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1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
FOR
KIRBY CORPORATION
Section 1. Purpose.
This 1994 Nonemployee Director Stock Option Plan of Kirby Corporation is
intended as an incentive to attract and retain as independent directors on the
Board of Directors of Kirby Corporation, a Nevada corporation (the "Company"),
persons of training, experience and ability, to encourage the sense of
proprietorship of such persons, and to stimulate the active interest of such
persons in the development and financial success of the Company for the benefit
of the stockholders of the Company.
Section 2. Definitions.
As used herein, the following terms shall have the meaning indicated:
(a) "Advisory Director" shall mean any person designated as an
Advisory Director by the Board of Directors as provided in the Company's
Bylaws.
(b) "Agreement" shall mean the agreement between the Company and the
Optionee that evidences the Option.
(c) "Business Day" shall mean (i) if the Common Stock trades on a
national exchange, any day that the national exchange on which the Common
Stock trades is open or (ii) if the Common Stock does not trade on a
national exchange, any day that commercial banks in the City of New York
are open.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Committee" shall mean the committee designated in Section 5 to
administer this Plan.
(f) "Common Stock" shall mean the Common Stock, par value ten cents
($0.10) per share, of the Company.
(g) "Date of Grant" shall mean the date on which an Option is granted
to an Eligible Person pursuant to Section 7(b) hereof.
(h) "Director" shall mean a member of the Board.
(i) "Effective Date" shall mean the date this Plan is approved by the
Board of Directors.
(j) "Eligible Person(s)" shall mean those persons who are Directors or
Advisory Directors of the Company and are not Employees.
(k) "Employee(s)" shall mean those persons who are employees of the
Company or who are employees of any Subsidiary.
(l) "ERISA" shall mean the Employee Retirement Income Security Act and
the rules thereunder, as they now exist or may be amended from time to
time.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(n) "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 Grant 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
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(ii) If Shares shall not be listed as provided in Subsection
2(n)(i), a value determined by any fair and reasonable means prescribed
by the Committee.
(o) "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 and the
rules thereunder.
(p) "Nonqualified Stock Option" shall mean a stock option that is not
an incentive stock option as defined in Section 422 of the Internal Revenue
Code.
(q) "Option" (when capitalized) shall mean any stock option granted
under this Plan.
(r) "Optionee" shall mean a person to whom an Option is granted under
this Plan or any person who succeeds to the rights of such person under
this Plan by reason of the death of such person.
(s) "Plan" shall mean this 1994 Nonemployee Director Stock Option Plan
of Kirby Corporation.
(t) "Share(s)" shall mean a share or shares of the Common Stock.
(u) "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. Total Aggregate Shares.
Subject to adjustments provided in Section 14 hereof, a total of One
Hundred Thousand (100,000) Shares shall be subject to the Plan. The Shares
subject to the Plan shall consist of unissued Shares or previously issued Shares
reacquired and held by the Company and such number of Shares shall be and hereby
is reserved for sale for such purpose. Any of such Shares that may remain unsold
and that are not subject to outstanding Options at the termination of the Plan
shall cease to be reserved for the purpose of the Plan, but until termination of
the Plan, the Company shall at all times reserve a sufficient number of Shares
to meet the requirements of the Plan. Should any Option expire or be canceled
prior to its exercise in full, the Shares theretofore subject to such Option may
again be the subject of an Option under the Plan.
Section 4. Rule 16b-3 Plan and Shareholder Approval.
The Company intends for this Plan to comply with the requirements of Rule
16b-3 promulgated by the Securities and Exchange Commission pursuant to the
Exchange Act. Accordingly, this Plan and any Options shall terminate and become
null and void unless this Plan is approved by the stockholders of the Company
within one (1) year after the Effective Date at a meeting of stockholders of the
Company at which a quorum is present by stockholders of the Company owning a
majority of the issued and outstanding shares of Common Stock represented at
such meeting.
Section 5. 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 (the "Committee")
consisting of not less than three members of the Board.
(b) 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 the
Plan; (ii) to determine the terms and provisions of the respective Agreements
(which need not be identical); provided, however, such terms and provisions
shall not be inconsistent with this Plan, including the extent to which the
transferability of Shares issued upon the exercise of Options is restricted;
(iii) to construe the terms of any Agreement and the Plan; (iv) as provided in
Subsection 14(a), upon certain events to make appropriate adjustments to the
exercise price and number of Shares subject to outstanding Options, the number
of Shares reserved under the Plan and the number of Shares subject to Options
granted subsequently; and (v) to make all other determinations and perform all
other acts necessary or advisable for administering the Plan, including the
delegation of such ministerial acts and responsibilities as the Committee
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deems appropriate. The Committee may correct any defect or supply any omission
or reconcile any inconsistency in the Plan or in any Agreement 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 5(b), and such determinations shall be final, binding and conclusive.
Section 6. Type of Options.
All Options granted under the Plan shall be Nonqualified Stock Options.
Section 7. Automatic Grant of Options.
(a) Options shall be granted only to Eligible Persons. Each Option shall be
evidenced by an Agreement, which shall contain such terms as the Committee deems
advisable and that are not inconsistent with this Plan or applicable laws.
(b) Options shall automatically be granted to each Eligible Person as
follows:
(i) on the Effective Date, each Eligible Person shall be granted an
Option to purchase 1,500 Shares; and
(ii) on the first Business Day immediately following the date of each
Annual Meeting of Stockholders of the Company occurring subsequent to the
Effective Date, each Eligible Person shall be granted an Option to purchase
an additional 1,500 Shares.
(c) Except for the automatic grants of Options under Subsection 7(b), no
Options shall otherwise be granted hereunder, and the Board or the Committee
shall not have any discretion with respect to the grant of Options within the
meaning of Rule 16b-3 promulgated under the Exchange Act, or any successor rule.
(d) 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.
Section 8. Exercise Price.
The exercise or option price of each Share issuable upon exercise of an
Option shall be the Fair Market Value of such Share on the Date of Grant.
Section 9. Vesting Schedule.
(a) Shares subject to an Option shall vest in accordance with Subsection
9(b) and (d) hereof.
(b) Option Shares subject to an Option shall fully vest on the six-month
anniversary of the Date of Grant.
(c) Notwithstanding the foregoing, Shares subject to an Option shall vest
as to all Shares then subject to the Option upon the occurrence of any of the
following events:
(i) a transaction (or series of transactions occurring within a 60-day
period or pursuant to a plan approved by the Board or stockholders of the
Company) occurs that has the result that stockholders of the Company
immediately before such transaction cease to own directly or indirectly at
least 51% of the voting stock of the Company or 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) all or substantially all of the assets of the Company shall be
sold or otherwise disposed of, except that an Option shall not vest as to
all Shares then subject to such Option if, after such sale or disposition:
(i) the stockholders of the Company immediately prior to such transaction
continue to own at least 51% of the voting stock of the entities that
acquired 50% or more in value of the assets of the
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Company so sold or conveyed; and, (ii) the acquiring entity agrees to
assume the obligations of the Company under this Plan and the respective
Agreements; or,
(iii) the occurrence of a merger, consolidation or other
reorganization of the Company under the terms of which the surviving entity
does not assume the obligations of the Company under this Plan and the
respective Agreements.
Section 10. Exercise of Options.
(a) An Option shall not be exercisable prior to the vesting of such Option.
After the six-month anniversary of the Date of Grant of an Option, such Option
may be exercised at any time and from time to time during the term of such
Option, in whole or in part, with respect to Shares that have vested in
accordance with Section 9 hereof. If any Optionee exercises an Option prior to
stockholder approval of this Plan as provided in Section 19 hereof, the Optionee
must tender the exercise price at the time of exercise and the Company shall
hold the exercise price and the Shares to be issued pursuant to such exercise
until the stockholders approve the Plan. If the Plan is approved by the
stockholders, the Company shall issue and deliver the Shares as to which the
Option has been exercised. If the Plan is not approved by the stockholders, the
Company shall return the exercise price to the Optionee and no Shares will be
issued.
(b) Options may be exercised: (i) during the Optionee's lifetime, solely by
the Optionee; or (ii) after the Optionee's death, by the personal representative
of the Optionee's estate or the person or persons entitled thereto under his
will or under the laws of descent and distribution.
(c) An Option shall be deemed exercised when: (i) the Company has received
written notice of such exercise delivered to the Company in accordance with the
notice provisions of the applicable Agreement; (ii) full payment of the
aggregate exercise price of the Shares as to which the Option is exercised has
been tendered to the Company; and (iii) arrangements that are satisfactory to
the Board in its sole discretion have been made for the Optionee's payment to
the Company of the amount, if any, that the Company determines to be necessary
for the Company to withhold in accordance with the applicable federal or state
income tax withholding requirements.
(d) The exercise price of any Shares purchased shall be paid (i) solely in
cash, by certified or cashier's check, by money order or by personal check, or
(ii) at the option of the Optionee, in Common Stock theretofore owned by such
Optionee (or by a combination of the above); provided, however, 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. For purposes of determining the amount, if any, of the
exercise price satisfied by payment in Common Stock, such Common Stock shall be
valued at its Fair Market Value on the date of exercise. Any Common Stock
delivered in satisfaction of all or a portion of the exercise price shall be
appropriately endorsed for transfer and assignment to the Company.
(e) The Optionee shall not be, nor have any of the rights or privileges of,
a stockholder of the Company with respect to any Shares purchasable upon the
exercise of any part of an Option unless and until certificates representing
such Shares shall have been issued by the Company to the Optionee.
Section 11. Termination of Option Period.
(a) The unexercised portion of an Option shall automatically and without
notice terminate and become null and void and be forfeited upon the earliest to
occur of the following:
(i) except as provided in Subsection 11(a)(ii), if the Optionee's
position as a Director of the Company terminates for any reason, one year
after the date the Optionee ceases to be a Director.
(ii) one (1) year after the date on which the Optionee shall die, if
the Optionee's death shall occur during the one-year period described in
Subsection 11(a)(i); or
(iii) ten (10) years after the Date of Grant of such Option.
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(b) The Committee in its sole discretion may, by giving written notice to
an Optionee ("Cancellation Notice"), cancel, effective upon the date of the
consummation of any corporate transaction described in Section 9(d) hereof, any
portion of an Option that remains unexercised on such date. Such cancellation
notice shall be given to Optionee at least ten (10) days prior to the date of
cancellation.
Section 12. Terms of Option.
Each Option granted under this Plan shall have a term of ten (10) years
from the Date of Grant of such Option.
Section 13. Assignability of Options.
No Option shall be assignable or otherwise transferable, except by will or
the laws of descent and distribution.
Section 14. Adjustments.
(a) If at any time there shall be an 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 appropriate proportional adjustment shall be made in
the number of Shares (and with respect to outstanding Options, the exercise
price per Share): (i) subject to outstanding Options; (ii) reserved under the
Plan; and (iii) subject to Options granted subsequently. In the event of a
dispute concerning such adjustment, the Committee has full discretion to
determine the resolution of such dispute. Such determination shall be final,
binding and conclusive.
(b) In the event of a merger, consolidation or other reorganization of the
Company under the terms of which the Company is not the surviving corporation,
but the surviving corporation elects to assume an Option, the respective
Agreement and this Plan, the Optionee shall be entitled to receive, upon the
exercise of such Option, with respect to each Share issuable upon exercise of
such Option, the number of shares of stock of the surviving corporation (or
equity interest in any other entity) and any other notes, evidences of
indebtedness or other property that Optionee would have received in connection
with such merger, consolidation or other reorganization had he exercised the
Option with respect to such Share immediately prior to such merger,
consolidation or other reorganization.
(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 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: (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 issuance 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.
Section 15. Purchase for Investment.
As a condition of any issuance of a stock certificate for Shares upon the
exercise of an Option, the Committee may obtain such agreements or undertakings,
if any, as it may deem necessary or advisable to
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assure compliance with any provision of this Plan or any law or regulation,
including, but not limited to, the following:
(a) a representation and warranty by the Optionee to the Company at
the time his Option is exercised that he is acquiring the Shares to be
issued to him 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
certificates representing the Shares.
Section 16. Amendment, Modification, Suspension or Discontinuance of this
Plan.
For the purpose of complying with changes in the Code or ERISA, the
Committee may amend, modify, suspend or terminate the Plan at any time. For the
purpose of meeting or addressing any other changes in legal requirements or any
other purpose, the Committee may amend, modify, suspend or terminate the Plan
only once every six months. Subject to changes in law or other legal
requirements, including any change in the provisions of Rule 16b-3 that would
permit otherwise, the Plan may not be amended without the consent of the holders
of a majority of the shares of Common Stock represented at a meeting at which a
quorum is present to: (i) increase the aggregate number of shares of Common
Stock that may be issued under the Plan (except for adjustments pursuant to
Section 14 of the Plan); (ii) increase materially the benefits accruing to
Optionees under the Plan; or, (iii) modify materially the requirements as to
eligibility for participation in the Plan.
Section 17. Governmental Regulations.
This Plan, and the granting of Options and the exercise of Options
hereunder and the obligation of the Company to sell and deliver Shares under
such 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 18. Miscellaneous.
(a) The proceeds received by the Company from the sale of Shares pursuant
to Options shall be used for general corporate purposes.
(b) The Options granted to Directors under this Plan shall be in addition
to regular director's fees, stock options granted pursuant to the Company's 1989
Director Stock Option Plan or other stock option plans of the Company or other
benefits with respect to the Director's position with the Company or its
Subsidiaries. Nothing contained in the Plan, or in any Agreement, shall confer
upon any Optionee the right to continue as a director of the Corporation, or
interfere in any way with the rights to terminate his status as a director.
(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 the Plan or any Option granted under it, and members of the
Board and the Committee shall 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 payment of cash or any issuance or transfer of Shares to the
Optionee, or to his legal representative, heir, legatee, distributee or
permitted assign, in accordance with the provisions of the Plan, shall, to the
extent thereof, be in full satisfaction of all claims of such persons under the
Plan. The Committee may require any Optionee, legal representative, heir,
legatee, distributee or permitted assign, as a condition
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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 the Plan, 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 the Plan.
(g) Records of the Company shall be conclusive for all purposes under the
Plan, unless determined by the Committee to be incorrect.
(h) The Company shall, upon request or as may be specifically required
under the Plan, 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 the Plan.
(i) The Company assumes no liability to the Optionee or his legal
representatives, heirs, legatees, distributees or permitted assigns for any act
of, or failure to act on the part of, the Committee.
(j) Any action required of the Company relating to the Plan 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 is held to be illegal or invalid for any
reason, the illegality or invalidity shall not affect the remaining provisions
of the Plan, but such provision shall be fully severable, and the Plan shall be
construed and enforced as if the illegal or invalid provision had never been
included in the Plan.
(l) Whenever any notice is required or permitted under the Plan or any
Option, such notice must be in writing and personally delivered or sent by mail
or next day 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 which such person
has previously specified by written notice delivered in accordance with this
Subsection 18(l) or, if by courier, twenty-four (24) hours after it is sent,
addressed as described in this Subsection 18(l). The Company or an Optionee may
change, at any time and from time to time, by written notice to the other, the
address which it or he had previously specified for receiving notices. Until
changed in accordance with the Plan or any Option, the Company and each 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 the Plan may waive such notice.
(n) The Plan or any Option shall be binding upon the respective Optionee,
his legal representatives, heirs, legatees, distributees and permitted assigns,
upon the Corporation, 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 the Plan's
provisions.
(p) All questions arising with respect to the provisions of the 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. Questions arising with respect to the provisions of an Agreement
that are matters of contract law shall be governed by the laws of the state
specified in the Agreement, except to the extent preempted by federal law and
except to the extent that Nevada corporate law conflicts with the contract law
of such state, in which event Nevada corporate law shall govern. The obligation
of the Company to sell and deliver Shares under the 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 Plan dictates, the plural shall be
read as the singular and the singular as the plural.
Section 19. Effective Date and Termination Date.
The Effective Date of the Plan is January 18, 1994, the date on which the
Board adopted this Plan, but is subject to the approval of the Plan by at least
a majority of the votes cast by the stockholders of the Company at the next
meeting of stockholders at which a quorum is present. All grants made under the
Plan prior to such approval shall be effective when made, but shall be
conditioned upon and subject to such approval of the Plan. This Plan shall
terminate on the tenth (10th) anniversary of the Effective Date.
ADOPTED BY THE BOARD OF DIRECTORS: January 18, 1994
APPROVED BY THE STOCKHOLDERS: April 19, 1994
KIRBY CORPORATION
By: /s/ G. STEPHEN HOLCOMB
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G. Stephen Holcomb,
Assistant Secretary
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