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EXHIBIT 10(a)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") made and entered into as of the 15th
day of July, 1994, by and between ZAPATA CORPORATION, a Delaware corporation
(the "Company"), ZAPATA PROTEIN, INC., a Delaware corporation ("Zapata
Protein"), and R. C. LASSITER, an individual residing in Houston, Harris County,
Texas (the "Executive");
W I T N E S S E T H:
WHEREAS, the Executive has been an officer of the Company pursuant to the
Employment Agreement dated effective March 15, 1991 between the Company and the
Executive (the "Employment Agreement"); and
WHEREAS, the Employment Agreement provided for certain additional remuneration
and certain additional benefits to be paid to the Executive if the Executive
terminated his employment with the Company in the event of a Change of Control
under certain conditions (as defined in Paragraph 5.B(i) of the Employment
Agreement) after March 15, 1991; and
WHEREAS, a Change of Control of the Company occurred on or about July 16, 1992;
and
WHEREAS, pursuant to Paragraph 5.B of the Employment Agreement, a Good Reason
(as defined in the Employment Agreement) has occurred, pursuant to which the
Executive may terminate his employment on or before July 16, 1994 and receive
three years' salary from the date of such termination; and
WHEREAS, the Executive has given notice to the Company, dated July 15, 1994, to
terminate his employment pursuant to Paragraph 5.B of the Employment Agreement;
and
WHEREAS, the Company desires to retain the Executive to continue to provide
management services to its subsidiary, Zapata Protein, after his termination of
employment and Executive is willing and able to provide such services under the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of these premises and other good and valuable
consideration, the parties agree as follows:
1. Consulting Employment: The Company and the Executive agree that
Executive's full-time employment under the Employment Agreement with the
Company will terminate as of July 15, 1994. The Company hereby employs the
Executive as an independent consultant and the Executive agrees to render
consulting services to act as general manager of Zapata Protein for a term
beginning on July 15, 1994 and ending on January 16, 1995 (the "Term of
this Agreement"), and the Executive shall provide services as more fully
described in the attached
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EXHIBIT "A" incorporated herein by reference. The Executive shall provide
such services in compliance with the requests of the Company's Board of
Directors, and the Executive shall report the progress of his efforts to
the Board of Directors on a regular basis. Executive shall perform the
services at Zapata's One Riverway offices or such other location(s) as the
Company may reasonably designate, and he shall be an independent consultant
and shall not be deemed for any purpose to be an employee, agent or servant
of the Company or Zapata Protein. The Company shall have no direction or
control of the Executive except in the results to be obtained.
2. Direct Compensation: As compensation for services rendered hereunder, the
Company shall pay the Executive the amounts due pursuant to Paragraph 5.B
of the Employment Agreement commencing on July 15, 1994, in a monthly
amount equal to Fourteen Thousand Five Hundred Eighty-Three and 33/100
Dollars ($14,583.33), until the earlier of: (a) January 15, 1995 or (b) the
sale of all or substantially all of the capital stock or assets of Zapata
Protein.
If the event in subparagraph 2(a) of this Agreement occurs first, the
Company shall pay any remaining amounts owed under Paragraph 5.B of the
Employment Agreement at the rate of Three Hundred Fifty-Eight Thousand Six
Hundred and No/100 Dollars ($358,600.00) per year until the full amount to
which the Executive is entitled under Paragraph 5.B of the Employment
Agreement is paid to the Executive.
If the event in subparagraph 2(b) of this Agreement occurs first, the
Company shall assign all of its rights and obligations under this Agreement
to Zapata Protein and/or its successor; provided, however, that if all or
substantially all of the capital stock or assets of Zapata Protein are sold
to a party with which the Executive has no relationship or interest of any
kind, including, but not limited to, a relationship or interest as an
investor, stockholder, officer or consultant, then the Company shall remain
liable for all remaining amounts payable to the Executive pursuant to
Paragraph 2(c) of this Agreement. Subject to the foregoing, the Executive
and Zapata Protein hereby consent to any such assignment pursuant to this
Agreement, and Zapata Protein agrees to pay or cause to be paid all
remaining amounts due to the Executive under Paragraph 5.B of the
Employment Agreement in the event of such assignment at a rate of One
Hundred Seventy-Five Thousand and No/100 Dollars ($175,000.00) per year
until the full amount to which the Executive is entitled under Paragraph
5.B of the Employment Agreement is paid to the Executive.
In no event shall the amounts payable hereunder pursuant to Paragraph 5.B
of the Employment Agreement be less than or exceed the total amount due
under Paragraph 5.B of the Employment Agreement as of July 15, 1994.
3. Reimbursement of Expenses: The Company shall reimburse the Executive for
all reasonable and necessary expenses he incurs under this Agreement. The
Company shall provide the Executive office space at One Riverway, Houston,
Texas 77056 (or at such other location(s) as the Company may reasonably
designate) and one reserved parking space for the duration
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of the Term of this Agreement.
4. Benefits: During the Term of this Agreement, the Executive shall be
entitled to participate in the Company's group health and dental care plans
pursuant to the terms and conditions of those plans. Premiums will be
deducted from each monthly check paid to the Executive. Executive shall
not participate in any other employee benefit plan or program sponsored by
the Company, Zapata Protein or its successor during the Term of this
Agreement.
5. Directors' and Officers Insurance and Indemnity: The Company agrees to use
reasonable efforts to obtain a directors' and officers' liability
insurance policy covering Executive and to continue to maintain such
policy. The amount of such coverage, if available, shall be reasonable in
relation to the Executive's responsibilities during the Term of this
Agreement. Additionally, the Company agrees to indemnify fully and hold
the Executive harmless against any causes of action of any type whatsoever
to the fullest extent permitted by law and consistent with the Company's
Certificate of Incorporation and By-laws in effect as of the date hereof
with respect to any acts or non-acts he may commit in connection with the
performance of his consulting services under this Agreement and during the
Term of this Agreement, even if the Executive is shown to be negligent or
grossly negligent, in whole or in part.
6. Notices: Any notices required to be made hereunder shall be deemed
effective when placed in writing and hand-delivered or mailed in the U.S.
mail, postage-prepaid, as follows:
To Company: Zapata Corporation
One Riverway, Suite 2200
Houston, Texas 77056
Attention: Corporate Secretary
To Executive: Mr. R. C. Lassiter
11115 Wickwood
Houston, Texas 77024
7. Death or Disability: If, during the Term of this Agreement, Executive dies
or becomes totally and permanently disabled (as defined in the Company's
Long-Term Disability Plan), the Company shall be obligated to pay (in the
case of death) to the Executive's beneficiary or beneficiaries designated
in writing, or to his estate in the absence or lapse of such designation,
or (in the case of such disability) to the Executive or his representative,
the remaining amount payable under Paragraph 5.B of the Employment
Agreement in a lump sum.
8. Covenant Not to Disclose: In consideration for mutual covenants and
agreements herein, the Executive agrees that he shall not, except as
permitted by the Company in writing, in any manner, at any time, directly
or indirectly, disclose or appropriate to his own use or the use
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of others any Company, Zapata Protein or affiliate trade secrets, supplier
or customer lists or any other "confidential information." Confidential
information means any and all information concerning the Company, Zapata
Protein or an affiliate thereof not known to the general public or in the
industry in which the Executive is engaged that is disclosed to the
Executive or known or acquired by the Executive as a consequence of his
prior full-time employment or the Term of this Agreement with the Company,
Zapata Protein or any affiliate thereof, or that was acquired during his
prior full-time employment or the Term of this Agreement with the Company,
Zapata Protein or an affiliate thereof. The Executive confirms that any
such trade secrets, supplier or customer lists, and any other confidential
information are the exclusive property of the Company. The Executive
acknowledges that the Company, Zapata Protein or an affiliate would be
irreparably injured by a violation of the provisions of this Paragraph and
the Company, Zapata Protein or an affiliate would have no adequate remedy
at law. Therefore, the Executive acknowledges and agrees that injunctive
relief, specific performance or any other appropriate equitable remedy
(without any bond or other security being required) are appropriate
remedies to enforce compliance with this Paragraph.
9. Restrictive Covenant Not to Compete: In consideration for mutual covenants
and agreements contained herein, the Executive agrees that during the Term
of this Agreement he will engage in no direct competition with the Company
or Zapata Protein in Louisiana without prior consent of the Board of
Directors of the Company. Nothing contained herein shall prevent Executive
from accepting less than full-time employment from other third-party
employers, from engaging in his own business as an employee or otherwise,
or from engaging in other business or investment opportunities provided the
Executive does not violate the foregoing provisions of this Paragraph.
10. Source of Payments: All payments provided in this Agreement shall be paid
in cash from the general funds of the Company, Zapata Protein or its
successor, and no special or separate funds shall be established and not
other segregation of assets shall be made to assure payment. The Executive
shall have no right, title or interest whatever in or to any investments
which the Company, Zapata Protein or its successors may make to aid the
Company, Zapata Protein and its successor in meeting its obligations
hereunder. Nothing contained in this Agreement, and no action taken
pursuant to this provision, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Company, Zapata
Protein and its successor and the Executive or any other person. To the
extent that any person acquires a right to receive payments from the
Company, Zapata Protein and its successor hereunder, such right shall be no
greater than the right of an unsecured creditor of the Company, Zapata
Protein and its successor.
11. Income Tax: The Executive shall have the sole responsibility of the
payment of all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation or ruling. Where the
Company chooses not to withhold taxes, Executive shall pay all such taxes
directly and shall indemnify and hold the Company harmless from any and all
claims,
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demands, costs, penalties, attorneys' fees and liabilities arising
as a result of Company's failure to do so.
12. Effect of Prior Agreements: This Agreement contains the entire
understanding between the parties hereto and supersedes any prior
employment agreement between the Company or any predecessor of the Company
and the Executive, except that this Agreement shall not affect or operate
to reduce or increase any benefit or compensation inuring to the Executive
the amount payable to the Executive under Paragraph 5.B of the Employment
Agreement.
13. Enforceability and Governing Law: Should any portion of this Agreement be
held unenforceable or inoperative for any reason, in whole or in part, it
shall not affect any other portion of this Agreement, but the remainder
shall be effective as though the ineffective portion is not contained
herein. The Executive shall not assign or transfer his rights or duties
under this Agreement without the prior written consent of the Company. No
waiver or any breach or violations of this Agreement by the parties shall
be deemed made unless made in writing. Any such waiver shall not operate
or be construed as a waiver of any subsequent breach or violation of this
Agreement. This Agreement is to be effective in and shall be construed in
accordance with the laws of the State of Texas. This Agreement is binding
upon and shall inure to the benefit of the parties hereto and their
successors and assigns. This Agreement contains the entire understanding
of the parties.
14. General Provisions:
a. Non-Assignability: Neither this Agreement nor any right or interest
hereunder shall be assignable by the Executive, his beneficiaries or
legal representatives without the Company's prior written consent;
provided, however, nothing in this Paragraph 12.A shall preclude (i)
the Executive from designating a beneficiary to receive any benefit
payable hereunder upon his death or (ii) the executors, administrators
or other legal representatives of the Executive or his estate from
assigning any rights hereunder to the person or persons entitled
thereto.
b. No Attachment: Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge,
pledge, hypothecation, execution, attachment, levy or similar process
or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect such action shall be null, void and of no
effect.
c. Binding Effect: This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns, except as
otherwise provided herein.
d. Modification and Waiver:
(i) Amendment of Agreement: This Agreement may not be modified or
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amended except by an instrument in writing signed by the parties
hereto.
(ii) Waiver: No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be an estoppel against the
enforcement of any provision of this Agreement, except by written
instrument of the party charged with such waiver or estoppel. No
such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate
only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or
as to any act other than that specifically waived.
e. Headings: The headings of paragraphs herein are included solely for
convenience and reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
IT WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
officer thereunto duly authorized, and the Executive has signed this Agreement
all as of the day and year first written above.
ZAPATA CORPORATION
By: /s/ Kristian Siem
_____________________________________
Kristian Siem
Chief Executive Officer and President
ZAPATA PROTEIN, INC.
By: /s/ Joseph D. Oliver
_____________________________________
Joseph D. Oliver
Executive Vice President
EXECUTIVE
/s/ R. C. Lassiter
______________________________________
R. C. Lassiter
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EXHIBIT "A"
1. Responsible to the Board of Directors for profitable long-term management
of the business.
2. Developing, and with the Board of Directors approval, implement both annual
and long-range business plans and organizational policies.
3. Responsible for directing operations, accounting and control functions,
marketing, and within guidelines established by the Board of Directors,
managing capital investment and the administration of broad corporation
strategy.
4. Exercising due care and loyalty towards the corporation and its
shareholders while conducting activities in the ordinary course of
business.
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