infinera.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
AMENDMENT
NO. 2
SCHEDULE
TO
(Rule 13e-4)
Tender
Offer Statement Under Section 14(d)(1) or 13(e)(1)
of
the Securities Exchange Act of 1934
Infinera
Corporation
(Name
of Subject Company (Issuer) and Filing Person (Offeror))
Options
to Purchase Common Stock, $0.001 par value
(Title
of Class of Securities)
45667G103
(CUSIP
Number of Class of Securities’ Underlying Common Stock)
Michael
O. McCarthy III, Esq.
Infinera
Corporation
169
Java Drive
Sunnyvale,
CA 94089
(408)
572-5200
(Name,
address and telephone numbers of person authorized to receive notices
and
communications
on behalf of filing persons)
Copies
to:
Kenton
J. King, Esq.
Joseph
M. Yaffe, Esq.
Skadden,
Arps, Slate, Meagher & Flom LLP
525
University Avenue – Suite 1100
Palo
Alto, CA 94301
(650)
470-4500
CALCULATION
OF FILING FEE
Transaction
Valuation*
|
Amount
of Filing Fee
|
|
$50,929,629
|
$3,631.28
|
|
* |
Estimated
solely for purposes of determining the filing fee. This amount
assumes that options to purchase 5,265,300 shares of common stock of
Infinera Corporation having an aggregate value of $ 50,929,629 as of
January 25, 2010 will be exchanged or cancelled pursuant to this
offer. The aggregate value of such securities was calculated
based on the Black-Scholes option pricing model. The amount of
the filing fee, calculated in accordance with Rule 0-11(b) of the
Securities Exchange Act of 1934, as amended, equals $71.30 for each
$1,000,000 of the value of this
transaction.
|
x |
Check
the box if any part of the fee is offset as provided by
Rule 0-11(a)(2) and identify the filing with which the offsetting fee
was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its
filing.
|
Amount
Previously Paid:
|
$3,631.28 |
|
|
Form
or Registration No.:
|
Schedule
TO (File No. 005-83483)
|
|
Filing
party:
|
Infinera
Corporation
|
|
Date
filed:
|
January
25, 2010
|
|
o |
Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
|
Check
the appropriate boxes below to designate any transactions to which the
statement relates:
|
|
o |
third
party tender offer subject to Rule 14d-1.
|
|
x |
issuer
tender offer subject to Rule 13e-4.
|
|
o |
going-private
transaction subject to Rule 13e-3.
|
|
o |
amendment
to Schedule 13D under Rule 13d-2.
|
Check
the following box if the filing is a final amendment reporting the results
of the tender offer:
|
|
This Amendment No. 2 (this “Amendment
No. 2”) amends and supplements the Tender Offer Statement on Schedule TO filed
with the Securities and Exchange Commission (the “SEC”) on January 25, 2010, as
previously amended and supplemented on February 12, 2010 (as amended, the
“Schedule TO”). Pursuant to Rule 12b-15 under the Securities Exchange
Act of 1934, as amended, this Amendment No. 2 amends and supplements only
the items and exhibits to the Schedule TO that are being amended and
supplemented, and unaffected items and exhibits are not included herein. This
Amendment No. 2 is the final amendment to the Schedule TO and reports the
results of the tender offer. This Amendment No. 2 is filed in satisfaction of
the reporting requirements of Rule 13e-4(c)(4) promulgated under the Exchange
Act.
|
Item 4.
|
Terms
of the Transaction
|
(a)
Material Terms
Item
4 of the Schedule TO is hereby amended and supplemented to add the following
information:
“The
Offer to Exchange Certain Outstanding Options to Purchase Common Stock for New
Awards expired on February 22, 2010 at 9:00 P.M. Pacific Time. A
total of 406 eligible employees participated in the option
exchange. Pursuant to the terms and conditions of the option
exchange, Infinera accepted for exchange options to purchase an aggregate of
4,926,790 shares of Infinera common stock, representing 93.6% of the total
number of options eligible for exchange. All surrendered options were
cancelled effective as of the expiration of the option exchange, and immediately
thereafter, in exchange therefor, Infinera granted (i) new options with an
exercise price of $7.61 per share (representing the per share closing price of
Infinera common stock on February 22, 2010, as reported on the Nasdaq Global
Select Market) to purchase an aggregate of 1,564,727 shares of Infinera common
stock and (ii) restricted stock units representing 814,017 shares of Infinera
common stock under the Infinera Corporation 2007 Equity Incentive
Plan.”
SIGNATURE
After
due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
|
INFINERA
CORPORATION
|
|
|
|
|
|
/s/
Michael O. McCarthy, III
|
|
|
Michael
O. McCarthy, III
|
|
Chief
Legal Officer and Corporate
Secretary
|
Date: February
23, 2010