Gateway Inc - Amended Statement of Ownership: Solicitation (SC 14D9/A)
October 05 2007 - 5:30PM
Edgar (US Regulatory)
UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Rule 14d-101)
Solicitation/Recommendation Statement under Section 14(d)(4)
of the Securities Exchange Act of 1934
(Amendment No. 5)
GATEWAY, INC.
(Name of Subject Company)
GATEWAY, INC.
(Name of Person(s) Filing Statement)
Common Stock, par value $0.01 per share
(including associated Preferred Share Purchase Rights)
(Title of Class of Securities)
367626108
(CUSIP Number of Class of Securities)
J. Edward Coleman
Chief Executive Officer
7565 Irvine Center Drive
Irvine, California 92618
(949) 471-7000
(Name, address and telephone number of person authorized to receive
notices and communications on behalf of the person(s) filing statement)
With copies to:
Brian J. McCarthy, Esq.
David C. Eisman, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
(213) 687-5000
[ ]
Check the box if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
This Amendment No. 5 (this
Amendment No. 5
) amends and supplements the
solicitation/recommendation statement on Schedule 14D-9 initially filed with the Securities and
Exchange (the
SEC
) on September 4, 2007 (the
Initial Schedule 14D-9
), as amended and
supplemented by Amendment No. 1 thereto filed with the SEC on September 5, 2007 (
Amendment No.
1
), as amended and supplemented by Amendment No. 2 thereto filed with the SEC on September 14,
2007 (
Amendment No. 2
), as amended and supplemented by Amendment No. 3 thereto filed with the SEC
on September 27, 2007 (
Amendment No. 3
), as amended and supplemented by Amendment No. 4 thereto
filed with the SEC on October 2, 2007 (
Amendment No. 4
and, collectively with the Initial
Schedule 14D-9, Amendment No. 1, Amendment No. 2, and Amendment No. 3, the
Schedule 14D-9
), by
Gateway, Inc., a Delaware corporation (
Gateway
), relating to the cash tender offer by Galaxy
Acquisition Corp. (
Acquisition Sub
), a Delaware corporation and a wholly owned subsidiary of Acer
Inc., a company organized under the laws of the Republic of China (
Acer
), disclosed in a Tender
Offer Statement on Schedule TO dated September 4, 2007 (as it may be amended from time to time, the
Schedule TO
) filed with the Securities and Exchange Commission (the
SEC
) on September 4, 2007,
to purchase all of the outstanding shares of common stock, $0.01 par value per share, of Gateway,
including the associated rights to purchase shares of Series B Junior Participating Preferred
Stock, $0.01 par value per share, of Gateway (the
Rights
), issued pursuant to the Rights
Agreement, dated as of January 19, 2000, as amended, between Gateway and UMB Bank, N.A., as rights
agent (such shares of common stock, together with the associated Rights, the
Shares
) at a price
of $1.90 per Share, net to the seller in cash, without interest thereon (the
Offer Price
), upon
the terms and subject to the conditions set forth in the Offer to Purchase dated September 4, 2007
(together with any amendments or supplements thereto, the
Offer to Purchase
), and the related
Letter of Transmittal (together with any amendments or supplements thereto, the
Letter of
Transmittal,
and together with the Offer to Purchase, the
Offer
).
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as of August 27,
2007 (together with any amendments or supplements thereto, the
Merger Agreement
), by and among
Acer, Acquisition Sub and Gateway. The Merger Agreement is filed as Exhibit (e)(1) to the Schedule
14D-9 and is incorporated in the Schedule 14D-9 by reference. The Merger Agreement provides, among
other things, for the making of the Offer by Acquisition Sub and further provides that, as soon as
practicable after the satisfaction or waiver of the conditions set forth in the Merger Agreement,
and upon the terms contained in the Merger Agreement and in accordance with the Delaware General
Corporation Law (the
DGCL
), Acquisition Sub will merge with and into Gateway (the
Merger
), the
separate corporate existence of Acquisition Sub shall cease, and Gateway will continue as the
surviving corporation and as a wholly owned subsidiary of Acer. In the Merger, the Shares issued
and outstanding immediately prior to the effective time of the Merger (other than Shares owned by
Gateway or any direct or indirect subsidiary of Gateway and any Shares owned by Acer, Acquisition
Sub, or any subsidiary of Acer or Acquisition Sub or held in the treasury of Gateway, all of which
will be cancelled for no consideration, and other than Shares, where applicable, held by
stockholders who are entitled to and who have properly perfected appraisal rights for such Shares
in respect of the Merger under the DGCL) will be converted into the right to receive an amount in
cash equal to the Offer Price.
All information in the Schedule 14D-9 is incorporated by reference in this Amendment No. 5,
except that such information is hereby amended and supplemented to the extent specifically provided
herein.
Item 8.
Additional Information.
Item 8(k) Pro Transaction of the Schedule 14D-9 is hereby amended and supplemented by adding
at the end of such Item the following paragraphs
(please refer to Amendment No. 1)
:
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On October 5, 2007, Gateway filed with the SEC a Current Report on Form 8-K reporting
that, pursuant to the Asset Purchase Agreement, it had completed the sale to Buyer of
certain assets of its Professional Division and that portion of its Consumer Direct
business engaged in selling products and services to small- to medium-sized businesses
in exchange for (i) the assumption of certain warranty, employee and other liabilities
by Buyer valued at approximately $70 million, (ii) a promissory note from Buyer in an
amount of approximately $6 million, and equal to the difference between the book value
of the transferred inventory and the book value of certain liabilities associated with
the transferred employees and (iii) 19.9% of the outstanding equity of MPC. As part of
the transaction, a significant portion of the employees of Gateways Professional
Division have joined Buyer and continue to work out of the North Sioux City, South
Dakota facility. The Buyer has also assumed Gateways ownership in its final assembly
facility (GCC) located in Nashville, Tennessee, and will take full responsibility for
this facility, including the assembly of Gateway Professional Division products produced
there.
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In connection with such transaction, on October 1, 2007, Gateway and Buyer entered into
a Transition Services Agreement pursuant to which Gateway has agreed to provide certain
transition services to Buyer during the seventeen week period following the date of the
Transition Services Agreement for a total fee of approximately $6.15 million, with
additional fees payable in the event that services are provided following such
seventeen-week period. The Transition Services Agreement also provides that Gateway
will buy and sell certain components on behalf of Buyer in the course of providing
transition services, including the procurement of components from component suppliers
and the sale of such components to original design manufacturers. The foregoing
descriptions of the Asset Purchase Agreement and the Transition Services Agreement are
qualified in their entirety by reference to the Asset Purchase Agreement and the form of
Transition Services Agreement contained in the Asset Purchase Agreement, a copy of which
is filed as Exhibit (e)(12) to the Schedule 14D-9 and is incorporated herein by
reference.
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Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding the following new
subsection (m) thereof:
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(m)
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Termination of the Credit Agreement.
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On October 4, 2007, Gateway filed with the SEC a Current Report on Form 8-K
reporting that, on September 28, 2007, Gateway terminated the Credit Agreement,
dated October 30, 2004 among it and certain of its subsidiaries as borrowers
(collectively, the Borrowers), certain other of its subsidiaries as guarantors
(such subsidiaries and the Borrowers, collectively the Credit Parties), General
Electric Capital Corporation (GE Commercial Finance) and the other lenders party
thereto (the Lenders). The Credit Agreement was terminated to facilitate the
previously announced sale of Gateways Professional Division and portions of
its Consumer Direct business to MPC Corporation, as well as in light of
the pending acquisition of Gateway by Acer.
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SIGNATURE
After due inquiry and to the best of its knowledge and belief, the undersigned certifies that
the information set forth in this statement is true, complete and correct.
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GATEWAY, INC.
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By:
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/s/ John P. Goldsberry
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Name:
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John P. Goldsberry
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Title:
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Senior Vice President and Chief Financial Officer
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Dated: October 5, 2007
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