Exhibit (a)(45)
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Supplement No. 3 Dated April 25, 2006
Relating to the Amended and Restated Offer to Purchase
Dated May 24, 2005, as Amended
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XXXX XXXXX TRUST NO. 1B
Has Amended Its Offer to Purchase for Cash
Up to 1,620,000 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, AUGUST 15, 2006, 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:
[GRAPHIC OMITTED]
MACKENZIE PARTNERS, INC.
The following information amends and supplements the Amended and Restated Offer
to Purchase dated May 24, 2005 (the "Restated Offer to Purchase"), as amended by
the Supplement dated September 13, 2005 relating to the Restated Offer to
Purchase (the "First Supplement") and the Supplement No. 2 dated January 3, 2006
relating to the Restated Offer to Purchase, as amended (the "Second
Supplement"), of the Xxxx Xxxxx Trust No. 1B, an irrevocable grantor trust
domiciled and administered in South Dakota (the "Trust", and also referred to
herein as "we," "our" or "us"), pursuant to which the Trust is offering to
purchase up to 1,620,000 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 Trust, 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
Restated Offer to Purchase, as amended (the "Third Supplement"), the Second
Supplement, the First Supplement, the Restated 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 Restated 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
Second Supplement, the First Supplement, the Restated Offer to Purchase and the
letter of transmittal and terms not defined herein which are defined in the
Restated Offer to Purchase have the meanings ascribed to them in the Restated
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 information regarding NRL's adoption of a new poison pill set forth
below in this 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, August 15, 2006, unless further extended.
Why did you extend the expiration date for the offer?
In order to halt the offer, NRL's Board of Directors has adopted a series
of stockholder rights plans, or poison pills, which are required by federal
law to expire no later than 120 days after the issuance of rights under
each plan. The first poison pill was adopted by NRL's Board of Directors in
September of 2004 and expired on January 21, 2005, the second poison pill
was adopted on January 18, 2005 and expired on May 18, 2005, the third
poison pill was adopted on May 13, 2005 and expired on September 11, 2005,
the fourth poison pill was adopted on September 1, 2005 and expired on
December 23, 2005 and the fifth poison pill was adopted on December 21,
2005 and expired on April 17, 2006. Our offer was scheduled to expire on
April 25, 2006. NRL's board has now adopted a sixth poison pill, virtually
identical to the previous ones. This sixth poison pill will expire on
August 10, 2006. The validity of the sixth 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 a poison pill continues 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 the poison pill order upholding the validity of NRL's first
poison pill. We filed an appeal of the poison pill order to the United
States Court of Appeals for the Fourth Circuit. The appeals court dismissed
our appeal on January 25, 2005, with permission to refile our appeal once
all matters in the litigation have been resolved at the trial court level.
In November and December of 2005, NRL and we filed motions for summary
judgment with the trial court with respect to the matters on which the
trial court did not rule in its poison pill order, and those motions are
scheduled for oral argument in court on April 28, 2006. We have extended
the expiration date for our offer to preserve our offer while we continue
to seek a final judgment in our favor with respect to NRL's sixth poison
pill and other matters involved in the litigation.
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, subject to proration
if more shares have been tendered in the Offer than we have offered to buy.
See "THE OFFER -- Section 5."
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."
What are the new business addresses for you and parties related to you?
In the Restated Offer to Purchase, we provided you with information
regarding us and our trustees and certain other related parties. The
business addresses for us and certain of those related parties has changed.
Our new business address, and the new business address for the Evergreen
Trust, the Xxxxx X. Xxxxxxx Trust, the Xxxx X. Xxxxxxx Trust and the
Xxxxxxx Xxxx Indies Trust, is: c/o Badlands Trust Company, LLC, c/o Alaska
First Bank & Trust, Attention: Xxx Xxxxx, 0000 X Xxxxxx, Xxxxxxxxx, Xxxxxx
00000. The new business address for Badlands Trust Company, LLC, the Xxxxxx
Trust and the Xxxxxxx Trust is: c/o Alaska First Bank & Trust, Attention:
Xxx Xxxxx, 0000 X Xxxxxx, Xxxxxxxxx, Xxxxxx 00000. The new business for Xxx
Xxxxx is: 0000 X Xxxxxx, Xxxxxxxxx, Xxxxxx 00000.
How many shares have been tendered in response to your offer?
As of the close of business on April 21, 2006, 25,998 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, an
Amendment No. 4 to Schedule TO dated October 26, 2004, an Amendment No. 5 to
Schedule TO dated November 5, 2004, an Amendment No. 6 to Schedule TO dated
January 25, 2005, an Amendment No. 7 to Schedule TO dated May 24, 2005, an
Amendment No. 8 to Schedule TO dated September 13, 2005, an Amendment No. 9 to
Schedule TO dated January 3, 2006 and an Amendment No. 10 to Schedule TO dated
April 25, 2006, 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
April 25, 2006
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:
[GRAPHIC OMITTED]
MACKENZIE PARTNERS, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (Call Collect)
or
(000) 000-0000 (Toll Free)
E-MAIL: xxxxx@xxxxxxxxxxxxxxxxx.xxx
