EXHIBIT 4.5
--------------------------------------------------------------------------------
UNIT AGREEMENT
BETWEEN
UNIFI COMMUNICATIONS, INC.
(A DELAWARE CORPORATION)
AND
FLEET NATIONAL BANK
__________________________________
DATED AS OF FEBRUARY 21, 1997
__________________________________
--------------------------------------------------------------------------------
-1-
UNIT AGREEMENT dated as of February 21, 1997 among UNIFI Communications,
Inc., a Delaware corporation (the "Company"), and Fleet National Bank, a
national banking association, as Unit Agent, Warrant Agent and Trustee.
WHEREAS, the Company proposes to issue $175,000,000 aggregate principal
amount of its 14% Senior Notes due 2004 (the "Notes") pursuant to an Indenture
dated as of February 21, 1997 (the "Indenture") between the Company and Fleet
National Bank as Trustee (the "Trustee"), and to issue 175,000 warrants (the
"Warrants"), each Warrant entitling the holder thereof to purchase initially
27.524674 shares of its Common Stock, par value $.01 per share (the "Common
Stock"). The Notes and the Warrants will initially be represented by units (the
"Units"), with each Unit consisting of $1,000 principal amount of Notes and one
Warrant of the Company. Fleet National Bank has agreed with the Company to act
as warrant agent for the Warrants (the "Warrant Agent").
WHEREAS, the Company, the Trustee and the Warrant Agent desire to appoint
Fleet National Bank to act as their agent for the purpose of issuing
certificates ("Unit Certificates") representing the Units and for the
registration of transfers and exchanges thereof. Fleet National Bank, in such
capacity, is referred to herein as the "Unit Agent."
WHEREAS, the Units will be exchangeable for the Notes and the Warrants
represented thereby upon the earliest to occur of: (i) 180 days after the date
of original issuance of the Units, (ii) the effective date of the Exchange Offer
(as defined in the Indenture) (iii) such date as may be determined by the
Initial Purchaser (as defined in the Indenture) and specified to the Company,
the Trustee, the Warrant Agent and the Unit Agent in writing. The date on which
an event listed in the preceding sentence occurs is referred to as the
"Separation Date."
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereto agree as follows:
SECTION 1. Appointment of Unit Agent. (a) The Company hereby appoints
-------------------------
the Unit Agent to act as agent for the Company in accordance with and subject to
the terms and conditions set forth in this Agreement, and the Unit Agent hereby
accepts such appointment.
-2-
(b) The Trustee and the Company hereby appoint the Unit Agent as
Authenticating Agent and Registrar (as such terms are defined in the Indenture)
for the Notes for so long as the Notes are represented by the Units. In its
capacity as Authenticating Agent and Registrar, the Unit Agent shall have the
rights and obligations provided for such capacities in the Indenture.
(c) The Warrant Agent and the Company hereby appoint the Unit Agent as
Authenticating Agent and Registrar (as such terms are defined in the Warrant
Agreement) for the Warrants for so long as the Warrants are represented by the
Units. In its capacity as Authenticating Agent and Registrar, the Unit Agent
shall have the rights and obligations provided for such capacities in the
Warrant Agreement.
SECTION 2. Unit Certificates. The Units will initially be issued either
-----------------
in global form (the "Global Units"), substantially in the form of Exhibit A
(including footnotes 1 and 2 thereto), or in registered form as definitive Unit
certificates ("Definitive Units"), substantially in the form of Exhibit A (not
including footnotes 1 and 2 thereto). Each Global Unit shall represent such of
the outstanding Units as shall be specified therein and each shall provide that
it shall represent the aggregate Units from time to time endorsed thereon and
that the aggregate amount of outstanding Units represented thereby may from time
to time be reduced or increased, as appropriate. Any endorsement of a Global
Unit to reflect the amount of any increase or decrease in the amount of
outstanding Units represented thereby shall be made by the Unit Agent and
depositary with respect to the Global Units (the "Depositary") in accordance
with written instructions given by the holder thereof. The Depository Trust
Company shall act as the Depositary with respect to the Global Units until a
successor shall be appointed by the Company and the Unit Agent. Upon written
request, a Unit holder may receive from the Depositary and Unit Agent Definitive
Units as set forth in Section 5 below.
SECTION 3. Execution of Unit Certificates. Unit Certificates shall be
------------------------------
signed on behalf of the Company by the Company's Chairman of the Board, its
President or a Vice President (each an "Executing Officer"). Each such
signature upon the Unit Certificates may be in the form of a facsimile signature
of the Executing Officer and may be imprinted or otherwise reproduced on the
Unit Certificates.
In case any Executing Officer of the Company who shall have signed any of
the Unit Certificates shall cease to be an
-3-
Executing Officer before the Unit Certificates so signed shall have been
authenticated by the Unit Agent, or disposed of by the Company, such Unit
Certificates nevertheless may be authenticated and delivered or disposed of as
though such person had not ceased to be an Executing Officer of the Company; and
any Unit Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Unit Certificate, shall be a proper
Executing Officer of the Company to sign such Unit Certificate, although at the
date of the execution of this Unit Agreement or the authentication of any such
Unit Certificates any such person was not such officer.
SECTION 4. Registration and Authentication. The Unit Agent, on behalf of
-------------------------------
the Company, shall number and register the Unit Certificates in a register as
they are issued by the Company. Unit Certificates shall be manually
authenticated by the Unit Agent and shall not be valid for any purpose unless so
authenticated. Unit Certificates shall be dated the date of authentication by
the Unit Agent. The Unit Agent shall, upon written instructions of the Chairman
of the Board, the President or any Vice President of the Company specifying the
amount of Units to be authenticated, whether the Units are to be Global Units or
Definitive Units, and such other information as the Unit Agent may request,
initially authenticate and deliver not more than 175,000 Units and shall
thereafter authenticate and deliver Units as otherwise provided in this
Agreement.
The Company and the Unit Agent may deem and treat the registered holder(s)
of the Unit Certificates as the absolute owner(s) thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone) for all purposes,
and neither the Company nor the Unit Agent shall be affected by any notice to
the contrary.
SECTION 5. Registration of Transfers and Exchanges.
---------------------------------------
(a) Transfer and Exchange of Definitive Units. Prior to the Separation
-----------------------------------------
Date, when Definitive Units are presented to the Unit Agent with a request:
(i) to register the transfer of the Definitive Units; or
(ii) to exchange such Definitive Units for an equal number of
Definitive Units of other authorized denominations,
-4-
the Unit Agent shall register the transfer or make the exchange as requested if
the requirements under this Agreement as set forth in this Section 5 for such
transactions are met; provided, however, that the Definitive Units presented or
-------- -------
surrendered for registration of transfer or exchange:
(x) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Unit Agent, duly executed by the
holder thereof or by his attorney, duly authorized in writing; and
(y) in the case of Units the offer and sale of which have not been
registered under the Act (as defined below) and are presented for
registration of transfer or exchange prior to (I) the date which is
three years after the later of the date of original issue and the last
date on which the Company or any affiliate of the Company was the
owner of such Unit, or any predecessor thereto, and (II) such later
date, if any, as may be required by any subsequent change in
applicable law, such Units shall be accompanied, by the following
additional information and documents, as applicable:
(A) if such Unit is being delivered to the Unit Agent by the
registered holder for registration in the name of such holder,
without transfer, a certification from such holder to that effect
(in substantially the form of Exhibit B hereto);
---------
(B) if such Unit is being transferred to a Qualified Institutional
Buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Act")) in accordance with Rule 144A under the
Act, a certification to that effect (in substantially the form of
Exhibit B hereto);
---------
(C) if such Unit is being transferred (I) to an institutional
"accredited investor" within the meaning of subparagraph (a)(1),
(a)(2), (a)(3) or (a)(7) of Rule 501 under the Act or (II)
pursuant to an exemption from registration in accordance with
Rule 144 under the Act or (III) pursuant to a private placement
exemption from the registration requirements of the Act (in the
case of clauses (I), (II) and (III) based on an opinion of
counsel if the Unit Agent so requests or if the Company so
requests and notifies the Unit Agent), a certification to that
effect (in
-5-
substantially the form of Exhibit B hereto) and a certificate
---------
from the applicable transferee (in substantially the form of
Exhibit C hereto);
---------
(D) if such Unit is being transferred pursuant to an exemption from
registration in accordance with Rule 904 under the Act (and based
on an opinion of counsel if the Unit Agent so requests or if the
Company so requests and notifies the Unit Agent), a certification
to that effect (in substantially the forms of Exhibits B and D
---------- -
hereto); or
(E) if such Unit is being transferred in reliance on another
exemption from the registration requirements of the Act, a
certification to that effect (in substantially the form of
Exhibit B hereto) and an opinion of counsel reasonably acceptable
---------
to the Company or the Unit Agent to the effect that such transfer
is in compliance with the Act.
(b) Restrictions on Exchange and Transfer of a Definitive Unit for a
----------------------------------------------------------------
Beneficial Interest in a Global Unit. A Definitive Unit may not be exchanged
------------------------------------
for a beneficial interest in a Global Unit except upon satisfaction of the
requirements set forth below. Upon receipt by the Unit Agent of a Definitive
Unit, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Unit Agent, together with:
(A) certification from the holder thereof (substantially in the form
of Exhibit B hereto), that such Definitive Unit is being
---------
transferred to a "Qualified Institutional Buyer" (as defined in
Rule 144A under the Act) in accordance with Rule 144A under the
Act; and
(B) written instructions directing the Unit Agent to make, or to
direct the Depositary to make, an endorsement on the Global Unit
to reflect an increase in the aggregate amount of the Units
represented by the Global Unit,
then the Unit Agent shall cancel such Definitive Unit and cause, or direct the
Depositary to cause, in accordance with the standing instructions and procedures
existing between the Depositary and the Unit Agent, the number of Units
represented by the Global Unit to be increased accordingly. If no Global Unit
-6-
is then outstanding, the Company shall issue and the Unit Agent shall
authenticate a new Global Unit in the appropriate amount.
(c) Transfer and Exchange of Global Units. The transfer and exchange
-------------------------------------
of Global Units or beneficial interests therein shall be effected through the
Depositary, in accordance with this Unit Agreement (including the restrictions
on transfer set forth herein) and the procedures of the Depositary therefor.
(d) Exchange of a Beneficial Interest in a Global Unit for a
--------------------------------------------------------
Definitive Unit.
---------------
(i) Prior to the Separation Date, to the extent permitted by law, any
person having a beneficial interest in a Global Unit may upon
request exchange such beneficial interest for a Definitive Unit.
Upon receipt by the Unit Agent of written instructions (or such
other form of instructions as is customary for the Depositary)
from the Depositary or its nominee on behalf of any person having
a beneficial interest in a Global Unit and, the following
additional information and documents:
(A) If such beneficial interest is being delivered to the person
designated by the Depositary as being the beneficial owner,
a certification from such person to that effect (in
substantially the form of Exhibit B hereto);
---------
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer (as defined in Rule 144A under
the Act) in accordance with Rule 144A under the Act or
pursuant to an effective registration statement under the
Act, a certification to that effect (in substantially the
form of Exhibit B hereto);
---------
(C) if such beneficial interest is being transferred (I) to an
institutional "accredited investor" within the meaning of
subparagraph (a)(1), (a)(2), (a)(3) or (a)(7) of Rule 501
under the Act or (II) pursuant to an exemption from
registration in accordance with Rule 144 under the Act or
(III) pursuant to a private
-7-
placement exemption from the registration requirements of
the Act (in the case of clauses (I), (II) and (III), based
on an opinion of counsel if the Unit Agent so requests or if
the Company so requests and notifies the Unit Agent),
delivery of a Certificate of Transfer (in substantially the
form of Exhibit B hereto) and a certification from the
---------
applicable transferee (in substantially the form of Exhibit
-------
C hereto);
-
(D) if such beneficial interest is being transferred pursuant to
an exemption from registration in accordance with Rule 904
under the Act (and based on an opinion of counsel if the
Unit Agent so requests or if the Company so requests and
notifies the Unit Agent), a certification to that effect (in
substantially the forms of Exhibits B and D hereto); or
---------- -
(E) if such beneficial interest is being transferred in reliance
on another exemption from the registration requirements of
the Act (and based on an opinion of counsel if the Unit
Agent so requests or if the Company so requests and notifies
the Unit Agent), a certification to that effect (in
substantially the form of Exhibit B hereto),
---------
then the Unit Agent will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Unit Agent, the aggregate amount of the Global Unit to be reduced and,
following such reduction, the Company will execute and the Unit Agent
will authenticate and deliver to the transferee at the principal
office of the Unit Agent a Definitive Unit.
(ii) Definitive Units issued in exchange for a beneficial interest in
a Global Unit pursuant to this Section 5(d) shall be registered
in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct in writing the Unit
Agent. The Unit Agent shall deliver at the principal office of
the Unit Agent such Definitive Units to the
-8-
persons in whose names such Units are so registered.
(e) Restrictions on Transfer and Exchange of Global Units.
-----------------------------------------------------
Notwithstanding any other provisions of this Unit Agreement (other than the
provisions set forth in subsection (f) of this Section 5), a Global Unit may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Authentication of Definitive Units in
-------------------------------------
Absence of Depositary. If at any time:
---------------------
(i) the Depositary for the Units notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for
the Global Unit and a successor Depositary for the Global Unit is
not appointed by the Company within 90 days after delivery of
such notice; or
(ii) the Company, at its sole discretion, notifies the Unit Agent in
writing that it elects to cause the issuance of Definitive Units
under this Unit Agreement,
then the Company will execute, and the Unit Agent, upon written instruction of
the Chairman of the Board, President or any Vice President of the Company, shall
authenticate and deliver, Definitive Units, in an aggregate number equal to the
aggregate number of Units represented by the Global Unit, in exchange for such
Global Unit.
(g) Legends.
-------
(i) Except as permitted by the following paragraph (ii), each Unit
Certificate evidencing the Global Units and the Definitive Units
(and all Units issued in exchange therefor or substitution
thereof) shall bear a legend substantially to the following
effect:
-9-
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A PROMULGATED UNDER THE SECURITIES ACT) OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) PROMULGATED UNDER THE SECURITIES ACT) (AN
INSTITUTIONAL "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY, EXCEPT (A) TO THE ISSUER THEREOF, OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A PROMULGATED UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHED (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE UNIT AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY, (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 PROMULGATED UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 PROMULGATED UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE UNIT AGENT AND THE ISSUER SUCH CERTIFICATIONS, WRITTEN LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO,
-10-
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSONS" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
EACH UNIT REPRESENTED BY THIS SECURITY CONSISTS OF ONE NOTE OF $1,000
PRINCIPAL AMOUNT OF 14% SENIOR NOTES DUE 2004 (THE "NOTES") OF UNIFI
COMMUNICATIONS, INC. AND ONE WARRANT (THE "WARRANTS"), EACH WARRANT TO
PURCHASE INITIALLY 27.524674 SHARES OF COMMON STOCK OF UNIFI
COMMUNICATIONS, INC. THE NOTES AND WARRANTS WILL BE TRANSFERABLE BY A
HOLDER THEREOF SEPARATELY FROM EACH OTHER UPON THE EARLIEST TO OCCUR OF (i)
180 DAYS AFTER THE DATE OF ORIGINAL ISSUANCE, (ii) THE EFFECTIVE DATE OF
THE EXCHANGE OFFER (AS DEFINED IN THE INDENTURE), OR (iii) SUCH DATE AS MAY
BE DETERMINED BY THE INITIAL PURCHASER (AS DEFINED IN THE INDENTURE)."
(ii) Upon any sale or transfer of a Unit pursuant to Rule 144 under
the Act or an effective registration statement under the Act:
(A) in the case of any Unit that is a Definitive Unit, the Unit
Agent shall permit the registered holder thereof to exchange
such Unit for a Definitive Unit that does not bear the first
paragraph of the legend set forth in clause (i) above and
rescind any restriction on the transfer of such Unit; and
(B) any such Unit represented by a Global Unit shall not be
required to bear the first paragraph of the legend set forth
in clause (i) above but shall continue to be subject only to
the provisions of Section 5(c) hereof; provided, however,
-------- -------
that with respect to any request for an exchange of a Unit
that is represented by a Global Unit for a Definitive Unit
that does not bear the first paragraph of the legend set
forth above, which request is made in reliance upon Rule
144 under the Act (and based on an opinion of counsel if the
Company so requests and notifies the Unit Agent), the
registered
-11-
holder thereof shall certify in writing to the Unit Agent
that such request is being made pursuant to Rule 144 under
the Act (such certification to be substantially in the form
of Exhibit B hereto).
---------
(h) Cancellation of a Global Unit. At such time as all beneficial
-----------------------------
interests in a Global Unit have either been exchanged for Definitive Units,
redeemed, repurchased or cancelled, such Global Unit shall be returned to or
retained and cancelled by the Unit Agent.
(i) Obligations with Respect to Transfers and Exchanges of Definitive
-----------------------------------------------------------------
Units.
-----
(i) Prior to the Separation Date, to permit registrations of
transfers and exchanges, the
-12-
Company shall execute, and the Unit Agent is hereby authorized to
authenticate in accordance with provisions of Section 4 and this
Section 5, Definitive Units and Global Units as required pursuant
to the provisions of this Section 5.
(ii) All Definitive Units and Global Units issued upon any
registration of transfer or exchange of Definitive Units or
Global Units shall be the valid obligations of the Company,
entitled to the same benefits under this Unit Agreement as the
Definitive Units or Global Units surrendered upon the
registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any Unit,
the Unit Agent and the Company may deem and treat the person in
whose name any Unit is registered as the absolute owner of such
Unit, and neither the Unit Agent nor the Company shall be
affected by notice to the contrary.
(iv) No service charge shall be made to a holder for any registration
of transfer or exchange.
SECTION 6. Separation of the Notes and the Warrants. After the
----------------------------------------
Separation Date, the Notes and the Warrants represented by the Units shall be
separately transferable. Upon presentation after the Separation Date of any
Unit Certificate for exchange for Warrants and Notes or for registration of
transfer or otherwise, (i) the Unit Agent shall notify the Trustee and the
Warrant Agent of the number of Units so presented, the registered owner thereof,
such owner's registered address, the nature of any legends or restrictive
endorsements set forth on such Unit Certificate and any other information
provided by the registered holder thereof in connection therewith, (ii) the
Trustee, if the requirements of the Indenture for such transaction are met,
shall promptly authenticate, register and deliver a new Note or Notes equal in
aggregate principal amount to the Notes represented by such Unit Certificate in
accordance with the direction of such registered holder and (iii) the Warrant
Agent, if the requirements for such transaction are met, shall promptly
authenticate, register and deliver a new Warrant certificate or certificates for
the number of Warrants previously represented by such Unit Certificate in
accordance with the directions of such registered holder. The Warrant Agent and
the Trustee will notify the Unit Agent of any
-13-
additional requirements in connection with a particular transfer or exchange.
Following the Separation Date, no Unit Certificates shall be issued
upon registration of transfer or exchange of Unit Certificates, or otherwise.
SECTION 7. Rights of Unit Holders. The registered owner of a Unit
----------------------
Certificate shall have all the rights and privileges of a registered owner of
the principal amount of Notes represented thereby and the number of Warrants
represented thereby and shall be treated as the registered owner thereof for all
purposes.
SECTION 8. Unit Agent. The Unit Agent undertakes the duties and
----------
obligations imposed by this Agreement upon the following terms and conditions,
by which the Company and the holders of Units, by their acceptance thereof,
shall be bound:
(a) The statements contained herein and in the Unit Certificates
shall be taken as statements of the Company, and the Unit Agent assumes no
responsibility for the correctness of any of the same except such as
describe the Unit Agent. The Unit Agent assumes no responsibility with
respect to the distribution of the Unit Certificates except as herein
otherwise specifically provided.
(b) The Unit Agent shall not be responsible for any failure of the
Company to comply with any of the covenants in this Agreement, the Unit
Certificates, the Warrant Agreement or the Indenture.
(c) The Unit Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company) and the Unit Agent shall incur
no liability or responsibility to the Company or to any holder of any Unit
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the opinion or the advice of such counsel.
(d) The Unit Agent shall incur no liability or responsibility to the
Company or to any holder of any Unit Certificate for any action taken in
reliance on any Unit Certificate, certificate of shares, notice,
resolution, waiver, consent, order, certificate, or other paper, document
or instrument believed by the Unit Agent to be genuine and to have been
signed, sent or presented by the proper party or parties.
-14-
(e) The Company agrees to pay to the Unit Agent compensation for all
services rendered by the Unit Agent in connection with the execution and
performance of this Agreement at such rates as have been separately agreed
to by the Company and the Unit Agent and to reimburse the Unit Agent for
all expenses, taxes and governmental charges and other charges of any kind
and nature incurred by the Unit Agent in the execution and performance of
this Agreement. The Company shall indemnify the Unit Agent and its agents
and save each of them harmless against any and all losses, liabilities and
expenses, including judgments, costs and counsel fees and the costs and
expenses of investigating or defending any claim of such liability, for any
action taken or omitted by the Unit Agent or its agents in the execution of
and performance of its obligations under this Agreement except as a result
of its negligence or bad faith. The Unit Agent shall notify the Company
promptly of any claim for which it may seek indemnity; provided that
--------
failure by the Unit Agent to so notify the Company shall not relieve its
obligations hereunder. The Company shall defend the claim and the Unit
Agent shall cooperate in the defense. The Unit Agent may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its
consent, which consent shall not be unreasonably withheld.
(f) The Unit Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to
involve expense unless the Company or one or more registered holders of
Unit Certificates shall furnish the Unit Agent with security and indemnity
reasonably satisfactory to it for any costs and expenses which may be
incurred, but this provision shall not affect the power of the Unit Agent
to take such action as it may consider proper, whether with or without any
such security or indemnity. All rights of action under this Agreement or
under any of the Units may be enforced by the Unit Agent without the
possession of any of the Unit Certificates or the production thereof at any
trial or other proceeding relative thereto, and any such action, suit or
proceeding instituted by the Unit Agent shall be brought in its name as
Unit Agent and any recovery of judgment shall be for the ratable benefit of
the registered holders of the Units, as their respective rights or
interests may appear.
(g) The Unit Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Units or other
securities of the Company or become
-15-
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act
as fully and freely as though it were not the Unit Agent under this
Agreement. Nothing herein shall preclude the Unit Agent from acting in any
other capacity for the Company or for any other legal entity.
(h) The Unit Agent shall act hereunder solely as agent for the
Company, its duties shall be determined solely by the provisions hereof and
no implied covenants or obligations shall be read into this Agreement
against the Unit Agent. The Unit Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement
except for its own negligence or bad faith.
(i) In the absence of bad faith on its part, the Unit Agent may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Unit Agent and conforming to the requirements of this Agreement.
However, the Unit Agent shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Agreement.
(j) The Unit Agent may rely and shall be fully protected in relying
upon any document believed by it to be genuine and to have been signed or
presented by the proper person. The Unit Agent need not investigate any
fact or matter stated in the documents.
(k) The Unit Agent may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed and
monitored in good faith and with due care.
(l) The Company will perform, execute, acknowledge and deliver or
cause to be performed, executed, acknowledged or delivered all such further
acts, instruments and assurances as may reasonably be required by the Unit
Agent in order to enable it to carry out or perform its duties under this
Agreement.
SECTION 9. Change of Unit Agent. The Unit Agent may resign at any
--------------------
time by so notifying the Company. If the Unit Agent shall resign or become
incapable of acting as Unit Agent, the Company shall appoint a successor to such
Unit Agent. If the Company shall fail to make such appointment within a period
of 30
-16-
days after it has been notified in writing of such incapacity or resignation by
the Unit Agent or by the registered holder of a Unit Certificate, then the
registered holder of any Unit Certificate may apply to any court of competent
jurisdiction for the appointment of a successor to the Unit Agent. Pending
appointment of a successor to such Unit Agent, either by the Company or by such
a court, the duties of the Unit Agent shall be carried out by the Company. After
appointment, the successor to the Unit Agent shall be vested with the same
powers, rights, duties and responsibilities as it if had been originally named
as Unit Agent without further act or deed; but the former Unit Agent, after the
payment of all outstanding amounts owed to it hereunder, shall deliver and
transfer to the successor to the Unit Agent any property at the time held by it
hereunder and execute and deliver any further assurance, conveyance, act or deed
necessary for such purpose. Failure to give any notice provided for in this
Section 9, however, or any defect therein, shall not affect the legality or
validity of the appointment of a successor to the Unit Agent. The provisions of
Section 8 with respect to any Unit Agent shall survive such Unit Agents
resignation or removal and the termination of this Agreement.
SECTION 10. Successor Unit Agent by Merger, Etc. If the Unit Agent
-----------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Unit Agent.
SECTION 11. Notices to the Company and Unit Agent, Trustee and
--------------------------------------------------
Transfer Agent. Any notice or demand authorized by this Agreement to be given
--------------
or made to or on the Company shall be sufficiently given or made when and if
telecopied to the number indicated below or deposited in the mail, first class
or registered, postage paid, addressed (until another telecopy number or address
is filed in writing by the Company with the Unit Agent, the Trustee and the
Warrant Agent), as follows:
UNIFI Communications, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: General Counsel
With a copy to:
-00-
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
In case the Company shall fail to maintain such office or shall fail
to give such notice of any change in the location thereof, presentations may be
made and notices and demands may be served at the principal office of the Unit
Agent.
Any notice pursuant to this Agreement to be given by the Company or by
registered holder(s) of any Unit Certificate to the Unit Agent, the Trustee or
the Warrant Agent shall be sufficiently given when and if telecopied to the
number indicated below or deposited in the mail, first class or registered,
postage prepaid, addressed (until another telecopy number or address is filed in
writing by the class or registered, postage prepaid, addressed (until another
telecopy number or address is filed in writing by the Unit Agent, the Trustee
and the Warrant Agent with the Company), as follows:
Fleet National Bank
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust
Administration
Any notice to be mailed to a registered holder of Units shall be
mailed to each holder at its address as it appears on the register of Units
maintained by the Unit Agent. Copies of any such communication shall also be
mailed to the Unit Agent, the Trustee and the Warrant Agent. The Unit Agent
shall furnish the Company, the Trustee or the Warrant Agent promptly when
requested with a list of registered holders of Units for the purpose of mailing
any notice or communication to the registered holders of the Units, the Notes or
the Common Stock and at such other times as may be reasonably requested.
SECTION 12. Supplements and Amendments. The Company and the Unit
--------------------------
Agent may from time to time supplement or amend this Agreement without the
approval of any registered holders of Units in order to cure any ambiguity or to
correct or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the
-18-
Company, the Trustee, the Warrant Agent and the Unit Agent may deem necessary or
desirable and which shall not, as evidenced by an opinion of counsel delivered
to the Unit Agent, the Trustee and the Warrant Agent, in any way adversely
affect the interests of the registered holders of Units. Any amendment or
supplement to this Agreement that has a material adverse effect on the interests
of Unit holders shall require the written consent of the registered holders of
not less than a majority of the outstanding Units. Each of the Unit Agent, the
Trustee and the Warrant Agent shall be entitled to receive and, subject to
Section 8 shall be fully protected in relying upon an officers' certificate and
opinion of counsel as conclusive evidence that any such amendment or supplement
is authorized or permitted hereunder, that it is not inconsistent herewith, and
that it will be valid and binding upon the Company in accordance with its terms.
The Company may not sign any amendment or supplement until the Company's board
of directors approves it.
SECTION 13. Successors. All the covenants and provisions of this
----------
Agreement by or for the benefit of the Company, the Trustee, the Warrant Agent
or the Unit Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
SECTION 14. Governing Law. THIS AGREEMENT AND EACH UNIT CERTIFICATE
-------------
ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
SECTION 15. Benefits of This Agreement. Nothing in this Agreement
--------------------------
shall be construed to give to any person or corporation other than the Company,
the Trustee, the Warrant Agent, the Unit Agent and the registered holders of the
Units any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Company, the
Trustee, the Warrant Agent, the Unit Agent and the registered holders of the
Unit Certificates.
SECTION 16. Counterparts. This Agreement may be executed in any
------------
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
SECTION 17. Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning of any provision hereof.
-19-
SECTION 18. Severability. The provisions of this Unit Agreement are
------------
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Unit Agreement in any jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
UNIFI COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name:
Title:
FLEET NATIONAL BANK,
as Unit Agent
By: /s/ Xxxxxxx Xxxxxx
---------------------
Name:
Title:
FLEET NATIONAL BANK,
as Trustee
By: /s/ Xxxxxxx Xxxxxx
---------------------
Name:
Title:
FLEET NATIONAL BANK,
as Warrant Agent
By: /s/ Xxxxxxx Xxxxxx
---------------------
Name:
Title:
EXHIBIT A
[FORM OF SECURITY]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A PROMULGATED UNDER THE SECURITIES ACT) OR
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) PROMULGATED UNDER THE SECURITIES ACT) (AN
INSTITUTIONAL "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN THREE
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THIS SECURITY, EXCEPT (A) TO THE ISSUER THEREOF, OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A PROMULGATED UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHED (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE UNIT AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY, (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 PROMULGATED UNDER THE
SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 PROMULGATED UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE UNIT AGENT AND THE ISSUER SUCH CERTIFICATIONS, WRITTEN LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO,
A-1
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSONS" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
EACH UNIT REPRESENTED BY THIS SECURITY CONSISTS OF ONE NOTE OF $1,000
PRINCIPAL AMOUNT OF 14% SENIOR NOTES DUE 2004 (THE "NOTES") OF UNIFI
COMMUNICATIONS, INC. AND ONE WARRANT (THE "WARRANTS"), EACH WARRANT TO
PURCHASE INITIALLY 27.524674 SHARES OF COMMON STOCK OF UNIFI
COMMUNICATIONS, INC. THE NOTES AND WARRANTS WILL BE TRANSFERABLE BY A
HOLDER THEREOF SEPARATELY FROM EACH OTHER UPON THE EARLIEST TO OCCUR OF (i)
180 DAYS AFTER THE DATE OF ORIGINAL ISSUANCE, (ii) THE EFFECTIVE DATE OF
THE EXCHANGE OFFER (AS DEFINED IN THE INDENTURE), OR (iii) SUCH DATE AS MAY
BE DETERMINED BY THE INITIAL PURCHASER (AS DEFINED IN THE INDENTURE)."
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR UNITS IN
CERTIFICATED FORM, THIS UNIT MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]/1/
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES
----------
/1/ This paragraph is to be included only if the Unit is in global form.
X-0
XX XXXX & XX. XX TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE
INDENTURE.
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, AND THE RULES AND REGULATIONS THEREUNDER, THE NOTE
COMPRISING A PART OF THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT; FOR EACH $1,000 OF PRINCIPAL AMOUNT (1) THE "ISSUE PRICE" IS $
; (2) THE "STATED REDEMPTION PRICE AT MATURITY" IS $ ; (3) THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT (THE EXCESS OF THE "STATED REDEMPTION
PRICE AT MATURITY" OVER THE "ISSUE PRICE") IS $ ; (4) THE ISSUE DATE
IS FEBRUARY 21, 1997; AND (5) THE YIELD TO MATURITY (COMPOUNDED SEMI-
ANNUALLY) IS %.
UNIFI COMMUNICATIONS, INC.
175,000 Units Consisting of $175,000,000
Principal Amount
14% Senior Notes due 2004 and
175,000 Warrants to
purchase initially
4,816,818 Shares
of Common Stock of
Unifi Communications, Inc.
No. CUSIP No.
Unifi Communications, Inc., a Delaware corporation ("the Company"),
hereby certifies that [ ] is the owner of [
] Units as described above, transferable only on the books of the Company by the
holder thereof in person or by his or her duly authorized attorney, on surrender
of the Certificate properly endorsed.
Each Unit consists of $1,000 principal amount of 14% Senior Notes due
2004 of the Company (the "Notes") and one Warrant (the "Warrants") to purchase
initially 27.524674 shares of common stock, par value $.01 per share, of the
Company (the "Common Stock"). This Unit is issued pursuant to the Unit
Agreement (the "Unit Agreement") dated as of February 21, 1997 between the
Company and Fleet National Bank, as unit agent (the "Unit Agent"), and is
subject to the terms and provisions contained therein, all of which terms and
provisions the holder of this Unit Certificate consents by acceptance hereof.
The terms of the Notes are governed by an Indenture (the "Indenture")
A-3
dated as of February 21, 1997 between the Company and Fleet National Bank, as
trustee (the "Trustee"), and are subject to the terms and provisions contained
therein, all of which terms and provisions the holder of this Unit Certificate
consents by acceptance hereof. The Notes are also subject to the terms and
provisions of the Escrow Agreement (the "Escrow Agreement") dated as of February
21, 1997 between the Company and Fleet National Bank, as escrow agent (the
"Escrow Agent"), all of which terms and provisions the holder of this Unit
Certificate consents by acceptance hereof. The terms of the Warrants are
governed by the warrant agreement (the "Warrant Agreement") dated as of February
21, 1997 between the Company and Fleet National Bank, as warrant agent (the
"Warrant Agent"), and are subject to the terms and provisions contained therein,
all of which terms and provisions the holder of this Unit Certificate consents
by acceptance hereof.
Reference is made to the further provisions in each of the Unit
Agreement, Indenture, the Warrant Agreement, the Escrow Agreement and this Unit
Certificate, which will for all purposes have the same effect as if set forth at
this place. Copies of the Unit Agreement, the Indenture, the Warrant Agreement
and the Escrow Agreement are on file at the office of Fleet National Bank, 0
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate Trust
Administration, and are available to any holder on written request and without
cost.
The Notes and the Warrants represented by this Unit Certificate shall
be non-detachable and not separately transferable until the earliest to occur of
(i) 180 days after the date of original issuance, (ii) the effective date of the
Exchange Offer or (iii) such date as may be determined by the Initial Purchaser
(as defined in the Indenture) and specified to the Company, the Trustee, the
Warrant Agent and the Unit Agent in writing.
Dated:
UNIFI COMMUNICATIONS, INC.
By:
Name:
Title:
Certificate of Authentication:
This is one of the Units
referred to in the within
mentioned Unit Agreement.
A-4
FLEET NATIONAL BANK,
as Unit Agent
By:_____________________________
Authorized Signatory
A-5
UNIFI COMMUNICATIONS, INC.
175,000 Units Consisting of $175,000,000 Principal Amount
14% Senior Notes due 2004 and
175,000 Warrants to purchase initially 4,816,818
Shares of Common Stock
of UNIFI Communications, Inc.
PROVISIONS RELATING TO THE
14% SENIOR NOTES DUE 2004
14% SERIES B SENIOR NOTES DUE 2004
1. Indenture. UNIFI Communications, Inc., a Delaware corporation
---------
(the "Company"), issued the Securities (as defined below) under an Indenture,
dated as of February 21, 1997 (the "Indenture"), between the Company and Fleet
National Bank, a national banking association, as trustee (herein called the
"Trustee," which term includes any successor Trustee under the Indenture). This
Security is one of a duly authorized issue of Initial Securities of the Company
designated as its 14% Senior Notes due 2004 (the "Initial Securities"). The
Securities are limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $175,000,000. The Securities include the Initial
Securities and the Exchange Securities (as defined below) issued in exchange for
the Initial Securities pursuant to the Indenture. The Initial Securities and
the Exchange Securities are treated as a single class of securities under the
Indenture, to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
A-6
2. Redemption.
----------
(a) Optional Redemption. The Securities are subject to redemption,
-------------------
at the option of the Company, in whole or in part, at any time on or after March
1, 2001, upon not less than 30 nor more than 60 days' prior notice, at the
following Redemption Prices (expressed as percentages of the principal amount)
plus accrued and unpaid interest, if any, to the Redemption Date if redeemed
during the 12-month period beginning on March 1 of the years indicated below:
Redemption
Year Price
----------
2001 114.000%
2002 107.000%
2003 and thereafter 103.500%
(b) Optional Redemption upon Certain Public Offerings. In the event
-------------------------------------------------
that on or prior to March 1, 2000, the Company consummates one or more public
offerings of its Common Stock, the Company may, at its option, redeem from the
proceeds of such public offerings no later than 60 days following the
consummation of such offering, up to 33% of the aggregate principal amount of
the Securities originally issued at a Redemption Price equal to 114% of the
aggregate principal amount thereof on the date of redemption of the Securities
so redeemed; provided, however, that immediately after giving effect to any such
-------- -------
redemption, not less than 67% of the aggregate principal amount of the
Securities originally issued remains outstanding.
(c) Interest Payments. In the case of any redemption of Securities,
-----------------
interest installments whose Stated Maturity is on or prior to the Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof)
for whose redemption and payment provision is made in accordance with the
Indenture shall cease to bear interest from and after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this Security
------------------
in part only, a new Security or Securities for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
3. Offers to Purchase. Sections 4.12 and 4.13 of the Indenture
------------------
provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to further limitations contained therein, the Company
shall make an offer to
A-7
purchase certain amounts of the Securities in accordance with the procedures set
forth in the Indenture.
4. Defaults and Remedies. If an Event of Default shall occur and be
---------------------
continuing, the principal amount of all of the outstanding Securities, plus all
accrued and unpaid interest, if any, to and including the date the Securities
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
5. Defeasance. The Indenture contains provisions (which provisions
----------
apply to this Security) for defeasance at any time of (a) the entire
indebtedness of the Company under this Security and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
6. Amendments and Waivers. The Indenture permits, with certain
----------------------
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of not less than two-thirds in aggregate principal amount of the
Securities at the time outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and this Security and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof whether or not
notation of such consent or waiver is made upon this Security.
7. Denominations, Transfer and Exchange. The Securities are issuable
------------------------------------
only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Securities are exchangeable for a like
aggregate principal amount of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the security
register of the Company, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
A-8
the Borough of Manhattan in The City of New York or at such other office or
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
8. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the Company, the
Trustee nor any agent shall be affected by notice to the contrary.
9. Governing Law. This Security shall be governed by and construed
-------------
in accordance with the laws of the State of New York, without regard to
conflicts of law principles.
10. Registration Rights. Pursuant to the Registration Rights
-------------------
Agreement between the Company and the Initial Purchaser, the Company will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Initial Security shall have the right to exchange this Initial Security for the
Company's Series B 14% Senior Notes due 2004 (the "Exchange Securities"), which
have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects to the Initial Securities. The
Holders of the Initial Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement.
11. Escrow Agreement. Pursuant to the terms of the Escrow Agreement
----------------
dated as of February 21, 1997 between the Company and Fleet National Bank as
Escrow Agent, the Company has deposited the Initial Escrow Amount into the
Escrow Account. The Initial Escrow Amount, together with the proceeds from the
investment thereof, represents funds that will be sufficient to pay two years'
interest on the Securities. The Trustee, for the
A-9
benefit of the holders of the Securities, has been granted a security interest
in the Collateral.
A-10
SCHEDULE OF EXCHANGES OF CERTIFICATED UNITS/2/
-------------------------------------------
The following exchanges of a part of this Global Unit for certificated Units
have been made:
Number of
Units of
Amount of Amount of this Global
decrease in increase in Unit Signature of
Number of Number of following authorized
Date of Units of this Units of this such decrease officer of
Exchange Global Unit Global Unit (or increase) Unit Agent
--------------------------------------------------------------------------------
----------
/2/ This is to be included only if the Unit is in global form.
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF UNITS
Re: Units (the "Units") each consisting of $1,000 principal amount of 14%
Senior Notes due 2004 of UNIFI Communications, Inc. and one Warrant (the
"Warrants") to purchase initially 27.524674 shares of Common Stock of UNIFI
Communications, Inc.
This Certificate relates to ____ Units held in* ___ book-entry or*
_______ certificated form by ______ (the "Transferor").
The Transferor:*
[ ] has requested the Unit Agent by written order to deliver in exchange
-
for its beneficial interest in the Global Unit held by the Depositary a Unit or
Units in definitive, registered form equal to its beneficial interest in such
Global Unit (or the portion thereof indicated above); or
[ ] has requested the Unit Agent by written order to exchange or register
-
the transfer of a Unit or Units.
In connection with such request and in respect of each such Unit, the
Transferor does hereby certify that Transferor is familiar with the Unit
Agreement relating to the above captioned Units, and that the transfer of this
Unit does not require registration under the Securities Act of 1933, as amended
(the "Act"), because*:
[ ] Such Unit is being acquired for the Transferor's own account, without
-
transfer (in satisfaction of Section 5 of the Unit Agreement).
[ ] Such Unit is being transferred (i) to a qualified institutional buyer
-
(as defined in Rule 144A under the Act) in reliance on Rule 144A or (ii)
pursuant to an exemption from registration in accordance with Rule 904 under the
Act (and, in the case of clause (ii), based on an opinion of counsel if the
Company or the Unit Agent so requests) and together with a certification in
substantially the form of Exhibit D to the Unit Agreement in accordance with
Regulation S under the Act.
B-1
[_] Such Unit is being transferred (i) in accordance with Rule 144 under
the Act (and based on an opinion of counsel if the Company or the Unit Agent so
requests) or (ii) pursuant to an effective registration statement under the Act.
[_] Such Unit is being transferred to an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Act
pursuant to a private placement exemption from the registration requirements of
the Act (together with a certification in substantially the form of Exhibit C to
the Unit Agreement and based on an opinion of counsel if the Company or the Unit
Agent so requests).
[_] Such Unit is being transferred in reliance on another exemption from
the registration requirement of the Act (and based on an opinion of counsel if
the Company or the Unit Agent so requests).
______________________________
[INSERT NAME OF TRANSFEROR]
By: _________________________
Date: _____________
*Check applicable box.
B-2
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED
BY ACCREDITED INSTITUTIONS
____________, ____
Fleet National Bank,
as Unit Agent
Attention: Corporate Trust
Department
Ladies and Gentlemen:
In connection with our proposed purchase of certain Units (the
"UNITS") consisting of $[ ] aggregate principal amount of 14% Senior Notes
due 2004 and [ ] Warrants to purchase initially 27.524674 shares of common
stock, par value $.01 per share, of UNIFI Communications, Inc., a Delaware
corporation (the "Company"), we represent that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "ACT") (an INSTITUTIONAL "ACCREDITED INVESTOR"), or an entity in which
all of the equity owners are Institutional Accredited Investors;
(ii) any purchase of Units will be for our own account or for the
account of one or more other Institutional Accredited Investors as to which
we exercise sole investment discretion;
(iii) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks of
purchasing Units and we and any accounts for which we are acting are able
to bear the economic risks of our or their investment;
(iv) we are not acquiring Units with a view to any distribution
thereof in a transaction that would violate the Act or the securities laws
of any State of the United States or any other applicable jurisdiction;
provided that
C-1
the disposition of our property and the property of any accounts for which
we are acting as fiduciary shall remain at all times within our control;
and
(v) we acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto, as
we deem necessary in connection with our decision to purchase Units.
We understand that the Units have not been registered under the Act,
and we agree, on our own behalf and on behalf of each account for which we
acquire any Units, that such Units may be offered, resold, pledged or otherwise
transferred only (i) to a person whom we reasonably believe to be a qualified
institutional buyer (as defined in Rule 144A under the Act) in a transaction
meeting the requirements of Rule 144A under the Act, outside the United States
to a foreign person in a transaction meeting the requirements of Rule 904 under
the Act (and, unless such transfer occurs in a transaction meeting the
requirements of Rule 144A, based upon an opinion of counsel if the Company or
you so requests), in a transaction meeting the requirements of another exemption
under the Securities Act (and based on an opinion of counsel if the Company or
you so requests), (ii) to the Company or (iii) pursuant to an effective
registration statement under the Act, and, in each case, in accordance with any
applicable securities laws of any State of the United States or any other
applicable jurisdiction. We understand that the Unit Agent will not be required
to accept for registration of transfer any Units, except upon presentation of
evidence satisfactory to the Company that the foregoing restrictions on transfer
have been complied with. We further understand that the Units purchased by us
will be in the form of definitive physical certificates and that such
certificates will bear a legend reflecting the substance of this paragraph. We
further agree to provide to any person acquiring any of the Units from us a
notice advising such person that resales of the Units are restricted as stated
herein.
We acknowledge that you, the Company and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
C-2
THIS LETTER SHALL BE DEEMED TO BE CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Very truly yours,
_________________________________
[Name of Transferor]
By:______________________________
Name:
Title:
Address:
C-3
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
_______________, ____
Fleet National Bank,
as Unit Agent
Attention: Corporate Trust
Department
Ladies and Gentlemen:
In connection with our proposed sale of certain Units (the "UNITS")
consisting of $[ ] aggregate principal amount of 14% Senior Notes due 2004
and [ ] Warrants to purchase initially 27.524674 shares of common stock,
par value $.01 per share, of UNIFI Communications, Inc., a Delaware corporation
(the "COMPANY"), we represent that:
(i) the offer of the Units was not made to a person in the United
States;
(ii) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the facilities
of a designated off-shore securities market and neither we nor any person
acting on our behalf knows that the transaction has been prearranged with a
buyer in the United States;
(iii) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act of 1933, as amended (the
"ACT"), as applicable;
(iv) the transaction is not part of a plan or scheme by us to evade
the registration requirements of the Act; and
(v) we have advised the transferee of the transfer restrictions
applicable to the Units.
D-1
You, the Company and counsel for the Company are entitled to rely upon
this letter and you are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________
Name:
Title:
Address:
D-2
