|HEARTWARE INTERNATIONAL, INC. filed this Form SC TO-I on 08/26/2016|
Fundamental Change Expiration Time, those Notes will remain outstanding subject to the existing terms of the Notes.
3.1. Method of Delivery.
The Trustee has
informed the Company that, as of the date of this Notice, all Notes are held through DTC and there are no certificated Notes in non-global form. Accordingly, each Fundamental Change Repurchase Notice and the Notes described therein shall be
delivered via an agents message that is transmitted through DTCs Automated Tender Offer Program (ATOP), and delivery via ATOP will satisfy the Holders Fundamental Change Repurchase Right delivery requirements
pursuant to the terms of the applicable Indenture. Delivery of the Fundamental Change Repurchase Notice and the Notes described therein through ATOP is the responsibility of the surrendering Holder.
Holders who are DTC participants should follow the instructions described above. Holders whose Notes are held by a broker, dealer,
commercial bank, trust company or other nominee must contact such nominee and instruct such nominee to deliver a Fundamental Change Repurchase Notice and surrender the Notes on such Holders behalf through the transmittal procedures described
above prior to the Fundamental Change Expiration Time.
Any Fundamental Change Repurchase Notice sent to DTC by a Holder or by a broker,
dealer, commercial bank, trust company or other nominee on a Holders behalf, and transmitted by DTC to the Tender Agent, will acknowledge, on behalf of DTC and the Holder, an agreement to be bound by the terms of the Fundamental Change
Repurchase Right, including those set forth in Section 3.2Agreement to be Bound by the Terms of the Fundamental Change Repurchase Right below.
3.2. Agreement to be Bound by the Terms of the Fundamental Change Repurchase Right.
By delivering, or instructing your nominee to deliver, your Fundamental Change Repurchase Notice through ATOP, a Holder acknowledges and agrees
||the Notes described in the Fundamental Change Repurchase Notice shall be repurchased by the Company pursuant to the terms and conditions set forth in the applicable Notes, the applicable Indenture and this Notice;
||such Holder agrees to all of the terms of this Notice; |
||such Holder received this Notice and acknowledges that this Notice provides the notice required pursuant to the applicable Indenture with respect to the Fundamental Change Repurchase Right; |
upon the terms and subject to the conditions set forth in this Notice, the applicable Indenture and the
applicable Notes, and effective upon the Fundamental Change Repurchase Date, such Holder (i) irrevocably sells, assigns, and transfers to the Company, all right, title, and interest in and to all the Notes described in the Fundamental Change
Repurchase Notice, (ii) releases and discharges the Company and Wilmington Trust, National Association, in its role as the Trustee, the Tender Agent, the Paying Agent and the Conversion Agent, and their respective directors, officers, employees and
affiliates from any and all claims such Holder may have now, or may have in the future arising out of, or related to, such Notes, including, without limitation, any claims that such Holder is entitled to receive additional principal or interest
payments with respect to the Notes or to participate in any redemption, conversion or defeasance of the Notes and (iii) irrevocably constitutes and appoints the Tender Agent as the true and lawful agent and attorney-in-fact of such Holder with
respect to any such Notes that are duly surrendered (with full knowledge that the Tender Agent also acts as agent of the Company), with full power of substitution and resubstitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest) to (a) transfer ownership of such Notes, on the account books maintained by DTC, together, in any such case, with all accompanying evidences of transfer and authenticity, to the Company, (b) present such Notes for transfer
on the relevant security register and (c) receive all