<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 14)
ZAPATA CORPORATION
------------------
(Name of Issuer)
Common Stock, par value $0.25 per share
---------------------------------------
(Title of Class of Securities)
989070R17
---------
(CUSIP Number)
Gordon E. Forth, Esq.
WOODS, OVIATT, GILMAN, STURMAN & CLARKE
44 Exchange Street
Rochester, New York 14614
(716) 454-5370
------------------------------
(Name, Address and Telephone Number
of Person Authorized to Receive Notices
and Communications)
October 12, 1994
----------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box / /
Check the following box if a fee is being paid with the statement / /
PAGE 1 OF 35 PAGES
<PAGE> 2
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 989070R17 Page 2 of 35 Pages
<S> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
THE MALCOLM GLAZER TRUST
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Florida
7 SOLE VOTING POWER
NUMBER OF
SHARES 10,395,384
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING PERSON - 0 -
WITH
9 SOLE DISPOSITIVE POWER
10,395,384
10 SHARED DISPOSITIVE POWER
- 0 -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,395,384
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.7%
14 TYPE OF REPORTING PERSON
OO
</TABLE>
PAGE 2 OF 35 PAGES
<PAGE> 3
SCHEDULE 13D
<TABLE>
<CAPTION>
CUSIP NO. 989070R17 Page 3 of 35 Pages
<S> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
MALCOLM I. GLAZER
S.S. NO. 102-12-3166
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER OF
SHARES 10,395,384
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING PERSON - 0 -
WITH
9 SOLE DISPOSITIVE POWER
10,395,384
10 SHARED DISPOSITIVE POWER
- 0 -
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
10,395,384
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
/ /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
32.7%
14 TYPE OF REPORTING PERSON
IN
</TABLE>
PAGE 3 OF 35 PAGES
<PAGE> 4
This Amendment No. 14 ("Amendment No. 14") amends and supplements the
Schedule 13D and statement attached thereto, as previously amended ("Schedule
13D"), originally filed on behalf of Malcolm I. Glazer on July 22, 1992, and is
hereby filed on behalf of Mr. Glazer and on behalf of the Malcolm Glazer Trust
("Trust"). Mr. Glazer is referred to herein as "Glazer" and Zapata Corporation
is referred to herein as "Zapata". All other capitalized terms used in this
Amendment No. 14 and not otherwise defined herein have the meanings previously
ascribed to such terms in the Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND.
-----------------------
Item 2 is hereby amended by deleting it and inserting in place thereof
the following:
(a) The names of the reporting persons are the Malcolm Glazer
Trust ("Trust") and Malcolm I. Glazer. Mr. Glazer is the sole trustee and,
during his lifetime, the sole beneficiary of the Trust.
(b) The business address of the Trust and Mr. Glazer is 1482 South
Ocean Boulevard, Palm Beach, Florida 33480.
(c) The Trust is a revocable living trust. The present principle
occupation of Mr. Glazer is that of self-employed, private investor.
(d) During the last five years, neither the Trust nor Mr. Glazer
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors).
(e) During the last five years, neither the Trust nor Mr. Glazer
has been a party to a civil proceeding of a judicial or administrative body of
competent jurisdiction and, as a result of such proceeding, was or is subject
to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
(f) The Trust is formed under the laws of the State of Florida.
Mr. Glazer is a citizen of the United States of America.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
Item 4 is hereby amended by inserting immediately prior to the last
paragraph thereof the following paragraph:
On August 11, 1994, Malcolm Glazer was elected to the position of
Chief Executive Officer and President of Zapata by Zapata's Board of Directors.
PAGE 4 OF 35 PAGES
<PAGE> 5
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
------------------------------------
Paragraph 5(a) is hereby amended by inserting the following paragraph
after the end thereof:
On December 7, 1993, Glazer contributed to the Trust all of his Shares
of Zapata Stock, which represent approximately 32.7% of the outstanding Common
Stock. Mr. Glazer, as trustee and beneficiary of the Trust, is a beneficial
owner with respect to the Shares held by the Trust.
On May 2, 1994, a one-for-five reverse stock split of the outstanding
Common Stock became effective. The reverse stock split reduced the number of
outstanding Shares of common stock to approximately 31,700,000 and the number
of Shares held by the Trust to 10,395,384 Shares. The Trust's 10,395,384
Shares constitute approximately 32.8% of Zapata's outstanding Common Stock,
based on the 31,700,000 Shares of Common Stock reported as outstanding as of
August 11, 1994 by Zapata in its Form 10-Q for the quarterly period ended June
30, 1994.
Paragraph 5(b) is hereby amended by inserting the following paragraph
after the end thereof:
Mr. Glazer, as sole trustee of the Trust, has the sole power to vote
and to direct the vote and the sole power to dispose and to direct the
disposition of the 10,395,384 shares held by the Trust.
Paragraph 5(d) is hereby amended by inserting the following paragraph
after the end thereof:
Under the Escrow Deposit Agreement discussed in Item 6 below, the
Trust retains the right to receive all dividends made of record or with respect
to the Shares held by the Trust.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO THE SECURITIES OF THE ISSUER.
---------------------------------------------
The Trust entered into a Securities Purchase Agreement dated as of
October 12, 1994 for the purchase of 1,100,299 shares of the common stock of
Envirodyne Industries, Inc. ("Envirodyne") from Edwin H. Morgens and Bruce
Waterfall as agents for Restart Partners, L.P., Restart Partners II, L.P.,
Restart Partners III, L.P., Restart Partners IV, L.P., the Common Fund for
Non-Profit Organizations, Morgens Waterfall Income Partners and Morgens,
Waterfall, Vintiadis & Company Employees Profit Sharing Plan (collectively,
"Morgens & Waterfall"). The closing under the Securities Purchase Agreement is
subject to, among other things, the expiration or earlier termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1970. Until the closing, such shares are being held in escrow
PAGE 5 OF 35 PAGES
<PAGE> 6
pursuant to an Escrow Deposit Agreement dated as of October 12, 1994 among the
Trust, Morgens & Waterfall and Wertheim Schroder & Co. Incorporated, as escrow
agent.
Pursuant to the Securities Purchase Agreement relating to the
Envirodyne Shares, the Trust has deposited 2,500,000 Shares of Zapata Stock
with the escrow agent to secure its obligation to pay the purchase price upon
the satisfaction of all conditions precedent to its closing obligation
thereunder. The Escrow Deposit Agreement provides that the escrow agent may
sell the escrowed Zapata Shares and apply the net proceeds to satisfy the
purchase price for the Envirodyne Shares if the Trust fails to pay Morgens &
Waterfall the purchase price within the prescribed time period. The Securities
Purchase Agreement and Escrow Deposit Agreement are attached hereto as Exhibit
14 and Exhibit 15, respectively, and are hereby incorporated herein by
reference.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
---------------------------------
Exhibit 14 - Securities Purchase Agreement dated as of October 12,
1994 among the Trust and Edwin H. Morgens and Bruce
Waterfall as agents for Restart Partners L.P.,
Restart Partners II, L.P., Restart Partners III,
L.P., Restart Partners IV, L.P., the Common Fund for
Non-Profit Organizations, Morgens Waterfall Income
Partners and Morgens, Waterfall, Vintiadis & Company
Employees Profit Sharing Plan
Exhibit 15 - Escrow Deposit Agreement dated as of October 12, 1994
among the Trust, Wertheim Schroder & Co.
Incorporated, Edwin H. Morgens and Bruce Waterfall as
agents for Restart Partners L.P., Restart Partners
II, L.P., Restart Partners III, L.P., Restart
Partners IV, L.P., the Common Fund for Non-Profit
Organizations, Morgens Waterfall Income Partners and
Morgens, Waterfall, Vintiadis & Company Employees
Profit Sharing Plan
PAGE 6 OF 35 PAGES
<PAGE> 7
SIGNATURE PAGE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: October 25, 1994
THE MALCOLM GLAZER TRUST
By: S//MALCOLM I. GLAZER, AS TRUSTEE
-----------------------------------
Malcolm I. Glazer, as Trustee
By: Avram Glazer, Power of Attorney
S//MALCOLM I. GLAZER
-----------------------------------
Malcolm I. Glazer
By: Avram Glazer, Power of Attorney
PAGE 7 OF 35 PAGES
<PAGE> 8
EXHIBIT INDEX
Exhibit 14 - Securities Purchase Agreement dated as of October 12,
1994 among the Trust and Edwin H. Morgens and Bruce
Waterfall as agents for Restart Partners L.P.,
Restart Partners II, L.P., Restart Partners III,
L.P., Restart Partners IV, L.P., the Common Fund for
Non-Profit Organizations, Morgens Waterfall Income
Partners and Morgens, Waterfall, Vintiadis & Company
Employees Profit Sharing Plan
Exhibit 15 - Escrow Deposit Agreement dated as of October 12, 1994
among the Trust, Wertheim Schroder & Co.
Incorporated, Edwin H. Morgens and Bruce Waterfall as
agents for Restart Partners L.P., Restart Partners
II, L.P., Restart Partners III, L.P., Restart
Partners IV, L.P., the Common Fund for Non-Profit
Organizations, Morgens Waterfall Income Partners and
Morgens, Waterfall, Vintiadis & Company Employees
Profit Sharing Plan
<PAGE> 1
EXHIBIT 14
----------
SECURITIES PURCHASE AGREEMENT
-----------------------------
SECURITIES PURCHASE AGREEMENT, dated October 12, 1994 (this
"Agreement"), by and between the entities listed on Schedule I attached hereto
(collectively, the "Sellers"), and THE MALCOLM GLAZER TRUST established U/A
dated as of March 23, 1990 (the "Purchaser").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Sellers are the owners of 1,100,299 shares ("Envirodyne
Shares") of the issued and outstanding common stock, par value $.01 per share,
of Envirodyne Industries, Inc., a Delaware corporation ("Company"); and
WHEREAS, the Sellers desire to sell, assign, and transfer to the
Purchaser, and the Purchaser desires to purchase from the Sellers, the
Envirodyne Shares and all rights and interests related thereto and/or arising
therefrom, all upon the terms and conditions set forth herein.
P R O V I S I O N S :
- - - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the Sellers and the Purchaser agree as follows:
SECTION 1. Definitions. The following capitalized terms shall have
the following meanings:
(a) "Distributions" shall mean all dividends or other
distributions (whether in cash, property, securities, rights or otherwise) of
record or paid with respect to the Envirodyne Shares
after the date hereof and
prior to the Closing (as hereinafter defined in Section 3(b)).
(b) "Escrow Account" shall mean the escrow and depository account
established by the Sellers, the Purchaser and the Escrow Agent pursuant to the
Escrow Agreement.
(c) "Escrow Agent" shall mean Wertheim Schroder & Co.
Incorporated, a Delaware corporation.
(d) "Escrow Agreement" shall mean the Escrow Agreement, of even
date herewith, by and among the Sellers, the Purchaser and the Escrow Agent,
substantially in the form of Exhibit A annexed hereto.
PAGE 8 OF 35 PAGES
<PAGE> 2
(e) "HSR Act" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976.
SECTION 2. Purchase and Sale of Envirodyne Shares. Subject to the
terms and conditions herein, the Sellers hereby agree to sell, assign and
transfer to the Purchaser, and the Purchaser hereby agrees to purchase, acquire
and accept from the Sellers the Envirodyne Shares, free from all security
interests, liens, charges or encumbrances of any kind (collectively, "Liens").
The Sellers shall immediately deliver to the Escrow Agent upon receipt thereof
all Distributions together with such instruments with appropriate endorsements
as may be necessary, if any, to transfer title to the Distributions to
Purchaser. Upon the Closing of the transactions contemplated hereunder, the
Purchaser shall be entitled to receive and shall receive all Distributions free
from all Liens. The sale, assignment and transfer of the Envirodyne Shares
pursuant to this Agreement is made without recourse, representation or warranty
of any kind by the Sellers or Purchaser, express or implied, except as
expressly set forth in this Agreement.
SECTION 3. Purchase Price; Closing Date.
----------------------------
(a) The purchase price (the "Purchase Price") to be paid by the
Purchaser to the Sellers for the Envirodyne Shares shall be $5.1875 per share
or Five Million Seven Hundred Seven Thousand Eight Hundred One and 06/100
Dollars ($5,707,801.06) in the aggregate together with an amount equal to 8%
per annum on such aggregate amount from the date hereof to the Closing Date
(hereinafter defined in Section 3(b)). In the event that between the date
hereof and the Closing Date a stock split, stock dividend, reclassification or
other similar event or transaction occurs which affects the number of
outstanding shares of the Company's common stock, then the number of Envirodyne
Shares and the per share Purchase Price shall be proportionately adjusted
without in any way increasing the total Purchase Price set forth above.
(b) Unless this Agreement is earlier terminated in accordance with
the terms hereof, the closing of the transactions contemplated by this
Agreement (the "Closing") shall occur at the offices of Dechert Price & Rhoads,
477 Madison Avenue, New York, New York 10022 at 10:00 a.m. on the fifth
business day following the first date on which all conditions set forth in
Sections 6 and 7 have been satisfied (or waived as permitted under each such
Section) or such later date as Sellers and Purchaser may agree in writing (the
"Closing Date"). If the Closing Date falls on a legal holiday, the actual
Closing Date shall be the next business day. The Purchaser and the Sellers
shall execute and deliver to the Escrow Agent the written certificate referred
to in Section 2(a) of the Escrow Agreement upon all conditions precedent herein
being satisfied.
PAGE 9 OF 35 PAGES
<PAGE> 3
(c) Seller shall pay all transfer taxes, stamp taxes, or other
taxes, if any, arising out of the purchase and sale of the Envirodyne Shares
and payment of the Purchase Price therefor. Each party agrees to execute and
deliver such further documents and instruments as may be necessary from time to
time after the Closing to effectuate the transactions contemplated hereunder.
SECTION 4. Payment of Purchase Price.
-------------------------
(a) Subject to Sections 4(b), 6 and 11, on the Closing Date, in
payment for delivery of the Envirodyne Shares, Purchaser shall deliver to the
Sellers the Purchase Price by wire transfer of immediately available funds to a
single bank account previously designated to the Purchaser by Sellers for the
benefit of all Sellers. Purchaser shall have no responsibility to ensure that
the proper amount of the aggregate Purchase Price is received by each specific
Seller for its Envirodyne Shares.
(b) (i) If Purchaser shall fail to perform its obligation under
Section 4(a) by or before 5:00 p.m. (est) on the Closing Date
for any reason other than a material breach by Sellers of this
Agreement, then, subject to Section 4(b)(ii), Sellers may
deliver to the Escrow Agent the certificate referred to in
Paragraph 2(b) of the Escrow Agreement and either (A) request
the Escrow Agent to return the Envirodyne Shares and
Distributions to them and the Zapata Shares (hereinafter
defined in Section 5 (c)) and the fee to be paid Libra
Investments, Inc. ("Libra") to the Purchaser and terminate
this Agreement by giving notice to the Purchaser and the
Escrow Agent thereof, or (B) request the Escrow Agent to sell
in one or more unsolicited agency transactions on the New
York Stock Exchange or in private transactions a sufficient
number of the Zapata Shares prior to the close of trading on
the 30th day after the Escrow Agent receives such certificate
(subject to restrictions on offers and sales during
"black-out" periods referred to in the SLA (hereinafter
defined in Section 9(k)), which, if such period exists during
any such 30 day period, will result in extending the 30 day
period on a day-for-day basis) so that the net proceeds
thereof will equal the unpaid Purchase Price (including
interest to the settlement date of such sales).
Notwithstanding the foregoing, the Purchaser may pay the
Purchase Price or any portion thereof at any time after the
Closing by the method provided for in Section 4(a) above.
(ii) Prior to making any request of the Escrow Agent as
set forth in Section 4(b)(i)(B) above, Sellers shall give
Purchaser five days advance, written notice of their election
to deliver such a certificate and
PAGE 10 OF 35 PAGES
<PAGE> 4
exercise such rights. If Purchaser pays the Purchase
Price by wire transfer of immediately available funds to a bank
account previously designated by Sellers on or prior to the
fifth business day after receipt of such notice by Purchaser,
then Sellers shall not be entitled to exercise any rights under
Section 4(b)(i)(B).
(iii) Purchaser agrees that (A) the Escrow Agent is
authorized to conduct a sale of Zapata Shares as contemplated
under Section 4(b)(i)(B) to satisfy Purchaser's obligation to
Sellers, (B) such sales will be for the account of Purchaser
and are not being made by Sellers who will have no
responsibility with respect thereto, (C) Purchaser will remain
liable to Sellers in the event that the proceeds from such
sales are insufficient to pay the Purchase Price (including
interest) in full, (D) if for any reason Purchaser has failed
and/or is unable to take any and all actions required of it
under the SLA to enable the Escrow Agent to sell such Zapata
Shares and no Zapata Shares have been sold, it will promptly
notify Sellers and Sellers may elect to exercise their rights
under Section 4(b)(i) or may require Purchaser to do so
forthwith, and (E) until the earlier to occur of the payment
in full of the Purchase Price in immediately available funds
or the termination of this Agreement, the Escrow Agent will
continue to hold in escrow the certificate or certificates
representing the Envirodyne Shares and the Zapata Shares (less
certificates representing Zapata Shares sold in accordance
with Section 4(b)(i)(B) hereof).
SECTION 5. Escrow. Simultaneously with the execution and delivery
hereof, the following actions shall be taken by the indicated parties:
(a) The Purchaser, the Sellers and the Escrow Agent shall execute
an Escrow Deposit Agreement.
(b) The Sellers shall cause the Envirodyne Shares, which are held
in uncertificated form and identified on the books of Cede & Co. as being
registered to the Sellers, to be registered in the name of the Escrow Agent and
will provide such instructions to Cede & Co. as may be required to effectively
transfer the Envirodyne Shares to the Purchaser without any further action by
the Sellers.
(c) The Purchaser shall deliver to the Escrow Agent, for deposit
into the Escrow Account, the stock certificate or certificates representing
2,500,000 shares of the common stock, par value $0.25 per share, of Zapata
Corporation ("Zapata"), a
PAGE 11 OF 35 PAGES
<PAGE> 5
Delaware corporation, ("Zapata Shares") together with an undated stock power
executed by the Purchaser covering such securities.
SECTION 6. Conditions to Closing Obligation of Purchaser. The
Purchaser's obligation to close the transactions contemplated hereby shall be
subject to the fulfillment at or prior to the Closing of the following
conditions, unless Purchaser shall have waived in writing any such condition:
(a) The representations and warranties of the Sellers made herein
shall be true and correct in all material respects on the date hereof and on
the Closing Date to the same effect and extent as if such representations and
warranties were made on the Closing Date.
(b) The Sellers shall have performed all terms and conditions of
this Agreement required by them to be performed on or prior to the Closing
Date, including the delivery of all documents required to be delivered and all
materials required to be filed hereunder, on or prior to the Closing Date.
(c) There shall not be in effect a preliminary or permanent
injunction or other order by any federal or state court or a ruling by a
governmental agency which prohibits the consummation of the transactions
hereunder.
(d) The so-called "waiting period" under the HSR Act shall have
terminated (i) on or before forty-five (45) days after the date hereof, or (ii)
as a result of early termination.
SECTION 7. Conditions to Closing Obligation of Sellers. The Sellers'
obligations to close the transactions contemplated hereby shall be subject to
the fulfillment at or prior to the Closing of the following conditions, unless
the Sellers shall have waived any such condition in writing:
(a) The representations and warranties of the Purchaser made
herein shall be true and correct in all material respects on the date hereof
and on the Closing Date to the same effect and extent as if such
representations and warranties were made on the Closing Date.
(b) The Purchaser shall have performed all terms and conditions of
this Agreement required by it to be performed by him on or prior to the Closing
Date, including the delivery of all documents required to be delivered and all
materials required to be filed hereunder, on or prior to the Closing Date.
(c) There shall not be in effect a preliminary or permanent
injunction or other order by any federal or state court or a ruling by a
governmental agency which prohibits the consummation of the transactions
hereunder.
PAGE 12 OF 35 PAGES
<PAGE> 6
(d) The so-called "waiting period" under the HSR Act shall have
terminated (i) on or before forty-five (45) days after the date hereof, or (ii)
as a result of early termination.
SECTION 8. Sellers' Representations and Warranties. The Sellers
hereby represent, warrant and acknowledge to the Purchaser that:
(a) The Envirodyne Shares were issued to them by the Company
pursuant to a certain First Amended Joint Plan of Reorganization as Twice
Modified ("Plan") confirmed by the United States District Court for the
Northern District of Illinois on December 28, 1993 in exchange for certain
indebtedness ("Indebtedness") held by them and issued by the Company's
predecessor-in- interest.
(b) They have, and until the Closing they shall have, good right,
title and interest in and to the Envirodyne Shares, free and clear of any
liens, encumbrances, set-offs or counterclaims of any kind and the Envirodyne
Shares are held in uncertificated form and identified on the books of Cede &
Co. as being registered to the Sellers and are not subject to any instructions
restricting their transfer.
(c) No relationship existed between the Company (or its
predecessors) and the Sellers or any of their affiliates or associates (as
defined in Securities and Exchange Commission Rule 12b-2) that would be
relevant in determining whether any Seller was an "underwriter" for purposes of
Section 1145(b)(1) of the Bankruptcy Code at the time the Envirodyne Shares
were issued to the Sellers.
(d) At the time they acquired the Indebtedness, they did so
without the view to the resale, distribution or other disposition thereof or
the shares to be received therefor.
(e) Except as provided in this Agreement, they have not made, and
during the term hereof they shall not make, any written or oral agreement or
understanding with respect to the disposition of any of the Envirodyne Shares
being purchased by Purchaser under this Agreement or with respect to any other
rights pertaining to the Envirodyne Shares.
(f) They have not entered into or made any agreements,
arrangements or understandings with any broker, finder or other person, firm or
corporation performing brokerage, finder or similar services for its account.
(g) They are not registered brokers, dealers, banks or other
lenders for purposes of Regulations T, U or G of the Federal Reserve Board and
the transactions contemplated herein are not governed by such regulations.
PAGE 13 OF 35 PAGES
<PAGE> 7
(h) They have the full power and authority, and have taken all
actions necessary, to execute and deliver this Agreement and the Escrow
Agreement and to fulfill their obligations under, and to consummate the
transactions contemplated by, this Agreement and the Escrow Agreement.
(i) The Sellers have duly executed and delivered each of the Agreement
and the Escrow Agreement and such agreements constitute their legal, valid and
binding obligations, enforceable in accordance with their terms.
(j) No approval of any federal, state, local or other governmental
authority, administrative agency or court is necessary to authorize the
execution of this Agreement by the Sellers, or except as required by the HSR
Act, with respect to the consummation of any of the transactions contemplated
hereby.
(k) The sale of the Envirodyne Shares to the Purchaser hereunder
does not require registration under the Securities Act of 1933 (the "Act").
(l) Neither the execution or delivery of, nor the consummation of
the transactions contemplated by this Agreement nor the Escrow Agreement does
or will violate any provision of law or any judicial or governmental decree,
order or judgment or conflict with or result in the breach of, or constitute a
default under, any applicable present or pending law or the certificate of
Incorporation or By-Laws (or any similar governing documents) of any the
Sellers or any agreement or instrument binding on or affecting any of the
Sellers or their respective property, except where any of the foregoing would
not materially impair the ability of any of the Sellers to perform their
obligations under this Agreement and the Escrow Agreement, or result in the
creation or imposition of any mortgage, lien, pledge, charge, security
interest, encumbrance, equity or restriction of any nature whatsoever in favor
of any third party upon the Envirodyne Shares, other than those (if any)
created by or on behalf of the Purchaser.
(m) There is no action, proceeding or investigation pending or
threatened which questions the validity, seeks to enjoin, or will result in
damages against the parties hereto as the result of this Agreement or the
transactions contemplated hereby.
(n) David A. Ericson and Jouko Tamminen each have individually the
full power and authority to take any and all actions on behalf of each of the
Sellers, and to conclusively bind the Sellers to any agreement (including this
Agreement and the Escrow Agreement) and the Purchaser is entitled to rely on
any and all actions taken by David A. Ericson or Jouko Tamminen on behalf of
each Seller without any further confirmation or action on the part of the
Purchaser and until written notice to
PAGE 14 OF 35 PAGES
<PAGE> 8
the contrary is received by the Purchaser from the Sellers.
SECTION 9. Representations of the Purchaser. The Purchaser hereby
represents, warrants and acknowledges to Sellers that:
(a) Based on the Sellers' representation and warranty in Section
8(a) above, it understands that the Envirodyne Shares were issued to the
Sellers pursuant to the Plan.
(b) It is an "accredited investor" (as defined in Rules
501(a)(1), (2), (3) or (7) under the Act) and has such knowledge and experience
in financial and business matters as to be capable of evaluating the merits and
risks of the purchase of the Envirodyne Shares and is able to bear the economic
risk of its investments.
(c) It is a sophisticated purchaser with respect to the Company
and the Envirodyne Shares and has adequate information concerning the business
and financial condition of the Company to make an informed decision regarding
the purchase of the Envirodyne Shares. The Purchaser has independently, based
on such information as Purchaser has deemed appropriate in its independent
judgment, made its own analysis and decision to enter into this Agreement.
(d) It understands that the Envirodyne Shares are being sold to it
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Act and is purchasing the Envirodyne Shares
for its own account and, is not purchasing the Envirodyne Shares with a view to
the resale, distribution or other disposition thereof.
(e) It was not offered or sold the Envirodyne Shares by any form
of general solicitation or general advertising.
(f) It has not entered into or made any agreements, arrangements
or understandings with any broker, finder or other person, firm or corporation
performing brokerage, finder or similar services for its account, other than an
agreement to pay a fee to Libra at the rate of $0.1250 per share conveyed by
Sellers to Purchaser pursuant to the terms hereof (for which the Purchaser
shall be solely responsible), subject to adjustment if an event occurs which
requires an adjustment under Section 3(a) hereof to the number of Envirodyne
Shares.
(g) It understands that Sellers have made no representation or
warranty of any kind in connection with, and shall have no responsibility with
respect to, the solvency, financial statements or condition of the Company.
PAGE 15 OF 35 PAGES
<PAGE> 9
(h) It has the full power and authority, and has taken all action
necessary, to execute and deliver this Agreement and the Escrow Agreement and
to fulfill its obligations under, and to consummate the transactions
contemplated by, this Agreement and the Escrow Agreement.
(i) It has duly executed and delivered this Agreement and the Escrow
Agreement and such agreements constitute its legal, valid and binding
obligations, enforceable in accordance with their terms.
(j) It has good right, title and interest in and to the Zapata
Shares, free and clear of any liens, encumbrances, set- offs or counterclaims
of any kind (except for restrictions or offers and sales during the black-out
period referred to in the SLA).
(k) The Zapata Shares are registered under an effective shelf
registration statement filed by Zapata Corporation with the Securities and
Exchange Commission pursuant to a certain Securities Liquidity Agreement dated
as of December 19, 1990 ("SLA") among Zapata and certain Zapata stockholders
(including the Purchaser) and such shares are freely saleable thereunder,
subject to the terms of the SLA.
SECTION 10. HSR Filing.
----------
(a) The Purchaser agrees that it (or its ultimate parent as
determined under the HSR Act) (i) shall within five days after the date hereof
file with the Federal Trade Commission and the Department of Justice the
notification and report form required for the consummation of the transactions
contemplated by this Agreement, (ii) shall substantially comply in a prompt
manner with any request for additional materials or information made by
governmental officials in connection therewith pursuant to the HSR Act, and
(iii) shall use reasonable efforts to obtain early termination of the waiting
period under the HSR Act.
(b) The Purchaser shall promptly notify the Sellers upon the
expiration or earlier termination of the waiting period under the HSR Act.
SECTION 11. Termination.
-----------
(a) Notwithstanding anything herein or elsewhere to the contrary,
this Agreement may be terminated at any time before Closing as follows: (i) by
mutual written consent of the Purchaser and the Sellers; (ii) by written notice
from one party to the other if the HSR waiting period has not expired within
forty-five (45) days after the date hereof; or (iii) by the Sellers in
accordance with Section 4(b)(i)(A) hereof; or (iv) by written notice from one
party to the other if the Closing has not
PAGE 16 OF 35 PAGES
<PAGE> 10
occurred on or before the ninetieth (90th) day after the date hereof.
(b) If this Agreement is terminated pursuant to Section 11(a)(i),
the Purchaser and the Sellers shall execute and deliver to the Escrow Agent the
certificate referred to in Section 2(c) of the Escrow Agreement advising the
Escrow Agent of the termination of this Agreement. If this Agreement is
terminated as provided in Section 11(a)(ii), (iii) or (iv), then the party
terminating the Agreement shall execute and deliver to the Escrow Agent, the
certificate referred to in Section 2(c) of the Escrow Agreement and deliver a
copy thereof to the other party. Upon termination of this Agreement pursuant
to Section 11(a), this Agreement shall forthwith become void and there shall be
no liability or obligation on the part of any party, provided, however, if
Sellers have received the proceeds from the sale of any Zapata Shares prior to
or after such termination, they shall promptly deliver the same to Purchaser.
SECTION 12. Voting Rights of Envirodyne Shares . Prior to the
termination or expiration of the applicable waiting period under the HSR Act,
the Purchaser and the Sellers specifically acknowledge that the Purchaser shall
have no rights as a stockholder in the Company with respect to the Envirodyne
Shares by virtue of this Agreement or otherwise, and that all such rights shall
remain vested in the Sellers. Subject to and effective upon, the termination
or expiration of the applicable waiting period under the HSR Act, the Sellers
hereby appoint the Purchaser with full power of substitution as their true and
lawful proxy to vote the Envirodyne Shares at any meeting, general or special,
of the stockholders of the Company in its sole discretion, and hereby appoint
the Purchaser with full power of substitution as their true and lawful
attorney-in-fact to execute one or more consents or other instruments and to
take any and all actions which the Sellers could execute or take in their
capacity as a stockholder of the Company. The foregoing proxy and power of
attorney is coupled with an interest.
SECTION 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to principles of conflicts of law.
SECTION 14. Counterparts and Facsimile Signatures. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement may be executed by facsimile
signature transmitted to any other party by electronic transmission. The
parties shall be bound by a facsimile signature once transmitted to another
PAGE 17 OF 35 PAGES
<PAGE> 11
party. The later transmission of an originally executed copy of any such
document shall not invalidate any signature previously given by electronic
transmission.
SECTION 15. No Third Party Beneficiaries; Assignability; Successors.
Only the parties hereto shall have any rights under or be entitled to enforce
this Agreement. Neither this Agreement, the Escrow Agreement nor any of the
parties' rights hereunder or thereunder shall be assignable by either party
without the prior written consent of the other party. Any attempted
assignment in contravention of the terms of this Section 15 shall be void and
shall have no effect. All provisions hereof shall inure to the benefit of and
be binding upon the parties hereto and their permitted successors and assigns.
SECTION 16. Entire Agreement. This Agreement and the Escrow
Agreement contain the complete statement of all the agreements between the
parties hereto with respect to the subject matter hereof and thereof, and all
prior agreements between the parties hereto respecting the subject matter
hereof, whether written or oral, are merged herein and shall be of no further
force or effect. There are no other agreements, arrangements or
understandings, oral or written, between the parties hereto relating to the
subject matter hereof except for the Escrow Agreement.
SECTION 17. Notices. Any notice, demand, request, consent, approval,
declaration, delivery or other communication made pursuant to the provisions of
this Agreement shall be sufficiently given or made if in writing and either
delivered (a) in person (including a courier, messenger or overnight delivery
service) with receipt acknowledged, or (b) by registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Purchaser:
The Malcolm Glazer Trust
c/o Mr. Malcolm I. Glazer
1482 South Ocean Boulevard
Palm Beach, Florida 33480
With copies to:
Mr. Avram Glazer
18 Stoney Clover Lane
Pittsford, New York 14534
and
PAGE 18 OF 35 PAGES
<PAGE> 12
Woods, Oviatt, Gilman, Sturman
& Clarke
44 Exchange Street
Rochester, New York 14614
Attention: Gordon E. Forth, Esq.
If to Sellers:
c/o Morgens, Waterfall, Vintiadis
& Company, Inc.
10 East 50th Street, 26th Floor
New York, New York 10022
Attention: David A. Ericson
With a copy to:
Dechert Price & Rhoads
477 Madison Avenue
New York, New York 10022
Attention: Fredric J. Klink, Esq.
or at such other address as may be substituted by notice given as herein
provided. Any party may by notice given pursuant to this Section 17 change the
address to which notices or other communications to it are to be delivered or
mailed thereafter.
SECTION 18. Liability of Morgens, Waterfall, et al. Each Seller has
designated Morgens, Waterfall, Vintiadis & Company, Inc. ("MWVCI") as their
agent for the sole purpose of receiving communications from, and sending
communications to, Purchaser in connection with this Agreement and the Escrow
Agreement. The Purchaser may rely on any oral or written communication made by
MWVCI as being a communication from each of the Sellers until written notice to
the contrary is received from a Seller. Neither MWVCI, nor any of its
officers, directors, employees, agents or controlling persons, shall have any
liabilities under or in connection with this Agreement by reason of the
foregoing.
SECTION 19. Choice of Forum. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York
situate in New York County and of the United States District Court for the
Southern District of New York for purposes of any suit, action or other
proceeding arising out of or relating to this Agreement and hereby waives and
agrees not to assert by way of motion, as a defense or otherwise, any claim
that such party is not subject to the jurisdiction of the above named courts,
that the suit, action or proceeding is brought in an inconvenient forum, that
the venue of the suit, action or proceeding is improper or that this Agreement
may not be enforced in or by such courts. Service of process may be made in
the manner provided for the giving of notices in Section 17
PAGE 19 OF 35 PAGES
<PAGE> 13
hereof.
SECTION 20. Amendments. This Agreement may only be modified or
amended with the written consent of Sellers and Purchaser.
SECTION 21. Expenses. Except as provided in the Escrow Agreement,
each party will pay all costs and expenses (including without limitation
attorneys' and accountants' fees and expenses) incurred by them in connection
with negotiations, preparation of, and closing of this Agreement as well as
performance and compliance with all agreements and conditions contained herein.
SECTION 22. Interpretation. Each of the parties to this Agreement
hereby acknowledge that they participated in the drafting of this Agreement and
the Escrow Agreement, and the interpretation of any ambiguity contained herein
or therein will not be affected by the claim that a particular party drafted
any specific provision.
SECTION 23. Survival. The representations, warranties and/or
covenants in Section 3(c), 8, 9 and 11(b) shall survive the Closing.
SECTION 24. Several Liability. The Purchaser acknowledges and agrees
that the liability of the Sellers hereunder is several and not joint.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
SELLERS:
RESTART PARTNERS, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
RESTART PARTNERS II, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
PAGE 20 OF 35 PAGES
<PAGE> 14
RESTART PARTNERS III, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
RESTART PARTNERS IV, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
By: Morgens, Waterfall, Vintiadis &
Company, Inc., as investment
manager
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
MORGENS, WATERFALL INCOME PARTNERS
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
MORGENS, WATERFALL, VINTIADIS
& COMPANY EMPLOYEES PROFIT SHARING
PLAN
By: S//DAVID A. ERICSON
------------------------------------
Name: David A. Ericson
Title: Authorized Agent
PAGE 21 OF 35 PAGES
<PAGE> 15
PURCHASER:
THE MALCOLM GLAZER TRUST
By: S//MALCOLM I. GLAZER
-----------------------------------
Name: Malcolm I. Glazer
Title: Trustee
PAGE 22 OF 35 PAGES
<PAGE> 16
SCHEDULE I
to
Securities Purchase Agreement
-----------------------------
<TABLE>
<CAPTION>
Schedule of Beneficial Owners Number of Shares Owned
- ----------------------------- ----------------------
<S> <C>
Restart Partners, L.P. 254,958
Restart Partners II, L.P. 348,763
Restart Partners III, L.P. 243,394
Restart Partners IV, L.P. 115,316
The Common Fund for Non-Profit
Organizations 87,123
Morgens, Waterfall Income Partners 35,745
Morgens, Waterfall, Vintiadis &
Company Employees Profit Sharing
Plan 15,000
======
TOTAL 1,100,299
</TABLE>
PAGE 23 OF 35 PAGES
<PAGE> 1
Exhibit 15
----------
EXHIBIT A
---------
ESCROW DEPOSIT AGREEMENT
OCTOBER __, 1994
WERTHEIM SCHRODER & CO. INCORPORATED
THE EQUITABLE CENTER
787 SEVENTH AVENUE
NEW YORK, NEW YORK 10019-6016
ATTENTION: MICHAEL DURA, MANAGING DIRECTOR
Re: Envirodyne Industries, Inc. ("Company")
Gentlemen:
Reference is hereby made to a Securities Purchase Agreement dated as
of October __, 1994 (the "Purchase Agreement"), between THE MALCOLM GLAZER
TRUST ("Purchaser") and the entities listed on Schedule I hereto ("Sellers")
pursuant to which Purchaser has agreed to purchase from Sellers 1,100,299
shares ("Purchased Shares") of the Company's common stock, par value $0.01 per
share ("Shares"), subject to, among other things, the expiration or earlier
termination of the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 ("HSR Act"). Terms defined in the Purchase Agreement
not otherwise defined herein have the meanings assigned to them in the Purchase
Agreement. The Purchaser and the Sellers desire to open and maintain an escrow
deposit account (the "Escrow Account") on the terms and conditions contained
herein with WERTHEIM SCHRODER & CO. INCORPORATED ("Escrow Agent" or "you")
until the earlier of the Closing or the termination of the Purchase Agreement.
The Escrow Agent agrees to open an Escrow Account which shall be governed by
the terms and conditions of this letter agreement (the "Agreement").
Accordingly, in consideration of the premises and the mutual
covenants and undertakings contained herein, the parties hereto, intending to
be legally bound hereby, agree as follows:
Section 1. Deposit.
-------
(a) For a period commencing as of the date hereof and terminating on
the Termination Date (hereinafter defined in Section 4), you agree to act as
depository and escrow agent and to receive and disburse certain shares of
stock, stock
PAGE 24 OF 35 PAGES
<PAGE> 2
certificates and undated stock powers executed in blank (collectively, the
"Escrow Documents") deposited with you as described in Section 1(b) below, all
in accordance with the provisions of this Agreement, and certain monies ("Libra
Fee") which may become payable to Libra, Inc. ("Libra") as a fee. Further, you
agree to accept at any time after the date hereof any Distributions made with
respect to the Purchased Shares after the date hereof.
(b) Simultaneously with the execution of this Agreement, the Sellers
have taken the actions described in Schedule II attached hereto to cause the
uncertificated Envirodyne Shares to be transferred to you (such uncertificated
shares may be referred to herein as "Sellers' Escrow Documents"), and the
Purchaser has deposited or caused to be deposited with you the Escrow Documents
identified on attached Schedule III (collectively "Purchaser's Escrow
Documents"). The Escrow Agent hereby acknowledges receipt of all the Escrow
Documents. Prior to Closing under the Purchase Agreement, the Purchaser shall
deposit with the Escrow Agent the Libra Fee in the amount of $137,537.37 which
shall be held by the Escrow Agent in an interest bearing account.
(c) So long as the Escrow Documents have not been disbursed by the
Escrow Agent in accordance with Section 2:
(i) Until the expiration or earlier termination of the
HSR Act waiting period, the Sellers shall be entitled to
exercise all voting and other consensual rights pertaining to
the Sellers' Escrow Documents or any part thereof for any
purpose not inconsistent with the terms of this Agreement or
the Purchase Agreement. After the termination or expiration
of the HSR Act waiting period, Section 12 of the Purchase
Agreement shall apply with respect to voting rights pertaining
to the Sellers' Escrow Documents.
(ii) The Purchaser shall be entitled: (A) to exercise
all voting and other consensual rights pertaining to
the Purchaser's Escrow Documents or any part thereof
for any purpose not inconsistent with the terms
of this Agreement or the Purchase Agreement, and (B)
to receive and retain any and all dividends or other
distributions paid in respect of the Purchaser's
Escrow Documents (whether made in cash, property,
securities, rights or otherwise).
Section 2. Disbursements.
-------------
(a) Upon receipt of a written certificate executed by the
Purchaser and the Sellers that all conditions precedent under the Purchase
Agreement (including without limitation the expiration
PAGE 25 OF 35 PAGES
<PAGE> 3
or earlier termination of the HSR waiting period) to the transfer of the
Purchased Shares have been satisfied or waived and Purchaser has paid Sellers
the Purchase Price, then you shall forthwith disburse (i) to the Purchaser the
Sellers' Escrow Documents and any Distributions held in the Escrow Account
together with the Purchaser's Escrow Documents, and (ii) to Libra the Libra Fee
together with accrued interest thereon.
(b) Upon receipt of a written certificate executed by the Sellers
that all conditions precedent under the Purchase Agreement (including without
limitation the expiration or earlier termination of the HSR waiting period) to
the transfer of the Purchased Shares have been satisfied or waived except that
Purchaser has failed to pay Sellers the Purchase Price via wire transfer in
accordance with Section 4(a) of the Purchase Agreement and Sellers are not in
material breach of the Purchase Agreement, then you shall forthwith, at the
direction of Sellers, either (i) return (x) the Envirodyne Shares and
Distributions to Sellers and (y) the Purchaser's Escrow documents and the Libra
Fee together with accrued interest thereon to the Purchaser, and otherwise
treat the Purchase Agreement as terminated, or (ii) unless and until the
Escrow Agent receives an appropriate certificate executed by the proper party
or parties that the Purchase Agreement is terminated, sell a sufficient number
of the Zapata Shares on the New York Stock Exchange in unsolicited agency
transactions or private transactions during the 30 day period after receipt of
such certificate as may be required to pay the Purchase Price (subject to any
"black-out periods" under the SLA).
Purchaser agrees that (A) the Escrow Agent is authorized to
conduct such sale of Zapata Shares to satisfy Purchaser's obligation to Sellers
to pay the Purchase Price, (B) such sales are for the account of Purchaser and
are not being made by Sellers who will have no responsibility with respect
thereto, (C) until the earlier to occur of the termination of the Purchase
Agreement or the payment in full of the Purchase Price in immediately available
funds, the Escrow Agent will continue to hold in escrow the Sellers' Escrow
Documents and the Purchaser's Escrow Documents (except for certificates for
those Zapata Shares sold in accordance with the terms hereof). The Escrow
Agent shall provide a weekly report to the Purchaser and Sellers accounting for
all sales of Zapata Shares. The Escrow Agent shall be entitled to a commission
of five cents ($.05) per share on all such sales (which amount shall be
equitably adjusted in the event of a stock split or similar transaction). The
Escrow Agent shall deliver to the Sellers the net proceeds from the sale of
the Zapata Shares only after all of the Zapata Shares have been sold. Upon
receipt of a written certificate from the Purchaser that the Purchase Price has
been paid, the Escrow Agent shall forthwith distribute the Libra Fee to Libra
and the Sellers Escrow Documents and any remaining Purchasers Escrow
PAGE 26 OF 35 PAGES
<PAGE> 4
Documents to the Purchaser.
(c) Upon receipt of a certificate signed by the Purchaser and the
Sellers that the Purchase Agreement has been terminated pursuant to Section 11
(a)(i) or a certificate executed by either Purchasers or Sellers that the
Purchase Agreement has been terminated by the Purchaser or Sellers pursuant to
Section 11 (a) (ii), (iii) or (iv) of the Purchase Agreement, the Escrow Agent
shall forthwith (i) disburse to the Sellers, the Sellers' Escrow Documents and
any Distributions held in the Escrow Account, and (ii) disburse to the
Purchaser the Purchaser's Escrow Documents, the Libra Fee together with accrued
interest thereon and the net proceeds from any sale of the Zapata Shares.
(d) The trust impressed upon the Escrow Documents and the Libra
Fee by reason of this Agreement shall in all cases cease and all Escrow
Documents and the Libra Fee shall be free of such trust upon being disbursed in
accordance with this Section 2.
Section 3. Certain Covenants. Purchaser and
Sellers agree that they will not (a) sell or otherwise dispose of, or grant any
option with respect to, any of the Escrow Documents (or any of the securities
evidenced thereby), (b) create or permit to exist any Lien upon or with respect
to any of the Escrow Documents, or (c) take any action or permit any action to
be taken that would invalidate or restrict the transfers contemplated under the
Purchase Agreement of any certificates or instruments representing or
evidencing any or all of the Escrow Documents.
Section 4. Effect of Final Disbursements. Upon complete
distribution of all Escrow Documents, the Distributions and the Libra Fee as
provided for in Section 2, this Agreement shall terminate (the date upon which
such actions are completed being herein referred to as the "Termination Date")
and you will be relieved of any further duties and responsibility in connection
therewith.
Section 5. Expenses of Escrow Agent. For your services as
Escrow Agent and depository under this Agreement, as compensation for all
services performed, you will receive a fee of $7,500.00 ("Escrow Fee") at or
about the time of execution of this Agreement by all of the parties hereto and
will be reimbursed for your actual out-of-pocket expenses reasonably incurred
in connection with the established and routine administration of the Escrow
Account. Such fees and expenses incurred to date will be paid upon execution
of this Agreement and all other subsequent expenses will be paid within five
days of the Termination Date. Libra shall pay $5,000.00 of the Escrow Fee.
The balance of the Escrow Fee and the reimbursement of the expenses shall be
paid by one-half by the Purchaser and the other one-half paid by the Sellers.
Reimbursement of expenses will be
PAGE 27 OF 35 PAGES
<PAGE> 5
paid one-half by the Purchaser upon presentment to the Purchaser of
documentation substantiating such expenses satisfactory to the Purchaser and
one-half by the Sellers upon presentment to the Sellers of documentation
substantiating such expenses satisfactory to the Sellers.
Section 6. Limitation of Liability.
-----------------------
(a) It is understood and agreed that you will
have no duties or responsibilities other than those set forth herein and will:
(i) Be under no duty to accept Escrow
Documents from anyone other than the Sellers
or Purchaser (or their agents) or to give any
receipt therefor except to the Sellers.
(ii) Be protected in acting upon any notice,
request, certificate, approval, consent or
other paper reasonably believed by you to be
genuine, signed by the proper party or
parties and in accordance with the terms of
this Agreement and may, without limiting the
generality of the foregoing, disregard any
and all notices and warnings given by any
other person, excepting only orders,
judgments or decrees of any court (with which
you are hereby authorized to comply)
notwithstanding that any such order,
judgment, or decree is subsequently reversed,
modified, annulled, set aside or vacated, or
found to have been entered without
jurisdiction.
(iii) Be deemed conclusively to have given
and delivered any notice, request, claim,
demand or other communication hereunder if
the same is in writing and is given (and,
except as otherwise provided in this
Agreement, shall be deemed to have been duly
delivered if so given) if delivered in person
or sent by registered or certified mail
(postage prepaid, return receipt requested)
to the respective parties as follows:
If to the Purchaser:
Malcolm I. Glazer
1482 South Ocean Boulevard
Palm Beach, Florida 33480
PAGE 28 OF 35 PAGES
<PAGE> 6
With copies to:
Woods, Oviatt, Gilman, Sturman
& Clarke
44 Exchange Street
Rochester, New York 14614
Attention: Gordon E. Forth, Esq.
and
Mr. Avram Glazer
18 Stoney Clover Lane
Pittsford, New York 14534
If to the Sellers:
c/o Morgens, Waterfall, Vintiadis
& Company, Inc.
10 East 50th Street, 26th Floor
New York, New York 10022
Attention: David A. Ericson
With a copy to:
Dechert, Price & Rhoads
477 Madison Avenue
New York, New York 10022
Attention: Fredric J. Klink
or such other address as any such party may have furnished to the other parties
in writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
The Sellers have designated Morgens, Waterfall, Vintiadis & Company,
Inc. ("MWVCI") as their agent for the sole purpose of receiving communications
from, and sending communications to, Purchaser in connection with a Purchase
Agreement and this Agreement. Neither MWVCI, nor any of its officers,
directors, employees, agents or controlling persons, shall have any liabilities
under or in connection with this Agreement by reason of the foregoing or for
any other reason.
(b) The Escrow Agent, at its sole option, is
authorized to deposit the Escrow Documents, the Distributions and the Libra Fee
together with accrued interest thereon into court pursuant to any relevant
statute and commence an action in interpleader, in order to obtain a judicial
determination as to the party legally entitled to receive the same.
PAGE 29 OF 35 PAGES
<PAGE> 7
(c) The Escrow Agent shall not be responsible or
liable to any person, whether or not a party to this Agreement, for any act or
omission of any kind so long as it has acted in good faith upon the
instructions herein contained or hereafter delivered to it, except that the
Escrow Agent shall be responsible and liable for acts or omissions resulting
from the Escrow Agent's willful misconduct or gross negligence. Nothing herein
contained shall be deemed to impose upon the Escrow Agent any duty to exercise
discretion, it being the intention hereof that the Escrow Agent shall not be
obligated to act except upon written instruction or directions.
(d) The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith and believed by it to be authorized
hereby or within the rights or powers conferred upon it hereunder, and shall
not be liable for any mistake of fact or error of judgment or for any actions
or omissions of any kind unless caused by willful misconduct or gross
negligence.
(e) The Escrow Agent may resign at any time upon
prior written notice to the Purchaser and the Sellers. The Sellers and the
Purchaser, if they agree, may remove the Escrow Agent at any time, upon prior
written notice to the Escrow Agent. In the case of the Escrow Agent's
resignation, its only duty until a successor escrow agent shall have been
appointed and shall have accepted such appointment shall be to hold and
disburse the Escrow Documents, the Distributions and the Libra Fee in
accordance with the provisions contained in this Escrow Agreement.
Section 7. Notices to Escrow Agent. All notices, requests,
claims, demands and other communications hereunder to the Escrow Agent shall be
in writing and shall be given (and, except as otherwise provided in this
Agreement, shall be deemed to have been duly delivered if so given), if
delivered in person, by fax, or sent by registered or certified mail (postage
prepaid, return receipt requested) to the Escrow Agent at the address set forth
above or to such other address as the Escrow Agent may have furnished to the
other parties in writing in accordance herewith, except that notices of change
of address shall only be effective upon receipt.
Section 8. Miscellaneous. This Agreement is a personal one
among the parties hereto and no party hereto may assign or attempt to assign
this Agreement or any interest or right herein without the consent of the other
parties hereto. Nothing in this Agreement is intended to or will confer upon
any person other than the parties hereto any legal or equitable right, remedy
or claim. This Agreement will be construed in accordance with the internal
laws of the State of New York without giving effect to the principles of
conflict of laws thereof. This Agreement may be amended or modified only by an
PAGE 30 OF 35 PAGES
<PAGE> 8
instrument signed by the Purchaser, the Escrow Agent and the Sellers. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original. This Agreement may be executed by facsimile signature
transmitted to any other party by electronic transmission. The parties shall
be bound by a facsimile signature once transmitted to another party. The later
transmission of an originally executed copy of any such document shall not
invalidate any signature previously given by electronic transmission.
If the foregoing terms and conditions are satisfactory to you, please
so indicate by executing in the space provided below and returning two copies
of this letter to the undersigned.
Very truly yours,
Purchaser: THE MALCOLM GLAZER TRUST
Dated: October __, 1994 S//MALCOLM I. GLAZER, TRUSTEE
-----------------------------------
By: Malcolm I. Glazer, Trustee
Sellers: RESTART PARTNERS, L.P.
Dated: October __, 1994 By: Prime, Inc., as general partner
of the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
RESTART PARTNERS II, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
RESTART PARTNERS III, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
PAGE 31 OF 35 PAGES
<PAGE> 9
RESTART PARTNERS IV, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS
By: Morgens, Waterfall, Vintiadis &
Company, Inc., as investment
manager
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
MORGENS, WATERFALL INCOME PARTNERS
By: S//DAVID A. ERICSON
-----------------------------------
Name: David A. Ericson
Title: Authorized Agent
Escrow Agent: WERTHEIM SCHRODER & CO. INCORPORATED
Dated: October __, 1994 By: S//MICHAEL DURA
---------------------------------
Name: Michael Dura
Title: Managing Director
PAGE 32 OF 35 PAGES
<PAGE> 10
SCHEDULE I
TO
Escrow Agreement
----------------
<TABLE>
<CAPTION>
Schedule of Beneficial Owners Number of Shares Owned
- ----------------------------- ----------------------
<S> <C>
Restart Partners, L.P. 254,958
Restart Partners II, L.P. 348,763
Restart Partners III, L.P. 243,394
Restart Partners IV, L.P. 115,316
The Common Fund for Non-Profit
Organizations 87,123
Morgens, Waterfall Income Partners 35,745
Morgens, Waterfall, Vintiadis &
Company Employees Profit Sharing
Plan 15,000
TOTAL 1,100,299
</TABLE>
PAGE 33 OF 35 PAGES
<PAGE> 11
SCHEDULE II
TO
ESCROW DEPOSIT AGREEMENT
------------------------
The 1,100,299 shares of Envirodyne Industries, Inc. common stock, par
value $.01 per share, are currently held in uncertificated form and identified
by computer entries on the books of Cede & Company ("Financial Intermediary").
The Sellers have notified the Financial Intermediary of the establishment of
the Escrow Account and requested that the Envirodyne Shares be registered on
the books of the Financial Intermediary, at the Sellers' expense, in the name
of the Escrow Agent. The Sellers hereby authorize the Financial Intermediary
to accept without question the Escrow Agent's exercise of any rights with
respect to the Envirodyne Shares and shall have no liability to the Seller in
doing so. The Sellers hereby acknowledge and agree that the Financial
Intermediary may rely on the statements made and authorization given hereby.
PAGE 34 OF 35 PAGES
<PAGE> 12
SCHEDULE III
TO
ESCROW DEPOSIT AGREEMENT
------------------------
1. The following share certificates aggregating 2,500,000 shares
of Zapata Corporation common stock, par value $0.25 per share:
(a) Certificate No. ZC3883 representing 500,000 Shares registered
in the name of the Malcolm Glazer Trust under agreement dated
March 23, 1990.
(b) Certificate No. ZC3884 representing 500,000 Shares registered
in the name of Malcolm Glazer Trust under agreement dated
March 23, 1990.
(c) Certificate No. ZC3885 representing 500,000 Shares registered
in the name of the Malcolm Glazer Trust under agreement dated
March 23, 1990.
(d) Certificate No. ZC3886 representing 500,000 Shares registered
in the name of the Malcolm Glazer Trust under agreement dated
March 23, 1990.
(e) Certificate No. ZC3887 representing 500,000 Shares registered
in the name of the Malcolm Glazer Trust under agreement dated
March 23, 1990.
2. Undated Stock Powers executed in blank by Malcolm I. Glazer as
Trustee of the Malcolm Glazer Trust under agreement dated March 23, 1990 for
Certificates No. ZC3883, ZC3884, ZC3885, ZC3886 and ZC3887.
PAGE 35 OF 35 PAGES
