- Amended tender offer statement by Issuer (SC TO-I/A)
February 12 2010 - 5:04PM
Edgar (US Regulatory)
SECURITIES
AND EXCHANGE COMMISSION
|
Washington,
D.C. 20549
|
|
AMENDMENT
NO. 1
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
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(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
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$3,631.28
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*
|
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:
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$3,631.28
|
Form
or Registration No.:
|
Schedule
TO (File No. 005-83483)
|
Filing
party:
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Infinera
Corporation
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Date
filed:
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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
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third
party tender offer subject to Rule 14d-1.
|
|
x
|
issuer
tender offer subject to Rule 13e-4.
|
|
o
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going-private
transaction subject to Rule 13e-3.
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o
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amendment
to Schedule 13D under
Rule 13d-2
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.
Check
the following box if the filing is a final amendment reporting the results of
the tender offer:
o
This
Amendment No. 1 (this “Amendment No. 1”) amends and supplements the Tender Offer
Statement on Schedule TO (the “Schedule TO”) filed on January 25, 2010 with the
Securities and Exchange Commission (the “SEC”) relating to an offer (the
“Offer”) by Infinera Corporation, a Delaware corporation (“Infinera” or the
“Company”), to exchange certain options to purchase up to an aggregate of
5,265,300 shares of the Company’s common stock, par value $0.001 per share,
whether vested or unvested, with an exercise price per share at or above $8.16
with a grant date prior to January 25, 2009 outstanding under the Company’s 2007
Equity Incentive Plan (the “Eligible Awards”). These Eligible Awards may be
exchanged, in the case of Senior Officers (as defined in the Offer to Exchange),
for options, and in the case of all other employees, for Restricted Stock Units
(“RSUs”) upon the terms and subject to the conditions set forth in (i) the Offer
to Exchange Certain Outstanding Options to Purchase Common Stock for New Awards
dated January 25, 2010 (the “Offer to Exchange”), attached to the Schedule TO as
Exhibit (a)(1)(A), (ii) the E-Mail to All Eligible Employees from Thomas J.
Fallon, dated January 25, 2010, attached to the Schedule TO as Exhibit
(a)(1)(B), (iii) Form of Confirmation E-Mail, attached to the Schedule TO as
Exhibit (a)(1)(C), and (iv) Form of Reminder E-Mail, attached to the Schedule TO
as Exhibit (a)(1)(D). These documents, as they may be amended or supplemented
from time to time, together constitute the “Disclosure Documents.”
This
Amendment No. 1 is being filed to reflect the fact that the Company has prepared
a supplement (the “Supplement”) to the Offer to Exchange, dated January 25,
2010. The full text of the Supplement is filed herewith as Exhibit
(a)(1)(A)(i).
The
Schedule TO is amended by the information contained in this Amendment
No. 1. Only those items amended are reported herein. Except as specifically
provided herein, this Amendment No. 1 does not modify any of the
information previously reported in the Schedule TO.
The
information in the Disclosure Documents is incorporated by reference
herein.
Item
2.
|
Subject
Company Information.
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The
information set forth in Item 2 of the Schedule TO is hereby
supplemented by the information set forth in the Supplement under the heading
“Information Concerning Infinera” which is incorporated herein by
reference.
Item
4.
|
Terms
of the Transaction.
|
The
information set forth in Item 4 of the Schedule TO is hereby
supplemented by the information set forth in the Supplement under the headings
“Information Concerning Infinera,” “Conditions of the Offer” which is
incorporated herein by reference.
Item
7.
|
Source
and Amount of Funds or Other
Consideration.
|
The
information set forth in Item 7 of the Schedule TO is hereby
supplemented by the information set forth in the Supplement under the heading
“Conditions of the Offer” which is incorporated herein by
reference.
Item
10.
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Financial
Statements.
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(a)
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Financial
Information
.
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The
information set forth in Item 10 of the Schedule TO is hereby
supplemented by the information set forth in the Supplement under the headings
“Information Concerning Infinera,” “Financial Statements,” and “Schedule D”
which is incorporated herein by reference.
|
|
|
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(a)(1)(A)
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Offer
to Exchange Certain Outstanding Options to Purchase Common Stock for New
Awards, dated January 25, 2010.*
|
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(a)(1)(A)(i)
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Supplement
to the Offer to Exchange, dated February 12, 2010.
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(a)(1)(B)
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E-Mail
to All Eligible Employees from Thomas Fallon, dated January 25, 2010.
*
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(a)(1)(C)
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Form
of Confirmation E-Mail. *
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(a)(1)(D)
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Form
of Reminder E-Mail. *
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(a)(1)(E)
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Screen
shots of offer website. *
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(a)(1)(F)
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Employee
presentation materials. *
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(b)
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Not
applicable.
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(d)(1)
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2007
Equity Incentive Plan and forms of stock option agreements thereunder
(Incorporated by reference to exhibit filed with Registrant’s Form S-1
(No. 333-140876), filed with the SEC on February 26, 2007, as
amended, and to exhibit filed with Registrant’s Form S-1/A
(No. 333-140876), filed with the SEC on April 4,
2007).
|
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(d)(2)
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Form
of Restricted Stock Unit Agreement under 2007 Equity Incentive Plan of the
Registrant (Incorporated by reference to exhibit filed with Registrant’s
Quarterly Report on Form 10-Q (No. 001-33486), filed with the SEC on
July 25, 2008).
|
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(d)(3)
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Form
of Restricted Stock Unit Agreement for International Based Employees under
2007 Equity Incentive Plan of the Registrant (Incorporated by reference to
exhibit filed with Registrant’s Quarterly Report on Form 10-Q
(No. 001-33486), filed with the SEC on July 25,
2008).
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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*
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Previously
filed with Schedule TO.
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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.
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INFINERA
CORPORATION
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|
|
|
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/s/ Michael O. McCarthy,
III
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Michael
O. McCarthy, III
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Chief
Legal Officer and Corporate
Secretary
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Date: February
12, 2010
INDEX
TO EXHIBITS
|
|
(a)(1)(A)
|
Offer
to Exchange Certain Outstanding Options to Purchase Common Stock for New
Awards, dated January 25, 2010.*
|
(a)(1)(A)(i)
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Supplement
to the Offer to Exchange, dated February 12, 2010.
|
(a)(1)(B)
|
E-Mail
to All Eligible Employees from Thomas Fallon, dated January 25, 2010.
*
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(a)(1)(C)
|
Form
of Confirmation E-Mail. *
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(a)(1)(D)
|
Form
of Reminder E-Mail. *
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(a)(1)(E)
|
Screen
shots of offer website. *
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(a)(1)(F)
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Employee
presentation materials. *
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(b)
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Not
applicable.
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(d)(1)
|
2007
Equity Incentive Plan and forms of stock option agreements thereunder
(Incorporated by reference to exhibit filed with Registrant’s Form S-1
(No. 333-140876), filed with the SEC on February 26, 2007, as
amended, and to exhibit filed with Registrant’s Form S-1/A
(No. 333-140876), filed with the SEC on April 4,
2007).
|
(d)(2)
|
Form
of Restricted Stock Unit Agreement under 2007 Equity Incentive Plan of the
Registrant (Incorporated by reference to exhibit filed with Registrant’s
Quarterly Report on Form 10-Q (No. 001-33486), filed with the SEC on
July 25, 2008).
|
(d)(3)
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Form
of Restricted Stock Unit Agreement for International Based Employees under
2007 Equity Incentive Plan of the Registrant (Incorporated by reference to
exhibit filed with Registrant’s Quarterly Report on Form 10-Q
(No. 001-33486), filed with the SEC on July 25,
2008).
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(g)
|
Not
applicable.
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(h)
|
Not
applicable.
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*
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Previously
filed with Schedule TO.
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