Directors who are not Employees.
(k) "Employee(s)" shall mean those persons who are employees of the
Company or who are employees of any Subsidiary.
(l) "Fair Market Value" shall mean:
(i) If Shares are listed on a national securities exchange at the
date of determining the Fair Market Value,
(A) The mean of the high and low sales price on such exchange on
the date of reference as reported in any newspaper of general
circulation, or
(B) If the Shares shall not have 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
reported in any newspaper of general circulation; or
(ii) If Shares shall not be listed as provided in Subsection
2(l)(i), a value determined by any fair and reasonable means prescribed
by the Committee.
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(m) "Incentive Stock Option" shall mean an option that is an incentive
stock option as defined in Section 422 of the Internal Revenue Code.
(n) "Internal Revenue Code" or "Code" shall mean the Internal Revenue
Code of 1986, as it now exists or may be amended from time to time.
(o) "Nonqualified Stock Option" or "Nonincentive Stock Option" shall
mean an option that is not an incentive stock option as defined in Section
422 of the Internal Revenue Code.
(p) "Option" (when capitalized) shall mean any option granted under
this Plan.
(q) "Optionee" shall mean a person to whom an Option is granted or any
successor to the rights of such Option under this Plan by reason of the
death of such person.
(r) "Plan" shall mean this 1994 Employee Stock Option Plan for Kirby
Corporation.
(s) "Share(s)" shall mean a share or shares of the Common Stock , par
value ten cents ($0.10) per share, of the Company.
(t) "Subsidiary" shall mean 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.
Section 3. Shares and Options.
(a) The Committee may grant to Eligible Persons from time to time Options
to purchase an aggregate of up to one million (1,000,000) Shares from Shares
held in the Company's treasury or from authorized and unissued Shares. If any
Option granted under the Plan shall terminate, expire, or be canceled or
surrendered as to any Shares, new Options may thereafter be granted covering
such Shares. An Option granted hereunder shall be either an Incentive Stock
Option or a Nonqualified Stock Option as determined by the Committee at the Date
of Grant of such Option and shall clearly state whether it is an Incentive Stock
Option or a Nonqualified Stock Option. Incentive Stock Options may only be
granted to persons who are employees of the Company or a Subsidiary.
(b) The aggregate Fair Market Value (determined at the Date of Grant of the
Option) of the Shares with respect to which any Incentive Stock Option is
exercisable for the first time by an Optionee during any calendar year under the
Plan and all such plans of the Company and any parent and subsidiary of the
Company (as defined in Section 425 of the Code) shall not exceed $100,000.
Section 4. Conditions for Grant of Options.
(a) Each Option shall be evidenced by an option agreement that may contain
any term deemed necessary or desirable by the Committee, provided such terms are
not inconsistent with this Plan or any applicable law. Optionees shall be those
persons selected by the Committee from Eligible Persons. Any person who files
with the Committee, in a form satisfactory to the Committee, a written waiver of
eligibility to receive any Option under this Plan shall not be eligible to
receive any Option under this Plan for the duration of such waiver.
(b) In granting Options, the Committee shall take into consideration the
contribution the person has made or may make to the success of the Company or
its Subsidiaries and such other factors as the Committee shall determine. The
Committee shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may from time to time
in granting Options under the Plan prescribe such other terms and conditions
concerning such Options as it deems appropriate, including, without limitation,
relating an Option to achievement of specific goals established by the Committee
or the continued employment of the Optionee for a specified period of time,
provided that such terms and conditions are not more favorable to an Optionee
than those expressly permitted herein.
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(c) The Committee in its sole discretion shall determine in each case
whether periods of military or government service shall constitute a
continuation of employment for the purposes of this Plan or any Option.
Section 5. Exercise Price. The exercise price per Share of any Option shall
be any price determined by the Committee; provided, however, that the exercise
price for any Incentive Stock Option shall not be less than one hundred percent
(100%) of the Fair Market Value per Share on the Date of Grant.
Section 6. Exercise of Options. 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, (ii) full payment of the aggregate exercise price of
the Shares as to which the Option is exercised has been made, and (iii)
arrangements that are satisfactory to the Committee in its sole discretion have
been made for the Optionee's payment to the Company of the amount, if any, that
the Committee determines to be necessary for the Company or Subsidiary employing
the Optionee to withhold in accordance with applicable federal or state income
tax withholding requirements. Unless further limited by the Committee in any
Option, the Exercise 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 (but with Shares only if permitted by an Option agreement or otherwise
permitted by the Committee in its sole discretion at the time of exercise and
provided that if the Optionee acquired such stock to be surrendered directly or
indirectly from the Company, he shall have owned such stock for six months prior
to using such stock to exercise an Option) or by a combination of the above. If
the exercise 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.
Section 7. Exercisability of Options.
(a) Any Option shall become exercisable in such amounts and at such
intervals as the Committee shall provide in any Option, except as otherwise
provided in this Section 7; provided in each case that the Option has not
expired on the date of exercise.
(b) The expiration date of an Option shall be determined by the Committee
at the Date of Grant, but in no event shall an Option be exercisable after the
expiration of ten (10) years from the Date of Grant.
(c) An Option shall not be exercisable prior to the six-month anniversary
of its Date of Grant.
(d) The Committee may in its sole discretion accelerate the date on which
any Option may be exercised.
(e) On the date thirty (30) days prior to any occurrence described in
Subsections (7)(e)(i), (ii) or (iii), but only where such anticipated occurrence
actually takes place, notwithstanding the exercise schedule in an Option, each
Option shall immediately become exercisable in full where there (i) is any
transaction (which shall include a series of transactions occurring within 60
days or occurring pursuant to a plan) that has the result that shareholders of
the Company immediately before such transaction cease to own at least 51% of (x)
the voting stock of the Company or (y) of any entity that results from the
participation of the Company in a reorganization, consolidation, merger,
liquidation or any other form of corporate transaction; (ii) is a merger,
consolidation, reorganization, liquidation or dissolution in which the Company
does not survive; (iii) is a sale, lease, exchange or other disposition of all
or substantially all the property and assets of the Company.
(f) Notwithstanding any provisions hereof to the contrary, if any Option is
accelerated under Subsection 7(d) or (e), the portion of such Option that may be
exercised to acquire Shares that the Optionee would not be entitled to acquire
but for such acceleration (the "Acceleration Shares"), is limited to that number
of Acceleration Shares that can be acquired without causing the Optionee to have
an "excess parachute payment" as determined under Section 280G of the Internal
Revenue Code, determined by taking into account all of the Optionee's "parachute
payments" determined under Section 280G of the Code. If as a result of this
Subsection 7(f), the Optionee may not acquire all of the Acceleration Shares,
then the Acceleration Shares that the Optionee may acquire shall be the last
shares that the Optionee would have been entitled to acquire had this Option not
been accelerated.
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Section 8. Termination of Option Period.
(a) Unless otherwise provided in any Option, the unexercised portion of an
Option shall automatically and without notice terminate and become null and void
at the time of the earliest to occur of the following:
(i) except as provided in Subsection 8(a)(iii), thirty (30) days after
the date that Optionee ceases to be employed by the Company or a Subsidiary
regardless of the reason therefor other than as a result of such
termination by reason of (x) death, (y) mental or physical disability of
Optionee as determined by a medical doctor satisfactory to the Committee or
(z) termination of Optionee's employment with the Company or a Subsidiary
for cause;
(ii) except as provided in Subsection 8(a)(iii), one (1) year after
the date on which the Optionee suffers a mental or physical disability as
determined by a medical doctor satisfactory to the Committee;
(iii) (y) one (1) year after the date that Optionee ceases to be
employed by the Company by reason of death of the Optionee, or (z) six (6)
months after the date on which the Optionee shall die, if the Optionee's
death shall occur during the thirty-day period described in Subsection
8(a)(i) or the one-year period described in Subsection 8(a)(ii);
(iv) the date that Optionee ceases to be employed by the Company or a
Subsidiary as a result of a termination for cause;
(v) with respect to Options held by a person who is a member of the
Board of Directors of a Subsidiary who is not also an Employee, thirty (30)
days after the date that Optionee ceases to be a member of such Board of
Directors; provided that if Optionee ceases to be a member of such Board of
Directors because of the death of the Optionee, or if Optionee shall die
within thirty (30) days after the date that Optionee ceases to be a member
of such Board of Directors, such Option shall terminate one (1) year after
the date on which Optionee shall cease to be a member of such Board of
Directors; and
(vi) the tenth (10th) anniversary of the Date of Grant of the Option.
(b) If provided in an Option, the Committee in its sole discretion may, by
giving written notice (a "Cancellation Notice") cancel, effective upon the date
of the consummation of any of the transactions described in Subsection 7(e), all
or any portion of such Option that remains unexercised on such date. Such
Cancellation Notice shall be given a reasonable period of time (but not less
than 15 days) prior to the proposed date of such cancellation, and may be given
either before or after shareholder approval of such transaction.
Section 9. 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-up, 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, 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 outstanding Options,
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) The Committee may change the terms of Options outstanding under this
Plan, with respect to the exercise price or the number of Shares subject to the
Options, or both, when, in the Committee's sole discretion, such adjustments
become appropriate by reason of any corporate transaction.
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(c) 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 Shares reserved for issuance under the
Plan or the number of or exercise price of Shares then subject to outstanding
Options granted under the Plan.
(d) 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 (1) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (2) any merger or consolidation of
the Company; (3) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (4) the dissolution or liquidation of the Company; (5) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (6) any other corporate act or proceeding, whether of a similar
character or otherwise.
Section 10. Transferability of Options. Each Option shall provide that such
Option shall not be transferrable 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.
Section 11. 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 an 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, the agreement evidencing the
Option or any law or regulation including, but not limited to, the following:
(i) A representation, warranty or agreement by the Optionee to the
Company at the time any Option is exercised that he or she is acquiring the
Shares to be issued to him or her for investment and not with a view to, or
for sale in connection with, the distribution of any such Shares;
and
(ii) 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 laws deemed by the
Committee to be applicable to the issuance of the Shares and are endorsed
upon the Share certificates.
Section 12. Options for 10% Shareholder. Notwithstanding any other
provisions of the Plan to the contrary, an Incentive Stock Option shall not be
granted to any person owning directly (or indirectly through attribution under
Section 425(d) of the Code) at the Date of Grant, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company (or of
its parent or subsidiary [as defined in Section 425 of the Internal Revenue
Code] at the Date of Grant) unless the exercise price of such Incentive Stock
Option is at least 110% of the Fair Market Value of the Shares subject to such
Incentive Stock Option on the Date of Grant, and the period during which the
Incentive Stock Option may be exercised does not exceed five (5) years from the
Date of Grant.
Section 13. Nonqualified Stock Options. Nonqualified Stock Options may be
granted hereunder and shall be subject to all terms and provisions hereof except
that each such Nonqualified Stock Option (i) must be clearly designated as a
Nonqualified Stock Option; (ii) may be granted for Shares in excess of the
limits contained in Subsection 3(b) of this Plan; and (iii) shall not be subject
to Section 12 of this Plan. If both Incentive Stock Options and Nonqualified
Stock Options are granted to an Optionee, the right to exercise, to the full
extent thereof, Options of either type shall not be contingent in whole or in
part upon the exercise of, or failure to exercise, Options of the other type.
Persons who are members of the Board of Directors of a Subsidiary who are not
also Employees shall only be eligible to receive Nonqualified Stock Options.
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Section 14. Administration of the Plan.
(a) The Plan shall be administered by the Compensation Committee of the
Board or other committee thereof as appointed by the Board (herein called the
"Committee") consisting of not less than three (3) members of the Board all of
whom are Disinterested Persons. Any member of the Committee may be removed at
any time, with or without cause, by resolution of the Board and any vacancy
occurring in the membership of the Committee may be filled by appointment by the
Board.
(b) The Committee, from time to time, may adopt rules and regulations for
carrying out the purposes of the Plan. The determinations and the interpretation
and construction of any provision of the Plan by the Committee shall be final
and conclusive.
(c) Any and all decisions or determinations of the Committee shall be made
either (i) by a majority vote of the members of the Committee at a meeting or
(ii) without a meeting by the written approval of a majority of the members of
the Committee.
(d) Subject to the express provisions of this Plan, the Committee shall
have the authority, in its sole and absolute discretion (i) to adopt, amend, and
rescind administrative and interpretive rules and regulations relating to this
Plan or any Option; (ii) to construe the terms of this Plan or any Option; (iii)
as provided in Subsection 9(a), upon certain events to make appropriate
adjustments to the exercise price and number of Shares subject to this Plan and
Option; and (iv) to make all other determinations and perform all other acts
necessary or advisable for administering this Plan, including the delegation of
such ministerial acts and responsibilities as the Committee deems appropriate.
The Committee may correct any defect or supply any omission or reconcile any
inconsistency in this Plan or any Option in the manner and to the extent it
shall deem expedient to carry it into effect, and it shall be the sole and final
judge of such expediency. The Committee shall have full discretion to make all
determinations on the matters referred to in this Subsection 14(d), and such
determinations shall be final, binding and conclusive.
Section 15. Government Regulations.
This Plan, Options and the obligations of the Company to sell and deliver
Shares under any Options, shall be subject to all applicable laws, rules and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
Section 16. Miscellaneous.
(a) The proceeds received by the Company from the sale of Shares pursuant
to an Option shall be used for general corporate purposes.
(b) The grant of an Option shall be in addition to any other compensation
paid to the Optionee or other stock option plans of the Company or other
benefits with respect to Optionee's position with the Company or its
Subsidiaries. The grant of an Option shall not confer upon the Optionee the
right to continue as an Employee, or interfere in any way with the rights of the
Company to terminate his or her status as an Employee.
(c) Neither the members of the Board nor any member of the Committee shall
be liable for any act, omission, or determination taken or made in good faith
with respect to this Plan or any Option, and members of the Board and the
Committee shall, in addition to all other rights of indemnification and
reimbursement, be entitled to indemnification and reimbursement by the Company
in respect of any claim, loss, damage, or expense (including attorneys' fees,
the costs of settling any suit, provided such settlement is approved by
independent legal counsel selected by the Company, and amounts paid in
satisfaction of a judgment, except a judgment based on a finding of bad faith)
arising from such claim, loss, damage, or expense to the full extent permitted
by law and under any directors' and officers' liability or similar insurance
coverage that may from time to time be in effect.
(d) Any issuance or transfer of Shares to an Optionee, or to his legal
representative, heir, legatee, or distributee, in accordance with the provisions
of this Plan or the applicable Option, shall, to the extent thereof,
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be in full satisfaction of all claims of such persons under the Plan. The
Committee may require any Optionee, legal representative, heir, legatee or
distributee as a condition precedent to such payment or issuance or transfer of
Shares, to execute a release and receipt for such payment or issuance or
transfer of Shares in such form as it shall determine.
(e) Neither the Committee nor the Company guarantees Shares from loss or
depreciation.
(f) All expenses incident to the administration, termination, or protection
of this Plan or any Option, including, but not limited to, legal and accounting
fees, shall be paid by the Company; provided, however, the Company may recover
any and all damages, fees, expenses and costs arising out of any actions taken
by the Company to enforce its rights under this Plan or any Option.
(g) Records of the Company shall be conclusive for all purposes under this
Plan or any Option, unless determined by the Committee to be incorrect.
(h) The Company shall, upon request or as may be specifically required
under this Plan or any Option, furnish or cause to be furnished all of the
information or documentation that is necessary or required by the Committee to
perform its duties and functions under this Plan or any Option.
(i) The Company assumes no liability to any Optionee or his legal
representatives, heirs, legatees or distributees for any act of, or failure to
act on the part of, the Committee.
(j) Any action required of the Company relating or the Committee to this
Plan or any Option shall be by resolution of its Board, the Committee or by a
person authorized to act by resolution of the Board or the Committee.
(k) If any provision of this Plan or any Option is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions of this Plan or any Option, but such provision shall be
fully severable, and the Plan or Option, as applicable, shall be construed and
enforced as if the illegal or invalid provision had never been included in the
Plan or Option, as applicable.
(l) Whenever any notice is required or permitted under this Plan or any
Option, such notice must be in writing and personally delivered or sent by mail
or delivery by a nationally recognized courier service. Any notice required or
permitted to be delivered under this Plan or any Option shall be deemed to be
delivered on the date on which it is personally delivered, or, if mailed,
whether actually received or not, on the third Business Day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address that such person has
previously specified by written notice delivered in accordance with this
Subsection 16(l) or, if by courier, seventy-two (72) hours after it is sent,
addressed as described in this Subsection 16(l). The Company or the Optionee may
change, at any time and from time to time, by written notice to the other, the
address that it or he had previously specified for receiving notices. Until
changed in accordance with this Plan or any Option, the Company and the Optionee
shall specify as its and his address for receiving notices the address set forth
in the Option pertaining to the Shares to which such notice relates.
(m) Any person entitled to notice under this Plan may waive such notice.
(n) This Plan or any Option shall be binding upon the respective Optionee,
his legal representatives, heirs, legatees and distributees upon the Company,
its successors, and assigns, and upon the Board, the Committee and its
successors.
(o) The titles and headings of Sections are included for convenience of
reference only and are not to be considered in construction of this Plan's
provisions.
(p) All questions arising with respect to the provisions of this Plan shall
be determined by application of the laws of the State of Texas except to the
extent Texas law is preempted by federal law or Nevada corporate law that is
controlling. The obligation of the Company to sell and deliver Shares under this
Plan is subject to applicable laws and to the approval of any governmental
authority required in connection with the authorization, issuance, sale, or
delivery of such Shares.
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(q) Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of this Option dictates, the plural shall
be read as the singular and the singular as the plural.
Section 17. Amendment and Discontinuation of the Plan. The Committee may
from time to time amend, suspend or terminate the Plan or any Option; provided,
however, that, except to the extent provided in Section 9, no such amendment
may, without approval by the stockholders of the Company, (a) increase the
number of Shares reserved for Options or change the class of employees eligible
to receive Options, (b) permit the granting of Options that expire beyond the
maximum 10-year period described in Subsection 7(b), or (c) extend the
termination date of the Plan as set forth in Section 18; and provided, further,
that, except to the extent provided in Section 8, no amendment or suspension of
the Plan or any Option issued hereunder shall, except as specifically permitted
in any Option, substantially impair any Option previously granted to any
Optionee without the consent of such Optionee.
Section 18. Effective Date and Termination Date. The effective date of the
Plan is the date set forth below, on which the date the Board adopted this Plan;
provided, however, if the Plan is not approved by the stockholders of the
Company within twelve (12) months after the effective date then, in such event,
the Plan and all Options granted pursuant to the Plan shall be null and void.
The Plan shall terminate on the tenth anniversary of the effective date.
ADOPTED BY THE BOARD: January 18, 1994
EFFECTIVE DATE: January 18, 1994
RATIFIED BY THE STOCKHOLDERS: April , 1994
Executed to evidence the 1994 Employee Stock Option Plan of Kirby
Corporation adopted by the Board on January 18, 1994 and the Stockholders on
April , 1994.
KIRBY CORPORATION
By: /s/ G. STEPHEN HOLCOMB
G. Stephen Holcomb, Assistant
Secretary
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