Securities Law & Instruments


Headnote

National Policy 11-206 Process for Cease to be a Reporting Issuer Applications – The issuer was a “SEC foreign issuer” – The issuer filed a SEC Form 15 to terminate its registration and suspend reporting obligations – The issuer has outstanding notes held by less than 15 beneficial securityholders in each jurisdiction and less than 51 securityholders worldwide – The issuer has ceased to be a reporting issuer under securities legislation.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).

November 24, 2016

IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the Jurisdiction)

AND

IN THE MATTER OF
THE PROCESS FOR CEASE TO BE
A REPORTING ISSUER APPLICATIONS

AND

IN THE MATTER OF
HEARTWARE INTERNATIONAL, INC.
(the Filer)

ORDER

Background

The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).

Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):

(a)           the Ontario Securities Commission is the principal regulator for this application; and

(b)           the Filer has provided notice that subsection 4C.5(1)(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador.

Interpretation

Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.

Representations

This order is based on the following facts represented by the Filer:

1.             The Filer is incorporated under the laws of the State of Delaware and has its head office at 500 Old Connecticut Path, Building A, Framingham, Massachusetts 01701.

2.             The Filer is a reporting issuer in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. The Filer is not a reporting issuer in any other jurisdiction in Canada.

3.              Filer is a “foreign reporting issuer” (as defined in National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102)) that has a class of securities registered under Section 12 of the U.S. Securities Exchange Act of 1934, as amended (the 1934 Act), and it is not registered or required to be registered as an investment company under the U.S. Investment Company Act of 1940, as amended. Accordingly, the Filer is an “SEC foreign issuer” as defined in NI 71-102.

4.             As a result of being an SEC foreign issuer, the Filer is generally able to satisfy its continuous disclosure obligations in Canada by (i) filing documents with the Canadian securities regulatory authorities at the same time as, or as soon as practicable after, the filing or furnishing of those documents with the U.S. Securities and Exchange Commission (SEC), and (ii) sending documents to Canadian securityholders in the same manner and at the same time, or as soon as practicable after, those documents are sent to holders of securities of the same class under U.S. federal securities law, in each case in compliance with the requirements as set out in NI 71-102. In addition, the insider reporting requirement of Canadian securities legislation does not apply to an insider of the Filer if the insider complies with the requirements of U.S. federal securities law relating to insider reporting.

5.             On August 23, 2016, Medtronic, Inc. (Medtronic) completed its acquisition of the Filer following a cash tender offer by Medtronic Acquisition Corp., a wholly-owned subsidiary of Medtronic, for all of the outstanding shares of common stock of the Filer (the Common Stock). On completion of the acquisition, the only beneficial holder of the Common Stock is Medtronic and the Filer ceased to be a publicly traded company on the NASDAQ Stock Market LLC.

6.             On September 2, 2016, the Filer filed SEC Form 15 (Certification and Notice of Termination of Registration Under Section 12(g) of the Securities Exchange Act of 1934 or Suspension of Duty to File Reports Under Sections 13 and 15(d) of the Securities Exchange Act of 1934) with the SEC. As a result, the Filer’s duty to file reports under Sections 13 and 15(d) of the 1934 Act has been suspended and will terminate on December 1, 2016.

7.             On September 27, 2016, following a repurchase offer by the Filer for all of its outstanding debt securities, no 1.75% Convertible Senior Notes due 2021 of the Filer remained outstanding and the number of beneficial holders, direct or indirect, of the Filer’s 3.50% Convertible Senior Notes due 2017 were fewer than 15 in each of the jurisdictions of Canada and fewer than 50 in total worldwide.

8.             The Filer’s outstanding securities, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide.

9.             The Filer has no current intention to seek public financing by way of an offering of its securities.

10.          The Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets.

11.          The Filer’s securities, including debt securities, are not traded in Canada or another country on a marketplace (as defined in National Instrument 21-101 Marketplace Operation) or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.

12.          The Filer is not in default of securities legislation in any jurisdiction.

13.          The Filer is applying for an order that the Filer has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is a reporting issuer.

Order

The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.

The decision of the principal regulator under the Legislation is that the Order Sought is granted.

“Winnie Sanjoto”
Manager, Corporate Finance
Ontario Securities Commission