Gateway Inc - Amended tender offer statement by Third Party (SC TO-T/A)
September 18 2007 - 3:16PM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR
SECTION 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
GATEWAY, INC.
(Name of Subject Company
(Issuer))
ACER INC.
(Parent of Offeror)
GALAXY ACQUISITION CORP.
(Offeror)
(Names of Filing Persons
(Offerors))
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Including the associated preferred share purchase rights)
(Title of Class of
Securities)
367626108
(CUSIP Number of Class of
Securities)
B.J. Lin
Assistant General Counsel
Acer Inc.
8F, 88, Sec.1, Hsin Tai Wu Rd., Hsichih,
Taipei, Hsien 221, Taiwan, R.O.C.
Telephone:
+886-2-2696-1234
(Name, address and telephone
number of person authorized
to receive notices and
communications on behalf of filing persons)
Copy to:
Richard V. Smith, Esq.
Barbara Murphy Lange, Esq.
Lawrence B. Low, Esq.
Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, California 94105
(415) 773-5700
CALCULATION OF FILING FEE
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Transaction
Valuation*
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Amount of Filing
Fee**
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$709,918,814
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$21,795
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* Estimated solely for purposes of calculating amount of
the filing fee in accordance with
Rule 0-11
under the Securities Exchange Act of 1934, as amended. The
transaction value is based upon the offer to purchase all of the
outstanding shares of common stock, par value $0.01 per
share, of Gateway, Inc. for the expected consideration in the
tender offer of $1.90 per share and 373,641,481 shares of
outstanding common stock (including restricted shares) as of
August 23, 2007.
** The amount of the filing fee is calculated in accordance
with
Rule 0-11
of the Securities Exchange Act of 1934, as amended, by
multiplying the transaction valuation by 0.0000307.
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þ
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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.
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Amount Previously
Paid:
$21,795
Form or Registration
No.: Schedule TO-T
Filing Party: Acer Inc. and Galaxy Acquisition Corp.
Date Filed: September 4, 2007
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o
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Check the box if the filing relates solely to preliminary
communications made before the commencement of a tender offer.
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Check the appropriate boxes below to designate any transactions
to which the statement relates:
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þ
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third-party tender offer subject to
Rule 14d-1.
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o
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issuer tender offer subject to
Rule 13e-4.
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o
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going-private transaction subject to
Rule 13e-3.
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o
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amendment to Schedule 13D under
Rule 13d-2.
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Check the following box if the filing is a final amendment
reporting the results of the tender
offer:
o
This Amendment No. 5 (this
Amendment No. 5
) amends and supplements the Tender Offer
Statement on Schedule TO filed with the Securities and Exchange Commission on September 4, 2007 by
Galaxy Acquisition Corp., a Delaware corporation (the
Purchaser
) and a wholly owned subsidiary of
Acer Inc., a company organized under the laws of the Republic of China (the
Parent
), as
previously amended (the
Schedule TO
). The Schedule TO relates to the offer by the Purchaser to
purchase all outstanding shares of common stock, par value $0.01 per share, including the
associated preferred share purchase rights, issued pursuant to the Rights Agreement, dated as of
January 19, 2000, as amended, between Gateway, Inc., a Delaware corporation (the
Company
) and UMB
Bank, N.A. (collectively the
Shares
and each share thereof a
Share
), of the Company, at a
purchase price of $1.90 per Share, net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer to Purchase for cash dated September 4,
2007 (the
Offer to Purchase
) and the related Letter of Transmittal (the
Letter of Transmittal
which, together with the Offer to Purchase, as each may be amended and supplemented from time to
time, constitute the
Offer
). All capitalized terms used in the Amendment No. 5 without definition
have the meanings ascribed to them in the Schedule TO. Except as specifically provided herein, this
Amendment No. 5 does not modify any of the information previously reported to the Schedule TO.
The items of the Schedule TO set forth below are hereby amended and supplemented as follows:
ITEM 11. ADDITIONAL INFORMATION
Item 11(a)(2)-(4) of the Schedule TO is hereby amended and supplemented by adding the
following to the end thereof:
At 11:59 p.m., New York City time, on Monday, September 17, 2007, the waiting period under
the Hart Scott Rodino Antitrust Improvements Act of 1976 in the United States expired. The closing
of the transaction remains subject to other customary conditions, including regulatory approvals in
other jurisdictions which Parent anticipates will be satisfied over the next several weeks.
SIGNATURES
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.
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ACER INC.
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Dated: September 18, 2007
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By:
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/s/ J.T. Wang
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Name:
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J.T. Wang
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Title:
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Chairman and Chief Executive Officer
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GALAXY ACQUISITION CORP.
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Dated: September 18, 2007
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By:
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/s/ J.T. Wang
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Name:
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J.T. Wang
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Title:
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President
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