KEX Kirby Corporation

Item 1.01 Entry into a Material Definitive Agreement.

On February 3, 2023, Kirby Corporation (the “Company”) entered into a Cooperation Agreement (the “Cooperation Agreement”) with JCP Investment Management, LLC and certain of its affiliates and associates (collectively, “JCP”) regarding matters relating to the election of members of the Company’s Board of Directors (the “Board”) and certain other matters. The following description of the Cooperation Agreement does not purport to be complete and is qualified in its entirety by reference to the Cooperation Agreement, a copy of which is attached as Exhibit 10.1 hereto and is incorporated herein by reference.

Pursuant to the Cooperation Agreement, the Company agreed, among other things, to appoint Rocky B. Dewbre to the Board as a Class II director with a term expiring at the Company’s 2024 annual meeting of stockholders (the “2024 Annual Meeting”).

During the period beginning on the date of the Cooperation Agreement and ending on the earlier of (a) thirty (30) days prior to the deadline under the Company’s Bylaws for director nominations and stockholder proposals for the 2024 Annual Meeting and (b) one hundred and twenty (120) days prior to the first anniversary of the 2023 annual meeting of stockholders (the “Standstill Period”), JCP has agreed to certain standstill provisions, including, among other things, agreeing not to (i) acquire beneficial ownership in excess of four-and-a-half times (4.5x) the percentage of the Company’s outstanding common stock represented by JCP’s current aggregate beneficial ownership, (ii) seek to submit nominations in furtherance of a contested solicitation for the election or removal of directors with respect to the Company, (iii) submit any stockholder proposal or any notice of nomination or other business for consideration, (iv) nominate any candidate for election to the Board or (v) solicit any proxy or written consent of stockholders or conduct any other type of referendum with respect to, or from the holders of, the voting securities of the Company.

Pursuant to the Cooperation Agreement, JCP has also agreed during the Standstill Period to vote its voting securities of the Company at any annual or special meeting of stockholders in accordance with the Board’s recommendations with respect to (i) the election, removal or replacement of directors, (ii) the ratification of the appointment of the Company’s independent registered public accounting firm, (iii) the Company’s “say-on-pay” proposal and (iv) any other proposal to be submitted to the stockholders of the Company by either the Company or any stockholder of the Company; provided, however, that (i) if Institutional Shareholder Services Inc. (“ISS”) recommends otherwise with respect to any proposals (other than as related to the election, removal or replacement of directors), JCP shall be permitted to vote in accordance with ISS’s recommendation and (ii) that JCP shall be permitted to vote in its sole discretion in connection with an Extraordinary Transaction (as defined in the Cooperation Agreement). The Cooperation Agreement also includes a mutual non-disparagement provision.