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EXHIBIT 8
AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDMENT ("Amendment") is made and entered into to be effective
August 10, 1998, by and between XXXXXX PRODUCTION SERVICES, INC. (together with
its successors, the "Company") and XXXXXX X. XXXXXXX ("Executive").
WHEREAS, Executive and the Company entered into an Executive
Employment Agreement, dated April 1, 1996 ("Agreement"); and
WHEREAS, Executive and the Company desire to amend the Agreement; and
WHEREAS, both the Company and Executive have read and understand the
terms and provisions set forth in this Amendment, and have been afforded a
reasonable opportunity to review this Amendment with their respective legal
counsel;
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Amendment, Executive and the Company agree as follows:
Section 13 (and all references thereto) shall be redenominated as
Section 14, and a new Section 13 shall be added as follows:
"13. EXCISE TAX GROSS-UP PAYMENTS. In the event that (i)
Executive become entitled to any payments under the provisions
of Section 5 (and related sections to the extent relevant)
("Severance Payments"), and (ii) some or all of the Severance
Payments are subject to the tax imposed by Section 4999 of the
Code (the "Excise Tax"), the Company shall pay to Executive,
at the same time as it pays to Executive all or any portion of
the Severance Payments, an amount in cash (the "Excise Tax
Gross-Up Payment") which will be equal to the sum of (iii) the
Excise Tax on the Severance Payments, and (iv) the federal,
state and local income tax, and the Excise Tax, on the total
Excise Tax Gross-up Payment (which, without limitation, will
require the solving of a quadratic equation). For purposes of
determining the extent to which Severance Payments are subject
to the Excise Tax, and the amount of such Excise Tax, any
other payments or benefits received or to be received by
Executive in connection with a Change of Control, or in
connection with Executive's termination of employment (whether
pursuant to the terms of this Executive Agreement or any other
plan (including stock option plans), arrangement, or agreement
with the Company) (collectively, "Other Benefits") shall be
treated in their entirety as (v) "parachute payments" within
the meaning of section 280G(b)(2) of the Code, and (vi)
"excess parachute payments" within the meaning of section
280G(b)(1) of the Code, and thus shall be considered as
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subject to the Excise Tax except to the extent, as determined
in the written opinion of tax counsel selected by the
Company's independent auditors and acceptable to Executive
(who shall not unreasonably withhold approval) such Other
Benefits (vii) do not constitute parachute payments or,
without limitation (viii) do not constitute excess parachute
payments. Without limiting the generality of the foregoing,
the amount required to be taken into account for purposes of
the forgoing determinations, considering the timing, form and
other relevant factors relating to Executive's receipt of
Severance Payments and Other Benefits, shall be determined by
the Company's independent auditors, in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code. Without
limitation, for purposes of determining the amount of the
Excise Tax Gross-Up Payment, the Executive shall be deemed to
pay federal, state and local income taxes (as applicable) at
the highest marginal rate in effect for the calendar year in
which the Excise Tax Gross-Up Payment is paid. In the event
that, after the Excise Tax Gross-up Payment is initially
determined and paid, it is finally determined that Executive's
excess parachute payment is more or less than the amount of
excess parachute payment on which the Excise Tax Gross-Up
Payment was based, the Company, or Executive, shall pay, or
repay, to the other the amount which will cause the Excise Tax
Gross-up Payment to equal the amount which would have been
paid had the parties initially used the amount of the finally
determined excess parachute payment in calculating such
amount, plus, in each case, interest on the amount of such
payment, or repayment, at the rate provided in Section
1274(b)(2)(B) of the Code from the date of the original
payment of the Excise Tax Gross-Up Payment through the date of
the payment, or repayment."
All of the provisions of the Agreement which are not amended as set
forth herein shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
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XXXXXX X. XXXXXXX
XXXXXX PRODUCTION SERVICES, INC.
By:
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
and President
