SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(AMENDMENT NO. 1)
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
---------------- ----------------
COMMISSION FILE NUMBER 0-22784
GATEWAY 2000, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 42-1249184
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
610 GATEWAY DRIVE
P.O. BOX 2000
NORTH SIOUX CITY, SOUTH DAKOTA 57049
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (605) 232-2000
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes _X_ No ___
As of August 5, 1996, there were 76,618,727 shares of the Common Stock
of the Company, $.01 par value per share, outstanding. As of August 5, 1996,
there were no shares of the Company's Class A Common Stock, $.01 par value per
share, outstanding.
EXPLANATORY NOTE:
On August 7, 1996, Gateway 2000 Inc. (the Company), pursuant to Rule 24b-2
promulgated under the Securities Exchange Act of 1934, filed an Application for
Confidential Treatment of specific portions of certain documents filed as
Exhibits to the Company's Quarterly Report on Form 10-Q for the quarterly period
ending June 30, 1996. In response to comments received from the staff of the
Securities and Exchange Commission, the Company revised its request for
confidential treatment. A revised redacted form of Exhibit 10.1 is filed with
this Form 10-Q/A. The documents previously filed as Exhibits 10.2 and 10.3 have
been omitted from the Form 10-Q, as amended by this Form 10-Q/A, and the
subsequent Exhibits have been renumbered accordingly.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) EXHIBITS:
EXHIBIT
NO. DESCRIPTION OF EXHIBITS
------- -----------------------
10.1 Amendment No. 2 to the License Agreement dated May 1, 1995 between
Gateway 2000, Inc. and Microsoft Corporation. [Confidential
treatment requested as to certain portions which are indicated by a
legend and filed separately with the Securities and Exchange
Commission with an Application for Confidential Treatment pursuant
to Rule 24b-2 promulgated under the Securities Exchange Act of 1934,
as amended.] Prior Amendment No. 1 to the underlying agreement and
the underlying agreement are filed together as Exhibit 10.17 to the
Company's Annual Report on Form 10-K for the year ending December
31, 1995.
10.2 Gateway 2000, Inc. 1996 Long-Term Incentive Equity Plan. [Filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-8 (No.
333-08837) and incorporated by reference herein.]
10.3 Form of Agreement with respect to the 1996 Long-Term Incentive
Equity Plan. [Filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-8 (No. 333-08837) and incorporated by reference
herein.]
10.4 Gateway 2000, Inc. 1996 Non-Employee Directors Stock Option Plan.
[Filed as Exhibit 4.3 to the Company's Registration Statement on
Form S-8 (No. 333-08837) and incorporated by reference herein.]
10.5 Form of Agreement with respect to the 1996 Non-Employee Directors
Stock Option Plan. [Filed as Exhibit 4.4 to the Company's
Registration Statement on Form S-8 (No. 333-08837) and incorporated
by reference herein.]
27.1 Financial Data Schedule
(b) REPORTS ON FORM 8-K:
None.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
GATEWAY 2000, INC.
Date: March 31, 1997 By: /s/ David J. McKittrick
David J. McKittrick
Senior Vice President, Chief Financial
Officer and Treasurer (authorized
officer and chief accounting officer)
The following trademarks of other companies appear in this Report: Intel,
Microsoft, Windows 95(R) and Pentium. These and any other product or brand names
contained herein are trademarks or registered trademarks of their respective
owners.
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND ARE THE SUBJECT OF A REQUEST FOR
CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED; UNREDACTED VERSION ON FILE WITH THE SECURITIES AND EXCHANGE
COMMISSION
AMENDMENT NO. 2
TO THE LICENSE AGREEMENT
BETWEEN
GATEWAY 2000 AND MICROSOFT CORPORATION
DATED MAY 1, 1995 CONTRACT NO. [*]
This Amendment ("Amendment") to the License Agreement ("Agreement") between
MICROSOFT CORPORATION ("MS") and GATEWAY 2000 ("GATEWAY") dated May 1, 1995, is
made and entered into this [*].
1. The attached Exhibit C2 shall replace the existing Exhibit C2.
2. The attached Product information box shall replace the existing Product
information box in Exhibit C1.
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
6. Windows(R) EN, DU, (h), (i), (j) Upgrade Royalty Uplift Royalty US$[*]
NT- FF, D, J (K) US$N/A US$[*]
Workstation
Version 3.51 Beginning [*] estimated quarterly
(x86/Pentium volumes of Windows NT-Workstation: [*]
Compatible
Version)
</TABLE>
3. The attached Additional Provision (k) shall be added to the ADDITIONAL
PROVISIONS KEY -- WINDOWS 95, WINDOWS, WINDOWS FOR WORKGROUPS, MS-DOS AND
WINDOWS NT-WORKSTATION Additional Provisions.
(k) For Customer Systems that include Windows NT-Workstation, and where at
the time of purchase, the end user requests MS-DOS or Enhanced Tools or
Windows or Windows for Workgroups ("Other OS Products") to be included with
that Customer System, GATEWAY may include one or more Other OS Products
preinstalled on the Customer System. For each Other OS Product distributed
with such Customer Systems, GATEWAY shall pay an additional royalty equal to
[*] the royalty for such Other OS Product stated in Exhibit C1.
4. The attached Exhibit C4 shall be added to the Agreement.
5. The following shall be added immediately after Section 2(a)(ii):
"and (iii) with respect to Product software in Sections 2(a)(i) and
2(a)(ii) and subject to Section 6(c), license GATEWAY's customers pursuant
to GATEWAY's end user license agreement ("EULA")."
GATEWAY's customers pursuant to GATEWAY's end user license agreement
("EULA").
6. The attached Section 4(b)(ii) shall supersede the existing Section
4(b)(ii):
MS warrants that the Product software if preinstalled on Customer Systems
by GATEWAY in accordance with the instructions included in the Product OPK
or if manufactured by the Authorized Replicator in accordance with the
instructions included in the Product ARK (Authorized Replicator Kit), as
applicable, will perform substantially in accordance with the
specifications contained in the Product documentation for a period of [*]
shipment of the Product software to GATEWAY's customer. Any implied
warranties on the Product software are limited [*] from shipment of the
Product to GATEWAY's customer.
[*] CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
MS and its suppliers' entire liability and GATEWAY's exclusive remedy for
breach of the foregoing remedy shall be (a) a credit of the royalty paid to
MS for the Product software under Section 3 or (b) GATEWAY's cost to repair
or replace the defective Product software, but not to exceed the royalty
paid to MS for the Product software under Section 3. The limited warranty
above is void if failure of the Product software has resulted from
accident, abuse, or misapplication. Any replacement Product software will
be warranted for the remainder of the original warranty [*] whichever is
longer.
The parties acknowledge that the above limited warranty and remedies
reflect the limited warranty and remedies included in the current EULA for
the USA version of most Products as available from Authorized
Replicator(s). The above limited warranty and remedies shall be deemed
automatically amended to reflect different limited warranties and remedies
which may be included in EULA(s) for future licensed releases of the USA
version of Products and/or non-USA versions of Products, as applicable, as
available from Authorized Replicator(s).
7. Except as provided herein, all terms of the agreement shall remain in full
force and effect. In the event of inconsistencies between the Agreement and
this amendment, the terms and conditions of the Amendment shall be
controlling.
This Amendment shall be null and void unless signed by GATEWAY and returned
to MS [*] by GATEWAY.
IN WITNESS WHEREOF, the parties have executed this Amendment to the Agreement
as of the date set forth above. All signed copies of this Amendment to this
Agreement shall be deemed originals. This Amendment does not constitute an
offer by MS. This Amendment shall be effective upon execution on behalf of
GATEWAY and MS by their duly authorized representatives.
MICROSOFT CORPORATION GATEWAY 2000, INC.
/s/BENGT AKELND /s/WILLIAM M. ELLIOTT
- --------------------------------- --------------------------------------
By By
Bendt Akelnd William M. Elliott
- --------------------------------- --------------------------------------
Name (Print) Name (Print)
Director, OEM Sales Sr. Vice President and General Counsel
- --------------------------------- --------------------------------------
Title Title
[*] [*]
- --------------------------------- --------------------------------------
Date Date
[*] CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
EXHIBIT C2
WINDOWS 95 UPGRADE - PER COPY
*If royalty rate and Maximum Number of Units of Product are not specified for
a particular Product, then such Product is not licensed under this Agreement.
**Language Key: EN = English, FF = France French, D = German
<TABLE>
<CAPTION>
LANGUAGE APPLICABLE ROYALTY/BASIS* MAXIMUM ADDED BY
PRODUCT NAME VERSION(S) ADDITIONAL NUMBER OF UNITS AMENDMENT
AND VERSION ** PROVISIONS OF PRODUCT* NUMBER
<S> <C> <C> <C> <C> <C>
Windows(r) EN, D, FF (a), (b), (c), [*] Copy N/A 1
95 (d), (e), (f), for English
Upgrade (g), (h), (i), version
[*] copy
for French and
German versions
</TABLE>
ROYALTY CALCULATION, ORDER, AND PAYMENT
1. GATEWAY agrees to pay MS the royalty rate set forth above for each copy of
Product distributed by GATEWAY.
ADDITIONAL PROVISIONS KEY
(a) GATEWAY agrees that it will not distribute Product until MS advises its
OEM customers generally that Customer Systems with Windows 95 may be
distributed.
(b) Notwithstanding anything to the contrary contained in Sections 2 and 6 of
the Agreement, GATEWAY shall distribute the Product only in the
form/packaging available from the Authorized replicator.
(c) Notwithstanding anything to the contrary contained in Sections 2 and 6 of
the Agreement, GATEWAY may distribute the Product only as an "upgrade"
provided by GATEWAY separate from a Customer System directly to an existing
authorized end-user of the Prior Product (as specified in the chart below)
distributed with any GATEWAY Customer System [*]
PRIOR PRODUCT PRODUCT
- ------------- -------
Windows 3.0, 3.1., 3.11 Windows 95 Upgrade
Windows for Workgroups 3.1, 3.11 Windows 95 Upgrade
(d) GATEWAY may only distribute the Product either (i) directly (without use
of dealers or other intermediaries) to end users, or (ii) as a mail order
fulfillment item directly (without use of dealers or other intermediaries) to
end users from GATEWAY or an MS designated fulfillment source.
(e) The packaging for the Product shall indicate that it is intended as an
"Upgrade" only (or similar wording) and not for use by a new customer.
(f) GATEWAY's license to distribute this Product shall expire [*]
(g) GATEWAY shall acquire the Product through one Authorized Replicator of
GATEWAY's choice. GATEWAY shall notify MS of the Authorized Replicator
through which GATEWAY will acquire the Product prior to placing the first
order for Product.
(h) GATEWAY agrees to provide Product Support at least comparable to that
provided for Product(s) supported by the industry in general. GATEWAY agrees
to provide MS[*] prior written notice of any substantive change in GATEWAY's
support policy for Windows 95.
(i) GATEWAY shall distribute [*] Product in Europe. Further, Product shall
not be advertised by GATEWAY and may only be offered after the sale of the
Customer System upon request of the customer as a means of customer
satisfaction.
[*] CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
EXHIBIT C4
SAMPLER PRODUCTS
<TABLE>
<CAPTION>
LANGUAGE APPLICABLE PER COPY LOCALIZATION ADDED BY
PRODUCT NAME AND VERSION(S) APM ADDITIONAL ROYALTY ADDITIONAL AMENDMENT
VERSION ** REQUIRED PROVISIONS * ROYALTY NUMBER
<S> <C> <C> <C> <C> <C> <C>
Games for EN Yes (a) [*] Not 2
Windows(R) Applicable
95
version 1.0
</TABLE>
*A Product is not licensed hereunder unless royalty rate(s) are indicated in
the Product table.
**Language Version Key: EN = USA English Only
"PER COPY" ROYALTY CALCULATION
For Product(s) specified as licensed for a particular Customer System on a
per copy basis in the Customer System table below:
(1) GATEWAY agrees to pay MS a royalty, at the applicable rate set forth
above, for each full or partial unit of Product licensed or distributed by
GATEWAY.
(2) In addition, GATEWAY agrees to pay MS the Localization Additional Royalty
specified above for each full or partial unit of localized (non-USA English)
versions of Product, if any, licensed or distributed by GATEWAY. Localized
versions are provided on an if and when available basis.
(3) Where multiple "Releases" (i.e., Update Releases, Version Releases or
Product Releases), language versions, or media versions (e.g., MS-DOS and
MS-DOS ROM) of a Product are licensed for the same Customer Systems, GATEWAY
may distribute only one copy of Product software in addition to one copy of
Preinstalled Product Software in one language and Release for use on each
such Customer System.
ADDITIONAL PROVISIONS KEY
(a)
GATEWAY agrees to provide Product Support at least comparable to that
provided for Product(s) supported by the industry in general. GATEWAY agrees
to provide MS with [*] prior written notice of any substantive change in
GATEWAY's support policy for Windows 95.
CUSTOMER SYSTEMS
GATEWAY's Customer Systems shall be GATEWAY's assembled computer systems
which (i) are configured for use only by a single user; and (ii) include at
least a CPU, motherboard, power supply, hard disk drive, CD-ROM drive, and
case.
[*] CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
