Exhibit (a)(27)
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Supplement No. 4 Dated January 25, 2005
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 1,615,000 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, MAY 24, 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:
XXXXXXXXX PARTNERS, INC.
[GRPAHIC 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"), the
Supplement No. 2 dated October 14, 2004 relating to the Offer to Purchase, as
amended (the "Second Supplement") and the Supplement No. 3 dated October 26,
2004 relating to the Offer to Purchase, as amended (the "Third 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 1,615,000 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. 4 to the
Offer to Purchase, as amended (the "Fourth Supplement"), 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 Fourth Supplement, the terms and
conditions set forth in the Third Supplement, 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 Third Supplement, the Second Supplement, 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, reduce the number
of shares being sought, and to provide you with the additional information
regarding the offer set forth below in this Fourth Supplement. We have not
changed 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, May 24, 2005, unless further extended.
Why did you extend the expiration date for the offer?
In order to halt the offer, last September NRL's Board of Directors adopted
a shareholder rights plan or poison pill, which, as required by federal
law, expired on January 21, 2005. Our offer was scheduled to expire on
January 25, 2005. However, NRL's Board of Directors has now adopted a
second poison pill, virtually identical to the first one. The second poison
pill will expire on May 18, 2005. The validity of the second poison pill,
and whether NRL's Board of Directors can continue to adopt poison pills
indefinitely, are two of the issues in our litigation with NRL.
Because we cannot close the offer while NRL's poison pills continue to
exist, we do not expect to close the offer unless we are successful in our
litigation against NRL's poison pills as well as certain of the other steps
NRL has taken to halt the offer. On October 22, 2004, the federal court in
Maryland issued a Memorandum Opinion and Declaratory Judgment Order
upholding the validity of NRL's first poison pill, which we refer to as the
"poison pill order." We have filed an appeal of 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
second 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."
Why are you tendering for fewer shares?
We are seeking ownership of a majority of NRL's outstanding shares. Because
of NRL's issuer tender offer last fall, there are fewer outstanding shares
now, and, accordingly, we have reduced the number of shares we are seeking
to acquire. The number of shares we are offering to purchase, plus the
number of shares we already own, will be a majority of the shares currently
outstanding.
What happens if stockholders tender more than the reduced number of shares you
are willing to buy?
If stockholders tender more than the reduced number of shares that we are
willing to buy, we will purchase shares on a pro-rata basis. This means
that we will purchase the same ratio of shares from each tendering
stockholder. For example, if two shares are tendered for every share we
purchase in the offer, we will purchase 50% of the number of shares that
you tender. We will make adjustments to avoid purchases of fractional
shares.
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.
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. 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 have filed an appeal of 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 and NLR's adoption of the second poison pill, we elected to extend
the offer to 5:00 p.m. New York City time on Tuesday, May 24, 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,
as well as the adoption by the NRL board of the second poison pill on
January 18, 2005, 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 second 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.
What were the results of NRL's self tender offer?
According to Amendment No. 6 to NRL's Schedule TO filed by NRL with the
Securities and Exchange Commission on November 4, 2004, NRL's self tender
offer for up to 943,704 shares, including the associated common stock
purchase rights, at $20.00 net per share, expired at 12:00 Midnight, New
York City time, on Friday, October 29, 2004, and, based on the final count
by NRL's Depositary, The Bank of New York, 561,401 shares were tendered for
purchase for cash in NRL's self tender offer, representing approximately
11.9% of the total outstanding shares.
We did not tender any shares for purchase in NRL's self tender offer. As a
result of the purchase by NRL of 561,401 shares in its self tender offer,
the percentage of outstanding shares held by us has increased to 11.65% in
the aggregate based on 4,017,582 outstanding shares (4,157,116.626 shares
outstanding as of January 18, 2005, according the NRL's filings with the
SEC, other than the 139,535 issued shares to Xxxxxxxxx Xxxxxx, LLC on
September 22, 2004, which we believe were not validly issued). If the
139,535 shares issued by NRL to Xxxxxxxxx Xxxxxx, LLC on September 22, 2004
were validly issued, then our ownership would be 11.26% of the outstanding
shares.
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 time the shares are accepted for payment, after which 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 January 21, 2005, 261,025 shares had 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, an
Amendment No. 4 to Schedule TO dated October 26, 2004 and an Amendment No. 5 to
Schedule TO dated November 5, 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
January 25, 2005
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:
XXXXXXXXX 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
