<PAGE> 1
SCHEDULE 14A
(RULE 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934 (AMENDMENT NO. )
Filed by the registrant /X/
Filed by a party other than the registrant / /
Check the appropriate box:
/ / Preliminary proxy statement
/X/ Definitive proxy statement
/ / Definitive additional materials
/ / Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
KIRBY CORPORATION
- --------------------------------------------------------------------------------
(Name of Registrant as Specified in Its Charter)
STEVE HOLCOMB
- --------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement)
Payment of filing fee (Check the appropriate box):
/X/ $125 per Exchange Act Rule 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(j)(2).
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and
0-11.
(1) Title of each class of securities to which transaction applies:
- --------------------------------------------------------------------------------
(2) Aggregate number of securities to which transactions applies:
- --------------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:(1)
- --------------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
- --------------------------------------------------------------------------------
/ / Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the form or schedule and the date of its filing.
(1) Amount previously paid:
- --------------------------------------------------------------------------------
(2) Form, schedule or registration statement no.:
- --------------------------------------------------------------------------------
(3) Filing party:
- --------------------------------------------------------------------------------
(4) Date filed:
- --------------------------------------------------------------------------------
- ---------------
(1) Set forth the amount on which the filing fee is calculated and state how
it was determined.
<PAGE> 2
KIRBY CORPORATION
(A NEVADA CORPORATION)
1775 ST. JAMES PLACE, SUITE 300
P. O. BOX 1745
HOUSTON, TX 77251-1745
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD APRIL 19, 1994
To the Stockholders:
NOTICE IS HEREBY GIVEN that the 1994 Annual Meeting of Stockholders of
Kirby Corporation ("Kirby") will be held at the J. W. Marriott Houston Hotel,
5150 Westheimer, in the Harris Room, Houston, Texas, on the 19th day of April,
1994, at 10:00 A.M. (local time) for the following purposes:
1. To elect eight (8) directors to hold office until the next annual
election of directors by stockholders or until their respective successors
shall have been duly elected and shall have qualified;
2. To consider and act upon a proposal to approve the 1994 Employee
Stock Option Plan for Kirby Corporation;
3. To consider and act upon a proposal to approve the 1994 Nonemployee
Director Stock Option Plan for Kirby Corporation;
4. To consider and act upon a proposal to approve the 1993 Stock
Option of Kirby Corporation for Robert G. Stone, Jr.;
5. To consider and act upon a proposal to amend the 1989 Director
Stock Option Plan for Kirby Exploration Company, Inc. reducing the number
of stock options automatically granted to future directors from 10,000
shares of Kirby Common Stock to 5,000 shares of Kirby Common Stock; and
6. To transact such other business that may properly come before the
meeting or any adjournment(s) thereof.
The Board of Directors has fixed the close of business on March 1, 1994, as
the Record Date for the determination of stockholders entitled to notice of and
to vote at such meeting or any adjournment thereof. Only stockholders of record
at the close of business on the Record Date are entitled to notice of and to
vote at such meeting. The stock transfer books will not be closed.
BY ORDER OF THE BOARD OF DIRECTORS
HENRY GILCHRIST, SECRETARY
Dated: March 18, 1994
PLEASE MARK, DATE, SIGN AND RETURN THE ENCLOSED PROXY CARD IN THE POSTAGE PAID
ENVELOPE PROMPTLY, WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING. IF YOU
LATER DESIRE TO REVOKE YOUR PROXY FOR ANY REASON, YOU MAY DO SO IN THE MANNER
DESCRIBED IN THE ATTACHED PROXY STATEMENT.
<PAGE> 3
KIRBY CORPORATION
---------------------
PROXY STATEMENT FOR
ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD APRIL 19, 1994
---------------------
SOLICITATION AND REVOCABILITY OF PROXIES
The enclosed Proxy Statement is furnished in connection with the
solicitation of proxies on behalf of Kirby Corporation ("Kirby"), a Nevada
corporation, for the 1994 Annual Meeting of Stockholders to be held on April 19,
1994, and any adjournment thereof at the time and place and for the purposes set
forth in the accompanying Notice of Annual Meeting of Stockholders.
The executive offices of Kirby are located at 1775 St. James Place, Suite
300, Houston, Texas 77056. Kirby's mailing address is P. O. Box 1745, Houston,
Texas 77251-1745.
The Notice of Annual Meeting of Stockholders, this Proxy Statement, the
proxy card and Kirby's Annual Report to Stockholders, which includes Kirby's
Annual Report on Form 10-K for the fiscal year ended December 31, 1993, are
first being mailed to stockholders on or about March 18, 1994.
The record date for determination of stockholders entitled to vote in
person or by proxy at the Annual Meeting was the close of business on March 1,
1994. As of the close of business on March 1, 1994 there were 28,274,383
outstanding shares of Kirby Common Stock, par value $0.10 per share (the "Common
Stock").
Each outstanding share of Common Stock entitles the holder to one vote on
all matters to be acted upon at the meeting. The presence, in person or by
proxy, of the holders of a majority of the issued and outstanding shares of
Common Stock entitled to vote at the meeting is necessary to constitute a quorum
to transact business. Assuming the presence of a quorum, the affirmative vote of
the holders of a majority of the shares of Common Stock represented at the
meeting is required for the election of directors, and approval of the 1994
Employee Stock Option Plan for Kirby Corporation (the "1994 Employee Plan"), the
1994 Nonemployee Director Stock Option Plan for Kirby Corporation (the "1994
Director Plan"), the 1993 Stock Option of Kirby Corporation for Robert G. Stone,
Jr. (the "Stone Option") and the amendment to the 1989 Director Stock Option
Plan of Kirby Exploration Company, Inc. (the "1989 Director Plan"). Abstentions
and broker non-votes will be counted for purposes of determining a quorum, but
shall not be counted as voting for purposes of determining whether a nominee or
proposal has received the necessary number of votes for election of the nominee
or approval of the proposal.
Shares represented by proxies will be voted for or against the election of
each nominee director named in the proxy card and the other proposals in
accordance with the specifications made on the proxy card by the stockholder
and, if no specification is made, will be voted in favor of the election of such
nominee directors, and the other proposals.
Whether or not you expect to be personally present at the meeting, you are
requested to mark, date, sign and return the enclosed proxy card. Any
stockholder giving a proxy in the form of the accompanying proxy card has the
right to revoke the proxy by presenting a duly executed proxy bearing a later
date, by attending the meeting and voting in person or by written notification
to the Secretary of Kirby prior to the meeting.
In addition to proxy soliciting material mailed to the stockholders,
officers and employees of Kirby may communicate with stockholders personally or
by telephone, telegraph, telephone facsimile or by mail to solicit their proxy.
Kirby has also retained the services of Corporate Investor Communications, Inc.
("CIC"), Carlstadt, New Jersey, to assist in the solicitation of proxies for a
fee estimated at $6,500 plus out-of-pocket expenses. Brokerage houses and other
custodians, nominees and fiduciaries will, in connection with shares of Common
Stock registered in their names, be requested to forward solicitation material
to the beneficial owners of such shares and to secure their voting instructions.
The costs of such solicitation will be borne by Kirby.
<PAGE> 4
ELECTION OF DIRECTORS (ITEM 1)
The Bylaws of Kirby provide that the Board of Directors shall consist of
not fewer than three (3) nor more than fifteen (15) members and that the number
of directors, within such limits, shall be determined by resolution of the Board
of Directors at any meeting or by the stockholders at the annual meeting. By
resolution of the Board of Directors at its January 18, 1994 meeting, the number
of directors constituting the Board of Directors was set at eight (8).
Unless otherwise instructed by Kirby's stockholders, the persons named in
the enclosed proxy card will vote the shares represented by such proxy for the
election of the eight (8) nominees named in this Proxy Statement to hold office
until the next Annual Meeting of Stockholders or until their respective
successors shall have been duly elected and shall have qualified. No
circumstances are presently known that would render any nominees named herein
unable or unwilling to serve. Should any of them become unavailable for
nomination or election or refuse to be nominated or to accept election as a
director of Kirby, then the persons named as proxies in the enclosed proxy card
intend to vote the shares represented in such proxy for the election of such
person or persons as may be nominated or designated by the Board of Directors.
With the exception of Mr. P. T. Bee, who is retiring, the following
nominees constitute the current Board of Directors of Kirby:
<TABLE>
<CAPTION>
SHARES OF
COMMON STOCK
NOMINEE, AGE, BENEFICIALLY
PRINCIPAL OCCUPATION, OWNED ON PERCENT
SERVICE AS DIRECTOR, MARCH 1, OF COMMON
OTHER DIRECTORSHIPS 1994(1) STOCK (1)
--------------------- --------- ---------
<S> <C> <C>
George F. Clements, Jr; age 68; Independent Oil and Gas
Producer and Private Investor............................ 20,000(2) *
Mr. Clements has served as a director of Kirby since
1985. Mr. Clements currently serves as a director of
Putnam Trust Company.
J. Peter Kleifgen; age 50; Personal Investments............ 25,000(2)(3) *
Mr. Kleifgen has served as a director of Kirby since
1983.
William M. Lamont, Jr.; age 45; Personal Investments....... 13,142(2)(4) *
Mr. Lamont has served as a director of Kirby since 1979.
C. W. Murchison, III; age 47; Personal Investments......... 10,000(2)(5) *
Mr. Murchison has served as a director of Kirby since
1983. Mr. Murchison currently serves as a director of
Centex Corporation.
George A. Peterkin, Jr.; age 66; President and Chief
Executive Officer of Kirby............................... 773,510(6) 2.7%
Mr. Peterkin has served as President and a director of
Kirby since 1973.
J. H. Pyne; age 46; President of Dixie Carriers, Inc., a
wholly owned subsidiary of Kirby......................... 132,250(7) *
Mr. Pyne has served as a director of Kirby since 1988 and
Executive Vice President of Kirby since 1992.
Robert G. Stone, Jr.; age 71; Personal Investments......... 140,450(2)(8)(9) *
Mr. Stone has served as Chairman of the Board and a
director of Kirby since 1983. Mr. Stone currently serves
as a director of BHP Company, The Chubb Corporation,
Corning Incorporated, Core Industries, Inc., The Japan
Fund, Inc., Nova Care, Inc. The Pittston Company, Tandem
Computers Incorporated, First Boston Investment Funds,
Inc., Tejas Gas Corporation and various funds managed by
Scudder Stevens & Clark, Inc.
</TABLE>
(Table continued on following page)
2
<PAGE> 5
<TABLE>
<CAPTION>
SHARES OF
COMMON STOCK
NOMINEE, AGE, BENEFICIALLY
PRINCIPAL OCCUPATION, OWNED ON PERCENT
SERVICE AS DIRECTOR, MARCH 1, OF COMMON
OTHER DIRECTORSHIPS 1994(1) STOCK (1)
--------------------- --------- ---------
<S> <C> <C>
J. Virgil Waggoner; age 66; President and Chief Executive
Officer of Sterling Chemicals, Inc....................... 13,000(2) *
Mr. Waggoner has served as a director of Kirby since
July, 1993.
</TABLE>
- ---------------
* Less than 1%.
(1) Except as otherwise indicated, each of the persons named has sole voting and
dispositive power with respect to the shares reported. The number of shares
and percentage of ownership of Common Stock for each of the persons named
assumes that shares of Common Stock issuable to such person upon the
exercise of stock options within sixty days subsequent to the Record Date
are outstanding.
(2) Includes 10,000 shares issuable pursuant to stock options exercisable within
sixty days subsequent to the Record Date.
(3) Includes 2,000 shares of which Mr. Kleifgen is custodian for his sons, A.
Robert and John W. Kleifgen, under the Uniform Gift to Minors Act.
(4) Does not include 409,069 shares owned beneficially and of record by his
wife, Mary Noel Lamont, or 505,171 shares owned by trusts of which Ms.
Lamont is the beneficiary, of which all 914,240 shares, Mr. Lamont disclaims
any beneficial ownership.
(5) Does not include 305,390 shares owned by trusts created for the benefit of
members of the C. W. Murchison, Jr. and John D. Murchison families of which
Bankers Trust Company of Texas ("Bankers") is trustee. Mr. C. W. Murchison,
III is the President, Treasurer and a Director, as well as a stockholder, of
Bankers. Mr. Murchison disclaims beneficial ownership of such 305,390
shares.
(6) Includes 85,000 shares issuable pursuant to stock options exercisable within
sixty days subsequent to the Record Date. Also includes 107,500 shares owned
by thirteen trusts for which Mr. Peterkin is trustee and the beneficiaries
of which are four of his grandchildren, two grandnieces, one grandnephew and
two of the grandchildren of his wife, Nancy G. Peterkin. Mr. Peterkin
disclaims beneficial ownership of the shares held by such trusts.
(7) Includes 85,000 shares issuable pursuant to stock options exercisable within
sixty days subsequent to the Record Date. Does not include 100 shares of
which Mr. Pyne is custodian for his son, Samuel H. Pyne, under the Uniform
Gifts to Minors Act and of which Mr. Pyne disclaims beneficial ownership.
(8) Does not include 6,405 shares owned by a trust of which Mr. Stone is the
trustee and of which he has a contingent remainder interest and 10,000
shares owned by a trust of which Mr. Stone is trustee. Also does not include
16,000 shares owned by his wife. Mr. Stone disclaims beneficial ownership of
the foregoing shares.
(9) Includes 10,000 shares issuable pursuant to the Stone Option exercisable
within sixty days subsequent to the record date, which stock option is
subject to stockholder approval. For a description of the Stone Option see
"Proposal to Approve the 1993 Stock Option for Robert G. Stone, Jr."
Mr. P. T. Bee, a director of Kirby since 1976, is retiring from the Board
of Directors effective April 19, 1994 and, therefore, is not a nominee for
election to the Board at the 1994 Annual Meeting of Stockholders.
Each director of Kirby has been engaged in their respective principal
occupation for the past five years. Mr. William M. Lamont, Jr. is related by
marriage to Mr. C. W. Murchison, III by reason of Mr. Lamont's marriage to Mr.
Murchison's cousin. Other than described above, no nominees are related to
another nominee nor to any executive officer of Kirby or its subsidiaries or
affiliates.
Mr. Henry Gilchrist, Secretary and General Counsel, served as director of
Kirby from 1976 to June, 1987. In July, 1987, he was elected by the Board of
Directors to serve as an Advisory Director of Kirby. In his capacity as an
Advisory Director, Mr. Gilchrist is invited to attend meetings of the Board of
Directors and to
3
<PAGE> 6
participate in Board discussions. However, Mr. Gilchrist is not entitled to vote
on matters submitted for Board approval and is not involved in the
administration or management of Kirby. Mr. Gilchrist also serves as an advisory
member of the Compensation Committee of the Board of Directors. See "Board and
Committee Meetings." Mr. Gilchrist is invited to attend these committee meetings
and participate in committee discussions, but is not entitled to vote on matters
submitted for committee approval. The selection of advisory directors and
advisory committee members is made by the Board of Directors, and stockholders
do not have a vote on these selections. Mr. Gilchrist is a member of the law
firm of Jenkens & Gilchrist, a Professional Corporation. During the period from
January 1, 1993 to December 31, 1993, Kirby retained such firm to perform
various legal services. Kirby expects to retain Jenkens & Gilchrist, a
Professional Corporation, to perform legal services in 1994.
BOARD AND COMMITTEE MEETINGS
During 1993, there were six meetings of the Board of Directors. No director
attended fewer than 75% of the aggregate of all meetings of the Board of
Directors and of the committees of the Board on which such director served.
Audit Committee -- Kirby's Audit Committee presently consists of four
nonemployee directors: George F. Clements, Jr. (Chairman), P. T. Bee, J. Peter
Kleifgen and C. W. Murchison, III. During 1993, the Audit Committee held five
meetings. The Audit Committee meets with representatives of management, Kirby's
independent public accountants and with the internal audit staff and discusses
with each group independently of the other any recommendations or matters that
either considers to be of significance. The Audit Committee reviews with the
independent public accountants and management the plan and scope of the audit
for each year, the status of the audit during the year, the results of such
audit when completed and the fees for services performed. The Audit Committee
also reviews with management, Kirby's internal auditor and the independent
public accountants, the adequacy of the system of internal controls and
recommendations made by the independent public accountants as to changes in
accounting procedures and internal accounting controls. In addition, the Audit
Committee is responsible for reviewing and monitoring the performance of
non-audit services by Kirby's independent public accountants and for
recommending the engagement or discharge of Kirby's independent public
accountants.
Compensation Committee -- Kirby's Compensation Committee presently consists
of five nonemployee directors: William M. Lamont, Jr. (Chairman), George F.
Clements, Jr., P. T. Bee, Robert G. Stone, Jr. and J. Virgil Waggoner. Henry
Gilchrist also serves on the Compensation Committee as an Advisory Member.
During 1993, the Compensation Committee held five meetings. The Compensation
Committee reviews the salaries, bonuses and other forms of compensation for
officers and key employees of Kirby and makes recommendations to the Board of
Directors with respect thereto. In addition, the Compensation Committee also
reviews the granting of options under Kirby's employee stock option plans and,
if applicable, makes recommendations to the Board of Directors regarding such
grants or, if designated in a plan or by the Board of Directors, actually grants
stock options.
Executive Committee -- Kirby's Executive Committee is presently composed of
Robert G. Stone, Jr., George A. Peterkin, Jr., P. T. Bee and J. H. Pyne. Kirby's
Executive Committee has all the powers and authorities of the Board of Directors
in the management and business affairs of Kirby when the Board is not in
session, except the power or authority to fill vacancies in the membership of
the Board of Directors, amend the Bylaws of Kirby or fill vacancies in the
membership of the Executive Committee. The Executive Committee did not hold any
formal meetings in 1993.
The Board of Directors of Kirby does not have a standing nominating
committee.
DIRECTOR COMPENSATION
Directors who were not otherwise employed by Kirby, as well as the Advisory
Director, were paid an annual retainer of $10,000 during 1993 and received an
additional fee of $750 for attendance at each meeting of the Board of Directors.
Directors and the Advisory Director were paid a fee of $500 for attendance at
each meeting of a committee; provided however, that if a committee meeting was
on the same day and at the same
4
<PAGE> 7
place as a meeting of the Board of Directors, the attendance fee for such
committee meeting was $250. Committee Chairmen receive an additional $2,500 per
year. Directors and the Advisory Director were reimbursed for reasonable
expenses incurred for attendance at the meetings.
DIRECTOR STOCK OPTION PLANS
Kirby has in effect the 1989 Director Plan. The 1989 Director Plan provides
for the granting to directors of Kirby who are not employees of Kirby or its
subsidiaries of Nonincentive Stock Options to purchase Common Stock ("1989
Director Options") and the use of already owned Common Stock as payment for the
exercise price of 1989 Director Options.
The purpose of the 1989 Director Plan is to advance the interest of Kirby
by providing additional incentives to attract and retain qualified and competent
nonemployee directors, upon whose efforts and judgement the success of Kirby
(including its subsidiaries) is largely dependent.
The grant of 1989 Director Options under the 1989 Director Plan is
automatic. Pursuant to the 1989 Director Plan, each nonemployee director who was
a director on July 25, 1989, the date of adoption of the 1989 Director Plan,
received a 1989 Director Option that expires on July 25, 1999, and Mr. Waggoner
received a Director Option on July 20, 1993 that expires on July 20, 2003,
exercisable for 10,000 shares of Common Stock at the fair market value of such
Common Stock on the date of grant. If the 1989 Director Plan is not amended as
proposed, any future nonemployee director of Kirby (who was not previously a
director of Kirby) will be granted a Director Option for 10,000 shares of Common
Stock on the date such nonemployee director is elected as a director, at an
exercise price equal to the fair market value of the Common Stock on the date of
grant. The 1989 Director Plan does not provide for any other grants of 1989
Director Options.
Currently, Messrs. Bee, Clements, Kleifgen, Lamont, Murchison and Stone
each hold 1989 Director Options currently exercisable for 10,000 shares of
Common Stock at $7.5625 per share and Mr. Waggoner holds a 1989 Director Option
currently exercisable for 10,000 shares of Common Stock at $18.625 per share.
Under the provisions of the 1989 Director Plan, after Mr. Bee's retirement on
April 19, 1994, he will have until May 19, 1994 to exercise his 10,000 shares of
1989 Director Options.
On July 20, 1993, the Board of Directors of Kirby granted, subject to
stockholder approval, Robert G. Stone a stock option exercisable for 25,000
shares of Common Stock at an exercise price of $18.625 per share. For a
description of this stock option, see Item 4.
The Board of Directors of Kirby, on January 18, 1994, adopted the 1994
Director Plan and also adopted an amendment of the 1989 Director Plan, which
amendment reduces the number of stock options automatically granted to future
directors from 10,000 shares of Common Stock to 5,000 shares of Common Stock.
Both the 1994 Director Plan and the amendment to the 1989 Director Plan are
subject to stockholder approval. The 1994 Director Plan granted, subject to
stockholder approval, to each of Messrs. Bee, Clements, Kleifgen, Lamont,
Murchison, Stone, Waggoner and Gilchrist on January 18, 1994 a stock option
exercisable for 1,500 shares of Common Stock with an exercise price per share of
$21.375. If Messrs. Clements, Kleifgen, Lamont, Murchison and Stone are
reelected and Mr. Waggoner is elected in April, 1994 (and Mr. Gilchrist is an
Advisory Director on April 20, 1994), they will each receive on April 20, 1994 a
stock option exercisable for 1,500 shares of Common Stock with an exercise price
per share equal to the fair market value of a share of Common Stock on such date
of grant. Mr. Bee will have until April 19, 1995 to exercise his stock option
granted under the 1994 Director Plan for 1,500 shares of Common Stock. For a
description of the 1994 Director Plan and the amendment to the 1989 Director
Plan, see Items 3 and 5, respectively.
COMMON STOCK OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table and notes thereto set forth certain information as of
March 1, 1994 concerning persons known to Kirby to own beneficially 5% or more
of Kirby's outstanding Common Stock together with information concerning
beneficial ownership by Kirby's highest paid nondirector executive officers who
5
<PAGE> 8
received cash compensation in excess of $100,000 for 1993 and Kirby's directors
and executive officers as a group.
<TABLE>
<CAPTION>
SHARES OF
COMMON STOCK
BENEFICIALLY PERCENT
OWNED ON OF
MARCH 1, COMMON
NAME 1994(1) STOCK(1)
---- ------------ --------
<S> <C> <C>
Dietche & Field Advisers, Inc.............................. 2,105,200(2) 7.4%
Ark Asset Management Co., Inc.............................. 1,468,400(3) 5.2%
Luther King Capital Management Corporation................. 1,414,777(4) 5.0%
Brian K. Harrington........................................ 43,500(5) *
Ronald C. Dansby........................................... 36,250(6) *
Steven M. Bradshaw......................................... 28,850(7) *
Directors and executive officers as a group (17 in
number).................................................. 1,336,046(8) 4.7%
</TABLE>
- ---------------
* Less than 1%
(1) Except as otherwise indicated, each of the persons named has sole voting and
dispositive power with respect to the shares reported. The number of shares
and percentage of ownership of Common Stock for each of the persons named
assumes that shares of Common Stock issuable upon the exercise of stock
options within sixty days subsequent to the Record Date are outstanding.
(2) Based on information provided to Kirby by Dietche & Field Advisers, Inc.
("D&FA") dated February 1, 1994. The address of D&FA is 437 Madison Avenue,
33rd Floor, New York, New York 10022.
(3) Based on the Schedule 13G, dated February 7, 1994, filed by ARK Asset
Management Co., Inc. with the Securities and Exchange Commission ("SEC").
These shares comprise shares owned by various accounts for which ASM is an
investment advisor. The address of ASM is One New York Plaza, 29th Floor,
New York, New York 10004.
(4) Based on the Schedule 13G, dated February 3, 1994, filed by Luther King
Capital Management ("LKCM") with the SEC. These shares comprise 1,388,252
shares owned by various portfolios LKCM manages and 26,525 shares owned by
LKCM's officers and employees and their relatives. The address of LKCM is
301 Commerce Street, Suite 1600, Fort Worth, Texas 76102.
(5) Includes 42,500 shares issuable pursuant to stock options exercisable within
60 days subsequent to the Record Date.
(6) Includes 36,250 shares issuable pursuant to stock options exercisable within
60 days subsequent to the Record Date.
(7) Includes 28,750 shares issuable pursuant to stock options exercisable within
60 days subsequent to the Record Date.
(8) Includes 410,750 shares that directors and executive officers have the right
to acquire within 60 days subsequent to the Record Date through the exercise
of stock options.
Kirby believes that the children of C. W. Murchison, Jr. (deceased) and
John D. Murchison (deceased) and trusts created for their benefit collectively
owned approximately 8.8% of the outstanding Common Stock as of the Record Date.
Kirby has also been advised by such owners that they do not consider themselves
to be a group or under common control.
6
<PAGE> 9
COMPENSATION OF EXECUTIVE OFFICERS
The total cash compensation paid for each of the three years ended December
31, 1991, 1992 and 1993 to the Chief Executive Officer, George A. Peterkin, Jr.,
and the other four most highly paid executive officers who received cash
compensation in excess of $100,000 for 1993 (collectively, the "named Executive
Officers"), is set forth in the following Summary Compensation Table.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
LONG-TERM
COMPENSATION
AWARDS
ANNUAL COMPENSATION ------ ALL
NAME AND ---------------------- OPTIONS/ OTHER
PRINCIPAL POSITION YEAR SALARY($) BONUS($) SARS(#) COMPENSATION($)
------------------ ---- -------- -------- ------- --------------
<S> <C> <C> <C> <C> <C>
George A. Peterkin, Jr.............. 1993 $309,360 $ --(1) 30,000 $ --(2)
President, Director and Chief 1992 286,027 75,000 10,000 34,361
Executive Officer of Kirby 1991 284,360 40,000 -- 34,238
J. H. Pyne.......................... 1993 209,360 --(1) 30,000 --(2)
President of Dixie, Executive Vice 1992 199,360 100,000 20,000 35,567
President and Director of Kirby 1991 184,360 90,000 -- 34,238
Brian K. Harrington................. 1993 160,960 --(1) 25,000 --(2)
Senior Vice President and 1992 135,177 66,000 15,000 29,586
Treasurer 1991 110,880 75,000 -- 23,704
of Kirby
Ronald C. Dansby(3)................. 1993 170,060 --(1) 25,000 --(2)
President of Dixie Marine, Inc.
and
Vice President of Kirby
Steven M. Bradshaw(3)............... 1993 135,360 --(1) 20,000 --(2)
Executive Vice President of Dixie
and Vice President of Kirby
</TABLE>
- ---------------
(1) Bonuses for the 1993 year, payable in 1994, have not been determined as of
the date of Proxy Statement.
(2) Represents the aggregate value of Kirby's contributions under Kirby's Profit
Sharing Plan, 401-K Plan and Excess Benefit Plan. Kirby's contributions
under these deferred contributions plans for the 1993 year have not been
determined as of the date of this Proxy Statement, except for Kirby's
matching contributions under Kirby's 401-K Plan pursuant to which Kirby's
matching contributions to the individual accounts were as follows: George A.
Peterkin, Jr. -- $4,505; J. H. Pyne -- $6,000; Brian K.
Harrington -- $4,557; Ronald C. Dansby -- $4,821; and Steven M.
Bradshaw -- $3,465.
(3) Messrs. Dansby and Bradshaw became executive officers in 1993, therefore,
their compensation prior to 1993 is omitted.
7
<PAGE> 10
The following table discloses, for each of the named Executive Officers,
options granted during the year ended December 31, 1993. The amounts shown for
each of the named Executive Officers as potential realizable values for such
options are based on assumed annual rates of stock price appreciation of 0%, 5%
and 10% over the full ten year term of the options. The amounts shown as
potential realizable value for all stockholders as a group represent the
corresponding increases in the market value of 28,274,383 outstanding shares of
Common Stock held by all stockholders as of December 31, 1993, No gain to the
optionees is possible without an increase in the stock price that would benefit
all stockholders proportionately. These potential realizable values are based
solely on arbitrarily assumed rates of appreciation required by applicable SEC
regulations. Actual gains, if any, on stock option exercises are dependent on
the future performance of the Common Stock and overall market conditions. There
can be no assurance that the amounts reflected in this table will be achieved.
OPTIONS/SAR GRANTS IN LAST FISCAL YEAR
<TABLE>
<CAPTION>
POTENTIAL REALIZED VALUE
AT ASSUMED ANNUAL RATES
INDIVIDUAL GRANTS OF STOCK PRICE
--------------------------------------------------- APPRECIATION
% OF TOTAL FOR OPTION TERM
OPTIONS/SARS ------------------------------------
GRANTED TO EXERCISE 0% 5% 10%
EMPLOYEES OR BASE ANNUAL ANNUAL ANNUAL
OPTIONS/SARS IN FISCAL PRICE EXPIRATION GROWTH GROWTH GROWTH
NAME GRANTED(#)(1) YEAR ($/SH) DATE RATE($)(2) RATE($)(2) RATE($)(2)
---- ------------- --------- ------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
George A. Peterkin, Jr.......... 30,000 8.38% $12.9375 01-19-2003 $ 0 $ 244,089 $ 618,875
J. H. Pyne...................... 30,000 8.38% 12.9375 01-19-2003 0 244,089 618,875
Brian K. Harrington............. 15,000 4.19% 12.9375 01-19-2003 0 122,045 309,285
10,000 2.79% 16.5625 04-20-2003 0 104,161 263,964
Ronald C. Dansby................ 15,000 4.19% 12.9375 01-19-2003 0 122,045 309,285
10,000 2.79% 18.1875 12-08-2003 0 114,380 289,862
Steven M. Bradshaw.............. 10,000 2.79% 12.9375 01-19-2003 0 81,363 206,190
10,000 2.79% 18.1875 12-08-2003 0 114,380 289,862
All stockholders as a group..... N/A N/A N/A N/A 0 380,081,861(3) 963,202,061(3)
</TABLE>
- ---------------
(1) These options become exercisable 25% after one year, 50% after two years,
75% after three years and 100% after four years of the date of grant. The
exercise price for these options may be paid with already owned shares of
Common Stock. No stock appreciation rights were granted with these stock
options.
(2) For stock options, the value is based on the exercise price per share of
Common Stock, which was the average of the high and low sales price per
share of Common Stock on the date of grant on the American Stock Exchange
("AMEX") as reported by The Wall Street Journal.
(3) For stockholders as a group, the value is based on $21.375 per share of
Common Stock, which was the closing price per share of Common Stock on
December 31, 1993 on the AMEX as reported by The Wall Street Journal and
28,274,383 outstanding shares of Common Stock as of December 31, 1993.
8
<PAGE> 11
The following table discloses for each of the named Executive Officers,
their option exercises in the last fiscal year and the values for their options
at December 31, 1993.
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
DECEMBER 31, 1993 OPTION/SAR VALUES
<TABLE>
<CAPTION>
NUMBER OF SECURITIES
UNDERLYING UNEXERCISED VALUE OF UNEXERCISED
OPTIONS/SARS IN-THE-MONEY OPTIONS/SARS
SHARES AT DECEMBER 31, 1993(#) AT DECEMBER 31, 1993($)(2)
ACQUIRED ON VALUE ---------------------------- ----------------------------
NAME EXERCISE(#) REALIZED($)(1) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
---- ----------- --------------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
George A. Peterkin,
Jr. ............... 0 $ 0 137,500 37,500 $ 2,300,156 $ 316,406
J. H. Pyne........... 45,000 645,000 73,750 51,250 1,109,609 458,203
Brian K.
Harrington......... 0 0 32,500 42,500 437,735 351,640
Ronald C. Dansby..... 0 0 28,750 41,250 382,187 316,875
Steven M. Bradshaw... 0 0 25,000 25,000 373,672 162,890
</TABLE>
- ---------------
(1) Based on the closing price per share of Common Stock on the date of exercise
on the AMEX as reported by The Wall Street Journal.
(2) Based on $21.375 per share of Common Stock, which was the closing price per
share of Common Stock on December 31, 1993 on the AMEX as reported by The
Wall Street Journal.
COMPENSATION AGREEMENTS
Dixie has a Deferred Compensation Agreement with J. H. Pyne in connection
with his employment as President of Dixie. The agreement provides for benefits
to Mr. Pyne totaling $4,175 per month commencing upon the later of his severance
from the employment of Dixie or his 65th birthday and continuing until the month
of his death. If Mr. Pyne should die prior to receiving such deferred
compensation, the agreement provides for monthly payments to his beneficiary for
a period of sixty months. The agreement also provides that no benefits will be
paid if Mr. Pyne is terminated for cause (as defined in the agreement). Also,
payments will be reduced by 50% should Mr. Pyne leave Dixie for any reason prior
to January 31, 1995.
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The Board of Directors of Kirby has a standing Compensation Committee whose
functions are to (1) make recommendations to the Board of Directors regarding
compensation policies, including salary, bonuses and other compensation and (2)
make recommendations to the Board of Directors regarding the granting of stock
options under Kirby's stock option plans. The Compensation Committee held five
meetings in 1993. In 1993, the Board of Directors did not modify or reject in
any material way any action or recommendation of the Compensation Committee.
Compensation of executive officers is based primarily on three elements:
(1) base salary, (2) annual incentives, such as bonuses, and (3) long-term
incentives, primarily stock options. The basic goal is to pay compensation
comparable to similar corporations, giving due regard to relative financial
performance, and to tie annual incentives and long-term incentives to corporate
performance and a return to the Kirby stockholders.
With regard to base salary, the objective is to set compensation at
somewhat below the competitive median for similar positions in similar
companies, and the Compensation Committee believes that this has generally been
achieved.
With regard to the annual cash incentives for an executive officer,
exclusive of base salary, the Compensation Committee attempts to set bonuses at
a level that with a positive performance by the executive officer, and a certain
level of profitability by Kirby, the total compensation for such executive
officer, being base salary plus annual cash incentives, should be above the
median total cash compensation of similar corporations and positions. The
Compensation Committee believes that total annual cash compensation above the
median for similar corporations and positions is justified since a significant
portion of each executive
9
<PAGE> 12
officer's total annual cash compensation is at risk due to both individual as
well as company performance factors.
The executive officers of Kirby's marine transportation group are
considered for annual incentive bonuses based on a Return on Invested Capital
formula that calculates a bonus pool and then distributes such bonus pool to
executive officers based on company and individual performance.
Annual incentive bonuses for corporate executive officers who do not work
for any of Kirby's operating groups are recommended by the Compensation
Committee and are determined by the nonmanagement members of the Board of
Directors. Major factors in determining these bonuses are the perceived
individual contributions and the correlation of such contributions to the
overall corporate performance, the level of bonuses paid to executive officers
in the marine transportation groups and the strategic and financial performance
of Kirby. Stock options granted to executive officers and other Kirby employees
have been granted at a price equal to the fair market value of Common Stock on
the date of grant and generally vest in equal increments over a period of four
years and, unless earlier terminated, are for a period of ten years.
The Compensation Committee's objective for long-term incentive compensation
for executive officers is the median for long-term incentive compensation of
similar corporations and positions, giving effect to Kirby's long-term
performance relative to its peers.
In addition to retirement, health care and similar benefits, the primary
long-term incentives for executive officers are options under Kirby's stock
option plans. Generally, in January or December of each year, stock option
awards are considered by the Compensation Committee, which makes recommendations
to the Board of Directors. The Compensation Committee believes that Kirby's
long-term executive officer compensation, as evidenced by the options granted to
date, do not exceed the value of stock options granted by similar companies to
their executive officers holding similar positions.
The Compensation Committee encounters certain difficulties in establishing
a peer group of companies for compensation comparison purposes because there are
few publicly traded marine transportation companies of similar size and none
with a similar service mix. Some other marine transportation companies are
limited partnerships or subsidiaries of larger public corporations, again making
comparisons difficult. The Compensation Committee also compares Kirby's
executive compensation to the executive compensation of similar-sized publicly
held industrial companies.
Based on the report referred to below and other information available to
it, the Compensation Committee believes that Kirby's executive compensation is
consistent with the criteria set forth above. The Compensation Committee
recognizes that certain elements of executive compensation are determined on a
subjective basis; however, the Compensation Committee believes that, since it is
satisfied that total executive compensation is not excessive, these procedures
are better for both Kirby and its executives than would be a rigid formula-
driven system. The Compensation Committee recognizes that external factors, such
as flood waters, low water levels, and other weather-related conditions as well
as the general business climate, impact Kirby's earnings and the Compensation
Committee looks to longer-term results rather than endeavoring to equate
compensation to some annual percentage of earnings or increased earnings.
The base salary compensation for the Chief Executive Officer of Kirby for
1993 was established at $300,000 by the Kirby Board of Directors on the
recommendation of the Compensation Committee on January 21, 1993. The
Compensation Committee set the Chief Executive Officer's 1993 base salary based
in part on the report of a nationally recognized consulting firm discussed below
that found that his 1992 base salary was too low. The $75,000 bonus paid the
Chief Executive Officer of Kirby in 1993, which was earned in 1992, was
determined by the Kirby Board of Directors on April 21, 1993 on the
recommendation of the Compensation Committee.
The Chief Executive Officer's base pay and bonus were generally based on
the same factors and criteria outlined above, being compensation paid to chief
executives of corporations of similar size, individual as well as corporate
performance and a general correlation with compensation of other executive
officers of Kirby. Certain other factors the Compensation Committee considered
in evaluating Kirby's corporate performance as it affected the Chief Executive
Officer's total annual cash compensation are discussed below.
10
<PAGE> 13
The Compensation Committee also recommended and the Board granted in
January, 1993 a nonqualified stock option to the Chief Executive Officer for
30,000 shares of Common Stock. The Compensation Committee recommended the
granting of a stock option for 30,000 shares to the Chief Executive Officer
based on its belief that stock options are a key element in Kirby's executive
compensation policy. The Compensation Committee recommends the granting of stock
options for executive officers based on its evaluation of individual performance
and Kirby's overall performance. As stated, the Compensation Committee
recognizes that there is a significant subjective element in this procedure, but
believes that such procedure is better suited to Kirby than would be a
formula-driven policy. Total options outstanding at the end of 1993 were for
972,050 shares, constituting 3.4% of the then outstanding Common Stock of Kirby,
assuming such options were fully exercised. The Compensation Committee believes
that options in this amount are justified and are within the range of similar
corporations that consider stock options an important part of their executive
compensation package and that the options held by the Chief Executive Officer
are an appropriate portion of total options.
In 1992, the Compensation Committee engaged a nationally recognized
consulting firm to assess the existing Executive Compensation Program and make
recommendations for changes. The study found that for the 1988-1992 period, the
profitability performance of Kirby versus a transportation peer group and versus
the S&P 400 had been well above the median and concluded that for the Chief
Executive Officer, in particular, and for the entire executive group, pay levels
were below levels justified by the performance of Kirby.
As a result of the above report, the Compensation Committee reviewed its
policies and generally concluded that its base pay compensation policy was sound
(except that the Chief Executive Officer was under-compensated in light of the
base pay compensation policy); the annual incentive policy was satisfactory, but
could be simplified so as to be better understood by employees; and stock option
grants needed to be made on a more structured basis. In light of its
conclusions, the Compensation Committee developed, with the assistance of the
nationally recognized consulting firm that analyzed Kirby's compensation, a
Corporate Policy and Procedures Memorandum for an Incentive Bonus Program (the
"Incentive Compensation Policy"), which was adopted by the Board of Directors
effective January 1, 1993.
The Incentive Compensation Policy will be employed to determine bonuses
paid in 1994, based on 1993 performance. Although the Compensation Committee is
still studying policies and procedures for a more structured stock option grant
program, the Compensation Committee believes that past and current stock option
grants are well within the parameters of any more formal program that might be
adopted.
Other factors considered by the Compensation Committee relating to the
performance of Kirby's executive officers over time have been the successful
sale of the Kirby oil and gas business in 1988, the concentration of company
resources in the marine transportation and diesel repair field, which has
resulted in the acquisition of six large and several smaller companies between
1989 and 1993 and the 1992 merger of another insurance company into Kirby's
insurance subsidiary. The above mentioned acquisitions and merger have resulted
in Kirby's total assets increasing from $172 million at December 31, 1988 to
$575 million at December 31, 1993. The Compensation Committee also believes that
the executive officers have done a commendable job in guiding Kirby through the
current recessionary period and the resulting commensurate reductions in demand
for marine transportation, while positioning Kirby for continued growth and
profitability from its customer acceptance, safety record, maintenance standards
and the acquisitions and merger mentioned above.
COMPENSATION COMMITTEE
William M. Lamont, Jr., Chairman
P.T. Bee
George F. Clements, Jr.
Robert G. Stone, Jr.
J. Virgil Waggoner
Henry Gilchrist, Advisory Member
11
<PAGE> 14
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No member of the Compensation Committee is or has been an officer or
employee of Kirby or any of its subsidiaries or had any relationship requiring
disclosure pursuant to Item 404 of SEC Regulation S-K. In 1993, no executive
officer of Kirby served on the Compensation Committee, or as a director of
another entity, one of whose executive officers served on the Compensation
Committee or on Kirby's Board of Directors.
KIRBY COMMON STOCK PERFORMANCE GRAPH
The following performance graph compares the 5-year cumulative return of
Kirby's Common Stock with that of the S&P 500 and the Dow Jones Marine
Transportation Index:
COMPARATIVE FIVE-YEAR TOTAL RETURNS
KIRBY CORPORATION, S&P 500, DOW JONES MARINE TRANSPORTATION INDEX
(PERFORMANCE RESULTS THROUGH 12/31/93)
<TABLE>
<CAPTION>
MEASUREMENT PERIOD
FISCAL YEAR COVERED) KEX S&P 500 TRANS. INDEX
- --------------------- --- ------- ------------
<S> <C> <C> <C>
1988 100.00 100.00 100.00
1989 217.01 131.49 128.31
1990 179.39 127.32 82.13
1991 283.56 166.21 120.20
1992 303.81 179.30 102.42
1993 494.77 197.23 130.16
</TABLE>
Each index assumes $100 invested at January 1, 1988 and is calculated
assuming quarterly reinvestment of dividends and quarterly weighting by market
capitalization.
SECTION 16(A) COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), requires Kirby's officers and directors, and persons who own
more than 10% of a registered class of Kirby's equity securities, to file
reports of ownership and changes of ownership with the SEC and the AMEX.
Officers, directors and greater than 10% stockholders of Kirby are required by
SEC regulation to furnish Kirby with copies of all Section 16(a) forms they
file.
Based solely on the review of the copies of such forms received, Kirby
believes that, from January 1, 1993 to December 31, 1993, all filing
requirements under Section 16(a) applicable to its officers, directors and
greater than 10% beneficial owners were complied with.
12
<PAGE> 15
APPROVAL
Assuming the presence of a quorum, each of the nominees for Director
requires the approval of a majority of the shares of Common Stock represented
and voting in person or by proxy at the 1994 Annual Meeting. Proxies will be
voted for or against each of the nominees in accordance with specifications
marked thereon, and, if no specification is made, will be voted in favor of the
election of each of the nominees.
BOARD OF DIRECTORS OF KIRBY UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE
ELECTION OF EACH OF THE INDIVIDUALS NOMINATED FOR ELECTION AS A DIRECTOR.
PROPOSAL TO APPROVE THE 1994 EMPLOYEE STOCK OPTION PLAN (ITEM 2)
On January 18, 1994, the Board of Directors adopted, subject to stockholder
approval, the 1994 Employee Plan, the text of which is attached as Exhibit A to
this Proxy Statement. Unless the 1994 Employee Plan is approved by the
Stockholders within twelve (12) months after January 18, 1994, the 1994 Employee
Plan and all options granted pursuant to the 1994 Employee Plan shall be null
and void. The material features of the 1994 Employee Plan are discussed below,
but the description is subject to, and is qualified in its entirety by, the full
text of the 1994 Employee Plan.
GENERAL
Purpose
The purpose of the 1994 Employee Plan is to advance the interest of Kirby
by providing additional incentives to attract and retain qualified and competent
employees, upon whose efforts and judgment the success of Kirby (including its
subsidiaries) is largely dependent, through the encouragement of stock ownership
in Kirby by such employees. Unless the context otherwise requires, references to
Kirby in this Item 2 and in Items 3, 4 and 5 shall mean Kirby and any
corporation wherein Kirby owns, directly or indirectly, 50% or more of the total
combined voting power (a "Subsidiary").
Eligibility
Those persons who are employees of Kirby or directors of a Subsidiary, but
excluding directors of Kirby Corporation who are not employees of Kirby, are
eligible to participate in the 1994 Employee Plan. As of March 14, 1994,
approximately 100 persons were eligible for 1994 Employee Options.
Types of Options
The 1994 Employee Plan authorizes the granting of incentive stock options
("1994 Incentive Options") to purchase Common Stock to eligible employees of
Kirby and the granting of nonqualified stock options ("1994 Employee
Nonqualified Options") to eligible persons of Kirby to purchase Common Stock.
Unless the context otherwise requires, the term "1994 Employee Option" includes
both 1994 Incentive Options and 1994 Employee Nonqualified Options.
Administration
The 1994 Employee Plan will be administered by the Compensation Committee
of the Board of Directors or other committee thereof (the "1994 Employee Plan
Administrator"). The 1994 Employee Plan Administrator shall consist of at least
three members of the Board of Directors all of whom are "disinterested persons."
Under the 1994 Employee Plan, a disinterested person is one who is not eligible
at the time he exercises discretion in administering the 1994 Employee Plan and
has not at any time within one year prior thereto been eligible for selection as
a person to whom shares of Common Stock, stock options or stock appreciation
rights may be granted pursuant to the 1994 Employee Plan or any other plan of
Kirby in which administrators of such plan use discretion in granting stock,
stock options or stock appreciation rights of Kirby. The 1994 Employee Plan
Administrator in its sole discretion shall determine the employees to be awarded
1994 Employee Options, the number of shares subject thereto and the exercise
price thereof, subject to certain
13
<PAGE> 16
limitations. In addition, the determinations and the interpretation and
construction of any provision of the 1994 Employee Plan by the 1994 Employee
Plan Administrator shall be final and conclusive. Currently, the 1994 Employee
Plan Administrator is the Compensation Committee.
Shares of Common Stock Subject to the 1994 Employee Plan
A total of 1,000,000 shares of Common Stock (subject to adjustment as
discussed below) have been reserved for sale upon exercise of 1994 Employee
Options granted under the 1994 Employee Plan. As of March 14, 1994, no 1994
Employee Options had been granted.
Granting of 1994 Employee Options
The 1994 Employee Plan Administrator grants 1994 Employee Options from time
to time in its discretion. Accordingly, it is impossible at this time to
indicate the number, names or positions of eligible persons who will receive
1994 Employee Options or the number of shares for which 1994 Employee Options
will be granted to any eligible persons under the 1994 Employee Plan.
Exercise Price of 1994 Employee Options
The 1994 Incentive Options may not be granted with an exercise price per
share that is less than the fair market value of the Common Stock at the date of
grant. The 1994 Employee Nonqualified Options may be granted with any exercise
price determined by the 1994 Employee Plan Administrator.
Payment of Exercise Price
The exercise price of a 1994 Employee Option may be paid in cash, certified
or cashier's check, by money order, personal check or delivery of already owned
shares of Common Stock having a fair market value equal to the exercise price,
or by delivery of a combination of cash and already owned shares of Common
Stock; provided, however, that if the optionee acquired such stock directly or
indirectly from Kirby, he shall have owned such stock to be surrendered for six
months prior to tendering such stock for the exercise of a 1994 Employee Option.
One purpose for permitting delivery of Common Stock in full or partial payment
of the exercise price is to make it possible for the optionee to exercise his
1994 Employee Option without the need for the sale of Common Stock already
owned, which sale could result in incurring capital gain (or loss) for federal
income tax purposes or potential Section 16(b) liability under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
Special Provisions for 1994 Incentive Stock Options
An employee may receive more than one 1994 Incentive Option, but the
maximum aggregate fair market value of the Common Stock (determined when the
1994 Incentive Option is granted) with respect to which 1994 Incentive Options
are first exercisable by such employee in any calendar year cannot exceed
$100,000. In addition, no 1994 Incentive Option may be granted to an employee
owning directly or indirectly stock possessing more than 10% of the total
combined voting power of all classes of stock of Kirby unless the exercise price
is set at not less than 110% of the fair market value of the shares subject to
such 1994 Incentive Stock Option on the date of grant and such 1994 Incentive
Option expires not later than five (5) years from the date of grant. Awards of
1994 Employee Nonqualified Options are not subject to these special limitations.
Nontransferability of 1994 Employee Options
No 1994 Employee Option granted under the 1994 Employee Plan is assignable
or transferable otherwise than by will or by the laws of descent and
distribution. During the lifetime of an optionee, his 1994 Employee Option is
exercisable only by him or his guardian or legal representative.
14
<PAGE> 17
Exercisability of 1994 Employee Options
The 1994 Employee Plan Administrator, in its sole discretion, may limit the
optionee's right to exercise all or any portion of a 1994 Employee Option until
one or more dates subsequent to the date of grant. The 1994 Employee Plan
Administrator also has the right, exercisable in its sole discretion, to
accelerate the date on which all or any portion of a 1994 Employee Option may be
exercised.
The 1994 Employee Plan provides that thirty days prior to certain major
corporate events such as, among other things, certain changes in control,
mergers or sales of substantially all of the assets of Kirby (a "Major Corporate
Event"), each 1994 Employee Option shall immediately become exercisable in full.
Expiration of 1994 Employee Options
The expiration date of a 1994 Employee Option will be determined by the
1994 Employee Plan Administrator at the time of the grant, but in no event will
a 1994 Employee Option be exercisable after the expiration of ten (10) years
from the date of grant of the 1994 Employee Option.
If an optionee's employment is terminated for cause, all rights of such
optionee under the 1994 Employee Plan cease and the 1994 Employee Options
granted to such optionee become null and void for all purposes. The 1994
Employee Plan further provides that in most instances a 1994 Employee Option
must be exercised by the optionee within 30 days after the termination of an
optionee's employment with Kirby (for any reason other than termination for
cause, mental or physical disability or death), if and to the extent such 1994
Employee Option was exercisable on the date of such termination. If the optionee
is not otherwise employed by Kirby, his 1994 Employee Option must be exercised
within 30 days of the date he ceases to be a director of a Subsidiary or one (1)
year after such date if optionee shall die.
Generally, if an optionee's termination of employment is due to mental or
physical disability, the optionee will have the right to exercise the 1994
Employee Option (to the extent otherwise exercisable on the date of termination)
for a period of one year from the date on which the optionee suffers the mental
or physical disability. If an optionee dies while actively employed by Kirby,
the 1994 Employee Option may be exercised (to the extent otherwise exercisable
on the date of death) within one year of the date of the optionee's death by the
optionee's legal representative or legatee.
As described above, a 1994 Employee Option becomes exercisable in full
thirty days prior to a Major Corporate Event. In anticipation of a Major
Corporate Event, however, the 1994 Employee Plan Administrator may, after notice
to the optionee, cancel the optionee's 1994 Employee Options on the consummation
of the Major Corporate Event. The optionee, in any event, will have the
opportunity to exercise his 1994 Employee Options in full prior to such Major
Corporate Event.
Expiration of the 1994 Employee Plan
The 1994 Employee Plan will expire on January 18, 2004 and any 1994
Employee Option outstanding on such date will remain outstanding until its has
either expired or has been fully exercised.
Adjustments
The 1994 Employee Plan provides for adjustments to the number of shares
under which 1994 Employee Options may be granted, to the number of shares
subject to outstanding 1994 Employee Options and to the exercise price of such
outstanding 1994 Employee Options in the event of a declaration of a stock
dividend or any recapitalization resulting in a stock split-up, combination or
exchange of shares of Common Stock.
Amendments
The 1994 Employee Plan Administrator may amend, suspend or terminate the
1994 Employee Plan or any 1994 Employee Option at any time subject to
stockholder approval in certain instances, provided that such action may not,
without the consent of the optionee, substantially impair the rights of an
optionee under an outstanding 1994 Employee Option without the optionee's
written consent. The 1994 Employee Plan
15
<PAGE> 18
Administrator may not amend the 1994 Employee Plan without further stockholder
approval to increase the number of shares of Common Stock reserved for issuance,
to change the class of employees eligible to participate in the 1994 Employee
Plan, to permit the granting of 1994 Employee Options with more than a 10-year
term or to extend the termination date of the 1994 Employee Plan.
Registration
Kirby anticipates registering the shares issuable pursuant to the exercise
of 1994 Employee Options with the SEC in 1994.
Stockholder Approval
Approval of the 1994 Employee Plan by stockholders of Kirby is required by
Kirby's Board of Directors and as a condition for qualifying the 1994 Incentive
Options as such under the Internal Revenue Code of 1986, as amended (the
"Code"). Stockholder approval also is one of the conditions of Rule 16b-3, a
rule promulgated by the SEC that provides an exemption from the operation of the
"short-swing profit" recovery provisions of Section 16(b) of the Exchange Act,
with respect to Kirby's officers' and directors' acquisition of 1994 Employee
Options and the use of already owned Common Stock as full or partial payment for
the exercise price of options granted under the 1994 Employee Plan. Finally,
stockholder approval of the 1994 Employee Plan is required by the AMEX as a
condition for listing the additional Common Stock that may be issued upon
exercise of 1994 Employee Options.
FEDERAL INCOME TAX CONSEQUENCES
Grants of 1994 Employee Options
Under current tax laws the grant of a 1994 Employee Option will not be a
taxable event to the recipient optionee and Kirby will not be entitled to a
deduction with respect to such grant.
Exercise of 1994 Employee Nonqualified Options and Subsequent Sale of Stock
Upon the exercise of a 1994 Employee Nonqualified Option, an optionee will
recognize ordinary income at the time of exercise equal to the excess of the
then fair market value of the shares of Common Stock received over the exercise
price. The taxable income recognized upon exercise of a 1994 Employee
Nonqualified Option will be treated as compensation income subject to
withholding and Kirby will be entitled to deduct as a compensation expense an
amount equal to the ordinary income an optionee recognizes with respect to such
exercise. When Common Stock received upon the exercise of a 1994 Employee
Nonqualified Option subsequently is sold or exchanged in a taxable transaction,
the holder thereof generally will recognize capital gain (or loss) equal to the
difference between the total amount realized and the fair market value of the
Common Stock on the date of exercise; the character of such gain or loss as
long-term or short-term capital gain or loss will depend upon the holding period
of the shares following exercise.
Exercise of 1994 Incentive Options and Subsequent Sale of Stock
The exercise of a 1994 Incentive Option will not be taxable to the
optionee, and Kirby will not be entitled to any deduction with respect to such
exercise. However, to qualify for this favorable tax treatment of incentive
stock options under the Code, the optionee may not dispose of the shares of
Common Stock acquired upon the exercise of a 1994 Incentive Option until after
the later of two years following the date of grant or one year following the
date of exercise. The surrender of shares of Common Stock acquired upon the
exercise of a 1994 Incentive Option in payment of the exercise price of a 1994
Employee Option within the required holding period for incentive stock options
under the Code will be a disqualifying disposition of the surrendered shares.
Upon any subsequent taxable disposition of shares of Common Stock received upon
exercise of a qualifying 1994 Incentive Option, the optionee generally will
recognize long-term or short-term capital gain (or loss) equal to the difference
between the total amount realized and the exercise price of the 1994 Employee
Option.
16
<PAGE> 19
If a 1994 Employee Option that was intended to be an incentive stock option
under the Code does not qualify for favorable incentive stock option treatment
under the Code due to the failure to satisfy the holding period requirements,
the optionee may recognize ordinary income in the year of the disqualifying
disposition. Provided the amount realized in the disqualifying disposition
exceeds the exercise price, the ordinary income an optionee shall recognize in
the year of a disqualifying disposition shall be the lower of (i) the excess of
the amount realized over the exercise price or (ii) excess of the fair market
value of the Common Stock at the time of the exercise over the exercise price.
In addition, the optionee shall recognize capital gain on the disqualifying
disposition in the amount, if any, by which the amount realized in the
disqualifying disposition exceeds the fair market value of the Common Stock at
the time of the exercise. Such capital gain shall be taxable as long-term or
short-term capital gain, depending on the optionee's holding period for such
shares.
Notwithstanding the favorable tax treatment of 1994 Incentive Options for
regular tax purposes, as described above, for alternative minimum tax purposes,
a 1994 Incentive Option is generally treated in the same manner as a 1994
Employee Nonqualified Option. Accordingly, an optionee must generally include in
alternative minimum taxable income for the year in which a 1994 Incentive Option
is exercised the excess of the fair market value on the date of exercise of the
shares of Common Stock received over the exercise price. If, however, an
optionee disposes of Common Stock acquired upon the exercise of a 1994 Incentive
Option in the same calendar year as the exercise, only an amount equal to the
optionee's ordinary income for regular tax purposes with respect to such
disqualifying disposition will be recognized for the optionee's calculation of
alternative minimum taxable income in such calendar year.
APPROVAL
Assuming the presence of a quorum, the proposal to approve the 1994
Employee Plan adopted by the Board of Directors of Kirby requires the approval
by the holders of a majority of the shares of Common Stock represented and
voting in person or by proxy at the 1994 Annual Meeting. Proxies will be voted
for or against such proposal in accordance with specifications marked thereon,
and, if no specification is made, will be voted in favor of such proposal.
THE BOARD OF DIRECTORS OF KIRBY UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE
PROPOSAL TO APPROVE THE 1994 EMPLOYEE STOCK OPTION PLAN FOR KIRBY CORPORATION
PROPOSAL TO APPROVE THE 1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN (ITEM 3)
On January 18, 1994, the Board of Directors adopted, subject to stockholder
approval, the 1994 Director Plan, the text of which is attached as Exhibit B to
this Proxy Statement. Unless the 1994 Director Plan is approved by the
stockholders within one year of January 18, 1994, the 1994 Director Plan and
options granted under the 1994 Director Plan shall be null and void. The
material features of the 1994 Director Plan are discussed below, but the
description is subject to, and is qualified in its entirety by, the full text of
the 1994 Director Plan.
GENERAL
Purpose
The purpose of the 1994 Director Plan is to advance the interest of Kirby
by providing additional incentives to attract and retain as independent
Directors persons of training, experience and ability to encourage the sense of
proprietorship of such persons and to stimulate the active interests of such
persons in the development and financial success of Kirby.
17
<PAGE> 20
Eligibility
The only persons eligible to participate under the 1994 Director Plan are
those persons who are directors of Kirby Corporation (including Advisory
Directors) and who are not employees of Kirby. As of March 14, 1994, eight
persons were eligible for 1994 Director Options.
Type of Options
The 1994 Director Plan authorizes the granting of nonqualified stock
options ("1994 Director Options") to purchase Common Stock to nonemployee
directors of Kirby Corporation.
Administration
The 1994 Director Plan is administered by the Compensation Committee of the
Board of Directors or other committee thereof (the "1994 Director Plan
Administrator"). The 1994 Director Plan Administrator shall consist of at least
three members of the Board of Directors. The 1994 Director Plan Administrator
has discretion to make all determinations under the 1994 Director Plan and such
determinations shall be final, binding and conclusive.
Shares of Common Stock Subject to 1994 Director Plan
A total of 100,000 shares of Common Stock (subject to adjustment as
described below) are reserved for sale upon exercise of 1994 Director Options.
As of March 14, 1994, there were 12,000 shares of Common Stock subject to
outstanding 1994 Director Options and 88,000 shares of Common Stock reserved
under the 1994 Director Plan that were not subject to outstanding 1994 Director
Options. As of the same date, the market value of the 12,000 shares of Common
Stock reserved for issuance under the outstanding 1994 Director Options was
$255,000, based on the closing price per share of Common Stock of $21.25 on
March 14, 1994 on the AMEX as reported by The Wall Street Journal.
Automatic Grants of 1994 Director Options
Pursuant to the 1994 Director Plan, Messrs. Bee, Clements, Kleifgen,
Lamont, Murchison, Stone, Waggoner and Gilchrist each received, subject to
stockholder approval of the 1994 Director Plan, on January 18, 1994, a 1994
Director Option to purchase 1,500 shares of Common Stock at the exercise price
per share of $21.375. The last reported sale price of the Common Stock on the
AMEX on March 14, 1994 was $21.25. Unless terminated earlier, each of the 1994
Director Options granted on January 18, 1994 expires ten years after the date of
grant.
On the first business day immediately following the date of each Annual
Meeting of Stockholders of Kirby after January 18, 1994, each eligible
nonemployee director and Advisory Director shall receive a 1994 Director Option
exercisable for 1,500 shares of Common Stock. If all the nonemployee Director
nominees are reelected at the 1994 Annual Meeting (and Mr. Gilchrist is an
Advisory Director on April 20, 1994), Messrs. Clements, Kleifgen, Lamont,
Murchison, Stone, Waggoner and Gilchrist will receive a 1994 Director Option on
April 20, 1994 exercisable for 1,500 shares of Common Stock with an exercise
price per share equal to the fair market value of a share of Common Stock on
April 20, 1994.
Exercise Price of 1994 Director Options
The 1994 Director Plan provides that 1994 Director Options shall have an
exercise price per share that is the fair market value of a share of Common
Stock at the date of grant.
Payment of Exercise Price
The exercise price of a 1994 Director Option may be paid in cash, certified
or cashier's check, by money order, by personal check or by delivery of already
owned shares of Common Stock having a fair market value equal to the exercise
price, or by delivery of a combination of the above; provided, however, that if
the optionee acquired such stock to be surrendered directly or indirectly from
Kirby, he shall have owned such
18
<PAGE> 21
stock for six months prior to tendering such stock for the exercise of a 1994
Director Option. One purpose for permitting delivery of Common Stock of Kirby in
full or partial payment of the exercise price is to make it possible for the
optionee to exercise his 1994 Director Option without the need to sell Common
Stock already owned, which sale could result in the optionee incurring capital
gain (or loss) for federal income tax purposes or potential Section 16(b)
liability under the Exchange Act.
Nontransferability of 1994 Director Options
No 1994 Director Option is assignable or transferable otherwise than by
will or by the laws of descent and distribution. During the lifetime of an
optionee, the 1994 Director Option is exercisable only by him, his guardian or
legal representative.
Exercisability of 1994 Director Options
Subject to approval of the 1994 Director Plan by the stockholders, a 1994
Director Option shall not be exercisable until the six-month anniversary of the
date of grant and on or after the six-month anniversary of the date of grant
shall be fully exercisable.
The 1994 Director Plan provides that thirty days prior to a Major Corporate
Event each 1994 Director Option shall immediately become exercisable in full.
Expiration of 1994 Director Options
In most instances, a 1994 Director Option shall terminate one year after
the date that the optionee ceases to be a Director for any reason. In all cases,
each 1994 Director Option shall terminate on the tenth anniversary of its date
of grant.
As described above, a 1994 Director Option becomes exercisable in full
thirty days prior to a Major Corporate Event. In anticipation of a Major
Corporate Event, however, the 1994 Director Plan Administrator may, after notice
to the optionee, cancel the optionee's 1994 Director Options on the consummation
of the Major Corporate Event. The optionee, in any event, will have the
opportunity to exercise his 1994 Director Options in full prior such Major
Corporate Event.
Expiration of the 1994 Director Plan
The 1994 Director Plan will expire on January 18, 2004 and any 1994
Director Option outstanding on such date will remain outstanding until its has
either expired or has been exercised.
Adjustments
The 1994 Director Plan provides in the event of any stock dividend, stock
split-up, combination or exchange of shares of Common Stock for the adjustment
of (i) the number of shares for which 1994 Director Options may be granted; (ii)
the number of shares subject to outstanding 1994 Director Options; (iii) the
exercise price of outstanding 1994 Director Options; and (iv) the number of
shares of Common Stock subject to subsequently granted 1994 Director Options.
Amendments
For the purpose of complying with changes in the Code or the Employee
Retirement Income Security Act, as amended, the 1994 Director Plan Administrator
may amend, modify, suspend or terminate the 1994 Director Plan at any time. For
the purpose of meeting or addressing any other changes in legal requirements or
any other purpose, the 1994 Director Plan Administrator may amend, modify,
suspend or terminate the 1994 Director Plan only once every six months. In any
event, the 1994 Director Plan may not be amended without the consent of the
holders of a majority of the shares of Common Stock represented and voting in
person or by proxy 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 1994
Director Plan; (ii) increase materially the benefits accruing to
19
<PAGE> 22
optionees under the 1994 Director Plan; or (iii) modify materially the
requirements as to eligibility for participation in the 1994 Director Plan.
Registration
Kirby anticipates registering the shares issuable pursuant to the exercise
of 1994 Director Options with the SEC in 1994.
Value of 1994 Director Options Granted
The following table sets forth as of March 14, 1994 the dollar value of
outstanding 1994 Director Options, subject to stockholder approval.
<TABLE>
<CAPTION>
1994 NONEMPLOYEE DIRECTOR
STOCK OPTION PLAN
OF KIRBY CORPORATION
--------------------------
NUMBER OF
SHARES OF
COMMON STOCK
DOLLAR UNDERLYING 1994
VALUE (1) DIRECTOR OPTIONS
--------- ----------------
<S> <C> <C>
Non-Executive Director Group............................. $ -- 12,000
</TABLE>
- ---------------
(1) Based on the difference between the closing price per share of Common Stock
on March 14, 1994 on the AMEX as reported by The Wall Street Journal and the
exercise price per share for the 1994 outstanding Director Options
multiplied by the number of shares reserved for issuance under such 1994
Director Options.
Stockholder Approval
Approval of the 1994 Director Plan is required by Kirby's Board of
Directors. Additionally, as stated before, stockholder approval is one of the
conditions of Rule 16b-3, a rule promulgated by the SEC that provides an
exemption from the operation of the "short-swing profit" recovery provisions of
Section 16(b) of the Exchange Act with respect to Kirby's directors' acquisition
of 1994 Director Options and the use of already owned Common Stock as full or
partial payment for the exercise price of options granted under the 1994
Director Plan. Stockholder approval is also required by the AMEX as a condition
for listing the additional Common Stock that may be issued upon the exercise of
1994 Director Options.
FEDERAL INCOME TAX CONSEQUENCES
The federal income tax consequences pertinent to the 1994 Director Plan are
very similar to those affecting 1994 Employee Nonqualified Options under the
1994 Employee Plan, described above. The grant of a 1994 Director Option will
not be taxable to an optionee and Kirby will not be entitled to a deduction with
respect to such grant. Upon the exercise of a 1994 Director Option, an optionee
will recognize ordinary income (or loss) at the time of exercise equal to the
excess of the then fair market value of the shares of Common Stock received over
the exercise price. Since participants in the 1994 Director Plan will not be
employees of Kirby, there will be no withholding with respect to the recognized
ordinary income resulting from the exercise of 1994 Director Options (although
the self-employment tax on self-employed persons generally will apply thereto)
and Kirby will be entitled to a deduction as a compensation expense in the
amount of such recognized ordinary income. When shares of Common Stock received
upon the exercise of a 1994 Director Option subsequently are disposed of in a
taxable transaction, the optionee generally will recognize capital gain (or
loss) equal to the difference between the total amount realized and the fair
market value of the Common Stock on the date the 1994 Director Option was
exercised; such capital gain or loss will be long-term or short-term depending
upon the optionee's holding period following the exercise of the 1994 Director
Option.
20
<PAGE> 23
APPROVAL
Assuming the presence of a quorum, the proposal to approve the 1994
Director Plan adopted by the Board of Directors of Kirby requires the approval
by the holders of a majority of the shares of Common Stock represented and
voting in person or by proxy at the 1994 Annual Meeting. Proxies will be voted
for or against such proposal in accordance with specifications marked thereon,
and, if no specification is made, will be voted in favor of such proposal.
THE BOARD OF DIRECTORS OF KIRBY UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE
PROPOSAL TO APPROVE THE 1994 DIRECTOR STOCK OPTION PLAN FOR KIRBY CORPORATION.
PROPOSAL TO APPROVE THE 1993 STOCK OPTION FOR
ROBERT G. STONE, JR. (ITEM 4)
On July 20, 1993, the Board of Directors adopted, subject to stockholder
approval the Stone Option, the text of which is attached as Exhibit C to this
Proxy Statement. Unless the Stone Option is approved by the stockholders within
one year after July 20, 1993, the Stone Option shall terminate and become null
and void. The material features of the Stone Option are discussed below, but the
description is subject to, and is qualified in its entirety by, the full text of
the Stone Option.
GENERAL
Purpose
The purpose of the Stone Option is to provide an incentive to retain Mr.
Robert G. Stone, Jr. as Chairman of the Board of Kirby or as a member of the
Board of Directors of Kirby.
Type of Option
The Stone Option is a nonqualified stock option under the Code.
Administration
The Stone Option is administered by the Compensation Committee of the Board
of Directors consisting of at least two members of the Board of Directors
(excluding Mr. Stone). If the Compensation Committee is not appointed by the
Board of Directors to administer the Stone Option, the Board of Directors (if a
majority of which and a majority of the Directors acting in any manner are
disinterested persons) shall administer the Stone Option (herein the "Stone
Option Administrator" will refer to the Compensation Committee of the Board of
Directors or the Board of Directors, whichever is at the time administering the
Stone Option). By interpretation of the Compensation Committee, a disinterested
person under the Stone Option is one who is not eligible at the time he
exercises discretion in administering the Stone Option and has not at any time
within one year prior thereto been eligible for selection as a person to whom
shares of Common Stock, stock options or stock appreciation rights may be
granted pursuant to the Stone Option or any other plan of Kirby in which
administrators of such plan use discretion in granting stock, stock options or
stock appreciation rights of Kirby. The Stone Option Administrator has
discretion to make all determinations under the Stone Option and such
determinations shall be final and conclusive.
Shares of Common Stock Subject to the Stone Option
The Stone Option is exercisable for 25,000 shares of Common Stock. Except
for certain adjustments as described below, there will be no issuance of more
than 25,000 shares of Common Stock in the aggregate pursuant to the exercise of
the Stone Option. As of March 14, 1994, the market value of the 25,000 shares of
Common Stock reserved under the Stone Option was $531,250, based on the closing
price per share of Common Stock of $21.25 on March 14, 1994 on the AMEX as
reported by The Wall Street Journal.
21
<PAGE> 24
Grant of the Stone Option
Subject to stockholder approval, the Stone Option was granted to Mr. Stone
on July 20, 1993.
Exercise Price of the Stone Option
The Stone Option has an exercise price of $18.625 per share (the mean of
the high and low sales price on the AMEX on July 20, 1993 as reported by The
Wall Street Journal).
Payment of Exercise Price
The exercise price of the Stone Option may be paid in cash, certified or
cashier's check, money order, by personal check or by delivery of already owned
shares of Common Stock having a fair market value equal to the exercise price,
or by delivery of a combination of the above; provided, however that if Mr.
Stone acquired such stock to be surrendered directly or indirectly from Kirby he
shall have owned such stock for six months prior to tendering such stock for the
exercise of the Stone Option. One purpose for permitting delivery of Common
Stock in full or partial payment of the exercise price is to make it possible
for Mr. Stone to exercise the Stone Option without the need to sell Common Stock
already owned, which sale could result in Mr. Stone incurring capital gain (or
loss) for federal income tax purposes or potential Section 16(b) liability under
the Exchange Act.
Nontransferability of the Stone Option
The Stone Option is not assignable or transferable otherwise than by will
or by the laws of descent or distribution. During Mr. Stone's lifetime, the
Stone Option is exercisable only by him, his guardian or legal representative.
Exercisability of the Stone Option
Subject to approval of the Stone Option by the stockholders, the Stone
Option vests (subject to adjustment as provided below) 20% on January 20, 1994
and 20% on the date of each Annual Stockholders Meeting of Kirby beginning in
1994, if following such meeting Mr. Stone is a member of the Board of Directors
of Kirby.
The Stone Option provides that upon a Major Corporate Event, it shall
immediately become exercisable in full.
Expiration of the Stone Option
The Stone Option expires on the earliest to occur of one year after Mr.
Stone's death or July 20, 2003. As described above, the Stone Option becomes
exercisable in full thirty days prior to a Major Corporate Event. In
anticipation of a Major Corporate Event, however, the Stone Option Administrator
may, after notice to the Mr. Stone, cancel the Stone Option on the consummation
of the Major Corporate Event. Mr. Stone, in any event, will have the opportunity
to exercise the Stone Option in full prior to such Major Corporate Event.
Adjustments
The Stone Option provides for the adjustment to the number of shares
subject to the Stone Option, the exercise price of a Stone Option and the
vesting of shares of Common Stock under the Stone Option upon certain events,
such as a stock dividend, recapitalization, merger, consolidation or other
reorganization of Kirby or the Common Stock.
Registration
Kirby anticipates registering the shares of Common Stock issuable pursuant
to the exercise of the Stone Option with the SEC in 1994.
22
<PAGE> 25
Value of the Stone Option
The value of the Stone Option was $65,625 based on the difference between
the closing price per share of Common Stock on March 14, 1994 on the AMEX as
reported by The Wall Street Journal and the exercise price per share for the
Stone Option multiplied by the number of shares reserved for issuance under the
Stone Option.
Stockholder Approval
Approval of the Stone Option is required by Kirby's Board of Directors.
Additionally, as stated before, stockholder approval is one of the conditions of
Rule 16b-3, a rule promulgated by the SEC that provides an exemption from the
operation of the "short-swing profit" recovery provisions of Section 16(b) of
the Exchange Act with respect to the grant of the Stone Option and the use of
already owned Common Stock as full or partial payment of the exercise price of
the Stone Option. Stockholder approval is also required by the AMEX as a
condition for listing the additional Common Stock that may be issued upon the
exercise of the Stone Option.
FEDERAL INCOME TAX CONSEQUENCES
The federal income tax consequences pertinent to the Stone Option are very
similar to those affecting options granted under the 1994 Director Plan. The
grant of the Stone Option is not taxable to him. Generally, upon the exercise of
the Stone Option, Mr. Stone will recognize ordinary income at the time of
exercise equal to the excess of the then fair market value of the shares of
Common Stock received over the exercise price. Since Mr. Stone is not an
employee of Kirby, there will be no withholding with respect to the recognized
ordinary income resulting from the exercise of the Stone Option (although the
self-employment tax on self-employed persons generally will apply thereto) and
Kirby will be entitled to a deduction as a compensation expense in the amount of
such recognized ordinary income. When shares of Common Stock received upon the
exercise of the Stone Option subsequently are disposed of in a taxable
transaction, Mr. Stone generally will recognize capital gain (or loss) in the
amount by which the amount realized exceeds (or is less than) the fair market
value of the Common Stock on the date the Stone Option was exercised; such
capital gain or loss will be long-term or short-term depending upon Mr. Stone's
holding period following the exercise of the Stone Option.
APPROVAL
Assuming the presence of a quorum, the proposal to approve the Stone Option
adopted by the Board of Directors of Kirby requires the approval by the holders
of a majority of the shares of Common Stock represented and voting in person or
by proxy at the 1994 Annual Meeting at which a quorum is present. Proxies will
be voted for or against such proposal in accordance with specifications marked
thereon, and, if no specification is made, will be voted in favor of such
proposal.
THE BOARD OF DIRECTORS OF THE COMPANY (WITH MR. STONE ABSTAINING)
UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE PROPOSAL TO APPROVE THE STONE OPTION.
PROPOSAL TO AMEND THE 1989 DIRECTOR STOCK OPTION PLAN
REDUCING THE NUMBER OF STOCK OPTIONS AUTOMATICALLY GRANTED
TO FUTURE DIRECTORS FROM 10,000 SHARES OF COMMON STOCK
TO 5,000 SHARES OF COMMON STOCK (ITEM 5)
On July 25, 1989, the Board of Directors adopted, and on January 23, 1990,
amended, the 1989 Director Plan for Kirby Exploration Company, Inc. On April 24,
1990, the stockholders approved the 1989 Director Plan, as amended and restated.
On January 18, 1994, the Board of Directors adopted an amendment to the 1989
Director Plan, subject to stockholder approval ("Amendment No. 1 to the 1989
Director Plan"). The text of Amendment No. 1 to the 1989 Director Plan is
attached as Exhibit D to this Proxy Statement.
23
<PAGE> 26
As discussed in Item 2, the Board of Directors adopted the 1994 Director
Plan on January 18, 1994, subject to stockholder approval (see "Item 2"),
wherein each nonemployee director of Kirby receives a 1994 Director Option
exercisable for 1,500 shares of Common Stock (subject to adjustment as provided
in the 1994 Director Plan) on January 18, 1994 and each day after his annual
reelection as a nonemployee director of Kirby. As a result of the adoption of
the 1994 Director Plan, subject to stockholder approval, the Board of Directors
determined that it would be prudent to reduce the number of shares issuable upon
the exercise of options granted to nonemployee directors of Kirby under the 1989
Director Plan upon initially becoming a nonemployee director of Kirby from
10,000 shares to 5,000 shares. Accordingly, the Board of Directors adopted
Amendment No. 1 to the 1989 Director Plan amending Section 4(c)(i) of the 1989
Director Plan reducing the number of shares issuable upon the exercise of
options granted to nonemployee directors of Kirby under the 1989 Director Plan
upon initially becoming a nonemployee director of Kirby from 10,000 shares to
5,000 shares. Amendment No. 1 to the 1989 Director Plan also changed the name of
the 1989 Director Plan from the "1989 Director Stock Option Plan for Kirby
Exploration Company, Inc." to the "1989 Director Stock Option Plan for Kirby
Corporation" to more accurately reflect the current name of Kirby.
The material features of the 1989 Director Plan, as amended by Amendment
No. 1 to the 1989 Director Plan, are discussed below.
GENERAL
Purpose
The purpose of the 1989 Director Plan is to advance the interest of Kirby
by providing additional incentives to attract and retain qualified and competent
nonemployee directors, upon whose efforts and judgment the success of Kirby
(including its subsidiaries) is largely dependent.
Eligibility
The only persons eligible to participate under the 1989 Director Plan are
those persons who are directors of Kirby Corporation and who are not employees
of Kirby. As of March 14, 1994, only eight persons had received 1989 Director
Options, one of which expired without being exercised, and Kirby had only seven
nonemployee Directors.
Type of Option
The 1989 Director Plan authorizes the granting of nonincentive stock
options ("1989 Director Options") to purchase Common Stock to nonemployee
directors of Kirby Corporation.
Administration
The 1989 Director Plan is administered by a Committee of the Board of
Directors consisting of not less than three (3) members of the Board of
Directors all of whom are "disinterested persons." Under the 1989 Director Plan,
a disinterested person is one who is not eligible at the time he exercises
discretion in administering the 1989 Director Plan and has not at any time
within one year prior thereto been eligible for selection as a person to whom
shares of Common Stock, stock options or stock appreciation rights may be
granted pursuant to the 1989 Director Plan or any other plan of Kirby in which
administrators of such plan use discretion in granting stock, stock options or
stock appreciation rights of Kirby. If a committee of the Board of Directors is
not appointed by the Board of Directors to administer the 1989 Director Plan,
the Board of Directors (if a majority of which and a majority of the Directors
acting in any manner are disinterested persons) shall administer the 1989
Director Plan (herein the "1989 Director Plan Administrator" will refer to the
committee of the Board of Directors or the Board of Directors, whichever is at
the time administering the 1989 Director Plan). The 1989 Director Plan
Administrator has discretion to make all determinations under the 1989 Director
Plan and such determinations shall be final and conclusive.
24
<PAGE> 27
Shares of Common Stock Subject to the 1989 Director Plan
A total of 150,000 shares of Common Stock (subject to adjustment as
described below) are reserved for sale upon exercise of 1989 Director Options.
As of March 14, 1994, there were 70,000 shares of Common Stock subject to
outstanding 1989 Director Options and 80,000 shares of Common Stock reserved
under the 1989 Director Plan that were not subject to outstanding Director
Options. As of the same date, the market value of the 70,000 shares of Common
Stock reserved for issuance under the outstanding 1989 Director Options was
$1,487,500, based on the closing price per share of Common Stock of $21.25 on
the AMEX on March 14, 1994 as reported by The Wall Street Journal.
Automatic Grants of 1989 Director Options
Each nonemployee director who was a director on July 25, 1989 received on
such date a 1989 Director Option to purchase 10,000 shares of Common Stock at
the exercise price per share of $7.5625. On July 20, 1993, Mr. J. Virgil
Waggoner received a 1989 Director Option to purchase 10,000 shares of Common
Stock at the exercise price per share of $18.625. Each of the outstanding 1989
Director Options expires ten years after the date of grant.
Subject to stockholder approval of Amendment No. 1 to the 1989 Director
Plan, any future nonemployee director of Kirby (who was not previously a
director of Kirby) will be granted a 1989 Director Option for 5,000 shares of
Common Stock on the date such nonemployee director is elected as a director, at
an exercise price equal to the fair market value of the Common Stock on the date
such nonemployee director is elected.
Exercise Price of 1989 Director Option
1989 Director Options may not be granted at an exercise price per share
that is less than the fair market value of a share of Common Stock at the date
of grant.
Payment of Exercise Price
The exercise price of a 1989 Director Option may be paid in cash, certified
or cashier's check, money order, personal check (in the discretion of the 1989
Director Plan Administrator) or by delivery of already owned shares of Common
Stock having a fair market value equal to the exercise price, or by delivery of
a combination of the above. One purpose for permitting delivery of Common Stock
of Kirby in full or partial payment of the exercise price is to make it possible
for the optionee to exercise his 1989 Director Option without the need to sell
Common Stock already owned, which sale would result in the optionee incurring
capital gain (or loss) for federal tax income purposes or potential Section
16(b) liability under the Exchange Act.
Nontransferability of 1989 Director Options
No 1989 Director Option is assignable or transferable, otherwise than by
will or by the laws of descent and distribution. During the lifetime of an
optionee, the 1989 Director Option is exercisable only by him, his guardian or
legal representative.
Exercisability of 1989 Director Options
A 1989 Director Option may be fully exercised after the date of grant.
Expiration of 1989 Director Options
A 1989 Director Option shall terminate on the earliest to occur of (i)
thirty (30) days after the date that the optionee ceases to be a director except
that if the optionee dies while a director, the 1989 Director Option will expire
one year therefrom or (ii) ten (10) years from the date of grant of the 1989
Director Option.
25
<PAGE> 28
Expiration of the 1989 Director Plan
The 1989 Director Plan expires on July 25, 1999 and any 1989 Director
Option outstanding on such date will remain outstanding until its has either
expired or has been exercised.
Adjustments
The 1989 Director Plan provides in the event of any subdivision or
consolidation of shares of Common Stock, any stock dividend, recapitalization or
other capital adjustment for the adjustment of (i) the number of shares for
which 1989 Director Options may be granted; (ii) the number of shares subject to
outstanding 1989 Director Options; and (iii) the exercise price of a 1989
Director Option.
Amendments
Without stockholder approval, the 1989 Director Plan may not be amended to
increase the number of shares of Common Stock reserved for issuance or change
the class of participants under the Director Plan.
Registration
Kirby registered the shares issuable pursuant to the exercise of 1989
Director Options with the SEC in 1993.
Value of 1989 Director Options Granted
The following table sets forth as of March 14, 1994 the value of
outstanding 1989 Director Options under the 1989 Director Plan.
<TABLE>
<CAPTION>
1989 DIRECTOR STOCK
OPTION PLAN
OF KIRBY EXPLORATION
COMPANY, INC.
-------------------------
NUMBER OF
SHARES OF
COMMON STOCK
DOLLAR UNDERLYING 1994
VALUE (1) DIRECTOR OPTIONS
--------- ----------------
<S> <C> <C>
Non-Executive Director Group.............................. $847,500 70,000
</TABLE>
- ---------------
(1) Based on the difference between the closing price per share of Common Stock
on March 14, 1994 on the AMEX as reported by The Wall Street Journal and the
exercise price per share for the outstanding 1989 Director Options
multiplied by the number of shares reserved for issuance under such 1989
Director Options.
Stockholder Approval
Stockholder approval of Amendment No. 1 to the 1989 Director Plan is
required by Kirby's Board of Directors; therefore, Amendment No. 1 to the 1989
Director Plan is submitted to the stockholders for their approval.
FEDERAL INCOME TAX CONSEQUENCES
The grant of a 1989 Director Option will not be taxable to an optionee and
Kirby will not be entitled to a deduction with respect to such grant. Upon the
exercise of a 1989 Director Option, an optionee who is subject to Section 16(b)
of the Exchange Act and who timely files the written election described in
Section 83(b) of the Code will recognize ordinary income at the time of exercise
equal to the excess of the then fair market value of the shares of Common Stock
received over the exercise price. Each optionee who is subject to Section 16(b)
who does not file the Section 83(b) election will not recognize income on the
date he exercises his 1989 Director Option, but instead will recognize income
six months later (i.e., when the Section 16(b) restrictions lapse), in an amount
equal to the excess of the fair market value at that later date of the shares
acquired over the exercise price of such shares. Optionees that are not subject
to Section 16(b) will recognize income at the time of exercise of a 1989
Director Option determined in the same manner as
26
<PAGE> 29
optionees subject to Section 16(b) who timely file Section 83(b) elections.
Since participants in the 1989 Director Plan will not be employees of Kirby,
there will be no withholding with respect to the recognized ordinary income
resulting from the exercise of 1989 Director Options (although the
self-employment tax on self-employed persons generally will apply thereto) and
Kirby will be entitled to a deduction as a compensation expense in the amount of
such recognized ordinary income. When shares of Common Stock received upon the
exercise of a 1989 Director Option subsequently are disposed of in a taxable
transaction, the optionee generally will recognize capital gain (or loss) equal
to the difference between the total amount realized and the fair market value of
the Common Stock on the date the 1989 Director Option was exercised; such
capital gain or loss will be long-term or short-term depending upon the
optionee's holding period following the exercise of the 1989 Director Option.
APPROVAL
Assuming the presence of a quorum, the proposal to approve Amendment No. 1
to the 1989 Director Plan adopted by the Board of Directors of Kirby requires
the approval by the holders of a majority of the shares of Common Stock
represented and voting in person or by proxy at the Annual Meeting at which a
quorum is present. Proxies will be voted for or against such proposal in
accordance with specifications marked thereon, and, if no specification is made,
will be voted in favor of such proposal.
THE BOARD OF DIRECTORS OF KIRBY UNANIMOUSLY RECOMMENDS A VOTE "FOR" THE
PROPOSAL TO APPROVE AMENDMENT NO. 1 TO THE 1989 DIRECTOR STOCK OPTION PLAN FOR
KIRBY EXPLORATION COMPANY, INC.
OTHER BUSINESS (ITEM 6)
The Board of Directors knows of no other business that may properly be, or
that is likely to be, brought before the meeting. If, however, any other matters
are properly presented, it is the intention of the persons named in the
accompanying form of Proxy to vote the shares covered thereby as in their
discretion they may deem advisable.
RELATIONSHIP WITH INDEPENDENT PUBLIC ACCOUNTANTS
KPMG Peat Marwick served as Kirby's principal independent public
accountants during 1993 and will continue to serve as Kirby's principal
independent public accountants for the current year. Representatives of KPMG
Peat Marwick are expected to be present at the 1994 Annual Meeting of
Stockholders, with the opportunity to make a statement if they desire to do so,
and are expected to be available to respond to appropriate questions.
On October 20, 1992, Kirby engaged the accounting firm of KPMG Peat Marwick
to serve as its principal independent public accountant. The services of the
accounting firm of Deloitte & Touche, who previously served as Kirby's principal
independent public accountant were terminated effective October 20, 1992, except
for Kirby's subsidiary, Universal Insurance Company, which will continue to be
audited by Deloitte & Touche. The engagement of KPMG Peat Marwick to serve as
the principal independent public accountant and the termination of Deloitte &
Touche were approved by unanimous consent of Kirby's Board of Directors upon the
recommendation of Kirby's Audit Committee.
With respect to the audit for the year ended December 31, 1991 and the
unaudited period to October 20, 1992, there have been no disagreements with
Deloitte & Touche on any matters of accounting principles or practices,
financial statement disclosure or accounting scope or procedure. The report of
Deloitte & Touche on the financial statements for the year ended December 31,
1991 contained no adverse opinion of disclaimer of opinion and was not qualified
or modified as to uncertainty, audit scope or accounting principles.
27
<PAGE> 30
DATE OF RECEIPT FOR STOCKHOLDER PROPOSALS
Pursuant to Rule 14a-8 under the Securities and Exchange Act of 1934, as
amended, stockholders may present proper proposals for inclusion in Kirby's
proxy statement for consideration at its Annual Meeting of Stockholders by
submitting proposals to Kirby in a timely manner. In order to be so included for
the 1995 Annual Meeting, stockholder proposals must be received by Kirby no
later than November 19, 1994, and must otherwise comply with the requirements of
Rule 14a-8.
BY ORDER OF THE BOARD OF DIRECTORS
Henry Gilchrist
Secretary
March 18, 1994
Houston, Texas
28
<PAGE> 31
EXHIBIT A
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
A-1
<PAGE> 32
(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 Committee may grant to Eligible Persons from time to time Options
to purchase an aggregate of up to one million (1,000,000) Shares from Shares
held in the Company's treasury or from authorized and unissued Shares. If any
Option granted under the Plan shall terminate, expire, or be canceled or
surrendered as to any Shares, new Options may thereafter be granted covering
such Shares. An Option granted hereunder shall be either an Incentive Stock
Option or a Nonqualified Stock Option as determined by the Committee at the Date
of Grant of such Option and shall clearly state whether it is an Incentive Stock
Option or a Nonqualified Stock Option. Incentive Stock Options may only be
granted to persons who are employees of the Company or a Subsidiary.
(b) The aggregate Fair Market Value (determined at the Date of Grant of the
Option) of the Shares with respect to which any Incentive Stock Option is
exercisable for the first time by an Optionee during any calendar year under the
Plan and all such plans of the Company and any parent and subsidiary of the
Company (as defined in Section 425 of the Code) shall not exceed $100,000.
Section 4. Conditions for Grant of Options.
(a) Each Option shall be evidenced by an option agreement that may contain
any term deemed necessary or desirable by the Committee, provided such terms are
not inconsistent with this Plan or any applicable law. Optionees shall be those
persons selected by the Committee from Eligible Persons. Any person who files
with the Committee, in a form satisfactory to the Committee, a written waiver of
eligibility to receive any Option under this Plan shall not be eligible to
receive any Option under this Plan for the duration of such waiver.
(b) In granting Options, the Committee shall take into consideration the
contribution the person has made or may make to the success of the Company or
its Subsidiaries and such other factors as the Committee shall determine. The
Committee shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may from time to time
in granting Options under the Plan prescribe such other terms and conditions
concerning such Options as it deems appropriate, including, without limitation,
relating an Option
A-2
<PAGE> 33
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, by personal check or with
Shares (but with Shares only if permitted by an Option agreement or otherwise
permitted by the Committee in its sole discretion at the time of exercise and
provided that if the Optionee acquired such stock to be surrendered directly or
indirectly from the Company, he shall have owned such stock for six months prior
to using such stock to exercise an Option) or by a combination of the above. If
the exercise price is paid in whole or in part with Shares, the value of the
Shares surrendered shall be their Fair Market Value on the date received by the
Company.
Section 7. Exercisability of Options.
(a) Any Option shall become exercisable in such amounts and at such
intervals as the Committee shall provide in any Option, except as otherwise
provided in this Section 7; provided in each case that the Option has not
expired on the date of exercise.
(b) The expiration date of an Option shall be determined by the Committee
at the Date of Grant, but in no event shall an Option be exercisable after the
expiration of ten (10) years from the Date of Grant.
(c) An Option shall not be exercisable prior to the six-month anniversary
of its Date of Grant.
(d) The Committee may in its sole discretion accelerate the date on which
any Option may be exercised.
(e) On the date thirty (30) days prior to any occurrence described in
Subsections (7)(e)(i), (ii) or (iii), but only where such anticipated occurrence
actually takes place, notwithstanding the exercise schedule in an Option, each
Option shall immediately become exercisable in full where there (i) is any
transaction (which shall include a series of transactions occurring within 60
days or occurring pursuant to a plan) that has the result that shareholders of
the Company immediately before such transaction cease to own at least 51% of (x)
the voting stock of the Company or (y) of any entity that results from the
participation of the Company in a reorganization, consolidation, merger,
liquidation or any other form of corporate transaction; (ii) is a merger,
consolidation, reorganization, liquidation or dissolution in which the Company
does not survive; (iii) is a sale, lease, exchange or other disposition of all
or substantially all the property and assets of the Company.
(f) Notwithstanding any provisions hereof to the contrary, if any Option is
accelerated under Subsection 7(d) or (e), the portion of such Option that may be
exercised to acquire Shares that the Optionee would not be entitled to acquire
but for such acceleration (the "Acceleration Shares"), is limited to that number
of Acceleration Shares that can be acquired without causing the Optionee to have
an "excess parachute payment" as determined under Section 280G of the Internal
Revenue Code, determined by taking into account all of the Optionee's "parachute
payments" determined under Section 280G of the Code. If as a result of this
Subsection 7(f), the Optionee may not acquire all of the Acceleration Shares,
then the Acceleration
A-3
<PAGE> 34
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.
(a) Unless otherwise provided in any Option, the unexercised portion of an
Option shall automatically and without notice terminate and become null and void
at the time of the earliest to occur of the following:
(i) except as provided in Subsection 8(a)(iii), thirty (30) days after
the date that Optionee ceases to be employed by the Company or a Subsidiary
regardless of the reason therefor other than as a result of such
termination by reason of (x) death, (y) mental or physical disability of
Optionee as determined by a medical doctor satisfactory to the Committee or
(z) termination of Optionee's employment with the Company or a Subsidiary
for cause;
(ii) except as provided in Subsection 8(a)(iii), one (1) year after
the date on which the Optionee suffers a mental or physical disability as
determined by a medical doctor satisfactory to the Committee;
(iii) (y) one (1) year after the date that Optionee ceases to be
employed by the Company by reason of death of the Optionee, or (z) six (6)
months after the date on which the Optionee shall die, if the Optionee's
death shall occur during the thirty-day period described in Subsection
8(a)(i) or the one-year period described in Subsection 8(a)(ii);
(iv) the date that Optionee ceases to be employed by the Company or a
Subsidiary as a result of a termination for cause;
(v) with respect to Options held by a person who is a member of the
Board of Directors of a Subsidiary who is not also an Employee, thirty (30)
days after the date that Optionee ceases to be a member of such Board of
Directors; provided that if Optionee ceases to be a member of such Board of
Directors because of the death of the Optionee, or if Optionee shall die
within thirty (30) days after the date that Optionee ceases to be a member
of such Board of Directors, such Option shall terminate one (1) year after
the date on which Optionee shall cease to be a member of such Board of
Directors; and
(vi) the tenth (10th) anniversary of the Date of Grant of the Option.
(b) If provided in an Option, the Committee in its sole discretion may, by
giving written notice (a "Cancellation Notice") cancel, effective upon the date
of the consummation of any of the transactions described in Subsection 7(e), all
or any portion of such Option that remains unexercised on such date. Such
Cancellation Notice shall be given a reasonable period of time (but not less
than 15 days) prior to the proposed date of such cancellation, and may be given
either before or after shareholder approval of such transaction.
Section 9. Adjustment of Shares.
(a) If at any time while the Plan is in effect or unexercised Options are
outstanding, there shall be any increase or decrease in the number of issued and
outstanding Shares through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of
Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number of
Shares then subject to being optioned under the Plan, so that the same
proportion of the Company's issued and outstanding Shares shall continue to
be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of Shares and
the exercise price per Share thereof then subject to outstanding Options,
so that the same proportion of the Company's issued and outstanding Shares
shall remain subject to purchase at the same aggregate exercise price.
A-4
<PAGE> 35
(b) The Committee may change the terms of Options outstanding under this
Plan, with respect to the exercise price or the number of Shares subject to the
Options, or both, when, in the Committee's sole discretion, such adjustments
become appropriate by reason of any corporate transaction.
(c) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to the number of Shares reserved for issuance under the
Plan or the number of or exercise price of Shares then subject to outstanding
Options granted under the Plan.
(d) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (1) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (2) any merger or consolidation of
the Company; (3) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares subject to outstanding
Options; (4) the dissolution or liquidation of the Company; (5) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (6) any other corporate act or proceeding, whether of a similar
character or otherwise.
Section 10. Transferability of Options. Each Option shall provide that such
Option shall not be transferrable by the Optionee otherwise than by will or the
laws of descent and distribution and that so long as an Optionee lives, only
such Optionee or his guardian or legal representative shall have the right to
exercise such Option.
Section 11. Issuance of Shares. No person shall be, or have any of the
rights or privileges of, a stockholder of the Company with respect to any of the
Shares subject to an Option unless and until certificates representing such
Shares shall have been issued and delivered to such person. As a condition of
any transfer of the certificate for Shares, the Committee may obtain such
agreements or undertakings, if any, as it may deem necessary or advisable to
assure compliance with any provision of the Plan, the agreement evidencing the
Option or any law or regulation including, but not limited to, the following:
(i) A representation, warranty or agreement by the Optionee to the
Company at the time any Option is exercised that he or she is acquiring the
Shares to be issued to him or her for investment and not with a view to, or
for sale in connection with, the distribution of any such Shares;
and
(ii) A representation, warranty or agreement to be bound by any
legends that are, in the opinion of the Committee, necessary or appropriate
to comply with the provisions of any securities laws deemed by the
Committee to be applicable to the issuance of the Shares and are endorsed
upon the Share certificates.
Section 12. Options for 10% Shareholder. Notwithstanding any other
provisions of the Plan to the contrary, an Incentive Stock Option shall not be
granted to any person owning directly (or indirectly through attribution under
Section 425(d) of the Code) at the Date of Grant, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company (or of
its parent or subsidiary [as defined in Section 425 of the Internal Revenue
Code] at the Date of Grant) unless the exercise price of such Incentive Stock
Option is at least 110% of the Fair Market Value of the Shares subject to such
Incentive Stock Option on the Date of Grant, and the period during which the
Incentive Stock Option may be exercised does not exceed five (5) years from the
Date of Grant.
Section 13. Nonqualified Stock Options. Nonqualified Stock Options may be
granted hereunder and shall be subject to all terms and provisions hereof except
that each such Nonqualified Stock Option (i) must be clearly designated as a
Nonqualified Stock Option; (ii) may be granted for Shares in excess of the
limits contained in Subsection 3(b) of this Plan; and (iii) shall not be subject
to Section 12 of this Plan. If both Incentive Stock Options and Nonqualified
Stock Options are granted to an Optionee, the right to exercise, to
A-5
<PAGE> 36
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
A-6
<PAGE> 37
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.
(g) Records of the Company shall be conclusive for all purposes under this
Plan or any Option, unless determined by the Committee to be incorrect.
(h) The Company shall, upon request or as may be specifically required
under this Plan or any Option, furnish or cause to be furnished all of the
information or documentation that is necessary or required by the Committee to
perform its duties and functions under this Plan or any Option.
(i) The Company assumes no liability to any Optionee or his legal
representatives, heirs, legatees or distributees for any act of, or failure to
act on the part of, the Committee.
(j) Any action required of the Company relating or the Committee to this
Plan or any Option shall be by resolution of its Board, the Committee or by a
person authorized to act by resolution of the Board or the Committee.
(k) If any provision of this Plan or any Option is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions of this Plan or any Option, but such provision shall be
fully severable, and the Plan or Option, as applicable, shall be construed and
enforced as if the illegal or invalid provision had never been included in the
Plan or Option, as applicable.
(l) Whenever any notice is required or permitted under this Plan or any
Option, such notice must be in writing and personally delivered or sent by mail
or delivery by a nationally recognized courier service. Any notice required or
permitted to be delivered under this Plan or any Option shall be deemed to be
delivered on the date on which it is personally delivered, or, if mailed,
whether actually received or not, on the third Business Day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address that such person has
previously specified by written notice delivered in accordance with this
Subsection 16(l) or, if by courier, seventy-two (72) hours after it is sent,
addressed as described in this Subsection 16(l). The Company or the Optionee may
change, at any time and from time to time, by written notice to the other, the
address that it or he had previously specified for receiving notices. Until
changed in accordance with this Plan or any Option, the Company and the Optionee
shall specify as its and his address for receiving notices the address set forth
in the Option pertaining to the Shares to which such notice relates.
(m) Any person entitled to notice under this Plan may waive such notice.
(n) This Plan or any Option shall be binding upon the respective Optionee,
his legal representatives, heirs, legatees and distributees upon the Company,
its successors, and assigns, and upon the Board, the Committee and its
successors.
(o) The titles and headings of Sections are included for convenience of
reference only and are not to be considered in construction of this Plan's
provisions.
A-7
<PAGE> 38
(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, suspend or terminate the Plan or any Option; provided,
however, that, except to the extent provided in Section 9, no such amendment
may, without approval by the stockholders of the Company, (a) increase the
number of Shares reserved for Options or change the class of employees eligible
to receive Options, (b) permit the granting of Options that expire beyond the
maximum 10-year period described in Subsection 7(b), or (c) extend the
termination date of the Plan as set forth in Section 18; and provided, further,
that, except to the extent provided in Section 8, no amendment or suspension of
the Plan or any Option issued hereunder shall, except as specifically permitted
in any Option, substantially impair any Option previously granted to any
Optionee without the consent of such Optionee.
Section 18. Effective Date and Termination Date. The effective date of the
Plan is the date set forth below, on which the date the Board adopted this Plan;
provided, however, if the Plan is not approved by the stockholders of the
Company within twelve (12) months after the effective date then, in such event,
the Plan and all Options granted pursuant to the Plan shall be null and void.
The Plan shall terminate on the tenth anniversary of the effective date.
ADOPTED BY THE BOARD: January 18, 1994
EFFECTIVE DATE: January 18, 1994
RATIFIED BY THE STOCKHOLDERS: April , 1994
Executed to evidence the 1994 Employee Stock Option Plan of Kirby
Corporation adopted by the Board on January 18, 1994 and the Stockholders on
April , 1994.
KIRBY CORPORATION
By: /s/ G. STEPHEN HOLCOMB
--------------------------------
G. Stephen Holcomb, Assistant
Secretary
A-8
<PAGE> 39
EXHIBIT B
1994 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
FOR
KIRBY CORPORATION
Section 1. Purpose.
This 1994 Nonemployee Director Stock Option Plan of Kirby Corporation is
intended as an incentive to attract and retain as independent directors on the
Board of Directors of Kirby Corporation, a Nevada corporation (the "Company"),
persons of training, experience and ability, to encourage the sense of
proprietorship of such persons, and to stimulate the active interest of such
persons in the development and financial success of the Company for the benefit
of the stockholders of the Company.
Section 2. Definitions.
As used herein, the following terms shall have the meaning indicated:
(a) "Advisory Director" shall mean any person designated as an
Advisory Director by the Board of Directors as provided in the Company's
Bylaws.
(b) "Agreement" shall mean the agreement between the Company and the
Optionee that evidences the Option.
(c) "Business Day" shall mean (i) if the Common Stock trades on a
national exchange, any day that the national exchange on which the Common
Stock trades is open or (ii) if the Common Stock does not trade on a
national exchange, any day that commercial banks in the City of New York
are open.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Committee" shall mean the committee designated in Section 5 to
administer this Plan.
(f) "Common Stock" shall mean the Common Stock, par value ten cents
($0.10) per share, of the Company.
(g) "Date of Grant" shall mean the date on which an Option is granted
to an Eligible Person pursuant to Section 7(b) hereof.
(h) "Director" shall mean a member of the Board.
(i) "Effective Date" shall mean the date this Plan is approved by the
Board of Directors.
(j) "Eligible Person(s)" shall mean those persons who are Directors or
Advisory Directors of the Company and are not Employees.
(k) "Employee(s)" shall mean those persons who are employees of the
Company or who are employees of any Subsidiary.
(l) "ERISA" shall mean the Employee Retirement Income Security Act and
the rules thereunder, as they now exist or may be amended from time to
time.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(n) "Fair Market Value" shall mean:
(i) If Shares are listed on a national securities exchange at the
date of determining the Fair Market Value,
(A) The mean of the high and low sales price on such exchange on
the Date of Grant as reported in any newspaper of general
circulation, or
B-1
<PAGE> 40
(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.
(s) "Plan" shall mean this 1994 Nonemployee Director Stock Option Plan
of Kirby Corporation.
(t) "Share(s)" shall mean a share or shares of the Common Stock.
(u) "Subsidiary" shall mean any corporation (other than the Company)
in any unbroken chain of corporations beginning with the Company if, at the
time of the granting of the Option, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50% or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain.
Section 3. Total Aggregate Shares.
Subject to adjustments provided in Section 14 hereof, a total of One
Hundred Thousand (100,000) Shares shall be subject to the Plan. The Shares
subject to the Plan shall consist of unissued Shares or previously issued Shares
reacquired and held by the Company and such number of Shares shall be and hereby
is reserved for sale for such purpose. Any of such Shares that may remain unsold
and that are not subject to outstanding Options at the termination of the Plan
shall cease to be reserved for the purpose of the Plan, but until termination of
the Plan, the Company shall at all times reserve a sufficient number of Shares
to meet the requirements of the Plan. Should any Option expire or be canceled
prior to its exercise in full, the Shares theretofore subject to such Option may
again be the subject of an Option under the Plan.
Section 4. Rule 16b-3 Plan and Shareholder Approval.
The Company intends for this Plan to comply with the requirements of Rule
16b-3 promulgated by the Securities and Exchange Commission pursuant to the
Exchange Act. Accordingly, this Plan and any Options shall terminate and become
null and void unless this Plan is approved by the stockholders of the Company
within one (1) year after the Effective Date at a meeting of stockholders of the
Company at which a quorum is present by stockholders of the Company owning a
majority of the issued and outstanding shares of Common Stock represented at
such meeting.
Section 5. Administration of the Plan.
(a) The Plan shall be administered by the Compensation Committee of the
Board or other committee thereof as appointed by the Board (the "Committee")
consisting of not less than three members of the Board.
(b) Subject to the express provisions of this Plan, the Committee shall
have the authority, in its sole and absolute discretion (i) to adopt, amend, and
rescind administrative and interpretive rules and regulations relating to the
Plan; (ii) to determine the terms and provisions of the respective Agreements
(which need not be identical); provided, however, such terms and provisions
shall not be inconsistent with this Plan, including the extent to which the
transferability of Shares issued upon the exercise of Options is restricted;
(iii) to construe the terms of any Agreement and the Plan; (iv) as provided in
Subsection 14(a), upon certain events
B-2
<PAGE> 41
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 (d) hereof.
(b) Option Shares subject to an Option shall fully vest on the six-month
anniversary of the Date of Grant.
(c) Notwithstanding the foregoing, Shares subject to an Option shall vest
as to all Shares then subject to the Option upon the occurrence of any of the
following events:
(i) a transaction (or series of transactions occurring within a 60-day
period or pursuant to a plan approved by the Board or stockholders of the
Company) occurs that has the result that stockholders of the Company
immediately before such transaction cease to own directly or indirectly at
least 51% of the voting stock of the Company or of any entity that results
from the participation of the Company in a reorganization, consolidation,
merger, liquidation or any other form of corporate transaction;
B-3
<PAGE> 42
(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) except as provided in Subsection 11(a)(ii), if the Optionee's
position as a Director of the Company terminates for any reason, one year
after the date the Optionee ceases to be a Director.
B-4
<PAGE> 43
(ii) one (1) year after the date on which the Optionee shall die, if
the Optionee's death shall occur during the one-year period described in
Subsection 11(a)(i); or
(iii) ten (10) years after the Date of Grant of such Option.
(b) The Committee in its sole discretion may, by giving written notice to
an Optionee ("Cancellation Notice"), cancel, effective upon the date of the
consummation of any corporate transaction described in Section 9(d) hereof, any
portion of an Option that remains unexercised on such date. Such cancellation
notice shall be given to Optionee at least ten (10) days prior to the date of
cancellation.
Section 12. Terms of Option.
Each Option granted under this Plan shall have a term of ten (10) years
from the Date of Grant of such Option.
Section 13. Assignability of Options.
No Option shall be assignable or otherwise transferable, except by will or
the laws of descent and distribution.
Section 14. Adjustments.
(a) If at any time there shall be an increase or decrease in the number of
issued and outstanding Shares, through the declaration of a stock dividend or
through any recapitalization resulting in a stock split-up, combination or
exchange of Shares, then appropriate proportional adjustment shall be made in
the number of Shares (and with respect to outstanding Options, the exercise
price per Share): (i) subject to outstanding Options; (ii) reserved under the
Plan; and (iii) subject to Options granted subsequently. In the event of a
dispute concerning such adjustment, the Committee has full discretion to
determine the resolution of such dispute. Such determination shall be final,
binding and conclusive.
(b) In the event of a merger, consolidation or other reorganization of the
Company under the terms of which the Company is not the surviving corporation,
but the surviving corporation elects to assume an Option, the respective
Agreement and this Plan, the Optionee shall be entitled to receive, upon the
exercise of such Option, with respect to each Share issuable upon exercise of
such Option, the number of shares of stock of the surviving corporation (or
equity interest in any other entity) and any other notes, evidences of
indebtedness or other property that Optionee would have received in connection
with such merger, consolidation or other reorganization had he exercised the
Option with respect to such Share immediately prior to such merger,
consolidation or other reorganization.
(c) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of or exercise price of Shares then subject
to outstanding Options granted under the Plan.
(d) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under the Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate: (i) any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issuance by the Company of debt securities or preferred
or preference stock that would rank above the Shares subject to outstanding
Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
B-5
<PAGE> 44
Section 15. Purchase for Investment.
As a condition of any issuance of a stock certificate for Shares upon the
exercise of an Option, the Committee may obtain such agreements or undertakings,
if any, as it may deem necessary or advisable to assure compliance with any
provision of this Plan or any law or regulation, including, but not limited to,
the following:
(a) a representation and warranty by the Optionee to the Company at
the time his Option is exercised that he is acquiring the Shares to be
issued to him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(b) a representation, warranty or agreement to be bound by any legends
that are, in the opinion of the Committee, necessary or appropriate to
comply with the provisions of any securities law deemed by the Committee to
be applicable to the issuance of the Shares and are endorsed upon the
certificates representing the Shares.
Section 16. Amendment, Modification, Suspension or Discontinuance of this
Plan.
For the purpose of complying with changes in the Code or ERISA, the
Committee may amend, modify, suspend or terminate the Plan at any time. For the
purpose of meeting or addressing any other changes in legal requirements or any
other purpose, the Committee may amend, modify, suspend or terminate the Plan
only once every six months. Subject to changes in law or other legal
requirements, including any change in the provisions of Rule 16b-3 that would
permit otherwise, the Plan may not be amended without the consent of the holders
of a majority of the shares of Common Stock represented at a meeting at which a
quorum is present to: (i) increase the aggregate number of shares of Common
Stock that may be issued under the Plan (except for adjustments pursuant to
Section 14 of the Plan); (ii) increase materially the benefits accruing to
Optionees under the Plan; or, (iii) modify materially the requirements as to
eligibility for participation in the Plan.
Section 17. Governmental Regulations.
This Plan, and the granting of Options and the exercise of Options
hereunder and the obligation of the Company to sell and deliver Shares under
such Options shall be subject to all applicable laws, rules and regulations, and
to such approvals by any governmental agencies or national securities exchanges
as may be required.
Section 18. Miscellaneous.
(a) The proceeds received by the Company from the sale of Shares pursuant
to Options shall be used for general corporate purposes.
(b) The Options granted to Directors under this Plan shall be in addition
to regular director's fees, stock options granted pursuant to the Company's 1989
Director Stock Option Plan or other stock option plans of the Company or other
benefits with respect to the Director's position with the Company or its
Subsidiaries. Nothing contained in the Plan, or in any Agreement, shall confer
upon any Optionee the right to continue as a director of the Corporation, or
interfere in any way with the rights to terminate his status as a director.
(c) Neither the members of the Board nor any member of the Committee shall
be liable for any act, omission, or determination taken or made in good faith
with respect to the Plan or any Option granted under it, and members of the
Board and the Committee shall be entitled to indemnification and reimbursement
by the Company in respect of any claim, loss, damage, or expense (including
attorneys' fees, the costs of settling any suit (provided such settlement is
approved by independent legal counsel selected by the Company) and amounts paid
in satisfaction of a judgment, except a judgment based on a finding of bad
faith) arising from such claim, loss, damage, or expense to the full extent
permitted by law and under any directors' and officers' liability or similar
insurance coverage that may from time to time be in effect.
B-6
<PAGE> 45
(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 or any
Option, such notice must be in writing and personally delivered or sent by mail
or next day delivery by a nationally recognized courier service. Any notice
required or permitted to be delivered under this Plan or any Option shall be
deemed to be delivered on the date on which it is personally delivered, or, if
mailed, whether actually received or not, on the third Business Day after it is
deposited in the United States mail, certified or registered, postage prepaid,
addressed to the person who is to receive it at the address which such person
has previously specified by written notice delivered in accordance with this
Subsection 18(l) or, if by courier, twenty-four (24) hours after it is sent,
addressed as described in this Subsection 18(l). The Company or an Optionee may
change, at any time and from time to time, by written notice to the other, the
address which it or he had previously specified for receiving notices. Until
changed in accordance with the Plan or any Option, the Company and each Optionee
shall specify as its and his address for receiving notices the address set forth
in the Option pertaining to the Shares to which such notice relates.
(m) Any person entitled to notice under the Plan may waive such notice.
(n) The Plan or any Option shall be binding upon the respective Optionee,
his legal representatives, heirs, legatees, distributees and permitted assigns,
upon the Corporation, its successors, and assigns, and upon the Board, the
Committee and its successors.
(o) The titles and headings of Sections are included for convenience of
reference only and are not to be considered in construction of the Plan's
provisions.
(p) All questions arising with respect to the provisions of the Plan shall
be determined by application of the laws of the State of Texas except to the
extent Texas law is preempted by federal law or Nevada corporate law that is
controlling. Questions arising with respect to the provisions of an Agreement
that are matters of contract law shall be governed by the laws of the state
specified in the Agreement, except to the extent preempted by federal law and
except to the extent that Nevada corporate law conflicts with the contract law
of such state, in which event Nevada corporate law shall govern. The obligation
of the Company to sell and
B-7
<PAGE> 46
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.
<TABLE>
<S> <C>
ADOPTED BY THE BOARD OF DIRECTORS: January 18, 1994
APPROVED BY THE STOCKHOLDERS: April 19, 1994
</TABLE>
KIRBY CORPORATION
By: /s/ G. STEPHEN HOLCOMB
---------------------------------
G. Stephen Holcomb, Assistant
Secretary
B-8
<PAGE> 47
EXHIBIT C
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.
C-1
<PAGE> 48
(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.
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
C-2
<PAGE> 49
(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.
C-3
<PAGE> 50
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 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,
C-4
<PAGE> 51
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
C-5
<PAGE> 52
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 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.
C-6
<PAGE> 53
(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.
<TABLE>
<S> <C>
ADOPTED BY THE BOARD OF DIRECTORS: July 20, 1993
APPROVED BY THE STOCKHOLDERS: April , 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 By /s/ ROBERT G. STONE, JR.
405 Lexington Avenue ---------------------------------
New York, NY 10174 Robert G. Stone, Jr., Optionee
</TABLE>
C-7
<PAGE> 54
EXHIBIT D
AMENDMENT NO. 1
TO THE
1989 DIRECTOR STOCK OPTION PLAN
FOR
KIRBY EXPLORATION COMPANY, INC.
(NOW KIRBY CORPORATION)
The Board of Directors of Kirby Corporation, formerly Kirby Exploration
Company, Inc. (the "Company"), amends prospectively as of January 18, 1994 the
1989 Director Stock Option Plan for Kirby Exploration Company, Inc., now Kirby
Corporation (the "Plan") in the following respect only:
First: The designation and name of the Plan is hereby amended and
changed to: 1989 Director Stock Option Plan for Kirby Corporation.
Second: Section 4(c)(i) of the Plan is hereby amended and restated in
its entirely as follows:
(i) Each Eligible Person who is elected a Director (not previously
being a Director) shall be granted an Option for FIVE THOUSAND (5,000)
Shares on the date of such Eligible Person's election as a Director,
such date being the Date of Grant for such Option; and
Third: The foregoing amendment to the Plan be effective prospectively
only as of January 18, 1994 and that any stock options granted under the
Plan prior to January 18, 1994 shall be governed by the Plan as it existed
prior to the foregoing amendment.
Fourth: The foregoing amendment, along with the prospective nature of
the foregoing amendment, be submitted for approval to the Company's
stockholders at the 1994 Annual Meeting of Stockholders or at some other
meeting of stockholders.
Fifth: If the stockholders of the Company do not approve the
foregoing amendment within one (1) year after January 18, 1994, the
foregoing amendment shall be null and void and any stock options granted
subsequent January 18, 1994 shall be increased to such amount as if such
grants had occurred pursuant to the Plan as it existed prior to January 18,
1994.
The Board of Directors of the Company approved the foregoing amendment on
January 18, 1994 and the stockholders of the Company approved the foregoing
amendment on April 19, 1994.
KIRBY CORPORATION
By: /s/ G. STEPHEN HOLCOMB
G. Stephen Holcomb, Assistant
Secretary
D-1
<PAGE> 55
P KIRBY CORPORATION
1775 St. James Place, Suite 300
R P.O. Box 1745
Houston, Texas 77251-1745
0
This Proxy is Solicited on behalf of the Board of Directors
X of Kirby Corporation.
Y
The undersigned hereby appoints Robert G. Stone, Jr., George A. Peterkin, Jr.,
G. Stephen Holcomb and Henry Gilchrist, and each of them, as Proxies, each with
the power to appoint his substitute, and hereby authorizes each to represent
and to vote as designated below, all the shares of common stock, par value
$0.10 per share, of Kirby Corporation (the "Company") held of record by the
undersigned on March 1, 1994, the Record Date, at the Annual Meeting of
Stockholders to be held on April 19, 1994, at the J.W. Marriott Houston Hotel,
5150 Westheimer, in the Harris Room, Houston, Texas, at 10:00 A.M. (local time)
and any adjournment(s) thereof.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED STOCKHOLDER(S). IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED FOR THE PERSONS LISTED IN ITEM 1 AND SHOULD ANY OF THEM BECOME UNAVAILABLE
FOR NOMINATION OR ELECTION OR REFUSE TO BE NOMINATED OR ACCEPT ELECTION AS A
DIRECTOR OF THE COMPANY, THE PROXY WILL BE VOTED FOR THE ELECTION OF SUCH
PERSON OR PERSONS AS MAY BE NOMINATED OR DESIGNATED BY THE BOARD OF DIRECTORS
AND FOR PROPOSALS 2, 3, 4 AND 5. THE PROXIES WILL USE THEIR DISCRETION WITH
RESPECT TO ANY MATTER REFERRED TO IN ITEM 6.
(Please date and sign on reverse side)
See reverse side
<PAGE> 56
/X/ Please mark votes as in this example
Please mark boxes in blue or black ink.
The Board of Directors recommends a vote "FOR" all of the following Proposals.
a. Election of Directors duly nominated:
Nominees: George F. Clements, Jr., J. Peter Klellgen,
William M. Lamont, Jr., C.W. Murchison, III, George A.
Peterkin, Jr., J.H. Pyne, Robert G. Stone, Jr., J. Virgil
Waggoner
FOR WITHHELD
/ / / /
/ / __________________________________
For all nominees except as noted above
2. Proposal to approve the 1994 Employee Stock Option Plan.
FOR AGAINST ABSTAIN
/ / / / / /
3. Proposal to approve the 1994 Nonemployee Director Stock Option Plan.
FOR AGAINST ABSTAIN
/ / / / / /
4. Proposal to approve the 1993 Stock Option Plan for Robert G. Stone, Jr.
FOR AGAINST ABSTAIN
/ / / / / /
5. Proposal to amend the 1989 Director Stock Option Plan reducing the number of
stock options automatically granted to future Directors from 10,000 to 5,000
shares of Common Stock.
FOR AGAINST ABSTAIN
/ / / / / /
6. To transact such other business that may properly come before the meeting or
any adjournments thereof.
MARK HERE FOR ADDRESS CHANGE AND NOTE BELOW / /
Please execute this Proxy as your name(s) appear(s) hereon. When shares are
held by joint owners, both should sign. When signing as attorney, executor,
administrator, trustee, guardian, or other fiduciary or representative
capacity, please set forth the full title. If a corporation, please sign in
full corporate name by president or other authorized officer. If a partnership,
please sign in partnership name by authorized person.
Signature: _________________, Date _____________________ 1994
Signature: _________________, Date _____________________ 1994
PLEASE MARK, SIGN, DATE, AND RETURN THIS PROXY
PROMPTLY USING THE ENCLOSED ENVELOPE.
