Form SC TO-C HeartWare International, Filed by: HeartWare International, Inc.
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E-mailUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
HeartWare International, Inc.
(Name of Subject Company (Issuer))
HeartWare International, Inc.
(Name of Filing Persons (Issuer))
3.50% Convertible Senior Notes due 2017
1.75% Convertible Senior Notes due 2021
(Title of Class of Securities)
422368 AA8
422368 AC4
(CUSIP Number of Class of Securities)
Peter McAree
Senior Vice President, Chief Financial Officer and Treasurer
500 Old Connecticut Path
Framingham, MA 01701
508.739.0912
(Name, Address and Telephone Numbers of Person Authorized to Receive
Notices and Communications on Behalf of Filing Persons)
Copies to:
Robert M. Katz, Esq.
Richard B. Alsop, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
(212) 848-4000
CALCULATION OF FILING FEE
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Transaction Valuation
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Amount of Filing Fee
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Not applicable*
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Not applicable*
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*A filing fee is not required in connection with this filing as it relates solely to preliminary communications made before the commencement of a tender offer.
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o
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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.
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| Amount Previously Paid: None | Filing Party: Not applicable |
| Form or Registration No.: Not applicable | Date Filed: Not applicable |
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x
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions to which the statement relates:
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o
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third-party tender offer subject to Rule 14d-1.
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x
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issuer tender offer subject to Rule 13e-4.
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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
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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o Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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o Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
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Explanatory Note
On June 27, 2016, HeartWare International, Inc. (the “Company”) sent certain notices to the trustee and holders of its 3.50% Convertible Senior Notes due 2017 (the “2017 Convertible Notes”) and 1.75% Convertible Senior Notes due 2021 (together with the 2017 Convertible Notes, the “Convertible Notes”) as required under each applicable supplemental indenture (together, the “Supplemental Indentures”) for such Convertible Notes and in connection with the Agreement and Plan of Merger (the “Agreement”) by and among the Company, Medtronic, Inc. (“Parent”), a Minnesota corporation, and Medtronic Acquisition Corp. (“Purchaser”), a Delaware corporation and a wholly-owned subsidiary of Parent. The notice to the trustee and the holders of the Convertible Notes is attached hereto as Exhibit (a)(5)(a).
In connection with the obligation to offer to repurchase the Convertible Notes as a result of a Fundamental Change (as defined in the Supplemental Indentures), the Company expects to file a tender offer statement on Schedule TO with the Securities and Exchange Commission (“SEC”). The description contained herein is for informational purposes only and is not an offer to buy or the solicitation of an offer to sell any securities. The repurchase offer for the Convertible Notes required by the terms of the Supplemental Indentures has not commenced. Holders of the Convertible Notes are urged to read the relevant repurchase documents when they become available because they will contain important information that such holders should consider before making any decision regarding exercising their right to have their Convertible Notes repurchased. Holders of the Convertible Notes can obtain these documents when they are filed and become available free of charge from the SEC’s website at www.sec.gov, or from the Company upon written request to Peter McAree, Senior Vice President, Chief Financial Officer and Treasurer, HeartWare International, Inc., 500 Old Connecticut Path, Framingham, Massachusetts 01701, telephone number (508) 739-0912 or from the Company’s website, www.heartware.com.
Item 12. Exhibits
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Exhibit
Number
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Description of Document
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(a)(5)(a)
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Notice to Trustee and Holders of Convertible Notes, dated June 27, 2016
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EXHIBIT INDEX
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Exhibit
Number
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Description of Document
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(a)(5)(a)
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Notice to Trustee and Holders of Convertible Notes, dated June 27, 2016
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Exhibit (a)(5)(a)
June 27, 2016
To: Holders of HeartWare International, Inc.
3.50% Convertible Senior Notes due 2017 and 1.75% Convertible Senior Notes due 2021
and
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street, Suite 1290
Minneapolis, MN 55402
Attention: HeartWare Administrator
HEARTWARE INTERNATIONAL, INC.
NOTICE OF ANTICIPATED MERGER EFFECTIVE DATE
NOTICE OF RIGHT TO CONVERT
3.50% Convertible Senior Notes due 2017
1.75% Convertible Senior Notes due 2021 (the “Notes”)
CUSIP Nos. 422368 AA8 and 422368 AC4
Reference is hereby made to the Indenture, dated as of December 15, 2010 (the “Base Indenture”), by and between HeartWare International, Inc., a Delaware corporation (the “Company”) and Wilmington Trust National Association (as successor to Wilmington Trust FSB), as trustee (the “Trustee”), as amended and supplemented by that certain First Supplemental Indenture, dated as of December 15, 2010 (the “First Supplemental Indenture”), by and between the Company and the Trustee, relating to the Company’s 3.50% Convertible Senior Notes due 2017, as further amended and supplemented by that certain Second Supplemental Indenture, dated as of May 13, 2015, by and between the Company and the Trustee (the “Second Supplemental Indenture”, and, together with the First Supplemental Indenture, the “Supplemental Indentures” and each, a “Supplemental Indenture”, and the Base Indenture, as amended and supplemented by the First Supplemental Indenture and the Second Supplemental Indenture, the “Indenture”), relating to the Company’s 1.75% Convertible Senior Notes due 2021. Capitalized terms used but not defined in this notice shall have the meanings ascribed to such terms in the Indenture.
A copy of the Base Indenture and First Supplemental Indenture were included as exhibits to the Company’s Current Report on Form 8-K, filed with the Securities and Exchange Commission (the “SEC”) on December 15, 2010. A copy of the Second Supplemental Indenture was included as an exhibit to the Company’s Current Report on Form 8-K, filed with the SEC on May 19, 2015. The Current Reports on Form 8-K are available on the SEC’s website at www.sec.gov.
On June 27, 2016, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Medtronic, Inc., a Minnesota corporation (the “Parent”), Medtronic Acquisition Corp., a Delaware corporation and direct, wholly-owned subsidiary of Parent (the “Purchaser”), and the Company, providing for the merger (the “Merger”) of the Company with and into the Purchaser, with the Company continuing as the surviving company. The Company issued a press release publicly announcing execution of the Merger Agreement on June 27, 2016, and included a copy of the press release and the Merger Agreement as exhibits to the Company’s Current Report on Form 8-K, filed with the SEC on June 27, 2016. The Company anticipates that a Fundamental Change and a Make-Whole Fundamental Change (each as defined in each Supplemental Indenture) may occur on or after August 24, 2016 (the “Anticipated Effective Date”) as a result of the successful completion of the tender offer pursuant to the Merger Agreement (the “Tender Offer”), to be commenced by Purchaser, on or about July 26, 2016, for all shares of common stock of the Company, par value $0.001 per share (the “Common Stock”) that are outstanding and not held by a person or entity described in Delaware General Corporation Law Section 251(h)(2)(a) through (d) for $58.00 per share, paid to the seller in cash, without interest and subject to any withholding taxes (such amount or any higher amount per share that may be paid pursuant to the Tender Offer, the “Offer Price”).
Notice of Convertibility of the Notes during the Conversion Period
Notice is hereby given, pursuant to Section 4.01(b)(iii)(3) of each Supplemental Indenture that if, pursuant to the Tender Offer, the Purchaser and its affiliates acquire 50% or more of the Common Stock then outstanding, a Fundamental Change and a Make-Whole Fundamental Change (each as defined in each Supplemental Indenture) will have occurred under the Supplemental Indentures (the date and time of such occurrence, the “Acceptance Time”). Such a Fundamental Change and Make-Whole Fundamental Change in connection with the Tender Offer is currently anticipated to occur, if it occurs, upon the Purchaser’s acceptance of, and payment for, the Common Stock tendered in the Tender Offer, but in no event earlier than, the Anticipated Effective Date. The effective date of the Merger is currently anticipated to occur, if it occurs, as soon as practicable after the completion of the Tender Offer. On the effective date of the Merger, if it occurs, the shares of Common Stock then outstanding will be converted into the right to receive the Offer Price, and holders of shares of Common Stock will be entitled to exchange their shares of Common Stock for such per share amount of cash. Pursuant to the Indenture, the holders of the Notes have the right to convert their Notes at the Conversion Rate (as defined in each Supplemental Indenture), according to the terms of the Indenture at any time from and after the date that is 35 Scheduled Trading Days prior to the Anticipated Effective Date, or July 6, 2016, until and including the close of business on the Fundamental Change Repurchase Date (the “Conversion Period”). The Company will announce the Fundamental Change Repurchase Date on or before twenty (20) calendar days after the Acceptance Time in accordance with Section 3.01(b) of each Supplemental Indenture.
Based on the Offer Price, no Additional Shares (as defined in the Indenture) will be added to the Conversion Rate pursuant to Section 4.03(e)(iii) of each Supplemental Indenture. Accordingly, the Notes are convertible at a rate of 10.0000 shares per $1,000 principal amount of Notes (equal to a conversion price of $100.00 per share).
If the Tender Offer is Consummated, Company Obligation to Offer Repurchase Option to All Holders
Pursuant to Section 3.01 of each Supplemental Indenture, if a Fundamental Change occurs at any time before the maturity date of the Notes, each holder of Notes will have the right at such holder’s option to require the Company to repurchase all of such holder’s Notes (or any portion of the principal amount thereof that are equal to $1,000 or in integral multiples of $1,000), on a date (the “Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20) nor more than thirty-five (35) calendar days following the date the Company delivers the Fundamental Change Company Notice in accordance with Section 3.01(b) of each Supplemental Indenture. Upon the satisfaction of the requirements of Section 3.01 of the applicable Supplemental Indenture, the holder’s repurchase option will require the Company to repurchase all of such holder’s Notes at a price, payable in cash, equal to one hundred percent (100%) of the principal amount of the Notes to be so repurchased, plus accrued and unpaid interest thereon, if any, to, but excluding the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”), unless such Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to which such Regular Record Date relates, in which case the Company will instead pay the full amount of accrued and unpaid interest, if any, on the Interest Payment Date to the holder of record of such Note on such Regular Record Date and the Fundamental Change Repurchase Price will be equal to one hundred percent (100%) of the principal amount of the Notes to be repurchased.
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If the Company makes an offer to repurchase the Notes as a result of a Fundamental Change in connection with the Tender Offer, holders of the Notes should read the related Fundamental Change Company Notice and any other related documentation when it is available because it contains important information. Those documents will be available for free from the Company and on the SEC’s website at www.sec.gov.
Notice of Supplemental Indenture
Prior to or at the effective time of the Merger, the Company intends to enter into a supplemental indenture with respect to each Supplemental Indenture. Each supplemental indenture will be entered into by the Company pursuant to Sections 7.01(f), 7.03, 7.04 and 7.06 of each Supplemental Indenture. Pursuant to the terms of each such supplemental indenture, the right to convert each $1,000 principal amount of the Notes will be changed into a right to convert such principal amount of Notes into an amount of cash equal to the Conversion Rate in effect on the Conversion Date, multiplied by the Offer Price.
Additional Notices
The Company hereby notifies you that there can be no assurance that the Tender Offer or the Merger will be consummated on or about the dates indicated herein, or at all. However, in accordance with Section 4.09 of each Supplemental Indenture, the Company is hereby providing notice to you of the Tender Offer and the Merger and as to the earliest anticipated effective date for each of the Tender Offer and the Merger, which date will also be the date as of which it is expected that holders of the Common Stock will be entitled to exchange their Common Stock for the Offer Price. This notice also will constitute notice under Section 4.03(b) of the effective date of the anticipated Make-Whole Fundamental Change and will constitute notice under any other section of the Indenture, to the extent notice is required under such section and this notice satisfies such requirements.
If you have any questions, please contact Peter McAree, Senior Vice President, Chief Financial Officer and Treasurer, at [email protected] or +1 (508) 739-0912.
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