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Exhibit 1
STOCK PURCHASE AGREEMENT
THIS AGREEMENT, dated as of August 7, 1995, is between ZAPATA CORPORATION,
a Delaware corporation (the "Buyer"), and MALCOLM I. GLAZER, as trustee of the
Malcolm I. Glazer Trust (the "Seller").
The Seller and the Buyer, each in reliance upon the agreements,
representations, warranties and covenants hereinafter set forth herein, agree as
follows with respect to the sale by the Seller and the purchase by the Buyer of
all the issued and outstanding shares of capital stock of Envirodyne Industries,
Inc., a Delaware corporation (the "Issuer"), owned by the Seller.
1. Purchase and Sale of Securities. (a) The Seller hereby sells to the
Buyer, and the Buyer hereby purchases from the Seller, 4,189,298 shares of the
common stock, par value $0.01 per share ("Common Stock"), of the Issuer (such
shares hereinafter called the "Shares") at a purchase price per share of $4.483,
such amount being hereinafter referred to as the Purchase Price. The aggregate
Purchase Price for the Shares is being paid with Buyer's promissory note in the
form attached hereto as Exhibit A in the principal amount of $18,780,623.00 (the
"Note").
(b) The Buyer acknowledges receipt of the transfer from Seller's brokerage
account holding the Shares to the
Buyer's brokerage account maintained at
Schroder Wertheim & Co. Incorporated (Account No. W105793202) of the Shares.
The Seller acknowledges receipt from the Buyer of the Note representing payment
in full for the Shares. The sale, assignment and transfer of the Shares has
been made without recourse, representation or warranty of any kind by the Buyer,
express or implied, except as expressly set forth herein.
2. Representations and Warranties of Seller. The Seller represents and
warrants to, and covenants with, the Buyer as follows:
(a) The Seller is the duly qualified and acting Trustee of the Malcolm I.
Glazer Trust and has all the requisite power and authority to execute and
deliver this Agreement and to carry out all of the terms and provisions hereof
to be carried out by it.
(b) The execution, delivery and performance of this Agreement by the Seller
has been duly authorized by all necessary action. This Agreement has been duly
executed and delivered by the Seller and constitutes the valid and binding
obligation of the Seller enforceable in accordance with its terms.
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(c) Neither the execution and delivery of this Agreement by the Seller nor
the consummation of the transactions contemplated hereby in accordance with its
terms (i) will conflict with, result in a breach of, or constitute a default
under, the governing instruments of the Malcolm I. Glazer Trust or any
indenture, mortgage, lease or other agreement to which the Seller or Malcolm I.
Glazer is a party or to which either of them or any of their respective
properties may be subject or (ii) will result in a violation of any order, writ,
injunction, decree or award of any court or governmental authority to which the
Seller or Malcolm I. Glazer or any of their respective properties may be
subject. No action, suit or proceeding is pending or, to the knowledge of the
Seller, threatened against or affecting the Seller or Malcolm I. Glazer that
would prohibit or restrain the transaction contemplated hereby.
(d) The Seller owns beneficially all of the Shares and owns the Shares free
and clear of all liens, claims, options, charges, encumbrances and adverse
claims. The Seller is not a party to or bound by any agreement restricting its
right to sell, assign, transfer or deliver the Shares as contemplated by this
Agreement. Buyer is acquiring the Shares free and clear of all liens,
encumbrances and adverse claims [except for any restrictions which may apply
under applicable securities laws and the impact, if any, of Section 203 of the
Delaware General Corporation Law (8 Del. C. (S) 203)].
(e) There are no restrictions on the voting rights or other incidents of
ownership of the Shares that are applicable to the Seller or that will be
applicable to the Buyer upon purchase of the Shares.
(f) Set forth on Exhibit B is a list of the dates on which trades occurred,
purchase agreements were executed and transactions thereunder were closed with
respect to all the outstanding shares of Common Stock, $.25 par value, of the
Buyer owned by the Seller, and such list is true and accurate.
(g) Set forth on Exhibit C is a list of the dates on which trades occurred,
purchase agreements were executed and transactions thereunder were closed with
respect to all of the Shares owned by the Seller, and such list is true and
accurate.
(h) As of the date hereof, Seller, in his individual capacity as a director
of Issuer or otherwise, is not in possession of any non-public information
relating to the Issuer that a reasonably prudent investor would consider
materially adverse to the financial condition, results of operations, future
prospects or any other aspects of the business, assets or operations of the
Issuer.
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3. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Seller as follows:
(a) The Buyer is a corporation validly existing and in good standing under
the laws of the State of Delaware and has all the requisite corporate power and
authority to execute and deliver this Agreement and the Note and to carry out
all of the terms and provisions hereof and thereof to be carried out by it.
(b) The execution, delivery and performance of this Agreement and the Note
by the Buyer have been duly authorized by all necessary corporate action. This
Agreement and the Note each has been duly executed and delivered by the Buyer
and constitutes the valid and binding obligation of the Buyer enforceable in
accordance with its terms, except to the extent the enforceability of the Note
may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or other law relating to or affecting the enforcement of creditors'
rights generally.
(c) Neither the execution and delivery of this Agreement or the Note by the
Buyer nor the consummation of the transaction contemplated hereby or thereby in
accordance with the terms hereof or thereof (i) will conflict with, result in a
breach of, or constitute a default under, the certificate of incorporation of
bylaws of the Buyer or any indenture, mortgage, lease or other agreement to
which the Buyer is a party or to which it or any of its properties may be
subject, or (ii) will result in a violation of any order, writ, injunction,
decree or award of any court or governmental authority to which the Buyer or any
of its properties may be subject. No action, suit or proceeding is pending or,
to the knowledge of the Buyer, threatened against or affecting the Buyer that
would prohibit or restrain the consummation of the transaction contemplated
hereby or that challenges or questions the validity of the transactions
contemplated hereunder.
(d) The waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act applicable to the purchase of the Shares by the Buyer has expired or been
terminated.
(e) The Buyer understands that the Seller is considered an "affiliate"
under the federal securities laws and the Shares have not been registered under
the Securities Act of 1933, as amended (the "Securities Act") and, as a result,
the Shares have been sold to Buyer pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
(f) The Shares may not be offered or sold by the Buyer, except pursuant to
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an effective registration statement or pursuant to an exemption from or in a
transaction not subject to the registration requirements of the Securities Act.
The Buyer agrees that the Seller may instruct the Issuer (or its transfer agent)
to place an appropriate restrictive legend placed on the certificate of
certificates representing the Shares to be issued by the Issuer to the Buyer.
(g) The Buyer has received adequate information concerning the Issuer and
the Shares from sources other than the Seller (or Avram Glazer) to make an
informed decision with respect to its purchase of the Shares.
(h) The Buyer is purchasing the Shares for its own account and not with a
view to the resale, distribution or other disposition thereof.
(i) The Buyer shall, in disposing of the Shares, fully comply with the
applicable requirements of the Securities Act and applicable state securities
laws.
4. Non-Reliance on Seller. The Seller makes no representation or warranty
of any kind in connection with, and shall have no responsibility with respect
to, the financial statements, financial condition, financial performance or
future prospects of the Issuer, or except as expressly set forth herein, the
Shares. The Buyer represents and acknowledges that it has, independently and
without reliance on Seller (or Avram Glazer), and based on such documents and
information as it has deemed appropriate (including the publicly available
registration statements, reports and documents relating to the Issuer filed with
the Securities and Exchange Commission), made its own financial analysis and
decision to purchase the Shares and enter into this Agreement.
5. Brokerage. The Buyer and the Seller each represent and warrant to the
other that each will pay or otherwise discharge any liability incurred by it for
brokerage or finders' fees or agents' commissions or other similar payments in
connection with this Agreement and the transactions contemplated hereby. The
Buyer has not engaged or otherwise dealt with any person or entity in such
manner as might give rise to a claim against the Seller for such commission, fee
or payment and the Seller has not engaged or otherwise dealt with any person or
entity in such manner as might give rise to a claim against the Buyer for such
commission, fee or payment.
6. Expenses. Except as otherwise provided herein, the parties hereto
shall bear their own expenses incurred in connection with this Agreement and the
sale and purchase of Shares, including, without limitation, all fees of their
respective legal counsel, investment advisors and accountants. The Buyer will
bear all the legal, accounting, investment banking
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and other expenses of the Special Committee of its Board of Directors.
7. Notices. All notices, requests, claims, demands and other
communications hereunder shall be communicated in writing, mailed by first class
mail or delivered by hand, or by telephone, if promptly confirmed in writing, at
the following addresses (or to such other address for a party as such party may
specify by written notice given pursuant hereto):
If to the Buyer:
Zapata Corporation
One Riverway, Suite 2200
777 South Post Oak Lane
Houston, Texas 77056
Attn: Joseph L. von Rosenberg III
General Counsel
If to the Seller:
Malcolm I. Glazer
1482 South Ocean Boulevard
Palm Beach, Florida 33480
With a copy to:
Avram Glazer
18 Stoney Clover Lane
Pittsford, New York 14534
8. Entire Agreement. This Agreement contains the entire agreement between
the Buyer and the Seller as to the Shares.
9. Governing Law. This Agreement shall be construed in accordance with,
and be governed by, the laws of the State of New York.
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10. Parties in Interest; Assignability. This Agreement shall inure to the
benefit of, and be binding upon the parties hereto and their respective
successors and assigns and is not intended to confer any rights on any third
party.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed this
Agreement as of the date first above written.
ZAPATA CORPORATION
By /s/ R. C. LASSITER
____________________________________
Authorized Officer
/s/ MALCOLM I. GLAZER
____________________________________
Malcolm I. Glazer, as trustee of the
Malcolm I. Glazer Trust
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Exhibit A
SUBORDINATED PROMISSORY NOTE
$18,780,623.00
FOR VALUE RECEIVED, Zapata Corporation, a Delaware corporation (the
"Company"), hereby promises to pay to the order of Malcolm I. Glazer, as Trustee
of the Malcolm I. Glazer Trust ("Payee"), the principal sum of Eighteen Million
Seven Hundred Eighty Thousand Six Hundred Twenty Three and No/100 Dollars
($18,780,623.00) on August 7, 1997, unless sooner accelerated and to pay
interest on the unpaid balance of such principal sum from time to time
outstanding from the date hereof until paid in full and on the maturity date
hereof at a rate prior to an event of default equal to the rate of interest per
annum publicly announced from time to time by Chemical Bank as its prime rate in
effect at its principal office in New York City, such rate hereunder to change
automatically effective upon each change in such prime rate, such interest to be
payable on the last day of each September, December, March and June in each year
until the principal sum is paid in full. After an event of default the interest
rate that shall accrue on the outstanding principal hereunder shall be increased
by five percent (5%) over the rate which would otherwise apply.
Payments. All payments hereunder shall be made to Malcolm I. Glazer,
as Trustee of the Malcolm I. Glazer Trust at 1482 South Ocean Boulevard, Palm
Beach, Florida 33480.
Prepayment. The Company shall have the right at any time to prepay,
without premium or penalty, the principal sum or any portion thereof, together
with interest on the amount prepaid to date of prepayment.
Subordination. The Company covenants and agrees, and each holder of
this Note by his acceptance hereof likewise covenants and agrees, that the
payment of the principal and interest on this Note is subordinated, to the
extent and in the manner hereinafter set forth, to the prior payment in full of
all Senior Debt. The term "Senior Debt" means the principal of and premium, if
any, and interest on the following, whether currently outstanding or hereafter
created, (i) indebtedness of the Company for money borrowed (including purchase
money obligations) evidenced by notes or other written obligations (other than
this Note), (ii) indebtedness of the Company evidenced by notes (other than this
Note), debentures, bonds or other securities issued under the provisions of an
indenture, fiscal agency agreement or similar
<PAGE>
instrument, (iii) obligations of the Company as lessee under capitalized leases
and leases of property made as part of any sale and leaseback transactions, (iv)
indebtedness of others of any of the kinds described in the preceding clauses
(i) through (iii) assumed or guaranteed by the Company and (v) renewals,
extensions and refundings of, and indebtedness and obligations of a successor
corporation issued in exchange for or in replacement of, indebtedness or
obligations of the kinds described in the preceding clauses (i) through (iv).
Notwithstanding the foregoing, Senior Debt will not include: (i) any particular
indebtedness, obligation, renewal, extension or refunding if the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such indebtedness, obligation, renewal, extension or refunding is
not superior in right of payment to the Note. As used in the second preceding
sentence, the term "purchase money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by any lien or other security interest but excluding indebtedness or
obligations for which recourse is limited to the property purchased) issued or
assumed as all or part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable.
These provisions set forth in this paragraph (a) and the following
paragraphs (b), (c), (d), (e) and (f) (the "Subordination Provisions") are made
for the benefit of the holders from time to time of Senior Debt, and such
holders and/or each of them may enforce such provisions.
(b) Upon the maturity of any Senior Debt by lapse of time,
acceleration or otherwise, all principal thereof and interest thereon shall
first be paid in full, or such payment duly provided for in cash or in a manner
satisfactory to the holders of such Senior Debt, before any payment is made on
account of the principal or interest on this Note or to acquire this Note.
Upon the happening of an event of default (or if any event of default
would result upon any payment with respect to this Note) with respect to any
Senior Debt, as such event of default is defined therein or in the instrument
under which it is outstanding, permitting the holders to accelerate the maturity
thereof, and, if the default is other than default in payment of the principal
or interest on such Senior Debt, upon written notice thereof given to the
Company by the holders of such Senior Debt or their representative, then, unless
and until such event of default shall have been cured or waived or shall have
ceased to exist, no payment shall be made by the Company with respect to the
principal or interest on this Note or to acquire this Note.
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<PAGE>
(c) Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or otherwise):
(i) the holders of all Senior Debt shall first be entitled to
receive payment in full of the principal and interest due thereon
before the holder of this Note is entitled to receive any payment on
account of the principal or interest on this Note;
(ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which
the holder of this Note would be entitled except for the Subordination
Provisions, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution directly to the holders of
Senior Debt or their representative, or to the trustee under any
indenture under which Senior Debt may have been issued, to the extent
necessary to make payment in full of all Senior Debt remaining unpaid,
after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Debt; and
(iii) in the event that notwithstanding the foregoing provisions
of this paragraph (c), any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, shall be received by the holder of this Note on account of
principal or interest on this Note before all Senior Debt is paid in
full, or effective provision made for its payment, such payment or
distribution shall be received and held in trust for and shall be paid
over to the holders of the Senior Debt remaining unpaid or unprovided
for or their representative, or to the trustee under any indenture
under which Senior Debt may have been issued, for application to the
payment of such Senior Debt until all such Senior Debt shall have been
paid in full, after giving effect to any concurrent payment or
distribution or provision therefor to the holders of such Senior Debt.
(d) Subject to the payment in full of all Senior Debt, the holder of
this Note shall be subrogated to the rights of the holders of Senior Debt until
all amounts owing on this Note shall be paid in full, and for the purpose of
such subrogation no payments or distributions to the holders of the Senior Debt
by or on behalf of the Company or by or on behalf of the holder of this Note by
virtue of the Subordination Provisions which otherwise would have been made to
the holder of this Note shall, as between the Company and the holder of this
Note be
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deemed to be payment by the Company to or on account of the Senior Debt, it
being understood that the Subordination Provisions are and are intended solely
for the purpose of defining the relative rights of the holder of this Note, on
the one hand, and the holders of the Senior Debt, on the other hand.
(e) Nothing contained in the Subordination Provisions or elsewhere in
this Note is intended to or shall impair, as between the Company and the holder
of this Note, the obligation of the Company, which is absolute and
unconditional, to pay to the holder of this Note the principal and interest on
this Note as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the holder
of this Note and creditors of the Company other than the holders of the Senior
Debt, nor shall anything herein or therein prevent the holder of this Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Note, subject to the rights, if any, under the Subordination Provisions of
the holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any distribution of
assets of the Company referred to in paragraph (c) above, the holder of this
Note shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or making any distribution to the holder of this Note, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to the
Subordination Provisions.
(f) No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms hereof, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with.
Defaults and acceleration. In the event of any failure to pay any
interest when due hereunder, and the continuance of such failure to pay for a
period of ten (10) days after written notice, by certified or registered mail or
by hand delivery, of such failure from the Payee to the Company or in the event
that all of the indebtedness of the Company to Chemical Bank (or any bank
serving as the Company's primary lender) becomes due and payable as the result
of an event of default with respect thereto, this Note shall be in default and
the entire unpaid principal sum hereof, together with accrued interest, shall at
the option of the Payee,
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become immediately due and payable in full.
Compliance with usury laws. It is the intention of the Company and
the Payee to conform strictly to applicable usury laws. Accordingly,
notwithstanding anything to the contrary herein, it is agreed as follows: (i)
the aggregate of all interest and any other charges constituting interest under
applicable law contracted for, chargeable or receivable hereunder shall under no
circumstances exceed the maximum amount of interest permitted by law, and any
excess shall be cancelled automatically and, if theretofore paid, shall, at the
option of the holder hereof, either be refunded to the Company or credited on
the principal amount hereof; and (ii) in the event the entirety of the
indebtedness evidenced hereby is declared due and payable, then earned interest
may never include more than the maximum amount permitted by law, and any
unearned interest shall be cancelled automatically and, if theretofore paid,
shall, at the option of the holder hereof, either be refunded to the Company or
credited on the principal amount hereof.
Governing law. This Note shall be construed and enforced under and in
accordance with and shall be governed by the laws of the State of New York.
Business day. Any payment otherwise due on a day which is not a
business day (a day on which banks are not authorized or required to close in
Houston, Texas) may be made on the next succeeding business day, and such
extension shall be taken into account in computing any interest due in
connection with such payment.
Attorney's fees. In the event of any default hereunder and the
placement of this Note in the hands of an attorney for collection, the Company
agrees to pay all the Payee's collection costs and expenses, including
attorneys' fees.
Waivers. The Company hereby waives presentment, demand, protest and
notice of any kind in connection with payments due hereunder.
ZAPATA CORPORATION
By __________________________________
Authorized Officer
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Exhibit B
MALCOLM I. GLAZER
ZAPATA CORPORATION SHARES
<TABLE>
<CAPTION>
PURCHASE
NUMBER OF SHARES TRADE AGREEMENT SETTLEMENT
OF COMMON STOCK DATE DATE DATE
--------------------- ------- --------- ----------
<S> <C> <C> <C>
2,862,588 7/10/92 ---- ----
578,331 7/13/92 ---- ----
8,424,272 7/13/92 ---- ----
1,202,612 7/16/92 ---- ----
3,720,229 7/17/92 ---- ----
32,438,630 7/16/92 7/30/92 9/9/92
2,750,561 7/22/92 8/10/92 9/9/92
----------
51,976,923
</TABLE>
ON DECEMBER 9, 1993, ALL SHARES WERE TRANSFERRED TO THE MALCOLM GLAZER TRUST
ON MAY 1, 1994, THERE WAS A ONE-FOR-FIVE REVERSE STOCK SPLIT RESULTING IN THE
NUMBER OF SHARES NOW OWNED BY THE TRUST TO BE 10,395,384.
EXCEPT AS NOTED HEREIN, NO AFFILIATE OR ASSOCIATE (AS DEFINED IN THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED) OF MALCOLM GLAZER OR THE MALCOLM GLAZER TRUST
HAS ACQUIRED ANY SHARES OF ZAPATA CORPORATION SINCE JULY 10, 1992.
<PAGE>
Exhibit C
MALCOLM I. GLAZER
ENVIRODYNE INDUSTRIES, INC. SHARES
<TABLE>
<CAPTION>
PURCHASE
NUMBER OF SHARES TRADE AGREEMENT SETTLEMENT
OF COMMON STOCK DATE DATE DATE
-------------------------- -------- --------- ----------
<S> <C> <C> <C>
1,746,151 8/4/94 ---- 8/9/94
289,238 8/16/94 8/16/94 11/17/94
995,698 8/18/94 8/18/94 11/18/94
57,912 9/14/94 ---- 11/18/94
1,100,299 10/12/94 10/12/94 11/18/94
---------
4,189,289
</TABLE>
