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. 9)
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. 9 (this “
Amendment No. 9
”) amends and supplements the Tender Offer
Statement on Schedule TO filed with the Securities and Exchange Commission (the “
SEC
”) 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 but not defined in this Amendment No. 9
have the meanings ascribed to them in the Schedule TO. Except as specifically provided herein, this
Amendment No. 9 does not modify any of the information previously reported in 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 of the Schedule TO is hereby amended and supplemented by adding the following
paragraphs thereto:
“On October 3, 2007, Parent sent to the Company stockholders a letter urging them to tender
their Shares in the Offer prior to the Expiration Date of the Offer that has been extended to 5:00
p.m. New York City time, on Wednesday, October 10, 2007.”
A copy of the letter is attached as Exhibit (a)(5)(H) hereto and is incorporated herein by
reference.
ITEM 12. EXHIBITS
Item 12 of the Schedule TO is hereby amended and supplemented as set forth below:
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EXHIBIT
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NUMBER
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DESCRIPTION
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(a)(1)(A)
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Offer to Purchase dated September 4, 2007.*
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(a)(1)(B)
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Form of Letter of Transmittal.*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and other Nominees.*
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(a)(1)(F)
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Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.*
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(a)(2)
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Not applicable.
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(a)(3)
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Not applicable.
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(a)(4)
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Not applicable.
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(a)(5)(A)
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Press Release dated August 27, 2007 (incorporated by reference to Exhibit 99.1 to the Schedule
TO-C, dated August 27, 2007, filed by Acer Inc. and Galaxy Acquisition Corp.).*
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(a)(5)(B)
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Employee Letter (incorporated by reference to Exhibit 99.2 to the Schedule TO-C, dated August 27,
2007, filed by Acer Inc. and Galaxy Acquisition Corp.).*
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(a)(5)(C)
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Investor Update: Strategic Transactions August 27, 2007 (Slide Presentation) (incorporated by
reference to Exhibit 99.3 to the Schedule TO-C, dated August 27, 2007, filed by Acer Inc. and
Galaxy Acquisition Corp.).*
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(a)(5)(D)
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Investor Update: Strategic Transactions August 27, 2007 (Script) (incorporated by reference to
Exhibit 99.4 to the Schedule TO-C, dated August 27, 2007, filed by Acer Inc. and Galaxy
Acquisition Corp.).*
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(a)(5)(E)
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Summary Advertisement published in the Wall Street Journal on September 4, 2007.*
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(a)(5)(F)
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Press release of Parent dated September 5, 2007 — Acer Commences Cash Tender Offer for Gateway,
Gateway Announces Sales of Professional Business.*
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(a)(5)(G)
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Press release of Parent dated
October 2, — Acer announces extension of Tender Offer for
Gateway allowing the Committee on Foreign Investment in the U.S. to
complete its review process.*
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(a)(5)(H)
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Letter dated October 2, 2007, from Parent to the Company stockholders.
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(b)(1)
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Commitment Letter for up to NTD 19.8 billion (USD 600 Million equivalent) loan facility, dated
September 20, 2007, between Parent and Citibank, N.A., Tapei
Branch.*
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(d)(1)
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Agreement and Plan of Merger, dated August 27, 2007, among Acer Inc., Galaxy Acquisition Corp.
and Gateway, Inc.*
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(d)(2)
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Non-Disclosure Agreement, dated August 3, 2007, between Gateway, Inc. and Acer Inc.*
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(d)(3)
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Exclusivity Agreement, dated as of August 17, 2007, between Gateway, Inc. and Acer Inc.*
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(d)(4)
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Form of Tender and Support Agreement (attached as Exhibit B to Exhibit (d)(1) hereto).*
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(d)(5)
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Tender and Support Agreement, dated August 27, 2007, among Acer Inc., Galaxy Acquisition Corp.
and Avalon Capital Group, LLC.*
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(g)
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None.
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(h)
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None.
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* Previously filed
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: October 3, 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: October 3, 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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EXHIBIT INDEX
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EXHIBIT
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NUMBER
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DESCRIPTION
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(a)(1)(A)
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Offer to Purchase dated September 4, 2007.*
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(a)(1)(B)
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Form of Letter of Transmittal.*
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(a)(1)(C)
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Form of Notice of Guaranteed Delivery.*
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(a)(1)(D)
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Form of Letter to Brokers, Dealers, Banks, Trust Companies and other Nominees.*
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(a)(1)(E)
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Form of Letter to Clients for Use by Brokers, Dealers, Banks, Trust Companies and other Nominees.*
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(a)(1)(F)
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Form of Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.*
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(a)(2)
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Not applicable.
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(a)(3)
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Not applicable.
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(a)(4)
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Not applicable.
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(a)(5)(A)
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Press Release dated August 27, 2007 (incorporated by reference to Exhibit 99.1 to the Schedule
TO-C, dated August 27, 2007, filed by Acer Inc. and Galaxy Acquisition Corp.).*
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(a)(5)(B)
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Employee Letter (incorporated by reference to Exhibit 99.2 to the Schedule TO-C, dated August 27,
2007, filed by Acer Inc. and Galaxy Acquisition Corp.).*
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(a)(5)(C)
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Investor Update: Strategic Transactions August 27, 2007 (Slide Presentation) (incorporated by
reference to Exhibit 99.3 to the Schedule TO-C, dated August 27, 2007, filed by Acer Inc. and
Galaxy Acquisition Corp.).*
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(a)(5)(D)
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Investor Update: Strategic Transactions August 27, 2007 (Script) (incorporated by reference to
Exhibit 99.4 to the Schedule TO-C, dated August 27, 2007, filed by Acer Inc. and Galaxy
Acquisition Corp.).*
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(a)(5)(E)
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Summary Advertisement published in the Wall Street Journal on September 4, 2007.*
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(a)(5)(F)
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Press release of Parent dated September 5, 2007 — Acer Commences Cash Tender Offer for Gateway,
Gateway Announces Sales of Professional Business.*
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(a)(5)(G)
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Press release of Parent dated
October 2, — Acer announces extension of Tender Offer for Gateway allowing the Committee on Foreign Investment in the U.S. to
complete its review process.*
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(a)(5)(H)
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Letter dated October 2, 2007, from Parent to the Company stockholders.
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(b)(1)
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Commitment Letter for up to NTD 19.8 billion (USD 600 Million equivalent) loan facility, dated
September 20, 2007, between Parent and Citibank, N.A., Tapei Branch.*
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(d)(1)
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Agreement and Plan of Merger, dated August 27, 2007, among Acer Inc., Galaxy Acquisition Corp.
and Gateway, Inc.*
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(d)(2)
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Non-Disclosure Agreement, dated August 3, 2007, between Gateway, Inc. and Acer Inc.*
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(d)(3)
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Exclusivity Agreement, dated as of August 17, 2007, between Gateway, Inc. and Acer Inc.*
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(d)(4)
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Form of Tender and Support Agreement (attached as Exhibit B to Exhibit (d)(1) hereto).*
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(d)(5)
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Tender and Support Agreement, dated August 27, 2007, among Acer Inc., Galaxy Acquisition Corp.
and Avalon Capital Group, LLC.*
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(g)
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None.
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(h)
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None.
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* Previously filed
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