EXHIBIT 10.38
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
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THIS AMENDMENT (hereinafter this "Amendment") is made and entered into
between Xxxxxxx X. Xxxxxx (hereinafter "Xxxxxx") and Coda Energy, Inc.
(hereinafter "Coda"), as of the date of execution below, amending that certain
Executive Employment Agreement effective as of February 16, 1996 between Xxxxxx
and Coda (hereinafter the "Employment Agreement");
WHEREAS, Coda is a party to that certain Agreement and Plan of Merger dated
as of October 31, 1997 entered into by and among Belco Oil & Gas Corp., Belco
Acquisition Sub, Inc. and Coda (hereinafter the "Merger Agreement"); and,
WHEREAS, Xxxxxx and Coda desire to amend the Employment Agreement
conditioned upon and contemporaneous with the consummation of the transaction
contemplated by the Merger Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements herein contained, and the mutual benefits to be derived therefrom,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Xxxxxx and Coda agree as follows:
1. Subject to and conditioned upon receipt of the payment described in
paragraph 2 below, the Employment Agreement is hereby amended in the following
particulars, effective as of the Closing (as defined in the Merger Agreement):
(A) On Exhibit "A" to the Employment Agreement, the wording "Term: Five
(5) years after the Effective Time" is amended to read "Term: Commencing as
of the Effective Time and terminating as of the date of closing of the
transaction contemplated by that certain Agreement and Plan of Merger dated
as of October 31, 1997 among Belco Oil & Gas Corp., Belco Acquisition Sub,
Inc. and Coda Energy, Inc."
(B) In Section 6.1, the second sentence of the first paragraph and the
second paragraph are deleted (only the first sentence of 6.1 remains); and,
in Section 6.3, the first sentence is deleted.
(C) In Section 6.2, the first (and only) sentence is amended to read:
"Until five (5) years after the date of termination of Employee's
employment relationship with Employer (such date of termination being
hereinafter referred to as the 'Termination Date'), Employee shall not
induce any employee of Employer or its affiliates to terminate his or her
employment with Employer or its affiliates, or hire or assist in the hiring
of any such employee by any person, association, or entity not affiliated
with Employer; provided, however, that notwithstanding the foregoing,
Employee may hire any employee of Employer or its affiliates who (i) is
discharged after six (6) months following the Termination Date; (ii) is
discharged within six (6) months following the Termination Date, but only
with the prior written consent of Employer; or, (iii) voluntarily
terminates his or her employment, but only if more than six months elapse
between such voluntary termination and employment by Employee."
(D) In Section 5.2, the words "land records, title information, geologic or
seismic data, oil and gas reserve information, acquisition or drilling
prospects, proposed unitization or secondary recovery prospects,
information pertaining to any Employer assets with respect to any prospects
or properties identified and described on Schedule A hereto," are added in
the first sentence, second line, immediately preceding the word
"strategies."
2. At the Closing, Coda shall pay Xxxxxx a sum of money, less applicable
withholding, equal to the aggregate amount of Monthly Base Salary (as defined in
the Employment Agreement) that would otherwise have
been payable to Xxxxxx if Xxxxxx'x employment had continued without interruption
under the Employment Agreement from the Closing through February 16, 2001.
3. At the Closing, Xxxxxx'x employment with Coda shall terminate,
continued medical insurance benefits will thereafter be made available to Xxxxxx
by Coda in accordance with Coda policies and in conformity with the Consolidated
Omnibus Reconciliation Act of 1985, as amended, and Xxxxxx will thereafter
comply with the provisions of the Employment Agreement, as amended by this
Amendment, relating to matters following termination. Except as provided
herein, from and after the Closing Coda shall have no obligation to Xxxxxx under
the Employment Agreement.
4. In the event the Merger Agreement is terminated and the transaction
contemplated thereby fails to occur for any reason, this Amendment shall
automatically become null and void.
5. Except as specifically amended by this Amendment, the terms and
provisions of the Employment Agreement shall remain in full force and effect.
6. This Amendment shall be binding upon and inure to the benefit of Coda
and any other person, association, or entity which may hereafter acquire or
succeed to all or substantially all of the business or assets of Coda by any
means whether direct or indirect, by purchase, merger, consolidation or
otherwise.
EXECUTED this 31st day of October, 1997.
\s\ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
CODA ENERGY, INC.
By: \s\ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
President and CFO
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