EXHIBIT 10.29
AMENDMENT NO. 2 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 XXXXXXX X. XXXXXX ("Executive").
WHEREAS, Executive and the Company entered into an Executive Employment
Agreement, dated April 1, 1996, and amended it effective April 1, 1998
("Agreement"); and
WHEREAS, Executive and the Company desire to further 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
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
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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.
/s/ XXXXXXX X. XXXXXX
XXXXXXX X. XXXXXX
XXXXXX PRODUCTION SERVICES, INC.
By: /s/ P. XXXX XXXXX
Name: P. Xxxx Xxxxx
Title: Chief Financial Officer
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