However, a
non-U.S.
holder will not be able to utilize a loss recognized upon expiration of a warrant or
pre-funded
warrant against the
non-U.S.
holder’s U.S. federal income tax liability unless the loss is effectively connected with the
non-U.S.
holder’s conduct of a trade or business within the United States (and, if an income tax treaty applies, is attributable to a permanent establishment in the United States) or is treated as a U.S.-source loss and the
non-U.S.
holder is present 183 days or more in the taxable year of disposition and certain other conditions are met.
Certain Adjustments to the Warrants or
Pre-Funded
Warrants
. Under Section 305 of the Code, an adjustment to the number of shares of common stock issued on the exercise of the warrants or
pre-funded
warrants, or an adjustment to the exercise price of the warrants or
pre-funded
warrants, may be treated as a constructive distribution to a
non-U.S.
holder of the warrants or
pre-funded
warrants, as applicable, if, and to the extent that, such adjustment has the effect of increasing such
non-U.S.
holder’s proportionate interest in our “earnings and profits” or assets, depending on the circumstances of such adjustment (for example, if such adjustment is to compensate for a distribution of cash or other property to our shareholders). In addition, if we were to make a distribution in cash or other property with respect to our common stock after the issuance of the warrants or
pre-funded
warrants, then we may, in certain circumstances, make a corresponding distribution to a warrant or
pre-funded
warrant holder. The taxation of a distribution received with respect to a warrant or
pre-funded
warrant is unclear. It is possible such a distribution would be treated as a distribution (or constructive distribution), although other treatments are possible. For more information regarding the tax considerations related to distributions, see the discussion above regarding “—
.”
Non-U.S.
holders should consult their tax advisors regarding the proper treatment of any adjustments to and adjustments on the warrants or
pre-funded
warrants.
Backup Withholding and Information Reporting
Generally, we must report annually to the IRS the amount of dividends paid to you, your name and address, and the amount of tax withheld, if any. A similar report will be sent to you. Pursuant to applicable income tax treaties or other agreements, the IRS may make these reports available to tax authorities in your country of residence.
Payments of dividends or of proceeds on the disposition of stock made to you may be subject to information reporting and backup withholding at a current rate of 24% unless you establish an exemption, for example, by properly certifying
your non-U.S. status
on an IRS
Form W-8BEN, IRS
another appropriate version of IRS
Form W-8. Notwithstanding
the foregoing, backup withholding and information reporting may apply if either we or our paying agent has actual knowledge, or reason to know, that you are a U.S. person.
Under current U.S. federal income tax law, U.S. information reporting and backup withholding requirements generally will apply to the proceeds of a disposition of our common stock, warrants or
pre-funded
warrants effected by or through a U.S. office of any broker, U.S. or foreign, except that information reporting and such requirements may be avoided if the holder provides a properly executed and appropriate
IRS Form W-8 or otherwise
meets documentary evidence requirements
for establishing non- U.S. holder
status or otherwise establishes an exemption. Generally, U.S. information reporting and backup withholding requirements will not apply to a payment of disposition proceeds
to a non-U.S. holder where
the transaction is effected outside the U.S.
through a non-U.S. office of a non-U.S. broker. Information
reporting and backup withholding requirements may, however, apply to a payment of disposition proceeds if we or the broker has actual knowledge, or reason to know, that you are, in fact, a U.S. person. For information reporting purposes, certain brokers with substantial U.S. ownership or operations will generally be treated in a manner similar to U.S. brokers.
Backup withholding is not an additional tax; rather, the U.S. federal income tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, you may be able to obtain a refund or credit from the IRS, provided that the required information is furnished to the IRS in a timely manner.