ex4_1.htm


    
      
        

      

    

    Exhibit
4.1

     

    KIRBY
CORPORATION

    


    2005
Stock and Incentive Plan

    


    ARTICLE
I

    GENERAL

    


    Section
1.1.     Purpose.  The
purpose of this Plan is to advance the interests of Kirby Corporation, a Nevada
corporation (the “Company”), by providing an additional incentive to attract and
retain qualified and competent employees for the Company and its subsidiaries,
upon whose efforts and judgment the success of the Company is largely dependent,
through the award of (i) Options to purchase shares of Common Stock (which
Options may be Incentive Stock Options or Nonincentive Stock Options); (ii)
shares of Restricted Stock; and (iii) Performance Awards.

    


    Section
1.2.     Definitions.  As
used herein, the following terms shall have the meaning indicated:

    


    (a)           “Award”
means a grant under this Plan in the form of Options, Restricted Stock,
Performance Awards or any combination of the foregoing.

    


    (b)           “Board”
means the Board of Directors of the Company.

    


    (c)           “Change
in Control” means the occurrence of any of the following events:

    


    (i)          
  Any “person” (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended) becomes the beneficial owner,
directly or indirectly, of voting securities representing thirty percent (30%)
or more of the combined voting power of the Company's then outstanding voting
securities;

    


    (ii)          
 The Board ceases to consist of a majority of Continuing Directors, with
the term "Continuing Director” meaning a Director who (A) is a Director on the
effective date of the Plan or (B) is nominated or appointed to serve as a
Director by a majority of the then Continuing Directors;

    


    (iii)           (A)
Any consolidation or merger of the Company or any Subsidiary that results in the
holders of the Company's voting securities immediately prior to the
consolidation or merger having (directly or indirectly) less than a majority
ownership interest in the outstanding voting securities of the surviving entity
immediately after the consolidation or merger, (B) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all
or substantially all of the assets of the Company or (C) the liquidation or
dissolution of the Company;

    


    (iv)           The
stockholders of the Company accept a share exchange, with the result that
stockholders of the Company immediately before such share exchange do not own,
immediately following such share exchange, at least a majority of the voting
securities of the entity resulting from such share exchange in substantially the
same proportion as their ownership of the voting securities outstanding
immediately before such share exchange; or


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    (v)           Any
tender or exchange offer is made to acquire thirty percent (30%) or more of the
voting securities of the Company, other than an offer made by the Company, and
shares are acquired pursuant to that offer.

    


    For
purposes of this definition, the term “voting securities” means equity
securities, or securities that are convertible or exchangeable into equity
securities, that have the right to vote generally in the election of
Directors.

    


    (d)           “Code”
means the Internal Revenue Code of 1986, as amended.

    


    (e)           “Committee”
means the Compensation Committee, if any, appointed by the Board.

    


    (f)           “Date
of Grant” means the date on which the Committee takes formal action to grant an
Award to an Eligible Person or such later date as may be specified by the
Committee when approving the Award.

    


    (g)           “Director”
means a member of the Board.

    


    (h)           “Disability”
means mental or physical disability as determined by a medical doctor
satisfactory to the Committee.

    


    (i)           “Eligible
Person” means an employee of the Company or a Subsidiary.

    


    (j)           “Existing
Plan” means the 2005 Stock and Incentive Plan as approved by the stockholders of
the Company on April 26, 2005, as amended by the Board on January 22, 2007 and
as amended by the Board on March 6, 2008 and approved by the stockholders of the
Company on April 22, 2008.

    


    (k)           “Fair
Market Value” of a Share means the closing price on the New York Stock Exchange
on the day of reference.  If the Shares are not listed for trading on
the New York Stock Exchange, the Fair Market Value on the date of reference
shall be determined by any fair and reasonable means prescribed by the
Committee.

    


    (l)           “Incentive
Stock Option” means an option that is an incentive stock option as defined in
Section 422 of the Code.

    


    (m)           “Nonincentive
Stock Option” means an option that is not an Incentive Stock
Option.

    


    (n)           “Option”
means any option granted under this Plan.

    


    (o)           “Optionee”
means a person to whom a stock option is granted under this Plan or any
successor to the rights of such person under this Plan by reason of the death of
such person.


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    (p)           “Participant”
means a person to whom an Award is granted under the Plan.

    


    (q)           “Performance
Award” means an Award granted pursuant to Article IV.

    


    (r)           “Performance
Objectives” means the objectives established by the Committee pursuant to
Section 4.1(b).

    


    (s)           “Performance
Period” means the period over which the performance of a holder of a Performance
Award is measured.

    


    (t)           “Plan”
means this Kirby Corporation 2005 Stock and Incentive Plan.

    


    (u)           “Restricted
Stock” means Shares granted under this Plan that are subject to restrictions
imposed by the Committee pursuant to Article III.

    


    (v)           “Restricted
Stock Award” means an award of Restricted Stock under this Plan.

    


    (w)           “Section
162(m) Participant” means each Participant who would be a “covered employee”
under Section 162(m) of the Code.

    


    (x)           “Share”
means a share of the common stock, par value ten cents ($0.10) per share, of the
Company.

    


    (y)           “Subsidiary”
means any corporation (other than the Company) in any unbroken chain of
corporations beginning with the Company if 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 the chain.

    


    Section
1.3.     Total Shares and
Limitations.

    


    (a)           The
maximum number of Shares that may be issued under the Plan shall be Three
Million (3,000,000) Shares, which may be from Shares held in the Company's
treasury or from authorized and unissued Shares.  If any Award granted
under the Plan shall terminate, expire or be cancelled or surrendered as to any
Shares, or the Award is paid in cash in lieu of Shares, the Shares that were
subject to such Award shall not count against the above limit and shall again be
available for grants under the Plan.  Shares equal in number to the
Shares surrendered in payment of the option price of an Option and Shares that
are withheld in order to satisfy federal, state or local tax liability, shall
not count against the above limit and shall be available for grants under the
Plan.  All Share numbers in the Plan reflect the 2-for-1 split of the
common stock of the Company effected on May 31, 2006.

    


    (b)           The
maximum aggregate number of Shares that may be issued under the Plan pursuant to
the exercise of Incentive Stock Options shall be 1,000,000.

    


    (c)           The
maximum number of Shares that may be issued to any Participant pursuant to the
exercise of Options during any calendar year shall be 500,000.


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    (d)           The
maximum number of Shares that may be issued to any Participant pursuant to any
Performance Award during the term of the Plan shall be 400,000.

    


    (e)           The
maximum amount of cash that may be paid to any Participant pursuant to any
Performance Award during any calendar year shall be $3,000,000.

    


    Section
1.4.     Awards Under the
Plan.

    


    (a)           Only
Eligible Persons may receive awards under the Plan.  Awards to
Eligible Persons may be in the form of (i) Options; (ii) shares of Restricted
Stock; (iii) Performance Awards; or (iv) any combination of the
foregoing.  No Award shall confer on any person any right to continue
as an employee of the Company or any Subsidiary.

    


    (b)           Each
Award shall be evidenced by an agreement containing any terms deemed necessary
or desirable by the Committee that are not inconsistent with the Plan or
applicable law.

    


    ARTICLE
II

    STOCK
OPTIONS

    


    Section
2.1.     Grant of
Options.  The Committee may from time to time grant Options to
Eligible Persons.  Options may be Incentive Stock Options or
Nonincentive Stock Options as designated by the Committee on or before the Date
of Grant.  If no such designation is made by the Committee for an
Option, the Option shall be a Nonincentive Stock Option.  The
aggregate Fair Market Value (determined as of the Date of Grant) of the Shares
with respect to which Incentive Stock Options are 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 or subsidiary of the Company (as defined in Section 424
of the Code) shall not exceed $100,000.

    


    Section
2.2.     Exercise
Price.  The exercise price per Share for any Option shall be
determined by the Committee, but shall not be less than the Fair Market Value on
the Date of Grant and shall not be less than 110% of the Fair Market Value on
the Date of Grant for any Incentive Stock Option if the Optionee is a person who
owns directly or indirectly (within the meaning of Section 422(b)(6) of the
Code) stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company.

    


    Section
2.3.     Term of
Option.  The term of an Option shall be determined by the
Committee, provided that, in the case of an Incentive Stock Option, if the grant
is to a person who owns directly or indirectly (within the meaning of Section
422(b)(6) of the Code) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company, the term of the Option
shall not exceed five years from the Date of Grant.  Notwithstanding
any other provision of this Plan, no Option shall be exercised after the
expiration of its term.

    


    Section
2.4.     Vesting.  Options
shall be exercisable at such times and subject to such terms and conditions as
the Committee shall specify in the option agreement.  Unless the
option agreement specifies otherwise, the Committee shall have discretion at any
time to accelerate such times and otherwise waive or amend any conditions in
respect of all or any portion of any Options.  Notwithstanding the
other provisions of this Section 2.4 and unless otherwise provided in the option
agreement, upon the occurrence of a Change in Control, all Options outstanding
at the time of the Change in Control shall become immediately
exercisable.


    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    Section
2.5.     Termination of
Options.

    


    (a)           Except
as otherwise provided in the option agreement, the portion of an Option that is
exercisable shall automatically and without notice terminate upon the earliest
to occur of the following:

    


    (i)           thirty
(30) days after the date on which the Optionee ceases to be an Employee for any
reason other than (x) death, (y) Disability or (z) termination for
cause;

    


    (ii)           one
(1) year after the date on which the Optionee ceases to be an Employee as a
result of a Disability;

    


    (iii)           either
(y) one (1) year after the death of the Optionee or (z) six (6) months after the
death of the Optionee if the Optionee dies during the 30-day period described in
Section 2.5(a)(i) or the one-year period described in Section
2.5(a)(ii);

    


    (iv)           the
date on which the Optionee ceases to be an Employee as a result of a termination
for cause; and

    


    (v)           the
tenth anniversary of the Date of Grant of the Option.

    


    (b)           The
portion of an Option that is not exercisable shall automatically and without
notice terminate on the date on which the Optionee ceases to be an Employee for
any reason.

    


    (c)           The
Committee shall have discretion at any time to extend the term of any
Nonincentive Stock Option to any date that is not later than the date described
in Section 2.5(a)(v).

    


    Section
2.6.     Exercise of
Options.  An Option may be exercised in whole or in part to the
extent exercisable in accordance with Section 2.4 and the option
agreement.  An Option shall be deemed exercised when (i) the Company
has received written notice of such exercise in accordance with the terms of the
Option and (ii) full payment of the aggregate exercise price of the Shares as to
which the Option is exercised has been made.  Unless further limited
by the Committee for 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 owned by the Optionee for at least six months,
or by a combination of the foregoing.  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
2.7.     Corporate
Transactions.

    


    (a)           In
the event of a merger, consolidation or other reorganization of the Company in
which the Company is not the surviving entity, the Board or the Committee may
provide for payment in cash or in securities of the Company or the surviving
entity in lieu of and in complete satisfaction of Options.


    
      
         


      

      
        5

        
          

        

      

      
         


      

    


    (b)           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.

    


    (c)           Without
limiting the generality of the foregoing, the existence of outstanding Options
granted under the Plan shall not affect in any manner the right or power of the
Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issue by the Company of debt securities, or preferred or preference
stock that would rank above the Shares subject to outstanding Options; (iv) the
dissolution or liquidation of the Company; (v) any sale, transfer or assignment
of all or any part of the assets or business of the Company; or (vi) any other
corporate act or proceeding, whether of a similar character or
otherwise.

    


    Section
2.8.     Issuance of
Shares.  No person shall be, or have any of the rights or
privileges of, a stockholder of the Company with respect to any of the Shares
subject to any Option unless and until such Shares (whether represented by
certificates or in book-entry or other electronic form) shall have been issued
and delivered to such person.

    


    ARTICLE
III

    RESTRICTED
STOCK

    


    Section
3.1.     Grant of Restricted Stock
Awards.  The Committee may from time to time grant Restricted
Stock Awards to Eligible Persons.

    


    Section
3.2.     Terms and Conditions of Restricted
Stock Awards.  Each Restricted Stock Award shall specify the
number of shares of Restricted Stock awarded, the price, if any, to be paid by
the Participant receiving the Restricted Stock Award, the date or dates on which
the Restricted Stock will vest and any other terms and conditions that the
Committee may determine.  The vesting and number of shares of
Restricted Stock may be conditioned upon the completion of a specified period of
service with the Company or its Subsidiaries or upon the attainment of any
performance goals established by the Committee, including without limitation
goals related to the performance of the Company or any Subsidiary, division,
department or other unit of the Company, the performance of the Company’s common
stock or other securities, the performance of the recipient of the Restricted
Stock Award or any combination of the foregoing.


    
      
         


      

      
        6

        
          

        

      

      
         


      

    


    Section
3.3.     Restrictions on
Transfer.  Unless otherwise provided in the grant relating to a
Restricted Stock Award, the Restricted Stock granted to a Participant (whether
represented by certificates or in book-entry or other electronic form) shall be
registered in the Participant's name or, at the option of the Committee, not
issued until such time as the Restricted Stock shall become vested or as
otherwise determined by the Committee.  If certificates are issued
prior to the shares of Restricted Stock becoming vested, such certificates shall
either be held by the Company on behalf of the Participant, or delivered to the
Participant bearing a legend to restrict transfer of the certificate until the
Restricted Stock has vested, as determined by the Committee.  The
Committee shall determine whether the Participant shall have the right to vote
and/or receive dividends on the Restricted Stock before it has
vested.  Except as may otherwise be expressly permitted by the
Committee, no share of Restricted Stock may be sold, transferred, assigned or
pledged by the Participant until such share has vested in accordance with the
terms of the Restricted Stock Award.  Unless the grant of a Restricted
Stock Award specifies otherwise, in the event that a Participant ceases to be an
Employee before all the Participant's Restricted Stock has vested, or in the
event other conditions to the vesting of Restricted Stock have not been
satisfied prior to any deadline for the satisfaction of such conditions set
forth in the award agreement, the shares of Restricted Stock that have not
vested shall be forfeited and any purchase price paid by the Participant for the
forfeited Shares shall be returned to the Participant.  At the time
Restricted Stock vests (and, if the Participant has been issued legended
certificates for Restricted Stock, upon the return of such certificates to the
Company), such vested shares shall be issued to the Participant (or the
beneficiary designated by the Participant in the event of death), in
certificated or book entry or other electronic form, free of all
restrictions.

    


    Section
3.4.     Accelerated
Vesting.  Notwithstanding the vesting conditions set forth in a
Restricted Stock Award, unless the Restricted Stock Award grant or other
agreement with the Participant specifies otherwise:

    


    (a)           the
Committee may in its discretion at any time accelerate the vesting of Restricted
Stock or otherwise waive or amend any conditions of a grant of a Restricted
Stock Award, and

    


    (b)           all
shares of Restricted Stock shall vest upon a Change in Control of the
Company.

    


    Section
3.5.     Section 83(b)
Election.  If a Participant receives Restricted Stock that is
subject to a “substantial risk of forfeiture,” such Participant may elect under
Section 83(b) of the Code to include in his or her gross income, for the taxable
year in which the Restricted Stock is received, the excess of the Fair Market
Value of such Restricted Stock on the Date of Grant (determined without regard
to any restriction other than one which by its terms will never lapse), over the
amount paid for the Restricted Stock.  If the Participant makes the
Section 83(b) election, the Participant shall (a) make such election in a manner
that is satisfactory to the Committee, (b) provide the Company with a copy of
such election, (c) agree to notify the Company promptly if any Internal Revenue
Service or state tax agent, on audit or otherwise, questions the validity or
correctness of such election or of the amount of income reportable on account of
such election and (d) agree to such federal and state income tax withholding as
the Committee may reasonably require in its sole discretion.

    


    ARTICLE
IV

    PERFORMANCE
AWARDS

    


    Section
4.1.     Terms and Conditions of Performance
Awards.  The Committee may from time to time grant Awards that
are intended to be “performance-based compensation,” which are payable in stock,
cash or a combination thereof, at the discretion of the
Committee.


    
      
         


      

      
        7

        
          

        

      

      
         


      

    


    (a)           Performance
Period.  The Committee shall establish a Performance Period for each
Performance Award at the time such Performance Award is granted.  A
Performance Period may overlap with Performance Periods relating to other
Performance Awards granted hereunder to the same Participant.  The
Committee shall not grant Performance Awards to Section 162(m) Participants
after the earliest to occur of (i) the 90th day
after the start of the Performance Period, (ii) the date on which 25% of the
Performance Period has elapsed or (iii) the date on which the satisfaction of
the Performance Objectives becomes substantially certain.

    


    (b)           Performance
Objectives.  The Committee shall establish written performance
objectives for the Participant at the time of the grant of each Performance
Award.  Each Performance Award shall be contingent upon the
achievement of the Performance Objectives established by the
Committee.  Performance Objectives shall be based on earnings, cash
flow, economic value added, total stockholder return, return on equity, return
on capital, return on assets, revenues, operating profit, EBITDA, net profit,
earnings per share, stock price, cost reduction goals, debt to capital ratio,
financial return ratios, profit or operating margins, working capital or other
comparable objective tests selected by the Committee, or any combination of the
foregoing, for the Company on a consolidated basis or, if applicable, for one or
more Subsidiaries, divisions, departments or other units of the Company or one
or more of its Subsidiaries.

    


    (c)           Amount;
Frequency.  The Committee shall determine at the time of grant of
Performance Awards the target and maximum values of Performance Awards and the
date or dates when Performance Awards are earned.

    


    (d)           Payment.  Following
the end of each Performance Period, the holder of each Performance Award will be
entitled to receive payment of an amount, not exceeding the maximum value of the
Performance Award, based on the achievement of the Performance Objectives for
such Performance Period, as determined in writing by the Committee. Unless
otherwise provided in the Performance Award, if the Participant exceeds the
specified minimum level of acceptable achievement but does not attain the
Performance Objectives, the Participant shall be deemed to have partly earned
the Performance Award, and shall become entitled to receive a portion of the
total award, as determined by the Committee.  Unless otherwise
provided in the Performance Award, if a Performance Award is granted after the
start of a Performance Period, the Performance Award shall be reduced to reflect
the portion of the Performance Period during which the Performance Award was in
effect.

    


    (e)           Termination
of Employment.  Unless otherwise provided in the Performance Award, a
Participant who receives a Performance Award and who ceases to be an Employee as
a result of death, Disability or retirement before the end of the applicable
Performance Period shall be entitled to receive, to the extent earned as a
result of the full or partial achievement of the Performance Objectives during
the Performance Period, a portion of the Performance Award that is proportional
to the portion of the Performance Period during which the Participant was
employed, with payment to be made following the end of the Performance
Period.  Unless otherwise provided in the Performance Award, a
Participant who receives a Performance Award who ceases to be an Employee for
any reason other than death, Disability or retirement shall not be entitled to
any part of the Performance Award unless the Committee determines
otherwise.


    
      
         


      

      
        8

        
          

        

      

      
         


      

    


    (f)           Accelerated
Vesting.  Notwithstanding the vesting conditions set forth in a
Performance Award, unless the Performance Award specifies otherwise (i) the
Committee may in its discretion at any time accelerate the time at which the
Performance Award is considered to have been earned or otherwise waive or amend
any conditions (including but not limited to Performance Objectives) in respect
of a Performance Award, and (ii) all Performance Awards shall be considered
earned upon a Change in Control of the Company.  In addition, upon a
Change in Control of the Company, unless a Performance Award specifies
otherwise, each Participant shall receive the target Performance Award such
Participant could have earned for the proportionate part of the Performance
Period prior to the Change in Control, and shall retain the right to earn any
additional portion of his or her Performance Award if such Participant remains
in the Company's employ through the end of the Performance Period.

    


    (g)           Stockholder
Rights.  The holder of a Performance Award shall, as such, have none
of the rights of a stockholder of the Company.

    


    ARTICLE
V

    ADDITIONAL
PROVISIONS

    


    Section
5.1.     Administration of the
Plan.  The Plan shall be administered by the
Committee.  The Committee shall have the authority to interpret the
provisions of the Plan, to adopt such rules and regulations for carrying out the
Plan as it may deem advisable, to decide conclusively all questions arising with
respect to the Plan, to establish performance criteria in respect of Awards
under the Plan, to determine whether Plan requirements have been met for any
Participant in the Plan and to make all other determinations and take all other
actions necessary or desirable for the administration of the
Plan.  All decisions and acts of the Committee shall be final and
binding upon all affected Participants.  If there is no Committee, the
Board shall administer the Plan and in such case all references to the Committee
shall be deemed to be references to the Board.

    


    Section
5.2.     Adjustments for Changes in
Capitalization.  In the event of any (a) stock dividends, stock
splits, recapitalizations, combinations, exchanges of shares, mergers,
consolidations, liquidations, split-ups, split-offs, spin-offs or other similar
changes in capitalization, (b) distributions to stockholders, including a rights
offering, other than regular cash dividends, (c) changes in the outstanding
stock of the Company by reason of any increase or decrease in the number of
issued Shares resulting from a split-up or consolidation of Shares or any
similar capital adjustment or the payment of any stock dividend, (d) Share
repurchase at a price in excess of the market price of the Shares at the time
such repurchase is announced or (e) other similar increase or decrease in the
number of the Shares, the Committee, in its sole discretion, shall make
appropriate adjustment in the number and kind of shares authorized by the Plan
(including the numbers of Shares specified in Section 1.3(b) and (c)), in the
number, price or kind of shares covered by the Awards and in any outstanding
Awards under the Plan.  In the event of any adjustment in the number
of Shares covered by any Award, any fractional Shares resulting from such
adjustment shall be disregarded and each such Award shall cover only the number
of full Shares resulting from such adjustment.


    
      
         


      

      
        9

        
          

        

      

      
         


      

    


    Section
5.3.     Amendment.

    


    (a)           The
Board may amend or modify the Plan in any respect at any time, subject to
stockholder approval if required by applicable law or regulation or by
applicable stock exchange rules.  Such action shall not impair any of
the rights of any Participant with respect to any Award outstanding on the date
of the amendment or modification without the Participant’s written
consent.

    


    (b)           The
Committee shall have the authority to amend any Award to include any provision
which, at the time of such amendment, is authorized under the terms of the Plan;
however, no outstanding Award may be revoked or altered in a manner unfavorable
to the Participant without the written consent of the Participant.

    


    Section
5.4.     Transferability of
Awards.  An Award shall not be transferable by the Participant
otherwise than by will or the laws of descent and distribution.  So
long as a Participant lives, only such Participant or his or her guardian or
legal representative shall have the right to exercise such Award.

    


    Section
5.5.     Beneficiary.  A
Participant may file with the Company a written designation of beneficiary, on
such form as may be prescribed by the Committee, to receive any Shares, Awards
or payments that become deliverable to the Participant pursuant to the Plan
after the Participant's death.  A Participant may, from time to time,
amend or revoke a designation of beneficiary.  If no designated
beneficiary survives the Participant, the executor or administrator of the
Participant's estate shall be deemed to be the Participant’s
beneficiary.

    


    Section
5.6.     Non-uniform
Determinations.  Determinations by the Committee under the Plan
(including, without limitation, determinations of the Eligible Persons to
receive Awards, the form, amount and timing of Awards, the terms and provisions
of Awards and the agreements evidencing Awards and provisions with respect to
termination of employment) need not be uniform and may be made by the Committee
selectively among persons who receive, or are eligible to receive, Awards under
the Plan, whether or not such persons are similarly situated.

    


    Section
5.7.     Duration and
Termination.  The Plan shall be of unlimited duration, provided
that no Incentive Stock Option shall be granted under the Plan on or after the
tenth anniversary of the effective date of the Plan.  The Board may
suspend, discontinue or terminate the Plan at any time.  Such action
shall not impair any of the rights of any holder of any Award outstanding on the
date of the Plan's suspension, discontinuance or termination without the
holder's written consent.

    


    Section
5.8.     Withholding.  Prior
to the issuance of any Shares under the Plan, arrangements satisfactory to the
Committee in its sole discretion shall have been made for the Participant’s
payment to the Company of the amount, if any, that the Committee determines to
be necessary for the Company or Subsidiary employing the Participant to withhold
in accordance with applicable federal or state income tax withholding
requirements.  If the Committee allows Shares to be withheld from an
Award to satisfy such withholding requirements, the amount withheld in Shares
shall not exceed the minimum amount required to be withheld, determined on the
date that the amount of tax to be withheld is to be determined.  When
payments under the Plan are made in cash, such payments shall be net of an
amount sufficient to satisfy such withholding requirements.


    
      
         


      

      
        10

        
          

        

      

      
         


      

    


    Section
5.9.     Agreements and
Undertakings.  As a condition of any issuance or transfer of
Shares, the Committee may obtain such agreements or undertakings, if any, as it
may deem necessary or advisable to assure compliance with any provision of the
Plan, any agreement or any law or regulation including, but not limited to, the
following:

    


    (a)           a
representation, warranty or agreement by the Participant to the Company that the
Participant is acquiring the Shares for investment and not with a view to, or
for sale in connection with, the distribution of any such Shares;
and

    


    (b)           a
representation, warranty or agreement to be bound by any restrictions 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.

    


    Section
5.10.     Uncertificated
Shares.  In lieu of issuing stock certificates for Shares
acquired pursuant to the Plan, the Company may issue such Shares in book-entry
or other electronic or uncertificated form, unless prohibited by applicable law
or regulation or by applicable stock exchange rules.

    


    Section
5.11.     Governing Law.  The
Plan shall be governed by the laws of the State of Texas except to the extent
that federal law or Nevada corporate law is controlling.

    


    Section
5.12.     Effective
Date.  The Plan amends and restates the Existing Plan in its
entirety, effective upon approval by the Board on July 22, 2008.

    
 

    11