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Exhibit 15
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EXHIBIT A
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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.
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(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
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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.
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(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
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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
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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
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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.
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(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
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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.
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(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
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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
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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
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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
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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
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Name: David A. Ericson
Title: Authorized Agent
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RESTART PARTNERS IV, L.P.
By: Prime, Inc., as general partner of
the general partner
By: S//DAVID A. ERICSON
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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
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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
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SCHEDULE I
TO
Escrow Agreement
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<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>
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SCHEDULE II
TO
ESCROW DEPOSIT AGREEMENT
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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.
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SCHEDULE III
TO
ESCROW DEPOSIT AGREEMENT
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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.
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