Gateway Inc - Amended Statement of Ownership: Solicitation (SC 14D9/A)
10 October 2007 - 6:28AM
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. 6)
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. 6 (this
Amendment No. 6
) 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
), as amended and supplemented by Amendment No. 5 thereto filed with the SEC
on October 5, 2007 (
Amendment No. 5
and, collectively with the Initial
Schedule 14D-9, Amendment No. 1, Amendment No. 2, and Amendment No. 3, and Amendment No. 4, 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. 6,
except that such information is hereby amended and supplemented to the extent specifically provided
herein.
Item 8.
Additional Information.
Item 8 of the Schedule 14D-9 is hereby amended and supplemented by adding
the following new subsection (n) thereof:
2
(n) Purchase of Packard Bell Shares.
On
October 8, 2007 and on October 9, 2007, respectively, Gateway issued a press release and filed with the SEC a Current
Report on Form 8-K reporting that on October 4, 2007, it had delivered a binding offer
letter to acquire all of the Packard Bell Shares from Mr. Hui and Clifford Holdings
Limited (
Clifford
), an entity controlled by Mr. Hui. A copy of the press release is
filed as Exhibit (e)(14) hereto and is incorporated herein by reference.
Gateway will pay
31 million (approximately $44 million) to acquire the Packard Bell
Shares pursuant to the terms and conditions of a purchase and sale agreement (the
Purchase Agreement
). Under the terms of the Purchase Agreement and a letter delivered
to Gateway by Mr. Hui and Clifford dated October 4, 2007, the parties have agreed to
work together in consultation with the Works Councils in France and the Netherlands and
to secure antitrust and other regulatory approvals required for the signing and closing
of the transaction. Mr. Hui and Clifford have also agreed to exclusivity arrangements
and to exercise certain drag-along rights relating to the remaining outstanding Packard
Bell Shares. As part of the transaction, Gateway agreed to escrow the sum of $10
million as a deposit towards the purchase price of the Packard Bell Shares.
As part of a June 2006 agreement with Mr. Hui, Gateway was granted a right of first
refusal to acquire all of the Packard Bell Shares. On August 27, 2007, Gateway
announced that it intended to exercise such right of first refusal. Gateway expects
that the purchase price for the Packard Bell Shares and Gateways other costs and
expenses associated with the transactions contemplated by the Purchase Agreement,
including the $10 million escrow deposit, will be funded by Acer in accordance with
Acers obligations under the Merger Agreement. The foregoing description of the
Purchase Agreement is qualified in its entirety by reference to the complete terms and
conditions of the Purchase Agreement, which will be filed if required by applicable
securities laws following the execution of the Purchase Agreement by the parties.
In connection with Gateways acquisition of eMachines, Inc. from Mr. Hui in March 2004,
Gateway and Mr. Hui entered into an indemnification agreement, dated as of March 11,
2004 (the
Indemnification Agreement
) and an indemnification escrow agreement, dated as
of March 11, 2004 (the
Indemnification Escrow Agreement
), pursuant to which Gateway
deposited 10,000,000 shares of Gateway common stock received by Mr. Hui in the
acquisition into an escrow account (
Escrowed Shares
). Effective as of October 4,
2007, Gateway and Mr. Hui entered into amendments to the Indemnification Agreement and
the Indemnification Escrow Agreement (collectively, the
Amendments
). Pursuant to the
terms of the Amendments, Gateway agreed to release the Escrowed Shares and any proceeds
thereof to Mr. Hui following the consummation of the transactions contemplated by the
Merger Agreement.
Item 9.
Exhibits
.
Item 9 of the Schedule 14D-9 is hereby amended and supplemented by adding the following in
numerical order:
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Exhibit No.
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Description
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(e)(14)
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Press release issued by Gateway on October 8, 2007
(incorporated by reference to Exhibit 99.1 to the Current
Report on Form 8 K filed by Gateway with the SEC on October
9, 2007 (File No. 1-14500))
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3
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 9, 2007
4
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