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EXHIBIT 10.16
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT")
AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR, IN THE
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO INTELLON
CORPORATION, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION
IS IN COMPLIANCE THEREWITH.
SERIES C PREFERRED STOCK WARRANT
OF
INTELLON CORPORATION
THIS CERTIFIES THAT Conexant Systems, Inc. (the "Warrantholder") is
entitled to subscribe for and purchase from Intellon Corporation, a Florida
corporation (the "Company"), at any time or from time to time from the date
hereof to the earlier of (i) the Premium IP Decision Date (defined, and subject
to extension, as set forth below), (ii) the closing date of a merger,
acquisition or consolidation of the Company into or with another corporation in
which the shareholders of the Company shall own less than fifty percent (50%) of
the voting securities of the surviving corporation (the "Acquisition"), or (iii)
the closing date of a firm underwritten initial public offering of Corporation
Common Stock pursuant to a registration statement under the Securities Act of
1933, as amended, in which the aggregate price paid for such shares by the
public shall be at least $12 million (a "Public Offering"), 700,000 fully paid
and nonassessable shares of the Company's Series C Preferred Stock, or in the
event the Company's Series C Preferred Stock has previously been automatically
converted into Common Stock as set forth in the Articles (as defined below), an
equivalent number of shares of Common Stock (the "Shares"), such number of
shares being subject to adjustment upon the occurrence of the contingencies set
forth in this Warrant.
The price per share payable upon the exercise of this Warrant (such
price or such other prices as may result from the adjustment specified herein
being referred to herein as the "Warrant Price") shall be an amount per share
equal to:
(a) 0.01, provided that (i) this Warrant is exercised on or
before the Premium IP Decision Date (as defined in that certain Comprehensive
Agreement, dated as of July 2, 1999, between the Company and the Warrantholder
(the "Comprehensive Agreement")); (ii) the Premium IP Decision Date is not later
than June 30, 2000, and (iii) the Warrantholder has paid to the Company $2.45
million of nonrecurring engineering expenses prior to January 31, 2000 and has
not licensed the Premium IP Package (as defined in the Comprehensive Agreement);
or
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(b) 3.50.
The Warrantholder shall have the right to extend the time period
within which this Warrant may be exercised to the earlier of (i) 30 days after
the Extended Exclusivity Decision Date (as defined in the Comprehensive
Agreement); (ii) the closing date of an Acquisition; or (iii) the closing date
of a Public Offering, provided that on the IP Premium Decision Date the
Warrantholder agrees:
(a) to license the Premium IP Package; and
(b) to deliver to the Company a minimum of $2.55 million in
Prepaid Royalties (as defined in the Comprehensive Agreement) before the later
of (x) 30 days after the Premium IP Decision Date or (y) the delivery of the
Premium IP Package.
The foregoing notwithstanding, in no event shall the Warrantholder
have the right to extend the time period within which this Warranty may be
exercised beyond November 30, 2000.
Except as set forth above, the Warrant Price shall be payable by cash
or cashier's check. This Warrant shall be exercisable in accordance with, and
subject to the terms and conditions of, that certain Comprehensive Agreement.
Upon delivery of this Warrant, together with an executed Notice of
Exercise in the form attached hereto as Exhibit A and payment of the Warrant
Price of the Shares thereby purchased, at the principal office of the Company or
at such other office or agency as the Company may designate by notice in writing
to the holder hereof, the Warrantholder shall be entitled to receive a
certificate or certificates for the Shares so purchased.
1. Exercise of Warrant. This Warrant may be exercised, in
whole or in part, at any time on or before the earlier of (i) January 31, 2000
(subject to extension as set forth above), (ii) the closing date of an
Acquisition, or (iii) the closing date of a Public Offering, by the surrender of
this Warrant (with the Notice of Exercise in the form attached hereto as Exhibit
A duly executed) at the principal office of the Company and through payment to
the Company of the Warrant Price multiplied by the number of Shares then being
purchased. The Company shall, within 10 days after such delivery, prepare a
certificate for the Shares purchased in the name of the holder of this Warrant,
or as such holder may direct (subject to the restrictions upon transfer
contained herein and upon payment by such holder hereof of any applicable
transfer taxes). In the event of any exercise of the rights represented by this
Warrant, certificates for the shares of stock so purchased shall be delivered to
the holder hereof within a reasonable time and, unless this Warrant has been
fully exercised or expired, a new Warrant representing the portion of the
shares, if any, with respect to which this Warrant shall not then have been
exercised shall also be issued to the holder hereof within such reasonable time.
2. Stock Fully Paid; Reservation of Shares. All Shares which
may be issued upon the exercise of the rights represented by this Warrant will,
upon issuance, be fully paid and nonassessable, and free from all preemptive
rights, rights of first refusal, taxes, liens and charges with respect to the
issue thereof. During the period within which the rights represented by this
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Warrant may be exercised, the Company will at all times have authorized, and
reserved for the purpose of the issue upon exercise of the purchase rights
evidenced by this Warrant, a sufficient number of shares of its Series C
Preferred Stock (and/or underlying Common Stock) to provide for the exercise of
the rights represented by this Warrant.
3. Limitation on Transfer and Exercise.
(a) The Company need not register a transfer of
this Warrant unless the conditions specified in the legend on the front page
hereof are satisfied. Subject to the satisfaction of such conditions, any
transfer of this Warrant and all rights hereunder, in whole or in part, shall be
registered on the books of the Company to be maintained for such purpose, upon
surrender of this Warrant at the principal office of the Company, or the office
or agency designated by the Company, together with a written assignment of this
Warrant substantially in the form of Exhibit B hereto duly executed by the
Warrantholder or its agent or attorney and funds sufficient to pay any transfer
taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall, subject to the conditions set forth
in the legend, execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the portion
of this Warrant not so assigned, and this Warrant shall promptly be canceled. A
Warrant, if properly assigned, may be exercised by a new holder for the purchase
of the Shares without having a new Warrant issued.
(b) Subject to the conditions set forth in the
legend, this Warrant may be divided or combined with other Warrants upon
presentation hereof at the aforesaid office or agency of the Company, together
with a written notice specifying the names and denominations in which new
Warrants are to be issued, signed by the Warrantholder or its agent or attorney.
Subject to compliance with this Section 3 as to any transfer which may be
involved in such division or combination, the Company shall execute and deliver
a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice.
(c) The Company shall prepare, issue and deliver at
its own expense (other than transfer taxes) the new Warrant or Warrants under
this Section 3.
(d) The Company agrees to maintain, at its
aforesaid office or agency, books for the registration and the registration of
transfer of the Warrants.
4. Rights, Preferences, Privileges and Restrictions of Series
C Preferred Stock. The Shares of Series C Preferred Stock shall have the rights,
preferences, privileges and restrictions set forth in the Company's Restated
Articles of Incorporation (the "Articles"), as such Articles may be amended from
time to time in accordance with their provisions. In the event of conversion of
the Series C Preferred Stock conversion price prior to exercise of this Warrant,
this Warrant shall be exercisable into Common Stock or Series C Preferred Stock
on the same terms to which other holders of Series C Preferred Stock impacted by
such events are subject following such events. In the event of a stock split,
stock dividend, recapitalization or other event which impacts the outstanding
Series C Preferred Stock, the number of Shares and the Warrant Price shall be
adjusted to give effect to such event.
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5. Notices.
(a) Upon any adjustment of the Warrant Price and
increase or decrease in the number of Shares purchasable upon the exercise of
this Warrant, then, and in each such case, the Company, within thirty (30) days
thereafter, shall give written notice thereof to the Warrantholder at the
address of such holder as shown on the books of the Company, which notice shall
state the Warrant Price as adjusted and the increased or decreased number of
Shares purchasable upon the exercise of this Warrant, setting forth in
reasonable detail the method of calculation of each.
(b) In the event that the Company shall propose at
any time to effect an Acquisition, the Company shall send to the Warrantholder
at least twenty (20) days prior to such Acquisition written notice of the date
when the same shall take place. Each such written notice shall be given by first
class mail, postage prepaid, addressed to the Warrantholder at the address as
shown on the books of the Company for the Warrantholder.
6. Public Offering Agreement. On the closing date of a Public
Offering, the Warrantholder shall enter into an agreement with the Underwriter
retained by the Company in connection with such Public Offering not to offer,
sell, contract to sell, distribute, grant any option, right, or warrant for the
purchase of, or pledge, hypothecate, make any short sale, or otherwise transfer
or dispose of, directly or indirectly, any of the Shares, or any securities
convertible into, or exercisable or exchangeable for, Shares, or any other
Shares acquired by the Warrantholder, for a period of 180 days after the closing
date of the Public Offering.
7. Miscellaneous.
(a) The Company covenants that it will at all times
reserve and keep available, solely for the purpose of issue upon the exercise
hereof, a sufficient number of shares of Series C Preferred Stock, and
underlying Common Stock, to permit the exercise hereof in full. Such shares when
issued in compliance with the provisions of this Warrant and the Company's
Articles, as amended, will be duly authorized, validly issued, fully paid and
nonassessable.
(b) The terms of this Warrant shall be binding and
shall inure to the benefit of any successors or assigns of the Company and of
the Warrantholder.
(c) No Warrantholder, as such, shall be entitled to
vote or receive dividends or be deemed to be a shareholder of the Company for
any purpose, nor shall anything contained in this Warrant be construed to confer
upon the holder of this Warrant, as such, any rights of a shareholder of the
Company or any right to vote, give or withhold consent to any corporate action,
receive notice of meetings, receive dividends or subscription rights, or
otherwise.
(d) Receipt of this Warrant by the Warrantholder
shall constitute acceptance of and agreement to the foregoing terms and
conditions.
(e) The Company will not, by amendment of its
Articles or through any other means, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, but will at all times in good
faith assist in the carrying out of all such terms and in the taking of
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all such actions as may be necessary or appropriate in order to protect the
rights of the holder of this Warrant against impairment.
(f) Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and, in the case of any such loss, theft or destruction, upon
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company or, in the case of any such mutilation, upon surrender and
cancellation of such Warrant, the Company at its expense will execute and
deliver, in lieu thereof, a new Warrant of like date and tenor.
(g) This Warrant shall be governed by the laws of
the State of Florida.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed
by its duly authorized officer.
Dated: September 10, 1999 INTELLON CORPORATION
By: /s/ Horst G. Sandfort
----------------------------------------
Horst G. Sandfort
President and Chief Executive Officer
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EXHIBIT A
NOTICE OF EXERCISE
[To be signed upon exercise of Warrant]
The undersigned holder of the Warrant, hereby irrevocably elects to
exercise the purchase rights represented by such Warrant for, and to purchase
thereunder, _______ shares of Series C Preferred Stock, of Intellon Corporation,
and herewith makes payment of $_______ therefor or certifies to Intellon
Corporation that it has paid to Intellon Corporation net engineering expenses in
accordance with the terms of the Warrant in an amount at least equal to $3.50
for each share of Series C Preferred Stock being purchased pursuant to this
Notice of Exercise, and requests that the certificates for such shares be issued
in the name of, and delivered to ___________________ whose address is
_________________________________________.
Dated:
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(Signature)
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(Name)
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(Address)
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EXHIBIT B
FORM OF TRANSFER
(To be signed only upon transfer of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________________________ the right represented by the
attached Warrant to purchase _________ shares of Series C Preferred Stock
(and/or underlying Common Stock) of Intellon Corporation to which the attached
Warrant relates, and appoints ________________________ Attorney to transfer such
right on the books of Intellon Corporation with full power of substitution in
the premises.
Dated:
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(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
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(Address)
Signed in the presence of:
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* Insert here the number of shares without making any adjustment for
additional shares of Common Stock or any other stock or other securities
or property or cash which, pursuant to the adjustment provisions of the
Warrant, may be deliverable upon exercise.
