As filed with the Securities and Exchange Commission on August 30, 2021

Registration No. 333-            

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

MARVELL TECHNOLOGY, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		3674		85-3971597
(State or other jurisdiction of incorporation or organization)		(Primary Standard Industrial Classification Code Number)		(I.R.S. Employer Identification Number)

1000 N. West Street, Suite 1200

Wilmington, Delaware 19801

(302) 295-4840

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Mitchell L. Gaynor

Chief Administration and Legal Officer and Secretary

1000 N. West Street, Suite 1200

Wilmington, Delaware 19801

(302) 295-4840

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

Stewart McDowell Gibson, Dunn & Crutcher LLP 555 Mission Street, 30th Floor San Francisco, California 94105 (415) 393-8200		Alessandra L. Simons Goodwin Procter LLP 3 Embarcadero Center, 28th Floor San Francisco, CA 94111 (415) 733-6039

 

 

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective and upon completion of the transaction described in the enclosed consent solicitation/prospectus.

If the securities being registered on this Form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.   ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

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.

 

Large accelerated filer ☒		Accelerated filer ☐		Non-accelerated filer ☐		Smaller reporting company ☐
						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 7(a)(2)(B) of the Securities Act.  ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ☐

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the SEC, acting pursuant to said section 8(a), may determine.

 

 

CALCULATION OF REGISTRATION FEE

 

Title of each class of securities to be registered		Amount to be registered(1)		Proposed maximum offering price per share		Proposed maximum aggregate offering price(2)		Amount of registration fee(3)
Common Stock, par value $0.002 per share		19,050,620		N/A		$1,165,135,919		$127,116.33

(1)

Represents the maximum number of shares of the Registrant’s common stock, par value $0.002 per share (the “Marvell common stock”), estimated to be issuable upon completion of the transaction described herein. The number of shares being registered is based upon the quotient of (a) the purchase price for the transaction prior to any adjustment pursuant to the merger agreement ($1,100,000,000), divided by (b) the Marvell volume weighted average price per share of Marvell common stock for the 10-trading-day period up to and including the trading day immediately preceding the date of the merger agreement ($57.7409 per share), in each case as set forth in the merger agreement described herein. This registration statement also covers an indeterminate number of additional shares of Marvell common stock as may be issuable as a result of stock splits, stock dividends or the like.

(2)

Estimated solely for the purpose of calculating the registration fee required by Section 6(b) of the Securities Act and calculated in accordance with Rule 457(c) and 457(f)(1) of the Securities Act. The proposed maximum aggregate offering price of the Marvell common stock to be registered is based on the product of (a) the average of the high and low prices of the Marvell common stock, as reported on Nasdaq on August 27, 2021 ($61.16), multiplied by (b) the maximum number of shares of Marvell common stock estimated to be issuable upon completion of the mergers described herein (19,050,620).

(3)	Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $109.10 per $1,000,000 of the proposed maximum aggregate offering price.

 

 

 

The information in this consent solicitation/prospectus is not complete and may be changed. We may not distribute or issue the securities being registered pursuant to this registration statement until the registration statement (of which this preliminary consent solicitation/prospectus is a part), as filed with the Securities and Exchange Commission, is effective. This preliminary consent solicitation/prospectus is not an offer to sell nor should it be considered a solicitation of an offer to buy the securities described herein in any state where the offer or sale is not permitted.

 

PRELIMINARY CONSENT SOLICITATION/PROSPECTUS — SUBJECT TO COMPLETION

DATED                     , 2021

CONSENT SOLICITATION STATEMENT OF INNOVIUM, INC. AND PROSPECTUS OF MARVELL TECHNOLOGY, INC.

 

To Stockholders of Innovium, Inc.:

As you may be aware, Innovium, Inc. (“Innovium”) entered into an Agreement and Plan of Merger, dated as of August 2, 2021 (the “merger agreement”), with Marvell Technology, Inc. (“Marvell”), one of Marvell’s wholly owned subsidiaries and Shareholder Representative Services LLC, pursuant to which, through a merger, Innovium will become a wholly owned subsidiary of Marvell (the “merger”). The transactions contemplated by the merger agreement, including the merger, are collectively referred to as the “transaction.”

The aggregate consideration to be paid by Marvell will be approximately $1.1 billion, subject to certain adjustments set forth in the merger agreement, consisting of shares of Marvell common stock, based on a fixed price of $57.7409 per share, which represents the volume weighted average closing sale price per share of Marvell common stock on the Nasdaq Global Select Market (“Nasdaq”) for the 10 trading days ending on and including July 30, 2021, the trading day immediately preceding the date of the merger agreement. Subject to the applicable provisions of the merger agreement, each share of Innovium common stock, Innovium Series A preferred stock, Innovium Series B preferred stock, Innovium Series C preferred stock, Innovium Series D preferred stock, Innovium Series D2 preferred stock, Innovium Series E preferred stock and Innovium Series F preferred stock, in each case issued and outstanding immediately prior to the effective time (other than any cancelled shares or dissenting shares as described in the accompanying consent solicitation/prospectus), will automatically be cancelled and converted into the right to receive a number of shares of Marvell common stock equal to (i) in the case of Innovium Series E preferred stock and Innovium Series F preferred stock, the number of shares of Marvell common stock allocable from the aggregate merger consideration to each such share of Innovium preferred stock in accordance with the Innovium certificate based on the liquidation preference of such series of preferred stock, and (ii) in the case of the Innovium common stock, Innovium Series A preferred stock, Innovium Series B preferred stock, Innovium Series C preferred stock, Innovium Series D preferred stock and Innovium Series D2 preferred stock, a number of shares of Marvell common stock based on the quotient obtained by dividing (a)(i) the aggregate merger consideration of approximately $1.1 billion (subject to certain adjustments set forth in the merger agreement) minus (ii) the aggregate merger consideration allocable to the Innovium Series E preferred stock and Innovium Series F preferred stock, by (b) the number of shares of Innovium common stock outstanding on a fully diluted basis (excluding shares of common stock issuable upon conversion of then-outstanding shares of Innovium Series E preferred stock and Innovium Series F preferred stock) as calculated in accordance with the merger agreement. In all cases, the number of shares of Marvell common stock issuable will be determined based on the Marvell VWAP (as defined below) of $57.7409. As of                , 2021, the most recent practicable date prior to the printing of the accompanying consent solicitation/prospectus, based upon the number of shares of Innovium capital stock, options, RSUs (as defined below) and warrants outstanding and the estimated transaction expenses of Innovium, in each case determined in accordance with the merger agreement, and assuming the cancellation of certain performance-based restricted stock units which are expected to be cancelled immediately prior to the closing, each share of Innovium common stock, Innovium Series A preferred stock, Innovium Series B preferred stock, Innovium Series C preferred stock, Innovium Series D preferred stock and Innovium Series D2 preferred stock would be converted into                shares of Marvell common stock, each share of Innovium Series E Preferred Stock would be converted into                shares of Marvell common stock and each share of Innovium Series F Preferred Stock would be converted into                shares of Marvell common stock. Because Marvell’s share price and Innovium’s fully diluted share count may fluctuate between now and the completion of the transaction, and because the consideration will not be adjusted to reflect such changes in Marvell’s share price or Innovium’s fully diluted share count, Innovium stockholders cannot be sure of the value of the shares of Marvell common stock they will receive in the transaction, and the value of the Marvell common stock received by Innovium stockholders in the transaction may differ from the implied value based on the share price on the date of the merger agreement. See the section entitled “The Transaction—Consideration to Innovium Securityholders” in the accompanying consent solicitation/prospectus, including the hypothetical example set forth therein.

Marvell common stock is traded on Nasdaq under the symbol “MRVL.” On                , 2021, the most recent practicable date prior to the date of the accompanying consent solicitation/prospectus, the last reported sale price of Marvell common stock on Nasdaq was $                 .

The board of directors of Innovium (the “Innovium board”) has considered the transaction and the terms of the merger agreement and has unanimously approved and declared advisable the merger agreement and the transaction, upon the terms and conditions set forth in the merger agreement, and unanimously determined that the merger agreement and the transaction are fair to and in the best interests of Innovium and its stockholders. The adoption of the merger agreement requires the affirmative vote or consent of (i) the holders of at least a majority of the outstanding shares of Innovium common stock and Innovium preferred stock (voting as a single class and on an as-converted basis) entitled to vote thereon and (ii) the holders of at least a majority of the outstanding shares of Innovium preferred stock (voting as a single class and on an as-converted basis) entitled to vote thereon (the foregoing clauses (i) and (ii), collectively, the “Innovium stockholder approval”).

The Innovium stockholder approval is required for the transaction to close, and you are being sent this document to ask you to approve the adoption of the merger agreement by executing and returning the written consent furnished with the accompanying consent solicitation/prospectus.

The Innovium board has set August 1, 2021 as the record date (the “record date”) for determining Innovium stockholders entitled to execute and deliver written consents with respect to this solicitation. If you are a holder of Innovium capital stock on the record date, you are urged to complete, date and sign the enclosed written consent and promptly return it to Innovium. See the section entitled “Solicitation of Written Consents” in the accompanying consent solicitation/prospectus.

Concurrently with the execution of the merger agreement, Marvell and certain stockholders of Innovium, representing approximately 65.09% of the outstanding shares of Innovium capital stock and approximately 71.98% of the outstanding shares of Innovium preferred stock as of the date of the merger agreement entered into a support agreement (the “support agreement”) under which they have agreed, promptly (and in any event within one business day) after the registration statement of which the accompanying consent solicitation/prospectus forms a part is declared effective by the Securities and Exchange Commission (the “SEC”), to execute and deliver written consents approving the adoption of the merger agreement and related matters with respect to all of their shares of Innovium capital stock entitled to act by written consent with respect thereto. The execution and delivery of written consents by all parties to the support agreement will constitute the Innovium stockholder approval and, therefore, we expect to receive a number of written consents sufficient to satisfy such approval.

No vote of Marvell stockholders is required to complete the transaction.

We encourage you to read carefully the accompanying consent solicitation/prospectus and the documents incorporated by reference into the accompanying consent solicitation/prospectus in their entirety, including the section entitled “Risk Factors” in the accompanying consent solicitation/prospectus.

Neither the SEC nor any state securities commission has approved or disapproved of the securities to be issued under the accompanying consent solicitation/prospectus, or determined if the accompanying consent solicitation/prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The accompanying consent solicitation/prospectus is dated                , 2021, and is first being delivered to Innovium stockholders on or about                 , 2021.

 

Innovium, Inc.

6001 America Center Drive, Suite 200

San Jose, CA 95002

Notice of Solicitation of Written Consent

To Stockholders of Innovium, Inc.:

Pursuant to an Agreement and Plan of Merger, dated as of August 2, 2021 (the “merger agreement”), by and among Marvell Technology, Inc. (“Marvell”), a wholly owned subsidiary of Marvell (“Merger Sub”), Innovium, Inc. (“Innovium”) and Shareholder Representative Services LLC (the “Stockholder Representative”), Merger Sub will be merged with and into Innovium (the “merger”), with Innovium continuing as the surviving corporation and a wholly owned subsidiary of Marvell. The transactions contemplated by the merger agreement, including the merger, are collectively referred to as the “transaction.”

The accompanying consent solicitation/prospectus is being delivered to you on behalf of the board of directors of Innovium (the “Innovium board”) to request that Innovium stockholders as of the record date of August 1, 2021 approve the adoption of the merger agreement by executing and returning the written consent furnished with the accompanying consent solicitation/prospectus.

The accompanying consent solicitation/prospectus describes the merger agreement, the transaction and the actions to be taken in connection with the transaction and provides additional information about the parties involved. Please give this information your careful attention. A copy of the merger agreement is attached as Annex A to the accompanying consent solicitation/prospectus.

A summary of the appraisal rights that may be available to you is described in “Appraisal Rights” in the accompanying consent solicitation/prospectus. Please note that if you wish to exercise appraisal rights you must not sign and return a written consent approving the adoption of the merger agreement. However, so long as you do not return a written consent at all, it is not necessary to affirmatively vote against or disapprove the adoption of the merger agreement in order to exercise your appraisal rights. In addition, you must take all other steps necessary to perfect your appraisal rights.

The Innovium board has considered the transaction and the terms of the merger agreement and unanimously approved and declared advisable the merger agreement and the transaction, upon the terms and conditions set forth in the merger agreement, and unanimously determined that the merger agreement and the transaction are fair to and in the best interests of Innovium and its stockholders.

Please complete, date and sign the written consent furnished with the accompanying consent solicitation/prospectus and return it promptly to Innovium by one of the means described in “Solicitation of Written Consents” in the accompanying consent solicitation/prospectus.

By Order of the Board of Directors:

Lip-Bu Tan

Chairman

TABLE OF CONTENTS

 

IMPORTANT NOTE ABOUT THIS CONSENT SOLICITATION/PROSPECTUS			1
QUESTIONS AND ANSWERS			3
Questions and Answers about the Transaction			3
Questions and Answers for Innovium Stockholders			7
SUMMARY			11
Information about the Companies			11
The Transaction			12
Innovium’s Reasons for the Transaction; Recommendation of the Innovium Board			12
Regulatory Approvals			12
Conditions to Completion of the Transaction			12
Solicitation of Written Consents; Expenses			14
Termination of the Merger Agreement			15
Expenses and Termination Fee			16
Interests of Innovium’s Directors and Executive Officers in the Transaction			16
Comparison of Stockholders’ Rights			17
Accounting Treatment			17
U.S. Federal Income Tax Consequences			17
Appraisal Rights			17
Risk Factors			18
MARKET PRICE AND DIVIDEND INFORMATION			19
RISK FACTORS			20
Risks Related to the Merger			20
Risks Related to the Combined Company			23
Risks Related to Marvell’s Business			25
Risks Related to Innovium’s Business			25
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS			38
SOLICITATION OF WRITTEN CONSENTS			40
Purpose of the Consent Solicitation; Recommendation of the Innovium Board			40
Innovium Stockholders Entitled to Consent			40
Written Consents; Required Written Consents			40
Submission of Written Consents			41
Executing Written Consents; Revocation of Written Consents			41
Solicitation of Written Consents; Expenses			42
INFORMATION ABOUT THE COMPANIES			43
Marvell			43
Merger Sub			43
Innovium			43
PRINCIPAL STOCKHOLDERS OF INNOVIUM			44
THE TRANSACTION			49
Structure of the Transaction			49
Consideration to Innovium Securityholders			49
Background of the Transaction			49
Innovium’s Reasons for the Transaction; Recommendation of the Innovium Board			54
Regulatory Approvals			58
Listing of Marvell Common Stock			59
Support Agreement			59
Restrictive Covenant Agreements			59
Management Following the Transaction			59
Accounting Treatment			59
Tax Treatment of the Merger			60

 

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THE MERGER AGREEMENT			61
Explanatory Note Regarding the Merger Agreement			61
The Transaction			61
Closing; Effective Time			62
Consideration; Effect of the Transaction on Capital Stock			62
Treatment of Innovium Equity Awards			62
Treatment of Innovium Warrants			63
Definitions			64
Adjustment to Merger Consideration			65
Exchange Procedures			65
No Fractional Shares			66
Withholding Rights			66
Dissenting Shares			66
Representations and Warranties			66
Covenants and Agreements			68
Conditions to Completion of the Transaction			74
Indemnification			75
Stockholder Representative			76
Termination of the Merger Agreement			77
Expenses			77
Amendments and Waivers			77
No Third-Party Beneficiaries			78
Enforcement; Remedies			78
Governing Law			78
SUPPORT AGREEMENT			79
U.S. FEDERAL INCOME TAX CONSEQUENCES			80
INTERESTS OF INNOVIUM’S DIRECTORS AND EXECUTIVE OFFICERS IN THE TRANSACTION			84
COMPARISON OF STOCKHOLDERS’ RIGHTS			85
APPRAISAL RIGHTS			104
EXPERTS			109
LEGAL MATTERS			109
WHERE YOU CAN FIND MORE INFORMATION			109
ANNEX A    Merger Agreement			A-1
ANNEX B    Innovium Certificate of Incorporation			B-1
ANNEX C    Form of Letter of Transmittal			C-1
ANNEX D    Form of Innovium Stockholder Consent			D-1
ANNEX E    Support Agreement			E-1
ANNEX F    Section  262 of the General Corporation Law of the State of Delaware			F-1

 

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IMPORTANT NOTE ABOUT THIS CONSENT SOLICITATION/PROSPECTUS

This consent solicitation/prospectus, which forms part of a registration statement on Form S-4 filed with the Securities and Exchange Commission (the “SEC”) by Marvell (File No. 333-                 ), constitutes a prospectus of Marvell under Section 5 of the Securities Act of 1933, as amended (the “Securities Act”), with respect to the Marvell common stock to be issued to Innovium stockholders pursuant to the merger agreement.

Neither Marvell nor Innovium has authorized anyone to give any information or make any representation about the transaction, Marvell or Innovium that is different from, or in addition to, that contained in this consent solicitation/prospectus or in any of the materials that have been incorporated by reference. Therefore, neither Marvell nor Innovium takes any responsibility for, or can provide any assurance as to the reliability of, any information other than the information contained in or incorporated by reference into this consent solicitation/prospectus.

This consent solicitation/prospectus is dated                 , 2021. The information contained in this consent solicitation/prospectus is accurate only as of that date or, in the case of information in a document incorporated by reference, as of the date of such document, unless the information specifically indicates that another date applies. Neither the delivery of this consent solicitation/prospectus to Innovium stockholders nor the issuance by Marvell of common stock pursuant to the merger agreement will create any implication to the contrary.

This consent solicitation/prospectus does not constitute an offer to sell, or the solicitation of an offer to buy, any securities, in any jurisdiction in which or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction.

The information concerning Marvell contained in or incorporated by reference into this consent solicitation/prospectus has been provided by Marvell, and the information concerning Innovium contained in this consent solicitation/prospectus has been provided by Innovium.

Unless otherwise indicated or as the context otherwise requires, all references in this consent solicitation/prospectus to:

 

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“closing” refers to the closing of the merger;

 

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“closing date” refers to the date on which the closing actually occurs;

 

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“DGCL” refers to the General Corporation Law of the State of Delaware;

 

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“effective time” refers to the effective time of the merger;

 

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“Innovium” refers to Innovium, Inc., a Delaware corporation;

 

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“Innovium board” refers to the board of directors of Innovium;

 

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“Innovium capital stock” refers to, collectively, the Innovium common stock and the Innovium preferred stock;

 

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“Innovium certificate” refers to the restated certificate of incorporation of Innovium, as amended by the certificate of amendment thereto, copies of which are attached as Annex B to this consent solicitation/prospectus;

 

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“Innovium common stock” refers to the common stock, par value $0.00001 per share, of Innovium;

 

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“Innovium option” refers to an option to purchase shares of common stock of Innovium;

 

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“Innovium preferred stock” refers to, collectively, the preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series A preferred stock” refers to the Series A preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series B preferred stock” refers to the Series B preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series C preferred stock” refers to the Series C preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series D preferred stock” refers to the Series D preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series D2 preferred stock” refers to the Series D2 preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series E preferred stock” refers to the Series E preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium Series F preferred stock” refers to the Series F preferred stock, par value $0.00001 per share, of Innovium;

 

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“Innovium RSU” refers to a restricted stock unit in respect of common stock of Innovium;

 

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“Innovium stockholders” refers to the holders of Innovium capital stock;

 

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“Innovium warrant” refers to a warrant to purchase shares of Innovium capital stock;

 

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“Marvell” refers to Marvell Technology, Inc., a Delaware corporation;

 

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“Marvell board” refers to the board of directors of Marvell;

 

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“Marvell common stock” refers to the shares of common stock, par value $0.002 per share, of Marvell;

 

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“Marvell stockholders” refers to the holders of Marvell common stock;

 

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“merger” refers to the merger of Merger Sub with and into Innovium, with Innovium continuing as the surviving corporation and as a wholly owned subsidiary of Marvell;

 

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“merger agreement” refers to the Agreement and Plan of Merger, dated as of August 2, 2021, by and among Marvell, Merger Sub, Innovium and Shareholder Representative Services LLC, solely in its capacity as the initial stockholder representative thereunder;

 

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“Merger Sub” refers to Ibiza Acquisition Sub, Inc. a Delaware corporation and a wholly owned subsidiary of Marvell;

 

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“surviving corporation” refers to Innovium as the surviving corporation in the merger;

 

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“termination date” refers to May 2, 2022; and

 

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“transaction” refers to the transactions contemplated by the merger agreement, including the merger.

 

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RISK FACTORS

In reviewing the transaction described in this consent solicitation/prospectus, you should consider carefully the following risk factors, together with general investment risks and all of the other information included in, or incorporated by reference into, this consent solicitation/prospectus. This consent solicitation/prospectus also contains forward-looking statements that involve risks and uncertainties. Please read the section entitled “Special Note Regarding Forward-Looking Statements.”

The risks described below are certain material risks, although not the only risks, relating to the transaction and each of Marvell, Innovium and the surviving company in relation to the transaction. The risks described below are not the only risks that Marvell or Innovium currently faces or that Marvell or the surviving company will face after the completion of the transaction. Additional risks and uncertainties not currently known or that are currently expected to be immaterial may also materially and adversely affect the business, financial condition and results of operations of Marvell or the surviving company or the market price of Marvell common stock following the completion of the transaction.

If any of the following risks and uncertainties develop into actual events, these events could have a material adverse effect on the business, financial condition and results of operations of Marvell, Innovium and/or the surviving company. In addition, past financial performance may not be a reliable indicator of future performance, and historical trends should not be used to anticipate results or trends in future periods.

Risks Related to the Merger

The number of shares of Marvell common stock that Innovium securityholders will receive under the merger agreement is based on a fixed value of a share of Marvell common stock determined as of the date of the merger agreement. The market value of the shares of Marvell common stock to be issued upon completion of the merger is unknown, and therefore, Innovium securityholders cannot be certain of the value of the shares of Marvell common stock to be issued in the merger.

Upon completion of the merger, shares of Innovium capital stock will be converted into the right to receive a number of shares of Marvell common stock based on a value per Marvell share of $57.7409, which was the volume weighted average price of a share of Marvell common stock for the ten trading day period up to and including the trading day immediately preceding the date of the merger agreement. The market value of a share of Marvell common stock at the time of the completion of the merger may vary significantly from its price on the date of the merger agreement, the date of this consent solicitation/prospectus or the date on which the Innovium stockholder consent is received. Because the Marvell VWAP will not be adjusted to reflect any changes in the market price of shares of Marvell common stock, the market value of the shares of Marvell common stock issued in the merger may be higher or lower than the value of such shares on earlier dates. Share price changes may result from numerous factors, including changes in the respective business operations and prospects of Marvell, changes in general market and economic conditions and regulatory considerations. Many of these factors are beyond the control of Marvell or Innovium. At the time at which the Innovium stockholder consent is solicited, Innovium stockholders will not know or be able to determine the value of the shares of Marvell common stock that such stockholders will receive pursuant to the merger agreement.

The market price of shares of Marvell common stock after the merger might be affected by factors different from, or in addition to, those currently affecting the market price of shares of Marvell common stock and the value of shares of Innovium capital stock.

The businesses of Marvell and Innovium differ and, accordingly, the results of operations of Marvell and the market price of shares of Marvell common stock after completion of the merger may be affected by factors different from, or in addition to, those currently affecting the independent results of operations of each of Marvell and Innovium. For a discussion of the business of Marvell and of factors to consider in connection with its

 

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business, see the documents incorporated by reference into this consent solicitation/prospectus and referred to under “Where You Can Find More Information.”

There has been no public market for Innovium capital stock and the lack of a public market may make it more difficult to determine the fair market value of Innovium than if there were such a public market.

The outstanding shares of Innovium capital stock are privately held and are not traded on any public market. The lack of a public market may make it more difficult to determine the fair market value of Innovium than if the outstanding shares of Innovium capital stock were traded publicly. The value ascribed to Innovium’s securities in other contexts, including in private valuations or financings, may not be indicative of the price at which the outstanding shares of Innovium capital stock may have traded on a public market. The consideration to be paid to Innovium securityholders in the merger was determined based on negotiations between the parties and likewise may not be indicative of the price at which the outstanding shares of Innovium capital stock may have traded on a public market.

Until the completion of the merger or the termination of the merger agreement in accordance with its terms, Innovium is prohibited from entering into certain transactions and taking certain actions that might otherwise be beneficial to Innovium and its stockholders. Innovium is also restricted in its ability to pursue alternatives to the merger.

Until the merger is completed or the merger agreement is terminated, the merger agreement restricts Innovium from taking specified actions without the consent of Marvell, and requires Innovium to conduct its business and operations in the ordinary course of business. These restrictions may prevent Innovium from making appropriate changes to its businesses or pursuing attractive business opportunities that may arise prior to the completion of the merger. See “The Merger Agreement—Covenants and Agreements—Conduct of Business of Innovium Prior to Completion of the Transaction” for a description of the restrictive covenants applicable to Innovium.

The merger agreement contains non-solicitation provisions that restrict the ability of Innovium to (a) solicit, initiate, consider, knowingly encourage or accept any proposal or offer than constitutes an acquisition proposal or (b) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other person any information with respect to, or otherwise knowingly cooperate in any way, knowingly assist or participate in, knowingly facilitate or encourage the submission of, any proposal that constitutes, or could reasonably be expected to lead to, an acquisition proposal (as defined under “The Merger Agreement—Covenants and Agreements—No Solicitation by Innovium”) for purposes of the merger agreement. In addition, the merger agreement does not permit Innovium to terminate the merger agreement in order to enter into an agreement providing for, or to complete, such an alternative transaction, even if the alternative transaction provides for the payment of consideration with a higher value per share of Innovium capital stock than the market value of Marvell common stock proposed to be received or realized in the transaction. See the section entitled “The Merger Agreement—Covenants and Agreements—No Solicitation by Innovium.”

The merger is subject to a number of conditions, some of which are outside of the parties’ control, and if these conditions are not satisfied or waived, the merger will not be completed.

The merger agreement contains a number of conditions that must be satisfied (or waived) prior to completion of the merger. Those conditions include, among other conditions:

 

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approval of the Innovium merger proposal by Innovium stockholders and there not being more than 5% of the outstanding shares of capital stock of Innovium that are dissenting shares or have the continuing right to dissent;

 

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the absence of any law enjoining, restraining, conditioning, making illegal or otherwise prohibiting the consummation of the merger;

 

•

the expiration or termination of any waiting period applicable to the merger under the HSR Act;

 

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•

the effectiveness of the registration statement of which this consent solicitation/prospectus forms a part and the absence of any stop order suspending that effectiveness or any proceedings for that purpose initiated by the SEC;

 

•

the approval for listing on Nasdaq of the shares of Marvell common stock issuable to Innovium securityholders in connection with the merger;

 

•

the accuracy (subject to certain materiality qualifications) of the representations and warranties of the parties in the merger agreement;

 

•

there being no material adverse effect on Marvell or Innovium that is continuing;

 

•

compliance with and performance by the parties of their respective covenants in the merger agreement in all material respects;

 

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absence of litigation that is reasonably likely to require divestiture of assets, prohibit or impose limitations on Marvell’s ownership or operation of its or Innovium’s business or impose limitations on Marvell’s ability to control the business, operations or assets of Innovium in any material respect;

 

•

specified percentages of employees of Innovium shall not have left the employment of Innovium;

 

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obtaining of third party consents;

 

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delivery of audited financials; and

 

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other customary closing conditions.

The required satisfaction or waiver of the foregoing conditions could delay the completion of the merger for a significant period of time or prevent it from occurring at all. Any delay in completing the merger could cause the parties not to realize some or all of the benefits that the parties expect to achieve following the completion of the merger. Further, there can be no assurance that the conditions to the completion of the merger will be satisfied or waived or that the merger will be completed.

In addition, if the merger is not completed by May 2, 2022, either Marvell or Innovium may choose to terminate the merger agreement. Marvell or Innovium may also elect to terminate the merger agreement in certain other circumstances, or they may mutually decide to terminate the merger agreement at any time prior to the effective time, before or after obtaining shareholder approval. See “The Merger Agreement—Termination of the Merger Agreement” for a more detailed description of these circumstances.

The COVID-19 pandemic may delay or prevent the completion of the merger.

Given the ongoing and dynamic nature of the COVID-19 crisis, it is difficult to predict the impact of that crisis on the businesses of Marvell and Innovium, and there is no guarantee that efforts by Marvell or Innovium to address the adverse impact of the COVID-19 pandemic will be effective. If either Marvell or Innovium is unable to recover from a business disruption on a timely basis, Marvell’s business and financial condition and results of operations following the completion of the merger could be adversely affected. The merger may also be delayed or adversely affected by the COVID-19 pandemic, or become more costly due to Marvell policies, Innovium policies or government policies and actions to protect the health and safety of individuals, or government policies or actions to maintain the functioning of national or global economies and markets could delay or prevent the completion of the merger. Marvell or Innovium may also incur additional costs to remedy damages caused by such disruptions, which could adversely affect Marvell’s or Innovium’s financial condition or results of operations.

The business relationships of Marvell and Innovium and their respective subsidiaries may be subject to disruption due to uncertainty associated with the merger, which could have an adverse effect on the results of operations, cash flows and financial position of Marvell, Innovium and, following the completion of the merger, Marvell.

Parties with which Marvell and Innovium do business may experience uncertainty associated with the merger, including with respect to current or future business relationships with Innovium or Marvell. Marvell’s and

 

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Innovium’s relationships may be subject to disruption as customers, suppliers and other persons with whom Marvell and Innovium have business relationships may delay or defer certain business decisions or might decide to seek to terminate, change or renegotiate their relationships with Marvell or Innovium, as applicable, or consider entering into business relationships with parties other than Innovium or Marvell. These disruptions could have an adverse effect on the results of operations, cash flows and financial position of Marvell, Innovium and, following the completion of the merger, Marvell, including an adverse effect on Marvell’s ability to realize the expected synergies and other benefits of the merger. The risk, and adverse effect, of any disruption could be exacerbated by a delay in completion of the merger or termination of the merger agreement.

Certain stockholders of Innovium have executed a support agreement that requires each such stockholder to deliver a written consent in favor of the adoption of the merger agreement, which will constitute approval of the transaction by Innovium stockholders, even if the Innovium board changes its recommendation.

Concurrently with the execution of the merger agreement, certain stockholders of Innovium entered into a support agreement with Marvell, pursuant to which each of the support stockholders has agreed, promptly (and in any event within two business days) after the registration statement of which this consent solicitation/prospectus forms a part is declared effective under the Securities Act by the SEC, to execute and deliver a written consent approving the adoption of the merger agreement and related matters with respect to all of their shares of Innovium capital stock entitled to act by written consent with respect thereto. The support stockholders are required to deliver such written consents even if the Innovium board changes its recommendation that Innovium stockholders approve the merger agreement proposal. The execution and delivery of written consents by all of the support stockholders will constitute the Innovium stockholder approval and, therefore, we expect to receive a number of written consents sufficient to satisfy such approval.

Risks Related to the Combined Company

Marvell may fail to realize the benefits expected from the merger, which could adversely affect Marvell’s share price.

The anticipated benefits Marvell expects from the merger are, necessarily, based on projections and assumptions about the combined businesses of Marvell and Innovium, which may not materialize as expected or which may prove to be inaccurate. The value of shares of Marvell common stock following the completion of the merger could be adversely affected if Marvell is unable to realize the anticipated benefits from the merger on a timely basis or at all. Achieving the benefits of the merger will depend, in part, on the successful and efficient integration of the operations of Innovium and Marvell. The challenges involved in this integration, which will be complex and time-consuming, include the following:

 

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successfully managing relationships with Marvell and Innovium’s combined supplier and customer base;

 

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coordinating and integrating independent research and development and engineering teams across technologies and product platforms to enhance product development while reducing costs;

 

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coordinating sales and marketing efforts to effectively position Marvell’s capabilities and the direction of product development;

 

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combining product offerings and product lines and developing interoperability between the products of Marvell and Innovium;

 

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difficulties in integrating the systems and process of two companies with complex operations;

 

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retaining key employees of Innovium;

 

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obligations that Marvell will have to counterparties of Innovium that arise as a result of the change in control of Innovium; and

 

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the diversion of management attention from other important business objectives.

 

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If Marvell does not successfully manage these issues and the other challenges inherent in integrating businesses of the size and complexity of Marvell and Innovium, then Marvell may not achieve the anticipated benefits of the merger on a timely basis or at all and Marvell’s revenue, expenses, operating results and financial condition could be materially and adversely affected.

Completion of the transaction may trigger change in control, assignment or other provisions in certain agreements to which Innovium is a party, which may have an adverse impact on the surviving company’s business and results of operations.

The completion of the transaction may trigger change in control, assignment and other provisions in certain agreements to which Innovium is a party. If Innovium is unable to negotiate waivers of or consents under those provisions, the counterparties may exercise their rights and remedies under the agreements, potentially terminating the agreements or seeking monetary damages or other remedies. Even if Innovium is able to negotiate waivers, the counterparties may require a fee for such waivers or seek to renegotiate the agreements on terms less favorable to Marvell or the surviving corporation. Any of the foregoing or similar developments may have an adverse impact on the businesses, financial condition and results of operations of Marvell and the surviving corporation following the completion of the transaction, or the ability of Marvell to successfully integrate the Innovium business.

Marvell may face risks related to the COVID-19 pandemic which could significantly disrupt and adversely impact Marvell’s manufacturing, research and development, operations, sales and financial results.

Marvell’s and Innovium’s businesses have been, and Marvell’s business may be, adversely impacted by the effects of the COVID-19 pandemic. Following the completion of the merger, Marvell’s third-party manufacturers, suppliers, third-party distributors, sub-contractors and customers are expected to be disrupted by worker absenteeism, quarantines and restrictions on their employees’ ability to work; office and factory closures; disruptions to ports and other shipping infrastructure; border closures; and other travel or health-related restrictions. Depending on the magnitude of such effects on Marvell’s manufacturing, assembling and testing activities or the operations of Marvell’s suppliers, third-party distributors or sub-contractors, Marvell’s supply chain, manufacturing and product shipments may be delayed, which could adversely affect Marvell’s business, operations and customer relationships.

In addition to operational and customer impacts, the COVID-19 pandemic has had, and is expected to continue to have, a significant impact on (including an economic downturn in) the economies and financial markets of many countries, which may adversely affect demand for Marvell’s products and adversely impact Marvell’s operating results in both the near and long term. There can be no assurance that any decreases in sales resulting from the COVID-19 pandemic will be offset by increased sales in subsequent periods.

Marvell may experience disruptions to its business operations resulting from work from home, quarantines, self-isolations and restrictions on the ability of Marvell’s employees to perform their jobs, innovate, work together in teams and collaborate, and such disruptions could impact Marvell’s ability to develop and design its products in a timely manner or meet required milestones or customer commitments. These disruptions may also impact Marvell’s ability to win in time sensitive competitive bidding selection processes. In addition, work from home, quarantines, self-isolations, home schooling, continuing macroeconomic related uncertainty or caring for family members may result in heavy psychological, emotional or financial burdens for some of Marvell’s employees, which may impact their productivity and morale and may lead to higher employee absences and higher attrition rates. Marvell may also become subject to claims or lawsuits by employees, customers, suppliers or other parties regarding actions Marvell may take in its operations in response to the COVID-19 pandemic.

Due to uncertainty regarding the severity and duration of the COVID-19 pandemic and related public health measures and macroeconomic impacts, at this time Marvell and Innovium are unable to predict the full impact of the COVID-19 pandemic on Marvell’s business, financial condition, operating results and cash flows. In addition, the impacts of the COVID-19 pandemic will be exacerbated the longer the pandemic continues.

 

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Innovium stockholders will have a significantly lower ownership and voting interest in Marvell following the transaction than they currently have in Innovium and will exercise less influence over management.

Based on the consideration payable to holders of Innovium capital stock pursuant to the merger agreement and the number of shares of Marvell common stock outstanding as of August 19, 2021, it is expected that, immediately after completion of the transaction, former Innovium stockholders will own approximately 2% of the outstanding Marvell common stock. Consequently, former Innovium stockholders will have less influence over the management and policies of Marvell than they currently have over the management and policies of Innovium.

The shares of Marvell common stock to be received by Innovium stockholders upon completion of the transaction will have different rights from shares of Innovium capital stock.

Upon completion of the transaction, Innovium stockholders will no longer be stockholders of Innovium, but will instead become stockholders of Marvell, and their rights as Marvell stockholders will be governed by the terms of Marvell’s amended and restated certificate of incorporation (the “Marvell certificate”) and Marvell’s amended and restated bylaws (the “Marvell bylaws”). The terms of the Marvell certificate and the Marvell bylaws are in some respects materially different from the terms of the Innovium certificate and Innovium’s bylaws (the “Innovium bylaws”), which, together with certain investment agreements entered into by Innovium and certain holders of Innovium capital stock, currently govern the rights of Innovium stockholders. For a discussion of the different rights associated with shares of Innovium capital stock and shares of Marvell common stock, see the section entitled “Comparison of Stockholders’ Rights.”

The merger could have an adverse effect on the Marvell and Innovium brands.

The success of Marvell and Innovium is largely dependent upon the ability of Marvell and Innovium to maintain and enhance the value of their brands, their customers’ connection to and perception of the brands, and a positive relationship with customers and suppliers. Brand value, and as a result the businesses and results of operations of Marvell and Innovium, could be damaged if the merger receive negative publicity or if customers or suppliers otherwise come to have a diminished view of the brands as a result of the merger or the common ownership of the existing businesses.

Risks Related to Marvell’s Business

You should read and consider the risk factors specific to Marvell’s business that will also affect the surviving company after the completion of the transaction. These risks are described in Part I, Item 1A of MTGL’s Annual Report on Form 10-K for the fiscal year ended January 30, 2021 and Part II, Item 1A of the Quarterly Reports on Form 10-Q for the fiscal quarters ended May 1, 2021 and July 31, 2021. See the section entitled “Where You Can Find More Information.”

Risks Related to Innovium’s Business

Innovium faces risks related to the COVID-19 pandemic which currently has, and may continue in the future to, significantly disrupt and adversely impact Innovium’s manufacturing, research and development, operations, sales and financial results.

Although many countries have vaccinated large segments of their population, COVID-19 continues to disrupt business activities, trade, and supply chains in many countries, particularly in Asia and India. Innovium expects these impacts to continue for the foreseeable future.

Innovium’s business has been, and will continue to be, adversely impacted by the effects of the COVID-19 pandemic. In addition to global macroeconomic effects, the COVID-19 pandemic and related adverse public health measures have caused disruption to its global operations and sales. Innovium’s third-party manufacturers, suppliers, third-party distributors, sub-contractors and customers have been, and are expected to continue to be,

 

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disrupted by worker absenteeism, quarantines and restrictions on their employees’ ability to work; office and factory closures; disruptions to ports and other shipping infrastructure; border closures; and other travel or health-related restrictions. Depending on the magnitude of such effects on Innovium’s manufacturing, assembling, and testing activities or the operations of Innovium’s suppliers, third-party distributors, or sub-contractors, its supply chain, manufacturing and product shipments will be delayed, which could adversely affect Innovium’s business, operations and customer relationships.

In addition to operational and customer impacts, the COVID-19 pandemic has had, and is expected to continue to have, a significant impact on the economies and financial markets of many countries including an economic downturn, which has affected and may in the future affect demand for Innovium’s products and impact its operating results in both the near and long term. There can be no assurance that any decreases in sales resulting from the COVID-19 pandemic will be offset by increased sales in subsequent periods.

In particular, Innovium has experienced, and expects to continue to experience, some disruption to parts of its global semiconductor supply chain, including procuring necessary components and inputs, such as wafers and substrates, in a timely fashion, with suppliers increasing lead times or placing products on allocation and raising prices. Some of the facilities of Innovium’s key suppliers and other service providers were shut down or operated at reduced capacity for extended periods as a result of COVID-19. This resulted in significant logistical challenges and product delays, which could recur in the event of any future closures of, or periods of reduced operations at, Innovium’s facilities or the facilities of its suppliers and providers.

Innovium has had operating losses each year since its inception and its revenue growth may not continue.

Innovium has incurred operating losses each year since its inception and it may not achieve or maintain profitability in the future. Although Innovium’s annual revenue has increased in recent years, there can be no assurances that it will continue to do so. Innovium expects to make significant expenditures related to the development of its products and expansion of its business, including research and development and sales and administrative expenses. Additionally, Innovium may encounter unforeseen difficulties, complications, product delays and other unknown factors that require additional expenditures. As a result of these increased expenditures, Innovium may have to generate and sustain substantially increased revenue to achieve profitability. Innovium’s revenue growth trends in prior periods may not be sustainable. Accordingly, Innovium may not be able to achieve or maintain profitability, and it may continue to incur significant losses in the future.

Innovium faces intense competition and expects competition to increase in the future, which could reduce its revenue and customer base.

The market for Innovium’s products is highly competitive and it expects competition to intensify in the future. This competition could make it more difficult for Innovium to sell its products, and result in increased pricing pressure, reduced profit margins, increased sales and marketing expenses and failure to capture expected market share, any of which would likely seriously harm Innovium’s business, operating results and financial condition.

Innovium expects increased competition from established and emerging companies both domestically and internationally. Many of its current and potential competitors could have longer operating histories, greater name recognition, larger customer bases and significantly greater financial, technical, sales, marketing and other resources than Innovium has. Potential customers may prefer to purchase from their existing suppliers rather than a new supplier regardless of product performance or features. Innovium expects continued competition from incumbents as well as from new entrants into the markets Innovium serves. Innovium’s ability to compete depends on a number of factors, including:

 

•

its products’ performance and cost effectiveness relative to that of its competitors’ products;

 

•

its ability to deliver products in large volume on a timely basis at a competitive price;

 

•

its success in utilizing new and proprietary technologies to offer products and features previously not available in the marketplace;

 

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•

its success in identifying new and emerging markets, applications and technologies;

 

•

its ability to recruit design and application engineers and sales and marketing personnel; and

 

•

its ability to protect its intellectual property.

In addition, Innovium cannot assure you that existing customers or potential customers will not develop their own products, purchase competitive products or acquire companies that use alternative methods to enable networking in their systems. Any of these competitive threats, alone or in combination with others, could seriously harm Innovium’s business, operating results and financial condition.

Innovium receives a substantial portion of its revenues from a limited number of customers, and the loss of, or a significant reduction in, orders from one or a few of Innovium’s major customers would adversely affect its operations and financial condition.

Innovium receives a substantial portion of its revenues from a limited number of customers and anticipates that it will continue to be dependent on a limited number of customers for a significant portion of its revenues in the immediate future. In some cases, the portion of Innovium’s revenues attributable to certain customers may increase in the future. However, Innovium may not be able to maintain or increase sales to certain of Innovium’s top customers for a variety of reasons, including the following:

 

•

its agreements with its customers do not require them to purchase a minimum quantity of its products;

 

•

some of its customers can stop incorporating its products into their own products with limited notice to Innovium and suffer little or no penalty; and

 

•

many of its customers have pre-existing or concurrent relationships with its current or potential competitors that may affect the customers’ decisions to purchase its products.

In addition, Innovium’s relationships with some customers may also deter other potential customers who compete with these customers from buying its products. To attract new customers or retain existing customers, Innovium may offer certain customers favorable prices on its products. In that event, Innovium’s average selling prices and gross margins would decline. The loss of a key customer, a reduction in sales to any key customer or Innovium’s inability to attract new significant customers could seriously impact Innovium’s revenue and materially and adversely affect its results of operations.

Innovium’s customers may cancel their orders, change production quantities or delay production, and if Innovium fails to forecast demand for its products accurately, it may incur product shortages, delays in product shipments or excess or insufficient product inventory.

Innovium generally does not obtain firm, long-term purchase commitments from its customers. Because production lead times often exceed the amount of time required to fulfill orders, Innovium often must build in advance of orders, relying on an imperfect demand forecast to project volumes and product mix. Its demand forecast accuracy can be adversely affected by a number of factors, including inaccurate forecasting by its customers, changes in market conditions, and demand for its customers’ products. Even after an order is received, Innovium’s customers may cancel these orders or request a decrease in production quantities. Any such cancellation or decrease subjects Innovium to a number of risks, most notably that Innovium’s projected sales will not materialize on schedule or at all, leading to unanticipated revenue shortfalls and excess or obsolete inventory which Innovium may be unable to sell to other customers. Alternatively, if Innovium is unable to project customer requirements accurately, it may not build enough products, which could lead to delays in product shipments and lost sales opportunities in the near term, as well as force its customers to identify alternative sources, which could affect its ongoing relationships with these customers. If Innovium does not timely fulfill customer demands, its customers may cancel their orders and it may be subject to customer claims for cost of replacement. Either underestimating or overestimating demand would lead to insufficient, excess or

 

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obsolete inventory, which could harm Innovium’s operating results, cash flow and financial condition, as well as its relationships with its customers.

Innovium expects its operating results to fluctuate.

Innovium expects its revenues and expense levels to vary in the future, making it difficult to predict future operating results. In particular, Innovium experiences variability in demand for its products as its customers manage their product introduction dates and their inventories. Additional factors that could cause Innovium’s results to fluctuate include, among other things:

 

•

the impact of COVID-19, or other future pandemics, on the global economy and on Innovium’s customers, suppliers, employees and business;

 

•

fluctuations in demand, sales cycles, product mix and prices for its products;

 

•

the timing of its product introductions, and the variability in lead time between the time when a customer begins to design in one of its products and the time when the customer’s end system goes into production and they begin purchasing its products;

 

•

the forecasting, scheduling, rescheduling or cancellation of orders by its customers;

 

•

its ability to successfully define, design and release new products in a timely manner that meets customers’ needs;

 

•

changes in manufacturing costs, including wafer, test and assembly costs, mask costs, manufacturing yields and product quality and reliability;

 

•

the timing and availability of adequate manufacturing capacity from its suppliers;

 

•

the timing of announcements by it or its competitors;

 

•

general economic and political conditions in the countries where it operates, or its products are sold or used, including continued constraints in the global supply chain in part as a result of COVID-19; and

 

•

costs associated with litigation, especially related to intellectual property.

Unfavorable changes in any of the above factors, many of which are beyond Innovium’s control, could significantly harm Innovium’s business and results of operations.

Innovium’s products must meet exacting specifications, and defects and failures may occur, which may cause customers to return or stop buying its products.

Innovium’s customers generally establish demanding specifications for quality, performance and reliability that Innovium’s products must meet. However, Innovium’s products are highly complex and may contain defects and failures when they are first introduced or as new versions are released. If defects and failures occur in Innovium’s products during the design phase or after, Innovium could experience lost revenues, increased costs, including warranty expense and costs associated with customer support, delays in or cancellations or rescheduling of orders or shipments, product returns or discounts, diversion of management resources or damage to Innovium’s reputation and brand equity, and in some cases consequential damages, any of which would harm its operating results. In addition, delays in Innovium’s ability to fill product orders as a result of quality control issues may negatively impact its relationship with its customers. Innovium cannot assure you that it will have sufficient resources, including any available insurance, to satisfy any asserted claims.

Innovium may have difficulty selling its products if customers do not design its products into their systems, and the nature of the design process requires it to incur expenses prior to recognizing revenues associated with those expenses which may adversely affect its financial results.

Innovium devotes significant time and resources in working with its customers’ system designers to understand their future needs and to provide products that it believes will meet those needs. The bid selection processes can

 

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be lengthy. If a customer’s system designer initially chooses a competitor’s product, it becomes significantly more difficult for Innovium to sell its products for use in that system because changing suppliers can involve significant cost, time, effort and risk for its customers. Thus, Innovium’s failure to win a competitive bid can result in its foregoing revenues from a given customer’s product line for the life of that product. In addition, design opportunities may be infrequent or may be delayed. Innovium’s ability to compete in the future will depend, in large part, on its ability to design products to ensure compliance with its customers’ and potential customers’ specifications. Innovium expects to invest significant time and resources and to incur significant expenses to design its products to ensure compliance with relevant specifications.

Innovium often incurs significant expenditures in the development of a new product without any assurance that its customers’ system designers will select its product for use in their applications. Innovium often is required to anticipate which product designs will generate demand in advance of its customers expressly indicating a need for that particular design. Even if its customers’ system designers select its products, a substantial period of time will elapse before Innovium generates revenues related to the significant expenses it has incurred. Additionally, even if system designers use Innovium’s products in their systems, Innovium cannot assure you that these systems will be commercially successful or that Innovium will receive significant revenue from the sales of its products for those systems.

Innovium may be unsuccessful in developing and selling new products or in penetrating new markets.

Innovium operates in a dynamic environment characterized by rapidly changing technologies and industry standards and technological obsolescence. Innovium’s competitiveness and future success depends on its ability to design, develop, manufacture, assemble, test, market and support new products and enhancements in a timely and cost-effective manner. Innovium’s failure to anticipate a shift in technologies, to develop new technologies or to react to changes in existing technologies could materially delay development of new products, which could result in product obsolescence, decreased revenues and a loss of design wins to its competitors. The success of a new product depends on accurate forecasts of long-term market demand and future technological developments, as well as on a variety of specific implementation factors, including:

 

•

timely and efficient completion of process design and transfer to manufacturing, assembly and test processes;

 

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the quality, performance and reliability of the product; and

 

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effective marketing, sales and service.

If Innovium fails to introduce new products that meet the demand of its customers or penetrate new markets that it targets its resources on, Innovium’s revenues will likely decrease over time and its financial condition could suffer.

Some of Innovium’s operations and a significant portion of its customers and contract manufacturers are located outside of the United States, which subjects Innovium to additional risks, including increased complexity and costs of managing international operations and geopolitical instability.

Innovium maintains sales offices and research and development facilities, and it conducts, and expects to continue to conduct, a significant amount of its business with companies that are located outside the United States, particularly in Asia. Even customers of Innovium that are based in the U.S. often use contract manufacturers based in Asia to manufacture their systems, and it is the contract manufacturers that purchase products directly from Innovium. As a result of Innovium’s international focus, Innovium faces numerous challenges, including:

 

•

the rise or spread of global pandemics or actual or threatened public health emergencies such as the COVID-19 pandemic on its operations, employees, customers and suppliers;

 

•

political, social and economic instability, including wars, terrorism, political unrest, boycotts, curtailment of trade and other business restrictions;

 

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•

volatile global economic conditions, including downturns in which some competitors may become more aggressive in their pricing practices, which would adversely impact Innovium’s gross margin;

 

•

compliance with domestic and foreign export and import regulations, including pending changes thereto, and difficulties in obtaining and complying with domestic and foreign export, import and other governmental approvals, permits and licenses;

 

•

local laws and practices that favor local companies, including business practices in which it is prohibited from engaging by the Foreign Corrupt Practices Act and other anti-corruption laws and regulations;

 

•

difficulties in staffing and managing foreign operations;

 

•

natural disasters, including earthquakes, fires, tsunamis and floods;

 

•

trade restrictions, higher tariffs, worsening trade relationship between the United States and China, or changes in cross border taxation, particularly in light of the tariffs imposed by the prior U.S. presidential administration;

 

•

transportation delays;

 

•

difficulties of managing distributors;

 

•

less effective protection of intellectual property than is afforded to it in the United States or other developed countries;

 

•

inadequate local infrastructure; and

 

•

exposure to local banking, currency control and other financial-related risk.

As a result of having global operations, the sudden disruption of the supply chain and/or disruption of the manufacture of Innovium’s customer’s products caused by events outside of Innovium’s control could impact its results of operations by impairing its ability to timely and efficiently deliver its products.

Moreover, the international nature of Innovium’s business subjects Innovium to risk associated with the fluctuation of the U.S. dollar versus foreign currencies. Decreases in the value of the U.S. dollar versus currencies in jurisdictions where Innovium has large fixed costs, or where its third-party manufacturers have significant costs, will increase the cost of such operations which could harm its results of operations.

Innovium outsources wafer fabrication, assembly, testing, warehousing and shipping operations to third parties, and relies on these parties to produce and deliver its products according to requested demands in specification, quantity, cost and time.

Innovium relies on third parties for substantially all of its manufacturing operations, including wafer fabrication, assembly, testing, warehousing and shipping. It depends on these parties to supply it with material of a requested quantity in a timely manner that meets Innovium’s standards for yield, cost and manufacturing quality. Any problems with Innovium’s manufacturing supply chain could adversely impact Innovium’s ability to ship its products to its customers on time and in the quantity required, which in turn could cause an unanticipated decline in its sales and possibly damage its customer relationships.

The fabrication of integrated circuits is a complex and technically demanding process. Innovium’s foundries could, from time to time, experience manufacturing defects and reduced manufacturing yields. Poor yields from Innovium’s foundries, or defects, integration issues or other performance problems in its products could cause Innovium significant customer relations and business reputation problems, harm Innovium’s financial results and result in financial or other damages to its customers. Innovium’s customers could also seek damages from Innovium for their losses. A product liability claim brought against Innovium, even if unsuccessful, would likely be time consuming and costly to defend.

In addition, Innovium’s products are manufactured at a limited number of locations in Taiwan. Because of the geographic concentration of third-party foundries, as well as assembly and test subcontractors, Innovium is

 

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exposed to the risk that its operations may be disrupted by regional disasters including, for example, earthquakes (particularly in Taiwan and elsewhere in the Pacific Rim close to fault lines), drought, tsunamis or typhoons, or by pandemics or other actual or threatened public health emergencies such as COVID-19, or by political, social or economic instability, including, for example, the continued constraints in the global supply chain in part as a result of COVID-19. In the case of such an event, Innovium’s revenue, cost of goods sold and results of operations would be negatively impacted. If Innovium experiences manufacturing problems at a particular location, it would be required to transfer manufacturing to a backup location or supplier. Converting or transferring manufacturing from a primary location or supplier to a backup fabrication facility could be expensive and a time consuming process. Innovium may not be able to meet customer needs during such a transition, which could delay shipments, cause a production delay or stoppage for its customers, result in a decline in its sales and damage its customer relationships. In addition, the ability of each foundry to provide Innovium with semiconductor devices is limited by its available capacity and existing obligations. Foundry capacity may not be available when Innovium needs it or at reasonable prices.

Any increase in the manufacturing cost of Innovium’s products could reduce its gross margins and operating profit.

The semiconductor business exhibits ongoing competitive pricing pressure from customers and competitors. Accordingly, any increase in the cost of Innovium’s products, whether by adverse purchase price variances or adverse manufacturing cost variances, will reduce its gross margins and operating profit. In addition, some of Innovium’s competitors may be better financed than Innovium is, may have long-term agreements with its main foundries and may induce Innovium’s foundries to reallocate capacity to those customers. This reallocation could impair Innovium’s ability to secure the supply of components that Innovium needs. These and other related factors could impair Innovium’s ability to meet its customers’ needs and have a material and adverse effect on its operating results.

Innovium relies on third-party technologies for the development of Innovium’s products, and Innovium’s inability to use such technologies in the future would harm Innovium’s ability to remain competitive.

Innovium relies on third parties for technologies that are integrated into Innovium’s products. If Innovium is unable to continue to use or license these technologies on reasonable terms, or if these technologies fail to operate properly, Innovium may not be able to secure alternatives in a timely manner and Innovium’s ability to remain competitive would be harmed. In addition, if Innovium is unable to successfully license technology from third parties to develop future products, Innovium may not be able to develop such products in a timely manner or at all.

Innovium’s failure to protect its intellectual property rights adequately could impair Innovium’s ability to compete effectively or to defend itself from litigation, which could harm Innovium’s business, financial condition, and results of operations.

Innovium relies primarily on patent, copyright, trademark and trade secret laws, as well as confidentiality and non-disclosure agreements and other methods, to protect Innovium’s proprietary technologies and know-how. The failure of Innovium’s patents to adequately protect its technology might make it easier for its competitors to offer similar products or technologies. Innovium’s foreign patent protection is generally not as comprehensive as its U.S. patent protection and may not protect its intellectual property in some countries where its products are sold or may be sold in the future. Even if foreign patents are granted, effective enforcement in foreign countries may not be available.

Monitoring unauthorized use and reducing/minimizing the potential misappropriation of Innovium’s intellectual property is difficult and costly. Although Innovium is not aware of any unauthorized use of its intellectual property in the past, it is possible that unauthorized use of its intellectual property may occur without its knowledge. Innovium cannot assure you that the steps it has taken will prevent unauthorized use of its intellectual property. Innovium’s failure to effectively protect its intellectual property could reduce the value of

 

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its technology in licensing arrangements or in cross-licensing negotiations, and could harm its business, results of operations and financial condition.

Some of the software used with Innovium’s products, as well as that of some of its customers, may be derived from so-called “open source” software that is generally made available to the public by its authors and/or other third parties. Such open source software is often made available to Innovium under licenses, such as the GNU General Public License, which impose certain obligations on Innovium in the event Innovium was to make available derivative works of the open source software. These obligations may require Innovium to make source code for the derivative works available to the public, and/or license such derivative works under a particular type of license, rather than the forms of license customarily used to protect its intellectual property. In addition, there is little or no legal precedent for interpreting the terms of certain of these open source licenses, including the determination of which works are subject to the terms of such licenses. While Innovium believes it has complied with its obligations under the various applicable licenses for open source software, in the event the copyright holder of any open source software were to successfully establish in court that Innovium had not complied with the terms of a license for a particular work, Innovium could be required to release the source code of that work to the public and/or stop distribution of that work.

Innovium may in the future be subject to intellectual property rights claims, which are extremely costly to defend, could require Innovium to pay significant damages and could limit its ability to use certain technologies.

Innovium may in the future receive notices that claim Innovium has misappropriated or misused other parties’ intellectual property rights, and, to the extent Innovium gains greater visibility, it faces a higher risk of being the subject of intellectual property infringement claims, which is not uncommon with respect to software technologies in particular. There may be third-party intellectual property rights, including issued or pending patents, which cover significant aspects of Innovium’s technologies or business methods. Any intellectual property claims, with or without merit, could be very time-consuming and expensive to settle or litigate and could divert Innovium’s management’s attention and other resources. These claims could also subject Innovium to significant liability for damages, potentially including treble damages if Innovium is found to have willfully infringed patents or copyrights. These claims could also result in Innovium having to stop using technology found to be in violation of a third party’s rights. Innovium might be required to seek a license for the intellectual property, which may not be available on reasonable terms or at all. Even if a license were available, Innovium could be required to pay significant royalties, which would increase its operating expenses. As a result, Innovium may be required to develop alternative non-infringing technology, which could require significant effort and expense. If Innovium cannot license or develop technology for any infringing aspect of its business, Innovium would be forced to limit or stop sales of one or more of its products or product features and may be unable to compete effectively. Any of these results would harm Innovium’s business, operating results and financial condition.

Cybersecurity risks could adversely affect Innovium’s business and disrupt its operations.

Innovium depends heavily on its technology infrastructure and maintains and relies upon certain critical information systems for the effective operation of its business. Innovium routinely collects and stores sensitive data in its information systems, including intellectual property and other proprietary information about its business and that of its customers, suppliers and business partners. These information technology systems are subject to damage or interruption from a number of potential sources, including, but not limited to, natural disasters, destructive or inadequate code, malware, power failures, cyber-attacks, internal malfeasance or other events. Cyber-attacks on Innovium may include viruses and worms, phishing attacks, and denial-of-service attacks. In addition, Innovium may be the target of email scams that attempt to acquire personal information or company assets.

Innovium has implemented processes for systems under its control intended to mitigate risks; however, it can provide no guarantee that those risk mitigation measures will be effective. While, to Innovium’s knowledge, it

 

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has not been the subject of a material attempted cyber-attack or breach, given the frequency of cyber-attacks and resulting breaches reported by other businesses and governments, it is likely Innovium will experience one or more breaches of some extent in the future. Innovium has incurred and may in the future incur significant costs in order to implement, maintain and/or update security systems it feels are necessary to protect its information systems, or it may miscalculate the level of investment necessary to protect its systems adequately. Since the techniques used to obtain unauthorized access or to sabotage systems change frequently and are often not recognized until launched against a target, Innovium may be unable to anticipate these techniques or to implement adequate preventive measures.

Innovium’s business also requires it to share confidential information with suppliers and other third parties. Although Innovium takes steps to secure confidential information that is provided to third parties, such measures may not always be effective and data breaches, losses or other unauthorized access to or releases of confidential information may occur and could materially adversely affect Innovium’s reputation, financial condition and operating results and could result in liability or penalties under data privacy laws.

To the extent that any system failure, accident or security breach results in material disruptions or interruptions to Innovium’s operations or the theft, loss or disclosure of, or damage to its data or confidential information, including its intellectual property, Innovium’s reputation, business, results of operations and/or financial condition could be materially adversely affected.

Confidentiality agreements with employees and others may not adequately prevent disclosure of trade secrets and other proprietary information.

In order to protect Innovium’s proprietary technology, processes and methods, Innovium relies in part on confidentiality agreements with its corporate partners, employees, consultants, advisors and others. These agreements may not effectively prevent disclosure of confidential information and may not provide an adequate remedy in the event of unauthorized disclosure of confidential information. In addition, others may independently discover trade secrets and proprietary information, and in these cases Innovium would not be able to assert any trade secret rights against those parties. Costly and time-consuming litigation could be necessary to enforce and determine the scope of Innovium’s proprietary rights, and failure to obtain or maintain trade secret protection could adversely affect Innovium’s competitive business position.

Indemnity provisions in various agreements potentially expose Innovium to substantial liability for intellectual property infringement and other losses.

Innovium’s agreements with certain partners and other parties include indemnification provisions, under which Innovium agrees to indemnify them for losses suffered or incurred as a result of claims of intellectual property infringement and, in some cases, for damages caused by Innovium. The term of these indemnity provisions is generally perpetual after execution of the corresponding agreement. Large indemnity payments could harm Innovium’s business, operating results and financial condition.

If Innovium fails to manage future growth effectively, Innovium’s business would be harmed.

Innovium has experienced, and may continue to experience, significant expansion of its operations. This growth has placed, and will continue to place, a strain on its employees, management systems and other resources. Managing Innovium’s growth will require significant expenditures and allocation of valuable management resources. If Innovium is unable to manage its growth effectively, Innovium may not be able to take advantage of market opportunities or develop new products and Innovium may fail to satisfy customer requirements, maintain product quality, execute its business plan or respond to competitive pressures. Failing to achieve the necessary level of efficiency in its organization as Innovium grows would harm its business, operating results and financial condition.

 

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Innovium’s inability to hire or retain key personnel could adversely affect its business, operating results and financial condition.

Innovium depends on the continued contributions of its senior management and other key personnel. All of Innovium’s executive officers and key employees are at-will employees, which means they may terminate their employment relationship with Innovium at any time. The loss of the services of one or more of these individuals could significantly delay or prevent the achievement of Innovium’s development and strategic objectives and could divert other senior management time in searching for their replacements.

Innovium’s future success also depends on its ability to identify, attract and retain highly skilled engineering, managerial, sales, marketing and other personnel. The loss of the services of any of Innovium’s key personnel, the inability to attract or retain qualified personnel, or delays in hiring required personnel, particularly in engineering and sales, may seriously harm Innovium’s business, financial condition and results of operations. Innovium faces intense competition for qualified individuals from numerous other technology companies. In addition, competition for qualified personnel is particularly intense in the San Francisco Bay Area, where Innovium’s headquarters are located. Often, significant amounts of time and resources are required to train technical, sales and other personnel. Qualified individuals are in high demand. Innovium may incur significant costs to attract and retain them, and Innovium may lose new employees to its competitors or other technology companies before Innovium realizes the benefit of its investment in recruiting and training them. Innovium may be unable to attract and retain suitably qualified individuals who are capable of meeting Innovium’s growing technical, operational and managerial requirements, on a timely basis or at all, and Innovium may be required to pay increased compensation in order to do so. If Innovium is unable to attract and retain the qualified personnel it needs to succeed, its business would suffer. Also, to the extent Innovium hires personnel from competitors, Innovium may be subject to allegations that they have been improperly solicited or divulged proprietary or other confidential information.

In the future, Innovium may not be able to secure financing necessary to operate and grow its business as planned, or to make acquisitions.

In the future, Innovium may need to raise additional funds to expand its sales and marketing and research and development efforts or to make acquisitions. Additional equity or debt financing may not be available on favorable terms or at all. If adequate funds are not available on acceptable terms, Innovium may be unable to fund the expansion of its sales and marketing and research and development efforts or take advantage of acquisition or other opportunities, which could seriously harm Innovium’s business and operating results. If Innovium issues debt, the debt holders may have rights to make claims on Innovium’s assets and the terms of any debt could restrict its operations, including its ability to pay dividends on Innovium’s preferred and common stock.

Innovium’s inability to acquire and integrate other businesses, products or technologies could seriously harm Innovium’s competitive position.

In order to remain competitive, Innovium may seek to acquire additional businesses, products or technologies. If Innovium identifies an appropriate acquisition candidate, Innovium may not be successful in negotiating the terms of the acquisition, financing the acquisition, or effectively integrating the acquired business, product or technology into Innovium’s existing business and operations. Innovium may have difficulty incorporating acquired technologies or products with its existing products, and maintaining uniform standards, controls, procedures and policies. Innovium’s due diligence may fail to identify all of the problems, liabilities or other shortcomings or challenges of an acquired business, product or technology, including issues with intellectual property, regulatory compliance practices, revenue recognition or other accounting practices or employee or customer issues. In addition, any acquisitions Innovium is able to complete may not be accretive to earnings and may not result in any synergies or other benefits Innovium had expected to achieve, which could result in substantial write-offs. Further, completing a potential acquisition and integrating an acquired business, products or technologies would significantly divert management time and resources.

 

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If Innovium’s estimates or judgments relating to its critical accounting policies prove to be incorrect, Innovium’s operating results could be adversely affected.

The preparation of financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the amounts reported in the consolidated financial statements and accompanying notes. Innovium bases its estimates on historical experience and on various other assumptions that it believes to be reasonable under the circumstances. The results of these estimates form the basis for making judgments about the carrying values of assets, liabilities, and equity, and the amount of revenue and expenses that are not readily apparent from other sources. Significant assumptions and estimates used in preparing Innovium’s consolidated financial statements include those related to revenue recognition, accounting for income taxes, fair value of redeemable convertible preferred stock warrant liability, and stock-based compensation expense. Innovium’s operating results may be adversely affected if its assumptions change or if actual circumstances differ from those in its assumptions, which could cause its operating results to fall below the expectations of securities analysts and investors, resulting in a decline in the price of Innovium’s common stock.

Innovium may identify one or more material weaknesses in Innovium’s internal control over financial reporting. If Innovium is not able to properly remediate such material weaknesses or is otherwise unable to maintain an effective system of internal control over financial reporting, Innovium may not be able to accurately report its financial results.

Innovium has not yet completed the audit of its financial statements for the fiscal year ended January 31, 2021. In connection with finalizing its audit, Innovium expects that it may identify one or more material weaknesses in Innovium’s internal control over financial reporting with respect to separation of duties in finance and accounting and other matters. In the event that it determines any such material weaknesses exist, Innovium’s management intends to implement remediation measures to address these matters, but there can be no assurances that any such remediation efforts will be successful or implemented in a timely manner.

A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting such that there is a reasonable possibility that a material misstatement of Innovium’s annual or interim financial statements will not be prevented, detected or corrected on a timely basis.

The existence of a material weaknesses in Innovium’s internal control over financial reporting may affect Innovium’s ability to accurately report its financial results or detect fraud, including with respect to the financial information contained under the heading “—The Transaction-Innovium’s Reasons for the Transaction; Recommendation of Innovium Board of Directors-Summary Preliminary Unaudited Consolidated Financial Data of Innovium.

Innovium is subject to U.S. foreign investment regulations, which may impose additional burdens on or may limit investment in Innovium by certain foreign investors.

Innovium is subject to U.S. laws that regulate foreign investments in U.S. businesses and foreign-person access to certain technologies developed and produced in the United States. These laws include Section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment Risk Review Modernization Act of 2018, and the regulations at 31 C.F.R. Parts 800 and 802, as amended, administered by the Committee on Foreign Investment in the United States (“CFIUS”). Application of these laws, including as they are implemented through existing and future regulations, may negatively impact Innovium’s business in various ways, including by restricting Innovium’s access to capital and markets; limiting the collaborations Innovium may pursue; increasing Innovium’s costs and the time necessary to obtain regulatory authorizations and ensure compliance; and imposing monetary fines and other penalties if Innovium do not comply.

Certain current or future investors in Innovium may be considered foreign persons under the CFIUS regulations. If CFIUS determines it has jurisdiction over certain transactions, current or potential future investors in Innovium who are considered foreign persons under the CFIUS regulations may be subject to restrictions that could limit or prevent their investment in Innovium.    

 

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Innovium’s proposed acquisition by Marvell is subject to a number of conditions beyond Innovium’s control. Failure to complete the acquisition could materially and adversely affect Innovium’s future business, results of operations and financial condition.

The consummation of the merger is conditioned on the receipt of the approval of Innovium’s stockholders, as well as the satisfaction of other customary closing conditions, including regulatory approvals and performance in all material respects by each party of its obligations under the merger agreement.

Innovium cannot predict whether and when the conditions will be satisfied. If one or more of these conditions is not satisfied, and as a result, Innovium does not complete the merger, or in the event the proposed merger is not completed or is delayed for any other reason, Innovium’s business, results of operations and financial condition may be harmed because:

 

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management’s and Innovium’s employees’ attention may be diverted from its day-to-day operations as they focus on matters related to preparing for integration of Innovium’s operations with those of Marvell;

 

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Innovium could potentially lose key employees if such employees experience uncertainty about their future roles with Innovium and decide to pursue other opportunities in light of the proposed merger and Innovium may have difficulty hiring and retaining new employees;

 

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Innovium could potentially lose customers or vendors, and new customer or vendor contracts could be delayed or decreased;

 

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Innovium has agreed to restrictions in the merger agreement that limits how Innovium conducts its business prior to the consummation of the merger, including, among other things, restrictions on Innovium’s ability to make certain capital expenditures, investments and acquisitions, sell, transfer or dispose of Innovium’s assets, enter into material contracts outside of the ordinary course of business, amend Innovium’s organizational documents and incur indebtedness; these restrictions may not be in Innovium’s best interests as an independent company and may disrupt or otherwise adversely affect its business and its relationships with its customers, prevent it from pursuing otherwise attractive business opportunities, limit its ability to respond effectively to competitive pressures, industry developments and future opportunities, and otherwise harm its business, financial results and operations;

 

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Innovium has incurred and expects to continue to incur expenses related to the merger that are payable by Innovium whether or not the proposed merger is completed;

 

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activities related to the merger and related uncertainties may lead to a loss of revenues and market position that Innovium may not be able to regain if the proposed merger does not occur;

 

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Innovium may not be able to pursue alternative business opportunities, including strategic acquisitions, or make appropriate changes to Innovium’s business because of certain covenants restricting its business in the merger agreement;

 

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the failure to, or delays in, consummating the merger may result in a negative impression of Innovium with customers, potential customers or the investment community; and

 

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Innovium may be required to indemnify Marvell in respect of any breaches by Innovium of certain representations and warranties or covenants set forth in the merger agreement.

These or other considerations individually or in combination could have a material adverse effect on Innovium’s business, results of operations and financial condition.

The merger agreement contains provisions that could discourage a potential competing acquiror.

The merger agreement contains “exclusivity” provisions that restrict Innovium’s ability to solicit, initiate, consider, knowingly encourage or accept third party proposals for the acquisition of its capital stock or to pursue an unsolicited offer. These provisions could discourage a potential third-party acquiror from considering or

 

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proposing an acquisition transaction, even if it were prepared to pay more favorable per share consideration than what would be received in the merger. If the merger agreement is terminated and Innovium determines to seek another business combination, Innovium may not be able to negotiate a transaction with another party on terms and conditions comparable to, or better than, those of the merger.

Innovium’s executive officers and directors have interests in the merger that may be different from, or in addition to, the interests of its stockholders generally.

Innovium’s executive officers and members of its board of directors may be deemed to have interests in the merger that may be different from or in addition to those of its stockholders, generally. These interests may create potential conflicts of interest. Innovium’s board of directors was aware of these potentially differing interests and considered them, among other matters, in evaluating and negotiating the merger agreement and in reaching its decision to approve the merger agreement and the transactions thereunder. These interests relate to or arise from, among other things:

 

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the employment with Marvell offered to certain of Innovium’s executive officers in connection with the proposed merger;

 

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the consideration to be received in respect of equity awards held by Innovium’s executive officers and directors; and

 

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the right to continued indemnification and insurance coverage for Innovium’s executive officers and directors following the completion of the merger.

As a result of these interests, the executive officers and directors of Innovium might be more likely to support and to vote in favor of the merger proposal than if they did not have these interests. Innovium’s securityholders should consider whether these interests might have influenced these executive officers and directors to support or recommend voting for the proposals related to the merger.

Innovium will incur significant costs in connection with the merger, whether or not it is consummated.

Innovium will incur substantial expenses related to the merger, whether or not it is completed. Payment of these expenses by Innovium as a standalone entity would adversely affect its operating results and financial condition.

Litigation filed against Innovium and Marvell could prevent or delay the completion of the merger or result in the payment of damages following completion of the merger.

Innovium, Marvell, and members of Innovium’s and Marvell’s respective boards of directors may become subject to litigation related to the merger agreement and the merger, including putative stockholder class actions. Among other remedies, the plaintiffs in such matters may seek to enjoin the merger. The results of complex legal proceedings are difficult to predict, and could delay or prevent the merger from being completed in a timely manner. Moreover, litigation could be time consuming and expensive, could divert the attention of Innovium’s and Marvell’s management away from Innovium’s and Marvell’s regular businesses, and, if adversely resolved against either Innovium or Marvell, could have a material adverse effect on Innovium’s or Marvell’s respective financial condition or the condition of the combined company.

 

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This consent solicitation/prospectus, including the information and other documents incorporated by reference into this consent solicitation/prospectus, contains or incorporates by reference or may contain or may incorporate by reference “forward-looking statements” within the meaning of Section 27A of the Securities Act, and Section 21E of the Securities Exchange Act of 1934 (the “Exchange Act”), including without limitation statements regarding the benefits of the merger, the anticipated timing of the merger and the products and markets of Marvell and Innovium. These statements, which involve risks and uncertainties, relate to analyses and other information that are based on forecasts of future results and estimates of amounts not yet determinable and may also relate to future prospects, developments and business strategies. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result” and similar expressions. Forward-looking statements are made based on expectations and beliefs concerning future events affecting Marvell and Innovium and are subject to uncertainties and factors relating to their respective operations and business environment, all of which are difficult to predict and many of which are beyond our control, that could cause our actual results to differ materially from those matters expressed in or implied by these forward-looking statements.

The forward-looking statements involve risks and uncertainties. The ability of either Marvell or Innovium to predict results or actual effects of its plans and strategies is inherently uncertain. Accordingly, actual results may differ materially from those expressed in, or implied by, the forward-looking statements. Some of the factors that may cause actual results or earnings to differ materially from those contemplated by the forward-looking statements include, but are not limited to, those discussed under the section entitled “Risk Factors” of this consent solicitation/prospectus and those discussed in the filings of Marvell that are incorporated herein by reference, including the following:

 

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timing, receipt and terms and conditions of regulatory approvals required for the merger that could reduce the anticipated benefits of the merger or cause the parties to abandon the merger;

 

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failure to realize the anticipated benefits of the merger, including as a result of delay in completing the merger;

 

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Marvell’s inability to integrate the businesses of Marvell and Innovium;

 

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unexpected costs or liabilities relating to the merger;

 

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potential litigation relating to the proposed transaction that could be instituted against Marvell or Innovium or their respective directors or officers;

 

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the risk that disruptions caused by or relating to the proposed transaction will harm Marvell or Innovium’s business, including current plans and operations;

 

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the ability of Marvell and Innovium to retain and hire key personnel;

 

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the ability of Marvell and Innovium to protect their intellectual property;

 

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potential adverse reactions or changes to business relationships resulting from the announcement or completion of the merger;

 

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risks relating to the market value of the shares of Marvell common stock to be issued in the merger;

 

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risks associated with third party contracts containing consent and/or other provisions that may be triggered by the proposed transaction;

 

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the impact of public health crises, such as pandemics (including the COVID-19 pandemic) and epidemics and any related company or government policies and actions intended to protect the health and safety of individuals or government policies or actions intended to maintain the functioning of national or global economies and markets;

 

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legislative, regulatory and economic developments affecting Marvell’s or Innovium’s business;

 

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general economic and market developments and conditions;

 

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the evolving legal, regulatory and tax regimes under which Marvell and Innovium operate;

 

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potential business uncertainty, including changes to existing business relationships, during the pendency of the merger that could affect Marvell’s or Innovium’s financial performance;

 

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restrictions during the pendency of the merger or thereafter that may impact Innovium’s ability to pursue certain business opportunities or strategic transactions;

 

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unpredictability and severity of catastrophic events, including, but not limited to, acts of terrorism or outbreak of war or hostilities, as well as Marvell’s or Innovium’s response to any of the aforementioned factors;

 

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the risk of downturns in the highly cyclical semiconductor industry; and

 

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the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement.

Because these forward-looking statements are subject to assumptions and uncertainties, actual results might differ materially from those expressed or implied by these forward-looking statements. You are cautioned not to place undue reliance on these statements, which speak only as of the date of this consent solicitation/prospectus or the date of any document incorporated by reference into this consent solicitation/prospectus.

All subsequent written and oral forward-looking statements concerning the merger or other matters addressed in this consent solicitation/prospectus and attributable to Marvell or Innovium or any person acting on behalf of either of them are expressly qualified in their entirety by the cautionary notes contained or referred to in this section. Except to the extent required by applicable law or regulation, Marvell and Innovium undertake no obligation to update these forward-looking statements to reflect events or circumstances after the date of this consent solicitation/prospectus. Neither Marvell nor Innovium gives any assurance that either Marvell or Innovium will achieve their respective expectations.

 

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SOLICITATION OF WRITTEN CONSENTS

Purpose of the Consent Solicitation; Recommendation of the Innovium Board

The Innovium board is providing this consent solicitation/prospectus to Innovium stockholders. Innovium stockholders are being asked to approve the merger agreement proposal by executing and delivering the written consent furnished with this consent solicitation/prospectus.

After consideration, the Innovium board unanimously approved and declared advisable the merger agreement and the merger, upon the terms and conditions set forth in the merger agreement, and unanimously determined that the merger agreement and the transaction are fair to and in the best interests of Innovium and its stockholders. The Innovium board unanimously recommends that Innovium stockholders approve the merger agreement proposal.

Innovium Stockholders Entitled to Consent

Innovium stockholders of record as of the close of business on August 1, 2021, the record date, will be entitled to execute and deliver a written consent. As of the close of business on the record date, there were 26,889,842 shares of Innovium common stock outstanding and 84,048,880 shares of Innovium preferred stock outstanding, consisting of 8,067,225 shares of Innovium Series A preferred stock, 18,458,679 shares of Innovium Series B preferred stock, 11,664,846 shares of Innovium Series C preferred stock, 11,610,896 shares of Innovium Series D preferred stock, 2,766,250 shares of Innovium Series D2 preferred stock, 7,305,198 shares of Innovium Series E preferred stock and 14,175,786 shares of Innovium Series F preferred stock, in each case entitled to execute and deliver written consents with respect to the merger agreement proposal, and directors and executive officers of Innovium and their affiliates owned and were entitled to consent with respect to 72,450,917 shares of Innovium common stock and Innovium preferred stock, together as a single class and on an as-converted basis (representing approximately 65.31% of such shares outstanding on that date) and 60,498,383 shares of Innovium preferred stock (representing approximately 71.98% of such shares outstanding on that date), consisting of 1,708,472 shares of Innovium Series E preferred stock (representing approximately 23.39% of such shares outstanding on that date), and 8,289,742 shares of Innovium Series F preferred stock (representing approximately 58.48% of such shares outstanding on that date). Innovium has entered into the support agreements with its directors and executive officers obligating them to deliver written consents in favor of the merger agreement proposal.

Only Innovium stockholders of record at the close of business on August 1, 2021, the record date, will be entitled to execute and deliver a written consent. Each holder of Innovium common stock is entitled to one vote for each share of Innovium common stock held as of the record date. Each holder of Innovium preferred stock is entitled to the number of votes equal to the number of shares of Innovium common stock into which the shares of Innovium preferred stock held by such holder could be converted as of the record date. The holders of Innovium preferred stock will vote together as a single class on an as-converted to common stock basis and the holders of Innovium capital stock will vote together as a single class on an as-converted to common stock basis.

Written Consents; Required Written Consents

The approval of the merger agreement proposal requires the affirmative vote or consent of (i) the holders of at least a majority of the outstanding shares of Innovium capital stock (voting as a single class and on an as-converted basis) entitled to vote thereon and (ii) the holders of at least a majority of the outstanding shares of Innovium preferred stock (voting as a single class and on an as-converted basis) entitled to vote thereon (the foregoing clauses (i) and (ii), collectively, the “Innovium stockholder approval”).

Concurrently with the execution of the merger agreement, Marvell and certain stockholders of Innovium (each, a “support stockholder”), representing approximately 65.09% of Innovium capital stock and approximately 71.98% of the outstanding shares of Innovium preferred stock, as of the date of the merger agreement, entered into a support

 

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agreement (the “support agreement”) under which they have agreed, promptly (and in any event within one business day) after the registration statement of which this consent solicitation/prospectus forms a part is declared effective by the SEC, to execute and deliver written consents approving the adoption of the merger agreement and related matters with respect to all of their shares of Innovium capital stock entitled to act by written consent with respect thereto. The support stockholders are required to deliver such written consents even if the Innovium board changes its recommendation that Innovium stockholders approve the merger agreement proposal. The execution and delivery of written consents by all of the support stockholders will constitute the Innovium stockholder approval and, therefore, we expect to receive a number of written consents sufficient to satisfy such approval.

As of the close of business on the record date, directors and executive officers of Innovium and their affiliates owned and were entitled to consent with respect to 72,450,917 shares of Innovium common stock and Innovium preferred stock, together as a single class and on an as-converted basis (representing approximately 65.31% of such shares outstanding on that date) and 60,498,383 shares of Innovium preferred stock (representing approximately 71.98% of such shares outstanding on that date). Innovium currently expects that its directors and executive officers will deliver written consents in favor of the merger agreement proposal, although none of them has entered into any agreements obligating him or her to do so, other than Mr. Khemani and Mr. Agarwal, who have entered into support agreements. Certain of our directors are associated with investors who have entered into support agreements.

Submission of Written Consents

You may consent to the merger agreement proposal with respect to your shares of Innovium capital stock by completing, dating and signing the written consent enclosed with this consent solicitation/prospectus and returning it to Innovium by the consent deadline.

If you hold shares of Innovium capital stock as of the record date and you wish to submit your written consent, you must fill out the enclosed written consent, date and sign it, and promptly return it to Innovium. Once you have completed, dated and signed the written consent, you may deliver it to Innovium by emailing a PDF copy to consents@Innovium.com or by mailing your written consent to Innovium, Inc., 6001 America Center Drive, Suite 200, San Jose, CA 95002, Attention: General Counsel, or submitting it through the electronic portal established by SRS.

Innovium has set                , 2021 as the target consent deadline. Innovium reserves the right to extend the consent deadline beyond                , 2021. Any such extension may be made without notice to Innovium stockholders.

Innovium has not issued physical stock certificates to its stockholders. A letter of transmittal describing the process for the exchange of shares in the merger will be delivered to Innovium stockholders.

Executing Written Consents; Revocation of Written Consents

You may execute a written consent to approve the merger agreement proposal, or disapprove, or abstain from consenting with respect to, the merger agreement proposal (which is equivalent to a vote against such proposal). If you do not return your written consent, it will have the same effect as a vote against the merger agreement proposal. If you are a record holder of shares of Innovium capital stock and you return a signed written consent without indicating your decision on the proposal, you will have given your consent to approve the merger agreement proposal.

Your consent to the proposal may be changed or revoked at any time before the consent deadline; however, such change or revocation is not expected to have any effect, as the delivery of the written consents contemplated by the support agreement will constitute the Innovium stockholder approval at the time of such delivery. If you wish to change or revoke your consent before the consent deadline, you may do so by sending a new written

 

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consent with a later date or by delivering a notice of revocation, in either case by emailing a PDF copy to consents@Innovium.com or by mailing your written consent to Innovium, Inc., 6001 America Center Drive, Suite 200, San Jose, CA 95002, Attention: General Counsel, or submitting it through the electronic portal established by SRS.

Due to the obligations of the support stockholders under the support agreement, a failure of any other Innovium stockholder to deliver a written consent, or any change or revocation of a previously delivered written consent by any other Innovium stockholder, is not expected to have any effect on the approval of the proposals.

Solicitation of Written Consents; Expenses

The expense of preparing, printing and delivering these consent solicitation materials is being borne by Innovium. Officers, employees and representatives of Innovium may solicit consents by telephone and personally, in addition to solicitation by mail or email. These persons will receive their regular compensation but no special compensation for soliciting consents.

 

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INFORMATION ABOUT THE COMPANIES

Marvell Technology, Inc.

Marvell is a leading supplier of infrastructure semiconductor solutions, spanning the data center core to network edge. Marvell is a fabless semiconductor supplier of high-performance standard and semi-custom products with core strengths in developing and scaling complex System-on-a-Chip architectures integrating analog, mixed-signal and digital signal processing functionality. Leveraging leading intellectual property and deep system-level expertise as well as highly innovative security firmware, Marvell’s solutions are empowering the data economy and enabling communications across 5G, cloud, automotive, industrial and artificial intelligence applications.

We were incorporated in Delaware on October 20, 2020 under the name Maui Holdco, Inc. and changed our name to Marvell Technology, Inc. in connection with the completion by Marvell Technology Group, Ltd. (“MTGL”) of its acquisition of Inphi Corporation (“Inphi”) on April 20, 2021. Upon completion of the acquisition, MTGL and Inphi became our wholly owned subsidiaries. Our registered and mailing address is 1000 N. West Street, Suite 1200, Wilmington, Delaware 19801 and our telephone number there is (302) 295-4840.    

Marvell Shares are listed on Nasdaq under the symbol “MRVL.”

Additional information about Marvell and its subsidiaries is included in documents incorporated by reference into this consent solicitation/prospectus. See “Where You Can Find More Information.”

Merger Sub

Ibiza Acquisition Sub, Inc.

1000 N. West Street, Suite 1200

Wilmington, Delaware 19801

1-(302) 295-4840

Merger Sub is a Delaware corporation and a wholly owned subsidiary of Marvell that was incorporated on July 27, 2021 for the purpose of entering into the merger agreement. At the effective time, Merger Sub will be merged with and into Innovium, with Innovium continuing as the surviving corporation and a wholly owned subsidiary of Marvell.

Innovium

Innovium, Inc.

6001 America Center Drive, Suite 200

San Jose, CA 95002

Phone:

Innovium is a leading provider of high performance, innovative switching silicon solutions for Cloud and Edge data centers. Innovium’s TERALYNX family delivers software compatible products ranging from 1Tbps to 25.6Tbps with unmatched telemetry, low latency, programmability, and large buffers, and a feature rich architecture that scales to 100Tbps+. Innovium’s products have been selected and validated by market-leading OEM, Cloud, and ODM customers. The company is headquartered in Silicon Valley, California and is backed by leading venture capital firms including Greylock, WRVI, Capricorn, Premji Invest, BlackRock, DFJ Growth, DAG, Qualcomm Ventures, S-Cubed and Redline.

Innovium, Inc. was incorporated in Delaware on December 11, 2014 and is a privately held company.

 

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PRINCIPAL STOCKHOLDERS OF INNOVIUM

The following table and the related notes set forth, to the best of Innovium’s knowledge, information on the beneficial ownership of Innovium capital stock as of the close of business on August 26, 2021 by:

 

•

each stockholder, or group of affiliated stockholders, known by Innovium to beneficially own more than five percent of any class or series of Innovium’s voting securities;

 

•

each of Innovium’s current directors;

 

•

each of Innovium’s executive officers; and

 

•

all of Innovium’s current directors and executive officers as a group.

The percentage of ownership is based on 26,889,842 shares of Innovium Common Stock outstanding, 18,067,225 shares of Innovium Series A Preferred Stock outstanding, 18,458,679 shares of Innovium Series B Preferred Stock outstanding, 11,664,846 shares of Innovium Series C Preferred Stock outstanding, 11,610,896 shares of Innovium Series D Preferred Stock outstanding, 2,766,250 shares of Innovium Series D2 Preferred Stock outstanding, 7,305,198 shares of Innovium Series E Preferred Stock outstanding and 14,175,786 shares of Innovium Series F Preferred Stock outstanding, in each case as of August 26, 2021.

Except as indicated in the footnotes to the table below, Innovium believes that the stockholders named in the table have sole voting and investment power with respect to all shares of Innovium capital stock shown to be beneficially owned by them, based on information provided to Innovium by such stockholders. Unless otherwise indicated, the address for each stockholder listed is: c/o Innovium, Inc., 6001 America Center Drive, San Jose, California 95002.

 

Name and Address of Beneficial Holder		Shares (Percent) of Innovium Common Stock Beneficially Owned1				Shares (Percent) of Innovium Common Stock Beneficially Owned (On As- Converted Basis)				Shares (Percent) of Innovium Series A Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series B Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series C Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series D2 Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series D Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series E Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series F Preferred Stock Beneficially Owned
Entities Associated with Celesta Capital2			96,609 (*	)			10,582,966 (9.54%	)			6,002,400 (33.22%	)			2,094,178 (11.35%	)			1,681,121 (14.41%	)			—				452,372 (3.90%	)			58,912 (*	)			197,374 (1.39%	)
Entities Associated with Capricorn Investment Group3			842,940 (3.13%	)			15,731,724 (14.18%	)			7,202,881 (39.87%	)			1,974,510 (10.70%	)			1,905,535 (16.34%	)			691,562 (25.00%	)			2,563,445 (22.08%	)			353,477 (4.84%	)			197,374 (1.39%	)
Entities Associated with Qualcomm4			—				2,999,565 (2.70%	)			2,400,960 (13.29%	)			897,504 (4.86%	)			590,415 (5.06%	)			—				527,768 (4.55%	)			589,129 (8.06%	)			394,749 (2.78%	)
Entities Associated with Greylock Partners5			73,021 (*	)			19,685,469 (17.74%	)			—				12,565,069 (68.06%	)			2,608,931 (22.37%	)			—				3,769,772 (32.46%	)			471,303 (6.45%	)			197,373 (1.39%	)
Entities Associated with BlackRock Science and Technology Trust6			—				2,400,784 (2.16%	)			—				—				—				—				—				1,413,910 (19.36%	)			986,874 (6.96%	)
Entities Associated with DFJ Growth III7			—				2,455,204 (2.21%	)			—				—				—				—				—				2,356,517 (32.26%	)			98,687 (*	)
Mohammad Issa (644 Benvenue Avenue, Los Altos, California 94024)			5,171,641 (19.23%	)			5,171,641 (4.66%	)			—				—				—				—				—				—				—
SCubed Capital, LLC8 (2061 Avy Ave., First Floor, Menlo Park, California 94025)			271,494 (1.01%	)			3,829,909 (3.45%	)			1,980,792 (10.96%	)			583,378 (3.16%	)			532,408 (4.56%	)			—				226,186 (1.95%	)			235,651 (3.23%	)			—

 

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Name and Address of Beneficial Holder		Shares (Percent) of Innovium Common Stock Beneficially Owned1				Shares (Percent) of Innovium Common Stock Beneficially Owned (On As- Converted Basis)				Shares (Percent) of Innovium Series A Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series B Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series C Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series D2 Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series D Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series E Preferred Stock Beneficially Owned				Shares (Percent) of Innovium Series F Preferred Stock Beneficially Owned
Redline Capital Management SA9 (26, Avenue Monterey, Luxembourg L-2163)			—				4,552,771 (4.10%	)			—				—				3,049,338 (26.14%	)			—				618,242 (5.32%	)			589,129 (8.06%	)			296,062 (2.09%	)
Inphi Corporation (5488 Marvell Lane, Santa Clara, California 95054)			—				1,193,032 (1.08%	)			—				—				914,801 (7.84%	)			—				120,632 (1.04%	)			58,912 (*)				98,687 (*	)
DAG Ventures VI, L.P. (251 Lytton Avenue, Suite 200, Palo Alto, California 94301)			—				2,864,187 (2.58%	)			—				—				—				2,074,688 (75.00%	)			—				—				789,499 (5.57%	)
Walden CEL Global Integrated Circuit (Cayman) Limited (RM 2501, Bind Center, 222 East Yan An Road, Shanghai, 200002)			230,262 (*	)			230,262 (*	)			—				—				—				—				—				—				—
Xilinx, Inc. (2100 Logic Drive, San Jose, California 95124)			—				652,617 (*	)			—				—				—				—				—				589,129 (8.06%	)			63,488 (*	)
Cisco Investments LLC (170 W. Tasman Drive, San Jose, California 95134)			—				589,129 (*	)			—				—				—				—				—				589,129 (8.06%	)			—
PI Opportunities Fund II 10 (No. 134, Doddakanneli, Sarjapur Road, Bangalore 560-035 India)			—				7,401,559 (6.67%	)			—				—				—				—				—				—				7,401,559 (52.21%	)
Waterman + Co (HG05) f/b/o The New Economy Fund (333 S. Hope Street, 55th Floor, Los Angeles, California 90071)			—				1,973,749 (1.78%	)			—				—				—				—				—				—				1,973,749 (13.92	)
Samsung Electronics Co., Ltd. (26/F, Tower B, DSR Building 1-1, Samsungjeonja- ro Hwaseong-si, Gyeonggi-do 18448 Republic of Korea)			—				986,874 (*	)			—				—				—				—				—				—				986,874 (6.96%	)
Rajiv Khemani11			6,128,000 (22.03%	)			6,128,000 (5.42%	)			—				—				—				—				—				—				—
Puneet Agarwal12			6,063,254 (21.82%	)			6,063,254 (5.42%	)			—				—				—				—				—				—				—
Sumeet Gagneja13			—				—				—				—				—				—				—				—				—
Bruce Fishbein14			—				—				—				—				—				—				—				—				—

 

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