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EXHIBIT
4.5
AMENDED AND
RESTATED
CONVERTIBLE TERM NOTE
(Tranche
3)
This Note and the Common Stock issuable upon
conversion hereof (until such time, if any, as such Common Stock is
registered with the Securities and Exchange Commission pursuant to
an effective registration statement) have not been registered under
the Securities Act of 1933, as amended (the “Act”), or
any state securities laws, and may not be sold, offered for sale of
otherwise transferred unless registered or qualified under the Act
and applicable state securities laws or unless the Maker receives
an opinion, in form and from counsel reasonably acceptable to the
Maker, that registration, qualification or other such actions are
not required under any such laws .
FOR VALUE RECEIVED, UNIFY CORPORATION, a Delaware
corporation (the “ Maker ”), hereby
promises to pay to ComVest Capital LLC, a Delaware limited
liability company (“ ComVest ”), or
registered assigns (collectively, the “ Payee ”), the sum of One Million One Hundred Thousand
($1,100,000) Dollars (the “ Principal ”),
with interest thereon, on the terms and conditions set forth herein
and in the Revolving Credit and Term Loan Agreement dated as of
November 20, 2006 between the Maker and ComVest (as same may be
amended, modified, supplemented and/or restated from time to time,
the “ Loan
Agreement ”). Terms
defined in the Loan Agreement and not otherwise defined herein
shall have the meanings assigned thereto in the Loan
Agreement.
Payments of principal of, interest on and any other
amounts with respect to this Convertible Promissory Note (this
“ Note
”) are to be made in lawful money
of the United States of America.
Principal and accrued interest of this Note may or shall
be convertible into common stock of the Maker as provided in
Section 3 below.
1. Payments .
(a) Interest . This Note
shall bear interest (“ Interest ”) on
Principal amounts outstanding from time to time from the date
hereof at the rate of eleven and one-quarter (11.25%) percent per
annum; provided
, however , that during
the continuance of any Event of Default, the Interest rate
hereunder shall be increased to fifteen and one-quarter (15.25%)
percent per annum. All Interest shall be computed on the daily
unpaid Principal balance of this Note based on a three hundred
sixty (360) day year, and shall be payable monthly in arrears on
the last day of each calendar month commencing November 30, 2006
and on the maturity hereof.
(b) Principal . The
Principal of this Note shall be payable in forty-eight (48) equal
monthly installments of $22,916.67 each, due and payable on the
last day of each calendar month commencing November 30, 2007
through and including October 31, 2011.
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(c) If any scheduled payment date as
aforesaid is not a business day in either the State of Florida or
the State of California, then the payment to be made on such
scheduled payment date shall be due and payable on the next
succeeding business day, with additional interest on any Principal
amount so delayed for the period of such delay.
2. Prepayment .
(a) Optional Prepayment of Principal . The unpaid Principal balance of this Note may, at the
Maker’s option, be prepaid in whole or in part, at any time
or from time to time when this Note is convertible by its terms,
upon fifteen (15) days’ prior written notice to the Payee,
provided that the Payee shall retain the right to convert all or
any portion of such Principal amount called for prepayment,
together with any or all Interest accrued thereon, at any time
prior to the date fixed for prepayment, and thereafter until such
prepayment is actually made. Any optional prepayment of Principal
hereunder shall require the simultaneous payment of a prepayment
premium as provided in Section 2.03(c) of the Loan
Agreement.
(b) Mandatory Prepayment of Principal . The Principal of this Note may be required to be
prepaid, in whole or in part, at any time and from time to time in
accordance with Section 2.02(b) of the Loan Agreement.
(c) Interest . Except to the
extent that such Interest is converted as herein provided, each
prepayment of Principal shall be accompanied by all accrued
Interest on the Principal amount prepaid or converted accrued to
the date of prepayment or conversion.
(d) Application of Payments . Any and all prepayments hereunder shall be applied first to
any prepayment premium required under Section 2(a) above, then to
unpaid accrued Interest on the Principal amount being prepaid, and
finally to the remaining Principal installments in inverse order of
maturity.
3. Conversion .
(a) Optional and Mandatory Conversion . The Payee may, at its option, upon written notice to the
Maker given at any time and from time to time from the date on
which the Maker has sufficient authorized, unissued and unreserved
shares of its Common Stock to issue upon such conversion until the
payment or prepayment of this Note in full, convert all or any
portion of the unpaid Principal balance of this Note, and/or any
accrued Interest thereon, into shares of common stock of the Maker
(“ Common
Stock ”), at a price
of One ($1.00) Dollar per share of Common Stock (as same may be
adjusted from time to time in accordance herewith, the
“ Conversion
Price ”). In addition,
if (i) there is not then continuing any Default or Event of Default
under and as defined in the Loan Agreement, (ii) the Common Stock
is then traded or listed for trading on any national securities
exchange or current quotations for the Common Stock are then
reported on the OTC Bulletin Board, (iii) there is then in effect a
valid registration statement under the Securities Act of 1933, as
amended, in respect of the Common Stock issued and issuable upon
conversion of this Note and upon exercise of the Warrants issued
pursuant to the Loan Agreement, such that all such shares of Common
Stock will be freely tradable immediately upon issuance at such
time, (iv) the Maker is current in all of its required filings with
the Securities and Exchange Commission, and (v) the reported
Trading Price (as hereinafter defined) of the Common Stock for each
of the twenty (20) consecutive trading days immediately prior
thereto has been equal to or greater than 160% of the Conversion
Price in effect on each such trading day, then the Maker may, upon
five (5) business days’ prior written notice to the Payee,
require the Payee to convert all or any portion of the Principal of
this Note into shares of Common Stock at the Conversion Price then
in effect; and in the event of any such conversion at the option of
the Maker, the Maker shall give written notice thereof to the Payee
certifying as to the satisfaction of the foregoing conditions
(including a detailed schedule of Trading Prices for purposes of
the foregoing clause (v)), and shall pay to the Payee,
simultaneously with the delivery of stock certificates in
accordance with Section 3(c), all unpaid accrued Interest on the
Principal amount so converted.
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As used herein, the
term “Trading Price” on any relevant date means (A) if
the Common Stock is listed for trading on the New York Stock
Exchange, the American Stock Exchange, the NASDAQ Global Market, or
the NASDAQ Global Select Market, the closing sale price (or, if no
closing sale price is reported, the last reported sale price) of
the Common Stock (regular way), or (B) if the Common Stock is not
so listed but quotations for the Common Stock are reported on the
OTC Bulletin Board, the most recent closing price as reported on
the OTC Bulletin Board. The effective date of any conversion
hereunder is herein referred to as the “
Conversion Date.
” To the extent that this Note is
converted only in part, then such conversion shall be treated as a
prepayment of the Principal amount converted in accordance with
Section 2(d) above, provided that no prepayment premium shall be
required in respect of any conversion.
(b) Mechanics of Conversion . Upon notice to the Maker of the Payee’s conversion
election as provided in Section 3(a), or upon notice to the Payee
of the Maker’s conversion election as provided in Section
3(a), the Maker shall, in accordance with Section 3(c), issue to
the Payee (or to the Payee’s designee(s) set forth in the
Payee’s conversion election, or in any direction given to the
Maker in response to the Maker’s conversion election) the
number of shares of Common Stock to which the Payee shall be
entitled upon such conversion, and shall deliver or cause to be
delivered to the Payee or such designee(s) the certificates
representing such shares of Common Stock. All shares of Common
Stock issued or delivered upon any conversion hereunder shall, when
issued or delivered, be duly authorized, validly issued, fully paid
and nonassessable. In lieu of any fractional shares to which the
Payee would otherwise be entitled, the Maker shall pay cash equal
to such fraction multiplied by the per share Conversion
Price.
(c) Issuance of Common Stock Upon Conversion . Within a reasonable time, not exceeding ten (10)
days after the Conversion Date, the Maker shall deliver or cause to
be delivered, to or upon the written order of the Payee of this
Note so converted, certificates representing the number of fully
paid and nonassessable shares of Common Stock into which this Note
has been converted in accordance with the provisions of this
Section 3. If so requested by the Maker, the Payee shall, within a
reasonable time (not exceeding ten (10) days after receipt by the
Payee of such certificates), surrender this Note to the Maker for
cancellation, against delivery of a replacement Note representing
the remaining balance (if any) of this Note which has not been
converted. Subject to the following provisions of this Section 3,
such conversion shall be deemed to have occurred on the Conversion
Date, so that the Payee of this Note or such Payee’s
designee(s) shall be treated for all purposes as having become the
record Payee of such shares of Common Stock at such
time.
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(d) Taxes on Conversion .
The issuance of certificates for shares for Common Stock upon the
conversion of this Note shall be made without charge by the Maker
to the converting Payee for any tax in respect of the issuance of
such certificates and such certificates shall be issued in the name
of, or in such names as may be directed by, the Payee of this
Note; provided
, however , that the Maker
shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance or delivery of any
such certificate in a name other than that of the Payee of this
Note, and the Maker shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the
issuance thereof shall have paid to the Maker the amount of any
such tax or shall have established to the satisfaction of the Maker
that any such tax has been paid.
(e) Adjustment of
Shares .
(i) Stock Dividends, Distributions or Subdivisions
. In the event that, at any time and
from time to time from and after the date of this Note, the Maker
shall issue additional shares of Common Stock (or securities
convertible into Common Stock) in a stock dividend, stock
distribution or subdivision paid with respect to Common Stock, or
declare any dividend or other distribution payable in additional
shares of Common Stock (or securities convertible into Common
Stock) or effect a split or subdivision of the outstanding shares
of Common Stock, then, concurrently with the effectiveness of such
stock dividend, stock distribution or subdivision, the
then-effective Conversion Price shall be proportionately decreased,
and the number of shares of Common Stock issuable upon conversion
of this Note shall thus be proportionately increased.
(ii) Combinations or Consolidations . In the event that, at any time and from time to time
from and after the date of this Note, the outstanding shares of
Common Stock shall be combined or consolidated, by reclassification
or otherwise, into a lesser number of shares of Common Stock, then,
concurrently with the effectiveness of such combination or
consolidation, the then-effective Conversion Price shall be
proportionately increased, and the number of shares of Common Stock
issuable upon conversion of this Note shall thus be proportionately
decreased.
(iii) Other Dividends or Distributions . If the Maker, at any time or from time to time
after the issuance of this Note, makes a distribution to the
holders of Common Stock which is payable in securities of the Maker
other than Common Stock, then, in each such event, provision shall
be made so that the Payee shall receive upon conversion of this
Note, in addition to the number of shares of Common Stock, the
amount of such securities of the Maker which would have been
received if the portion of this Note so converted had been
exercised for Common Stock on the date of such event, subject to
adjustments subsequent to the date of such event with respect to
such distributed securities which shall be on terms as nearly
equivalent as practicable to the adjustments provided in this
Section 3(e)(iii) and all other adjustments under this Section
3(e). Nothing contained in this Section 3(e)(iii) shall be deemed
to permit the payment of any distribution in violation of the Loan
Agreement.
(iv) Merger, Consolidation or Ex
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