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. 5)
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) 11.53%
- --------------------------------------------------------------------------------
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) 0.12%
- --------------------------------------------------------------------------------
14. Type of Reporting Person (See Instructions) OO
AMENDMENT NO. 5
TO
SCHEDULE TO
This Amendment No. 5 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 dated October 1, 2004, Amendment No. 2 to Schedule TO filed by the
Trusts with the Securities and Exchange Commission dated October 7, 2004,
Amendment No. 3 to Schedule TO filed by the Trusts with the Securities and
Exchange Commission dated October 14, 2004 and Amendment No. 4 to Schedule TO
filed by the Trusts with the Securities and Exchange Commission dated October
26, 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 No. 3 dated October 26, 2004 relating
to the Offer to Purchase dated September 10, 2004, as amended (the "Third
Supplement"), the Supplement No. 2 dated October 14, 2004 relating to the Offer
to Purchase dated September 10, 2004, as amended (the "Second Supplement"), the
Supplement dated October 1, 2004 relating to the Offer to Purchase dated
September 10, 2004 (the "First Supplement"), the Offer to Purchase dated
September 10, 2004 (the "Offer to Purchase") and in the related letter of
transmittal (which, together with the Third Supplement, the Second Supplement,
the First Supplement and the 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, the First Supplement, the
Second Supplement and the Third Supplement were attached as Exhibits (a)(1),
(a)(2), (a)(8), (a)(17) and (a)(21), respectively, to the Original Schedule TO.
The Original Schedule TO is hereby amended as follows:
Item 8. Interest in Securities of the Subject Company.
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 issuer tender
offer (the "Issuer 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 the Issuer Offer, representing approximately
11.9% of the total outstanding shares.
The Trusts did not tender any shares for purchase in the Issuer Offer. As a
result of the purchase by NRL of 561,401 shares in the Issuer Offer, the
percentage of outstanding shares held by the Trusts has increased to: (a) 11.65%
in the aggregate based on 4,017,582 outstanding shares (4,578,983 shares
outstanding prior to the issuance of shares in the private placement described
below, less shares acquired in the Issuer Offer, in each case as set forth in
NRL's Schedule TO-I filed with the Securities and Exchange Commission), or (b)
11.26% in the aggregate based on 4,157,117 outstanding shares (4,718,518 shares
outstanding prior to the closing of the Issuer Offer, as set forth in NRL's
Schedule TO-I filed with the Securities and Exchange Commission, which amount
includes as outstanding the 139,535 shares issued by NRL to Neuberger Berman,
LLC on September 22, 2004, the validity of which issuance the Trusts are
challenging in the litigation regarding the Offer pending before the United
States District Court for the District of Maryland).
Item 11. Additional Information.
Although the Trusts now hold more than 11% of the outstanding shares as a
result of NRL's purchase of shares in the Issuer Offer, pursuant to provisions
relating to issuer repurchases contained in the definition of "Acquiring Person"
in NRL's Rights Agreement dated as of September 23, 2004 attached as Exhibit
(a)(5) to NRL's Schedule 14D-9 filed with the Securities and Exchange Commission
on September 23, 2004 (the "Rights Agreement"), the Trusts believe that they are
not "Acquiring Persons" for purposes of the Rights Agreement.
On October 22, 2004, the United States District Court for the District of
Maryland issued a Memorandum Opinion and Declaratory Judgment Order upholding
the validity of the Rights Agreement. The Trusts are seeking to appeal this
court order to the United States Court of Appeals for the Fourth Circuit in
order to seek a final judgment invalidating the Rights Agreement.
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: November 5, 2004
Lola Brown Trust No. 1B
Ernest Horejsi Trust No. 1B
/s/
By:
Name: Stephen C. Miller
Title: Vice President of Badlands Trust
Company,
rustee of the Lola Brown Trust No. 1B and the
t 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.*
(17) Supplement No. 2 dated October 14, 2004 Relating to the
Offer to Purchase dated September 10, 2004, as amended.*
(18) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(19) Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(20) Press release issued October 14, 2004.*
(21) Supplement No. 3 dated October 26, 2004 Relating to the
Offer to Purchase dated September 10, 2004, as amended.*
(22) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.*
(23) Letter to Clients for Use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.*
(24) Press release issued October 26, 2004.*
(25) Memorandum Opinion dated October 22, 2004 issued by the
United States District Court for the District of Maryland.*
(26) Declaratory Judgment Order dated October 22, 2004 issued by
the United States District Court for the District of
Maryland.*
(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.