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EXHIBIT 10.25
AMENDMENT NO. 1
TO THE
1994 EMPLOYEE STOCK OPTION PLAN
FOR
KIRBY CORPORATION
The Board of Directors of Kirby Corporation, a Nevada corporation (the
"Company"), amends the 1994 Employee Stock Option Plan for Kirby Corporation
(the "Plan") in the following respects only:
1. Add in Section 2 the following definitions:
(u) "CORPORATE TRANSACTION" shall mean (i) any transaction (which
shall include a series of transactions occurring within 60 days or
occurring pursuant to a plan) that has the result that shareholders of the
Company immediately before such transaction cease to own at least 51% of
(x) the voting stock of the Company or (y) of any entity that results from
the participation of the Company in a reorganization, consolidation,
merger, liquidation or any other form of corporate transaction; (ii) a
merger, consolidation, reorganization, liquidation or dissolution in which
the Company does not survive; (iii) a sale, lease, exchange or other
disposition of all or substantially all of the property and assets of the
Company.
(v) "SALES RESTRICTIONS" shall mean such restrictions on an Optionee's
(or the successor to the rights of the Optionee pursuant to SECTION 10)
right to sell Shares acquired through the exercise of an Option which are
imposed by the Committee, in its sole discretion, pursuant to a Restriction
Notice as provided in Section 11(b); provided, however, that such Sales
Restrictions shall not prevent an Optionee from selling an aggregate of
50,000 such Shares during a calendar month.
(w) "OUTSIDE DIRECTOR" shall mean a Director who qualifies as an
"outside director" under the regulations promulgated under Section 162(m)
of the Internal Revenue Code and as a "non-employee director" under Rule
16b-3 promulgated under the Securities Exchange Act of 1934, effective
August 15, 1996.
(x) "EXTENSION NOTICE" shall mean the written notice to the Optionee
described in Section 8(c).
(y) "RESTRICTION NOTICE" shall mean the written notice to the Optionee
imposing Sales Restrictions as provided in SECTION 11(b).
2. Add at the beginning of Section 7(b), the following:
(b) Except as otherwise provided in an Extension Notice [but only with
respect to Options granted on or after November 5, 1996], the expiration
date . . . .
3. In Section 7(d) between the words "which" and "any," add the phrase:
"all or any part of"
4. Section 7(e) is hereby amended by adding at the beginning of such
Section the following:
(b) With respect to Options granted prior to November 5, 1996, on . .
. .
5. The first paragraph of Section 8(a) is hereby amended to read as
follows:
(a) Unless otherwise provided in any Option or in an Extension Notice,
the unexercised portion of an Option shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of
the following:
6. Section 8(b) is hereby amended by adding at the beginning of such
Section the following:
(b) With respect to Options granted prior to November 5, 1996, if . .
. .
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7. Section 8 is hereby further amended by adding the following new
Sections:
(c) With respect to Options granted on or after November 5, 1996,
notwithstanding any provision of this Plan to the contrary, on or before
the date of termination of a Nonqualified Stock Option, the Committee in
its sole discretion may give the Optionee an Extension Notice extending the
termination date of all or any part of such Nonqualified Stock Option to
any date specified by the Committee in such Extension Notice which is not
later than the earlier of (i) the date described in SECTION 8(a)(vi), or
(ii) ten (10) days after the date on which all of the Sales Restrictions
(if any) with respect to Shares subject to such Nonqualified Stock Option
shall lapse.
(d) With respect to Options granted on or after November 5, 1996,
notwithstanding any provision of the Option to the contrary, including
without limitation any extension due to an Extension Notice, the Committee,
in its sole discretion, may, by giving written notice (a "CANCELLATION
NOTICE") cancel, effective upon the date of the consummation of a Corporate
Transaction, all or any portion of such Option that remains unexercised for
any reason on such date. Such Cancellation Notice shall be given a
reasonable period of time (but not less than 15 days) prior to the proposed
date of such cancellation, and may be given either before or after
shareholder approval of such transaction.
8. Section 11 is hereby amended by changing the caption to "ISSUANCE AND
SALE OF SHARES," by designating the first paragraph there as "(a)," deleting the
word "and" at the end of SUBSECTION 11(a)(i), adding the word "and" at the end
of SUBSECTION 11(a)(ii), and adding at the end thereof the following new
SUBSECTION (iii) as follows:
(iii) An agreement to allow the Company to retain possession of
certificates evidencing any Shares acquired through the exercise of an
Option which are subject to Sales Restrictions.
9. Section 11 is hereby further amended by adding a new paragraph (b) as
follows:
(b) With respect to Options granted on or after November 5, 1996,
unless expressly provided to the contrary in the Option, the Committee may,
in its sole discretion, impose Sales Restrictions on all or any portion of
the Shares subject to a Nonqualified Stock Option or acquired through the
exercise of a Nonqualified Stock Option, by delivering a written
Restriction Notice to the Optionee not later than ten (10) days following
the exercise of such Nonqualified Stock Option.
10. Section 14(a) is amended to read as follows:
(a) The Plan shall be administered by the Compensation Committee of
the Board or other committee thereof as appointed by the Board (herein
called the "COMMITTEE") consisting of not less than three (3) members of
the Board, all of whom are Outside Directors. Except for the powers set
forth in SECTION 17 which are expressly reserved to the Board, and such
other limitations which are imposed in writing by the Board or in
resolutions adopted by the Board, the Committee shall have all of the
powers of the Board with respect to the Plan and the Options. Any member of
the Committee may be removed at any time, with or without cause, by
resolution of the Board and any vacancy occurring in the membership of the
Committee may be filled by appointment by the Board.
11. Section 16(g) is amended to read as follows:
(g) Records of the Company shall be conclusive for all purposes under
this Plan or any Option, except to the extent a record is determined by the
Committee or the Board to be incorrect.
12. Section 16(i) is amended to read as follows:
(i) The Company does not assume liability, and shall have no
liability, to any Optionee or his legal representatives, heirs, legatees or
distributees for any act of, or failure to act on the part of, the Company,
the Committee, or the Board, and by accepting an Option, an Optionee shall
be deemed to release the Company, the Board and the Committee and its
agents, from any such liability.
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13. Section 16(j) amended to read as follows:
(j) Reserved.
14. Section 17 is hereby amended to read as follows:
Section 17. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Committee
may from time to time amend, suspend or terminate the Plan or any Option;
provided, however, that only the Board may amend the Plan to increase the
number of Shares subject to grant under the Plan, change the class of
persons eligible to receive Options, or change the provisions of SECTION
8(a)(vi), provided further that no amendment may alter any provision of the
Plan or any Option without compliance with any applicable shareholder
approval requirements promulgated under the Code, if applicable, or by any
stock exchange or market on which the Common Stock of the Company is listed
for trading; and provided, further, that no amendment, suspension or
cancellation of the Plan or any Option issued hereunder shall, except as
specifically permitted in any Option or under the terms of the Plan
(including, without limitation, SECTIONS 8(d) AND 11(b)), substantially
impair any Option previously granted to any Optionee without the consent of
such Optionee.
The Board of Directors of the Company is advised that the foregoing
amendments do not require approval of the Stockholders of the Company and,
accordingly, the amendments will not be submitted to the Stockholders of the
Company and shall become effective this date.
The Board of Directors of the Company approved the foregoing amendments on
November 5, 1996.
KIRBY CORPORATION
By: /s/ G. STEPHEN HOLCOMB
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G. Stephen Holcomb, Assistant Secretary
EFFECTIVE DATE:
November 5, 1996
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