ex4_1.htm


    
      

    

    Exhibit
4.1

    


    


    KIRBY
CORPORATION

    


    2000
NONEMPLOYEE DIRECTOR STOCK 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 directors, 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
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 an Option or Restricted Stock.

     

    (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 or, if a person
is the beneficial owner, directly or indirectly, of voting securities
representing thirty percent (30%) or more of the combined voting power of the
Company’s outstanding voting securities as of the date a particular Award is
granted, such person becomes the beneficial owner, directly or indirectly, of
additional voting securities representing ten percent (10%) or more of the
combined voting power of the Company’s then outstanding voting
securities;

     

    (ii)  During any period of
twelve (12) months, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute a majority of the Directors unless
the election, or the nomination for election by the Company’s stockholders, of
each new Director was approved by a vote of at least a majority of the Directors
then still in office who were Directors at the beginning of the
period;

     

    (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)   “Compensation Plan” means
the written plan or program in effect from time to time, as approved by the
Board, which sets forth the compensation to be paid to Eligible
Directors.

     

    (g)  “Date of Grant” means the
date on which an Option or Restricted Stock is granted to an Eligible
Director.

     

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

     

    (i)   “Eligible Director” means
a Director who is not an employee of the Company or a Subsidiary.

     

    (j)   “Existing Plan” means the
2000 Nonemployee Director Stock Option Plan, as adopted by the Board on
September 22, 2000, as amended by the Board on January 27, 2004 and approved by
the stockholders of the Company on April 27, 2004, as amended by the Board on
March 3, 2005 (effective April 26, 2005) and 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)   “Nonincentive Stock
Option” means an option that is not an incentive stock option as defined in
Section 422 of the Internal Revenue Code of 1986, as amended.

     

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

    


    
      
        
           


        

        
          2

          
            

          

        

        
           


        

      

    

    


    (n)  “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.

     

    (o)  “Payment Date” means the
last day of a calendar quarter.

     

    (p)  “Plan” means this 2000
Nonemployee Director Stock Plan for Kirby Corporation.

     

    (q)  “Restricted Stock” means
Shares granted under this Plan that are subject to restrictions described in
Article III and the Compensation Plan.

     

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

     

    (s)   “Subsidiary” means 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
1.3.  Total Shares.  The
maximum number of Shares that may be issued under this Plan shall be One Million
(1,000,000) 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,
new Options may thereafter be granted covering such Shares or such Shares may
thereafter be issued as Restricted Stock.  All Share numbers in the
Plan reflect the 2-for-1 split of the common stock of the Company effected on
May 31, 2006.

     

    ARTICLE
II

    STOCK
OPTIONS

     

    Section
2.1.  Automatic Grant of
Options.  Options shall automatically be granted to Eligible
Directors as provided in Sections 2.2, 2.3 and 2.4.  All Options shall
be Nonincentive Stock Options.  Each Option shall be evidenced by an
option agreement containing such terms deemed necessary or desirable by the
Committee that are not inconsistent with the Plan or any applicable
law.  Neither the Plan nor any Option shall confer upon any person any
right to continue to serve as a Director.

     

    Section
2.2.  Automatic One-Time
Grant.  Each Eligible Director shall automatically be granted
an Option for TEN THOUSAND (10,000) Shares on the date of such Eligible
Director’s first election as a Director.

     

    Section
2.3.  Automatic Annual
Grants.  Immediately after each annual meeting of stockholders
of the Company, each Eligible Director shall automatically be granted an Option
for SIX THOUSAND (6,000) Shares.

     

    Section
2.4.  Election to Receive
Options.  If the Compensation Plan permits Eligible Directors
to elect to receive an Option in lieu of all or part of Director fees otherwise
payable in cash, each Eligible Director who has properly and timely made such
election as provided in the Compensation Plan shall automatically be granted an
Option for a number of Shares equal to (i) the amount of the fee such Eligible
Director elects to receive in the form of an Option divided by (ii) the Fair
Market Value of a Share on the Date of Grant multiplied by (iii) 3, with the
result rounded to the nearest whole Share.

     

    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

    


    Section
2.5.  Option Price.  The
option price per Share for any Option shall be the Fair Market Value on the Date
of Grant.

     

    Section
2.6.  Date of Grant.

     

    (a)  The Date of Grant of an
Option granted under Section 2.2 shall be the date of the Eligible Director’s
first election as a Director.

     

    (b)  The Date of Grant of an
Option granted under Section 2.3 shall be the date of the annual meeting of
stockholders of the Company to which the grant relates.

     

    (c)  The Date of Grant of an
Option granted under Section 2.4 shall be the date of the next annual meeting of
stockholders after the election by the Eligible Director pursuant to the
Compensation Plan to receive the Option in lieu of cash fees, except that, for
an Eligible Director elected between annual stockholder meetings, the Date of
Grant shall be the date of his or her election as a Director.

     

    Section
2.7.  Vesting.

     

    (a)  An Option granted under
Section 2.2 shall be exercisable on or after the Date of Grant.

     

    (b)  An Option granted under
Section 2.3 shall become exercisable six months after the Date of
Grant.

     

    (c)  An Option granted under
Section 2.4 shall become exercisable on the Payment Date(s) following the Date
of Grant as provided in this Section 2.7(c).  The number of Shares as
to which an Option granted under Section 2.4 will become exercisable on each
Payment Date after the Date of Grant shall equal the number of Shares subject to
the Option divided by the number of Payment Dates occurring after the Date of
Grant and before the first anniversary of the most recent annual meeting of
stockholders of the Company.

     

    (d)  Notwithstanding the other
provisions of this Section 2.7, (i) an Option shall only become exercisable as
provided in this Section 2.7 if the Optionee is a Director at the time the
Option would otherwise become exercisable and (ii) upon the occurrence of a
Change in Control, all Options outstanding at the time of the Change in Control
shall become immediately exercisable.

     

    Section
2.8.  Term of
Options.  The portion of an Option that is exercisable shall
automatically and without notice terminate upon the earlier of (a) one (1) year
after the Optionee ceases to be a Director for any reason or (b) ten (10) years
after the Date of Grant of the Option.  The portion of an Option that
is not exercisable shall automatically and without notice terminate at the time
the Optionee ceases to be a Director for any reason.

    


    
      
        
           


        

        
          4

          
            

          

        

        
           


        

      

    

    


    Section
2.9.  Exercise of
Options.  Any Option may be exercised in whole or in part to
the extent exercisable in accordance with Section 2.7.  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 option price of the Shares as to which the Option is exercised
has been made.  Unless further limited by the Committee in any Option,
the option 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 option 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
2.10.  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, 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, and the numbers of Options to be granted under Sections 2.2, 2.3
and 2.4, 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 any outstanding 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 in which the Company is not
the surviving entity, the Board or the Committee may provide for any or all of
the following alternatives: (i) for Options to become immediately exercisable,
(ii) for exercisable Options to be cancelled immediately prior to such
transaction, (iii) for the assumption by the surviving entity of the Plan and
the Options, with appropriate adjustments in the number and kind of shares and
exercise prices or (iv) for payment in cash or stock in lieu of and in complete
satisfaction of Options.

     

    (c)  Any fractional shares
resulting from any adjustment under this Section 2.10 shall be disregarded and
each Option shall cover only the number of full shares resulting from such
adjustment.

     

    (d)  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.

    


    
      
        
           


        

        
          5

          
            

          

        

        
           


        

      

    

    


    (e)  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
2.11.  Transferability of Options.
Each Option shall provide that such Option shall not be transferable 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
2.12.  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 in certificated or
in book entry or other electronic form) shall have been issued and delivered to
such person.  As a condition of any 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 Optionee to the Company, at the time any Option is
exercised, that the Optionee 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.

     

    ARTICLE
III

    RESTRICTED
STOCK

     

    Section
3.1.  Automatic Grants of Restricted
Stock.  Restricted Stock shall automatically be granted to
Eligible Directors as provided in Sections 3.2 and 3.3.  Each
Restricted Stock grant shall be evidenced by an agreement containing such terms
deemed necessary or desirable by the Committee that are not inconsistent with
the Plan or any applicable law.  No grant of Restricted Stock shall
confer upon any person any right to continue to serve as a
Director.

     

    Section
3.2.  Automatic Annual
Grants.  Immediately after each annual meeting of stockholders
of the Company, each Eligible Director shall automatically be granted ONE
THOUSAND (1,000) shares of Restricted Stock.

     

    Section
3.3.  Election to Receive Restricted
Stock.  If the Compensation Plan permits Eligible Directors to
elect to receive Restricted Stock in lieu of all or part of Director fees
otherwise payable in cash, each Eligible Director who has properly and timely
made such election as provided in the Compensation Plan shall automatically be
granted a number of Shares of Restricted Stock equal to (i) the amount of the
fee such Eligible Director elects to receive in the form of Restricted Stock
divided by (ii) the Fair Market Value of a Share on the Date of Grant multiplied
by (iii) 1.2, with the result rounded to the nearest whole Share.

    


    
      
        
           


        

        
          6

          
            

          

        

        
           


        

      

    

    


    Section
3.4.  Date of Grant.

     

    (a)  The Date of Grant of
Restricted Stock granted under Section 3.2 shall be the date of the annual
meeting of stockholders of the Company to which the grant relates.

     

    (b)  The Date of Grant of
Restricted Stock granted under Section 3.3 shall be the date of the next annual
meeting of stockholders after the election by the Eligible Director pursuant to
the Compensation Plan to receive the Restricted Stock in lieu of cash fees,
except that, for an Eligible Director elected between annual stockholder
meetings, the Date of Grant shall be the date of his or her election as a
Director.

     

    Section
3.5.  Vesting.

     

    (a)  Restricted Stock granted
under Section 3.2 shall vest six months after the Date of Grant.

     

    (b)  Restricted Stock granted
under Section 3.3 shall vest on the Payment Date(s) following the Date of Grant
as provided in this Section 3.5(a).  The number of Shares of
Restricted Stock granted under Section 3.3 that will vest on each Payment Date
after the Date of Grant shall equal the number of Shares of Restricted Stock
granted divided by the number of Payment Dates occurring after the Date of Grant
and before the first anniversary of the most recent annual meeting of
stockholders of the Company.

     

    (c)  Notwithstanding the other
provisions of this Section 3.5, (i) Restricted Stock shall only vest as provided
in this Section 3.5 if the holder is a Director at the time the Restricted Stock
would otherwise vest and (ii) upon the occurrence of a Change in Control, all
Restricted Stock issued under the Plan that is outstanding at the time of the
Change in Control shall immediately vest.

     

    (d)  Notwithstanding the
vesting conditions set forth in the Plan or the Compensation Plan, 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 Restricted Stock under the
Plan.

     

    Section
3.6.  Restrictions on
Transfer.  Restricted Stock granted to an Eligible Director
under the Plan (whether represented by stock certificates or in book entry or
other electronic form) shall be registered in the Director’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 Director,
or delivered to the Director bearing a legend to restrict transfer of the
certificate until the Restricted Stock has vested, as determined by the
Committee.  The Director shall have the right to vote and 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 Director until such Share
has vested.  In the event that a Director ceases to be a Director
before all the Director’s Restricted Stock has vested, the Shares of Restricted
Stock that have not vested shall be forfeited.  At the time Restricted
Stock vests (and, if the Director 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 Director, in certificated or book entry or
other electronic form, free of all restrictions.

    


    
      
        
           


        

        
          7

          
            

          

        

        
           


        

      

    

    


    Section
3.7.  Issuance of
Shares.  As a condition of the issuance of any Shares of
Restricted Stock, 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 Eligible Director to the Company that the Eligible
Director 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
3.8.  Section 83(b)
Election.  If a Director receives Restricted Stock that is
subject to a “substantial risk of forfeiture,” the Director 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 Fair Market Value of such
Restricted Stock on the Date of Grant.  If the Director makes the
Section 83(b) election, the Director shall (a) make such election in a manner
that is satisfactory to the Committee, (b) provide the Company with a copy of
such election and (c) agree to promptly notify the Company 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.

     

    ARTICLE
IV

    ADDITIONAL
PROVISIONS

     

    Section
4.1.  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 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 Optionees and holders of Restricted
Stock.  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
4.2.  Adjustment of
Shares.  If at any time while the Plan is in effect, 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, combination or exchange of Shares, the Committee
shall make an appropriate adjustment in the number and kind of Shares then
subject to being issued under the Plan, so that the same proportion of the
Company’s issued and outstanding Shares shall continue to be subject to issuance
under the Plan upon the exercise of Options or as Restricted Stock.

    


    
      
        
           


        

        
          8

          
            

          

        

        
           


        

      

    

    


    Section
4.3.  Amendment.  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.

     

    Section
4.4.  Duration and
Termination.  The Plan shall be of unlimited
duration.  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 Option or Restricted Stock outstanding on the date of the Plan’s
suspension, discontinuance or termination without the holder’s written
consent.

     

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

     

    
9