Exhibit (a)(1)(D)
LETTER OF TRANSMITTAL FOR RESTRICTED SHARES
to Tender Restricted Shares of Common Stock
(Including any Associated Rights)
of
Great Wolf Resorts, Inc.
at
$5.00 NET PER SHARE
pursuant to the Offer to Purchase
dated March 13, 2012
by
K-9 Acquisition, Inc.
a wholly-owned subsidiary of
K-9 Holdings, Inc.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 9:00 A.M., NEW YORK CITY TIME, ON TUESDAY, APRIL 10, 2012 UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
The Depositary for the Offer is:
| | | | |
| By Mail: | | ByFacsimile Transmission: | | By Overnight Courier: |
| | |
Computershare c/o Voluntary Corporate Actions P.O. Box 43011 Providence, RI 02940-3011 | | For Eligible Institutions Only: (617) 360-6810 For Confirmation Only Telephone: (781) 575-2332 | | Computershare c/o Voluntary Corporate Actions 250 Royall Street Canton, MA 02021 |
This Letter of Transmittal for Restricted Shares may ONLY be used to tender Shares that were Restricted Shares on March 13, 2012, the date of the commencement of the Offer, and may not be used to tender certificated shares of Common Stock.
Delivery of this Letter of Transmittal for Restricted Shares to an address other than as set forth above, or transmission of instructions via facsimile to a number other than as set forth above, will not constitute a valid delivery to the Depositary. You must sign this Letter of Transmittal for Restricted Shares in the appropriate space provided therefor below and complete the Form W-9 set forth below.
The instructions contained within this Letter of Transmittal for Restricted Shares should be read carefully before this Letter of Transmittal for Restricted Shares is completed.
| | | | | | | | |
| DESCRIPTION OF SHARES TENDERED |
Name(s), Address(es) and Account Number at Registrar and Transfer Company (If blank, please fill in exactly as name(s) appear(s) on the records of Registrar and Transfer Company) | | SHARE CATEGORY - RESTRICTED SHARES SCHEDULED TO VESTON APRIL 1, 2012 Restricted Shares Scheduled to Vest on April 1, 2012 (“April 1 Vesting Shares”) | | SHARE CATEGORY - RESTRICTED SHARES VESTING AFTER APRIL 1, 2012 All Other Restricted Shares (“Closing Restricted Shares”) |
| | | Number of April 1 Vesting Shares in Account on Date of Tender | | Number of April 1 Vesting Shares hereby tendered (1) | | Number of Closing Restricted Shares in Account on Date of Tender | | Number of Closing Restricted Shares hereby tendered (1) |
| | | | | | | | | |
| | | | | | | | | |
(1) If no number is included in this column, all shares in the listed account will be deemed to have been tendered. See Instruction 3. |
Corp Actions Voluntary
The Offer (as defined below) is not being made to (nor will tenders be accepted from or on behalf of) holders of Restricted Shares (as defined below) in any jurisdiction in which the making of the Offer or the acceptance of the Offer would not be in compliance with the laws of such jurisdiction.
This Letter of Transmittal for Restricted Shares is to be used by stockholders of Great Wolf Resorts, Inc. (the “Company”) if delivery of Restricted Shares is to be made by book-entry transfer from an account maintained by Registrar and Transfer Company, the Company’s transfer agent, pursuant to the procedures set forth in Section 3 – “Procedures for Accepting the Offer and Tendering Shares” – of the Offer to Purchase).This Letter of Transmittal for Restricted Shares may ONLY be used to tender Shares that were Restricted Shares on March 13, 2012, and may not be used to tender certificated shares of Common Stock (as defined in the Offer to Purchase) or shares of common stock held in book-entry form through The Depository Trust Company.
Guaranteed delivery may not be used to tender Restricted Shares.
Note: Signatures must be provided below.
Please read the instructions set forth in this Letter of Transmittal for Restricted Shares carefully.
Corp Actions Voluntary
2
Ladies and Gentlemen:
The undersigned hereby tenders to K-9 Acquisition, Inc., a Delaware corporation (the “Offeror”) and a wholly-owned subsidiary of K-9 Holdings, Inc., a Delaware corporation (“Parent”), the above-described shares of restricted common stock and common stock (if any), par value $0.01 per share, of Great Wolf Resorts, Inc., a Delaware corporation (the “Company”), and any associated rights (the “Rights”), issued pursuant to the Rights Agreement, dated March 12, 2012, between the Company and Registrar and Transfer Company, as rights agent (each share of restricted common stock and any associated Rights are referred to herein as a “Restricted Share” and each share of common stock (whether or not restricted) and any associated Rights are referred to herein as a “Share”), at a purchase price of $5.00 per Share, net to the seller in cash without interest, and subject to deduction for any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 13, 2012, the Letter of Transmittal for Shares dated March 13, 2012, and in this Letter of Transmittal for Restricted Shares (which together with any amendments or supplements thereto or hereto, collectively constitute the “Offer”).
Upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms of any such extension or amendment), and effective upon acceptance for payment of the Shares tendered herewith in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to or upon the order of the Offeror all right, title and interest in and to all of the Shares that are being tendered hereby (and any and all dividends, distributions, rights, other Shares or other securities issued or issuable in respect thereof on or after the date hereof (collectively, “Distributions”) and irrevocably constitutes and appoints Computershare (the “Depositary”) the true and lawful agent and attorney-in-fact of the undersigned with respect to such Shares (and all Distributions), with full power of substitution (such power of attorney being deemed to be an irrevocable power coupled with an interest), to (i) transfer ownership of such Shares (and any and all Distributions) on the account books maintained by Registrar and Transfer Company, the Company’s transfer agent, together, in any such case, with all accompanying evidences of transfer and authenticity, to or upon the order of the Offeror, (ii) present such Shares (and any and all Distributions) for transfer on the books of the Company, and (iii) receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares (and any and all Distributions), all in accordance with the terms of the Offer.
By executing this Letter of Transmittal for Restricted Shares, the undersigned hereby irrevocably appoints the Offeror’s officers and designees as the attorneys-in-fact and proxies of the undersigned, each with full power of substitution, to exercise any Rights, to vote at any annual or special meeting of the Company’s stockholders or any adjournment or postponement thereof or otherwise in such manner as each such attorney-in-fact and proxy or his or her substitute shall in his or her sole discretion deem proper with respect to, to execute any written consent concerning any matter as each such attorney-in-fact and proxy or his or her substitute shall in his or her sole discretion deem proper with respect to, and to otherwise act as each such attorney-in-fact and proxy or his or her substitute shall in his or her sole discretion deem proper with respect to, all of the Shares (and any and all Distributions) tendered hereby and accepted for payment by the Offeror. This appointment will be effective if and when, and only to the extent that, the Offeror accepts such Shares for payment pursuant to the Offer. This power of attorney and proxy are irrevocable and are granted in consideration of the acceptance for payment of such Shares in accordance with the terms of the Offer. Such acceptance for payment shall, without further action, revoke any prior powers of attorney and proxies granted by the undersigned at any time with respect to such Shares (and any and all Distributions), and no subsequent powers of attorney, proxies, consents or revocations may be given by the undersigned with respect thereto (and, if given, will not be deemed effective). The Offeror reserves the right to require that, in order for the Shares or other securities to be deemed validly tendered, immediately upon the Offeror’s acceptance for payment of such Shares, the Offeror must be able to exercise full voting, consent and other rights with respect to such Shares (and any and all Distributions), including voting at any meeting of the Company’s stockholders.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares (and any and all other Shares or other securities issued or issuable in respect
Corp Actions Voluntary
3
of such Shares) tendered hereby and all Distributions and that, when the same are accepted for payment by the Offeror, the Offeror will acquire good, marketable and unencumbered title thereto and to all Distributions, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claims. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary or the Offeror to be necessary or desirable to complete the sale, assignment and transfer of the Restricted Shares tendered hereby and all Distributions. In addition, the undersigned shall remit and transfer promptly to the Depositary for the account of the Offeror all Distributions in respect of the Shares tendered hereby, accompanied by appropriate documentation of transfer, and, pending such remittance and transfer or appropriate assurance thereof, the Offeror shall be entitled to all rights and privileges as owner of each such Distribution and may withhold the entire purchase price of the Shares tendered hereby or deduct from such purchase price, the amount or value of such Distribution as determined by the Offeror in its sole discretion.
All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned, and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, personal representatives, trustees in bankruptcy, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that the valid tender of the Shares pursuant to the applicable procedures described in Section 3 – “Procedures for Accepting the Offer and Tendering Shares” – of the Offer to Purchase and in the Instructions hereto, will constitute a binding agreement between the undersigned and the Offeror upon the terms and subject to the conditions of the Offer (and if the Offer is extended or amended, the terms or conditions of any such extension or amendment). Without limiting the foregoing, if the price to be paid in the Offer is amended in accordance with the Agreement and Plan of Merger, dated as of March 12, 2012, the price to be paid to the undersigned will be the amended price notwithstanding the fact that a different price is stated in this Letter of Transmittal for Restricted Shares. The undersigned recognizes that under certain circumstances set forth in the Offer to Purchase, the Offeror may not be required to accept for payment any of the Shares tendered hereby.
Please transmit the purchase price of all of the Shares purchased from the undersigned pursuant to this Letter of Transmittal for Restricted Shares to the Company on behalf of the undersigned. The undersigned hereby acknowledges that the Company will then distribute such funds through its payroll system, reduced by the amount of any applicable income and employment tax withholding due and not previously withheld with respect to such Shares. Please return any Shares tendered herewith by book-entry transfer that are not accepted for payment by crediting the account at the Registrar and Transfer Company designated above.
Corp Actions Voluntary
4
| | |
IMPORTANT SHAREHOLDER: SIGN HERE (U.S. Holders: Please complete and return the Form W-9 included below) (Non-U.S. Holders: Please obtain, complete and return appropriate IRS Form W-8) |
| |
| Signature(s) of Owner(s): | | |
| | |
| |
| Capacity (Full Title): | | |
| (See Instructions) |
| | |
| |
| Address: | | |
|
|
|
| (Include Zip Code) |
| | |
| |
| Area Code and Telephone Number: | | |
| | |
| |
| Tax Identification or | | |
| Social Security Number: | | |
| | |
| (See Form W-9 Below) |
| |
| Dated: | | |
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on the records of Registrar and Transfer Company.) |
Corp Actions Voluntary
5
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Requirements of Tender. This Letter of Transmittal for Restricted Shares is to be completed by stockholders desiring to tender Shares that were Restricted Shares on March 13, 2012. This Letter of Transmittal for Restricted Shares may ONLY be used to tender shares that were Restricted Shares on March 13, 2012 and may not be used to tender certificated shares of Common Stock or shares of Common Stock held in book-entry form at The Depository Trust Company. This Letter of Transmittal for Restricted Shares (or a manually signed facsimile hereof), properly completed and duly executed, and any other documents required by this Letter of Transmittal for Restricted Shares, must be received by the Depositary at one of its addresses set forth herein prior to the Expiration Time. Guaranteed delivery may not be used to tender Restricted Shares.
To the extent Rights have been distributed prior to the date a stockholder tenders shares of Common Stock, holders of shares of Common Stock will be required to tender one Right for each share of Common Stock tendered in order to effect a valid tender. If separate certificates representing Rights are distributed to the Company’s stockholders as a result of the occurrence of a Triggering Event (as defined in Section 11 – “The Merger Agreement and Other Agreements” – of the Offer to Purchase), a tender of shares of Common Stock would need to be accompanied by a simultaneous tender of the certificates representing the related Rights. However, stockholders that tender their shares of Common Stock prior to the time Rights have been distributed will be deemed to tender any Rights subsequently issued in respect of such tendered shares of Common Stock without any further action on the part of the tendering stockholder.
The method of delivery of the Letter of Transmittal for Restricted Shares and all other required documents is at the option and risk of the tendering stockholder, and the delivery will be deemed made only when actually received by the Depositary. If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
No alternative, conditional or contingent tenders will be accepted and no fractional Shares will be purchased. All tendering stockholders, by execution of this Letter of Transmittal for Restricted Shares (or a manually signed facsimile hereof), waive any right to receive any notice of the acceptance of their Shares for payment.
2. Inadequate Space. If the space provided herein is inadequate, the number of Shares and any other required information should be listed on a separate signed schedule attached hereto.
3. Partial Tenders. If fewer than all of the Shares held in the account at Registrar and Transfer Company set forth above are to be tendered, fill in the number of Shares that are to be tendered in the boxes entitled “Number of April 1 Vesting Shares hereby tendered” and “Number of Closing Restricted Shares hereby tendered.” In this case, that account at Registrar and Transfer Company will retain the Shares not tendered. All Shares held in such account will be deemed to have been tendered unless otherwise indicated.
4. Signatures on Letter of Transmittal for Shares and Endorsements. If any of the Shares tendered hereby are held of record by two or more joint owners, all such owners must sign this Letter of Transmittal for Restricted Shares.
If this Letter of Transmittal for Restricted Shares is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, such person should so indicate when signing, and proper evidence satisfactory to the Offeror of the authority of such person so to act must be submitted.
Corp Actions Voluntary
6
5. Stock Transfer Taxes. The Offeror or any successor entity thereto will pay all stock transfer taxes with respect to the transfer and sale of any Shares to it or its order pursuant to the Offer.
6. Form W-9. A tendering stockholder is required to provide the Depositary with a correct Taxpayer Identification Number (“TIN”) on Form W-9, which is provided under “Important Tax Information” below, and to certify, under penalties of perjury, that such number is correct, that such stockholder is not subject to backup withholding of U.S. federal income tax and that such stockholder is a U.S. person (including a U.S. resident alien, each as defined for U.S. federal income tax purposes). If such stockholder is subject to backup withholding, such stockholder must cross out item (2) of the Certification box of the Form W-9. Failure to provide the information on the Form W-9 may subject the tendering stockholder to U.S. federal income tax withholding on the payment of the purchase price of all Shares purchased from such stockholder. If the tendering stockholder has not been issued a TIN and has applied for one or intends to apply for one in the near future, such stockholder should write “Applied For” in the space provided for the TIN in Part 1 of the Form W-9, and sign and date the Form W-9. If “Applied For” is written in Part 1 and the Depositary is not provided with a TIN before the time of payment, the Depositary will withhold a portion of the payment of the purchase price to such stockholder.
Certain stockholders (including, among others, all corporations and certain foreign individuals and entities) are not subject to backup withholding. Noncorporate foreign stockholders should submit an appropriate and properly completed IRS Form W-8, a copy of which may be obtained from the Depositary or online at www.irs.gov, in order to avoid backup withholding. Such stockholders should consult a tax advisor to determine which IRS Form W-8 is appropriate. See the instructions attached to the IRS Form W-9.
7. Requests for Assistance or Additional Copies. Questions and requests for assistance or additional copies of the Offer to Purchase, this Letter of Transmittal for Restricted Shares, and other tender offer materials may be directed to the Information Agent (as defined in the Offer to Purchase) at the address and phone number set forth below, or from brokers, dealers, commercial banks or trust companies.
8. Irregularities. All questions as to purchase price, the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Shares will be determined by the Offeror in its sole discretion, which determinations shall be final and binding on all parties. The Offeror reserves the absolute right to reject any or all tenders of Shares it determines not to be in proper form or the acceptance of which or payment for which may, in the opinion of the Offeror, be unlawful. The Offeror also reserves the absolute right to waive any of the conditions of the Offer (other than the Minimum Condition (as defined in Section 14 – “Certain Conditions of the Offer” – of the Offer to Purchase) which may only be waived with the consent of the Company), and any defect or irregularity in the tender of any particular Shares, and the Offeror’s interpretation of the terms of the Offer (including these instructions) will be final and binding on all parties. No tender of Shares will be deemed to be properly made until all defects and irregularities have been cured or waived. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as the Offeror shall determine. None of Parent, the Offeror, the Holding Partnership, Management VII, the Depositary, the Information Agent, the Dealer Manager (as the foregoing are defined in the Offer to Purchase) or any other person is or will be obligated to give notice of any defects or irregularities in tenders and none of them will incur any liability for failure to give any such notice.
Important: In order for Shares to be validly tendered, this Letter of Transmittal for Restricted Shares (or a manually signed facsimile hereof) and any other required documents, must be received by the Depositary prior to the Expiration Time. This Letter of Transmittal for Restricted Shares may ONLY be used to tender Shares that were Restricted Shares on March 13, 2012, and are held in book-entry form at Registrar and Transfer Company and may not be used to tender certificated shares of Common Stock or shares of Common Stock held in book-entry form at The Depository Trust Company. Guaranteed Delivery Procedures may not be used to tender Restricted Shares.
Corp Actions Voluntary
7
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder who is a U.S. person (as defined for U.S. federal income tax purposes) surrendering Shares must, unless an exemption applies, provide the Depositary (as payer) with his correct TIN on IRS Form W-9 included in this Letter of Transmittal for Restricted Shares. If the stockholder is an individual, the TIN is such stockholder’s social security number or individual taxpayer identification number. If the correct TIN is not provided, the stockholder may be subject to a $50 penalty imposed by the Internal Revenue Service and payments of cash to the tendering stockholder (or other payee) pursuant to the Offer may be subject to backup withholding.
To prevent backup withholding on payments that are made to a stockholder with respect to Shares purchased pursuant to the Offer, the stockholder is required to notify the Depositary of the stockholder’s correct TIN by completing the Form W-9 included in this Letter of Transmittal for Restricted Shares certifying (1) that the TIN provided on the Form W-9 is correct (or that such stockholder is awaiting a TIN), (2) that the stockholder is not subject to backup withholding because (i) the stockholder is exempt from backup withholding, (ii) the stockholder has not been notified by the Internal Revenue Service that the stockholder is subject to backup withholding as a result of a failure to report all interest and dividends or (iii) the Internal Revenue Service has notified the stockholder that the stockholder is no longer subject to backup withholding, and (3) the stockholder is a U.S. person (including a U.S. resident alien).
Certain stockholders (including, among others, all corporations and certain foreign individuals) may not be subject to backup withholding and reporting requirements. In order for an exempt foreign stockholder to avoid backup withholding, such person should complete, sign and submit an appropriate Form W-8 signed under penalties of perjury, attesting to his or her exempt status. A Form W-8 can be obtained from the Depositary or online at www.irs.gov. Such stockholders should consult a tax advisor to determine which IRS Form W-8 is appropriate. Exempt stockholders, other than foreign stockholders, should furnish their TIN, check the “Exempt Payee” box of the IRS Form W-9 and sign, date and return the IRS Form W-9 to the Depositary in order to avoid erroneous backup withholding. See the instructions attached to the IRS Form W-9.
If backup withholding applies, the Depositary is required to withhold and pay over to the Internal Revenue Service a portion of any payment made to a stockholder. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules will be allowed as a credit against a stockholder’s U.S. federal income tax liability, provided the required information is timely furnished in the appropriate manner to IRS.
Corp Actions Voluntary
8
| | | | |
| | |
Form W-9 (Rev. December 2011) Department of the Treasury Internal Revenue Service | | Request for Taxpayer Identification Number and Certification | | Give Form to the requester. Do not send to the IRS. |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Print or type See Specific Instructions on page 2. | | Name (as shown on your income tax return) | | | | | | | | | | | | | | | | |
| | Business name/disregarded entity name, if different from above | | | | | | | | | | | | | | | | |
| | Check appropriate box for federal tax | | | | | | | | | | | | | | | | | | | | | | |
| | classification: | | ¨ | | Individual/sole proprietor | | �� | | C Corporation | | ¨ | | S Corporation | | ¨ | | Partnership | | ¨ | | Trust/estate |
| | ¨ Limited liability company. Enter the tax classification (C = C corporation, S = S corporation, P = partnership) u ¨ Other (see instructions) u | | ¨ | | Exempt payee |
| | Address (number, street, and apt. or suite no.) | | | | | | | | | | | | | | | | |
| | City, state, and ZIP code | | | | Requester’s name and address (optional) |
| | | List account number(s) here (optional) | | | |
| | |
| Part I | | Taxpayer Identification Number (TIN) |
| | | | | | | | | | | | | | | | | | |
Enter your TIN in the appropriate box. The TIN provided must match the name given on the “Name” line to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other entities, it is your employer identification number (EIN). If you do not have a number, seeHow to get a TIN on page 3. Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose number to enter. | | | | | | | | | | | | | | | | | | |
| | Social security number |
| | | | | | – | | | | – | | | | | | | | |
| | |
| | Employer identification number |
| | | | – | | | | | | | | | | | | | | |
Under penalties of perjury, I certify that:
| 1. | | The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and |
| 2. | | I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and |
| 3. | | I am a U.S. citizen or other U.S. person (defined below). |
Certification instructions.You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions on page 4.
| | | | |
Sign
Here | | Signature of
U.S. person u | | Date u |
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Purpose of Form
A person who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactions, mortgage interest you paid, acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA.
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when applicable, to:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners’ share of effectively connected income.
Note.If a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9.
Definition of a U.S. person.For federal tax purposes, you are considered a U.S. person if you are:
— An individual who is a U.S. citizen or U.S. resident alien,
— A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States,
— An estate (other than a foreign estate), or
— A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships.Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners’ share of income from such business. Further, in certain cases where a Form W-9 has not been received, a partnership is required to presume that a partner is a foreign person, and pay the withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid withholding on your share of partnership income.
The person who gives Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States is in the following cases:
— The U.S. owner of a disregarded entity and not the entity,
— The U.S. grantor or other owner of a grantor trust and not the trust, and
— The U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
| | | | |
| | Cat. No. 10231X | | FormW-9(Rev. 12-2011) |
Form W-9 (Rev. 12-2011) | Page 2 |
Foreign person.If you are a foreign person, do not use Form W-9. Instead, use the appropriate Form W-8 (see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien.Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items:
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity not subject to backup withholding, give the requester the appropriate completed Form W-8.
What is backup withholding?Persons making certain payments to you must under certain conditions withhold and pay to the IRS a percentage of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the Part II instructions on page 3 for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See the instructions below and the separate Instructions for the Requester of Form W-9.
Also seeSpecial rules for partnershipson page 1.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account, for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN.If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding.If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Criminal penalty for falsifying information.Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs.If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Name
If you are an individual, you must generally enter the name shown on your income tax return. However, if you have changed your last name, for instance, due to marriage without informing the Social Security Administration of the name change, enter your first name, the last name shown on your social security card, and your new last name.
If the account is in joint names, list first, and then circle, the name of the person or entity whose number you entered in Part I of the form.
Sole proprietor.Enter your individual name as shown on your income tax return on the “Name” line. You may enter your business, trade, or “doing business as (DBA)” name on the “Business name/disregarded entity name” line.
Partnership, C Corporation, or S Corporation. Enter the entity’s name on the “Name” line and any business, trade, or “doing business as (DBA) name” on the “Business name/disregarded entity name” line.
Disregarded entity. Enter the owner’s name on the “Name” line. The name of the entity entered on the “Name” line should never be a disregarded entity. The name on the “Name” line must be the name shown on the income tax return on which the income will be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a domestic owner, the domestic owner’s name is required to be provided on the “Name” line. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on the “Business name/disregarded entity name” line. If the owner of the disregarded entity is a foreign person, you must complete an appropriate Form W-8.
Note. Check the appropriate box for the federal tax classification of the person whose name is entered on the “Name” line (Individual/sole proprietor, Partnership, C Corporation, S Corporation, Trust/estate).
Limited Liability Company (LLC).If the person identified on the “Name” line is an LLC, check the “Limited liability company” box only and enter the appropriate code for the tax classification in the space provided. If you are an LLC that is treated as a partnership for federal tax purposes, enter “P” for partnership. If you are an LLC that has filed a Form 8832 or a Form 2553 to be taxed as a corporation, enter “C” for C corporation or “S” for S corporation. If you are an LLC that is disregarded as an entity separate from its owner under Regulation section 301.7701-3 (except for employment and excise tax), do not check the LLC box unless the owner of the LLC (required to be identified on the “Name” line) is another LLC that is not disregarded for federal tax purposes. If the LLC is disregarded as an entity separate from its owner, enter the appropriate tax classification of the owner identified on the “Name” line.
Form W-9 (Rev. 12-2011) | Page 3 |
Other entities.Enter your business name as shown on required federal tax documents on the “Name” line. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on the “Business name/disregarded entity name” line.
Exempt Payee
If you are exempt from backup withholding, enter your name as described above and check the appropriate box for your status, then check the “Exempt payee” box in the line following the “Business name/disregarded entity name,” sign and date the form.
Generally, individuals (including sole proprietors) are not exempt from backup withholding. Corporations are exempt from backup withholding for certain payments, such as interest and dividends.
Note.If you are exempt from backup withholding, you should still complete this form to avoid possible erroneous backup withholding.
The following payees are exempt from backup withholding:
1. An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2),
2. The United States or any of its agencies or instrumentalities,
3. A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities,
4. A foreign government or any of its political subdivisions, agencies, or instrumentalities, or
5. An international organization or any of its agencies or instrumentalities.
Other payees that may be exempt from backup withholding include:
6. A corporation,
7. A foreign central bank of issue,
8. A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States,
9. A futures commission merchant registered with the Commodity Futures Trading Commission,
10. A real estate investment trust,
11. An entity registered at all times during the tax year under the Investment Company Act of 1940,
12. A common trust fund operated by a bank under section 584(a),
13. A financial institution,
14. A middleman known in the investment community as a nominee or custodian, or
15. A trust exempt from tax under section 664 or described in section 4947.
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 15.
| | |
| IF the payment is for . . . | | THEN the payment is exempt for . . . |
| Interest and dividend payments | | All exempt payees except for 9 |
| Broker transactions | | Exempt payees 1 through 5 and 7 through 13. Also, C corporations. |
| Barter exchange transactions and patronage dividends | | Exempt payees 1 through 5 |
| Payments over $600 required to be reported and direct sales over $5,0001 | | Generally, exempt payees 1 through 72 |
| 1 | See Form 1099-MISC, Miscellaneous Income, and its instructions. |
| 2 | However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney, and payments for services paid by a federal executive agency. |
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box.If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, seeHow to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN. However, the IRS prefers that you use your SSN.
If you are a single-member LLC that is disregarded as an entity separate from its owner (seeLimited Liability Company (LLC)on page 2), enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN.
Note.See the chart on page 4 for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local Social Security Administration office or get this form online atwww.ssa.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website atwww.irs.gov/businesses and clicking on Employer Identification Number (EIN) under Starting a Business. You can get Forms W-7 and SS-4 from the IRS by visiting IRS.gov or by calling 1-800-TAX-FORM (1-800-829-3676).
If you are asked to complete Form W-9 but do not have a TIN, write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note.Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.
Caution:A disregarded domestic entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, below, and items 4 and 5 on page 4 indicate otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on the “Name” line must sign. Exempt payees, seeExempt Payee on page 3.
Signature requirements.Complete the certification as indicated in items 1 through 3, below, and items 4 and 5 on page 4.
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983.You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983.You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real estate transactions.You must sign the certification. You may cross out item 2 of the certification.
Form W-9 (Rev. 12-2011) | Page 4 |
4. Other payments.You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions.You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
| | | | | | |
| For this type of account: | | Give name and SSN of: |
| | 1. | | | Individual | | The individual |
| | 2. | | | Two or more individuals (joint account) | | The actual owner of the account or, if combined funds, the first individual on the account1 |
| | 3. | | | Custodian account of a minor (Uniform Gift to Minors Act) | | The minor2 |
| | 4. | | | a. The usual revocable savings trust (grantor is also trustee) | | The grantor-trustee1 |
| | | | b. So-called trust account that is not a legal or valid trust under state law | | The actual owner1 |
| | 5. | | | Sole proprietorship or disregarded entity owned by an individual | | The owner3 |
| | 6. | | | Grantor trust filing under Optional Form 1099 Filing Method 1 (see Regulation section 1.671-4(b)(2)(i)(A)) | | The grantor * |
| For this type of account: | | Give name and EIN of: |
| | 7. | | | Disregarded entity not owned by an individual | | The owner |
| | 8. | | | A valid trust, estate, or pension trust | | Legal entity4 |
| | 9. | | | Corporation or LLC electing corporate status on Form 8832 or Form 2553 | | The corporation |
| | 10. | | | Association, club, religious, charitable, educational, or other tax-exempt organization | | The organization |
| | 11. | | | Partnership or multi-member LLC | | The partnership |
| | 12. | | | A broker or registered nominee | | The broker or nominee |
| | 13. | | | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | | The public entity |
| | 14. | | | Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulation section 1.671-4(b)(2)(i)(B)) | | The trust |
| 1 | List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished. |
| 2 | Circle the minor’s name and furnish the minor’s SSN. |
| 3 | You must show your individual name and you may also enter your business or “DBA” name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN. |
| 4 | List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also seeSpecial rules for partnerships on page 1. |
| * | Note. Grantor also must provide a Form W-9 to trustee of trust. |
Note.If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records from Identity Theft
Identity theft occurs when someone uses your personal information such as your name, social security number (SSN), or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
— Protect your SSN,
— Ensure your employer is protecting your SSN, and
— Be careful when choosing a tax preparer.
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Publication 4535, Identity Theft Prevention and Victim Assistance.
Victims of identity theft who are experiencing economic harm or a system problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes.Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message tophishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at:spam@uce.gov or contact them atwww.ftc.gov/idtheft or 1-877-IDTHEFT (1-877-438-4338).
Visit IRS.gov to learn more about identity theft and how to reduce your risk.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
Manually signed facsimile copies of the Letter of Transmittal for Restricted Shares will be accepted. The Letter of Transmittal for Restricted Shares and any other required documents should be sent or delivered by each stockholder of the company to the Depositary at one of its addresses set forth on the first page.
Questions and requests for assistance or for additional copies of the Offer to Purchase, the Letter of Transmittal for Restricted Shares and other tender offer materials may be directed to the Information Agent at its telephone number and location listed below, and will be furnished promptly at the Offeror’s expense.
The Information Agent for the Offer is:
105 Madison Avenue
New York, New York 10016
(212) 929-5500 (Call Collect)
or
Call Toll-Free (800) 322-2885
Email: tenderoffer@mackenziepartners.com
The Dealer Manager for the Offer is:
299 Park Avenue
New York, NY 10171-0026
Banks and Brokers Call Collect: (212) 821 6071
All Others Please Call Toll-Free: (855) 565-0223
