sv8
As filed
with the Securities and Exchange Commission on June 1, 2011
Registration No. 333-______
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
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DELAWARE
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95-3685934 |
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. employer identification no.) |
5775 MOREHOUSE DRIVE
SAN DIEGO, CALIFORNIA 92121
858-587-1121
(Address of principal executive offices)
ATHEROS COMMUNICATIONS, INC. 2004 STOCK INCENTIVE PLAN
ATHEROS COMMUNICATIONS, INC. 2009 INDUCEMENT GRANT INCENTIVE PLAN
ATHEROS COMMUNICATIONS, INC. 1998 STOCK INCENTIVE PLAN
THIRD AMENDED AND RESTATED INTELLON CORPORATION 2000 EMPLOYEE INCENTIVE PLAN
INTELLON CORPORATION 2007 EQUITY INCENTIVE PLAN
(Full title of the plans)
PAUL E. JACOBS
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
QUALCOMM INCORPORATED
5775 MOREHOUSE DRIVE
SAN DIEGO, CALIFORNIA 92121
858-587-1121
(Name and address of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. (Check one:)
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Large accelerated filer þ
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Accelerated filer ¨
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Non-accelerated filer ¨
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Smaller reporting company ¨ |
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(Do not check if a smaller reporting company) |
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This registration statement shall hereafter become effective in accordance with Rule 462
promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE |
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Proposed maximum |
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Proposed maximum |
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Amount of |
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Amount to be |
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offering price |
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aggregate offering |
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registration |
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Title of securities to be registered1 |
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registered2 |
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per share3 |
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price3 |
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fee4 |
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Atheros Communications,
Inc. 2004 Stock
Incentive Plan, as
amended |
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Common Stock |
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Par Value $.0001 |
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Outstanding awards |
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8,746,379 |
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$44.38 |
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$388,164,300 |
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$45,066 |
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Future awards |
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1,933,474 |
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$56.88 |
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$109,976,001 |
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$12,768 |
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Atheros Communications,
Inc. 2009 Inducement Grant
Incentive Plan |
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Common Stock |
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Par Value $.0001 |
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Outstanding awards |
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184,308 |
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$53.78 |
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$9,912,084 |
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$1,151 |
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Atheros Communications,
Inc. 1998 Stock Incentive Plan, |
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as amended |
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Common Stock |
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Par Value $.0001 |
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Outstanding awards |
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414,752 |
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$4.12 |
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$1,708,778 |
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$198 |
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Third Amended and Restated
Intellon Corporation 2000
Employee Incentive Plan |
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Common Stock |
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Par Value $.0001 |
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Outstanding awards |
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42,601 |
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$36.38 |
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$1,549,824 |
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$180 |
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Intellon Corporation 2007
Equity Incentive Plan |
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Common Stock |
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Par Value $.0001 |
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Outstanding awards |
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172,199 |
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$25.29 |
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$4,354,913 |
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$506 |
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TOTALS |
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11,493,713 |
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$44.87 |
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$515,665,900 |
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$59,869 |
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1 |
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The securities to be registered include options and rights to acquire Common Stock. |
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Represents 9,560,239 shares issuable in connection with the Atheros Communications,
Inc. 2004 Stock Incentive Plan, as amended, the Atheros Communications, Inc. 2009 Inducement Grant
Incentive Plan, the Atheros Communications, Inc. 1998 Stock Incentive Plan, as amended, the Third
Amended and Restated Intellon Corporation 2000 Employee Incentive Plan and the Intellon Corporation
2007 Equity Incentive Plan, all of which were assumed by QUALCOMM Incorporated on May 24, 2011
pursuant to the Agreement and Plan of Merger dated as of January 5, 2011 (the Merger Agreement),
by and among QUALCOMM Incorporated, T Merger Sub, Inc. and Atheros Communications, Inc.
Additionally, represents 1,933,474 shares issuable in connection with the Atheros Communications,
Inc. 2004 Stock Incentive Plan, as amended. Pursuant to Rule 416(a), this Registration Statement
also covers any additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction. |
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Estimated pursuant to Rule 457 solely for purposes of calculating the registration
fee. In the case of shares of Common Stock that may be issued with respect to outstanding awards,
the fee is calculated on the basis of (i) the weighted average price at which outstanding options
may be exercised, as adjusted pursuant to the Merger Agreement and (ii) the weighted average price
at which other outstanding awards were granted, as adjusted pursuant to the Merger Agreement. In
the case of shares of Common Stock that may be issued subject to the grant of future awards, the
price is based upon the average of the high and low prices of the Common Stock on May 25, 2011, as
reported on the NASDAQ Global Select Market. |
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Pursuant to Rule 457(p), QUALCOMM Incorporated, holder of all of the outstanding
voting securities of Qualcomm Atheros, Inc. (formerly known as Atheros Communications, Inc.),
offsets the $59,869 registration fee by fees totaling $34,150 paid by Qualcomm Atheros, Inc. with
respect to shares of Qualcomm Atheros, Inc. common stock remaining unsold after the termination of
Qualcomm Atheros, Inc.s Registration Statements on Form S-8
filed on February 1, 2007 (file no. 333-140391), February
28, 2008 (file no. 333-149443), February 13, 2009 (file
no. 333-157317), December 15, 2009 (file no. 333-163735), February 12, 2010 (file no. 333-164901) and February 11, 2011 (file no. 333-172177).
Accordingly, a filing fee of $25,719 is being paid herewith. |
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
QUALCOMM Incorporated (the Company) hereby incorporates by reference in this registration
statement on Form S-8 (the Registration Statement) the following documents:
(a) The Companys latest annual report on Form 10-K filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the Exchange Act), containing audited
financial statements for the Companys latest fiscal year ended September 26, 2010 as filed with
the Securities and Exchange Commission on November 3, 2010.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end
of the fiscal year covered by the registrant document referred to in (a) above.
(c) The description of the Companys Common Stock contained in the Companys registration
statements filed under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
In addition, all documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act prior to the filing of a post-effective amendment to this Registration
Statement that indicates that all securities offered hereby have been sold or that deregisters all
such securities then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and made part hereof from their respective dates of filing (such documents,
and the documents listed above, being hereinafter referred to as Incorporated Document(s));
provided, however, that the documents listed above or subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the offering made
by this Registration Statement is in effect prior to the filing with the Commission of the
Companys Annual Report on Form 10-K covering such year shall cease to be Incorporated Documents or
be incorporated by reference in this Registration Statement from and after the filing of such
Annual Report.
Any statement contained in an Incorporated Document shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed Incorporated Document modifies or supersedes such
statement. Any statement contained herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in any subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, the Company has broad powers to
indemnify its directors and officers against liabilities they may incur in such capacities,
including liabilities under the Securities Act of 1933, as amended (the Securities Act). The
Companys Bylaws require the Company to indemnify its directors and executive officers and provide
that the Company may indemnify its other officers to the full extent permitted by law. The Company
believes that indemnification under its Bylaws covers at least negligence and gross negligence by
officers and directors, and requires the Company to advance litigation expenses in the case of
stockholder derivative actions or other actions, against an undertaking by the officer or director
to repay such advances if it is ultimately determined that the officer or director is not entitled
to indemnification. The Bylaws further provide that rights conferred under such Bylaws shall not be
deemed to be exclusive of any other right such persons may have or acquire under any statute,
provision of any Certificate of Incorporation, Bylaw, agreement, vote of stockholders,
disinterested directors or otherwise.
In addition, the Companys Certificate of Incorporation provides that, pursuant to Delaware
law, its directors shall not be liable for monetary damages for breach of the directors fiduciary
duty of care to the Company and its stockholders. This provision in the Certificate of
Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to liability for breach of the
directors duty of loyalty to the Company, or acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for actions leading to improper personal
benefit to the director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not affect a directors
responsibilities under any other law, such as the federal securities laws or state or federal
environmental laws.
The Company currently has a policy providing directors and officers liability insurance with
insured directors and officers of the Company in certain circumstances. The policy also insures the
Company against losses as to which its directors and officers are entitled to indemnification.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index.
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:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
this Registration Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in this Registration Statement; and
(iii) 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; provided, however, that paragraphs
(1)(i) and (l)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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 which remain unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrants annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plans annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted
to directors, officers and controlling persons of the 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 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 and will be governed by the final adjudication of such issue.
SIGNATURE
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 with respect to the Atheros
Communications, Inc. 2004 Stock Incentive Plan, as amended, the Atheros Communications, Inc. 2009
Inducement Grant Incentive Plan, the Atheros Communications, Inc. 1998 Stock Incentive Plan, as
amended, the Third Amended and Restated Intellon Corporation 2000 Employee Incentive Plan and the
Intellon Corporation 2007 Equity Incentive Plan as assumed by QUALCOMM Incorporated to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of
California, on May 31, 2011.
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QUALCOMM Incorporated
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By: |
/s/ Paul E. Jacobs
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Paul E. Jacobs, Chairman of the Board and
Chief Executive Officer |
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of QUALCOMM Incorporated whose signatures appear below hereby
constitute and appoint PAUL E. JACOBS and WILLIAM E. KEITEL, and each of them, their true and
lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign
and execute on behalf of the undersigned this Registration Statement on Form S-8 with respect to
the Atheros Communications, Inc. 2004 Stock Incentive Plan, as amended, the Atheros Communications,
Inc. 2009 Inducement Grant Incentive Plan, the Atheros Communications, Inc. 1998 Stock Incentive
Plan, as amended, the Third Amended and Restated Intellon Corporation 2000 Employee Incentive Plan
and the Intellon Corporation 2007 Equity Incentive Plan as assumed by QUALCOMM Incorporated and any
amendment or amendments thereto, and each of the undersigned does hereby ratify and confirm all
that each of said attorney and agent, or their or his substitutes, shall do or cause to be done by
virtue hereof.
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Signature |
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Date |
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/s/ Paul E. Jacobs
Paul E. Jacobs
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Chairman of the Board and Chief Executive Officer (Principal
Executive Officer)
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May 31, 2011 |
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/s/ William E. Keitel
William E. Keitel
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Executive Vice President and Chief Financial Officer (Principal
Financial and Accounting Officer)
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May 31, 2011 |
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/s/ Barbara T. Alexander
Barbara T. Alexander
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Director
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May 31, 2011 |
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/s/ Stephen M. Bennett
Stephen M. Bennett
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Director
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May 31, 2011 |
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Director |
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/s/ Raymond V. Dittamore
Raymond V. Dittamore
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Director
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May 31, 2011 |
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/s/ Thomas W. Horton
Thomas W. Horton
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Director
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May 31, 2011 |
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/s/ Irwin Mark Jacobs
Irwin Mark Jacobs
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Director
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May 31, 2011 |
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/s/ Robert E. Kahn
Robert E. Kahn
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Director
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May 31, 2011 |
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Signature |
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Date |
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/s/ Sherry Lansing
Sherry Lansing
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Director
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May 31, 2011 |
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/s/ Duane A. Nelles
Duane A. Nelles
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Director
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May 31, 2011 |
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/s/ Francisco Ros
Francisco Ros
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Director
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May 31, 2011 |
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/s/ Brent Scowcroft
Brent Scowcroft
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Director
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May 31, 2011 |
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/s/ Marc I. Stern
Marc I. Stern
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Director
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May 31, 2011 |
EXHIBIT INDEX
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4.1
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Restated Certificate of Incorporation of the Company, as amended, is
incorporated by reference to Exhibit 3.1 to the Companys Quarterly Report on
Form 10-Q filed with the Securities and Exchange Commission on January 27,
2010. |
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4.2
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Certificate of Amendment of Certificate of Designation is incorporated by
reference to Exhibit 99.2 to the Companys Current Report on Form 8-K filed
with the Securities and Exchange Commission on September 30, 2005. |
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4.3
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Amended and Restated Bylaws of the Company are incorporated by reference to
Exhibit 3.1 to the Companys Current Report on Form 8-K filed with the
Securities and Exchange Commission on September 25, 2009. |
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5
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Opinion re legality |
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23.1
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Consent of Counsel (included in Exhibit 5) |
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23.2
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Consent of PricewaterhouseCoopers LLP |
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24
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Power of Attorney (included in signature pages to this Registration Statement) |
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99.1
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Atheros Communications, Inc. 2004 Stock Incentive Plan, as amended |
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99.2
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Atheros Communications, Inc. 2009 Inducement Grant Incentive Plan |
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99.3
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Atheros Communications, Inc. (formerly T-Span Corporation) 1998 Stock
Incentive Plan, as amended |
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99.4
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Third Amended and Restated Intellon Corporation 2000 Employee Incentive Plan |
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99.5
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Intellon Corporation 2007 Equity Incentive Plan |
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99.6
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Resolutions Amending Atheros Communications, Inc. Equity Plans |