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EXHIBIT 10(V)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of the
1st day of October, 1994, by and between ZAPATA CORPORATION (the "Company") and
LAMAR C. McINTYRE (the "Executive").
WITNESSETH:
WHEREAS, the Company wishes to secure the Services (as defined in Paragraph 4)
of the Executive subject to the terms and conditions hereinafter set forth; and
WHEREAS, the Executive is willing to enter into this Agreement upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements set forth
herein, the parties agree as follows:
1. Employment. During the Executive's Term of Employment (as defined in
Paragraph 2) the Company shall employ the Executive, and the Executive shall
serve, as Vice President, Treasurer and Chief Financial Officer of the Company
and in such other capacities as shall be prescribed by the Board of Directors of
the Company.
2. Term of Employment. The Executive's Term of Employment shall commence on
October 1, 1994 and shall extend until December 17, 1998, unless the Executive
voluntarily elects to terminate his employment hereunder.
3. Compensation and Benefits.
a. The Company shall pay or cause to
be paid to the Executive during his Term of
Employment an annual base salary of One Hundred Thirty Thousand and No/100
Dollars ($130,000.00), payable in equal semi-monthly installments. The
Executive's base salary shall be subject to annual review and may be
increased, depending upon the performance of the Company and the Executive,
upon the recommendation of the Chief Operating Officer of the Company and
approval by the Compensation Committee of the Board of Directors of the
Company. In the event that the Company relocates the Executive, Company will
pay all reasonable relocation expenses incurred by the Executive relating to
a change in the Executive's principal residence in connection with such
relocation, and the Company shall adjust Executive's annual base salary to
reflect any increased costs of living due to relocation.
b. During the Term of Employment, the Executive shall be entitled to participate
and shall be included in any pension, profit-sharing, stock option, deferred
compensation, or similar plan or program of the Company established by the
Company, pursuant to
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the terms and conditions thereof. The Executive also shall be entitled
to participate in any group insurance, hospitalization, medical health
and accident, disability or similar plan or program established by the
Company, pursuant to the terms and conditions thereof.
c. The Executive shall participate in such stock plans as the Company may
have and shall be eligible to participate in other long-term incentive
compensation plans which are extended by the Company during the Term of
Employment to executives of the Company exercising comparable
responsibilities and receiving comparable compensation.
4. Duties and Responsibilities of the Executive. During the Term of Employment,
the Executive shall devote his efforts full time to the business of the
Company and its subsidiaries and perform the duties and responsibilities
assigned to him by the Chief Operating Officer and the Board of Directors to
the best of his ability and with reasonable diligence. In determining the
Executive's duties and responsibilities, the Chief Operating Officer and the
Board of Directors shall act in good faith and shall not assign duties and
responsibilities to the Executive that are not appropriate or customary with
respect to the position of the Executive hereunder. Such duties and
responsibilities collectively are referred to as "Services."
5. Termination of Employment.
a. Termination by the Company.
i. Without Cause. If, for any reason other than a "Non-Salary Event" (as
defined herein), (a) the Executive's employment hereunder is
terminated by the Company, (b) the Executive's annual base salary is
reduced below his base salary as of October 1, 1994, or (c) the
Executive's title and responsibilities are diminished during the Term
of Employment and before October 1, 1995, the Executive shall be
entitled to receive, and the Company shall be obligated to pay, his
base salary in effect at the time of the termination until October 1,
1995; thereafter, Executive shall be entitled to receive, and the
Company shall be obligated to pay, his base salary in effect on
September 30, 1994, for the remaining Term of Employment, as if there
had been no termination.
If, for any reason other than a Non-Salary Event (a) the Executive's
employment hereunder is terminated by the Company, (b) the Executive's
annual base salary is reduced below his base salary as of October 1,
1994, or (c) the Executive's title and responsibilities are diminished
during the Term of Employment and on or after October 1, 1995, the
Executive shall be entitled to receive, and the Company shall be
obligated to pay, his base salary
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in effect on September 30, 1994, for the remaining Term of
Employment, as if there had been no termination.
All payments due to the Executive under this paragraph 5(a)(i),
shall be made in regular installments in accordance with the
general payroll practices of the Company unless the Board of
Directors, in its sole discretion, elects to pay in lieu thereof
a single lump sum payment. Any such lump sum payment shall equal
the present value as of the date of distribution of the base
salary to which he would be entitled for the remaining of Term of
Employment if there had been no termination, as determined by
using the interest rate assumption of ten percent (10%).
Notwithstanding the foregoing, for purposes of Paragraph 10,
payment in form of a lump sum shall not be deemed to accelerate
the end of the period for which payment is received.
During the remaining Term of Employment after the Executive's
employment is terminated by the Company, the Executive shall
provide such Services to the Company as are mutually agreeable to
the Company and Executive.
If, for any reason other than a Non-salary event, the Executive's
Services hereunder shall be terminated by the Company during the
Term of Employment, then the Company shall make arrangements to
include Executive in Company's benefit plans through December 17,
1998.
As used herein, a "Non-Salary Event" shall mean termination for
"Cause" (as defined in Paragraph 5(a)(iii)), death or "Total and
Permanent Disability" (as defined in Paragraph 6).
ii. For Cause. The Company may terminate the Executive's employment
for "Cause," as defined in Paragraph 5(a)(iii). In such event,
all payments of compensation under this Agreement shall cease
immediately upon termination and the Executive thereafter shall
be entitled to only that compensation described in Paragraph 3
hereof, or through the date Executive is terminated for Cause.
iii. Definition of Cause. The term "Cause" as used herein, means a
termination resulting from:
A. the continuing and material failure by the Executive to
fulfill his obligations under this Agreement or willful
misconduct or gross neglect in the performance of such duties,
in either such instances so as to cause material harm to the
Company, all of such facts to be determined in good faith by
the Board of Directors of the Company;
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B. the Executive's committing fraud, misappropriation or embezzlement
in the performance of his duties as an employee of the Company; or
C. the Executive's commission of any felony for which he is convicted
and which, as determined in good faith by the Board of Directors of
the Company, constitutes a crime involving moral turpitude.
b. Termination by Executive. If the Executive voluntarily resigns or otherwise
terminates his employment with the Company, Executive shall be entitled to
receive only such Compensation as he has earned up to and including the
date of his termination and shall not be entitled to receive any additional
amounts otherwise payable under the terms of this Agreement.
c. Voluntary Termination Subsequent to Change of Control. If a "Change of
Control" (as hereinafter defined) of the Company shall occur at any time on
or after October 1, 1994, and the Executive shall elect to terminate his
employment hereunder for "Good Reason" (as hereinafter defined) within the
two-year period commencing on the date of the Change of Control, then the
Executive shall be entitled to receive, and the Company shall be obligated
to pay, the salary then being paid to him for the remaining Term of
Employment as if there had been no termination and no automatic extension
of the Term of Employment occurring after termination. An election by the
Executive to terminate his employment under this Paragraph 5.c shall not be
a breach of this Agreement. If a Change of Control occurs and the Executive
does not terminate his employment for Good Reason within the two-year
period commencing on the date of the Change of Control, then the provisions
of Paragraph 5.a shall be applicable.
i. A "Change of Control" shall be deemed to have occurred if any "Person,"
including a "group" as determined in accordance with Section 13(d)(3)
of the Securities Exchange Act of 1934, becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 30%
or more of the combined voting power of the then outstanding securities
of the Company.
ii. A termination of employment is for "Good Reason" if it in any way
follows or results from:
A. the assignment to the Executive of any duties materially
inconsistent with the Executives' duties immediately prior to the
Change of Control or a substantial change in the Executive's
reporting responsibilities as in effect immediately prior to the
Change of Control, without the Executive's express written consent;
or any removal of the Executive from or any failure to re-elect the
Executive
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to the positions described in paragraph 1 hereof, except in
connection with promotions to higher office;
B. a reduction in the Executive's base salary from that in effect
immediately prior to the Change of Control;
C. the failure of the Company substantially to maintain and to
continue the Executive's relative level of participation in the
same or substantially comparable benefit plans as provided
immediately prior to the Change of Control;
D. The Company's requiring the Executive to be based anywhere
other than in or within 35 miles of the Executive's principal
place of employment at the time of the Change in Control, except
for required travel on the Company's business to an extent
substantially consistent with the Executive's prior business
travel obligations or, in the event the Executive consents to
relocation, the failure of the Company to pay (or reimburse the
Executive for) all reasonable moving expenses incurred by the
Executive relating to a change in the Executive's principal
residence in connection with such relocation, and to indemnify
the Executive against any loss realized in the sale of the
Executive's principal residence in connection with any such
change of residence;
E. the failure of the Company to provide the Executive with a
reasonable number of paid vacation days at least equal to the
number of paid vacation days to which the Executive was entitled
immediately prior to the Change of Control; or
F. the failure of the Company to obtain the assumption of this
Agreement by any successor as contemplated by Paragraph 12 below.
d. Death or Disability. If the Executive dies during his Term of Employment,
his base salary shall cease as of the end of the month in which his death
occurs. If the Executive incurs a Total and Permanent Disability during
this Term of Employment, his base salary shall cease as of the end of the
month in which such event occurs; provided, however, that nothing in this
Agreement shall preclude the Executive from participating in any long-term
disability plan maintained by the Company for which he otherwise is
eligible.
e. Notice of Termination. Any termination by the Company or the Executive
shall be communicated by written notice of termination to the other party
hereto except for automatic termination as a result of events described in
5(a)(i), (b) and (c).
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f. Section 280G Limitations. Notwithstanding any provisions of this Agreement
to the contrary, if, in the opinion of the Board of Directors of the
Company, payments under this Agreement are to be made under conditions
which may give rise to a liability under (S) 4999 or (S) 280G of the
Internal Revenue Code, as amended, the aggregate present value of all
parachute payments payable to or for the benefit of Executive, whether
payable pursuant to this Agreement or otherwise, shall be limited to three
(3) times the Executive's base amount, less one dollar ($1) in order that
the limitations of (S) 280G not be exceeded. For purpose of this Paragraph
5(e), the terms "parachute payment", "base amount" and "present value"
shall have the meanings assigned thereto under (S) 280G of the Code. It is
the intention of this Paragraph to avoid excise taxes on the Executive
under (S) 4999 of the Code or the disallowance of a deduction to the
Company pursuant to (S) 280G of the Code.
6. Disability. For purposes hereof, "Total and Permanent Disability" means
inability to perform the Services required hereunder due to physical or
mental disability which continues for one hundred eighty (180) consecutive
days or more, or for an aggregate of one hundred eighty (180) days in any
period of twelve (12) months. Evidence of such disability shall be certified
by a physician acceptable to both the Company and the Executive.
7. Reimbursement of Expenses. During the Executive's Term of Employment with the
Company, the Company shall pay or reimburse the Executive for all reasonable
travel, entertainment or other reasonable expenses paid or incurred by the
Executive in performing his obligations hereunder.
8. Assistance with Litigation. While employed with the Company, while receiving
any compensation under this Agreement, and for a period of one (1) year after
the last date for which the Executive shall receive any compensation under
this Agreement (or the last date for which compensation would have been paid
absent the payment of a lump sum), the Executive shall furnish such
information and proper assistance as may be reasonably necessary in
connection with any litigation in which the Company is, has been or may
become involved. The Company agrees to reimburse Executive for all expenses
reasonably incurred in furnishing such assistance. If a breach of the
provisions of this Paragraph occurs after the Executive has been terminated
for any reason, the Company shall be entitled to cease payment under the
terms of this Agreement and pursue any legal remedy available to it.
9. Source of Payment. All payments provided in this Agreement shall, unless the
plan or program pursuant to which they are made provides otherwise or unless
the Company establishes a non-qualified trust, be paid in cash from the
general funds of the Company. The Executive shall have no right, title or
interest whatsoever in or to any investment which the Company may make to aid
the Company 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
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and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company hereunder, such right
shall be no greater than the right of an unsecured creditor of the Company.
10. Income Tax Withholding. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes that shall be
required pursuant to any law or governmental regulation or ruling.
11. Effect of Prior Agreement. This Agreement contains the entire understanding
between the parties hereto and supersedes any prior employment agreement
between the Executive and the Company, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the
Employee of a kind elsewhere provided and not expressly provided in this
Agreement. Executive agrees to release, protect, defend, indemnify and hold
harmless Company, its officers, directors, insurers, employees and
representatives, from and against any and all claims, demands and causes of
action, including reasonable attorneys' fees, arising in connection with any
previous employment contract between the Executive and the Company in favor
of Executive or his estate representatives, independent administrators or
survivors.
12. Consolidation, Merger or Sale of Assets. Nothing in this Agreement shall
preclude the Company from consolidating or merging into or with, or from
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertakings of the
Company hereunder; provided, that no such action shall diminish the
Executive's rights hereunder. Upon such consolidation, merger, or transfer
of assets, or any assumption of the Company, the term the "Company" as used
herein, shall mean such other corporation.
13. General Provisions.
a. Assignability; Attachment and Effect. Neither this Agreement nor any
right or interest hereunder shall be assignable by the Executive, his
beneficiaries or legal representatives without prior written consent of
the Company; provided, however, that this shall not preclude (i) the
Executive from designating a beneficiary to receive any benefit payable
hereunder or upon his death, or (ii) the executors, administrators or
legal representatives of the Executive or his estate from assigning any
rights hereunder to the person or persons entitled thereto. Except as
required by law, no right to receive payments under this Agreement shall
be subject to anticipation, commutation, alienation, 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. This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns.
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b. Waiver, Severability and Amendment. This Agreement may not be modified or
amended except by an instrument in writing signed by the parties hereto. 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. If, for any reason, any provision
of this Agreement is held invalid, such invalidity shall not affect any
other provision of this Agreement not so held invalid, and each such other
provision shall to the full extent consistent with law continue in full
force and effect. If any provision of this Agreement shall be held invalid
in part, such invalidity shall in no way affect the rest of such provision,
together with all provisions of this Agreement, shall to the full extent
consistent with law continue in full force and effect. If this Agreement or
any portion thereof conflicts with any law or regulation governing the
activities of the Company, the Agreement or appropriate portion thereof, as
the case may be, shall be deemed invalid and of no force or effect.
c. Headings; Governing Law. 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 hereof. This Agreement has been
executed and delivered in the State of Texas; its validity, interpretation,
performance and enforcement shall be governed by the laws of such State.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed and the
Executive has signed this Agreement, all effective October 1, 1994.
ZAPATA CORPORATION
By: /s/ Joseph L. von Rosenberg III
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Joseph L. von Rosenberg III
Vice President, General Counsel
and Secretary
/s/ Lamar C. McIntyre
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Lamar C. McIntyre
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