Deferred Compensation Plan for Key Employees (As Amended and Restated Effective April 1, 2022)
DEFERRED COMPENSATION PLAN FOR KEY EMPLOYEES
(As amended and restated effective april 1, 2022)
This Agreement, entered into effective as of April 1, 2022, amends and restates the Kirby Corporation Deferred Compensation Plan for Key Employees (hereafter “Plan”). The Plan was established effective January 1, 1992, as an unfunded nonqualified deferred compensation plan and designed primarily to provide additional benefits to Eligible Employees (as defined below) to restore benefits to which they would be entitled under the Employer’s qualified retirement program were it not for certain limits (being the limitations with respect to the amount of compensation which may be taken into account in determining benefits under a qualified plan and the limits on the amount of benefits that can be provided), and thereby enable such Eligible Employees to share equally in the contributions generated by the Employer’s profitability, and also to attain approximately the same level of retirement benefits, as a percentage of pay, as employees who are not adversely affected by the various maximum limits imposed with respect to qualified plans.
“Account” shall mean the record keeping account maintained by the Administrator or its delegate for each Participant in the Plan.
“Accrued Benefit” shall mean the Value of the Participant’s Account as of the Valuation Date coincident with or next preceding the date of reference.
“Administrator” shall mean the person(s) designated to administer the Plan pursuant to Section Two.
“Affiliate” shall mean any corporation entitled to make Profit Sharing Contributions or Employer Discretionary Contributions under the 401(k) Plan at the time of reference.
“Beneficiary” shall mean the person(s), entity or entities described in Section Ten designated by, or for, the Participant.
“Board” shall mean the Board of Directors of Kirby.
“Cash Distribution Amount” shall mean the amount, if any, which is paid to the Participant with respect to the Plan Year of reference in connection with the reduction in the Profit Sharing Employer Contribution or Employer Discretionary Contribution as a result of contributions to the 401(k) Plan.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Compensation” shall mean “Considered Compensation” as that term is defined in the 401(k) Plan, but without the limitations set forth in the last two sentences of the first paragraph of that definition (which address the limitations on compensation that may be taken into account in making contributions to the 401(k) Plan).
“Designation of Employer Contribution” shall mean the designation of the Employer Contribution for a Participant with respect to a Plan Year.
“Disability” shall mean “Disability” as defined in the 401(k) Plan.
“Eligible Employee” shall mean an Employee who is an officer or other member of management of the Employer or is a highly compensated Employee of the Employer, all as determined by the Administrator in its sole discretion.
“Employee” shall mean an employee of the Employer as determined under the books and records of the Employer.
“Employer” shall mean, collectively, Kirby Corporation and each Affiliate at the time of reference, who is employing a Participant, except that where it is necessary to distinguish between such entities, reference shall be made to the appropriate entity.
“Employer Contribution” shall mean, individually and collectively as the context requires, the amount(s) credited to a Participant’s Account under Section Five.
“Employer Discretionary Contribution” shall mean the amount, if any, contributed by an Employer for the benefit of its employees, as an Employer Discretionary Contribution under the 401(k) Plan with respect to the Plan Year of reference.
“Employer Discretionary Contribution Account” shall mean the Participant’s Employer Discretionary Contribution Account under the 401(k) Plan.
“Employer Discretionary Contribution Percentage” shall mean for each Plan Year, with respect to each Employer, the quotient of (i) the Employer Discretionary Contribution of such Employer for the Plan Year of reference, divided by (ii) the aggregate Statutory Compensation of each employee of such Employer who shares in such Employer Discretionary Contribution.
“Employer Discretionary Contribution Amount” shall mean the amount allocated to the Participant’s Employer Discretionary Contribution Account with respect to the Plan Year of reference.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“401(k) Limitation Compensation” shall mean the annual compensation limit imposed by Section 401(a)(17) of the Code (as adjusted by the Secretary of the Treasury) for the Plan Year of reference.
“401(k) Plan” shall mean the Kirby Corporation 401(k) Plan, as amended.
“Kirby” shall mean Kirby Corporation, or its successor.
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“Maximum Contribution Limitation” shall mean the formulae set forth on Schedule A which represents the maximum contribution which can be made for any Participant hereunder at the time of reference.
“Maximum Contribution” shall mean maximum amount of Employer Contribution which a Participant may receive hereunder with respect to the Plan Year of reference, and shall be computed under the Maximum Contribution Formulae set forth on Schedule A.
“Participant” shall mean an Eligible Employee who has satisfied the requirements of Section Three and whose participation has not been terminated as provided in Section Three.
“Plan” shall mean this Kirby Corporation Deferred Compensation Plan for Key Employees, as set forth in this document and subsequent amendments.
“Plan Year” shall mean calendar year.
“Profit Sharing Employer Contribution” shall mean the amount, if any, contributed by an Employer for the benefit of its employees, as a Profit Sharing Contribution under the 401(k) Plan with respect to the Plan Year of reference.
“Profit Sharing Account” shall mean the Participant’s Profit Sharing Account under the 401(k) Plan.
“Profit Sharing Amount” shall mean the amount allocated to the Participant’s Profit Sharing Account with respect to the Plan Year of reference.
“Profit Sharing Percentage” shall mean for each Plan Year, with respect to each Employer, the quotient of (i) the Profit Sharing Employer Contribution of such Employer for the Plan Year of reference, divided by (ii) the aggregate Statutory Compensation of each employee of such Employer who shares in such Profit Sharing Employer Contribution.
“Quarter” shall mean calendar quarter.
“Schedule A” shall mean the schedule designated as Schedule A which forms part of this Plan and which shows the Maximum Contribution Limitation at the time of reference.
“Statutory Compensation” shall mean Considered Compensation as defined in the 401(k) Plan for the Plan Year of reference.
“Value” shall mean the value of an Account as reflected on the properly kept books of the Administrator at the time of reference.
“Valuation Date” shall mean the last day of each Quarter and any other day or days selected by the Administrator on which the Plan (or any portion thereof) is to be valued.
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“Vesting”, “Vested” and similar references shall mean the percentage of a Participant’s Accrued Benefit to which he or she is entitled upon a termination of employment with the Employer at the time of reference and under the circumstances then present.
Any Administrator appointed hereunder who is an Employee shall serve without compensation; and such person shall automatically cease to be an Administrator upon his or her termination of employment with the Employer. An Administrator may resign at any time by giving thirty (30) days’ prior written notice to the Board. The Board may remove an Administrator at any time by written notice, and may appoint a successor Administrator.
If at any time there shall be two (2) or more persons acting as Administrator, such persons shall conduct the business of the Administrator by meetings, held from time to time at their discretion, and the actions of the Administrator shall be determined by majority vote, which may be made by telephone, fax, e-mail or other written or electronic correspondence, and the Administrator may designate, in writing, one (1) or more of its members who shall have authority to sign or certify that any action taken by the Administrator represents the will of, and is binding on, the Administrator.
The Administrator shall acknowledge the assumption of the Administrator’s duties hereunder in writing, or shall endorse a copy of this Plan.
In the event the Administrator has not been effectively appointed hereunder at the time of reference, Kirby shall act as the Administrator.
The Administrator shall be responsible for establishing and carrying out the objectives of the Plan, in accordance with its terms, for the exclusive benefit of its Participants.
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Any action on matters within the discretion of the Administrator shall be final and conclusive as to all persons affected. The Administrator shall at all times endeavor to exercise its discretion in a non-discriminatory manner.
No member of the Administrator shall vote or act upon any matter involving his own rights, benefits or other participation under this Plan, and in such case, the remaining member or members of the Administrator shall appoint a member pro-tern to act in the place of the interested member; provided, however, that if all members of the Administrator shall be disqualified under this paragraph with regard to one or more matters, the Chief Executive Officer of Kirby shall appoint three qualifying persons to be the Administrator with regard to such matters.
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An Eligible Employee will become a Participant in this Plan on the first day of the first Plan Year during which the Eligible Employee’s Maximum Contribution would be greater than zero.
By becoming a Participant, each Eligible Employee shall, for all purposes, be deemed conclusively to have assented to the provisions of this Plan and to all amendments to this Plan.
Once an Eligible Employee becomes a Participant, he shall remain a Participant until the earliest of the date on which (i) his Vested Accrued Benefit is paid to him, (ii) he terminates employment with the Employer for any reason (all references to termination of employment shall be deemed to include, without limitation, involuntary discharge without cause) without a Vested interest in his Accrued Benefit, or (iii) the Plan is terminated.
No contributions may be made to this Plan by Eligible Employees. To the extent that this policy shall change in the future, the rules with respect to such contributions will be set forth in this Section Four.
The Administrator shall maintain an Account in the name of each Participant.
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Each Participant shall be Vested in his Accrued Benefit in exactly the same percentage as he is “Vested” in his Profit Sharing Account or, if he does not have a Profit Sharing Account, his Employer Discretionary Contribution Account, at the time of reference and, upon termination of employment with the Employer for any reason, a Participant shall be entitled to a distribution under Section Eight of his Vested Accrued Benefit, and shall forfeit permanently the remaining, non-Vested, portion of his Accrued Benefit. Notwithstanding any other provision hereof to contrary, where (if ever) all or any portion of an Employer Contribution for a Participant for a Plan Year is credited to his Account before the end of such Plan Year then, regardless of his Vested percentage, the Participant permanently will forfeit 100% of such Employer Contribution(s) (and related earnings) unless he is entitled to share in the Profit Sharing Employer Contribution (if any) or the Employer Discretionary Contribution (if any) under the 401(k) Plan with respect to such Plan Year. The amount forfeited as provided in this Section Seven will simply remain the property of the Employer.
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Except as provided below, the Participant’s Vested Accrued Benefit shall be payable in a lump sum payment within 90 days after the earliest to occur of the date of the Participant’s (a) death, (b) termination of employment as a result of Disability, or (c) termination of employment with the Employer.
An Employee shall not have terminated employment for these purposes unless the Employee has incurred a “separation from service” with the Employer and all affiliates (as determined for purposes of Code Section 409A and the regulations and guidance issued thereunder).
Notwithstanding the foregoing, to the extent required under Code Section 409A, a distribution to a Participant who is a “specified employee” may not be made prior to six months following such Participant’s termination of employment. The determination of who is a specified employee will be made in accordance with Code Section 409A and Code Section 416(i) (without regard to paragraph (5) thereof) and the applicable regulations and other guidance of general applicability issued thereunder.
All payments of the Vested Accrued Benefit shall be paid in cash from the general funds of the Employer, and no special or separate fund shall be established or other segregation of assets made to assure such payments in such a way as to make this Plan a “funded” plan for purposes of ERISA or the Code; provided, however, that the Employer may, in its sole discretion, establish a bookkeeping reserve to meet its obligations under the Plan. Nothing contained in the Plan shall create or be construed to create a trust of any kind, and nothing contained in the Plan nor any action taken pursuant to the provisions of the Plan shall create or be construed to create a fiduciary relationship between the Employer and a Participant, Beneficiary, employee or other person. To the extent that any person acquires a right to receive payments from the Employer under the Plan, such right shall be no greater than the right of any unsecured general creditor of the Employer.
For purposes of the Code, the Employer intends this Plan to be an unfunded, unsecured promise to pay on the part of the Employer. For purposes of ERISA, the Employer intends the Plan to be an unfunded plan primarily for the benefit of a select group of management or highly compensated employees of the Employer for the purpose of qualifying the Plan for the “top hat” plan exception under sections 201(2), 301(a)(3) and 401(a)(l) of ERISA.
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The Plan may, without prior notice to any Participant or other person, be amended, suspended or terminated, in whole or in part, by the Board, but no such action shall retroactively impair the rights of any person to payment of his Vested Accrued Benefit under the Plan.
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IN WITNESS WHEREOF, Kirby has executed this amendment and restatement of the Plan, on the 2 day of March, 2022.
Kim B. Clarke
VP & CHRO
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Maximum Contribution Limitation
The Maximum Contribution, for each Plan Year, for each Participant who is eligible to receive Profit Sharing Contributions shall be separately computed under the following Maximum Contribution Formulae, and the Employer Contribution for such Participant for such Plan Year may not exceed such Maximum Contribution:
([Compensation - 401(k) Limitation Compensation] x 3%) + (Compensation x Profit Sharing Percentage) - (Profit Sharing Amount + Cash Distribution Amount) = Maximum Contribution.
The Maximum Contribution, for each Plan Year, for each Participant who is not eligible to receive Profit Sharing Contributions shall be separately computed under the following Maximum Contribution Formulae, and the Employer Contribution for such Participant for such Plan Year may not exceed such Maximum Contribution:
([Compensation - 401(k) Limitation Compensation] x 3%) + (Compensation x Employer Discretionary Contribution Percentage) - (Employer Discretionary Contribution Amount + Cash Distribution Amount) = Maximum Contribution.
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