Exhibit 10.1
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (this “
Agreement ”) is entered into as of September
, 2009, between Atheros Communications,
Inc., a Delaware corporation (“ Parent ”),
Iceman Acquisition One Corporation, a Delaware corporation and a
direct wholly-owned subsidiary of Parent (“ Merger
Subsidiary One ”), Iceman Acquisition Two LLC, a Delaware
limited liability company and a direct wholly-owned subsidiary of
Parent (“ Merger Subsidiary Two ”), and the
undersigned stockholder (the “ Stockholder ”) of
Intellon Corporation, a Delaware corporation (the “
Company ”).
WHEREAS, concurrently herewith,
Parent, Merger Subsidiary One, Merger Subsidiary Two and the
Company (together, the “ Parties ”) will enter
into an Agreement and Plan of Merger (the “ Merger
Agreement ”) pursuant to which the Parties have agreed
that Parent will acquire the Company through a merger of Merger
Subsidiary One with and into the Company (the “ First Step
Merger ”) in accordance with Delaware Law, with the
Company continuing as the surviving corporation (the “
Interim Surviving Corporation ”) whereby at the
Effective Time (as such term is defined in the Merger Agreement)
all of the outstanding shares of capital stock of the Company (the
“ Company Stock ”) shall cease to exist and
shall become and convert into the right to receive a portion of the
Merger Consideration (as such term is defined in the Merger
Agreement) as set forth in the Merger Agreement;
WHEREAS, immediately following the
Effective Time, subject to the satisfaction of certain requirements
set forth in the Merger Agreement and upon the terms and subject to
the conditions set forth in the Merger Agreement and the applicable
provisions of Delaware Law, the Interim Surviving Corporation shall
be merged with and into Merger Subsidiary Two (the “
Second Step Merger ” and, together with the First Step
Merger, the “ Merger ”), the separate corporate
existence of the Interim Surviving Corporation shall thereupon
cease and Merger Subsidiary Two shall continue as the surviving
entity and wholly-owned subsidiary of Parent;
WHEREAS, as of the date hereof, the
Stockholder owns (either beneficially or of record) the securities
of the Company as is indicated on Schedule A of this
Agreement;
WHEREAS, the Stockholder
acknowledges that he, she or it has received and reviewed a copy of
the Merger Agreement; and
WHEREAS, as an inducement and a
condition to the willingness of Parent, Merger Subsidiary One and
Merger Subsidiary Two to enter into the Merger Agreement, Parent,
Merger Subsidiary One and Merger Subsidiary Two require that the
Stockholder enter into, and the Stockholder has agreed to enter
into, this Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the mutual premises, representations, warranties,
agreements and covenants set forth herein and in the Merger
Agreement, Parent, Merger Subsidiary One, Merger Subsidiary Two and
the Stockholder, each intending to be legally bound, hereby agree
as follows:
1. Certain Definitions . All
capitalized terms that are used but not defined herein shall have
the respective meanings ascribed to them in the Merger Agreement.
For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
(a) “ beneficial
ownership ” shall be as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.
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(b) “ Expiration Date
” shall mean the earliest to occur of (i) such date and
time as the Merger Agreement shall have been terminated for any
reason or (ii) such date and time as the First Step Merger
shall become effective in accordance with the terms and provisions
of the Merger Agreement.
(c) “ Person ”
shall mean any individual, corporation, limited liability company,
general or limited partnership, trust, unincorporated association
or other entity of any kind or nature, or any governmental
authority.
(d) “ Shares ”
shall mean (i) all securities of the Company (including all
shares of Company Common Stock, Company Preferred Stock and all
options, warrants and other rights to acquire shares of Company
Stock) beneficially owned by the Stockholder as of the date hereof,
and (ii) all additional securities of the Company (including
all additional shares of Company Common Stock, Company Preferred
Stock and all additional options, warrants and other rights to
acquire shares of Company Stock) of which the Stockholder acquires
beneficial ownership during the period from the date of this
Agreement through the Expiration Date (including by way of stock
dividend or distribution, split-up, recapitalization, combination,
exchange of shares and the like).
(e) “ Transfer ”.
A Person shall be deemed to have effected a “ Transfer
” of a Share if such person directly or indirectly
(i) sells, pledges, encumbers, assigns, grants an option with
respect to, transfers or disposes of such Share or any interest in
such Share, or (ii) enters into an agreement or commitment
providing for the sale of, pledge of, encumbrance of, assignment
of, grant of an option with respect to, transfer of or disposition
of such Share or any interest therein.
2. Transfer of Shares
.
(a) Transfer Restrictions .
Except as expressly contemplated by this Agreement in connection
with the Merger, the Stockholder shall not cause or permit any
Transfer of any of the Shares during the term of this
Agreement.
(b) Permitted Transfers .
Section 2(a) shall not prohibit a Transfer of any Shares by
the Stockholder: (i) if the Stockholder is an individual,
(X) to any member or members of the Stockholder’s
immediate family or to trusts for the benefit of such persons,
(Y) upon death of the Stockholder or (Z) pursuant to a
sales plan entered into prior to the date hereof pursuant to Rule
10b5-1 of the Securities Exchange Act of 1934, as amended, as copy
of which as been provided to Parent; (ii) if Stockholder is a
partnership or limited liability company, to one or more partners
or members of the Stockholder or to an affiliated corporation,
partnership or limited liability company under common control with
the Stockholder; or (iii) if Stockholder is the trustee of a
trust, to one or more beneficiaries of such trust; provided that, a
transfer referred to in this sentence shall be permitted only if,
as a precondition to such Transfer, the transferee agrees in
writing, reasonably satisfactory in form and substance to Parent,
to be bound by all of the terms of the Agreement. No such Transfer
shall constitute or result in a release of any transferor from any
of its obligations under this Agreement, and following any such
Transfer the transferor shall remain jointly and severally liable
with the transferee for any breach of the Agreement by the
transferee.
(c) Transfer of Voting Rights
. The Stockholder shall not deposit (or permit the deposit of) any
Shares in a voting trust or grant any proxy or enter into any
voting agreement or similar agreement in contravention of the
obligations of the Stockholder under this Agreement with respect to
any of the Shares.
3. Agreement to Vote Shares
.
(a) Prior to the Expiration Date, at
every meeting of the stockholders of the Company called, and at
every adjournment or postponement thereof, and, in the event the
Company determines to seek
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stockholder action or approval by written
consents, on every such action or approval by written consent of
the stockholders of the Company, the Stockholder (solely in the
Stockholder’s capacity as such) shall, or shall cause the
holder of record on any applicable record date to, vote the
Shares:
(i) in favor of the Merger, the
adoption, execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof, and each of the
actions contemplated by the Merger Agreement and this Agreement and
any actions required in furtherance hereof or thereof;
(ii) against approval of any
proposal made in opposition to, or in competition with,
consummation of the Merger or any other transactions contemplated
by the Merger Agreement; and
(iii) against any of the following
actions (other than those actions that relate to the Merger and any
other transactions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of
assets, reorganization or recapitalization of the Company or any
subsidiary of the Company with any party, (B) any sale, lease
or transfer of any significant part of the assets of the Company or
any subsidiary of the Company, (C) any reorganization,
recapitalization, dissolution, liquidation or winding up of the
Company or any subsidiary of the Company, (D) any material
change in the capitalization of the Company or any subsidiary of
the Company, or the corporate structure of the Company or any
subsidiary of the Company, or (E) any other action or
agreement that is intended, or could reasonably be expected to,
impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any other transactions contemplated by the
Merger Agreement.
(b) The Stockholder agrees that the
Shares that are entitled to be voted shall be voted (or cause to be
voted) as set forth in Section 3(a) whether or not the
Stockholder’s vote, consent or other approval is sought on
only one or any combination of the matters set forth in clauses
(i)-(iii) of Section 3(a) above and at any time following
the date of this Agreement but prior to the Expiration
Date.
(c) In the event that a meeting of
the stockholders of the Company is held prior to the Expiration
Date, the Stockholder shall, or shall cause the holder of record on
any applicable record date to, appear at such meeting or otherwise
cause the Shares to be counted as present thereat for purposes of
establishing a quorum.
(d) The Stockholder shall not enter
into any agreement or understanding with any Person to vote or give
instructions in any manner inconsistent with the terms of this
Section 3.
4. Agreement Not to Exercise
Appraisal Rights . The Stockholder shall not exercise any
rights (including, without limitation, under Section 262 of
Delaware Law) to demand appraisal of any Shares that may arise with
respect to the Merger.
5. Directors and Officers .
Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall (or shall require the Stockholder
to attempt to) limit or restrict the Stockholder in his or her
capacity as a director or officer of the Company or any designee,
employee, representative or affiliate of the Stockholder who is a
director or officer of the Company from acting in such capacity or
voting in such person’s sole discretion on any matter (it
being understood that this Agreement shall apply to the Stockholder
solely in the Stockholder’s capacity as a stockholder of the
Company).
6. Irrevocable Proxy .
Concurrently with the execution of this Agreement, the Stockholder
shall deliver to Parent a limited irrevocable proxy in the form
attached hereto as Exhibit A (the “ Proxy
”), which shall be irrevocable to the fullest extent
permissible by law, with respect to the Shares. If for any reason
the Proxy granted pursuant to this Agreement is not irrevocable,
then the Stockholder agrees to vote the Shares that are then
entitled to vote in accordance with Section 3 of this
Agreement. Upon the Expiration Date, the Proxy shall terminate
automatically without any further action by any party
hereto.
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7. No Ownership Interest .
Nothing contained in this Agreement shall be deemed to vest in
Parent any direct or indirect ownership or incidence of ownership
of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain vested
in and belong to the Stockholder, and Parent shall have no
authority to manage, direct, superintend, restrict, regulate,
govern, or administer any of the policies or operations of the
Company or exercise any power or authority to direct the
Stockholder in the voting of any of the Shares, except as otherwise
provided herein.
8. Representations and Warranties
of the Stockholder .
(a) Organization; Power; Binding
Agreement . The Stockholder has full power and authority to
execute and deliver this Agreement and the Proxy and, to perform
the Stockholder’s obligations hereunder and to consummate the
transactions contemplated hereby. The execution, delivery and
performance by the Stockholder of this Agreement and, the
performance by the Stockholder of its obligations hereunder and the
consummation by the Stockholder of the transactions contemplated
hereby have been duly and validly authorized by the Stockholder, if
applicable, and no other actions or proceedings on the part of the
Stockholder are necessary to authorize the execution and delivery
by it of this Agreement and, the performance by the Stockholder of
its obligations hereunder or the consummation by the Stockholder of
the transactions contemplated hereby. The Stockholder has full
power and authority to bind any and all of its affiliates whose
shares of Company Stock are or may deemed to be beneficially owned
by the Stockholder. This Agreement has been duly executed and
delivered by the Stockholder, and, assuming this Agreement
constitutes a valid and binding obligation of Parent, constitutes a
valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except that
such enforceability (i) may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws of general application affecting or relating to
the enforcement of creditors’ rights generally and
(ii) is subject to general principles of equity, whether
considered in a proceeding at law or in equity.
(b) No Conflicts . No filing
with, and no permit, authorization, consent, or approval of, any
Governmental Authority is necessary for the execution by the
Stockholder of this Agreement or the performance by the Stockholder
of its obligations hereunder. None of the execution and delivery by
the Stockholder of this Agreement, the performance by the
Stockholder of its obligations hereunder (i) conflict with or
result in any breach of any organizational documents applicable to
the Stockholder, (ii) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of
the material terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement, or other
instrument or obligation of any kind to which the Stockholder is a
party or by which the Stockholder or any of the Stockholder’s
properties or assets may be bound, or (iii) materially violate
any order, writ, injunction, decree, judgment, order, statute,
rule, or regulation applicable to the Stockholder or any of the
Stockholder’s properties or assets.
(c) Ownership of Shares . The
Stockholder (i) is the record or beneficial owner of the
Shares indicated on Schedule A of this Agreement, all of
which are free and clear of any liens, adverse claims, charges,
security interests, pledges or options, proxies, voting trusts or
agreements, or any other third party rights or encumbrances
whatsoever (“ Encumbrances ”) (except any
Encumbrances arising under Applicable Law or arising hereunder),
(ii) is the owner of options that are exercisable for the
number of Shares indicated on Schedule A of this Agreement,
all of which options and Shares issuable upon the exercise of such
options are free and clear of any Encumbrances (except any
Encumbrances arising under Applicable Law or arising hereunder),
and (iii) does not own, beneficially or otherwise, any
securities of the Company other than the Shares, options to
purchase Shares, and Shares issuable upon the exercise of such
options, indicated on Schedule A of this
Agreement.
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(d) Absence of Litigation .
As of the date hereof, there is no action, suit, investigation or
proceeding pending against, or, to the knowledge of the
Stockholder, overtly threatened against or affecting, the
Stockholder or any of its, his or her properties or assets
(including the Shares) that could reasonably be expected to impair
the ability of the Stockholder to perform its, his or her
obligations hereunder.
(e) No Finder’s Fees .
Except as described in the Merger Agreement, no broker, investment
banker, financial advisor or other person is entitled to any
broker’s, finder’s, financial advisor’s or other
similar fee or commission in connection with the transactions
contemplated by the Merger Agreement or this Agreement based upon
arrangements made by the Stockholder.
(f) Reliance by Parent . The
Stockholder understands and acknowledges that Parent is entering
into the Merger Agreement in reliance upon the Stockholder’s
execution and delivery of this Agreement.
9. No Solicitation;
Notification .
(a) No Solicitation . The
Stockholder understands and acknowledges the obligations of the
Company under Section 6.5 of the Merger Agreement and agrees
that the Stockholder (solely in the Stockholder’s capacity as
such) shall not, and shall not authorize any investment banker,
attorney or other advisor or representative retained by the
Stockholder to, directly or indirectly, take any action or omit to
take any action in contravention of such obligations.
(b) Notice of Certain Events
. The Stockholder agrees to notify Parent within a reasonable time
(but in any event within two (2) Business Days) of any
development occurring after the date hereof that causes, or that
would reasonably be expected to cause, any breach of any of the
representations and warranties of the Stockholder set forth
herein.
10. Insider Information . The
Stockholder acknowledges that, in its, his or her position with the
Company, it, he or she has become privy to material non-public
information related to Parent.
11. Merger Agreement . The
Stockholder acknowledges that he, she or it has received and
reviewed a copy of the Merger Agreement. The Stockholder has
adequate information concerning the business and financial
condition of the Company and Parent to make an informed decision
regarding the Merger Agreement, the Merger and the execution of
this Agreement, and has independently, without reliance upon
Parent, Merger Subsidiary One or Merger Subsidiary Two and based on
such information as the Stockholder has deemed appropriate, made
its own analysis and decision to
