SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
(Rule 14d-100)
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 2)
NEUBERGER BERMAN REAL ESTATE INCOME FUND INC.
(Name of Subject Company (Issuer))
LOLA BROWN TRUST NO. 1B
ERNEST HOREJSI TRUST NO. 1B
(Name of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $0.0001 PER SHARE
(Title of Class of Securities)
64126D106
(CUSIP Number of Class of Securities)
Stephen C. Miller, Esq.
Krassa & Miller, LLC
1680 38th Street, Suite 800
Boulder, Colorado 80301
(303) 442-2156
Copy to:
Thomas R. Stephens, Esq.
Bartlit Beck Herman Palenchar & Scott
1899 Wynkoop Street, 8th Floor
Denver, Colorado 80202
(303) 592-3100
(Name, Address and Telephone Numbers of Person Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
Calculation of Filing Fee
Transaction Valuation* Amount of Filing Fee**
$36,299,250 $4,599.12
* Estimated for purposes of calculating the amount of filing fee only.
Transaction value derived by multiplying 1,825,000 shares of the subject
company (number of shares sought) by $19.89 (the purchase price per share
offered by the Lola Brown Trust No. 1B and the Ernest Horejsi Trust No.
1B).
** The amount of the filing fee, calculated in accordance with Rule 0-11 under
the Securities Exchange Act of 1934, as amended, equals $126.70 per million
of the aggregate amount of the cash offered by the Lola Brown Trust No. 1B
and the Ernest Horejsi Trust No. 1B.
|X| Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $4,599.12 Filing Party: LOLA BROWN TRUST NO. 1B
ERNEST HOREJSI TRUST NO. 1B
Form or Registration Number: Schedule TO-T Date Filed: September 10, 2004
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
|X| third-party tender offer subject to Rule 14d-1.
|_| issuer tender offer subject to Rule 13e-4.
|_| going private transaction subject to Rule 13e-3.
|X| amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: |_|
CUSIP No. 64126D106
- --------------------------------------------------------------------------------
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Lola Brown Trust No. 1B
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds (See Instructions) WC OO
- --------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e)
- --------------------------------------------------------------------------------
6. Citizenship or Place of Organization South Dakota
- --------------------------------------------------------------------------------
Number of 7. Sole Voting Power 463,200
Shares Bene-
ficially Owned 8. Shared Voting Power
by Each
Reporting 9. Sole Dispositive Power 463,200
Person With
10. Shared Dispositive Power
- --------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person 463,200
- --------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
- --------------------------------------------------------------------------------
13. Percent of Class Reported by Amount in Row (11) 10.12%
- --------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions) OO
CUSIP No. 64126D106
- --------------------------------------------------------------------------------
1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Ernest Horejsi Trust No. 1B
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a)
(b)
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Source of Funds (See Instructions) WC OO
- --------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d)
or 2(e)
- --------------------------------------------------------------------------------
6. Citizenship or Place of Organization South Dakota
- --------------------------------------------------------------------------------
Number of 7. Sole Voting Power 4,900
Shares Bene-
ficially Owned 8. Shared Voting Power
by Each
Reporting 9. Sole Dispositive Power 4,900
Person With
10. Shared Dispositive Power
- --------------------------------------------------------------------------------
11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,900
- --------------------------------------------------------------------------------
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See
Instructions)
- --------------------------------------------------------------------------------
13. Percent of Class Reported by Amount in Row (11) 0.11%
- --------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions) OO
AMENDMENT NO. 2
TO
SCHEDULE TO
This Amendment No. 2 to the Tender Offer Statement on Schedule TO is being
filed by the Lola Brown Trust No. 1B, an irrevocable grantor trust domiciled and
administered in South Dakota (the "Lola Trust"), and the Ernest Horejsi Trust
No. 1B, an irrevocable grantor trust domiciled and administered in South Dakota
(the "Ernest Trust" and, together with the Lola Trust, the "Trusts") and amends
and supplements the Tender Offer Statement initially filed with the Securities
and Exchange Commission ("SEC") on September 10, 2004, as amended by Amendment
No. 1 to Schedule TO filed by the Trusts with the Securities and Exchange
Commission on October 1, 2004 (collectively, the "Original Schedule TO"). This
Schedule TO relates to the Offer by the Trusts to purchase up to 1,825,000
issued and outstanding shares of common stock, par value $0.0001 per share (the
"shares"), of Neuberger Berman Real Estate Income Fund Inc., a Maryland
corporation ("NRL"), 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. The offer is set forth in the Supplement dated October
1, 2004 relating to the Offer to Purchase dated September 10, 2004 (the
"Supplement"), the Offer to Purchase dated September 10, 2004 (the "Offer to
Purchase") and in the related letter of transmittal (which, together with the
Supplement and Offer to Purchase, and any amendments or supplements hereto or
thereto, collectively constitute the "Offer"). Copies of the Offer to Purchase,
the letter of transmittal and the Supplement were attached as Exhibits (a)(1),
(a)(2) and (a)(8), respectively, to the Original Schedule TO.
The Original Schedule TO is hereby amended as follows:
Item 11. Additional Information.
On October 6, 2004, the Trusts and Badlands filed a counter-claim against
NRL in the United States Federal Court for the District of Maryland in
connection with the litigation originally commenced by NRL on September 23,
2004. In their counter-claim, the Trusts and Badlands allege, among other
things, that the stockholder rights agreement adopted by NRL's board of
directors and NRL's attempt to apply Maryland's control share statute to the
Trusts and the Offer should be invalidated based on a number of legal theories
under federal and state law. The Trusts also seek in their counterclaim to have
the court prohibit NRL from completing its issuer tender offer on the basis that
NRL's Offer to Purchase dated October 1, 2004 filed as an Exhibit to its
Schedule TO relating to the issuer tender offer contained material misstatements
and omissions in violation of the United States tender offer rules. NRL's
complaint dated September 23, 2004 was previously filed as Exhibit (a)(9) hereto
and is incorporated herein by reference. The counter-claim filed by the Trusts
and Badlands is filed as Exhibit (a)(16) hereto and is incorporated herein by
reference.
Item 12. Exhibits.
The following Exhibits are added:
Exhibit Description
(a) (15) Press release issued October 7, 2004.
(16) Copy of Counter-Claims dated October 7, 2004.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, each of the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
Dated: October 7, 2004
Lola Brown Trust No. 1B
Ernest Horejsi Trust No. 1B
/s/ Stephen C. Miller
By:
Name: Stephen C. Miller
Title: Vice President of Badlands Trust
Company, trustee of the Lola Brown Trust
No. 1B and the Ernest Horejsi Trust
No. 1B
EXHIBIT INDEX
Exhibit Description
(a) (1) Offer to Purchase, dated September 10, 2004.*
(2) Letter of Transmittal.*
(3) Notice of Guaranteed Delivery.*
(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(5) Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(7) Summary Advertisement, as published in the Wall Street
Journal on September 10, 2004.*
(8) Supplement dated October 1, 2004 Relating to the Offer to
Purchase dated September 10, 2004.*
(9) Copy of Complaint dated September 23, 2004.*
(10) Letter dated September 14, 2004 from counsel for the board
of directors of NRL to Mr. Horejsi.*
(11) Letter dated September 16, 2004 from the Trusts to the
special committee of the board of directors of NRL.*
(12) Press release issued October 1, 2004.*
(13) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(14) Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(15) Press release issued October 7, 2004.
(16) Copy of Counter-Claims dated October 7, 2004.
(b) Cash Management Account Agreement between the Lola Trust and
Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Ernest
Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated,
incorporated in this Schedule TO by reference to the Schedule 13D
filed by the Trusts and Stuart Horejsi on September 2, 2004.*
(d) Not Applicable
(g) Not Applicable
(h) Not Applicable
* Previously filed.