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Mail Stop 3628
September 2, 2005
By Facsimile (703) 734-3199 and U.S. Mail
Lewis G. Schwartz, Esquire
General Counsel
Gartner, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, Connecticut 06902-7700
Re: Gartner, Inc.
Schedule TO-I
Filed on August 22, 2005
File No. 005-44921
Dear Mr. Schwartz:
We have the following comments on the above referenced
filing.
Please understand that the purpose of our review process is to
assist
you in your compliance with the applicable disclosure requirements
and to enhance the overall disclosure in your filing. We look
forward to working with you in these respects. We welcome any
questions you may have about our comments or on any other aspect
of
our review. Feel free to call us at the telephone number listed
at
the end of this letter.
Offer to Purchase
General
1. Refer to the expiration date in the first paragraph on the
cover
page. Rule 13e-4(f)(1) requires that the issuer tender offer
remain
open for at least twenty business days. Rule 13e-4(a)(3) defines
"business day" as the time period between 12:01 A.M. and 12:00
midnight Eastern Time. Since your offer ends at 9:00 P.M., New
York
City Time, on September 19, 2005, it does not appear that your
offer
complies with the time period mandated by Rule 13e-4(f)(1) and
must
be extended. Please revise your offer.
2. We note security holders will receive cash payment for validly
tendered options "promptly in [their] next available payroll cycle
after the closing of the Repurchase." Please advise us of the
basis
for your belief that payment to security holders in this manner is
consistent with the prompt payment requirements set forth in Rule
13e-4(f)(5) and Rule 14e-1(c). See Exchange Act Release 43069
(July
31, 2000) for additional guidance concerning an interpretation of
what timeframe is considered prompt.
Summary Term Sheet, page 1
Who is eligible to participate?, page 1
3. We note the categories of persons who are eligible to
participate
in the offer. Tell us whether there are current or former
employees
who hold options who are not eligible to participate under these
criteria and if so, please tell us why they have been excluded.
For
example, are there particular countries where you are not making
this
offer? Are there particular classes of employees that are not
eligible to participate in this offer?
How will Gartner and Mellon confirm that my election agreement
signature page was received?, page 4
4. We note that this disclosure, as drafted, only addresses option
holders employed in Brazil. Does this question only apply to
employees in Brazil? Will Gartner and Mellon need to confirm that
election agreement signature pages were received from employees in
countries other than Brazil? If so, revise the question to
clarify
this. If not, revise the answer to more clearly explain how
Gartner
and Mellon will confirm that an option holder`s election agreement
signature page was received for those not employed in Brazil.
Is there any tax consequence to my participation in the Repurchase
Program?, page 6
5. On page 6 you refer to the tax disclosure as a "general
summary."
Also, on page 32 you provide a "general summary" of the material
tax
consequences and state that the disclosure "is for general
information only." We believe these statements might suggest that
option holders may not rely on the description of material tax
consequences included in the offer document.
6. Either delete or provide an analysis supporting your reference
to
Treasury Department Circular 230 here and on page 32. In your
analysis, please address why you believe your disclosure
constitutes
a "covered opinion." First, the disclosure is being made by the
filing persons, none of whom, presumably, fall within the
definition
of "tax advisor" for purposes of the Circular. Second, it appears
that 31 CFR Part 10, 10.35(b)(2)(ii)(B)(3) specifically carves
out
written advice included in document required to be filed with the
Securities and Exchange Commission.
8. Conditions of the Repurchase Program, page 23
7. We note in the introduction that you will determine whether the
triggering of a condition "makes it inadvisable" to proceed with
the
offer. Please note that, when a condition is triggered and the
company decides to proceed with the offer anyway, we believe that
this constitutes a waiver of the triggered condition(s). You may
not
rely on this language to tacitly waive a condition of the offer by
failing to assert it. Please confirm your understanding on a
supplemental basis.
8. We note that you may "postpone" your acceptance and
cancellation
of any Eligible Option tendered for exchange if any of the listed
conditions occurred within your reasonable judgment. Be advised
that
Gartner may not postpone acceptance or cancellation other than as
a
result of an extension of the offer. All conditions to the offer,
other than those conditions dependent upon the receipt of
government
approvals, must be satisfied or waived prior to expiration of the
offer. Please revise your disclosure.
9. We note the condition regarding governmental approvals in the
first bullet point on page 24. We are unable to locate disclosure
of
required governmental approvals in your document. Please advise.
10. A tender offer may be conditioned on a variety of events and
circumstances, provided that they are not within the direct or
indirect control of the bidder and are drafted with sufficient
specificity to allow security holders to objectivity verify
whether
the conditions have been satisfied. In this regard, please delete
the references to "acts or omissions to act by [you]." Also,
clarify
the last bullet point located on page 25. We note that the
condition
includes both positive and negative effects on the business. In
addition, the references to your "prospects" in this bullet point
and in the fifth bullet point on page 24, the "contemplated future
conduct" in the fifth bullet point on page 25, and the
"contemplated
benefits" in the fourth bullet point on page 24 are unclear.
Please
revise.
11. We refer you to the disclosure in the last paragraph of this
section that your failure at any time to exercise any of the offer
conditions will not be deemed a waiver of such conditions. This
language suggests that even once a condition is triggered, the
company can decide whether it is advisable to proceed with the
offer.
We agree. However, when a condition is triggered and the company
decides to proceed with the offer anyway, we believe that this
constitutes a waiver of the triggered condition(s). You may not
rely
on this language to tacitly waive a condition of the offer by
failing
to assert it. Please revise.
16. Extension of Repurchase Program; Termination; Amendment
12. We note that you disclose that any amendment to the Repurchase
Program will be disseminated promptly to option holders in a
manner
reasonably designed to inform option holders of such change. We
also
note that you disclose that you have no obligation to publish,
advertise or otherwise communicate any such dissemination. Please
reconcile these statements. We remind you that depending on the
materiality of the new information, you may be required to
disseminate materials as required by Rule 13e-4(e)(3).
Closing
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be
certain that they have provided all information investors require
for
an informed decision. Since the issuer is in possession of all
facts
relating to its disclosure, it is responsible for the accuracy and
adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide,
in writing, a statement from Gartner, Inc. acknowledging that:
* the issuer is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the issuer may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
As appropriate, please amend your document in response to
these
comments. You may wish to provide us with marked copies of the
amendment, if required, to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested supplemental information.
Detailed cover letters greatly facilitate our review.
Please file your cover letter on EDGAR. Please understand
that
we may have additional comments after reviewing your amendment and
responses to our comments. In addition, depending upon your
response
to these comments, a supplement may need to be sent to security
holders.
Please direct any questions to me at (202) 551-3456. You
may
also contact me via facsimile at (202) 772-9203. Please send all
correspondence to us at the following ZIP code: 20549.
Very truly
yours,
Jeffrey B.
Werbitt
Attorney-Advisor
Office of Mergers &
Acquisitions
cc: Larry W. Sonsini, Esquire
Robert Sanchez, Esquire
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94303
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Lewis G. Schwartz, Esquire
Gartner, Inc.
August 2, 2005
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