KIRBY CORPORATION Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
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A lump sum cash payment, payable within 60 days of termination, equal to the sum of:
o
The amount equal to 2.0 times (2.99 times in the case of
o
The amount equal to 2.0 times the covered executive's target annual bonus as of the date of termination;
o
The amount equal to the product of (a) the profit sharing contribution, if any, made by the Company under The Kirby Corporation Profit Sharing Plan, as amended (the "Profit Sharing Plan") to the covered executive's account for the year immediately preceding the year in which the change of control (as defined in the covered executive's Agreement) occurs and (b) a fraction, the numerator of which is the number of days in the current fiscal year through the termination date and the denominator of which is 365; and
o
The amount equal to the product of (a) twenty-four (24) and (b) the full monthly cost of premiums the covered executive would be required to pay for COBRA continuation coverage for the executive and his or her eligible dependents at the level in effect immediately prior to the covered executive's termination date under the Company's medical, dental, vision and prescription drug plans.
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The covered executive will be fully vested in any outstanding equity award the amount or vesting of which is to be determined based on the achievement of performance criteria (each a "performance-based equity award"), with the performance criteria deemed achieved at the greater of (a) target levels for the relevant performance period(s) or (b) actual performance as of the date immediately preceding the executive's termination date. The vesting of each equity award outstanding as of the covered executive's termination date that is not a performance-based equity award will be determined by the terms of the applicable equity incentive plan and award agreement.
The "change in control period" for purposes of the Agreements means the period (a) commencing on the date on which the Company enters into a definitive written agreement that, if the transactions contemplated therein are consummated, would result in a change of control, and (b) ending on the second anniversary of the date on which a change of control occurs (or, if earlier, the date on which the definitive agreement terminates without consummation of a change of control).
The covered executive's right to receive the Severance Benefits is conditioned
on the covered executive's timely execution and non-revocation of a release and
waiver of claims against the Company and its affiliates, and the covered
executive's compliance with the confidentiality, non-solicitation,
noncompetition, and non-disparagement restrictive covenants set forth in the
covered executive's Agreement. The non-solicitation and noncompetition covenant
periods are thirty-six (36) months for
To the extent the Severance Benefits, together with any other payments contingent upon a change in control, exceed the limits under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") (generally, three times the covered executive's average annual compensation for the prior five calendar years), the Severance Benefits will either be (a) reduced to the extent necessary to avoid the disallowance of a deduction under Section 280G of the Code or imposition of the excise tax under Section 4999 of the Code or (b) paid in full to the covered executive, whichever results in the greatest after-tax benefit to the covered executive.
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The foregoing summary of the Agreements is qualified in its entirety by reference to the full text of the Agreements, which are attached hereto as Exhibits 10.1, 10.2, 10.3, and 10.4 to this Current Report on Form 8-K.
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