Exhibit (a)(21)
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Supplement No. 3 Dated October 26, 2004
Relating to the Offer to Purchase Dated September 10, 2004, as Amended
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XXXX XXXXX TRUST NO. 1B
and
XXXXXX XXXXXXX TRUST NO. 1B
Have Amended Their Offer to Purchase for Cash
Up to 1,825,000 Outstanding Shares of Common Stock
of
XXXXXXXXX XXXXXX REAL ESTATE INCOME FUND INC.
at
$19.89 Net Per Share
THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN EXTENDED, AND WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON TUESDAY, JANUARY 25, 2005, UNLESS THE OFFER IS
FURTHER EXTENDED.
THE OFFER IS NOT CONDITIONED UPON THE RECEIPT OF FINANCING OR UPON ANY MINIMUM
NUMBER OF SHARES BEING TENDERED. THE OFFER IS SUBJECT TO CERTAIN CONDITIONS. SEE
"THE OFFER -- SECTION 14."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THIS TRANSACTION OR PASSED UPON THE
MERITS OR FAIRNESS OF THIS TRANSACTION OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THE INFORMATION CONTAINED IN THE OFFER OR THIS SUPPLEMENT. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
IMPORTANT
Any shareholder desiring to tender all or any portion of the shareholder's
shares should either:
|X| Request the shareholder's broker, dealer, commercial bank, trust
company or other nominee to effect the transaction for the
shareholder. A shareholder whose shares are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee must
contact such broker, dealer, commercial bank, trust company or other
nominee if the shareholder desires to tender such shares; or
|X| Complete and sign the letter of transmittal (or a facsimile thereof)
in accordance with the instructions in the letter of transmittal, have
the shareholder's signature guaranteed if required by Instruction 1 to
the letter of transmittal, mail or deliver the letter of transmittal
(or such facsimile), or, in the case of a transfer effected pursuant
to the book-entry transfer procedures set forth in "THE OFFER --
Section 7," transmit an "agent's message" (as defined in "THE OFFER --
Section 6"), and any other required documents to the depositary and
either deliver the certificates for such shares to the depositary
along with the letter of transmittal (or such facsimile) or deliver
the shares pursuant to the book-entry transfer procedures set forth in
"THE OFFER -- Section 7."
If a shareholder desires to tender shares and the share certificates are not
immediately available, or the procedure for book-entry transfer cannot be
completed on a timely basis, or time will not permit all required documents to
reach the depositary prior to the "expiration date" (as defined herein), then
the tender may be effected by following the procedure for guaranteed delivery
set forth in "THE OFFER -- Section 7."
Questions and requests for assistance may be directed to MacKenzie Partners,
Inc., the information agent, at the address and telephone number set forth on
the back cover of this offering document. Additional copies of this offering
document, the letter of transmittal, the notice of guaranteed delivery and other
related materials may be obtained from the information agent.
THE INFORMATION AGENT FOR THIS OFFER IS:
MACKENZIE PARTNERS, INC.
[GRAPHIC OMITTED]
The following information amends and supplements the Offer to Purchase dated
September 10, 2004 (the "Offer to Purchase"), as amended by the Supplement dated
October 1, 2004 relating to the Offer to Purchase (the "First Supplement") and
the Supplement No. 2 dated October 14, 2004 relating to the Offer to Purchase
(the "Second Supplement"), of the Xxxx Xxxxx Trust No. 1B, an irrevocable
grantor trust domiciled and administered in South Dakota (the "Lola Trust") and
the Xxxxxx Xxxxxxx Trust No. 1B, an irrevocable grantor trust domiciled and
administered in South Dakota (the "Xxxxxx Trust" and, together with the Lola
Trust, the "Trusts" and also referred to herein as "we," "our" or "us"),
pursuant to which the Trusts are offering to purchase up to 1,825,000 of the
outstanding shares of common stock, par value $0.0001 per share (the "shares")
of Xxxxxxxxx Xxxxxx Real Estate Income Fund Inc., a Maryland corporation
("NRL"), not owned by the Trusts, at a price of $19.89 per share, net to the
seller in cash (subject to applicable withholding of United States federal,
state and local taxes), without interest, upon the terms and subject to the
conditions set forth in this Supplement No. 3 to the Offer to Purchase, as
amended (the "Third Supplement"), the Second Supplement, the First Supplement,
the Offer to Purchase and the related letter of transmittal (which, together
with any amendments or supplements thereto, collectively constitute the
"Offer").
Except as otherwise set forth in this Third Supplement, the terms and conditions
set forth in the Second Supplement, the First Supplement, the Offer to Purchase
and the letter of transmittal are applicable in all respects to the Offer. The
information set forth below should be read in conjunction with the First
Supplement, the Offer to Purchase and the letter of transmittal and terms not
defined herein which are defined in the Offer to Purchase have the meanings
ascribed to them in the Offer to Purchase.
QUESTIONS AND ANSWERS
How have you amended the offer?
We are amending our offer to extend the expiration date and to provide you
with the additional information regarding the offer set forth below in this
Third Supplement. We have not changed the number of shares we are offering
to purchase, the offer price, the procedures for tendering and withdrawing
shares or any of the other terms of our offer other than the expiration
date.
What is the new expiration date for the offer?
We are extending the expiration date for the offer to 5:00 P.M., New York
City Time on Tuesday, January 25, 2005, unless further extended.
Why did you extend the expiration date for the offer?
We are involved in litigation with NRL regarding our offer. Unless we
obtain a final court judgment ruling in our favor with respect to certain
matters that are the subject of this litigation, we do not expect to
consummate our offer. On October 22, 2004, the court issued a Memorandum
Opinion and Declaratory Judgment Order upholding the validity of NRL's
poison pill, which we refer to as the "poison pill order." We expect to
appeal the poison pill order to the United States Court of Appeals for the
Fourth Circuit. We have extended the expiration date for our offer to
preserve our offer while we pursue this appeal and seek a final judgment in
our favor with respect to NRL's poison pill and other matters involved in
the litigation.
Can you extend the offer again?
We may, but are not required to, extend the offer again depending on the
results of our attempt to appeal the poison pill order and to seek a final
judgment in our favor with respect to NRL's poison pill and other matters
involved in our litigation with NRL. We may also extend the offer in our
discretion for other reasons, and we will extend the offer again if the
rules of the Securities and Exchange Commission require us to do so. If we
extend our offer again, we will make a public announcement of the extension
by no later than 9:00 a.m., New York City time, on the next business day
after the day on which our offer was scheduled to expire. See "THE OFFER -
Section 5."
What actions have you and NRL taken in the litigation between you and NRL?
On September 23, 2004, NRL announced that its board authorized the
commencement of a lawsuit against us in the United States District Court
for the District of Maryland, seeking to enjoin us from consummating our
offer on the basis that we allegedly made material false statements and
omissions in our Offer to Purchase. The commencement of litigation against
us was one of a series of steps designed to defeat our offer taken by NRL's
board on September 23, 2004, including:
|X| recommending that NRL's shareholders reject our offer and not tender
their shares to us for purchase;
|X| issuing 139,535 shares to Xxxxxxxxx Xxxxxx, LLC, a sub-adviser to NRL,
for $21.50 per share and an aggregate of $3,000,002.50, pursuant to a
common stock purchase agreement;
|X| adopting resolutions effective immediately after the issuance of
shares to Xxxxxxxxx Xxxxxx, LLC pursuant to which it is intended that
NRL would be subject to the Maryland Control Share Acquisition Act as
well as the Maryland Business Combination Act;
|X| authorizing NRL to commence an issuer tender offer for 943,704 shares
at a price of $20.00 per share, even though the NRL board recommended
that shareholders not tender their shares in the issuer tender offer;
and
|X| adopting a "poison pill" or Rights Agreement between NRL and the Bank
of New York as Rights Agent, and authorizing a declaration of a
dividend of rights under that agreement.
We responded to these defensive measures by filing counter-claims against
NRL with the court on October 6, 2004, seeking, among other things, to
invalidate the poison pill and NRL's attempt to apply Maryland's control
share statute to us and our offer. We also seek in our counterclaims to
prevent the consummation of NRL's self tender on the basis that NRL's self
tender materials contained material misstatements and omissions. NRL filed
papers with the court on October 11, 2004, arguing that NRL's defensive
actions are permitted under applicable law and raising for the first time
an argument that our ownership of more than 3% of NRL's outstanding voting
stock violates the Investment Company Act of 1940. The court held a hearing
on October 13, 2004, at which the court heard arguments from counsel for
NRL and us.
On October 22, 2004, the court issued the poison pill order upholding the
validity of NRL's poison pill. The court did not rule on the applicability
of the Maryland Control Share Acquisition Act, but commented that "it would
seem unfair to allow NRL to invoke [the control share act] against the
Trusts under these circumstances." In addition, the court did not address
whether the Trusts' ownership of more than 3% of the Fund's shares violated
the Investment Company Act of 1940. A copy of the poison pill order is
attached as Exhibits a(25) and a(26) to Amendment No. 4 to the Schedule TO
we have filed with the SEC.
We expect to appeal the poison pill order to the United States Court of
Appeals for the Fourth Circuit in order to obtain a final judgment in our
favor invalidating NRL's poison pill. We also intend to continue to seek to
have the court enter a final judgment in our favor with respect to the
other matters involved in our litigation with NRL, including the
application of Maryland's control share act to us and our offer and NRL's
claim that our ownership of more than 3% of NRL's outstanding voting stock
violates the Investment Company Act of 1940. In light of this court
activity, we elected to extend the offer to 5:00 p.m. New York City time on
Tuesday January 25, 2005.
Will you accept shares tendered in the offer for payment if you are not
successful in obtaining a court ruling against NRL?
Each of the defensive measures taken by NRL's board on September 23, 2004
will prevent one or more of the conditions to our offer from being met. See
"THE OFFER - Section 14." We do not intend to rely on the announcement,
commencement or consummation of NRL's self tender offer as grounds for
avoiding or delaying our obligation to accept for payment and pay for
tendered shares. However, we do not expect to accept for purchase the
shares tendered in our offer if we are not successful in obtaining a final
judgment against NRL invalidating the poison pill, finding that the
Maryland control share statute does not apply to us and our offer, and
finding that our ownership of more than 3% of NRL's outstanding voting
stock does not violate the Investment Company Act of 1940.
If I already tendered my shares in the offer, do I have to do anything now?
No. Shareholders who validly tendered their shares previously and have not
withdrawn them do not have to take any further action. If the Offer is
completed, these shares will be accepted for payment and the tendering
shareholders will receive the offer price of $19.89 per share in cash,
without interest, less any required withholding taxes.
Can I withdraw my previously tendered shares?
You may withdraw all or a portion of your tendered shares at any time prior
to the expiration date of our offer. Further, if we have not agreed to
accept your shares for payment within 60 days of the commencement of the
offer, you can withdraw them at any time after that 60-day period until we
do accept your shares for payment. Once shares are accepted for payment,
they cannot be withdrawn. See "THE OFFER -- Section 8."
How do I withdraw previously tendered shares?
To withdraw shares, you must deliver a written notice of withdrawal with
the required information to the depositary while you still have the right
to withdraw the shares. If you have tendered your shares by giving
instructions to a bank, broker, dealer, trust company or other nominee, you
must instruct them to arrange for the withdrawal of your shares. See "THE
OFFER -- Section 8."
How many shares have been tendered in response to your offer?
As of the close of business on October 25, 2004, 360,804 shares have been
tendered for sale to us in response to our offer.
Who can I contact if I have additional questions about the offer?
If you have questions or you need assistance, you should contact MacKenzie
Partners, Inc., the information agent for the offer, at (000) 000-0000
(collect) or (000) 000-0000 (toll-free).
MISCELLANEOUS
The Offer is not being made to, nor will tenders be accepted from or on behalf
of, holders of shares in any jurisdiction in which the making of the Offer or
the acceptance thereof would not comply with the laws of that jurisdiction. We
are not aware of any jurisdiction in which the making of the Offer or the tender
of shares in connection therewith would not be in compliance with the laws of
such jurisdiction. If we become aware of any state law prohibiting the making of
the Offer or the acceptance of shares pursuant thereto in such state, we will
make a good faith effort to comply with any such state statute or seek to have
such state statute declared inapplicable to the Offer. If, after such good faith
effort, we cannot comply with any such state statute, the Offer will not be made
to (nor will tenders be accepted from or on behalf of) the holders of shares in
such jurisdiction. In any jurisdiction where the securities, blue sky or other
laws require the Offer to be made by a licensed broker or dealer, the Offer
shall be deemed to be made on behalf of the Trusts by one or more registered
brokers or dealers which are licensed under the laws of such jurisdiction.
No person has been authorized to give any information or to make any
representation on our behalf not contained in the Offer and, if given or made,
that information or representation must not be relied on as having been
authorized.
We filed with the SEC a Schedule TO dated September 10, 2004, an Amendment No. 1
to Schedule TO dated October 1, 2004, an Amendment No. 2 to Schedule TO dated
October 7, 2004, an Amendment No. 3 to Schedule TO dated October 14, 2004 and an
Amendment No. 4 to Schedule TO dated October 26, 2004 under Exchange Act Rule
14d-3, together with exhibits, furnishing additional information with respect to
the Offer, and may file additional amendments thereto. That schedule and any
amendments thereto, including exhibits, may be examined and copies may be
obtained from the offices of the SEC in the same manner as discussed in "THE
OFFER -- Section 12" with respect to information concerning NRL.
XXXX XXXXX TRUST NO.1B
XXXXXX XXXXXXX TRUST NO.1B
October 26, 2004
Facsimile copies of the letter of transmittal, properly completed and duly
executed, will be accepted. The letter of transmittal, certificates for shares
and any other required documents should be sent or delivered by each shareholder
of NRL or his or her broker, dealer, commercial bank, trust company or other
nominee to the depositary at one of its addresses set forth below:
The Depositary for the Offer is:
The Colbent Corporation
By Mail: By Overnight Courier: By Hand:
The Colbent Corporation The Colbent Corporation The Colbent Corporation
Attn: Corporate Actions Attn: Corporate Actions Attn: Corporate Actions
POB 859208 000 Xxx Xxxxx Xxxxx 000 Xxx Xxxxx Xxxxx
Xxxxxxxxx XX 00000-0000 Xxxxxxxxx XX 00000 Xxxxxxxxx XX 00000
By Xxxxxxxxx:
(781-380-3388)
Confirm Facsimile Transmission:
(000-000-0000 Ext. 200)
Questions and requests for assistance may be directed to the information
agent at its address and telephone numbers listed below. Additional copies of
this Supplement, the Offer to Purchase, the letter of transmittal and other
tender offer materials may be obtained from the information agent, and will be
furnished promptly at our expense. You may also contact your broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
MACKENZIE PARTNERS, INC.
[GRAPHIC OMITTED]
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (Call Collect)
or
(000) 000-0000 (Toll Free)
E-MAIL: xxxxx@xxxxxxxxxxxxxxxxx.xxx
