8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): April 27, 2020

Mellanox Technologies, Ltd.

(Exact name of registrant as specified in its charter)

Israel	001-33299	98-0233400
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

Beit Mellanox

Yokneam, Israel

(Address of principal executive offices)

20692

(Zip Code)

+972-4-909-7200

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Exchange Act:

Title of each class	Trading Symbol	Name of each exchange on which registered
Ordinary Shares, nominal value NIS 0.0175 per share	MLNX	The Nasdaq Global Market

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

Item 2.01. Completion of Acquisition or Disposition of Assets.

On April 27, 2020, Mellanox Technologies, Ltd. (“Mellanox”) completed its merger with Teal Barvaz Ltd. (“Merger Sub”), a company organized under the laws of the State of Israel and a wholly owned subsidiary of NVIDIA International Holdings Inc., a Delaware corporation (“Parent”), whereby Merger Sub merged with and into Mellanox, with Mellanox surviving as a wholly owned subsidiary of Parent (the “Merger”). The Merger was effected pursuant to an Agreement and Plan of Merger, dated as of March 10, 2019, by and among Mellanox, Parent, Merger Sub and NVIDIA Corporation, a Delaware corporation (the “Merger Agreement”).

Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), each ordinary share of Mellanox issued and outstanding immediately prior to the Effective Time (other than any shares owned by Mellanox, Parent and their respective subsidiaries or any shares held in Mellanox’s treasury) was deemed to have been transferred to Parent in exchange for the right to receive $125.00 per share in cash, without interest and subject to applicable withholding taxes.

Mellanox’s definitive proxy statement, filed with the Securities and Exchange Commission (the “SEC”) on May 8, 2019 contains additional information about the Merger and the other transactions contemplated by the Merger Agreement, including information concerning the interests of directors, executive officers and affiliates of Mellanox in the Merger.

The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

On April 27, 2020, in connection with the Merger, Mellanox notified The Nasdaq Stock Market (“Nasdaq”) that the Merger had been completed, and requested that trading of Mellanox’s ordinary shares on Nasdaq be suspended. In addition, Mellanox requested that Nasdaq file with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934 (the “Exchange Act”), on Form 25 in order to effect the delisting of Mellanox’s ordinary shares from Nasdaq.

Additionally, Mellanox intends to file with the SEC a certification and notice of termination on Form 15 with respect to Mellanox’s ordinary shares, requesting that such shares be deregistered under Section 12(g) of the Exchange Act, and that the reporting obligations of Mellanox under Sections 13(a) and 15(d) of the Exchange Act be suspended.

The information set forth in Item 2.01 is incorporated by reference into this Item 3.01.

Item 3.03. Material Modification to Rights of Security Holders.

The information set forth in Items 2.01, 3.01, 5.01 and 5.03 is incorporated by reference into this Item 3.03.

Item 5.01. Changes in Control of Registrant.

As a result of the Merger, a change of control of Mellanox occurred on April 27, 2020 and Mellanox became a wholly owned subsidiary of Parent. Parent funded the acquisition through cash on hand. The information set forth in Item 2.01 is incorporated by reference into this Item 5.01.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangement of Certain Officers.

In connection with the Merger, at the Effective Time, each member of the board of directors of Mellanox (the “Board”) ceased serving in such capacity. The members of the Board immediately prior to the Effective Time were Eyal Waldman, Irwin Federman, Jon A. Olson, Glenda Dorchak, Jack R. Lazar, Amal M. Johnson, David Perlmutter, Umesh Padval, Gregory L. Waters and Steve Sanghi.

In connection with the Merger, the following individuals resigned as officers from Mellanox: Eyal Waldman, President and Chief Executive Officer; Alinka Flaminia, Corporate Secretary; Doug Ahrens, Senior Vice President and Chief Financial Officer; and Marc Sultzbaugh, Senior Vice President.

Immediately following the Effective Time, the size of the Board of Directors of Mellanox was reduced to three members and the following individuals, as designated by Parent, were elected as directors of Mellanox until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal: Mike Ching, Rebecca Peters and Donald Robertson.

The information set forth in Item 2.01 is incorporated by reference into this Item 5.02.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Pursuant to the Merger Agreement, upon consummation of the Merger on April 27, 2020, the articles of association of Mellanox were amended and restated in entirety. The Amended and Restated Articles of Association of Mellanox are filed as Exhibit 3.1 hereto and incorporated by reference into this Item 5.03.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits.

Exhibit  No.	Description
2.1	Agreement and Plan of Merger, dated as of March 10, 2019, by and among NVIDIA International Holdings Inc., Teal Barvaz Ltd., NVIDIA Corporation and Mellanox Technologies, Ltd. (incorporated by reference to Ex. 2.1 to Mellanox’s Current Report on Form 8-K filed on March 11, 2019)*
3.1	Amended and Restated Articles of Association of Mellanox Technologies, Ltd.
104	The cover page of this Current Report on Form 8-K, formatted in inline XBRL (included as Exhibit 101)

* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K, and Mellanox agrees to furnish supplementally to the SEC a copy of any omitted exhibits or schedules upon request; provided that Mellanox may request confidential treatment pursuant to Rule 24b-2 of the Exchange Act.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: April 27, 2020	MELLANOX TECHNOLOGIES, LTD
	By:	/s/ Gideon Rosenberg
	Name:	Gideon Rosenberg
	Title:	Deputy General Counsel & Vice President of Legal Affairs

EX-3.1

Exhibit 3.1

Companies Law, 5759-1999

Company Articles of Association

1. Company Name

Company name:

Company name, in English: Mellanox Technologies, Ltd.

2. Company Objectives

Pursuant to Section 32(1) of the Companies Law – engage in any lawful act or activity for which companies may be organized under the Companies Law, 5759-1999 (the “Companies Law”).

3. Details regarding the Company’s Registered Share Capital

Registered share capital: NIS 3,500,000

Comprised of 200,000,000 shares nominal value NIS 0.0175 each

Of the following types: Ordinary shares

4. Details regarding the Company’s Limited Liability

Shareholder liability: limited.

5. Share Transfer, Share and Bonds Public Offer, Number of Shareholders

5.1. Each share transfer requires approval of the board.

5.2. The Company is prohibited from offering shares and/or bonds to the public

5.3. The number of shareholders will not exceed fifty, excluding current or former employees of the Company, who were shareholders while they were employed by the Company, and remain shareholders after their employment with the Company was terminated.

6. Indemnity, Insurance and Exemption

6.1. Exemption from Liability. Subject to the provisions of the Companies Law, the Company may exempt an Office Holder in advance from all or part of such Office Holder’s responsibility or liability for damages caused to the Company due to any breach of such Office Holder’s duty of care towards the Company to the maximum extent permitted by law. Notwithstanding, the Company shall not exempt a director in advance from its responsibility or liability towards the Company due to a breach of such director’s duty of care in making a distribution.

6.2. Indemnification.

(i) Subject to the provisions of the Companies Law and the Securities Law, 1968 (the “Securities Law”), the Company may indemnify an Office Holder to the fullest extent permitted by the Companies Law and the Securities Law, with respect to the following liabilities, expenses and payments, provided that such liabilities, expenses and payments were incurred by such Office Holder in such Office Holder’s capacity as an Office Holder of the Company:

A. a financial obligation imposed on an Office Holder in favor of another person by a court judgment, including a compromise judgment or an arbitrator’s award approved by a court of law;

B. reasonable litigation expenses, including legal fees, incurred by an Office Holder as a result of Criminal Inquiry or an investigation or proceeding instituted against such Office Holder by a competent authority, which inquiry or investigation or proceeding has ended without the filing of an indictment and without an imposition of financial liability in lieu of a criminal proceeding, or has ended in the imposition of a financial obligation in lieu of a criminal proceeding without the filing of an indictment for an offense that does not require proof of mens rea (the phrases “proceeding that has ended without the filing of an indictment” and “financial obligation in lieu of a criminal proceeding” shall have the meanings ascribed to such phrases in Section 260(a)(1a) of the Companies Law);

C. expenses, including reasonable litigation expenses and legal fees, incurred by an Office Holder as a result of a proceeding instituted against such Office Holder in relation to (1) infringements that may impose financial sanction pursuant to the provisions of Chapter H’3 under the Securities Law or (2) administrative infringements pursuant to the provisions of Chapter H’4 under the Securities Law or (3) infringements pursuant to the provisions of Chapter I’1 under the Securities Law;

D. reasonable legal expenses, including attorney’s fees, which the Office Holder incurred or with which the Office Holder was charged by a court of law, in a proceeding brought against the Office Holder, by the Company or on its behalf or by another person, or in a criminal prosecution in which the Office Holder was acquitted, or in a criminal prosecution in which the Office Holder was convicted of an offense that does not require proof of mens rea (criminal intent);

E. payments to an injured party of infringement under Section 52ND(a)(1)(a) of the Securities Law; and

F. expenses, including reasonable litigation expenses and legal fees, incurred by an Office Holder as a result of a proceeding instituted against such Office Holder under the Economic Competition Law, 1988 (the “Antitrust Law”).

(ii) Subject to the provisions of the Companies Law and the Securities Law, the Company may undertake to indemnify an Office Holder in advance with respect to (i) financial obligations as specified in Article 6.2(i)(A), provided, that the undertaking is limited to categories of events which, in the opinion of the Board of Directors can be foreseen, based on the Company’s actual activities at the time the undertaking to indemnify is given, and in amounts set by the Board of Directors as reasonable, and (ii) expenses, fees and payments as specified in Sub-Articles 6.2(B)-(F) above. Subject to the provisions of the Companies Law and the Securities Law, the Company may also undertake to indemnify an Office Holder retroactively for expenses, fees and payments as specified in Section 6.2(i).

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6.3. Insurance.

(i) Subject to the provisions of the Companies Law and the Securities Law, the Company may enter into a contract to insure an Office Holder for all or part of the liability that may be imposed on such Office Holder in connection with an act performed by such Office Holder in such Office Holder’s capacity as an Office Holder of the Company, with respect to each of the following:

A. breach of his duty of care to the Company or to another person;

B. breach of his duty of loyalty to the Company, provided that the Office Holder acted in good faith and had reasonable grounds to assume that the action in question would not prejudice the interests of the Company; and

C. a financial obligation imposed on him in favor of another person.

(ii) Subject to the provisions of the Companies Law and the Securities Law, the Company may also enter into a contract to insure an Office Holder for (A) expenses, including reasonable litigation expenses and legal fees, incurred by the Office Holder as a result of a proceeding instituted against such Office Holder in relation to (1) infringements that may impose financial sanction pursuant to the provisions of Chapter H’3 under the Securities Law or (2) administrative infringements pursuant to the provisions of Chapter H’4 under the Securities Law or (3) infringements pursuant to the provisions of Chapter I’1 under the Securities Law and (B) payments made to the injured parties of such infringement under Section 52ND(a)(1)(a) of the Securities Law.

(iii) Subject to the provisions of the Companies Law and the Antitrust Law, the Company may also enter into a contract to insure an Office Holder for expenses, including reasonable litigation expenses and legal fees, incurred by an Office Holder as a result of a proceeding instituted against such Office Holder under the Antitrust Law.

6.4. Limitations.

(i) The Company shall not indemnify, exculpate or insure any Office Holder under any of the following circumstances:

A. a breach of duty of loyalty, except, with respect to indemnification and insurance, to the extent that the Office Holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;

B. a breach of duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the office holder;

C. an act or omission committed with intent to derive illegal personal benefit; or

D. a fine, civil fine, financial sanction or levied against the office holder.

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(ii) The Company shall not indemnify or insure any Office Holder for a proceeding instituted against such Office Holder pursuant to the provisions of Chapter H’3, H’4 and I’1 under the Securities Law.

6.5. Any amendment to the Companies Law and the Securities Law adversely affecting the right of any Office Holder to be indemnified or insured pursuant to this Article 6 shall be prospective in effect, and shall not affect the Company’s obligation or ability to indemnify or insure an Office Holder for any act or omission occurring prior to such amendment, unless otherwise provided by the Companies Law and the Securities Law.

6.6. The provisions of this Article 6 are not intended, and shall not be interpreted so as to restrict the Company, in any manner in respect of the procurement of insurance and/or indemnification and/or exculpation, in favor of any person who is not an Office Holder, including, without limitation, any employee, agent, consultant or contractor of the Company who is not an Office Holder.

*        *        *

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