VOTING AND SUPPORT AGREEMENT
Exhibit 99.2
EXECUTION
COPY
VOTING
AND SUPPORT AGREEMENT (this “Agreement”), dated as
of November 29, 2010, by and among Mellanox Technologies, Ltd., a public company
formed under the laws of the State of Israel (“Parent”), Mondial
Acquisition Corporation Ltd., a private company formed under the laws of the
State of Israel and a wholly owned subsidiary of Parent (“Merger Sub”), and the
undersigned shareholder(s) (each, a “Shareholder” and
together (if there is more than one undersigned Shareholder), the “Shareholders") of
Voltaire Ltd., a public company formed under the laws of the State of Israel
(the “Company”). Each
of Parent, Merger Sub and each Shareholder is referred to as a “party” and
collectively as the “parties”. Capitalized terms used but not defined
in this Agreement have the meanings ascribed to them in the Merger Agreement
(defined below).
RECITALS
A. Concurrently
with the execution of this Agreement, the Company, Parent and Merger Sub are
entering into an Agreement of Merger as of the date hereof (the “Merger
Agreement”).
B. As
of the date hereof, each Shareholder is the record and beneficial owner of such
number of ordinary shares, par value NIS 0.01 per share, of the Company, as set
forth opposite its name on Schedule I hereto
(“Company
Shares”, and together with any other Company Shares acquired by
Shareholder after the date hereof, being collectively referred to herein as the
“Shareholder
Shares”).
C. As
a condition to their willingness to enter into the Merger Agreement, Parent and
Merger Sub have required that the Shareholders enter into this
Agreement.
D. In
order to induce Parent and Merger Sub to enter into the Merger Agreement, the
Company asked for the Shareholders to vote in favor of, or consent to, the
Merger and the other transactions contemplated by the Merger Agreement and to
enter into this Agreement, and each Shareholder has agreed to vote in favor of,
or give its consent to, the Merger and is willing to enter into this
Agreement.
AGREEMENT
The
parties, intending to be legally bound, agree as follows:
1. Agreements of
Shareholders.
(a) Voting. From
the date hereof until any termination of this Agreement in accordance with its
terms, at the Company General Meeting and any other meeting of the shareholders
of the Company however called (or any action by written consent in lieu of a
meeting) or any adjournment thereof, each Shareholder shall vote all of its
Shareholder Shares (or cause them to be voted) or, as applicable, execute
written consents in respect thereof, (i) in favor of the adoption of the Merger
Agreement and the approval of the Merger and the other transactions contemplated
by the Merger Agreement, (ii) against any action or agreement (including,
without limitation, any amendment of any agreement) that would result in a
breach of any representation, warranty, covenant, agreement or other obligation
of the Company in the Merger Agreement, (iii) against any Acquisition Proposal
or Acquisition Transaction that is the subject of an Acquisition Proposal, (iv)
against any agreement (including, without limitation, any amendment of any
agreement), amendment of the memorandum of association or articles of
association of the Company or other action that is intended or could reasonably
be expected to prevent, impede, interfere with, delay or postpone the
consummation of the Merger or the other transactions contemplated by the Merger
Agreement, and (v) in favor of any adjournment or postponement of the Company
General Meeting or other meeting recommended by the Board of Directors of the
Company if there are not sufficient votes for adoption of the Merger Agreement
and the approval of the Merger on the date on which such meeting is initially
held or scheduled, as applicable. Any such vote shall be cast, or
consent shall be given, as applicable, by each Shareholder in accordance with
such procedures relating thereto so as to ensure that it is duly counted,
including for purposes of determining that a quorum is present and for purposes
of recording the results of such vote or consent. In the event that a
Shareholder has granted a proxy to HFN Trust Company 2010 Ltd., pursuant to
Section 1(b),
which such proxy is in effect, such Shareholder shall have no obligations under
this Section 1(a)
with respect to the meeting of the shareholders of the Company for which such
proxy has been granted.
(b) Proxy. In
furtherance of the Shareholders’ agreement in Section 1(a), but
subject to the following sentence, each Shareholder hereby appoints HFN Trust
Company 2010 Ltd. as such Shareholder’s proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of such
Shareholder, to vote all of such Shareholder's Shareholder Shares (at the
Company General Meeting and any other meeting of shareholders of the Company
however called or any adjournment thereof), or to execute one or more written
consents in respect of such Shareholder Shares, (i) in favor of the adoption of
the Merger Agreement and the approval of the Merger and the other transactions
contemplated by the Merger Agreement, (ii) against any action or agreement
(including, without limitation, any amendment of any agreement) that would
result in a breach of any representation, warranty, covenant, agreement or other
obligation of the Company in the Merger Agreement, (iii) against any Acquisition
Proposal or Acquisition Transaction that is the subject of an Acquisition
Proposal and (iv) against any agreement (including, without limitation, any
amendment of any agreement), amendment of the memorandum of association or
articles of association of the Company or other action that is intended or could
reasonably be expected to prevent, impede, interfere with, delay or postpone the
consummation of the Merger or the other transactions contemplated by the Merger
Agreement; provided, however, that such
Shareholder's grant of the proxy contemplated in this Section 1(b)
shall be effective if, and only if, such Shareholder has not delivered to the
Secretary or General Counsel of the Company at least ten (10) Business Days
prior to the date of such Company General Meeting a duly executed proxy card
previously approved by Parent voting such Shareholder’s Shareholder Shares in
the manner specified in Section 1(a) or
in the event such proxy card has been thereafter modified or revoked or
otherwise fails to evidence such Shareholder's compliance with its obligations
under Section 1(a) in
form and substance reasonably acceptable to Parent. Such proxy, if
granted as provided in this Section 1(b), shall (A) be valid and
irrevocable until the termination of this Agreement in accordance with Section 3 and
(B) automatically terminate upon the termination of this Agreement in
accordance with Section
3. Each Shareholder represents that any and all other proxies
heretofore given in respect of the Shareholder Shares are revocable, and that
such other proxies have been revoked. Each Shareholder affirms that,
if granted by it as provided in this Section 1(b), the foregoing proxy will be:
(x) given (i) in connection with the execution of the Merger Agreement and (ii)
to secure the performance of such Shareholder’s duties under this Agreement, (y)
coupled with an interest and may not be revoked except as otherwise provided in
this Agreement and (z) intended to be irrevocable prior to termination of this
Agreement. All authority herein conferred shall survive the death or
incapacity of a Shareholder and shall be binding upon the heirs, estate,
administrators, personal representatives, successors and assigns of such
Shareholder.
(c) Restriction on Transfer;
Proxies; Non-Interference; etc. From the date hereof until any
termination of this Agreement in accordance with its terms, each Shareholder
shall not directly or indirectly (i) sell, transfer (including by operation of
law), give, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, gift, pledge, encumbrance, assignment or other disposition of, any of
its Shareholder Shares (or any right, title or interest thereto or therein),
(ii) deposit any of its Shareholder Shares into a voting trust or grant any
proxies or enter into a voting agreement, power of attorney or voting trust with
respect to any of its Shareholder Shares, (iii) knowingly take any action that
would make any representation or warranty of such Shareholder set forth in this
Agreement untrue or incorrect or have the effect of preventing, disabling or
delaying such Shareholder from performing any of its obligations under this
Agreement or (iv) agree (whether or not in writing) to take any of the actions
referred to in the foregoing clauses (i), (ii) or (iii) of this Section
1(c). Notwithstanding the foregoing, a Shareholder may make
transfers of its Shareholder Shares (i) by will, gift, operation of Legal
Requirements or for estate planning purposes, in each case, in which the
transferee agrees to be bound by all terms of this Agreement, (ii) to any
controlled Affiliate thereof, if such controlled Affiliate agrees in writing, in
an instrument reasonably acceptable to Parent, to be bound by this Agreement as
a Shareholder hereunder, and (iii) as Parent may otherwise
consent.
(d) No
Solicitation. Each Shareholder agrees that such Shareholder is
a “Representative” of the Company for purposes of Section 5.4 of the Merger
Agreement, and that such Shareholder shall not, directly or indirectly, through
any Representative of such Shareholder authorized by it to act on its behalf,
take any action prohibited by Section 5.4 of the Merger Agreement, including,
without limitation, making any Acquisition Proposal.
(e) Information for Proxy
Statement; Publication. Each Shareholder hereby authorizes
Parent and Merger Sub to publish and disclose, in any press release, Proxy
Statement, filing with the SEC or other Governmental Body in connection with the
Merger or the transactions contemplated by the Merger Agreement, such
Shareholder’s identity and ownership of Company Shares and the nature of such
Shareholder’s commitments, arrangements and understandings under this
Agreement. Each Shareholder shall not issue any press release or make
any other public statement with respect to this Agreement, the Merger Agreement,
the Merger or the other transactions contemplated by the Merger
Agreement, without the prior written consent of Parent, except as may be
required by applicable Legal Requirements (including as may be required for such
Shareholder to comply with its obligations under the Exchange
Act).
2. Representations and
Warranties of Shareholders. Each Shareholder hereby represents
and warrants to Parent and Merger Sub as follows in respect of such
Shareholder:
(a) Authority. Such
Shareholder has all necessary power and authority to execute and deliver this
Agreement and to perform such Shareholder’s obligations under this
Agreement. This Agreement has been duly executed and delivered by
such Shareholder and, assuming due and valid authorization, execution and
delivery hereof by Parent and Merger Sub, constitutes a valid and binding
obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms, subject to (i) laws of general application relating
to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable
remedies.
(b) Consents and Approvals; No
Violations. Except as specified in the Merger Agreement, other than
filings under the Exchange Act and other than such as, if not made, obtained or
given, would not reasonably be expected to prevent or materially delay the
performance by such Shareholder of any of such Shareholder’s obligations under
this Agreement, no notices, reports or other filings are required to be made by
such Shareholder with, nor are any consents, registrations, approvals, permits
or authorizations required to be obtained by such Shareholder from, any
Governmental Body or any other Person or entity, in connection with the
execution and delivery of this Agreement by such Shareholder. The execution,
delivery and performance of this Agreement by such Shareholder does not, and the
consummation by such Shareholder of the transactions contemplated hereby will
not, result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation, modification or acceleration) (whether after the
giving of or the passage of time of both) under any contract, agreement,
arrangement or commitment to which such Shareholder is a party or which is
binding on such Shareholder or such Shareholder’s assets and will not result in
the creation of any Encumbrance on any of the assets or properties of such
Shareholder (other than its Shareholder Shares), except for such violations,
breaches, defaults, terminations, cancellations, modifications, accelerations or
Encumbrances as would not reasonably be expected to prevent or materially delay
the performance by such Shareholder of any of such Shareholder’s obligations
under this Agreement.
(c) Ownership of
Shares. Such Shareholder owns, beneficially and of record, all
of its Shareholder Shares. Such Shareholder owns all of its
Shareholder Shares free and clear of any proxy, voting restriction, adverse
claim or other Encumbrance (other than proxies and restrictions in favor of
Parent and Merger Sub pursuant to this Agreement and transfer restrictions under
the applicable securities laws). Without limiting the foregoing,
except for proxies and restrictions in favor of Parent and Merger Sub pursuant
to this Agreement and transfer restrictions under applicable securities laws,
such Shareholder has sole voting power and sole power of disposition with
respect to all of its Shareholder Shares, with no restrictions on such
Shareholder’s rights of voting or disposition pertaining thereto and no Person
other than such Shareholder has any right to direct or approve the voting or
disposition of any of its Shareholder Shares. As of the date hereof,
such Shareholder does not own, beneficially or of record, any voting securities
of the Company other than the Company Shares which constitute its Shareholder
Shares and the Company Compensatory Awards listed on Schedule
I.
(d) Brokers. No
broker, investment banker, financial advisor or other Person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission that
is payable by the Company, Parent or any of their respective subsidiaries in
connection with the Merger or the other transactions contemplated by the Merger
Agreement based upon arrangements made by or on behalf of such
Shareholder.
3. Termination. This
Agreement shall terminate on the first to occur of (a) in respect of each
Shareholder, the mutual written agreement of Parent, Merger Sub and each
Shareholder as to such Shareholder, (b) the termination of the Merger Agreement
in accordance with its terms, (c) the Effective Time and (d) in respect to each
Shareholder, any amendment, supplement or waiver to the Merger Agreement that
would reduce the Per Share Merger Consideration or change the form of the merger
consideration payable in the Merger unless consented to in writing by such
Shareholder. Notwithstanding the foregoing, (i) nothing herein
shall relieve any party from liability for any breach of this Agreement, and
(ii) the provisions of this Section 3 and Section 4 of the Agreement shall
survive any termination of this Agreement.
4. Miscellaneous.
(a) Action in Shareholder
Capacity Only. The parties acknowledge that this Agreement is
entered into by each Shareholder in such Shareholder’s capacity as owner of its
Shareholder Shares and that nothing in this Agreement shall in any way restrict
or limit any director or officer of the Company (including any Representative of
such Shareholder in his or her capacity as a director or officer of the Company)
from taking any action in his or her capacity as a director or officer of the
Company, including, without limitation, any action that is deemed necessary for
him or her to comply with his or her fiduciary duties as a director or officer
of the Company, including, without limitation, participating in his or her
capacity as a director of the Company in any discussions or negotiations in
accordance with Section 5.4 of the Merger Agreement.
(b) Expenses. Except
as otherwise expressly provided in this Agreement, all costs and expenses
incurred in connection with the transactions contemplated by this Agreement
shall be paid by the party incurring such costs and expenses.
(c) Additional
Shares. Until any termination of this Agreement in accordance
with its terms, each Shareholder shall promptly notify Parent of the number of
Company Shares, if any, as to which such Shareholder acquires record or
beneficial ownership after the date hereof. Any Company Shares as to
which a Shareholder acquires record or beneficial ownership after the date
hereof and prior to termination of this Agreement shall be Shareholder Shares of
such Shareholder for purposes of this Agreement. Without limiting the
foregoing, in the event of any share split, share dividend or other change in
the capital structure of the Company affecting the Company Shares, the number of
Company Shares constituting Shareholder Shares shall be adjusted appropriately
and this Agreement and the obligations hereunder shall attach to any additional
shares of Company Shares or other voting securities of the Company issued to the
Shareholders in connection therewith.
(d) Definition of “Beneficial
Ownership”. For purposes of this Agreement, “beneficial
ownership” with respect to (or to “own beneficially”) any securities shall mean
having “beneficial ownership” of such securities (as determined pursuant to Rule
13d-3 under the Exchange Act), including pursuant to any agreement, arrangement
or understanding, whether or not in writing.
(e) Further
Assurances. From time to time, at the reasonable request of
Parent and without further consideration, each Shareholder shall execute and
deliver such additional documents and take all such further action as may be
reasonably required to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this
Agreement.
(f) Entire Agreement; No Third
Party Beneficiaries. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof. This Agreement is not intended to and shall not confer upon
any Person other than the parties any rights hereunder.
(g) Assignment; Binding
Effect. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written consent of
the other parties, except that Parent or Merger Sub may assign its rights and
interests hereunder to Merger Sub or Parent, respectively, or to any
wholly-owned subsidiary of Parent, provided, however, that no such assignment
shall relieve Parent or Merger Sub of its obligations hereunder if such assignee
does not perform such obligations. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted
assigns. Any purported assignment not permitted under this Section 4(g) shall be
null and void.
(h) Amendments;
Waiver. This Agreement may not be amended or supplemented,
except by a written agreement executed by the parties. Any party may
(A) waive any inaccuracies in the representations and warranties of any other
party or extend the time for the performance of any of the obligations or acts
of any other party or (B) waive compliance by the other party with any of the
agreements contained herein. Notwithstanding the foregoing, no
failure or delay by Parent or Merger Sub in exercising any right hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right hereunder. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party.
(i) Severability. If
any term or other provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, all other terms, provisions and conditions of
this Agreement shall nevertheless remain in full force and
effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
(j)
No Ownership
Interest. Nothing contained in this Agreement shall be deemed to vest in
Parent or Merger Sub any direct or indirect ownership or incidence of ownership
of or with respect to any Shareholder Shares. All rights, ownership
and economic benefits of and relating to the Shareholder Shares shall remain
vested in and belong to the applicable Shareholder, and neither Parent nor
Merger Sub shall have any authority to exercise any power or authority to direct
Shareholder in the voting of any of the Shareholder Shares, except as otherwise
specifically provided herein, or in the performance of a Shareholder’s duties or
responsibilities as a shareholder of the Company.
(k) Counterparts. This
Agreement may be executed in two or more separate counterparts, each of which
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. This Agreement shall become
effective when each party shall have received counterparts hereof signed by the
other parties.
(l)
Descriptive
Headings. Headings of Sections and subsections of this
Agreement are for convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever. Except as otherwise
indicated, all references in this Agreement to “Sections,” and “Schedules” are
intended to refer to Sections of this Agreement and Schedules to this
Agreement.
(m) Notices. All
notices, requests and other communications to any party hereunder shall be in
writing (including facsimile transmission) and shall be given,
if to
Parent or Merger Sub, to:
Mellanox
Technologies, Ltd.
Hermon
Bldg.
Yokneam,
Israel 20692
Attention: Chief
Executive Officer
with copy
to:
Mellanox
Technologies, Inc.
000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention: Vice
President of Legal Affairs
with
copies (which shall not constitute notice) to:
Xxxxxx
& Xxxxxxx LLP
000 Xxxxx
Xxxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx
X. Xxxxxxxxx
Xxxx X.
Xxxxxx
Xxxxxxxx
X. Xxxxx
Facsimile:
(000) 000-0000
and
Xxxxxx,
Fox & Xxxxxx
Xxxx
Xxxxx
0
Xxxxxxxx Xxxxxx
Xxx Xxxx,
00000
Xxxxxx
Attention: Xxxx
Sol
Facsimile: x000-0-000-0000
if to the
Shareholders, as stated in Schedule I hereto
or such
other address or facsimile number as such party may hereafter specify for the
purpose by notice to the other parties. All such notices, requests
and other communications shall be deemed received on the date of receipt by the
recipient thereof if received prior to 5:00 P.M. in the place of receipt and
such day is a business day in the place of receipt. Otherwise, any
such notice, request or communication shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
(n) Drafting. The
parties have participated jointly in the negotiation and drafting of this
Agreement and, in the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as jointly drafted by the parties and
no presumption or burden of proof shall arise favoring or disfavoring any party
by virtue of the authorship of any provision of this Agreement.
(o) Governing Law; Enforcement;
Jurisdiction.
(i) The
internal laws of the State of Israel, without regard to its choice of law rules,
shall govern the validity, the construction of its terms and the interpretation
of the rights and duties of the parties hereunder. The appropriate courts in Tel
Aviv, Israel shall have exclusive jurisdiction over any dispute or claim in
connection with this Agreement.
(ii) The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement in the appropriate courts in Tel Aviv, Israel, without bond or
other security being required, this being in addition to any other remedy to
which they are entitled at law or in equity.
[REMAINDER
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IN WITNESS WHEREOF, the parties have
caused this Agreement to be duly executed as of the date first above
written.
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Mellanox
Technologies, Ltd.
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By:
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Mondial
Acquisition Corporation Ltd.
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By:
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Name:
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Title:
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[SHAREHOLDER]
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By:
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Schedule
I
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Name of Shareholder
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Number of Outstanding
Company Shares
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Number of Company
Shares Subject to
Company Compensatory
Award and Type of
Award
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Address for the
above:
