The following excerpt is from the company's
SEC filing.
You are cordially invited to attend the Annual General Meeting
of Shareholders of EZchip Semiconductor Ltd. (the “Company” or
“EZchip”), to be held at our principal executive offices, at 1
Hatamar Street, Yokneam 2069206, Israel, on Thursday, November 12,
2015 at 5:00 p.m. (Israel time), and thereafter as it may be
adjourned from time to time (the “General Meeting”).
On September 30, 2015, the Company entered into an Agreement of
Merger (the “Merger Agreement”) with Mellanox Technologies, Ltd.,
an Israeli company whose shares are listed on the NASDAQ Global
Select Market (“Parent”), and Mondial Europe Sub Lt d., a private
Israeli company and a wholly-owned subsidiary of Parent (“Merger
Sub”). At the General Meeting, you will be asked to consider and
vote on a resolution for (a) the approval of (i) the Merger
Agreement; (ii) the merger of Merger Sub with and into the Company
in accordance with Sections 314-327 of the Israeli Companies Law,
5759-1999 (the “ICL”), following which Merger Sub will cease to
exist as a separate legal entity and the Company will become a
wholly-owned subsidiary of Parent; (iii) the consideration of
US$25.50 in cash (the “Merger Consideration”), without interest and
subject to applicable withholding taxes, for each ordinary share,
par value NIS 0.02 per share, of the Company (the “Ordinary
Shares”) held by the Company’s shareholders as of immediately prior
to the effective time of the Merger; and (iv) all other
transactions contemplated by the Merger Agreement and related to
the Merger, and (b) the determination that the foregoing is in the
best interest of the Company (collectively, the “Merger
Proposal”).
Our Board of Directors has:
(i) determined that the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement are fair
to, and in the best interests of, our Company and its shareholders
and that, considering the financial position of the merging
companies, no reasonable concern exists that the surviving company
will be unable to fulfill the obligations of our Company to its
creditors; (ii) approved the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement; (iii)
adopted further resolutions supporting the transactions
contemplated by the Merger Agreement; and (iv) determined to
recommend that the shareholders of our Company approve the Merger
Agreement, the Merger and the other transactions contemplated by
the Merger Agreement.
In addition to the Merger Proposal, the following matters will
be on the agenda for the General Meeting:
the reelection of five of the Company’s directors – Benny
Hanigal, Eli Fruchter, Prof. Ran Giladi, Joel Maryles and Karen
Sarid, until the next annual meeting or their prior termination or
resignation;
the reelection of Shai Saul, an Outside Director of the Company
(within the meaning of the ICL), for an additional three year term,
or his prior termination or resignation;
the approval of a cash payment to Joel Maryles, a director of
the Company; and
the ratification and approval of the appointment and
compensation of Kost Forer Gabbay & Kasierer, a member of Ernst
& Young Global, as the Company’s independent registered public
accountants for the fiscal year ending December 31, 2015; when this
proposal is raised, you will also be invited to discuss the
Company’s 2014 consolidated financial statements.
OUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” APPROVAL
OF THE MERGER PROPOSAL AND THE OTHER PROPOSALS ON THE AGENDA.
Approval of the Merger Proposal will require the affirmative
vote of holders of at least seventy-five percent (75%) of the
Ordinary Shares present, in person or by proxy, and voting on the
Merger Proposal (not taking into consideration abstentions). Record
holders of our outstanding Ordinary Shares as of the close of
business on October 12, 2015, the record date for the General
Meeting, are entitled to notice of, and to vote at, the General
Meeting, and are entitled to one vote at the General Meeting per
each Ordinary Share held. Our outstanding Ordinary Shares
constitute the only outstanding class of our share capital.
The approval of each of the other proposals requires the
affirmative vote of a majority of the Ordinary Shares present, in
person or by proxy, and voting on such proposal (not taking into
consideration abstentions). In addition, in order to approve the
reelection of Shai Saul as an Outside Director of the Company and
the payment of a director cash payment to Joel Maryles, the
shareholders’ approval must
either
(i) include at least a majority of the Ordinary Shares voted by
shareholders who are not controlling shareholders (within the
meaning of the ICL) and who are not shareholders who have a
personal interest (within the meaning of the ICL) in the approval
of each such proposal (excluding a personal interest that is not
related to a relationship with the controlling shareholders), not
taking into consideration abstentions, or (ii) be obtained such
that the total Ordinary Shares of non-controlling shareholders and
non-interested shareholders voted against such proposal do not
represent more than two percent of the outstanding Ordinary
Shares.
Enclosed with this letter you will find a copy of the Notice of
the Annual General Meeting and the Proxy Statement for the General
Meeting. The enclosed Proxy Statement and the attachments thereto
contain important information about the General Meeting, the Merger
Agreement, the Merger, all the other transactions contemplated by
the Merger Agreement and the other agenda items, and you are urged
to read them carefully and in their entirety.
YOUR VOTE IS IMPORTANT REGARDLESS OF THE NUMBER OF ORDINARY
SHARES YOU OWN. ACCORDINGLY, YOU ARE REQUESTED TO PROMPTLY
COMPLETE, SIGN AND DATE THE ENCLOSED PROXY CARD AND RETURN IT IN
THE ENVELOPE PROVIDED, WHETHER OR NOT YOU PLAN TO ATTEND THE
MEETING. THIS WILL NOT PREVENT YOU FROM VOTING YOUR ORDINARY SHARES
IN PERSON IF YOU SUBSEQUENTLY CHOOSE TO ATTEND THE MEETING.
Thank you for your cooperation.
Chairman of the Board of Directors
EZCHIP SEMICONDUCTOR LTD.
NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS
To the Shareholders of EZchip Semiconductor Ltd. (the
“Company”):
The Company cordially invites you to attend the Annual General
Meeting of Shareholders of the Company (the “General Meeting”) to
be held on Thursday, November 12, 2015 at 5:00 p.m. (Israel time),
at the Company’s principal executive offices at 1 Hatamar Street,
Yokneam 2069206, Israel (the telephone number at that address is
+972-4-959-6666), and thereafter, as it may be adjourned from time
to time.
The following matters are on the agenda for the General
Meeting:
(a) the approval of (i) the Agreement of Merger dated as of
September 30, 2015 (the “Merger Agreement”) by and among the
Company, Mellanox Technologies, Ltd., an Israeli company
(“Parent”), and Mondial Europe Sub Ltd., an Israeli company and a
wholly-owned subsidiary of Parent (“Merger Sub”); (ii) the merger
of Merger Sub with and into the Company in accordance with Sections
314-327 of the Israeli Companies Law, 5759-1999 (the “ICL”),
following which Merger Sub will cease to exist as a separate legal
entity and the Company will become a wholly-owned subsidiary of
Parent (the “Merger”); (iii) the payment of consideration of
US$25.50 in cash, without interest and subject to applicable
withholding taxes, for each ordinary share, par value NIS 0.02 per
share, of the Company (the “Ordinary Shares”) held by the Company’s
shareholders as of immediately prior to the effective time of the
Merger; and (iv) all other transactions contemplated by the Merger
Agreement and related to the Merger, as will be detailed in the
Company’s proxy statement for the General Meeting; and (b) the
determination that the foregoing is in the best interest of the
Company (collectively, the “Merger Proposal”);
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE
“FOR” THE APPROVAL OF THE MERGER PROPOSAL AND EACH OF THE OTHER
PROPOSALS.
Further information regarding the Merger Proposal and the other
proposals on the agenda for the General Meeting will be included in
the Company’s proxy statement, which will be mailed to the
Company’s shareholders in advance of the General Meeting. The proxy
statement will be furnished to the United States Securities and
Exchange Commission (the “SEC”) on Form 6-K and will be available
to the public on the SEC’s website at
and the Company’s website at www.ezchip.com, and, in addition,
at
http://www.magna.isa.gov.ilor
http://maya.tase.co.il. A form of proxy card will be enclosed with
the proxy statement.
Record Date
Only shareholders of record at the close of business on October
12, 2015 (the “Record Date”) will be entitled to receive notice of,
and to vote at, the General Meeting.
A shareholder, whose Ordinary Shares are registered with a
member of TASE, is required to prove his or her share ownership to
vote at the General Meeting. Such shareholder shall provide the
Company with an ownership certificate (as of the Record Date) from
that TASE member and is entitled to receive the ownership
certificate in the branch of that TASE member or, if the
shareholder so requests, by mail to his or her address (in
consideration of mailing fees only). Such a request should be made
in advance for a specific securities account.
Quorum and Voting
Pursuant to the Company’s Articles of Association, the quorum
required for the General Meeting consists of at least two
shareholders present, in person or by proxy, who hold or represent
between them more than 50% of the Company’s issued and outstanding
share capital. Broker non-votes and abstentions will be counted as
present at the General Meeting for the purpose of determining
whether a quorum is present. A broker non-vote occurs when a bank,
broker or other nominee holding ordinary shares for a beneficial
owner does not vote on a particular proposal because the nominee
does not have discretionary voting power with respect to that
proposal and has not received voting instructions from the
beneficial owner. While counted for quorum purposes, abstentions
and broker non-votes will not be treated as voting shares and will
not have any effect on whether the requisite vote is obtained for
all matters placed before shareholders for their vote.
The approval of the Merger Proposal in Item 1 requires the
affirmative vote of holders of at least seventy-five percent (75%)
of the Ordinary Shares present, in person or by proxy, and voting
on the Merger Proposal (not taking into consideration abstentions).
The approval of each of the proposals in Items Nos. 2, 3, 4 and 5
require the affirmative vote of a majority of the Ordinary Shares
present, in person or by proxy, and voting on such proposal (not
taking into consideration abstentions). In addition, in order to
approve each of Items Nos. 3 and 4, the shareholders’ approval
must
(i) include at least a majority of the Ordinary Shares voted by
shareholders who are not controlling shareholders (within the
meaning of the ICL) and who are not shareholders who have a
personal interest (within the meaning of the ICL) in the approval
of such proposal (excluding a personal interest that is not related
to a relationship with the controlling shareholders), not taking
into consideration abstentions, or (ii) be obtained such that the
total Ordinary Shares of non-controlling shareholders and
non-interested shareholders voted against such proposal do not
represent more than two percent of the outstanding Ordinary Shares.
If within half an hour from the time appointed for the meeting a
quorum is not present, the meeting shall be adjourned to November
19, 2015, at the same time and place. At such adjourned meeting,
the presence of at least two shareholders in person or by proxy
(regardless of the voting power possessed by their shares) will
constitute a quorum.
Position Statements by Shareholders
Shareholders are allowed to apply in writing, through the
Company, to the other shareholders of the Company in order to
solicit their vote on items on the agenda of the General Meeting
(“Position Notice”). Position Notices must be in English and may be
sent to the Company’s offices at the address below. Any Position
Notice received will be furnished to the SEC on Form 6-K, and will
be made available to the public on the SEC’s website at
and the Company’s website at www.ezchip.com, and, in addition,
at
http://www.magna.isa.gov.iland
http://maya.tase.co.il. The last date for issuance of such Position
Notices to the Company is November 2, 2015, and the last date for
submitting a request to include a proposal in accordance with
Section 66(b) of the ICL is October 20, 2015.
A shareholder whose Ordinary Shares are registered with a TASE
member and are not registered on the Company’s shareholder’s
register is entitled to receive from the TASE member who holds the
Ordinary Shares on the shareholder’s behalf, by e-mail, for no
charge, a link to the text of proxy card and to the Position
Notices posted on the ISA website, unless the shareholder notified
the TASE member that he or she is not interested; provided, that
such notice was provided with respect to a particular securities
account prior to the Record Date.
All shareholders are entitled to contact the Company directly
and receive the text of the proxy materials and any Position
Notice. Once made available to the public as described above, such
documents will also be available for inspection at the Company’s
offices, which are located at 1 Hatamar Street, Yokneam 2069206,
Israel, during regular business hours and subject to prior
coordination. The Company’s phone number is +972-4-959-6666.
By Order of the Board of Directors
IT IS IMPORTANT THAT THE ENCLOSED PROXY CARD BE
COMPLETED, SIGNED, DATED AND RETURNED PROMPTLY
STATEMENT
TO BE HELD ON THURSDAY, NOVEMBER 12, 2015
INTRODUCTION
We are furnishing this Proxy Statement to our shareholders in
connection with the solicitation by our Board of Directors of
proxies to be used at the Annual General Meeting of Shareholders
(which, as it may be adjourned or postponed from time to time, we
refer to as the General Meeting), to be held at our principal
executive offices located at 1 Hatamar Street, Yokneam 2069206,
Israel, on Thursday, November 12, 2015, at 5:00 p.m. (Israel time)
and thereafter as it may be adjourned from time to time. We are
first mailing this Proxy Statement, the accompanying notice, letter
to shareholders and proxy card on or about October 16, 2015 to the
holders of our Ordinary Shares entitled to notice of, and to vote
at, the General Meeting. All references to “EZchip” “the Company,”
“we,” “us,” “our” and “our Company,” or words of like import, are
references to EZchip Semiconductor Ltd. and its subsidiaries,
references to “you” and “your” refer to our shareholders and all
references to “$” or to “US$” are to United States dollars and all
references to “NIS” are to New Israeli Shekels.
At the General Meeting, shareholders will be asked to consider
and vote on the approval of the Merger Proposal, which includes the
following:
the Agreement of Merger dated as of September 30, 2015 (which we
refer to as the Merger Agreement) by and among the Company,
Mellanox Technologies, Ltd., an Israeli company whose shares are
listed on the NASDAQ Global Select Market (which we refer to as
Parent or Mellanox), and Mondial Europe Sub Ltd., a private Israeli
company and a wholly-owned subsidiary of Parent (which we refer to
as Merger Sub);
the merger of Merger Sub with and into the Company pursuant to
Sections 314-327 of the Companies Law, 5759-1999 of the State of
Israel (which, together with the regulations promulgated
thereunder, we refer to as the ICL), following which Merger Sub
will cease to exist as a separate legal entity and the Company will
become a wholly-owned subsidiary of Parent (which we refer to as
the Merger);
the consideration of US$25.50 in cash (which we refer to as the
Merger Consideration), without interest and subject to applicable
withholding taxes, for each ordinary share of the Company, par
value NIS 0.02 per share (which we refer to as an Ordinary Share)
held by the Company’s shareholders as of immediately prior to the
effective time of the Merger;
all other transactions and arrangements contemplated by the
Merger Agreement; and
that the Merger Proposal is in the best interest of the
Company.
the reelection of Shai Saul, an Outside Director of the Company
(within the meaning of the ICL), for an additional three year term
or his prior termination or resignation;
Shareholders Entitled to Vote
Shareholders of record who held Ordinary Shares at the close of
business on October 12, 2015 (which we refer to as the Record
Date), are entitled to notice of, and to vote at, the General
Meeting.
Shareholders registered in the Company’s shareholders registry
and shareholders who hold shares through members of the Tel Aviv
Stock Exchange Ltd. (which we refer to as the TASE) may vote
through the enclosed form of proxy by completing, signing, dating
and mailing the proxy with a copy of their identity card, passport
or certificate of incorporation, as the case may be, to the
Company’s offices. Shareholders who hold shares through members of
the TASE and intend to vote their shares either in person or by
proxy must deliver to the Company an ownership certificate
confirming their ownership of the Company’s shares on the Record
Date, which must be certified by a recognized financial
institution, as required by the Israeli Companies Regulations
(Proof of Ownership of Shares for Voting at General Meeting) of
2000, as amended.
Alternatively, shareholders who hold shares through members of
the Tel Aviv Stock Exchange may vote electronically via the
electronic voting system of the Israel Securities Authority up to
six hours before the time fixed for the General Meeting. You should
receive instructions about electronic voting from the Tel Aviv
Stock Exchange member through which you hold your shares.
In addition, shareholders who, as of the Record Date, held
Ordinary Shares through a bank, broker or other nominee which is a
shareholder of record of the Company or which appears in the
participant list of a securities depository, are considered to be
beneficial owners of shares held in “street name”. These proxy
materials are being forwarded to beneficial owners by your bank,
broker or other nominee that is considered the holder of record.
Beneficial owners have the right to direct how their shares should
be voted and are also invited to attend the General Meeting, but
may not actually vote their shares in person at the General
Meeting. For those beneficial owners, the bank, broker or other
nominee that is a shareholder of record has enclosed a voting
instruction card for you to use in directing the holder of record
how to vote the shares.
As of October 12, 2015, the Record Date, there were 29,961,616
Ordinary Shares issued, outstanding and entitled to one vote each
upon each of the matters to be presented at the General
Meeting.
Pursuant to the Company’s Articles of Association, the quorum
required for the General Meeting consists of at least two
shareholders present, in person or by proxy, who hold or represent
between them more than 50% of the Company’s issued and outstanding
share capital. Broker non-votes and abstentions will be counted as
present at the General Meeting for the purpose of determining
whether a quorum is present. A broker non-vote occurs when a bank,
broker or other nominee holding Ordinary Shares for a beneficial
owner does not vote on a particular proposal because the nominee
does not have discretionary voting power with respect to that
proposal and has not received instructions from the beneficial
owner. While counted for quorum purposes, abstentions and broker
non-votes will not be treated as voting shares and will not have
any effect on whether the requisite vote is obtained for all
matters placed before shareholders for their vote.
Vote Required
Provided that a quorum is present, approval of the Merger
Proposal will require the affirmative vote of holders of at least
seventy-five percent (75%) of the Ordinary Shares present, in
person or by proxy, and voting on the Merger Proposal (not taking
into consideration abstentions).
Pursuant to Section 320(c) of the ICL, in the event that shares
of a merging company are held by the other merging company or by a
person holding 25% or more of any kind of means of control in the
other merging company, the merger will not be approved if a
majority of the shareholders present and voting at the General
Meeting (not counting abstainers), which are not the other merging
company or the person so holding or anyone acting on behalf of
either of them, including relatives or corporations under their
control, are opposed to the merger;
however
, that a person will not be deemed to hold shares of the other
merging company, simply because he/she holds shares of the merging
company. Under the Merger Agreement, Parent has represented that no
such cross-holding exists.
The approval of each of the other proposals require the
affirmative vote of a majority of the Ordinary Shares present, in
person or by proxy, and voting on such proposal (not taking into
consideration abstentions). In addition, in order to approve the
reelection of Shai Saul as an Outside Director of the Company
(within the meaning of the ICL) and the payment of a director cash
payment to Joel Maryles, the shareholders’ approval must
Under the ICL, in general, a person will be deemed to be a “
” if the person has the power to direct the activities of the
Company, other than solely as a result of serving as a director or
officer of the Company. A person is presumed to be a controlling
shareholder if it holds (i) 50% or more of any type of controlling
means in the Company, or (ii) 25% or more of the voting rights in
the Company, if no other person holds more than 50% of the voting
rights in the Company.
Under the ICL, a person is deemed to have a “
” in the Merger Proposal if this person, or certain members of
this person’s family or a company that is affiliated with this
person or with such members of this person’s family (namely, a
company in which this person or any such family member serves as a
director or chief executive officer, has the right to appoint a
director or the chief executive officer, or owns 5% or more of the
outstanding shares) has a personal interest in the adoption of such
proposal. However, a person is not deemed to have a “personal
interest” if this person’s interest arises solely from this
person’s ownership of the Company’s Ordinary Shares. The term
“personal interest” also includes a personal interest of an
individual voting via a power of attorney given by a third party
(even if the empowering shareholder has no personal interest), and
the vote of an attorney-in-fact shall be considered a personal
interest vote if the empowering shareholder has a personal
interest, in each case regardless of whether the attorney-in-fact
has the discretion in the voting.
The enclosed form of proxy card includes a certification that
you are not a controlling shareholder of the Company, do not have a
personal interest in the reelection of Mr. Saul as an Outside
Director and in the payment of a director cash payment to Joel
Maryles and are not a shareholder listed in Section 320(c) of the
ICL. If you think that this statement is incorrect, please contact
the Company’s proxy solicitor, MacKenzie Partners, Inc., toll-free
at (800) 322-2885 (banks and brokers call collect at (212)
929-5500). If you hold your shares in “street name,” you may also
contact the representative managing your account, who may contact
MacKenzie Partners, Inc. on your behalf.
Each Ordinary Share is entitled to one vote on each proposal or
item that comes before the General Meeting. If two or more persons
are registered as joint owners of any Ordinary Share, the right to
attend the General Meeting shall be conferred upon all of the joint
owners, but the right to vote at the General Meeting and/or the
right to be counted as part of the quorum required for the General
Meeting shall be conferred exclusively upon the senior among the
joint owners attending the General Meeting, in person or by proxy,
and for this purpose seniority shall be determined by the order in
which the names stand on the Company’s Shareholder Register.
Only Ordinary Shares that are voted will be counted towards
determining whether the Merger Proposal or the other applicable
agenda matter is approved by shareholders. Ordinary Shares present
at the General Meeting that are not voted on a particular proposal
or Ordinary Shares present by proxy where the shareholder properly
withheld authority to vote on such proposal (including broker
non-votes) will not be counted in determining whether such matter
is approved by shareholders, but will be counted for purposes of
determining whether a quorum exists.
Proposed Resolutions
It is proposed that the following resolutions be adopted at the
General Meeting:
RESOLVED
, (a) to approve the Merger Proposal, including the approval of:
(i) the Merger Agreement; (ii) the Merger, pursuant to Section
314-327 of the ICL, of the Company with Merger Sub, an Israeli
company and a wholly-owned subsidiary of Parent; (iii) the payment
of the Merger Consideration, without interest and subject to
applicable withholding taxes, for each Ordinary Share held by the
Company’s shareholders as of immediately prior to the effective
time of the Merger; and (vi) all other transactions and
arrangements contemplated by the Merger Agreement, and (b) that the
Merger Proposal is in the best interest of the Company (all
capitalized terms are as defined in this Proxy Statement);
FURTHER RESOLVED
, to reelect Benny Hanigal to serve as a director on the Board
of Directors of the Company until the 2016 annual general meeting
of shareholders or his prior termination or resignation;
, to reelect Eli Fruchter to serve as a director on the Board of
Directors of the Company until the 2016 annual general meeting of
shareholders or his prior termination or resignation;
, to reelect Prof. Ran Giladi to serve as a director on the
Board of Directors of the Company until the 2016 annual general
meeting of shareholders or his prior termination or
resignation;
, to reelect Joel Maryles to serve as a director on the Board of
Directors of the Company until the 2016 annual general meeting of
shareholders or his prior termination or resignation;
, to reelect Karen Sarid to serve as a director on the Board of
Directors of the Company until the 2016 annual general meeting of
shareholders or her prior termination or resignation;
, to reelect Shai Saul to serve as an Outside Director (within
the meaning of the ICL) on the Board of Directors of the Company
for an additional three-year term commencing on the date of the
General Meeting or his prior termination or resignation;
, to approve the payment of $154,000 to Joel Maryles, a director
of the Company, for his services as director of the Company;
and
, that the appointment of Kost Forer Gabbay & Kasierer, a
member of Ernst & Young Global, as the Company’s independent
registered public accountants for the fiscal year ending December
31, 2015 be, and it hereby is, ratified and approved, and that the
Audit Committee (subject to ratification of the Board of Directors)
be, and it hereby is, authorized to fix the remuneration of such
independent registered public accountants in accordance with the
volume and nature of their services.
Our Board of Directors recommends a vote “FOR” approval of each
of the proposed resolutions.
Proxies
All Ordinary Shares represented by properly executed proxies
received by us no later than twenty-four (24) hours prior to the
General Meeting and not revoked prior to or at the General Meeting
in accordance with the procedure described below will be voted as
specified in the instructions indicated in such proxies. If no
instructions are indicated, such proxies will not be voted at the
General Meeting.
Revocation of Proxies
A shareholder returning a proxy may revoke it at any time prior
to commencement of the General Meeting by communicating such
revocation in writing to us or by executing and delivering a
later-dated proxy. In addition, any person who has executed a proxy
and is present at the General Meeting may vote in person instead of
by proxy, thereby canceling any proxy previously given, whether or
not written revocation of such proxy has been given. Any written
notice revoking a proxy should be sent to us at our principal
executive offices located at 1 Hatamar Street, Yokneam 2069206,
Israel, Attention: Chief Financial Officer. Attendance without
voting at the General Meeting will not in and of itself constitute
revocation of a proxy.
Solicitation of Proxies
The Company will bear the costs of solicitation of proxies for
the General Meeting. We have retained MacKenzie Partners, Inc., a
professional proxy solicitation firm, to assist in the solicitation
of proxies for the General Meeting for a fee of approximately
$25,000, plus reimbursement of reasonable out-of-pocket expenses.
In addition to solicitation by mail, MacKenzie Partners’ employees
and the Company’s directors, officers and employees may solicit
proxies from shareholders by telephone, email, personal interview
or otherwise. The Company’s directors, officers and employees will
not receive additional compensation for such solicitation, but may
be reimbursed for out-of-pocket expenses in connection with such
solicitation.
Brokers, nominees, fiduciaries and other custodians have been
requested to forward soliciting material to the beneficial owners
of Ordinary Shares held of record by them, and such custodians will
be reimbursed for their reasonable expenses. The Company may
reimburse the reasonable charges and expenses of brokerage houses
or other nominees or fiduciaries for forwarding proxy materials to,
and obtaining authority to execute proxies from, beneficial owners
for whose accounts they hold Ordinary Shares.
As a foreign private issuer, the Company is exempt from the
rules under the Securities Exchange Act of 1934, as amended,
related to the furnishing and content of proxy statements. The
circulation of this notice and proxy statement should not be taken
as an admission that the Company is subject to such rules.
TABLE OF CONTENTS
QUESTIONS AND ANSWERS ABOUT THE TRANSACTION AND THE MEETING
RISK FACTORS
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
THE ANNUAL GENERAL MEETING
Time and Place of the General Meeting
Purposes of the General Meeting; Proposed Resolutions
Recommendation of the Board of Directors of EZchip
Record Date, Shareholders Entitled to Vote
Voting Rights and Vote Required
Adjournment
Voting Procedures; Revoking Proxies or Voting Instructions
Questions and Additional Information
PROPOSAL 1
THE PARTIES TO THE MERGER
Our Company
Background of the Merger
Our Reasons for Approving the Merger Proposal; Recommendation
and Determination of Our Board
No Appraisal Rights; Objections by Creditors
Opinion of Our Financial Advisor
Financing of the Merger
Material Tax Consequences of the Merger
Regulatory Matters
Interests of Our Directors and Executive Officers in the Merger
Proposal
THE MERGER AGREEMENT
PROPOSAL 2
REELECTION OF DIRECTORS
PROPOSAL 3
REELECTION OF OUTSIDE DIRECTOR
PROPOSAL 4
PAYMENT TO JOEL MARYLES, A COMPANY DIRECTOR
PROPOSAL 5
APPOINTMENT AND COMPENSATION OF THE COMPANY’S INDEPENDENT
REGISTERED PUBLIC ACCOUNTANTS; REVIEW AND DISCUSSION OF 2014
CONSOLIDATED FINANCIAL STATEMENTS
MARKET PRICE INFORMATION
BENEFICIAL OWNERSHIP OF ORDINARY SHARES
WHERE YOU CAN FIND MORE INFORMATION
OTHER MATTERS
Appendix A – Agreement of Merger, dated as of September 30,
2015, by and among EZchip Semiconductor Ltd., Mellanox
Technologies, Ltd. and Mondial Europe Sub Ltd.
Appendix B – Opinion of Barclays Capital Inc.
B - 1
The following questions and answers are intended to briefly
address certain commonly asked questions regarding the General
Meeting, the Merger Proposal and the other matters on the agenda
for the General Meeting. These questions and answers may not
address all the questions that may be important to you as a
shareholder of EZchip. Please refer to the more detailed
information contained elsewhere in this Proxy Statement, the
appendices attached to this Proxy Statement and the documents
referred to or incorporated by reference in this Proxy Statement,
which you are urged to read carefully and in their entirety. See
the section of this Proxy Statement entitled “Where You Can Find
More Information” beginning on page
Why am I receiving this proxy statement?
On September 30, 2015, our Company entered into an Agreement of
Merger (which we refer to as the Merger Agreement) with Mellanox
Technologies, Ltd., an Israeli company whose shares are listed on
the NASDAQ Global Select Market (which we refer to as Parent or
Mellanox), and Mondial Europe Sub Ltd., a private Israeli company
and a wholly-owned subsidiary of Parent (which we refer to as
Merger Sub). Our Board is soliciting proxies for the Annual General
Meeting of Shareholders of our Company for the purpose of approving
the Merger Proposal, which we refer to as the General Meeting. You
are receiving this Proxy Statement because you owned ordinary
shares of our Company, which we refer to as Ordinary Shares, on
October 12, 2015, the Record Date, and that entitles you to vote at
the General Meeting. By use of a proxy, you can vote on the
proposals to be acted on at the General Meeting whether or not you
attend the General Meeting. This Proxy Statement describes the
matters on which we would like you to vote and provides information
on those matters so that you can make an informed decision.
What am I being asked to vote on?
You are being asked to vote on a resolution (a) for the approval
of (i) the Merger Agreement, (ii) the merger of Merger Sub with and
into the Company, following which Merger Sub will cease to exist as
a separate legal entity and the Company will become a wholly-owned
subsidiary of Parent (which we refer to as the Merger); (iii) the
consideration of $25.50 in cash (which we refer to as the Merger
Consideration), without interest and subject to applicable
withholding taxes, for each Ordinary Share held by the Company’s
shareholders as of immediately prior to the effective time of the
Merger; and (iv) all other transactions and arrangements
contemplated by the Merger Agreement; and (b) that the Merger
Proposal is in the best interest of the Company (we refer to the
foregoing collectively as the Merger Proposal).
In addition, you are being asked to vote on the following
proposals:
the reelection of five of the Company’s directors – Benny
Hanigal, Eli Fruchter, Prof. Ran Giladi, Joel Maryles and Karen
Sarid until the next annual meeting or their prior termination or
resignation;
the reelection of Shai Saul, an Outside Director of the Company
(within the meaning of the ICL), for an additional three year term
or until his prior termination or resignation;
What will I receive in the Merger?
Upon completion of the Merger, you will have the right to
receive $25.50 in cash per Ordinary Share held by you immediately
prior to the effective time of the Merger, which we refer to as the
Merger Consideration, without any interest thereon, subject to
applicable withholding taxes, if any. You will not have any
ownership interest in the surviving company following the
completion of the Merger.
When will the Merger be completed?
We are working to complete the Merger as soon as practicable and
expect to complete the Merger during the first quarter of 2016, but
because the Merger is subject to governmental and regulatory
approvals and certain other conditions, some of which are beyond
the control of the Company and Parent, the exact timing cannot be
predicted nor can it be guaranteed that the Merger will ever be
completed. Under the ICL, the Merger cannot become effective until
the later of the 50th day following the date of the filing of the
merger proposal by both merging companies with the Israeli
Companies Registrar and the 30th day following the date on which
the Merger Proposal is approved by our shareholders (the sole
shareholder of Merger Sub has approved the Merger Agreement). See
the section of this Proxy Statement entitled
“The Merger Agreement – Conditions to the Completion of the
Merger
” beginning on page 58 for a summary description of these
conditions.
The Merger Agreement may be terminated by either party if the
Merger is not completed by February 5, 2016 (unless this date has
been extended by mutual agreement of Parent and us), so long as the
terminating party’s breach of the Merger Agreement has not been a
principal cause of, or primarily resulted in, the failure to close
the Merger by this date.
Are there risks I should consider in deciding how to vote on the
Merger?
Yes. You should carefully read this Proxy Statement in its
entirety, including the factors discussed in the section “
Risk Factors
When and where is the General Meeting?
The General Meeting will be held on November 12, 2015, at 5:00
p.m. (Israel time) at our principal executive offices located at 1
Hatamar Street, Yokneam 2069206, Israel.
What vote is required for EZchip’s shareholders to approve the
Merger Proposal and the other proposals on the agenda for the
General Meeting?
Provided that a quorum is present, approval of the Merger
Proposal will require the affirmative vote of holders of at least
seventy-five percent (75%) of the Ordinary Shares present, in
person or by proxy, and voting on the Merger Proposal (not taking
into consideration abstentions). We refer to this as the Company
Shareholder Approval.
The approval of each of the other proposals requires the
affirmative vote of a majority of the Ordinary Shares present, in
person or by proxy, and voting on such proposal (not taking into
consideration abstentions). In addition, in order to approve the
reelection of Shai Saul as an Outside Director of the Company
(within the meaning of the ICL) and the payment of a director cash
payment to Joel Maryles, the shareholders’ approval must
include (i) at least a majority of the Ordinary Shares voted by
shareholders who are not controlling shareholders (within the
meaning of the ICL) and are not shareholders who have a personal
interest (within the meaning of the ICL) in the approval of such
proposal (excluding a personal interest that is not related to a
relationship with the controlling shareholders), not taking into
consideration abstentions, or (ii) the total Ordinary Shares of
non-controlling shareholders and non-interested shareholders voted
against such proposal do not represent more than two percent of the
outstanding Ordinary Shares.
Are there any voting agreements with existing shareholders?
How does EZchip’s Board of Directors recommend that I vote?
Our Board of Directors has determined unanimously that the
Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement are fair to and in the best
interests of the Company and its shareholders, and has approved the
Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement.
Our Board of Directors recommends that our shareholders vote
“FOR” the approval of the Merger Proposal and the other proposals
on the agenda for the General Meeting.
For additional information see the sections of this Proxy
Statement entitled “
The Merger —Background of the Merger
The Merger – Our Reasons for Approving the Merger Proposal;
Recommendation and Determination of Our Board
” beginning on page 27.
Should I send my share certificates now?
No. Once all conditions to closing of the Merger are satisfied,
including, but not limited to, receipt of all governmental and
regulatory approvals, we will be able to effect the closing of the
Merger. If you are a holder of record immediately prior to the
effective time of the Merger, promptly after the Merger is
completed, a paying agent appointed by Parent (which we refer to as
the Paying Agent) will send you a letter of transmittal with
detailed instructions regarding the surrender of your certificates
representing Ordinary Shares or the transfer of your Ordinary
Shares held in book entry form, as applicable, and any other
required documentation, including, to the extent applicable, a
United States Internal Revenue Service, which we refer to as the
IRS, Form W-9 or appropriate Form W-8 (as applicable) and a tax
declaration form and a representation as to whether you are an
Israeli resident and satisfy other conditions, which we refer to as
the Tax Declaration Form, to facilitate payment of the Merger
Consideration for each Ordinary Share held by you immediately prior
to the effective time of the Merger. You should not send your
certificates representing Ordinary Shares to us or anyone else
until you receive such instructions. The Paying Agent will send the
Merger Consideration, without any interest thereon, subject to the
withholding of any applicable taxes, to you as promptly as
practicable following its receipt of your share certificates
(unless your Ordinary Shares are held in book entry form) and other
required documents, including, to the extent applicable, the Tax
Declaration Form. If your shares are held in “street name” by your
bank, broker or other nominee, you will receive instructions from
your bank, broker or other nominee as to how to effect the
surrender or transfer of your “street name” shares in exchange for
the Merger Consideration. You may be required to deliver an IRS
Form W-9 or appropriate Form W-8 (as applicable) and, to the extent
applicable, a Tax Declaration Form prior to receiving the Merger
Consideration.
If you are a United States Holder (as defined in this Proxy
Statement), you may be subject to United States backup withholding
as described in the section of this Proxy Statement entitled “
The Merger – Material Tax Consequences of the Merger – Material
United States Federal Income Tax Consequences
if you do not deliver an IRS Form W-9 or Form W-8 (as
applicable.) If you do not deliver a valid certificate issued by
the Israeli Tax Authority that provides full exemption from Israeli
tax withholding or, to the extent applicable, you do not deliver a
Tax Declaration Form or you indicate on the Tax Declaration Form
that you are a resident of Israel or that you do not satisfy the
other conditions required thereon, Israeli withholding tax will be
withheld from the Merger Consideration paid to you as described in
the section of this Proxy Statement entitled “
The Merger – Material Tax Consequences of the Merger – Material
Israeli Income Tax Consequences
” beginning on page 41.
If your shares are traded through the Tel Aviv Stock Exchange
Ltd. (which we refer to as the TASE), you will receive the Merger
Consideration through the bank or financial institution through
which you hold your shares, which will also be responsible for
administering Israeli tax withholding.
What will happen to EZchip share options and restricted share
units (RSUs)?
At the effective time of the Merger, each outstanding option to
acquire Ordinary Shares then outstanding that is vested and
exercisable as of the effective time of the Merger will be canceled
and converted into the right to receive an amount in cash equal to
the product of (i) the excess, if any, of the Merger Consideration
over the applicable exercise price per Ordinary Share of such
option and (ii) the number of Ordinary Shares such holder had the
right to purchase if such holder had exercised such option in full
immediately prior to the effective time of the Merger, without
interest and subject to applicable withholding taxes. Any option
that has an exercise price per Ordinary Share that is greater than
the Merger Consideration will be canceled without any payment.
As of the date of the Merger Agreement, all of the outstanding
options to acquire Ordinary Shares of the Company are vested and
exercisable.
At the effective time of the Merger, each unvested and
outstanding restricted share unit (RSU) of EZchip will be assumed
by Mellanox and converted into a restricted share unit of Mellanox,
with the number of ordinary shares of Mellanox issuable upon the
vesting of each such Mellanox restricted share unit determined by
reference to the $25.50 per share merger consideration and the
average closing price of Mellanox’s ordinary shares for the five
trading days immediately preceding the effective time of the
Merger.
What effects will the proposed Merger have on our Company?
As a result of the proposed Merger, we will cease to be a
publicly-traded company and will become a privately-held company
that is a wholly-owned subsidiary of Mellanox. Following the
completion of the proposed Merger, the registration of our Ordinary
Shares and our reporting obligations under the U.S. Securities
Exchange Act of 1934, as amended, which we refer to as the Exchange
Act, will be terminated upon notification to the U.S. Securities
and Exchange Commission, which we refer to as the SEC. In addition,
upon completion of the proposed Merger, our Ordinary Shares will no
longer be listed on any stock exchange, including the NASDAQ Global
Select Market (which we refer to as NASDAQ) and the TASE.
What happens if the Merger is not completed?
If the Merger is not completed for any reason, our shareholders
will not receive the Merger Consideration for their Ordinary
Shares. Instead, we will remain a public company and the Ordinary
Shares will continue to be listed on NASDAQ and the TASE. Under
certain circumstances related to a termination, as specified in the
Merger Agreement, we may be required to pay Parent a termination
fee as described in the section of this Proxy Statement
entitled
“The Merger Agreement – Remedies – Termination Fee and
Expenses
” beginning on page 60.
What interests do the directors and executive officers of our
Company have in the Merger Proposal?
In considering the recommendation of our Board of Directors with
respect to the Merger Proposal, you should be aware that our
directors and executive officers have interests in the Merger
Proposal that may be different from the interests of our
shareholders in general, including, among other things, the fact
that:
The Merger Agreement provides for the termination of service of
the non-executive members of our Board of Directors, which in
accordance with the terms of their RSU award agreements will result
in the accelerated vesting of any such RSUs held by them that are
unvested at such time.
The Merger Agreement provides for the termination of service of
our executive officers (namely, Eli Fruchter, Amir Eyal and Dror
Israel), which in accordance with the terms of their RSU award
agreements will result in the accelerated vesting of any such RSUs
held by them that are unvested at such time.
Our directors and executive offers are entitled to certain
indemnification and insurance as provided for in the Merger
Agreement.
For additional details, see “
Our Board of Directors was aware of these different interests in
determining to approve the Merger Agreement, the Merger and the
other transactions contemplated by the Merger Agreement, and to
recommend to our shareholders that they vote in favor of the Merger
Proposal.
What do I need to do now?
This Proxy Statement contains important information regarding
the Merger and the other proposals on the agenda for the General
Meeting, as well as information about us. It also contains
important information regarding the factors considered by our Board
of Directors in evaluating the Merger. You are urged to read this
Proxy Statement carefully and in its entirety. You should also
complete, sign and date the enclosed proxy card and return it in
the enclosed envelope. You should also review the documents
referenced under the section of this Proxy Statement entitled “
How do I vote?
You should indicate on the enclosed proxy card how you want to
vote, and date, sign and mail it in the enclosed envelope as soon
as possible, so that your shares can be voted at the General
Meeting. Shareholders who hold shares through members of the Tel
Aviv Stock Exchange may also vote electronically as described
below. You should receive instructions about electronic voting from
the Tel Aviv Stock Exchange member through which you hold your
shares.
The General Meeting will take place on November 12, 2015, at
5:00 p.m. (Israel time) at our principal executive offices located
at 1 Hatamar Street, Yokneam 2069206, Israel. Whether or not you
submit a proxy, you may attend the General Meeting and vote your
shares in person.
What do I do if I want to change my vote?
You may send a written notice of revocation, or send a
later-dated, completed and signed proxy card relating to the same
shares, to us at our principal executive offices located at 1
Hatamar Street, Yokneam 2069206, Israel, Attention: Chief Financial
Officer, so it is received prior to the General Meeting. Ordinary
Shares represented by properly executed proxies received by us no
later than twenty-four (24) hours prior to the General Meeting will
be voted at the General Meeting in accordance with the directions
on the proxies, unless such proxies have been previously revoked or
superseded. Alternatively, you may attend the General Meeting and
vote in person. Attendance without voting at the General Meeting
will not in and of itself constitute revocation of a proxy.
If my shares are held in “street name” by my bank, broker or
other nominee, will my bank, broker or other nominee vote my shares
for me if I do not provide instructions?
No. Your bank, broker or other nominee will vote your shares
only if you provide instructions to your bank, broker or other
nominee on how to vote. If you do not provide instructions to your
bank, broker or other nominee, your shares will not be voted at the
General Meeting. You should follow the procedures provided by your
bank, broker or other nominee regarding the voting of your shares
and be sure to provide your bank, broker or other nominee with
instructions on how to vote your shares. If your shares are held in
“street name” you must contact your bank, broker or other nominee
to change or revoke your voting instructions.
If you hold shares through members of the TASE, you may vote in
person or vote through the enclosed form of proxy by completing,
signing, dating and mailing the proxy with a copy of your identity
card, passport or certificate of incorporation, as the case may be,
to the Company’s offices. Shareholders who hold shares through
members of the TASE and intend to vote their shares either in
person or by proxy must deliver to the Company an ownership
certificate confirming their ownership of the Company’s shares on
the Record Date, which must be certified by a recognized financial
institution, as required by the Israeli Companies Regulations
(Proof of Ownership of Shares for Voting at General Meeting) of
2000, as amended.
Who can vote at the General Meeting?
Only those holders of record of outstanding Ordinary Shares at
the close of business on October 12, 2015, the Record Date for the
General Meeting, are entitled to notice of, and to vote at the
General Meeting. As of the Record Date, there were 29,961,616
Ordinary Shares outstanding and entitled to vote.
What happens if I sell my shares before the General Meeting?
The Record Date for the General Meeting is earlier than the
General Meeting and the date that the Merger is expected to be
completed. If you transfer your Ordinary Shares after the Record
Date but before the General Meeting, you will retain your right to
vote at the General Meeting, but will have transferred the right to
receive the Merger Consideration with respect to such Ordinary
Shares. In order to receive the Merger Consideration, you must hold
your Ordinary Shares through the completion of the Merger.
Am I entitled to appraisal rights in connection with the
Merger?
No. Under Israeli law, holders of Ordinary Shares are not
entitled to appraisal rights in connection with the Merger.
However, under the ICL, objections to the Merger may be filed by
our creditors with the Israeli district court. See “
The Merger – No Appraisal Rights; Objections by Creditors
” on page
Who can help answer my questions?
If you have additional questions about the Merger Agreement, the
Merger Proposal or the other proposals on the agenda for the
General Meeting, or would like additional copies of this Proxy
Statement or the enclosed proxy card, you should contact:
Toll-free: (800) 322-2885
Collect: (212) 929-5500
proxy@mackenziepartners.com
In addition to the other information included in this Proxy
Statement, including the matters addressed under the caption titled
“Cautionary Statement Regarding Forward-Looking Statements” on
page
, you should carefully consider the following risk factors in
determining how to vote at the General Meeting. The following is
not intended to be an exhaustive list of the risks related to the
merger and you should read and consider the risk factors described
under Part 1, Item 3, “Key Information – Risk Factors” of the
Company’s Annual Report on Form 20-F for the year ended December
31, 2014, which is on file with the SEC, and is incorporated by
reference into this Proxy Statement.
Failure to complete the Merger could negatively impact our share
price, business, financial condition, results of operations or
prospects.
The Merger is subject to the satisfaction or waiver of certain
closing conditions described in the section entitled “
” beginning on page 58, including, among others:
the approval of the Merger Proposal by the Company’s
shareholders;
the receipt of clearance of the Committee on Foreign Investment
in the United States (which we refer to as CFIUS);
the approval of the Israeli Investment Center of the Ministry of
Economy of the State of Israel to the change of control of the
Company;
not more than 33% of a list of designated employees shall have
terminated their employment with the Company or tendered their
resignation; and
that no Company Material Adverse Effect (as defined hereafter)
has occurred since signing.
No assurance can be given that each of the conditions will be
satisfied. If the conditions are not satisfied or waived in a
timely manner and the Merger is delayed, payment of the Merger
Consideration will also be delayed. In addition, the Merger
Agreement may be terminated under the circumstances described in
the section entitled “
The Merger Agreement – Termination of the Merger Agreement
” beginning on page 58. If the Merger is not completed
(including in the event the Merger Agreement is terminated), our
ongoing business may be adversely affected and, without realizing
any of the benefits of having completed the Merger, we will be
subject to a number of risks, including the following:
we may be required to pay Parent a termination fee and reimburse
Parent for certain of its expenses if the Merger is terminated
under various circumstances described in the section entitled
“The Merger Agreement – Remedies – Termination Fee and
Expenses”
we will be required to pay certain costs relating to the Merger,
including substantial legal and accounting fees, whether or not the
Merger is completed;
the price of our Ordinary Shares may decline to the extent that
the current market price reflects a market assumption that the
Merger will be completed;
under the Merger Agreement, we are subject to certain
restrictions on the conduct of our business prior to completing the
Merger that may affect our ability to execute certain of our
business strategies;
we could be subject to litigation related to any failure to
complete the Merger or related to any enforcement proceeding
commenced against us to perform our obligations under the Merger
Agreement; and
during the period before completion of the Merger our
management’s attention will be diverted from the day-to-day
business of the Company, which could otherwise have been devoted to
other opportunities that may have been beneficial to us as an
independent company, and there may be unavoidable disruptions to
our employees and our relationships with customers, suppliers and
other business partners.
If the Merger is not completed, these risks may materialize and
may adversely affect the price of our Ordinary Shares, business,
financial condition, results of operations or prospects.
The fact that there is a Merger pending could harm our business,
revenue and results of operations.
While the Merger is pending, it creates uncertainty about our
future. As a result of this uncertainty, customers may decide to
delay, defer or cancel purchases of our products pending completion
of the Merger or termination of the Merger Agreement. If these
decisions represent a significant portion of our anticipated
revenue, our results of operations and quarterly revenues could be
substantially below the expectations of investors.
In addition, while the Merger is pending, we are subject to a
number of risks that may harm our business, revenue and results of
operations, including:
the diversion of management and employee attention and the
unavoidable disruption to our relationships with customers and
suppliers may detract from our ability to grow revenues and
minimize costs;
we have and will continue to incur significant expenses related
to the Merger prior to its closing; and
we may be unable to respond effectively to competitive
pressures, industry developments and future opportunities.
Our current and prospective employees may be uncertain about
their future roles and relationships with the Company following
completion of the Merger. This uncertainty may adversely affect our
ability to attract and retain key personnel.
Our obligation to pay a termination fee under certain
circumstances and the restrictions on our ability to solicit or
engage in negotiations with respect to other acquisition proposals
may discourage other transactions that may be favorable to our
shareholders.
Until the Merger is completed or the Merger Agreement is
terminated, with limited exceptions, the Merger Agreement prohibits
us from entering into, soliciting or engaging in negotiations with
respect to acquisition proposals or other business combinations.
Under specified circumstances, including in connection with the
termination of the Merger Agreement following a change of the
Board's recommendation, we will be obligated to pay Parent a
termination fee of $28,385,000 and reimburse Parent for up to $4.0
million of its expenses. These provisions could discourage other
companies from proposing alternative transactions that may be more
favorable to our shareholders than the Merger.
If the Merger is not consummated by February 5, 2016, either we
or Parent may choose not to proceed with the Merger.
” beginning on page 58. Certain of these conditions are beyond
our control, such as if the Merger does not receive clearance of
CFIUS. In addition, the Merger cannot be consummated until after
(i) the completion of a 50-day waiting period commencing on the
date of the filing of the merger proposal by both merging companies
with the Companies Registrar and (ii) 30 days after the Company
Shareholder Approval has been obtained. If the Merger has not been
completed by February 5, 2016, either the Company or Parent may
terminate the Merger Agreement, except that this termination right
is not available to a party, if the failure to consummate the
Merger by February 5, 2016 solely arises from or is directly
attributable to the failure by such party to perform any material
obligation required to be performed by such party at or prior to
the effective time of the Merger.
This Proxy Statement, including information set forth or
incorporated by reference in this document, contains
forward-looking statements within the meaning of the “safe harbor”
provisions of the U.S. Private Securities Litigation Reform Act of
1995. These forward-looking statements include, but are not limited
to, statements about the expected completion of the proposed
transaction with Mellanox and the timing thereof, the satisfaction
or waiver of any conditions to the proposed transaction,
anticipated benefits, growth opportunities and other events
relating to the proposed transaction, projections about the
Company’s business and its future revenues, expenses and
profitability. Forward-looking statements may be, but are not
necessarily, identified by the use of forward-looking terminology
such as “may,” “anticipates,” “estimates,” “expects,” “intends,”
“plans,” “believes,” and words and terms of similar substance.
Forward-looking statements involve known and unknown risks,
uncertainties and other factors which may cause the actual events,
results, performance, circumstances or achievements to be
materially different from those expressed or implied by such
forward-looking statements. Factors that could cause actual events,
results, performance, circumstances or achievements to differ from
such forward-looking statements include, but are not limited to,
the following:
we may be unable to obtain the Company Shareholder Approval;
we may be unable to obtain required regulatory approvals or
satisfy other conditions to the closing of the Merger;
the Merger may involve unexpected costs, liabilities or
delays;
our business may suffer as a result of uncertainty surrounding
the proposed Merger, diversion of management attention on
Merger-related matters, disruption of current plans and operations,
the potential difficulties in employee retention, and impact of the
Merger on relationships with customers, distributors and
suppliers;
the outcome of any legal proceedings related to the Merger;
our Company may be adversely affected by other economic,
business, and/or competitive factors;
the occurrence of any event, change or other circumstances that
could give rise to the termination of the Merger Agreement;
the ability to recognize benefits of the proposed Merger;
and
other risks to consummation of the proposed Merger, including
the risk that the proposed Merger will not be consummated within
the expected time period or at all.
Factors that may affect the future events, results, performance,
circumstances or achievements of the Company also include, but are
not limited to, the following: (i) the impact of general economic
conditions, (ii) competitive products (including in-house customer
developed products), (iii) product demand and market acceptance
risks, (iv) customer order cancellations, (v) reliance on key
strategic alliances, (vi)