View:
As filed with the Securities and Exchange Commission on February
6, 1995
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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.)
1775 St. James Place, Suite 300
Houston, Texas 77056
(Address of principal executive offices) (Zip Code)
1994 EMPLOYEE STOCK OPTION PLAN FOR KIRBY CORPORATION
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN FOR KIRBY CORPORATION
1993 STOCK OPTION OF KIRBY CORPORATION FOR ROBERT G. STONE, JR.
(Full title of the plans)
George A. Peterkin, Jr. Copy to:
President Henry Gilchrist, Esq.
Kirby Corporation Jenkens & Gilchrist,
1775 St. James Place, Suite 300 A Professional
Corporation
Houston, Texas 77056 1445 Ross Avenue, Suite 3200
(713) 629-9370 Dallas, Texas 75202
(Name, address and telephone number
including area code of agent for service)
CALCULATION OF REGISTRATION FEE
Titles of Amount To Proposed Proposed Amount
Class of To Be Maximum Maximum of
Securities Registered Offering Aggregate Registration
To Be (1) Price Offering Fee(3)
Registered per Price
Share (2)(3)
(2)(3)
Common Stock, 1,125,000 $21.375 $18,405,969 $6,347
$0.10 par Shares
value
per share
(1) The securities to be registered consist of 1,000,000
shares reserved for issuance under the 1994 Employee Stock Option
Plan for Kirby Corporation, 100,000 shares reserved for issuance
under the 1994 Nonemployee Director Stock Option Plan for Kirby
Corporation and 25,000 shares reserved for issuance under the
1993 Stock Option of Kirby Corporation for Robert G. Stone
(collectively, the "Plans").
(2) Estimated solely for the purpose of calculating the
registration fee.
(3) Calculated pursuant to Rule 457(c) and (h).
Accordingly, the price per share of the common stock offered
hereunder pursuant to the Plan is based on (i) 911,500 shares of
common stock reserved for issuance under the Plans, but not
subject to outstanding stock options, at a price per share of
$15.875, which is the average of the highest and lowest selling
price per share of common stock on the American Stock Exchange,
Inc. on January 31, 1995, and (ii) the following shares of common
stock reserved for issuance under the Plans and subject to
options already granted thereunder at the following exercise
prices:
Number of Shares
of Common Stock Exercise Price
Reserved for Issuance Per Share
10,500 $16.5625
166,000 $18.3125
25,000 $18.625
12,000 $21.375
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this
registration statement the following documents previously filed
by the registrant with the Securities and Exchange Commission
(the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed
with the Commission for the fiscal year ended December 31,
1993;
(2) the registrant's Quarterly Reports on Form 10-Q
for the quarters ended March 31, June 30 and September 30,
1994, filed with the Commission;
(3) the registrant's Report on Form 8-K, filed with
the Commission on December 9, 1994; and
(4) the description of the common stock, par value
$0.10 per share, of the registrant (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.
All documents filed by the registrant 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 Company by
Jenkens & Gilchrist, a Professional Corporation. Henry
Gilchrist, the Secretary and an Advisory Director of the
registrant, is a shareholder of Jenkens & Gilchrist, a
Professional Corporation. As of February 1, 1995, Mr. Gilchrist
held options to purchase 3,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
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(a) The Restated Articles of Incorporation of the
registrant 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
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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 sections 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 not 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.
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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 a 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.
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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 registrant's Bylaws provide that the registrant
shall indemnify each and every present and former director and
officer of the registrant, and each and every person who may have
served at the registrant's request as a director or officer of
another corporation in which the registrant owns shares of
capital stock or of which the registrant 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 registrant 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 registrant's Restated Articles of Incorporation, statute,
agreement, vote of stockholders or otherwise.
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The registrant's Bylaws further provide that the registrant
shall indemnify officers and directors of the registrant, as well
as other persons who serve as agents and employees of the
registrant, to the extent set forth in the Restated Articles.
Additionally, the registrant's Bylaws provide that the
registrant 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 registrant, or is or
was serving at the request of the registrant 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 registrant
would have the power to indemnify him against such liability
under the provisions of the Bylaws.
(c) The registrant has entered into agreements with each
Director, certain key employees, including Brian K. Harrington
and G. Stephen Holcomb, and certain directors of subsidiaries of
the registrant, 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 to
Exhibit 3.1 to the registrant's Registration Statement
on Form S-3 (Reg. No. 33-30832))
4.2 Certificate of Amendment of Restated Articles of
Incorporation of the registrant (incorporated by
reference to Exhibit 3.2 to the registrant's Annual
Report on Form 10-K for the year ended December 31,
1991)
4.3 Bylaws of the registrant, as amended (incorporated by
reference to Exhibit 3.2 to the registrant's
Registration Statement on Form S-3 (Reg. No. 33-30832))
4.4 Amendment to Bylaws of the registrant (incorporated by
reference to Exhibit 3.4 to the registrant's Annual
Report on Form 10-K for the year ended December 31,
1991)
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4.5* 1994 Employee Stock Option Plan for Kirby Corporation
4.6* Form of Incentive Stock Option Agreement under the 1994
Employee Stock Option Plan for Kirby Corporation
4.7* Form of Nonqualified Stock Option Agreement under the
1994 Employee Stock Option Plan for Kirby Corporation
4.8* 1994 Nonemployee Director Stock Option Plan for Kirby
Corporation
4.9* Form of Option Agreement under the 1994 Nonemployee
Director Stock Option Plan for Kirby Corporation
4.10* Form of Option Agreement under the 1994
Nonemployee Director Stock Option Plan for Kirby
Corporation
4.11* 1993 Stock Option of Kirby Corporation for Robert
G. Stone, Jr.
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 Deloitte & Touche LLP
23.3* Consent of KPMG Peat Marwick LLP
___________________
* 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, 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
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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,
each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Exchange Act) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-8
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Houston, Texas, on February 3, 1995:
KIRBY CORPORATION
By: /s/ George A. Peterkin,
Jr.
George A. Peterkin, Jr.,
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints George A.
Peterkin, Jr., his true and lawful attorney-in-fact and agents
with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to
this registration statement, and to file the same with all
exhibits, thereto, and all documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Capacity Date
/s/ Robert G. Stone, Jr.
Robert G. Stone, Jr. Chairman of the Board of Directors
February 3, 1995
/s/ George A. Peterkin, Jr.
George A. Peterkin, Jr. President and Director
(Principal Executive Officer) February 3, 1995
/s/ J. H. Pyne
J. H. Pyne Executive Vice President and Director
February 3, 1995
/s/ Brian K. Harrington
Brian K. Harrington Senior Vice President, Treasurer and
Assistant Secretary (Principal Financial Officer)
February 3, 1995
/s/ G. Stephen Holcomb
G. Stephen Holcomb Vice President, Controller, Assistant
Secretary and Assistant Treasurer (Principal Accounting Officer)
February 3, 1995
/s/ George F. Clements, Jr.
George F. Clements, Jr. Director February 3, 1995
/s/ J. Peter Kleifgen
J. Peter Kleifgen Director February 3, 1995
/s/ William M. Lamont, Jr.
William M. Lamont, Jr. Director February 3, 1995
/s/ C. W. Murchison, III
C. W. Murchison, III Director February 3, 1995
/s/ J. Virgil Waggoner
J. Virgil Waggoner Director February 3, 1995
EXHIBIT INDEX
Exhibit
Number Document Description Sequential Page Number
4.5 1994 Employee Stock Option Plan for Kirby Corporation
4.6 Form of Incentive Stock Option Agreement under the 1994
Employee Stock Option Plan for Kirby Corporation
4.7 Form of Nonqualified Stock Option Agreement under the 1994
Employee Stock Option Plan for Kirby Corporation
4.8 1994 Nonemployee Director Stock Option Plan for Kirby
Corporation
4.9 Form of Option Agreement under the 1994 Nonemployee Director
Stock Option Plan for Kirby Corporation
4.10 Form of Option Agreement under the 1994 Nonemployee Director
Stock Option Plan for Kirby Corporation
4.11 1993 Stock Option of Kirby Corporation for Robert G. Stone,
Jr.
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 Deloitte & Touche LLP
23.3 Consent of KPMG Peat Marwick LLP
EXHIBIT 4.5
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.
(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 Company 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
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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.
(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, 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) or by a
combination of the above; provided, however, that the Committee
in its sole discretion may accept a personal check in full or
partial payment of any Shares. 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.
Section 8. Termination of Option Period.
II-17
(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) 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) 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;
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 corporation transaction.
(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
II-19
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.
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, 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.
II-22
(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, 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 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
Option, the Company and the Optionee shall specify as its and his
address for receiving notices the address set forth in this
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 Option shall be binding upon the 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.
(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 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 19, 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 19, 1994.
II-24
KIRBY CORPORATION
By: /s/ G. Stephen Holcomb
G. Stephen Holcomb,
Assistant
Secretary
EXHIBIT 4.6
INCENTIVE STOCK OPTION AGREEMENT
KIRBY CORPORATION
1994 EMPLOYEE STOCK OPTION PLAN
An Incentive Stock Option (the "Option") for a total of
shares
of Common Stock, par value $0.10 per share ("Common Stock" or
"Share(s)") of Kirby Corporation (the "Company"), is hereby
granted to
(the "Optionee") at the price determined as provided in, and in
all respects subject to the terms, definitions and provisions of,
the 1994 Employee Stock Option Plan for Kirby Corporation (the
"Plan"), which is incorporated herein by reference.
19. Option Price. The option price is $__________ for each
share, being ____% of the Fair Market Value (as defined in the
Plan) of the Common Stock on the Date of Grant of this Option.
[If the Optionee, as of the Date of Grant, owns directly (or
indirectly through attribution under Section 425(d) of the
Internal Revenue Code of 1986, as amended, herein the "Code")
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 Code] at the Date of
Grant) the option price shall be at least 110% of the Fair Market
Value of the Common Stock on the Date of Grant.]
20. Exercise of Option. This Option shall not be
exercisable prior to the six-month anniversary of the Date of
Grant of the Option and thereafter this Option shall be
exercisable in whole or in part in accordance with the provisions
of the Plan as follows:
(i) Schedule of Rights to Exercise.
(a) shares after .
(b) shares after .
(c) shares after .
(d) shares after .
or on such earlier date as this Option may vest in accordance
with Section 7(e) of the Plan, but subject always to the limits
set forth in Section 7(f) of the Plan.
(ii) Method of Exercise. This Option shall be
exercisable by a written notice delivered to the Company which
shall:
(a) state the election to exercise the Option and
the number of shares in respect of which it is being exercised;
and
(b) be signed by the person or persons entitled
to exercise the Option and, if the Option is being exercised by
any person or persons other than the Optionee, be accompanied by
proof, satisfactory to the Company, of the right of such person
or persons to exercise the Option.
(iii) Payment. 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 (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. 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.
(iv) Withholding. The Optionee shall make satisfactory
arrangements for the withholding of any amounts necessary for
withholding in accordance with applicable Federal or state income
tax laws.
(v) 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
issuance of a 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:
(a) 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
(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
II-28
securities laws deemed by the Committee to be applicable to the
issuance of the Shares and are endorsed upon the Share
certificates.
(vi) Surrender of Option. Upon exercise of this Option
in part, if requested by the Company, the Optionee shall deliver
this Option and any other written agreements executed by the
Company and the Optionee with respect to this Option to the
Company who shall endorse or cause to be endorsed thereon a
notation of such exercise and return all agreements to the
Optionee.
(vii) Restriction on Exercise. 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.
3. Nontransferability of Option. This Option may not be
transferred by the Optionee otherwise than by will or the laws of
descent and distribution and so long as an Optionee lives, only
such Optionee or his guardian or legal representative shall have
the right to exercise this Option. The terms of this Option
shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
4. Term of Option. This Option may not be exercise after
the expiration of ten (10) years from the Date of Grant of this
Option and is subject to earlier termination as provided in the
Plan. If the Optionee, as of the Date of Grant, owns directly or
indirectly (as determined under section 425(d) of the Code),
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 Code] at the Date of
Grant) this Option may not be exercised after the expiration of
five (5) years from the Date of Grant of this Option and is
subject to earlier termination as provided in the Plan. This
Option may be exercised during such term only in accordance with
the Plan and the terms of this Option.
5. Administration. The Plan and this Option shall be
administered by the Committee provided for and described in
Section 14 of the Plan.
6. Law Governing. THIS OPTION IS INTENDED TO BE PERFORMED
IN THE STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE.
Date of Grant: ___________ ____, 19___.
KIRBY CORPORATION
By
President
Optionee acknowledges receipt of a copy of the Plan, and
represents that he is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all the terms
and provisions of the Plan. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of
the Committee (as defined in the Plan) upon any questions arising
under the Plan.
Optionee hereby agrees that Optionee shall notify the
Company within ten days after any disposition of any shares
acquired by exercise of this Option if such disposition occurs
within two years from the date of Grant of this Option or within
one year after the transfer of such shares to Optionee.
Optionee
II-30
EXHIBIT 4.7
NONQUALIFIED STOCK OPTION AGREEMENT
KIRBY CORPORATION
1994 EMPLOYEE STOCK OPTION PLAN
A Nonqualified Stock Option (the "Option") for a total of
shares
of Common Stock, par value $0.10 per share ("Common Stock" or
"Share(s)") of Kirby Corporation (the "Company"), is hereby
granted to
(the "Optionee") at the price determined as provided in, and in
all respects subject to the terms, definitions and provisions of,
the 1994 Employee Stock Option Plan for Kirby Corporation (the
"Plan"), which is incorporated herein by reference.
1. Option Price. The option price is $__________ for each
share.
2. Exercise of Option. This Option shall not be
exercisable prior to the six-month anniversary of the Date of
Grant of the Option and thereafter this Option shall be
exercisable in whole or in part in accordance with the provisions
of the Plan as follows:
(i) Schedule of Rights to Exercise.
(c) shares after .
(d) shares after .
(e) shares after .
(f) shares after .
or on such earlier date as this Option may vest in accordance
with Section 7(e) of the Plan, but subject always to the limits
set forth in Section 7(f) of the Plan.
(ii) Method of Exercise. This Option shall be
exercisable by a written notice delivered to the Company which
shall:
(a) state the election to exercise the Option and
the number of shares in respect of which it is being exercised;
and
(b) be signed by the person or persons entitled
to exercise the Option and, if the Option is being exercised by
any person or persons other than the Optionee, be accompanied by
proof, satisfactory to the Company, of the right of such person
or persons to exercise the Option.
(iii) Payment. 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 (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. 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.
(iv) Withholding. The Optionee shall make satisfactory
arrangements for the withholding of any amounts necessary for
withholding in accordance with applicable Federal or state income
tax laws.
(v) 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
issuance of a 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:
(a) 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
(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 laws deemed by the Committee to be applicable to the
issuance of the Shares and are endorsed upon the Share
certificates.
(vi) Surrender of Option. Upon exercise of this Option
in part, if requested by the Company, the Optionee shall deliver
this Option and any other written agreements executed by the
Company and the Optionee with respect to this Option to the
II-33
Company who shall endorse or cause to be endorsed thereon a
notation of such exercise and return all agreements to the
Optionee.
3. Nontransferability of Option. This Option may not be
transferred by the Optionee otherwise than by will or the laws of
descent and distribution and so long as an Optionee lives, only
such Optionee or his guardian or legal representative shall have
the right to exercise this Option. The terms of this Option
shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
4. Term of Option. This Option may not be exercise after
the expiration of ten (10) years from the Date of Grant of this
Option and is subject to earlier termination as provided in the
Plan. This Option may be exercised during such term only in
accordance with the Plan and the terms of this Option.
5. Administration. The Plan and this Option shall be
administered by the Committee provided for and described in
Section 14 of the Plan.
6. Law Governing. THIS OPTION IS INTENDED TO BE PERFORMED
IN THE STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SUCH STATE.
Date of Grant: ___________ ____, 19___.
KIRBY CORPORATION
By
President
Optionee acknowledges receipt of a copy of the Plan, and
represents that he is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all the terms
and provisions of the Plan. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of
the Committee (as defined in the Plan) upon any questions arising
under the Plan.
Optionee
EXHIBIT 4.8
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(c) 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
(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 or under a qualified domestic
relations order as defined by the Code or Title I of ERISA.
(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 Committee. The
Committee shall be the Compensation Committee of the Board;
provided, however, that for purposes of this Plan, the Committee
shall consist of not less than two individuals.
(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 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 (c) hereof.
(b) Option Shares subject to an Option shall vest 20%
of the total number of Shares initially subject to such
Option (as such number may be adjusted pursuant to Section
14) on the six-month anniversary of the Date of Grant and
20% on each anniversary of the Date of Grant, if on such
dates the Optionee is an Eligible Person.
(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
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) if the Optionee's position as a Director of
the Company terminates, other than by reason of such
Optionee's death, thirty (30) days after the date that
the Optionee's position as a Director of the Company
terminates;
(ii) one (1) year after the death of the Optionee;
or
(iii) ten (10) years after the Date of Grant of
such Option.
(b) The Board of Directors of the Company 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(c) 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 Board may obtain such
agreements or undertakings, if any, as it may deem necessary or
advisable to 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 Board,
necessary or appropriate to comply with the provisions of
any securities law deemed by the Board 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 Board 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 Board 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 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, 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 Agreement 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, the Company and
each Optionee shall specify as its and his address for
receiving notices the address set forth in the Agreement
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 shall be binding upon the 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.
(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
G. Stephen Holcomb
Assistant Secretary
EXHIBIT 4.9
NONQUALIFIED STOCK OPTION AGREEMENT
KIRBY CORPORATION
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
A Nonqualified Stock Option (the "Option") for a total of
One Thousand Five Hundred (1,500) shares of Common Stock, par
value $0.10 per share ("Common Stock" or "Share(s)"), of Kirby
Corporation (the "Company"), is hereby granted to
_____________________________________________________
(the "Optionee") at the price determined as provided in, and in
all respects subject to the terms, definitions and provisions of,
the 1994 Nonemployee Director Stock Option Plan for Kirby
Corporation (the "Plan"), which is incorporated herein by
reference.
1. Option Price. The option price is $___________ for
each share, being 100% of the Fair Market Value (as defined in
the Plan) of the Common Stock on the Date of Grant of the Option.
2. Exercise of Option. Subject to the provisions of
Section 5, this Option shall be exercisable in whole or in part
after the six-month anniversary of the Date of Grant or on such
earlier date as this Option may vest in accordance with Section
9(c) of the Plan as follows:
(i) Method of Exercise. This Option shall be
exercisable by a written notice delivered to the Company which
shall:
(c) state the election to exercise the Option and
the number of shares in respect of which it is being exercised;
and
(d) be signed by the person or persons entitled
to exercise the Option and, if the Option is being exercised by
any person or persons other than the Optionee, be accompanied by
proof, satisfactory to the Company, of the right of such person
or persons to exercise the Option.
(ii) Payment. 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.
(iii) Withholding. Optionee shall make satisfactory
arrangements for the withholding of any amounts necessary for
withholding in accordance with applicable Federal or state income
tax laws.
(iv) 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
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.
3. Nontransferability of Option. This Option may not be
transferred by the Optionee otherwise than by will or the laws of
descent and distribution and so long as the Optionee lives, only
such Optionee or his guardian or legal representative shall have
the right to exercise this Option. The terms of this Option
shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
4. Term of Option. This Option may not be exercised after
the expiration of ten (10) years from the Date of Grant of this
Option and is subject to earlier termination if Optionee ceases
to be a Director, dies or otherwise as provided in the Plan.
This Option may be exercised during such times only in accordance
with the Plan and the terms of this Option.
5. 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
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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.
Date of Grant: January 18, 1994.
KIRBY CORPORATION
By
President
Optionee acknowledges receipt of a copy of the Plan, and
represents that he is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all the terms
and provisions of the Plan. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of
the Committee (as defined in the Plan) upon any questions arising
under the Plan.
Optionee
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EXHIBIT 4.10
NONQUALIFIED STOCK OPTION AGREEMENT
KIRBY CORPORATION
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
A Nonqualified Stock Option (the "Option") for a total of
One Thousand Five Hundred (1,500) shares of Common Stock, par
value $0.10 per share ("Common Stock" or "Share(s)"), of Kirby
Corporation (the "Company"), is hereby granted to
_____________________________________________________
(the "Optionee") at the price determined as provided in, and in
all respects subject to the terms, definitions and provisions of,
the 1994 Nonemployee Director Stock Option Plan for Kirby
Corporation (the "Plan"), which is incorporated herein by
reference.
1. Option Price. The option price is $___________ for
each share, being 100% of the Fair Market Value (as defined in
the Plan) of the Common Stock on the Date of Grant of the Option.
2. Exercise of Option. This Option shall be exercisable
in whole or in part after the six-month anniversary of the Date
of Grant or on such earlier date as this Option may vest in
accordance with Section 9(c) of the Plan as follows:
(i) Method of Exercise. This Option shall be
exercisable by a written notice delivered to the Company which
shall:
(a) state the election to exercise the Option and
the number of shares in respect of which it is being exercised;
and
(b) be signed by the person or persons entitled
to exercise the Option and, if the Option is being exercised by
any person or persons other than the Optionee, be accompanied by
proof, satisfactory to the Company, of the right of such person
or persons to exercise the Option.
(ii) Payment. 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.
(iii) Withholding. Optionee shall make satisfactory
arrangements for the withholding of any amounts necessary for
withholding in accordance with applicable Federal or state income
tax laws.
(iv) 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
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.
3. Nontransferability of Option. This Option may not be
transferred by the Optionee otherwise than by will or the laws of
descent and distribution and so long as the Optionee lives, only
such Optionee or his guardian or legal representative shall have
the right to exercise this Option. The terms of this Option
shall be binding upon the executors, administrators, heirs,
successors and assigns of the Optionee.
4. Term of Option. This Option may not be exercised after
the expiration of ten (10) years from the Date of Grant of this
Option and is subject to earlier termination if Optionee ceases
to be a Director, dies or otherwise as provided in the Plan.
This Option may be exercised during such times only in accordance
with the Plan and the terms of this Option.
Date of Grant: ___________ ____, 19___.
KIRBY CORPORATION
By
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President
Optionee acknowledges receipt of a copy of the Plan, and
represents that he is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all the terms
and provisions of the Plan. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of
the Committee (as defined in the Plan) upon any questions arising
under the Plan.
Optionee
EXHIBIT 4.11
1993 NONQUALIFIED STOCK OPTION
OF
KIRBY CORPORATION
FOR
ROBERT G. STONE, JR.
Dated July 20, 1993
Section 1. Purpose.
On July 20, 1993, the Board of Directors of Kirby
Corporation, a Nevada corporation (the "Company"), adopted
resolutions granting Robert G. Stone, Jr. ("Optionee")
Nonqualified Stock Options to purchase 25,000 shares of Common
Stock on the terms and conditions herein provided as an incentive
to retain the Optionee as Chairman of the Board of the Company or
as a member of the Board of Directors of the Company.
Section 2. Definitions.
As used herein, the following terms shall have the meaning
indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "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.
(c) "Committee" shall mean the committee designated in
Section 16 to administer this Plan.
(d) "Common Stock" shall mean the Company's common stock,
$0.10 par value per share.
(e) "Date of Grant" shall be the Effective Date.
(f) "Effective Date" shall mean the date first written
above, which is the date this Option is approved by the Board.
(g) "ERISA" shall mean the Employee Retirement Income
Security Act, as amended.
(h) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(i) "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
(ii) If Shares shall not be listed as
provided in Subsection 2(h)(i), a value determined by
any fair and reasonable means prescribed by the
Committee.
(j) "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.
(k) "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.
(l) "Option" (when capitalized) shall mean this
Nonqualified Stock Option exercisable for 25,000 shares of Common
Stock granted to Robert G. Stone, Jr., which is deemed to be a
Plan pursuant to Rule 16b-3 under the Exchange Act.
(m) "Option Period" shall mean the period commencing on the
date hereof and ending on July 20, 2003, or such earlier dates as
the Option may terminate under Section 9 hereof.
(n) "Optionee" shall mean Robert G. Stone, Jr.
(o) "Share(s)" shall mean a share or shares of the Common
Stock.
(p) "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.
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Section 3. Grant of Option.
The Company hereby grants to the Optionee on the date hereof
an option to purchase 25,000 shares of Common Stock on the terms
and conditions herein provided.
Section 4. Rule 16b-3 Plan and Stockholder Approval.
The Company intends for this Option to comply with the
requirements of Rule 16b-3 promulgated by the Securities and
Exchange Commission pursuant to the Exchange Act. Accordingly,
this Option shall terminate and become null and void unless this
Option 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. Exercise Price.
The exercise price per share of Common Stock subject to this
Option is $18.625, which price was the mean of the high and low
sales price of Common Stock on the American Stock Exchange on
July 20, 1993 as reported by The Wall Street Journal, Southwest
Edition.
Section 6. Vesting Schedule.
(a) The Option to purchase Shares of Common Stock shall
vest 20% of the total number of Shares initially subject to such
Option (as such number may be adjusted pursuant to Section 11) on
January 20, 1994 and 20% on the date of the annual stockholders
meeting beginning in 1994, if following such meeting the Optionee
is a member of the Board.
(b) Notwithstanding the foregoing, the Option shall vest as
to all Shares then subject to this Option upon the occurrence of
any of the following events:
(1) a transaction (or series of transactions occurring
within a 60-day period or pursuant to a plan approved
by the Board or the shareholders of the Company) occurs
which 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 which results from the
participation of the Company, in a reorganization,
consolidation, merger, liquidation or any other form of
corporate transaction;
(2) all or substantially all of the assets of the Company
shall be sold or otherwise disposed of except that this
Option shall not vest as to all Shares then subject to
this 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 which acquired 50% or more in
value of the assets of the Company so sold or conveyed
and (ii) the acquiring entity agrees to assume the
obligations of the Company under this Agreement; or
(3) 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 Agreement.
Section 7. Type of Option.
The Option granted hereunder shall be a Nonqualified Stock
Option.
Section 8. Exercise of the Option.
(a) This Option shall not be exercisable prior to
January 20, 1994. After January 20, 1994, this Option may be
exercised at any time and from time to time during the Option
Period, in whole or in part, with respect to Shares that have
vested in accordance with Section 6 hereof. If the Optionee
exercises this Option prior to stockholder approval of this Plan
as provided in Section 4 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) This Option 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) This Option shall be deemed exercised when (i) the
Company has received written notice of such exercise delivered to
the Company in accordance with the terms of Subsection 17(l)
hereof, (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
Committee 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 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 this 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 this
Option unless and until certificates representing such Shares
shall have been issued by the Company to the Optionee.
Section 9. Termination of Option Period.
(a) The unexercised portion of this Option shall
automatically and without notice terminate and become null and
void upon the earliest to occur of the following:
(i) one (1) year after the death of the Optionee; or
(ii) July 20, 2003.
(b) The Committee in its sole discretion may, by giving
written notice to the Optionee ("Cancellation Notice"), cancel,
effective upon the date of the consummation of any corporate
transaction described in Subsection 6(b) hereof, any portion of
this Option which 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 10. Assignability.
This Option is not assignable or otherwise transferable
except by will or the laws of descent and distribution.
Section 11. Adjustments.
(a) If at any time while any unexercised portion of this
Option is outstanding 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 adjustment shall be made in the number of Shares
II-63
and the exercise price per Share subject to such outstanding
portion of this 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 under the terms of which the
Company is not the surviving corporation, but the surviving
corporation elects to assume this Option, the Optionee shall be
entitled to receive, upon the exercise of this Option, with
respect to each Share (i) the number of shares of stock of the
surviving corporation (or equity interest in any other entity)
and (ii) 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
executed 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 this
Option.
(d) Without limiting the generality of the foregoing, the
existence of this Option 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 this Option; (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 12. Purchase for Investment.
As a condition of any issuance of a stock 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 this Option 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 this 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 13. 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
Option any time without the consent of the Optionee and 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 Option only once every six
months; provided that no such amendment, modification, suspension
or termination shall materially impair the Option without the
consent of the Optionee.
Section 14. Government Regulations.
This Option, and the obligation of the Company to sell and
deliver Shares under this Option, 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 15. Withholding.
Prior to the issuance of any Shares to Optionee under this
Option, Optionee shall pay to the Company in a form satisfactory
to the Company the amount (if any) which the Company reasonably
determines to be necessary for the employer of the Optionee to
withhold in accordance with applicable federal or state tax
withholding requirements.
Section 16. Administration of the Plan.
(a) This Option shall be administered by the Committee.
The Committee shall be the Compensation Committee of the Board
excluding Optionee (if he is a member of the Compensation
Committee); provided, however, that for purposes of this Option,
the Committee shall consist of not less than two individuals;
provided further, however, that if no Compensation Committee is
appointed, the Board (if a majority of which and a majority of
the Directors acting on any matter are Disinterested Persons)
shall administer the Option and in such case all references to
the Committee shall be deemed to be references to the Board. The
Committee shall have all of the powers of the Board with respect
to the Option.
(b) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of the Option. The
determinations and the interpretation and construction of any
provision of the Option 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 Option, 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 Option; (ii)
to construe the terms of this Option; (iii) as provided in
Subsection 11, upon certain events to make appropriate
adjustments to the exercise price and number of Shares subject to
this Option; and (iv) to make all other determinations and
perform all other acts necessary or advisable for administering
this Option, 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 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 16(d), and such
determinations shall be final, binding and conclusive.
Section 17. Miscellaneous.
(a) The proceeds received by the Company from the sale of
Shares pursuant to this Option shall be used for general
corporate purposes.
(b) This Option shall be in addition to regular director's
fees paid to the Optionee and stock options granted to the
Optionee pursuant to the Company's 1989 Director Stock Option
Plan or other stock option plans of the Company or other benefits
with respect to Optionee's position with the Company or its
Subsidiaries. Nothing contained in this Option shall confer upon
the Optionee the right to continue as a director or Chairman of
the Board of the Company, or interfere in any way with the rights
of the Company to terminate his status as a director or Chairman
of the Board.
(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 Option, and
members of the Board and the Committee shall, in addition to all
II-66
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 payment of cash or any issuance or transfer of
Shares to the Optionee, or to his legal representative, heir,
legatee, or distributee, in accordance with the provisions of
this Option, 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 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 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 Option.
(g) Records of the Company shall be conclusive for all
purposes under this Option, unless determined by the Committee to
be incorrect.
(h) The Company shall, upon request or as may be
specifically required under this 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 Option.
(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 this
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 Option is held to be illegal
or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of this Option, but such
provision shall be fully severable, and this Option shall be
construed and enforced as if the illegal or invalid provision had
never been included in this Option.
(l) Whenever any notice is required or permitted under this
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 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 17(l) or, if
by courier, seventy-two (72) hours after it is sent, addressed as
described in this Subsection 17(l). The Company or the 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 this
Option, the Company and the Optionee shall specify as its and his
address for receiving notices the address set forth in this
Option pertaining to the Shares to which such notice relates.
(m) Any person entitled to notice under this Option may
waive such notice.
(n) This Option shall be binding upon the 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 the Option's provisions.
(p) All questions arising with respect to the provisions of
this Option 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
Option 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.
(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.
ADOPTED BY THE BOARD OF DIRECTORS: July 20, 1993
APPROVED BY THE STOCKHOLDERS: April 19, 1994
Address: 1775 St. James Place KIRBY CORPORATION
Suite 300
Houston, Texas 77056
By /s/ George A. Peterkin,
Jr.
George A. Peterkin, Jr.,
President
Address: 39th Floor, Chrysler Bldg. /s/ Robert G. Stone,
Jr.
405 Lexington Avenue Robert G. Stone,
Jr., Optionee
New York, NY 10174
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EXHIBIT 5.1
February 3, 1995
Kirby Corporation
1775 St. James Place
Suite 300
Houston, Texas 77056
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Kirby Corporation, a Nevada
corporation (the "Company"), in connection with the preparation
of the Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange
Commission on February 3, 1995, under the Securities Act of 1993,
as amended (the "Securities Act"), relating to (i) 1,000,000
shares of the $.10 par value common stock (the "Common Stock") of
the Company that may be issued upon the exercise of options
granted or that may be granted under 1994 Employee Stock Option
Plan for Kirby Corporation (the "1994 Employee Plan"), (ii)
100,000 shares of Common Stock of the Company that may be issued
upon the exercise of options granted or that may be granted under
the 1994 Nonemployee Director Stock Option Plan for Kirby
Corporation (the "1994 Director Plan"), and (iii) 25,000 shares
of Common Stock of the Company that may be issued upon the
exercise of the 1993 Stock Option of Kirby Corporation for Robert
G. Stone, Jr. (the "Stone Plan", and together with the 1994
Employee Plan and the 1994 Director Plan, the "Plans").
You have requested the opinion of this firm with respect to
certain legal aspects of the proposed offering. In connection
therewith, we have examined and relied upon the original, or
copies identified to our satisfaction, of (1) the Restated
Articles of Incorporation and the Bylaws of the Company, each as
amended; (2) minutes and records of the corporate proceedings of
the Company with respect to the establishment of each of the
Plans and the reservation of 1,125,000 additional shares of
Common Stock to be issued upon the exercise of options granted
under the Plans (collectively, the "Options") and to which the
Registration Statement relates; (3) the Registration Statement
and exhibits thereto, including the Plans; and (4) such other
documents and instruments as we have deemed necessary for the
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expression of the opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us
as originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As
to various questions of fact material to this opinion, and as to
the content and form of the Restated Articles of Incorporation,
the Bylaws, minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent we deem
reasonably appropriate, upon representations or certificates of
officers or directors of the Company and upon documents, records
and instruments furnished to us by the Company, without
independent confirmation or verification of their accuracy.
Based upon our examination and consideration of, and
reliance on, the documents and other matters described above, and
subject to the comments and exceptions noted below, we are of the
opinion that the Company presently has available sufficient
shares of authorized but unissued shares of Common Stock from
which the 1,125,000 shares of Common Stock subject to the
exercise of Options may be issued. Furthermore, assuming that
(i) the outstanding Options were duly granted, the Options to be
granted in the future are duly granted in accordance with the
terms of the applicable Plan and the shares of Common Stock to be
issued pursuant to the exercise of Options are duly issued in
accordance with the terms of the applicable Plan, (ii) the
Company maintains an adequate number of authorized but unissued
shares and/or treasury shares of Common Stock available for
issuance to those persons who exercise Options, and (iii) the
consideration for shares of Common Stock issued pursuant to the
exercise of Options is actually received by the Company in
accordance with the terms of the applicable Plan and exceeds the
par value of such shares, then are of the opinion that the shares
of Common Stock issued pursuant to the exercise of Options and in
accordance with the terms of the applicable Plan, will be duly
and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to references to our
firm included in or made a part of the Registration Statement.
In giving this consent, we do not admit that we come within the
category of person whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
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By:
Henry Gilchrist
HG/GC/kb
EXHIBIT 23.2
Exhibit 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Kirby Corporation on Form S-8 of our reports dated
March 2, 1992, except for Note 2 as to which the date is March
18, 1992 (relating to Kirby Corporation and subsidiaries) and
February 28, 1994 (relating to Universal Insurance Company and
subsidiaries not presented separately herein), appearing in the
Annual Report on Form 10-K of Kirby Corporation for the year
ended December 31, 1993.
DELOITTE & TOUCHE LLP
Houston, Texas
January 31, 1995
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EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Kirby Corporation
We consent to the incorporation by reference of our reports into
the Registration Statement of Kirby Corporation of Form S-8, to
which this consent is an exhibit.
Our reports refer to changes in the methods of accounting for
income taxes, postretirement benefits other than pensions,
certain investments in debt and equity securities and accounting
and reporting for reinsurance of short-duration and long-duration
contracts.
KPMG Peat Marwick LLP
Houston, Texas
February 1, 1995