sv8
As
filed with the Securities and Exchange Commission on July 7, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MELLANOX TECHNOLOGIES, LTD.
(Exact Name of Registrant as Specified in Its Charter)
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Israel
(State or Other Jurisdiction of
Incorporation or Organization)
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98-0233400
(IRS Employer
Identification Number) |
Mellanox Technologies, Ltd.
Hermon Building, Yokneam, Israel 20692
(Address of Principal Executive Offices including Zip Code)
Mellanox Technologies, Ltd. Global Share Incentive Plan (2006)
(Full Title of the Plan)
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Copy to: |
Michael Gray
Chief Financial Officer
Mellanox Technologies, Inc.
2900 Stender Way
Santa Clara, California 95054
(408) 970-3400
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Alan C. Mendelson, Esq.
Mark V. Roeder, Esq.
Latham & Watkins LLP
140 Scott Drive
Menlo Park, California 94025
(650) 328-4600 |
(Name and Address, Including Zip Code, and Telephone Number,
Including Area Code, 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. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer þ |
Non-accelerated filer o
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Smaller reporting company o |
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CALCULATION OF REGISTRATION FEE |
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Title of |
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Amount |
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Offering |
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Aggregate |
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Amount of |
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Securities to be |
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to be |
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Price Per |
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Offering |
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Registration |
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Registered (1) |
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Registered (2) |
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Share |
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Price |
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Fee |
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Ordinary
Shares,
nominal value
NIS 0.0175
per share, to
be issued
under the
Mellanox
Technologies,
Ltd. Global
Share
Incentive
Plan (2006)
(the 2006
Plan)
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680,513 shares (3)
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$13.16 (4)
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$8,955,551.00
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$351.95 |
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(1) |
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In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the Securities Act) this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the employee
benefit plans described herein. |
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(2) |
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This Registration Statement shall also cover any additional ordinary
shares which become issuable under the 2006 Plan by reason of any share dividend,
share split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
outstanding ordinary shares of the Registrant. |
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(3) |
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Represents 680,513 additional shares reserved for issuance under the 2006
Plan. |
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(4) |
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Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of the Securities Act for the
680,513 shares
registered hereunder (based on the average of the high ($13.67) and low
($12.64) prices for the Registrants Ordinary Shares reported by the Nasdaq
Global Select Market on July 3, 2008). |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or included in this Form
S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of
the Securities and Exchange Commission, or the Commission.
PART II
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Item 3. |
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Incorporation of Documents by Reference |
The Commission allows us to incorporate by reference the information we file with them,
which means that we can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be part of this Registration Statement,
and later information filed with the Commission will update and supersede this information. The
following documents filed by us with the Commission are incorporated herein by reference:
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(a) |
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The Registrants Annual Report on Form 10-K for the year ended December 31,
2007 filed March 24, 2008, including all material incorporated by reference therein; |
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(b) |
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The Registrants Current Reports on Form 8-K filed January 4, 2008, January 30,
2008, January 31, 2008, April 4, 2008 and April 23, 2008, including all material
incorporated by reference therein; |
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(c) |
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The Registrants Current Report on Form 8-K/A filed February 1, 2008 (amending
Registrants Current Report on Form 8-K filed January 31, 2008); |
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(d) |
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The Registrants Quarterly Report on Form 10-Q for the quarter ended March 31,
2008, filed on May 5, 2008; and |
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(e) |
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The description of the Registrants Ordinary Shares contained in the
Registration Statement on Form 8-A (File No. 001-33299) filed February 6, 2007 under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
including all material incorporated by reference therein and any subsequently filed
amendments and reports updating such description. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part of this Registration Statement from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in this Registration Statement, or in any other
subsequently filed document which also is or is deemed to be incorporated by reference in this
Registration Statement, 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.
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Item 4. |
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Description of Securities |
Not applicable.
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Item 5. |
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Interests of Named Experts and Counsel |
Partners of Yigal Arnon & Co. hold an aggregate of 4,322 shares of the Registrants ordinary
shares.
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Item 6. |
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Indemnification of Directors and Officers |
We indemnify our office holders for certain liabilities. The Israel Companies Law, 1999, or
Companies Laws, allows us to indemnify or insure our office holders against the following
liabilities incurred for acts performed as an office holder:
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a breach of duty of loyalty to the company, 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; |
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a breach of duty of care to the company or to a third party; and |
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a financial liability imposed on or incurred by the office holder in favor of a third
party. |
We cannot, however, indemnify or insure our office holders against any of the following:
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a breach of duty of loyalty, except 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; |
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a breach of duty of care committed intentionally or recklessly, excluding a breach arising
out of the negligent conduct of the office holder; |
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an act or omission committed with intent to derive illegal personal benefit; or |
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a fine levied against the office holder. |
An Israeli company may not exculpate an office holder from liability for a breach of the duty
of loyalty of the office holder. The company may, however, approve an office holders act performed
in breach of the duty of loyalty, provided that the office holder acted in good faith, the act or
its approval does not harm the company and the office holder discloses the nature of his or her
personal interest in the act and all material facts and documents a reasonable time before
discussion of the approval. An Israeli company may exculpate an office holder in advance from
liability to the company, in whole or in part, for a breach of duty of care, but only if a
provision authorizing such exculpation is inserted in its articles of association. Our amended and
restated articles of association include such a provision. An Israeli company may not exculpate a
director for liability arising out of a prohibited dividend or distribution to shareholders.
Pursuant to the Companies Law, we may indemnify an office holder only for judgments,
settlements or arbitrators awards approved by a court that were rendered in connection with events
that the board of directors deemed foreseeable based on the companys actual activities at the time
of the approval by the board of the indemnification, provided that the indemnification is limited
to an amount or criteria determined by the board of directors as reasonable under the circumstances
and that the indemnification undertaking states the foreseeable activities and the amount or
criteria. In addition, we may indemnify an office holder against the following liabilities incurred
for acts performed as an office holder:
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reasonable litigation expenses, including attorneys fees, incurred by the office holder as
a result of an investigation or proceeding instituted against him or her by an authority
authorized to conduct such investigation or proceeding, provided that (i) no indictment was
filed against such office holder as a result of such investigation or proceeding and (ii)
either (A) no financial liability was imposed upon him or her as a substitute for the criminal
proceeding as a result of such investigation or proceeding or (B) if the financial liability
was imposed, it was imposed with respect to an offense that does not require proof of criminal
intent; and |
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reasonable litigation expenses, including attorneys fees, incurred by the office holder or
imposed by a court in proceedings instituted against him or her by the company, on its behalf
or by a third party or in connection with criminal proceedings in which the office holder was
acquitted or in which the office holder was convicted of an offense that does not require
proof of criminal intent. |
Under the Companies Law, exculpation, indemnification and insurance of office holders must be
approved by our audit committee and our board of directors and, in respect of our directors, by our
shareholders.
Our amended and restated articles of association allow us to indemnify and insure our office
holders to the fullest extent permitted by the Companies Law. We are not aware of any pending or
threatened litigation or proceeding involving any of our directors or officers in which
indemnification is sought. In addition, we have entered into agreements with each of our office
holders undertaking to indemnify them to the fullest extent permitted by law, including with
respect to liabilities resulting from this offering. This indemnification is limited to events
determined as foreseeable by our board of directors based on the companys activities, and to an
amount or criteria determined by the board of directors as reasonable under the circumstances, and
the insurance is subject to our discretion depending on its availability, effectiveness and cost.
The limitation of liability and indemnification provisions in our amended and restated
articles of association may discourage shareholders from bringing a lawsuit against directors for
breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation
against directors and officers, even though an action, if successful, might benefit us and our
shareholders. A shareholders investment may be harmed to the extent we pay the costs of settlement
and damage awards against directors and officers pursuant to these indemnification provisions.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our
directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we
have been advised that, in the opinion of the Commission, such indemnification is against public
policy as expressed in the Securities Act, and is, therefore, unenforceable. There is no pending
litigation or proceeding naming any of our directors or officers as to which indemnification is
being sought, nor are we aware of any
pending or threatened litigation that may result in claims for indemnification by any director or
officer.
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Item 7. |
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Exemption from Registration Claimed |
Not applicable.
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Exhibit |
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Number |
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Description |
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4.2
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Mellanox Technologies, Ltd. Global Share Incentive Plan (2006) (filed as an exhibit
to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No.
333-137659) filed on November 14, 2006 and incorporated herein by reference) |
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4.3
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Mellanox Technologies, Ltd. Amended and Restated Articles of Association (filed as
an exhibit to Amendment No. 4 to the Registrants Registration Statement on Form
S-1 (File No. 333-137659) filed on January 22, 2007 and incorporated herein by
reference) |
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5.1
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Opinion of Yigal Arnon & Co. |
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm |
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23.2
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Consent of Yigal Arnon & Co. (included in Exhibit 5.1) |
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24.1
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Power of Attorney (included on the signature page of this Registration Statement) |
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 of 1933;
(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 the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective
Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the Registration Statement is
on Form S-8, and the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrants annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange
Act of 1934) 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 of 1933 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 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 Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Santa Clara, State of
California, on July 6, 2008.
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MELLANOX TECHNOLOGIES, LTD.
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By: |
/s/ Eyal Waldman |
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Eyal Waldman, President and Chief Executive |
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Officer (Principal Executive Officer) |
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears below constitutes and
appoints Eyal Waldman and Michael Gray, and each of them, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in order to effectuate the same as
fully, to all intents and purposes, as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities indicated on the dates indicated.
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Signature |
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Title |
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Date |
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President, Chief Executive Officer |
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/s/
Eyal Waldman
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and Director |
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(Principal Executive Officer)
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July 6, 2008 |
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Chief Financial Officer |
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/s/
Michael Gray
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(Principal Financial and Accounting Officer) |
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Authorized Representative in the United
States
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July 2, 2008 |
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/s/
Rob
S. Chandra
Rob
S. Chandra
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Director
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July 2, 2008 |
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/s/ Irwin
Federman
Irwin
Federman
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Director
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July 7, 2008 |
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/s/
Amal
Johnson
Amal
Johnson
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Director
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July 3, 2008 |
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/s/
Tom
Riordan
Tom
Riordan
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Director
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July 7, 2008 |
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/s/
C.
Thomas Weatherford
C.
Thomas Weatherford
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Director
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July 7, 2008 |
Index to Exhibits
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Exhibit |
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Number |
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Description |
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4.2
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Mellanox Technologies, Ltd. Global Share Incentive Plan (2006) (filed as an exhibit
to Amendment No. 1 to the Registrants Registration Statement on Form S-1 (File No.
333-137659) filed on November 14, 2006 and incorporated herein by reference) |
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4.3
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Mellanox Technologies, Ltd. Amended and Restated Articles of Association (filed as
an exhibit to Amendment No. 4 to the Registrants Registration Statement on Form
S-1 (File No. 333-137659) filed on January 22, 2007 and incorporated herein by
reference) |
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5.1
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Opinion of Yigal Arnon & Co. |
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23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm |
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23.2
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Consent of Yigal Arnon & Co. (included in Exhibit 5.1) |
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24.1
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Power of Attorney (included on the signature page of this Registration Statement) |