UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
to
to
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
OF THE SECURITIES EXCHANGE ACT OF 1934
Hertz Global Holdings, Inc.
(Name of Subject Company (Issuer) and Filing Person (Issuer))
Series A Preferred Stock
(Title of Class of Securities)
42806J502
(CUSIP Number of Class of Securities)
M. David Galainena
Executive Vice President, General Counsel and Secretary
Hertz Global Holdings, Inc.
8501 Williams Road
Estero, Florida 33928
(239) 301-7000
Executive Vice President, General Counsel and Secretary
Hertz Global Holdings, Inc.
8501 Williams Road
Estero, Florida 33928
(239) 301-7000
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies of communications to:
Gregory Pryor
Colin Diamond
Andrew J. Ericksen
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 819-8200
Colin Diamond
Andrew J. Ericksen
White & Case LLP
1221 Avenue of the Americas
New York, New York 10020
(212) 819-8200
CALCULATION OF FILING FEE
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Transaction Valuation(1)
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Amount of Filing Fee(2)
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$1,875,000,000.00
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$173,812.50
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(1)
The transaction valuation is estimated solely for purposes of calculating the amount of the filing fee. This amount is based on the offer to purchase a total of 1,500,000 shares of Series A Preferred Stock, par value $0.01 per share (the “Series A Preferred Shares”), issued by Hertz Global Holdings, Inc. and outstanding as of November 23, 2021 at a purchase price of $1,250.00 per Series A Preferred Share.
(2)
The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2022, issued August 23, 2021, by multiplying the transaction valuation by .0000927.
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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.
| | Amount Previously Paid: $173,812.50 | | | Form or Registration No.: Schedule TO | |
| | Filing Party: Hertz Global Holdings, Inc. | | | Date Filed: November 23, 2021 | |
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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:
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third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
INTRODUCTORY STATEMENT
This Amendment No. 1 amends and supplements the Tender Offer Statement on Schedule TO-I (the “Schedule TO”) originally filed with the Securities and Exchange Commission on November 23, 2021 by Hertz Global Holdings, Inc. (the “Company,” “us” or “we”), a Delaware corporation, in connection with its offer to each holder of its Series A Preferred Stock (the “Series A Preferred Shares”) to purchase all of its outstanding Series A Preferred Shares at a purchase price per share of $1,250.00 in cash, less any applicable withholding taxes, on the terms and subject to the conditions set forth in the Offer to Purchase, dated November 23, 2021 (as it may be supplemented and amended from time to time, the “Offer to Purchase”), and the related Letter of Transmittal and Consent (as it may be supplemented and amended from time to time, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offering Documents”).
Only those items amended or supplemented are reported in this Amendment No. 1. Except as specifically provided herein, the information contained in the Offering Documents remains unchanged by this Amendment No. 1. You should read this Amendment No. 1 together with the Offering Documents. Capitalized terms used but not defined herein shall have the meanings given to them in the Offer to Purchase.
Items 1 through 9 and Item 11
Amendments to the Offer to Purchase
1.
The section entitled “Material U.S. Federal Income Tax Consequences — Consequences of the Offer to Non-U.S. Holders — Withholding for Non-U.S. Holders” is hereby amended and restated in its entirety as follows:
Withholding For Non-U.S. Holders. Because, as described above, it is unclear whether the cash received by a Non-U.S. Holder in connection with the Offer will be treated (i) as proceeds of a sale or exchange or (ii) as a distribution taxable under Section 301, an applicable withholding agent may treat the entirety of such payment as a dividend distribution for withholding purposes. Accordingly, payments to Non-U.S. Holders may be subject to withholding at a rate of 30% of the gross proceeds paid, unless the Non-U.S. Holder certifies in a form to be provided by the Company in connection with the Offer that such Holder satisfies one of the Section 302 tests (such form, the “Section 302 Certification”) or establishes an entitlement to a reduced rate of withholding by timely completing, under penalties of perjury, the applicable IRS Form W-8 as discussed above. To the extent Non-U.S. Holders tender Series A Preferred Shares held in a United States brokerage account or otherwise through a United States broker, dealer, commercial bank, trust company, or other nominee, such Non-U.S. Holders should consult such United States broker or other nominee and their own tax advisors to determine the particular withholding procedures that will be applicable to them.
A Non-U.S. Holder may be eligible to obtain a refund of a portion of any United States federal tax withheld if the stockholder is entitled to a reduced rate of withholding pursuant to any applicable income tax treaty and a higher rate was withheld.
Non-U.S. Holders are urged to consult their tax advisors regarding the United States federal income tax consequences of participation in the Offer, including the application of United States federal income tax withholding rules, eligibility for a reduction of or an exemption from withholding tax, and the refund procedure, as well as the applicability and effect of state, local, foreign and other tax laws.
Amendments to the Letter of Transmittal
1.
The last sentence on page 2 of the Letter of Transmittal is hereby amended and restated as follows:
YOU MUST SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND
COMPLETE (1) THE ATTACHED IRS FORM W-9 OR APPROPRIATE IRS FORM W-8 AND (2) THE ATTACHED SECTION 302 CERTIFICATION.
COMPLETE (1) THE ATTACHED IRS FORM W-9 OR APPROPRIATE IRS FORM W-8 AND (2) THE ATTACHED SECTION 302 CERTIFICATION.
2.
The last row of the signature line on page 5 of the Letter of Transmittal is hereby amended and restated as follows:
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IMPORTANT: STOCKHOLDERS SIGN HERE
(also please complete (1) IRS Form W-9 or the appropriate IRS Form W-8 and (2) the Section 302 Certification attached)
(also please complete (1) IRS Form W-9 or the appropriate IRS Form W-8 and (2) the Section 302 Certification attached)
3.
Instruction No. 10 “Withholding on Non-U.S. Holders” on page 10 of the Letter of Transmittal is hereby amended and restated in its entirety as follows:
Withholding on Non-U.S. Holders. If you are a non-U.S. Holder, because it is unclear whether the cash you receive in connection with the Offer will be treated (i) as proceeds of a sale or exchange or (ii) as a distribution taxable under Section 301 of the Internal Revenue Code of 1986, as amended (the “Code”), the Depositary or other applicable withholding agent may treat such payment as a dividend distribution for withholding purposes. Accordingly, if you are a non-U.S. Holder, you may be subject to withholding on payments to you at a rate of 30% of the gross proceeds paid, unless the Depositary or other applicable withholding agent determines that a reduced rate of withholding is available pursuant to a tax treaty, that an exemption from withholding is applicable because such gross proceeds are effectively connected with your conduct of a trade or business within the United States, or that the cash you received in connection with the Offer constitutes proceeds of a sale or exchange for U.S. federal income tax purposes because you so indicated in your Section 302 Certification. All Holders are required to complete the Section 302 Certification. See the section of the Offer to Purchase entitled “The Offer and Consent Solicitation — Material U.S. Federal Income Tax Consequences.” In order to obtain a reduced rate of withholding pursuant to an applicable income tax treaty, a non-U.S. Holder must deliver to the Depositary, before the payment is made, a properly completed and executed IRS Form W-8BEN or W-8BEN-E claiming such reduction. In order to claim an exemption from withholding on the grounds that the gross proceeds paid pursuant to the Offer are effectively connected with the conduct of a trade or business within the United States, a non-U.S. Holder must deliver to the Depositary or other applicable withholding agent, before the payment is made, a properly completed and executed IRS Form W-8ECI. Payments of cash to a non-U.S. Holder pursuant to the Offer will generally not be subject to any U.S. federal income tax withholding if such non-U.S. Holder meets the “complete termination,” “substantially disproportionate” or “not essentially equivalent to a dividend” tests described in the section of the Offer to Purchase entitled “The Offer and Consent Solicitation — Material U.S. Federal Income Tax Consequences.” A non-U.S. Holder may be eligible to obtain a refund of a portion of any U.S. federal income tax withheld if such Holder is able to establish that it is entitled to a reduced rate of withholding pursuant to any applicable income tax treaty and a higher rate was withheld.
Under Sections 1471 through 1474 of the Code, commonly referred to as “FATCA,” and related administrative guidance, a United States federal withholding tax of 30% generally will be imposed on dividends that are paid to “foreign financial institutions” and “non-financial foreign entities” (as specifically defined under these rules), whether such institutions or entities hold Series A Preferred Shares as beneficial owners or intermediaries, unless specified requirements are met. Because, as discussed in the section of the Offer to Purchase entitled “The Offer and Consent Solicitation — Material U.S. Federal Income Tax Consequences,” the Depositary or other applicable withholding agent may treat amounts paid to non-U.S. Holders in the Offer as dividend distributions for United States federal income tax purposes, such amounts may also be subject to withholding under FATCA if such requirements are not met. In such case, any withholding under FATCA may be credited against, and therefore reduce, any 30% withholding tax on dividend distributions as discussed above. Non-U.S. Holders should consult with their tax advisors regarding the possible implications of these rules on their disposition of Series A Preferred Shares pursuant to the Offer.
NON-U.S. HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS REGARDING THE APPLICATION OF THE U.S. FEDERAL INCOME TAX WITHHOLDING RULES, INCLUDING ELIGIBILITY FOR A WITHHOLDING TAX REDUCTION OR EXEMPTION, AND THE REFUND PROCEDURE, AS WELL AS THE APPLICABILITY AND EFFECT OF STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.
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4.
Instruction No. 11 “Requests for Assistance or Additional Copies” on page 11 of the Letter of Transmittal is hereby amended and restated in its entirety as follows:
Requests for Assistance or Additional Copies. If you have questions or need assistance, you should contact the Company at its telephone number set forth on the back cover of this Letter of Transmittal. If you require additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery, the IRS Form W-9, the Section 302 Certification or other related materials, you should contact the Company. Copies will be furnished promptly at Hertz’ expense.
Item 12. Exhibits.
*
Previously filed.
Item 13. Information Required By Schedule 13E-3.
Not applicable.
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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.
HERTZ GLOBAL HOLDINGS, INC.
By:
/s/ M. David Galainena
M. David Galainena
Executive Vice President, General Counseland Secretary
Executive Vice President, General Counseland Secretary
Dated: December 1, 2021
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Exhibit 99.(a)(5)(C)
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![[MISSING IMAGE: tm2133757d4-px_page02bw.jpg]](https://cdn.kscope.io/0abc88c5ae7031cc135b3a4de72e4c07-tm2133757d4-px_page02bw.jpg)
![[MISSING IMAGE: tm2133757d4-px_page03bw.jpg]](https://cdn.kscope.io/0abc88c5ae7031cc135b3a4de72e4c07-tm2133757d4-px_page03bw.jpg)
![[MISSING IMAGE: tm2133757d4-px_page04bw.jpg]](https://cdn.kscope.io/0abc88c5ae7031cc135b3a4de72e4c07-tm2133757d4-px_page04bw.jpg)
![[MISSING IMAGE: tm2133757d4-px_page05bw.jpg]](https://cdn.kscope.io/0abc88c5ae7031cc135b3a4de72e4c07-tm2133757d4-px_page05bw.jpg)
![[MISSING IMAGE: tm2133757d4-px_page06bw.jpg]](https://cdn.kscope.io/0abc88c5ae7031cc135b3a4de72e4c07-tm2133757d4-px_page06bw.jpg)
Exhibit 99.(a)(5)(D)
Section 302 Certification of Treatment of Tender Payment
In connection with the redemption by Hertz Global Holdings, Inc. (“Hertz” or the “Company”) of shares of Series A Preferred Stock (the “Shares”) that you, the undersigned, and other holders of the Shares agreed to tender pursuant to that certain Letter of Transmittal and Consent (the “Tender”), Hertz must determine whether the cash payable to you pursuant to the Tender (the “Payment”) qualifies as a distribution taxable under Section 301(c) of the Internal Revenue Code of 1986, as amended (the “Code”), or as proceeds from a sale or exchange under Section 302(a) of the Code in order to ascertain whether amounts must be withheld from the Payment under U.S. federal income tax law.
The Payment will qualify as proceeds from a sale or exchange under Section 302(a) of the Code, and will generally not be subject to U.S. federal income tax withholding, if the Tender: (a) results in a “complete termination” of your equity interest in the Company, (b) results in a “substantially disproportionate” redemption with respect to you, or (c) is “not essentially equivalent to a dividend” with respect to you (together, the “Section 302 tests”). In applying the Section 302 tests, you must take into account stock that you constructively own under certain attribution rules, pursuant to which you will be treated as owning shares in the Company owned by certain family members (except that in the case of a “complete termination” you may waive, under certain circumstances, attribution from family members) and related entities and shares in the Company that you have the right to acquire by exercise of an option. See Section C for a summary of some of these attribution rules. The Tender will generally be a substantially disproportionate redemption with respect to you if, among other things, (x) the ratio which the voting stock of the Company owned by you immediately after the redemption bears to all of the voting stock of the Company at such time, is less than 80% of the ratio which the voting stock of the Company owned by you immediately before the redemption bears to all of the voting stock of the Company at such time and (y) your ownership of the common stock of the Company (whether voting or nonvoting) after and before redemption also meets the 80% requirement in the preceding clause (x). You are urged to consult your tax advisors regarding the application of the “substantially disproportionate” test to your particular circumstances, and to take notice of the fact that the Company does not expect the Shares to constitute voting stock for purposes of this test. If you fail to satisfy the “substantially disproportionate” test under the Tender, you nonetheless may satisfy the “not essentially equivalent to a dividend” test. The Tender will generally satisfy the “not essentially equivalent to a dividend” test if it results in a “meaningful reduction” of your equity interest in the Company. If you have a minimal equity interest in the Company and do not exercise any control over or participate in the Company’s management and the Tender results in any reduction of your equity interest in the Company, the Tender should generally be treated as “not essentially equivalent to a dividend” with respect to you. You are urged to consult your tax advisors regarding the application of the rules of Section 302 to your particular circumstances.
You are required to complete Sections A and B below to indicate whether the Payment qualifies as a distribution taxable under Section 301(c) of the Code or as proceeds from a sale or exchange under Section 302(a) of the Code, and must return this signed and completed certificate by midnight, eastern standard time, on December 21, 2021, or such later time and date to which Hertz may extend.
Mail or deliver this signed and completed certificate to:
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By Mail:
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By Overnight Courier:
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions P.O. Box 43011 Providence, Rhode Island 02940-3011 |
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Computershare Trust Company, N.A.
c/o Voluntary Corporate Actions 150 Royall Street, Suite V Canton, Massachusetts 02021 |
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A. NATURE OF THE PAYMENT
Check the applicable box.
1. ☐ Complete Termination of Interest
2. ☐ Substantially Disproportionate Redemption
3. ☐ Not Essentially Equivalent to a Dividend
4. ☐ Distribution Taxable Under Section 301(c) of the Code
B. CERTIFICATION
Under penalties of perjury, I declare that I have examined the information on this form, including the information I provided in Section A above, and to the best of my knowledge and belief it is true, correct, and complete. I further certify under penalties of perjury that I am the beneficial owner (or am authorized to sign on behalf of the beneficial owner) of the Payment.
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Signature
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Date
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Capacity in which acting
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C. ATTRIBUTION RULES
For purposes of determining whether the Payment qualifies as a distribution taxable under Section 301(c) of the Code or as proceeds from a sale or exchange under Section 302(a) of the Code, you must determine your percentage ownership in the Company under U.S. federal income tax rules both before and after the Payment. In addition to stock that you own directly, you are generally considered for this purpose to own any stock owned (directly or indirectly) by or for:
1.
Your spouse, children (including adopted children), grandchildren, and parents;
2.
A partnership or estate of which you are a partner or beneficiary, in proportion to your interest in the partnership or estate;
3.
A trust (or portion thereof) for which you are considered the owner under the “grantor trust” rules;
4.
A trust, in proportion to your actuarial interest in the trust (but not if it is an employees’ trust described in Section 401(a) of the Code that is exempt from tax under Section 501(a));
5.
A corporation of which you own (directly or indirectly) 50 percent or more in value of the corporation’s stock, in that proportion which the value of the stock you own bears to the value of all stock in the corporation;
6.
If you are a partnership or estate, any stock owned (directly or indirectly) by or for a partner or beneficiary;
7.
If you are a trust (other than an employees’ trust described in Section 401(a) of the Code that is exempt from tax under Section 501(a)), any stock owned (directly or indirectly) by or for a beneficiary, unless the beneficiary’s interest is a remote contingent interest. A contingent interest of a beneficiary in a trust is considered remote if, under the maximum exercise of discretion by the trustee in favor of such beneficiary, the value of such interest, computed actuarially, is 5 percent or less of the value of the trust property;
8.
If you are a grantor trust, stock owned (directly or indirectly) by or for the grantor; and
9.
If you are a corporation, any stock owned (directly or indirectly) by or for a person who owns (directly or indirectly) 50 percent or more of the value of your stock.
In addition:
10.
Any person who has an option to acquire stock is considered to own the stock. An option to acquire an option is considered an option on the underlying stock;
11.
An S corporation under U.S. federal income tax law is considered to be a partnership for the purposes of these rules. Shareholders of an S corporation are considered to be partners;
12.
In the case of the “complete termination” test, the “family” rules of paragraph 1 may not apply to you. Please consult your tax adviser to see if you qualify for this exception (under Section 302(c)(2) of the Code); and
13.
You generally are considered to actually own any stock that you are deemed to own under any of the foregoing rules.