<PAGE>
File No. 333-______________
As filed with the Securities and Exchange, Commission on March 3, 1998.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
UNIFI COMMUNICATIONS, INC.
-------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 04-3097640
-------- ----------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
900 Chelmsford Street, Lowell, Massachusetts 01851
-------------------------------------------- -----
(Address of principal executive offices) Zip Code
UNIFI Communications, Inc. Amended and Restated 1993 Stock Option Plan
----------------------------------------------------------------------
(Full title of the plan)
Copy to:
Q. Ellis Telford, Esq.
General Counsel and Secretary
UNIFI Communications, Inc.
900 Chelmsford Street
Lowell, Massachusetts 01851
---------------------------
(Name and address of agent for service)
(978) 551-7500
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share* price* fee
- --------------------------------------------------------------------------------
Common Stock, 5,065,481 $3.11* $15,753,646* $4,647.33
$.01 par value shares
per share
- ---------------------------
* This estimate is made pursuant to Rule 457(h) solely for the purpose of
determining the registration fee. It is not known how many shares will be
purchased under the Plan or at what prices such shares will be purchased. The
above calculation is based on the offering of 5,065,481 shares at a purchase
price of $3.11 per share, which was the fair market value of a share of Common
Stock as determined by the Registrant's Board of Directors on February 9, 1998
for the purpose of granting incentive stock options under the Internal Revenue
Code of 1986, as amended.
<PAGE>
PART II
-------
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
- ------ ---------------------------------------
The following documents filed by UNIFI Communications, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are hereby
incorporated by reference in this Registration Statement: (1) the Registrant's
Registration Statement on Form S-4 (Registration No. 333-25521) and the Exchange
Offer Prospectus dated July 28, 1997 forming a part thereof, each as filed with
the Securities and Exchange Commission; and (2) the Registrant's Quarterly
Reports on Form 10-Q for the quarters ended June 30, 1997 and September 30,
1997.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act prior to the filing of
a post-effective amendment that indicates that all securities offered hereby
have been sold or that deregisters all of such securities then remaining unsold,
shall be deemed to be incorporated by reference into this Registration Statement
and to be a part hereof from the date of filing of such documents.
RECENT DEVELOPMENTS
UNIFI Communications, Inc. has been informed by Arthur Andersen LLP, its
independent public accountants, that their report on UNIFI Communications Inc.'s
December 31, 1997 financial statements will contain an explanatory fourth
paragraph addressing the significant uncertainty regarding UNIFI Communications,
Inc. ability to continue operating as a going concern unless UNIFI
Communications, Inc. is able to raise sufficient capital to fund operations for
1998 prior to the release of the audit report.
Item 4. Description of Securities
- ------ -------------------------
The following description of the Registrant's Common Stock is a summary and
does not purport to be complete and is qualified in its entirety by reference to
the applicable provisions of the General Corporation Law of the State of
Delaware and the Registrant's Certificate of Incorporation, as amended.
General
The Company was incorporated in 1990 pursuant to the laws of Delaware. The total
authorized capital stock of the Company is 74,715,500 shares.
Common Stock
The Company's Certificate of Incorporation, as amended, authorizes 50 million
shares of Common Stock, $0.01 par value per share, 3,864,205 shares of which are
issued and outstanding at February 24, 1998. Subject to rights of the holders of
any Convertible Preferred Stock which may be outstanding, each holder of Common
Stock on the record date is entitled to receive such dividends as may be
declared by the Board of Directors out of funds legally available therefor, and,
in the event of liquidation, to share pro rata in any distribution of the
Company's assets after payment or providing for the payment of liabilities and
the liquidation preference of any outstanding Convertible Preferred Stock. Each
holder of Common Stock is entitled to one vote for each share held of record on
the applicable record date on all matters presented to a vote of stockholders,
including the election of directors. Holders of Common Stock have no cumulative
voting rights or preemptive right to purchase or subscribe for any stock or
other securities and there are no conversion rights or redemption or sinking
fund provisions with respect to such stock.
<PAGE>
Item 5. Interests of Named Experts and Counsel
- ------ --------------------------------------
The legality of the securities registered hereunder will be passed upon for
the Registrant by Q. Ellis Telford, Esq., Lowell, Massachusetts. Mr. Telford is
employed by the Registrant as its General Counsel and Secretary. Mr. Telford
holds options to purchase an aggregate of 12,256 shares of common stock of the
Registrant at exercise prices per share between $1.05 and $3.11.
Item 6. Indemnification of Directors and Officers
- ------ -----------------------------------------
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to indemnify its officers and directors and certain other persons to
the extent and under the circumstances set forth therein.
The Registrant's by-laws provide for indemnification of officers and
directors of the Registrant and certain other persons against liabilities and
expenses incurred by any of them in certain stated proceedings and under certain
stated conditions.
The Registrant maintains insurance for the benefit of its directors and
officers insuring such persons against certain liabilities, including
liabilities under the securities laws.
Item 8. Exhibits
- ------ --------
The following exhibits are part of this Registration Statement:
4.1 Certificate of Incorporation of the Registrant, as amended.
(Incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-4, Registration No. 333-25521.)
4.2 By-Laws of the Registrant. (Incorporated by reference to Exhibit 3.2
to the Registrant's Registration Statement on Form S-4, Registration
No. 333-25521.)
4.3 UNIFI Communications, Inc. Amended and Restated 1993 Stock Option
Plan, as amended.
4.4 Form of Incentive Stock Option Agreement.
5.1 Opinion of Q. Ellis Telford, Esq. as to the legality of the securities
being registered.
23.1 Consent of Q. Ellis Telford, Esq. (included in Exhibit 5.1).
<PAGE>
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24 Power of Attorney (included on the signature pages of the Registration
Statement).
Item 9. Undertakings
- ------ ------------
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material
change to such information in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the
termination of the offering;
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(5) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934;
and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to
deliver or cause to be delivered to each person to whom the prospectus
is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim
financial information; and
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the
<PAGE>
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such issue.
[The rest of this page is intentionally left blank]
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Lowell, Massachusetts, on February 28, 1998.
UNIFI COMMUNICATIONS, INC.
By: /s/ Douglas J. Ranalli
---------------------------
Douglas J. Ranalli
Chairman of the Board
of Directors, President, and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Douglas J.
Ranalli and Q. Ellis Telford, and each of them severally, acting alone and
without the other, his/her true and lawful attorney-in-fact with the authority
to execute in the name of each such person, and to file with the Securities and
Exchange Commission, together with any exhibits thereto and other documents
therewith, any and all amendments (including without limitation post-effective
amendments) to this Registration Statement on Form S-8 necessary or advisable to
enable the Registrant to comply with the Securities Act of 1933, as amended, and
any rules, regulations, and requirements of the Securities and Exchange
Commission in respect thereof, which amendments may make such other changes in
the Registration Statement as the aforesaid attorney-in-fact executing the same
deems appropriate.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Douglas J. Ranalli Chairman of the Board of February 28, 1998
---------------------- Directors, President, Chief
Douglas J. Ranalli Executive Officer (Principal
executive officer) and Acting
Chief Financial Officer
(Principal financial and
accounting officer)
/s/ Thomas P. Sosnowski Director February 28, 1998
-----------------------
Thomas P. Sosnowski
/s/ Chua Sock Koong Director February 28, 1998
-------------------
Chua Sock Koong
/s/ Lim Eng Director February 28, 1998
-----------
Lim Eng
/s/ John B. Beinecke Director February 28, 1998
--------------------
John B. Beinecke
</TABLE>
<PAGE>
Exhibit Index
Exhibit Description
No.
4.1 Certificate of Incorporation of the Registrant, as amended.
(Incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-4,
Registration No. 333-25521.)
4.2 By-Laws of the Registrant. (Incorporated by reference to
Exhibit 3.2 to the Registrant's Registration Statement on
Form S-4, Registration No. 333-25521.)
4.3 UNIFI Communications, Inc. Amended and Restated 1993 Stock
Option Plan, as amended.
4.4 Form of Incentive Stock Option Agreement.
5.1 Opinion of Q. Ellis Telford, Esq. as to the legality of the
securities being registered.
23.1 Consent of Q. Ellis Telford, Esq. (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
24 Power of Attorney (included on the signature pages of the
Registration Statement).
+ Refers to page number in sequentially numbered copy.
<PAGE>
EXHIBIT 4.3
UNIFI COMMUNICATIONS, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
1. Definitions. As used in this 1993 Amended and Restated Stock Option
-----------
Plan of Fax International, Inc., the following terms shall have the following
meanings:
1.1. Board means the Company's Board of Directors.
-----
1.2. Code means the federal Internal Revenue Code of 1986, as amended.
----
1.3. Committee means the Compensation Committee of the Board, or any
---------
other committee appointed by the Board, responsible for the administration of
the Plan, as provided in section 5 of the Plan, or, in the absence of either
such committee, the Board as a whole.
1.4. Company means UNIFI Communications, Inc. (f/k/a Fax International,
-------
Inc.) a Delaware corporation.
1.5. Employment Agreement means an agreement, if any, between the
---------- ---------
Company and an Optionee, setting forth, inter alia, conditions and
----- ----
restrictions upon the transfer of shares of Stock.
1.6. Fair Market Value means on any date (i) if the Stock is traded on a
---- ------ -----
stock exchange or on the Nasdaq National Market, the closing price on the most
recent trading day on or immediately preceding (as the Committee may determine)
the date in question or, if no trades were reported on such date, the closing
price on the most recent trading day preceding such date on which a trade
occurred, and (ii) if the Stock is not traded on a stock exchange or the Nasdaq
National Market, the value of a share of Stock on such date as determined by the
Committee.
1.7. Grant Date means the date as of which an Option is granted, as
----- ----
determined under Section 7.
1.8. Incentive Option means an Option which by its terms is to be treated
--------- ------
as an "incentive stock option" within the meaning of Section 422 of the Code.
1.9. Nonstatutory Option means any Option that is not an Incentive
------------ ------
Option.
1.10. Option means an option to purchase shares of Stock granted under the
------
Plan.
1.11. Option Agreement means an agreement between the Company and an
------ ---------
Optionee, setting forth the terms and conditions of an Option.
1.12. Option Price means the price paid by and Optionee for a share of
------ -----
Stock upon exercise of an Option.
<PAGE>
-2-
1.13. Optionee means a person eligible to receive an Option, as provided
--------
in Section 6, to whom an Option shall have been granted under the Plan.
1.14. Plan means this Amended and Restated 1993 Stock Option Plan of the
----
Company, as amended from time to time.
1.15. Securities Act means the Securities Act of 1933, as amended.
---------- ---
1.16. Stock means Common Stock, par value $0.01 per share, of the
-----
Company.
1.17. Ten Percent Owner means a person who owns, or is deemed within the
--- ------- -----
meaning of Section 422(b)(6) of the Code to own, stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company (or
its parent or subsidiary corporation). Whether a person is a Ten Percent Owner
shall be determined with respect to each Option based on the facts existing
immediately prior to the Grant Date of such Option.
1.18. Vesting Year for any potion of any Incentive Option means the
------- ----
calendar year in which that portion of the Option first becomes exercisable.
2. Purpose. This Plan is intended to encourage ownership of Stock by
-------
employees of and consultants to the Company and its subsidiaries and to provide
additional incentives for them to promote the success of the Company's business.
The Plan is intended to be an incentive stock option plan within the meaning of
Section 422 of the Code but not all Options granted hereunder are required to be
Incentive Options.
3. Term of the Plan. Options may be granted hereunder at any time in
---- -- --- ----
the period commencing on the approval of the Plan by the Board and ending not
later than ten (10) years after the earlier of adoption of the Plan by the Board
or approval of the Plan by shareholders.
4. Stock Subject to the Plan. At no time shall the number of shares of
----- ------- -- --- ----
Stock then outstanding which are attributable to the exercise of the Options
granted under the Plan, plus the number of shares then issuable upon exercise of
outstanding Options granted under the Plan, exceed 2,750,000 shares, subject,
-------
however, to the provisions of Section 17 of the Plan. Shares to be issued upon
- -------
the exercise of Options granted under the Plan may be either authorized but
unissued shares or shares held by the Company in its treasury. If any Option
expires or terminates for any reason without having been exercised in full, the
shares not purchased thereunder shall again be available for Options thereafter
to be granted.
5. Administration. The Plan shall be administered by the Committee. No
--------------
member of the Committee shall receive a grant of an Option during service on the
Committee and no member of the Committee shall have received a grant of an
Option during the one-year period preceding such service. Subject to the
provisions of the Plan, the Committee shall have complete authority, in its
discretion, to make or to select the manner of making the following
determinations with respect to each Option to be granted by the Company: (a) the
employee or consultant to receive the Option; (b) whether the Option (if
<PAGE>
-3-
granted to an employee) will be an Incentive Option or Nonstatutory Option; (c)
the time of granting the Option; (d) the number of shares subject to the Option;
(e) the Option Price; (f) the Option period; and (g) the Option exercise date or
dates. In making such determinations, the Committee may take into account the
nature of the services rendered by the respective employees and consultants,
their present and potential contributions to the success of the Company and its
subsidiaries, and such other factors as the Committee in its discretion shall
deem relevant. Subject to the provisions of the Plan, the Committee shall also
have complete authority to interpret the Plan, to prescribe, amend and rescind
rules and regulations relating to it, to determine the terms and provisions of
the respective Option Agreements (which need not be identical), and to make all
other determinations necessary or advisable for the administration of the Plan.
The Committee's determinations on the matters referred to in this Section 5
shall be conclusive.
6. Eligibility. An Option shall be granted only to an employee of or
-----------
consultant to one or more of the Company or any subsidiary thereof. A director
of one or more of the Company and any subsidiary who is not also an employee of
or consultant to one or more of the Company or a subsidiary shall not be
eligible to receive an Option granted under the Plan. As provided in Section 5,
no member of the Committee shall be eligible to receive an Option.
7. Time of Granting Options. The granting of an Option shall take place
---- -- ----------------
at the time specified in the Option Agreement. Only if expressly so provided in
the Option Agreement shall the Grant Date be the date on which an Option
Agreement shall have been duly executed and delivered by the Company and the
Optionee.
8. Option Price. The Option Price under each Incentive Option shall be
------ -----
not less than 100% of the Fair Market Value of Stock on the Grant Date, or not
less than 110% of the Fair Market Value of Stock on the Grant Date if the
Optionee is a Ten Percent Owner. The Option Price under each Nonstatutory Option
shall not be so limited solely by reason of this Section 8.
9. Option Period. No Incentive Option may be exercised later than the
------ ------
tenth (10th) anniversary of the Grant Date, but in any case not later than the
fifth (5th) anniversary of the Grant Date, if the Optionee is a Ten Percent
Owner. The Option period under each Nonstatutory Option shall not be so limited
solely by reason of this Section 9. An Option may become exercisable in such
installments, cumulative or non-cumulative, as the Committee may determine. In
the case of an Option not otherwise immediately exercisable in full, the
Committee may accelerate the exercisability of such Option in whole or in part
at any time, provided the acceleration of the exercisability of any Incentive
Option would not cause the Option to fail to comply with the provisions of
Section 422 of the Code.
10. Limit on Incentive Option Characterization. No Incentive Option shall
----- -- --------- ------ ----------------
be considered an Incentive Option to the extent pursuant to its terms it would
permit the Optionee to purchase for the first time in any Vesting Year under
that Incentive Option more than the number of shares of Stock calculated by
dividing the current limit by the Option Price. The current limit for any
Optionee for any Vesting Year shall be $100,000 minus the aggregate Fair Market
Value at the date of grant of the number of shares of Stock available
<PAGE>
-4-
for purchase for the first time in the Vesting Year under each other Incentive
Option granted to the Optionee under the Plan after December 31, 1986 and each
other incentive stock option granted to the Optionee after December 31, 1986
under any other incentive stock option plan of the Company (and any parent and
subsidiary corporations).
11. Exercise of Option. An Option may be exercised by the Optionee giving
------------------
written notice, in the manner provided in Section 21, specifying the number of
shares with respect to which the Option is then being exercised. The notice
shall be accompanied by payment in the form of cash or certified or bank check
payable to the order of the Company in an amount equal to the option price of
the shares to be purchased plus any required withholding tax as provided in
Section 14; provided, however, that after the date that any shares of Stock have
-------- -------
been registered under the Securities Act for sale to the public pursuant to an
effective registration statement filed with the Securities and Exchange
Commission, such payment may be made, at the election of the Optionee or other
person or persons entitled to exercise the Option: (a) in cash or certified or
bank check as provided above, (b) in the form of Stock owned by the Optionee
(based on the Fair Market Value of the Stock on the day the Option is exercised)
evidenced by negotiable stock certificates registered in the sole name of the
Optionee or the names of the Optionee and spouse, or (c) in any combination of
the consideration described in (a) and (b) above. Receipt by the Company of such
notice and payment shall constitute the exercise of the Option. Within 30 days
thereafter but subject to the remaining provisions of the Plan, the Company
shall deliver or cause to be delivered to the Optionee or his agent a
certificate or certificates for the number of shares then being purchased. Such
shares shall be fully paid and nonassessable.
12. Restrictions on Issue of Shares.
-------------------------------
(a) Notwithstanding any other provision of the Plan, if, at any time,
in the reasonable opinion of the Company the issuance of shares of Stock covered
by the exercise of any Option may constitute a violation of law, then the
Company may delay such issuance and the delivery of a certificate for such
shares until (i) approval shall have been obtained from such governmental
agencies, other than the Securities and Exchange Commission, as may be required
under any applicable law, rule, or regulation; and (ii) in the case where such
issuance would constitute a violation of a law administered by or a regulation
of the Securities and Exchange Commission, one of the following conditions shall
have been satisfied:
(1) the shares with respect to which such Option has been
exercised are at the time of the issue of such shares effectively
registered under the Securities Act; or
(2) a no-action letter in form and substance reasonably
satisfactory to the Company with respect to the issuance of such
shares shall have been obtained by the Company from the Securities and
Exchange Commission.
The Company shall make all reasonable efforts to bring about the occurrence of
said events.
<PAGE>
-5-
(b) Each certificate representing shares issued upon the exercise of
an Option will bear restrictive legends which may refer to this Plan and to
applicable restrictions under the Employment Agreement.
13. Purchase for Investment; Subsequent Registration.
-------- --- ---------- ---------- ------------
(a) Unless the shares to be issued upon exercise of an Option
granted under the Plan have been effectively registered under the Securities
Act, the Company shall be under no obligation to issue any shares covered by any
Option unless the person who exercises such Option, in whole or in part, shall
give a written representation to the Company which is satisfactory in form and
substance to its counsel and upon which the Company may reasonably rely, that he
or she is acquiring the shares issued pursuant to such exercise of the Option as
an investment and not with a view to, or for sale in connection with, the
distribution of any such shares.
(b) Each share of Stock issued pursuant to the exercise of an Option
granted pursuant to this Plan may bear a reference to the investment
representation made in accordance with this Section 13 and to the fact that no
registration statement has been filed with the Securities and Exchange
Commission in respect to said Stock.
(c) If the Company shall deem it necessary or desirable to register
under the Securities Act or other applicable statutes any shares with respect to
which an Option shall have been granted, or to qualify any such shares for
exemption from the Securities Act or other applicable statutes, then the Company
shall take such action at its own expense. The Company may require from each
Option holder, or each holder of shares of Stock acquired pursuant to the Plan,
such information in writing for use in any registration statement, prospectus,
preliminary prospectus or offering circular as is reasonably necessary for such
purpose and may require reasonable indemnity to the Company and its officers and
directors from such holder against all losses, claims, damages and liabilities
arising from such use of the information so furnished and caused by any untrue
statement of any material fact therein or caused by the omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made.
14. Withholding; Notice of Disposition of Stock Prior to Expiration of
----------- ------ -- ----------- -- ----- ----- -- ---------- --
Specified Holding Period.
- --------- ------- ------
(a) Whenever shares are to be issued in satisfaction of an Option
granted hereunder, the Company shall have the right to require the Optionee to
remit to the Company an amount sufficient to satisfy federal, state, local or
other withholding tax requirements if and to the extent required by law (whether
so required to secure for the Company an otherwise available tax deduction or
otherwise) prior to the delivery of any certificate or certificates for such
shares.
(b) The Company may require as a condition to the issuance of shares
covered by any Incentive Option that the party exercising such Option give a
written representation to the Company which is satisfactory in form and
substance to its counsel and
<PAGE>
-6-
upon which the Company may reasonably rely, that he or she will report to the
Company any disposition of such shares prior to the expiration of the holding
periods specified by Section 422(a)(1) of the Code. If and to the extent that
the realization of income in such a disposition imposes upon the Company
federal, state, local or other withholding tax requirements, or any such
withholding is required to secure for the Company an otherwise available tax
deduction, the Company shall have the right to require that the recipient remit
to the Company an amount sufficient to satisfy those requirements; and the
Company may require as a condition to the issuance of shares covered by an
Incentive Option that the party exercising such option give a satisfactory
written representation promising to make such a remittance.
15. Termination of Association with the Company.
----------- -- ----------- ---- --- -------
(a) If the Optionee's employment or association with the Company is
terminated, whether voluntarily or otherwise, the Option, to the extent the
Option is exercisable on the date of termination, may be exercised by the
Optionee but only for the period specified in the Option Agreement. Military or
sick leave shall not be deemed a termination of employment, provided that it
--------
does not exceed the longer of 90 days or the period during which the absent
Optionee's reemployment rights, if any, are guaranteed by status or by contract.
16. Transferability of Options. Options shall not be transferable,
--------------- -- -------
otherwise than by will or the laws of descent and distribution, and may be
exercised during the life of the Optionee only by the Optionee.
17. Adjustment of Number of Option Shares. In the event of any stock
---------- -- ------ -- ------ ------
dividend payable in Stock or any split-up or contraction in the number of shares
of Stock after the date of the Option Agreement and prior to the exercise in
full of the Option, the number of shares subject to such Option Agreement and
the price to be paid for each share subject to the Option shall be
proportionately adjusted. In the event of any reclassification or change of
outstanding shares of Stock or in case of any consolidation or merger of the
Company with or into another company or in case of any sale or conveyance to
another company or entity of the property of the Company as a whole or
substantially as a whole, shares of stock or other securities equivalent in kind
and value to those shares an Optionee would have received if he or she had held
the full number of shares of Stock subject to the Option immediately prior to
such reclassification, change, consolidation, merger, sale or conveyance and had
continued to hold those shares (together with all other shares, stock and
securities thereafter issued in respect thereof) to the time of the exercise of
the Option shall thereupon be subject to the Option. Upon dissolution or
liquidation of the Company, the Option shall terminate, but the Optionee (if at
the time in the employ or retained as a consultant of the Company or any of its
subsidiaries) shall have the right, immediately prior to such dissolution or
liquidation, to exercise the Option to the extent not theretofore exercised. No
fraction of a share shall be purchasable or deliverable upon exercise, but in
the event any adjustment hereunder of the number of shares covered by the Option
shall cause such number to include a fraction of a share, such number of shares
shall be adjusted to the nearest smaller whole number of shares. In the event of
changes in the outstanding Stock
<PAGE>
- 7 -
by reason of any stock dividend, split-up, contraction, reclassification, or
change of out-standing shares of Stock of the nature contemplated by this
Section 17, the number of shares of Stock available for the purpose of the Plan
as stated in Section 4 shall be correspondingly adjusted.
18. Reservation of Stock. The Company shall at all times during the term
--------------------
of the Option reserve or otherwise keep available such number of shares of Stock
as will be sufficient to satisfy the requirements of the Plan and shall pay all
fees and expenses necessarily incurred by the Company in connection therewith.
19. Limitation of Rights in Stock; No Special Employment or Other Rights.
----------------------------- -------------------------------------
The Optionee shall not be deemed for any purpose to be a stockholder of the
Company with respect to any of the shares of Stock covered by an Option, except
to the extent that the Option shall have been exercised with respect thereto
and, in addition, a certificate shall have been issued therefor and delivered to
the Optionee or his agent. Any Stock issued pursuant to the Option shall be
subject to all restrictions upon the transfer thereof which may be now or
hereafter imposed by the Certificate of Incorporation, the By-laws of the
Company, and the Employment Agreement, if any. Nothing contained in the Plan or
in any Option shall confer upon any Optionee any right with respect to the
continuation of his or her employment with, or retention as a consultant or
advisor to, the Company (or any subsidiary), or interfere in any way with the
right of the Company (or any subsidiary), subject to the terms of any separate
employment or consulting agreement or provision of law or corporate articles or
by-laws to the contrary, at any time to terminate such employment, consulting or
advisory relationship or to increase or decrease the compensation of the
Optionee from the rate in existence at the time of the grant of an Option.
20. Termination and Amendment of the Plan. The Board may at any time
-------------------------------------
terminate the Plan or make such modifications of the Plan as it shall deem
advisable. No termination or amendment of the Plan may, without the consent of
the Optionee to whom any Option shall theretofore have been granted, adversely
affect the rights of such Optionee under such Option. In considering whether to
modify or amend the Plan, the Board shall consider whether such modification or
amendment requires the consent of the Company's stockholders to continue to be
eligible for the favorable treatment given to the Plan pursuant to Rule 16b-3
under the Securities Exchange Act of 1934, as amended, and Section 422 of the
Code. If such consent would be required for such amendment, and the Board
determines that the continuation of such treatment under Rule 16b-3 and/or
Section 422 (or any successor provisions) is desirable for the Company, then the
Board shall timely seek the appropriate stockholder consent for such amendment.
21. Notices and Other Communications. All notices and other communications
--------------------------------
required or permitted under the Plan shall be effective if in writing and if
delivered or sent by certified or registered mail, return receipt requested (a)
if to the Optionee, at his or her residence address last filed with the Company,
and (b) if to the Company, at 67 South Bedford Street, Suite 100E, Burlington,
MA 01803, Attention: President or to such other persons or addresses as the
Optionee or the Company may specify by a written notice to the other from time
to time.
<PAGE>
FAX INTERNATIONAL, INC.
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
----------------------
As of June 27, 1995
WHEREAS, the Amended and Restated 1993 Stock Option Plan of Fax
International, Inc. (the "Plan") provides that the maximum number of shares of
Stock ("Optioned Shares") that are, from time to time, (i) then outstanding and
attributable to the exercise of Options granted under the Plan, and (ii) then
issuable upon exercise of outstanding Options granted under the Plan, is
2,750,000 shares, subject to adjustment under Section 17 of the Plan.
WHEREAS, the Company desires to increase the number of Optioned Shares by
250,000 shares, to a total number of Optioned Shares of 3,000,000.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. All capitalized terms used herein and not otherwise defined shall have
the meanings given such terms in the Plan.
2. The first sentence of Section 4 of the Plan is hereby amended to read
in its entirety as follows:
At no time shall the number of shares of Stock then outstanding which are
attributable to the exercise of Options granted under the Plan, plus the
number of shares then issuable upon exercise of outstanding Options granted
under the Plan, exceed 3,000,000 shares, subject, however, to the
------- -------
provisions of Section 17 of the Plan.
3. Except as specifically amended by this Amendment, the Plan shall
remain and continue in full force and effect and, as further amended by this
Amendment, shall for all purposes be and constitute the Amended and Restated
1993 Stock Option Plan of Fax International, Inc.
<PAGE>
FAX INTERNATIONAL, INC.
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
----------------------
As of August 25, 1995
WHEREAS, the Amended and Restated 1993 Stock Option Plan of Fax
International, Inc. (the "Plan") provides that the maximum number of shares of
Stock ("Optioned Shares") that are, from time to time, (i) then outstanding and
attributable to the exercise of Options granted under the Plan, and (ii) then
issuable upon exercise of outstanding Options granted under the Plan, is
3,000,000 shares, subject to adjustment under Section 17 of the Plan.
WHEREAS, the Company desires to increase the number of Optioned Shares by
1,325,000 shares, to a total number of Optioned Shares of 4,325,000.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. All capitalized terms used herein and not otherwise defined shall have
the meanings given such terms in the Plan.
2. The first sentence of Section 4 of the Plan is hereby amended to read
in its entirety as follows:
At no time shall the number of shares of Stock then outstanding which are
attributable to the exercise of Options granted under the Plan, plus the
number of shares then issuable upon exercise of outstanding Options granted
under the Plan, exceed 4,325,000 shares, subject, however, to the
------- -------
provisions of Section 17 of the Plan.
3. Except as specifically amended by this Amendment, the Plan, as
previously amended, shall remain and continue in full force and effect and, as
further amended by this Amendment, shall for all purposes be and constitute the
Amended and Restated 1993 Stock Option Plan of Fax International, Inc.
<PAGE>
UNIFI COMMUNICATIONS, INC.
THIRD AMENDMENT
TO THE
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
----------------------
As of July 1, 1997
WHEREAS, the Amended and Restated 1993 Stock Option Plan of UNIFI
Communications, Inc. (f/k/a Fax International, Inc.), as amended (the "Plan")
provides that the maximum number of shares of Stock ("Optioned Shares") that
are, from time to time, (i) then outstanding and attributable to the exercise of
Options granted under the Plan, and (ii) then issuable upon exercise of
outstanding Options granted under the Plan, is 4,325,000 shares, subject to
adjustment under Section 17 of the Plan.
WHEREAS, the Company desires to increase the number of Optioned Shares by
1,250,000 shares, to a total number of Optioned Shares of 5,575,000.
NOW, THEREFORE, the Plan is hereby amended as follows:
1. All capitalized terms used herein and not otherwise defined shall
have the meanings given such terms in the Plan.
2. The first sentence of Section 4 of the Plan is hereby amended to read
in its entirety as follows:
At no time shall the number of shares of Stock then outstanding which are
attributable to the exercise of Options granted under the Plan, plus the number
of shares then issuable upon exercise of outstanding Options granted under the
Plan, exceed 5,575,000 shares, subject, however, to the provisions of Section 17
------- -------
of the Plan.
3. Except as specifically amended by this Amendment, the Plan, as
previously amended, shall remain and continue in full force and effect and, as
further amended by this Amendment, shall for all purposes be and constitute the
Amended and Restated 1993 Stock Option Plan of UNIFI Communications, Inc.
<PAGE>
EXHIBIT 4.4
UNIFI COMMUNICATIONS, INC.
1993 Incentive Stock Option Agreement
-------------------------------------
This Option Agreement, dated Date, is between UNIFI COMMUNICATIONS, INC., a
Delaware corporation (the "Company"), and Name (the "Optionee").
------- --------
-----------------------------------------------------------
Option Summary
--------------
The following summary of the terms of this Option
is qualified in its entirety by the detailed
provisions that follow the summary.
-----------------------------------------------------------
Option Shares (Shares)
-----------------------------------------------------------
Price per Share (Price)
-----------------------------------------------------------
Expiration Date (TerminationDate), subject to
earlier termination upon
termination of employment as
set forth in Section 4 below
-----------------------------------------------------------
Vesting Provisions See Section 5(b) below
-----------------------------------------------------------
1. Option Shares. Subject to the terms and conditions set forth herein and
-------------
in the Amended and Restated 1993 Stock Option Plan of the Company (the "Plan"),
----
the Company grants to the Optionee, with effect on GrantDate, (the "Grant
-----
Date"), an Option (the "Option") to purchase from the Company, on the terms set
- ---- ------
forth in the form of Stock Purchase Agreement attached hereto as Exhibit A, all
---------
or any part of a total of Shares shares (the "Option Shares") of the Company's
-------------
Common Stock, par value $0.01 per share (the "Common Stock").
------------
<PAGE>
2. Price. The price to be paid for the Option Shares shall be (Price) per
-----
share.
3. Character of Option. This Option is to be treated as an "incentive stock
-------------------
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended.
4. Termination of Option. The Option shall terminate on the earlier of (a)
---------------------
(TerminationDate) and (b) the Optionee's extension date, determined from the
following table:
Reason for Termination Extension Date
---------------------- --------------
physical or mental disability 6 months after termination
death 6 months after death
other termination 1 month after termination
Military or sick leave shall not be deemed a break in continuous employment
provided that it does not exceed the longer of 90 days or the period during
which the absent employee's re-employment rights are guaranteed by statute or by
contract.
5. Exercise of Option.
------------------
(a) The Optionee shall be permitted to exercise this Option
and purchase Option shares only to the extent the Option Shares are
vested.
(b) (Vesting)
(c) Notwithstanding paragraph (b) above, the Option Shares
shall become 100% vested in the event of (and immediately before) any
consolidation or merger of the Company with or into another company in
a transaction in which holders of the capital stock of the Company in
their capacity as such hold less than 50% of the capital stock of the
company surviving the transaction.
(d) If the Optionee's employment, consulting, or advisory
relationship terminates before the Option is fully exercised, the
Option may thereafter be exercised, to the extent (but only to the
extent) exercisable at the time of termination, until the Option
terminates pursuant to Section 4.
(e) Exercise of the option may be effected by the Optionee
giving written notice, in the manner provided in Section 11,
specifying the number of shares with respect to which the Option is
then being exercised. The notice shall be accompanied by payment in
the form of cash or certified or bank check payable to the order of
the Company in an amount
<PAGE>
equal to the option price of the shares to be purchased plus any
required withholding tax (as determined under the Plan); provided,
however, that after the date that any shares of Common Stock have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), for sale to the public pursuant to an effective
registration statement filed with the Securities and Exchange
Commission, such payment may be made, at the election of the Optionee:
(i) in cash or certified or bank check as provided above, (ii) in the
form of Common Stock owned by the Optionee (based on the fair market
value of the Common Stock on the day the Option is exercised,
determined as provided in the Plan) evidenced by negotiable stock
certificates registered in the sole name of the Optionee or the names
of the Optionee and spouse, or (iii) in any combination of the
consideration described in (i) and (ii) above. Receipt by the Company
of such notice and payment shall constitute the exercise of the
Option. Within 30 days thereafter, the Company shall deliver or cause
to be delivered to the Optionee a certificate or certificates for the
number of shares then being purchased by him or her. If any applicable
regulation of the Securities and Exchange Commission or other public
regulatory authority shall require the Company or the Optionee to
register or qualify under the Securities Act, any similar federal
statute then in force or any state law regulating the sale of
securities, any Option Shares with respect to which notice of intent
to exercise shall have been delivered to the Company or to take any
other action in connection with such shares, the delivery of the
certificate or certificates for such shares shall be postponed until
completion of the necessary action, which the Company shall take in
good faith and without any delay. All such action shall be taken by
the Company at its own expense.
6. Restriction Against Transfer of Option. During the lifetime of the
--------------------------------------
Optionee, the Option may be exercised only by the Optionee. Except by will or by
the laws of descent and distribution, the Option and all rights granted
hereunder may not be transferred, assigned, pledged, or hypothecated (whether by
operation of law or otherwise) and shall not be subject to execution,
attachment, or similar process.
7. Capital Changes. In the event of any stock dividend payable in
---------------
Stock or any split-up or contraction in the number of shares of the Stock
occurring after the date of this Agreement and prior to the exercise in full of
the Option, the number of remaining shares subject to this Agreement and the
price to be paid for each such share shall be proportionately adjusted. In case
of any reclassification or other change of outstanding shares of the Stock,
shares of Stock or other securities shall be delivered equivalent in kind and
value to those shares an Optionee would have received if the Option had been
exercised immediately prior to such reclassification or other change and had
continued to hold the Option Shares (together with all other shares, stock and
securities thereafter issued in respect thereof) to the time of the exercise of
the Option. No fraction of a share shall be purchasable or deliverable upon
exercise, but in the event any adjustment hereunder of the number of shares
covered by the Option shall cause such number to include a fraction of a share,
such number of shares shall be adjusted to the nearest smaller whole number of
shares. Without limiting the provisions of Section 5(c), in case of
<PAGE>
any consolidation or merger of the Company with or into another
company, or any sale or conveyance to another person of all or
substantially all of the property of the Company, the Optionee shall,
upon exercise of the Option in full or in part, receive shares of
stock, securities, or other property equivalent in kind or value to
what the Optionee would have received if the Optionee had exercised
the Option to such extent immediately prior to such consolidation,
merger, sale, or conveyance and had continued to hold the Option
Shares (together with all other shares, stock, and securities issued
in respect thereof) to the time of the exercise of the Option. Upon
the dissolution or liquidation of the Company, the Option shall
terminate, but the Optionee (if at the time the Option has not
terminated under Section 4) shall have the right, immediately prior to
such dissolution or liquidation, to exercise the Option to the extent
not theretofore exercised.
8. Reservation of Shares. The Company shall at all times
---------------------
during the term of this agreement reserve and keep available such
number of shares of the Common Stock as will be sufficient to satisfy
the requirements of this agreement and shall pay all fees and expenses
necessarily incurred by the Company in connection with this agreement
and the issuance of Option Shares.
9. Limitation of Rights in Option Shares. The Optionee shall
-------------------------------------
not be deemed for any purpose to be a stockholder of the Company with
respect to any of the Option Shares except to the extent that the
Option shall have been exercised with respect thereto and in addition
thereto a stock certificate shall have been issued therefor and
delivered to the Optionee.
10. Limitation of Rights. The Option confers upon the
--------------------
Optionee no right to continue as an employee of, or consultant or
advisor to, the Company and its subsidiaries and shall not interfere
in any way with the right of the Company and its subsidiaries to
terminate the employment or consulting or advisory relationship of the
Optionee at any time or to increase or decrease the compensation of
the Optionee from the rate in existence at the time of the grant of
the Option.
11. Communication. Any communication or notice required or
-------------
permitted to be given under this agreement shall be in writing and
mailed by registered or certified mail or delivered in hand, if to the
Company, to 900 Chelmsford Street, Suite 312, Lowell, Massachusetts,
01851, and, if to the Optionee, to the address set forth below or such
other address, in each case, as the addressee shall last have
furnished by notice to the communicating party.
12. Purchase for Investment.
-----------------------
(a) The Optionee represents to the Company that
any of the Option Shares at any time purchased upon the
exercise of any portion of the Option will be acquired for
the purpose of investment and not with a view to, or for
sale in connection with, any distribution thereof except to
the extent that the Option Shares purchased by the Optionee
may be sold under a valid registration statement filed with
the Securities and Exchange Commission pursuant to the
Securities Act.
<PAGE>
(b) Prior to the delivery of any Option Shares
upon the exercise of any portion of the Option, the Company
may require that there be delivered to it a representation
in writing, in substance and form satisfactory to counsel
for the Company and signed by the Optionee, that such shares
are being acquired in good faith for investment and not with
a view to distribution, except to the extent that the Option
Shares purchased by him may be sold under a valid
registration statement filed with the Securities and
Exchange Commission pursuant to the Securities Act, and that
the Optionee will not make or solicit any offers or
transfers of any of the Option Shares in violation of the
Securities Act, or any similar federal statute then in
force, and regulations of the Securities and Exchange
Commission thereunder.
(c) Any such representation shall include a
statement by the Optionee that, in making such
representation: (i) he or she is aware that in the view of
the Securities and Exchange Commission the statutory basis
for exemption from registration of the Option Shares under
the Securities Act would not be present if such
representation meant merely that his present intention is to
hold the Option Shares purchased by him for any fixed period
after the date of the delivery of such shares to him in
order to be entitled to treat any gain on the sale thereof
as capital gain under the Internal Revenue Code, or for a
deferred sale, or for a market rise expected within a fixed
period, or for sale if such rise does not occur, or for any
fixed period; (ii) he or she means that he or she does not
intend to dispose of all or any part of the Option Shares,
except as aforesaid, unless and until there shall have been
a sufficient change in the pertinent circumstances, not now
in contemplation, so that, in the opinion of counsel for the
Company, such sale or disposition would not evidence a lack
of a true investment intent on his part; and (iii) he or she
understands that any routine sales of the Option Shares made
in reliance upon Securities and Exchange Commission Rule 144
can be made only in limited amounts in accordance with the
terms and conditions of that Rule, and that the Company does
not intend to supply the Optionee with any information
necessary to enable such Optionee to make routine sales of
the Optioned Shares under Rule 144.
(d) The Company may place a legend on any
certificate or certificates issued pursuant hereto that the
transfer of such certificate or certificates is restricted
in accordance with the terms of this Section 12 and may make
a "stop transfer" notation on the appropriate books of the
Company.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
UNIFI COMMUNICATIONS, INC.
By:
------------------------------------
UNIFI Communications, Inc. Officer
---------------------------------------
Name, Optionee
Number and Street:
---------------------
City, State, Zip Code:
-----------------
<PAGE>
EXHIBIT 5.1
[LOGO OF UNIFI COMMUNICATIONS APPEARS HERE]
900 Chelmsford Street, Suite 312
Lowell, Massachusetts 01851
EXHIBIT 5.1
February 28, 1998
UNIFI Communications, Inc.
900 Chelmsford Street
Lowell, MA 01851
Ladies and gentlemen:
I am the General Counsel of UNIFI Communications, Inc., a Delaware
corporation (the "Company") and have acted as counsel in connection with the
Company's Registration Statement on Form S-8 proposed to be filed with the
Securities and Exchange Commission on or about March 3, 1998 (the "Registration
Statement").
The Registration Statement covers the registration of 5,065,481 shares of
the Company's common stock, $.01 par value per share (the "Shares"), which may
be issued by the Company upon exercise of options granted or to be granted by
the Company pursuant to the Company's Amended and Restated 1993 Stock Option
Plan, as amended (the "Plan").
I have reviewed the corporate proceedings of the Company with respect to
the authorization of the Plan and the issuance of the Shares thereunder. I have
also examined and have relied upon originals or copies, certified or otherwise
identified or authenticated to my satisfaction, of such agreements, instruments,
corporate records, certificates and other documents as I have deemed necessary
or appropriate as a basis for the opinions hereinafter expressed. In my
examination, I have assumed the genuineness of all signatures, the conformity to
originals of all documents reviewed by me as copies, the authenticity and
completeness of all original documents reviewed by me in original or copy form,
and the legal competence of each individual executing any document.
I further assume that all Shares issued upon exercise of options granted or
to be granted pursuant to the Plan will be issued in accordance with the terms
of such options and the Plan.
Subject to the limitations set forth below, I have made such examination of
law as I have deemed necessary for purposes of this opinion. This opinion is
limited solely to the Delaware
<PAGE>
General Corporation Law as applied by courts located in Delaware, to the extent
that it may apply to or govern the transactions that are the subject of this
opinion.
Based upon and subject to the foregoing, I am of the opinion that the
Shares, when issued and delivered upon the exercise of options duly granted
pursuant to the Plan and against the payment of the exercise price therefor as
provided in the Plan and the relevant grant, will be validly issued, fully-paid
and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Q. Ellis Telford
Q. Ellis Telford
General Counsel
UNIFI Communications, Inc.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
February 24, 1997 included in UNIFI Communications, Inc.'s Registration
Statement on Form S-4 (No. 333-25521) and to all references to our firm included
in this Registration Statement on Form S-8.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, MA
February 26, 1998
