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EXHIBIT 10.2
AGREEMENT BETWEEN
CENTIGRAM COMMUNICATIONS CORPORATION
AND
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., AS THE COURT-APPOINTED RECEIVER
FOR CREDIT BANCORP. LTD.
AND NOW COME Centigram Communications Corporation
("Centigram") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇., the Court-Appointed Receiver for
Credit Bancorp, Ltd. ("the Receiver"), who herein enter into this Agreement
concerning the return of 900,000 shares of Centigram stock presently being held
in four brokerage accounts in the name of Credit Bancorp, Ltd. ("CBL") in
exchange for good and valuable consideration as set forth herein.
WHEREAS, Centigram entered into the CBL credit facility
agreement ("CFA") dated August 16, 1999 pursuant to which Centigram deposited,
on or about August 24, 1999, 900,000 shares of its treasury stock ("Centigram
Stock") into accounts in the name of CBL; and
WHEREAS, CBL agreed in the CFA that the Centigram Stock was to
be held in trust and was not to be sold, pledged, margined or otherwise
transferred; and
WHEREAS, contrary to the express terms of the CFA, CBL placed
the Centigram Stock in margin accounts and according to KPMG, LLP, all Centigram
shares are presently held in margin accounts; and
WHEREAS, in November, 1999 the Securities and Exchange
Commission commenced a civil action against CBL and certain other related
entities and individuals alleging numerous violations of the federal securities
laws relating to CBL's "insured credit facility" program similar to the CFA
entered into by Centigram with CBL; and
WHEREAS, upon the request of the Securities and Exchange
Commission, the United States District Court for the Southern District of New
York issued a temporary restraining order on November 17, 1999 against the CBL
defendants prohibiting further violations of the federal securities laws, and
freezing assets owned by, controlled by, or in the name of CBL, including the
Centigram Stock; and
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WHEREAS, Centigram had not borrowed any funds under the CFA
and in December, 1999 Centigram terminated the CFA and demanded the return of
the Centigram Stock; and
WHEREAS, on January 21, 2000, the Court appointed ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇. as receiver to take control of the funds, assets and property
owned by, controlled by or in the name of CBL and related entities, and to take
such other further action necessary and appropriate to preserve and prevent the
dissipation of such funds, assets and property; and
WHEREAS, the Receiver has determined that none of the 900,000
treasury shares deposited by Centigram with CBL have been sold; and
WHEREAS, Centigram, by and through its counsel, have moved the
Court for the immediate return of its shares pursuant to a request for an Order
modifying the Orders freezing the stock, which was denied by the Court, but with
leave to renew under a change of circumstances; and
WHEREAS, Centigram believes it to be the rightful owner of
said Centigram Stock which is disputed by the Receiver; and
WHEREAS, Centigram desires that the Centigram shares be
returned to its treasury and retired; and
WHEREAS, the Receiver has previously indicated a willingness
for customers to reclaim in kind shares which they deposited with CBL in
exchange for funds or other assets; and
WHEREAS, the Securities and Exchange Commission submitted on
May 25, 2000 a Plan of Partial Distribution which would value the Centigram
Stock as of the date of deposit in an amount equal to $8,493,750 based on the
price at which Centigram shares were then publicly traded; and
WHEREAS, Centigram's publicly traded shares have increased
substantially in value since the date of deposit; and
WHEREAS, Centigram's claim under the Securities and Exchange
Commission's Plan of Partial Distribution would call for a distribution of
assets based upon the
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value of its stock as deposited ($8,493,750), which Centigram disputes would be
the proper method of valuing its claim against CBL; and
WHEREAS, the Receiver is desirous of settling the Receivership
Estate's disputes with Centigram; and
WHEREAS, the Receiver is interested in reducing the market
risk represented by the Receivership Estate's having 900,000 shares of
Centigram, and in receiving cash which the Receiver might use to satisfy
obligations of the Receivership Estate;
THEREFORE, AND IN CONSIDERATION of the release set forth
herein and the payment by Centigram to the Receiver of $12,095,325, an amount
determined by (i) applying to the Centigram Stock the average closing price for
Centigram's shares for each of the 90 trading days preceding preliminary
approval by the Court of this Agreement, and (ii) subtracting $4,246,875,
representing the Receiver's most conservative estimate of the value of
Centigram's claim under the Securities and Exchange Commission's Plan of Partial
Distribution filed with the Court on May 25, 2000, the Receiver agrees to use
all commercially reasonable efforts to deliver the Centigram shares presently
being held in accounts in the name of CBL as follows:
225,000 shares with Chase Investments, in Account No.: CL7-641928;
225,000 shares with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, in Account No.:
2579-3929;
225,000 shares with Deutsche Bank Securities, Inc., in Account
No.: ▇▇▇▇▇▇▇▇; and
225,000 shares with Ameritrade, in Account No.: 160-999352.
Only upon the Receiver obtaining possession of said shares and
communicating that he is prepared to deliver such shares to Centigram, then
Centigram shall wire $12,095,325 to Citibank, N.A., 153 East 53rd Street, 20th
Floor, ▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ to the account of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇., as Court-Appointed Receiver for Credit Bancorp, Ltd., ABA #: ▇▇▇-▇▇▇▇-▇▇,
Account No.: ▇▇▇▇▇▇▇▇. Upon receipt of said funds, the Receiver shall promptly
deliver the Centigram Stock to Centigram in accordance with Centigram's
directions. It is agreed that such funds will remain the property of Centigram
and held for its benefit until the Centigram Stock is delivered to Centigram.
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In the event that, despite the Receiver's efforts, the
Receiver is unable to obtain the release and delivery of all 900,000 Centigram
shares held in the four depository institutions, Centigram agrees that it will
take delivery of shares in installments and pay proratably for same. Centigram
shall not be obligated to pay for any installment delivery of shares a greater
percentage of the total consideration set forth in this Agreement than the ratio
of the shares being delivered, divided by the 900,000 shares.
This Agreement represents a compromise of disputed claims
between the parties. The payment to be made by Centigram is fair and reasonable
taking into account the information available to the parties with respect to (i)
the value of the Centigram Stock, (ii) the dispute as to ownership of the
Centigram Stock, (iii) the dispute as to any proposed Plan of Distribution, (iv)
the future value of the Receivership Estate, and (v) the releases of claims set
forth herein.
IN CONSIDERATION for the return of the Centigram Stock, as set
forth above, Centigram agrees to retire all such shares promptly and Centigram
further agrees to and does hereby relinquish and forever release Credit Bancorp,
Ltd., its subsidiaries and affiliates, and the Receiver and his agents (the
"Releasees") from any and all claims which Centigram, its officers, directors,
shareholders, successors and assigns may have against the Releasees resulting
from any loss occasioned by virtue of the CFA, the Centigram shares held in the
brokerage accounts in the name of CBL, or otherwise; and
FURTHER IN CONSIDERATION of the payment by Centigram of
$12,095,325, the Receiver, on behalf of Credit Bancorp, Ltd. and the related
entities for which he serves as Receiver, agrees to release Centigram, its
officers, directors, shareholders, successors and assigns from any further claim
by the Receiver for contribution or other liability to the Receivership Estate
or for any obligation of the Receivership Estate or CBL and from any further
claim to ownership of the Centigram Stock.
IN THE EVENT a petition under the Bankruptcy Code, in 11
U.S.C. 101 et. seq. is filed by or against CBL seeking relief under the
Bankruptcy Code prior to the delivery by the Receiver of shares of Centigram
Stock, but following receipt of the consideration paid by
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Centigram with respect to those shares, the Receiver agrees on behalf of CBL
that CBL has no interest in such consideration paid by Centigram for shares of
Centigram Stock until the shares for which the consideration is paid are
delivered to Centigram.
It is not intended by either party entering into this
Agreement that any other party or entity shall be deemed the third party
beneficiary of this Agreement.
THIS AGREEMENT shall be governed by the laws of the State of
New York, and time is of the essence. The ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, United
States District Judge, shall retain jurisdiction over the matters set forth in
this Agreement, and any disputes arising hereunder shall be submitted to Judge
Sweet, and to no other tribunal or court of any kind, for resolution.
THIS AGREEMENT shall become effective upon Order of the Court
and no further modifications as to the terms and conditions herein shall be made
absent specific written agreement of the parties hereto.
THIS AGREEMENT has been approved by the Board of Directors of
Centigram, and is a valid and binding obligation of Centigram subject to the
terms herein, and the undersigned officer of Centigram has the authority to
enter into said transaction and to act on behalf of Centigram.
This 7th day of June, 2000.
CENTIGRAM COMMUNICATIONS CORPORATION
By and Through: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
As Court-Appointed Receiver of Credit Bancorp, Ltd.
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SO ORDERED:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Judge, United ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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