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EXHIBIT 10.2
ADMINISTRATIVE SERVICES AGREEMENT
This ADMINISTRATIVE SERVICES AGREEMENT ("Agreement") is entered into as
of April__, 1998 by and between ZAPATA CORPORATION, a Delaware corporation
("Zapata"), and OMEGA PROTEIN CORPORATION, a Nevada corporation ("Protein").
R E C I T A L S:
A. Prior to execution of this Agreement, Protein was a wholly-owned
subsidiary of Zapata.
B. Protein has completed on this date the issuance of new shares in an
initial public offering (the "IPO") and Zapata has sold in such IPO a portion of
the shares of Protein that it owned reducing Zapata's ownership of Protein's
outstanding common stock to approximately 66.2% of Protein's outstanding common
stock (or 62.1% of Protein's outstanding common stock if the underwriters
exercise their over-allotment options).
C. During the last three years, Zapata relied on Protein for the
provision of certain administrative services.
D. Zapata and Protein have agreed that, following the IPO, Protein will
continue to provide services to Zapata pursuant to the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. SERVICES. Protein will provide the services described on
Exhibit A to Zapata and may, in its sole discretion, provide such other services
as Zapata may request from time to time (all such services referred to herein as
the "Services"). The Services shall include those rendered to majority-owned
subsidiaries of Zapata (other than Protein), whether now existing or hereafter
becoming subsidiaries. Zapata may, upon reasonable notice to Protein, from time
to time, delete from the Services, prospectively, any category listed on Exhibit
A or thereafter added, or any reasonably determined subcategory thereof.
2. FEES AND EXPENSES.
(a) Zapata will pay Protein fees ("Fees") for the Services
provided by Protein to Zapata hereunder equal to Protein's cost of providing
such Services, as reasonably determined by Protein. Such Fees will include an
allocation of Protein's general and administrative overhead expense relating to
such Services. Protein may, but shall not be
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obligated to, determine such cost using the same methods employed by Protein to
allocate costs to Zapata for such Services prior to the IPO.
(b) Zapata will reimburse Protein for any reasonable and
necessary out-of-pocket expenses incurred in connection with the provision of
the Services, including any taxes or other governmental impositions attributable
to the provision of the Services (other than income or other similar taxes
assessed on the Fees). Protein will not have any obligation to advance funds on
behalf of Zapata.
(c) Protein will invoice Zapata for the Fees and expenses due
hereunder at the intervals determined by Protein from time to time. All invoices
will be due and payable within five (5) calendar days after the date of the
invoice.
3. INFORMATION AND RECORDS.
(a) Zapata will make available to Protein on a timely basis
all information which is reasonably necessary for Protein to provide the
Services.
(b) Protein will maintain records with respect to the Services
which are substantially similar to those maintained with respect to similar
Services provided for its own account, and will provide those records to Zapata
upon termination of this Agreement.
4. LIABILITY.
(a) Protein makes no express or implied warranty with respect
to the Services.
(b) Protein will be liable to Zapata for any Loss (hereinafter
defined) suffered by Zapata during the term of this Agreement as a result of
acts or omissions of Protein or any stockholder, director, officer or employee
of Protein or any attorney, accountant, representative or agent retained by
Protein ("Associates") in connection with the Services provided only if and to
the extent that (i) the acts or omissions constitute gross negligence or willful
misconduct or willful disregard of instructions or directions provided by Zapata
as contemplated in Section 6, (ii) the acts or omissions would be covered by
Protein's insurance coverage under crime, fidelity or fiduciary insurance (if
any). In any event, except to the extent covered by Protein's crime, fidelity or
fiduciary insurance, (i) any claim for damages from Protein in connection with a
Service provided will be limited to the amount of Fees charged with respect to
the Service, and (iii) Protein will not be liable to Zapata for any incidental
or consequential damages, lost profits or opportunities, or exemplary or
punitive damages.
As used herein, "Loss" means any and all claims,
liabilities, obligations, losses, deficiencies and damages or judgments of any
kind or nature whatsoever incurred by the person seeking recovery of such Loss
and arising from, asserted against, or associated with the furnishing or failure
to furnish the Services, regardless of by whom asserted and regardless
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of whether or not any such loss is known or unknown, fixed or contingent or
asserted or unasserted incurred by Protein in connection with the provision of
the Services.
5. INDEMNITY. Except as provided in Section 4(b), Zapata will indemnify
Protein and its Associates and hold Protein and its Associates harmless from any
and all Losses arising from, asserted against or associated with the provision
of Services by Protein to Zapata.
6. AUTHORITY. In providing the Services, Protein may take such actions,
make such decisions and exercise such judgement on behalf of Zapata as Protein
may deem appropriate and necessary unless Zapata gives Protein prior written
notice that it should consult with particular officers or employees of Zapata
prior to taking such actions, making such decisions or exercising such
judgement. In matters as to which Zapata provides instructions or directions as
to matters requiring decision or the exercise of judgment, Protein shall follow
such instructions or directions.
7. FORCE MAJEURE. Protein will not be liable to Zapata for any failure
to comply with this Agreement caused, directly or indirectly, by (a) a fire,
flood, explosion, riot, rebellion, revolution, labor trouble (whether or not due
to the fault of such Party), requirements or acts of any government authority or
agency or subdivision thereof, loss of source of supplies or other inability to
obtain materials or suppliers, or (b) any other cause, whether similar or
dissimilar to the foregoing, beyond the reasonable control of the parties
hereto.
8. TERM. This Agreement, and Protein's obligation to provide Services
hereunder, shall continue until Zapata gives Protein five (5) days advance
written notice or upon written notice from Protein to Zapata if Zapata
materially breaches this Agreement and fails to cure such breach within thirty
(30) days after receiving written notice thereof from Protein. Any outstanding
Fees and expenses as well as Zapata's obligation to indemnify Protein shall
survive the termination of this Agreement indefinitely.
9. NOTICES. All notices, demands, requests, or other communications
which may be or are required to be given, served, or sent by a party pursuant to
this Agreement will be in writing and will be (a) personally delivered, (b)
mailed by first class, registered or certified mail, return receipt requested,
postage prepaid, (c) sent by an internationally recognized express delivery
service or (c) transmitted by facsimile, address as follows:
(i) if to Protein:
Omega Protein Corporation
1717 St. James Place, Suite 550
Houston, Texas 77210
Attention: Joseph L. von Rosenberg III,
Chief Executive Officer and President
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(ii) if to Zapata:
Zapata Corporation
1717 St. James Place, Suite 550
Houston, Texas 77210
Attention: Avram Glazer, Chief Executive Officer
with a copy to:
Mr. Avram Glazer
18 Stoney Clover Lane
Pittsford, New York 14534
Each party may designate by notice in writing a new address or
facsimile number to which any notice may be given, served or sent. Each notice
will be deemed sufficiently given, served, sent or received when it is delivered
to the addressee, with an affidavit of personal delivery, the return receipt,
the delivery receipt or when delivery is refused by the addressee. Each notice
or other communication sent by facsimile will be deemed sufficiently given only
if a copy of the notice or communication is immediately sent by one of the
methods specified in (a), (b) or (c) above.
10. MISCELLANEOUS.
(a) This Agreement sets forth the entire agreement of the
parties with respect to the Services and supersedes all previous agreements,
understandings or negotiations with respect to the Services.
(b) The rights and obligations set forth in this Agreement may
be amended, modified or supplemented only by a writing signed by each party.
(c) A party may waive a right under this Agreement only by a
written waiver signed by the party. No failure to exercise or delay in
exercising a right under this Agreement will constitute a waiver of that right.
(d) If any provision of this Agreement is found invalid,
illegal or unenforceable, the provision will be ineffective only to the extent
of the invalidity, illegality or unenforceability, and the other provisions of
this Agreement will remain in full force and effect.
(e) A party may not assign its rights, and a Party may not
delegate its obligations, under this Agreement unless it first obtains the
written consent of the other party, which may be withheld at the other party's
discretion, provided, however, that Protein may assign its rights to any
wholly-owned subsidiary of Protein without Zapata's consent, provided that no
such assignment to a subsidiary shall relieve Protein of its obligations
hereunder.
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(f) Except as permitted under Subsection (e), this Agreement
will not inure to the benefit of any Person other than the Parties.
(g) This Agreement will be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware.
(h) This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf as of the date first above written.
ZAPATA CORPORATION
By: __________________________________________
Name: Avram Glazer
Title: Chief Executive Officer
OMEGA PROTEIN CORPORATION
By: __________________________________________
Name: Joseph L. von Rosenberg III
Title: Chief Executive Officer and President
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EXHIBIT A
DESCRIPTION OF SERVICES
A. Accounting:
1. Maintain a general ledger.
2. Furnish general bank account checks and reconcile general bank
account.
3. Process vendor invoices and employee expense reports approved
by Zapata for payment.
4. Input accounts receivable in accordance with instructions from
Zapata personnel; post cash receipts; provide A/R aging as
requested (not more often than once per week).
5. Maintain fixed asset records (acquisition-disposal-
depreciation schedules).
6. Provide project profit and cost accounting statements.
7. Provide quarterly financial information for use by Zapata
personnel in preparing quarterly financial statements; bonus
calculations; trial balance; and financial statements.
B. Securities and Investor Relations Matters
1. Prepare documents required to be filed by Zapata under the
Securities Exchange Act of 1934 and the New York Stock
Exchange.
2. Public relations, including coordinating analyst calls and
preparing and distributing press releases.
C. Payroll:
1. Maintain employee data base and input payroll information.
2. Distribute payroll checks.
D. Tax:
1. Prepare and file all state and federal income and sale/use tax
returns with a due date during the term of this Agreement.
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E. Benefits:
1. Administer Profit Sharing Plan and Pension Plan.
2. Administer health and medical benefits plans
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