EXHIBIT 10.25
NEITHER THIS CONVERTIBLE TERM NOTE NOR THE SHARES OF COMMON STOCK OF UNIFI
COMMUNICATIONS, INC. (THE "COMPANY") INTO WHICH IT MAY BE CONVERTED HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR ANY STATE SECURITIES
LAWS, AND CONSEQUENTLY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, TRANSFERRED
OR OTHERWISE DISPOSED OF ABSENT AN EFFECTIVE REGISTRATION STATEMENT UNDER
APPLICABLE FEDERAL AND STATE SECURITIES LAWS COVERING SUCH SECURITY(IES) OR AN
OPINION OF LEGAL COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED.
CONVERTIBLE TERM NOTE
Lowell, Massachusetts
$2,049,315.00 April 1, 1997
FOR VALUE RECEIVED, the undersigned UNIFI Communications, Inc., a Delaware
corporation having a principal place of business at 000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Maker") promises to pay to the order of
Control Data Systems, Inc., a Delaware corporation at its office at 0000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxx 00000-0000 ("Holder") or at such
other place as Holder may from time to time designate in writing, the principal
sum of Two Million Forty, Nine Thousand Three Hundred Fifteen Dollars
($2,049,315.00) together with interest on the unpaid principal balance hereof
from time to time at a rate per annum equal to fourteen percent (14%).
1. Maturity. If not sooner paid pursuant to paragraph 2 below or
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otherwise, or converted pursuant to paragraph 3 or 4 below, all outstanding
principal and accrued and unpaid interest thereon shall be due and payable to
Holder no later than 6:00 p.m. Eastern time on April 1, 2000 or, if such date is
not a business day, then by 6:00 p.m. Eastern time on the first business day
following such date (the "Maturity Date").
2. Payment of Interest. Interest on the outstanding principal balance of
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this Note shall accrue at a rate per annum of fourteen percent (14%) and shall
be payable semiannually on October 1 and April 1 of each calendar year,
commencing with October 1, 1997. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months, and, in the case of a partial
month, the actual number of days elapsed.
3. Overdue Payments. To the extent lawful, any payment of principal or
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interest not made when due shall bear interest until paid at a rate per annum
equal to two percent (2%) in excess of the above-stated rate.
4. Redemption at Option of Holder. In the event that Maker shall effect
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an initial public offering by it of shares of its conu-non stock, $0.01 par
value per share ("Common Stock"), then at any time on and after April 1, 1999
and prior to the Maturity Date, Holder may demand payment of all (but not less
than all) of the outstanding principal balance of this Note together with all
accrued and unpaid interest thereon. Any such demand by Holder shall be in
writing to Maker at its address listed above (Attention: Chief Financial
Officer). Upon receipt of Xxxxxx's written notice demanding payment, Maker
shall make such payment to Xxxxxx, against surrender by Xxxxxx to Maker of the
original of this Note, no later than the fifth (5th) business day following
Maker's receipt of Xxxxxx's notice.
5. Conversion into Common Stock. In the event that Maker shall effect an
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initial public offering by it of shares of Common Stock at any time prior to the
Maturity Date, Holder shall have the right to convert all (but not less than
all) of the outstanding principal balance of this Note together with all accrued
and unpaid interest thereon into shares ("Conversion Shares") of Common Stock at
a conversion price per share equal to the lesser of (i) the price per share to
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the public of the shares of Common Stock sold by Maker in such initial public
offering, or (ii) Fifteen Dollars ($15.00) per share. Any such conversion shall
be effected by Xxxxxx providing notice thereof in writing to Maker at its
address first listed above (Attention: Chief Financial Officer), which notice
shall be irrevocable by Holder, and stating a date, not less than thirty (30)
day, s after the date such notice is received by Maker, for the closing of the
conversion. At such closing, to take place at the offices of Maker set forth
above, Maker shall deliver one or more certificates representing the Conversion
Shares to Holder against receipt of the original of this Note from Holder.
Notwithstanding the date of actual closing, the conversion by Holder shall be
deemed to have occurred on and as of the date Maker receives the required
written notice thereof from Holder. Upon conversion of this Note into Common
Stock by Holder as aforesaid, all obligations of Maker hereunder as to payment
of principal and interest shall cease and be of no further force or effect, and
Maker's sole obligation thereafter shall be to deliver the certificates)
representing the Conversion Shares to Holder against receipt of the original of
this Note.
6. This Note may be prepaid, in whole or from time to time in part,
without premium or penalty.
7. All payments hereunder shall be in lawful money of the United States
which shall be legal tender for public and private debts at the time of payment.
8. If any of the following events ("Events of Default") occurs:
(a) failure by Maker to pay the principal of this Note when same
becomes due and payable, or the failure by Maker to pay interest on this
Note when same becomes I due and payable and such failure continues for a
period of ten (10) days;
(b) default by Maker in performance of any of its other obligations
under this Note, which default shall not have been remedied within thirty
(30) days after Maker shall have received written notice of such default by
Xxxxxx;
(c) the liquidation or dissolution of Maker;
(d) the entry of a decree or order by a court having competent
jurisdiction adjudging Maker bankrupt or insolvent, or approving as
properly filed a petition seeking arrangement, adjustment or composition of
or in respect of Maker under federal bankruptcy laws or any other
applicable federal or state law, or appointing a receiver, liquidator,
assignee, trustee or other similar official of Maker or its assets, and the
continuance of any such decree or order unstayed and in effect for a period
of sixty (60) consecutive days; or
(e) the institution by Maker of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings
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against it, or the filing by it of a petition seeking relief under federal
bankruptcy laws or any other applicable federal or state law or the
appointment with its consent of a receiver, liquidator, assignee, trustee
or other similar official of Maker or its assets, or the making by it of an
assignment for the benefit of creditors generally (provided, that in the
case of any such filing or appointment that is involuntary, the applicable
proceeding or appointment is not dismissed or terminated, respectively,
within sixty (60) days), or the admission by it in writing of its inability
to pay its debts generally as they become due;
then (unless all Events of Default shall theretofore have been remedied) Holder
may, at its option, by written notice to Maker, declare due and payable the
entire amount of outstanding principal and accrued interest then remaining
unpaid thereon, whereupon the same shall forthwith become due and payable.
9. This Note is executed as a sealed instrument and shall be governed by
and construed and enforced in accordance with the internal domestic laws of the
Commonwealth of Massachusetts, without reference to its conflict of laws
provisions.
IN WITNESS WHEREOF, Maker has caused this Convertible Term Note to be
executed by its duly authorized representative and its corporate seal to be
hereunto affixed as of the date first above written.
UNIFI COMMUNICATIONS, INC.
ATTEST:
By:
___________________________
_________________________
Title:
_________________________
[Corporate Seal]
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