SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
SCHEDULE TO
Tender Offer Statement Pursuant to Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
___________________
WELLS REAL ESTATE INVESTMENT TRUST, INC.
(Name of Subject Company)
SUTTER OPPORTUNITY FUND 3, LLC, SUTTER CAPITAL MANAGEMENT, LLC and
ROBERT E. DIXON
(Bidders)
COMMON STOCK, PAR VALUE $.01
(Title of Class of Securities)
(CUSIP Number of Class of Securities)
_______________________
Copy to:
Robert E. Dixon Paul J. Derenthal, Esq.
Sutter Capital Management, LLC Derenthal & Dannhauser LLP
220 Montgomery Street, Suite 2100, One Post Street, Suite 575
San Francisco, California 94104 San Francisco, CA 94104
(415) 788-1441 (415) 981-4844
(Name, Address, and Telephone Number of
Person Authorized to Receive Notices and
Communications on Behalf of Bidder)
Calculation of Filing Fee
Transaction Amount of
Valuation* Filing Fee
$7,000,000 $886.90
* For purposes of calculating the filing fee only. Assumes the purchase of
1,000,000 Shares at a purchase price equal to $7.00 per Share in cash.
[ ] Check 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:
Form or Registration Number:
Filing Party:
Date Filed:
[ ] 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
[ ] 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: [ ]
TENDER OFFER
This Tender Offer Statement on Schedule TO relates to the offer (the
"Offer") by SUTTER OPPORTUNITY FUND 3, LLC, and ROBERT E. DIXON (together, the
"Purchasers") to purchase up to 1,000,000 Shares of COMMON STOCK, PAR VALUE $.01
(the "Shares") in WELLS REAL ESTATE INVESTMENT TRUST, INC., a Maryland
corporation (the "Company"), the subject company, at a purchase price equal to
$7.00 per Share, less the amount of any dividends declared or paid with respect
to the Shares between November 15, 2004 (the "Offer Date") and December 20,
2004, or such other date to which this Offer may be extended (the "Expiration
Date"), upon the terms and subject to the conditions set forth in the Offer to
Purchase dated November 15, 2004 (the "Offer to Purchase") and the related
Letter of Transmittal, copies of which are attached hereto as Exhibits (a)(1)
and (a)(2), respectively. As noted above, the Offer price would be subject to
reduction for dividends paid or declared prior to the Expiration Date. Any
dividends paid or declared after the Expiration Date, by the terms of the Offer
and as set forth in the Letter of Transmittal, would be assigned by tendering
Shareholders to the Purchasers. Sutter Capital Management, LLC is named as a
"bidder" herein because it controls Sutter Opportunity Fund 3, LLC, but it is
otherwise participating in the offer described in this schedule.
In the event of a price reduction resulting from a Company dividend
declared or paid after the Offer Date and before the Expiration Date, as
described above, the Purchasers will file an amendment to this Schedule TO
reflecting such reduction and will, to the extent necessary, extend the
Expiration Date to assure there is a minimum ten business day period following
the amendment before the Offer expires.
Tender of Shares will include the tender of any and all securities into
which the Shares may be converted and any securities distributed with respect to
the Shares from and after the Offer Date.
As of February 29, 2004, there were approximately 117,000 stockholders of
record of Shares and the number of Shares outstanding as of September 30, 2004
was 470,422,493 according to the Company's annual report on Form 10-K for the
year ended December 31, 2004 and quarterly report on Form 10-Q for the quarter
ended September 30, 2004. The Purchasers and certain of their affiliates
currently beneficially own an aggregate of 3,000 Shares, or less than one tenth
of one percent (0.001%) of the outstanding Shares. If all of the Shares sought
in this Offer are purchased, the Purchasers and their affiliates would
beneficially own in the aggregate 1,003,000 or approximately 0.002% of the
outstanding Shares. Consummation of the Offer, if all Shares sought are
tendered, would require payment by the Purchasers of up to $7,000,000 in
aggregate purchase price, which the Purchasers will fund out of their existing
working capital.
The address of the Company's principal executive offices is 6200 The
Corners Parkway, Norcross, Georgia 30092, and its phone number is (770)
449-7800.
The information in the Offer to Purchase, including all schedules and
annexes thereto, is hereby expressly incorporated herein by reference in
response to all the items of this Statement.
Item 12. Exhibits.
(a)(1) Offer to Purchase dated November 15, 2004
(a)(2) Letter of Transmittal
(a)(3) Form of Letter to Shareholders dated November 15, 2004
(b)- (h) Not applicable.
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: November 15, 2004
SUTTER OPPORTUNITY FUND 3, LLC
By Sutter Capital Management, LLC, its Manager
By: /s/ ROBERT E. DIXON
-----------------------------------
Robert E. Dixon, Manager
SUTTER CAPITAL MANAGEMENT, LLC
By: /s/ ROBERT E. DIXON
-----------------------------------
Robert E. Dixon, Manager
/s/ ROBERT E. DIXON
-----------------------------------
Robert E. Dixon
2
EXHIBIT INDEX
Exhibit Description
(a)(1) Offer to Purchase dated November 15, 2004
(a)(2) Letter of Transmittal
(a)(3) Form of Letter to Shareholders dated November 15, 2004
Exhibit (a)(1)
OFFER TO PURCHASE FOR CASH UP TO ONE MILLION
SHARES OF COMMON STOCK, $.01 PAR VALUE
OF
WELLS REAL ESTATE INVESTMENT TRUST, INC.
AT
$7.00 per Share
SUTTER OPPORTUNITY FUND 3, LLC, and
ROBERT E. DIXON
(the "Purchasers")
THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL EXPIRE AT
12:00 MIDNIGHT, PACIFIC STANDARD TIME, ON DECEMBER 20, 2004, UNLESS
THE OFFER IS EXTENDED.
The Purchasers hereby seek to acquire COMMON STOCK, PAR VALUE $.01 (the
"Shares") in WELLS REAL ESTATE INVESTMENT TRUST, INC., a Maryland corporation
(the "Company"). The Purchasers are not affiliated with the Company. The
Purchasers hereby offer to purchase up to one million Shares at a purchase price
equal to $7.00 per Share, less the amount of any dividends declared or paid with
respect to the Shares between November 15, 2004 and December 20, 2004, or such
other date to which this Offer may be extended (the "Expiration Date"), in cash,
without interest, upon the terms and subject to the conditions set forth in this
Offer to Purchase (the "Offer to Purchase") and in the related Letter of
Transmittal, as each may be supplemented or amended from time to time (which
together constitute the "Offer"). As noted above, the Offer price would be
subject to reduction for dividends paid or declared prior to the Expiration
Date. Any dividends paid or declared after the Expiration Date would, by the
terms of the Offer and as set forth in the Letter of Transmittal, be assigned by
tendering Shareholders to the Purchasers.
Tender of Shares will include the tender of any and all securities into
which the Shares may be converted, and any securities distributed with respect
to the Shares, by way of dividend or otherwise, from and after the Offer Date.
As of February 29, 2004, there were approximately 117,000 stockholders of
record of Shares and the number of Shares outstanding as of September 30, 2004
was 470,422,493 according to the Company's annual report on Form 10-K for the
year ended December 31, 2004 and quarterly report on Form 10-Q for the quarter
ended September 30, 2004. The Purchasers and certain of their affiliates
currently beneficially own an aggregate of 3,000 Shares, or less than one tenth
of one percent (0.001%) of the outstanding Shares. If all of the Shares sought
in this Offer are purchased, the Purchasers and their affiliates would
beneficially own in the aggregate 1,003,000 or approximately 0.002% of the
outstanding Shares. Consummation of the Offer, if all Shares sought are
tendered, would require payment by the Purchasers of up to $7,000,000 in
aggregate purchase price, which the Purchasers will fund out of their existing
working capital.
Holders of Shares ("Shareholders") are urged to consider the following factors:
o The Shares are not listed for trading on a national securities exchange
and are thinly traded, and prices reported on the Pink Sheets have ranged
from $7.00 to $8.00 per Share in the 30 days preceding this offer, and
from $5.00 to $10.25 in the year preceding this offer. In addition, the
Company reported a total of 624,000 Shares were redeemed by the Company
during the quarter ended September 30, 2004, at $10 per Share pursuant to
its fixed price redemption plan. Because the Shares are not widely
traded, the prices at which Shares have been bought and sold may not
reflect the underlying value of the Shares.
o No independent party will hold securities tendered until the offer closes
and payment is made. Because there is no independent intermediary to hold
the Purchasers' funds and tendered securities, the Purchasers may have
access to the securities before all conditions to the Offer have been
satisfied and selling Shareholders have been paid.
1
THE OFFER TO PURCHASE IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES
BEING TENDERED. IF MORE THAN 1,000,000 SHARES ARE VALIDLY TENDERED AND NOT
WITHDRAWN, THE PURCHASERS WILL ACCEPT FOR PURCHASE 1,000,000 SHARES FROM
TENDERING SHAREHOLDERS ON A PRO RATA BASIS, SUBJECT TO THE TERMS AND CONDITIONS
HEREIN. A SHAREHOLDER MAY TENDER ANY OR ALL SHARES OWNED BY SUCH SHAREHOLDER.
The Purchasers expressly reserve the right, in their sole discretion, at
any time and from time to time, (i) to extend the period of time during which
the Offer is open and thereby delay acceptance for payment of, and the payment
for, any Shares, (ii) upon the occurrence of any of the conditions specified in
Section 13 of this Offer to Purchase, to terminate the Offer and not accept for
payment any Shares not theretofore accepted for payment or paid for, or to delay
the acceptance for payment of, or payment for, any Shares not theretofore
accepted for payment or paid for, and (iii) to amend the Offer in any respect.
Notice of any such extension, termination or amendment will promptly be
disseminated to Shareholders in a manner reasonably designed to inform
Shareholders of such change in compliance with Rule 14d-4(c) under the
Securities Exchange Act of 1934 (the "Exchange Act"). In the case of an
extension of the Offer, such extension will be followed by a press release or
public announcement which will be issued no later than 9:00 a.m., Eastern
Standard Time, on the next business day after the scheduled Expiration Date, in
accordance with Rule 14e-1(d) under the Exchange Act.
November 15, 2004
2
IMPORTANT
Any Shareholder desiring to tender any or all of such Shareholder's Shares
should ask their broker to submit their Shares to Depository Trust Company for
tender to the Purchasers pursuant to this offer, or request a Letter of
Transmittal from the Purchasers, and mail, deliver or telecopy the Letter of
Transmittal and any other required documents to the Purchasers at the address or
facsimile number set forth below.
c/o Sutter Capital Management, LLC
220 Montgomery Street, Suite 2100,
San Francisco, California 94104
(415) 788-1441
Facsimile: (415) 788-1515
Questions or requests for assistance or copies of this Offer to Purchase or
the Letter of Transmittal may be directed to the Purchasers at (415) 788-1441.
___________________________
NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION OR ANY
REPRESENTATION ON BEHALF OF THE PURCHASERS OR TO PROVIDE ANY INFORMATION OTHER
THAN AS CONTAINED HEREIN OR IN THE LETTER OF TRANSMITTAL. NO SUCH
RECOMMENDATION, INFORMATION OR REPRESENTATION MAY BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
___________________________
The Company is subject to the information and reporting requirements of the
Exchange Act and in accordance therewith is required to file reports and other
information with the Commission relating to its business, financial condition
and other matters. Such reports and other information are available on the
Commission's electronic data gathering and retrieval (EDGAR) system, at its
internet web site at www.sec.gov, may be inspected at the public reference
facilities maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. Copies of such material can also be
obtained from the Public Reference Room of the Commission in Washington, D.C. at
prescribed rates.
The Purchasers have filed with the Commission a Tender Offer Statement on
Schedule TO (including exhibits) pursuant to Rule 14d-3 of the General Rules and
Regulations under the Exchange Act, furnishing certain additional information
with respect to the Offer. Such statement and any amendments thereto, including
exhibits, may be inspected and copies may be obtained from the offices of the
Commission in the manner specified above.
3
TABLE OF CONTENTS
Page
SUMMARY TERM SHEET.............................................................5
INTRODUCTION...................................................................7
TENDER OFFER...................................................................9
Section 1. Terms of the Offer...........................................9
Section 2. Proration; Acceptance for Payment and Payment for Shares....10
Section 3. Procedures for Tendering Shares.............................11
Section 4. Withdrawal Rights...........................................12
Section 5. Extension of Tender Period; Termination; Amendment..........13
Section 6. Federal Income Tax Consequences.............................14
Section 7. Effects of the Offer........................................16
Section 8. Future Plans................................................17
Section 9. The Business of the Company.................................17
Section 10. Conflicts of Interest.......................................18
Section 11. Certain Information Concerning the Purchasers...............18
Section 12. Source of Funds.............................................19
Section 13. Conditions of the Offer.....................................19
Section 14. Certain Legal Matters.......................................21
Section 15. Fees and Expenses...........................................22
Section 16. Miscellaneous...............................................22
Schedule I - The Purchasers and Their Principals
4
SUMMARY TERM SHEET
The Purchasers are offering to purchase up to one million Shares for $7.00
per Share in cash. The following are some of the questions that you, as a
Shareholder of the Company, may have and answers to those questions. The
information in this summary is not complete and we urge you to carefully read
the remainder of this Offer to Purchase and the accompanying Letter of
Transmittal.
WHO IS OFFERING TO BUY MY SECURITIES?
The offer to purchase up to 1,000,000 Shares is being made by Sutter
Opportunity Fund 3, LLC and Robert E. Dixon. The Purchasers are unrelated to the
Company or its management.
WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
We are seeking to purchase up to 1,000,000 Shares of the Company's COMMON
STOCK, PAR VALUE $.01, which are the Shares issued to public investors in the
Company. The Purchasers and certain of their affiliates currently beneficially
own an aggregate of 3,000 Shares, or less than 0.001% of the outstanding Shares.
If all of the Shares sought in this Offer are purchased, the Purchasers and
their affiliates would beneficially own in the 0.002% of the outstanding Shares.
HOW MUCH ARE YOU OFFERING TO PAY AND WHAT IS THE FORM OF PAYMENT?
We are offering to pay $7.00 per Share, net to you in cash, less the amount
of any dividends declared or paid with respect to the Shares between the date of
this Offer and the date the Offer expires. The Offer price would be reduced by
the amount of dividends paid or declared prior to the Expiration Date. Any
dividends paid or declared after the Expiration Date would, by the terms of the
Offer and as set forth in the Letter of Transmittal, be assigned by tendering
Shareholders to the Purchasers. If you tender your Shares to us in the Offer,
you will not have to pay brokerage fees or similar expenses in connection with
the sale (other than any fees you must pay in connection with your custodial or
other beneficiary accounts).
DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
If the total amount of Shares sought is purchased, the Purchasers' capital
commitment will be approximately $7,000,000. The Purchasers and their members
and shareholders have adequate working capital resources at their disposal to
fund in full all payments due to selling Shareholders.
IS THE FINANCIAL CONDITION OF THE BIDDERS RELEVANT TO MY DECISION ON WHETHER TO
TENDER IN THE OFFER?
Because this is a cash offer that is not conditioned on financing being
available, and the Purchasers have more than adequate financial resources, other
information concerning the Purchasers' financial condition would seem to have
little relevance to your decision.
HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, pacific standard time, on
December 20, 2004, to decide whether to tender your Shares in the Offer.
CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
The Offer can be extended in our discretion.
HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will make a public announcement of the
extension, not later than 9:00 a.m., eastern standard time, on the day after the
day on which the Offer was scheduled to expire.
5
WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
There are no conditions to the offer based on minimum Shares tendered, the
availability of financing or otherwise determined by the success of the offer.
However, we may not be obligated to purchase any Shares in the event certain
conditions occur, such as legal or government actions which would prohibit the
purchase. Furthermore, we are not obligated to purchase any Shares which are
validly tendered if, among other things, there is a material adverse change in
the Company or its business prior to the Expiration Date.
HOW DO I TENDER MY SHARES?
To tender your Shares, you can either ask your broker to deliver the shares
to Depository Trust Company for tender to the Purchasers pursuant to this offer,
or you can deliver a completed Letter of Transmittal to the Purchasers at:
Sutter Capital Management, LLC, 220 Montgomery Street, Suite 2100, San
Francisco, California 94104; (415) 788-1441; Facsimile: (415) 788-1515.
UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw previously tendered Shares at any time until the Offer has
expired and, if we have not agreed to accept your Shares for payment by January
14, 2005, you can withdraw them at any time after such time until we do accept
your Shares for payment.
HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw Shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the Purchasers while you
still have the right to withdraw the Shares.
WHAT DOES THE COMPANY THINK OF THE OFFER?
The Purchasers have not sought the approval or disapproval of the Company.
The Company may be expected to respond with its position on the offer in the
next two weeks.
WILL THE COMPANY CONTINUE AS A PUBLIC COMPANY?
Given the scope of the Offer, the size of the Company and number of
Shareholders reported by the Company, the Offer could not have any effect on the
Company's status as a public reporting company.
IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
The Purchasers do not anticipate that Shares held by non-tendering
Shareholders will be affected in any way by the consummation of the offer. As
the maximum Offer involves approximately 0.002% of the outstanding Shares, the
Purchasers have no reason to believe that the Company's shares will not continue
to trade as before.
WHAT ARE THE PURCHASERS' FUTURE INTENTIONS CONCERNING THE COMPANY?
The Purchasers are acquiring the Shares for investment purposes and have no
present intention to seek control of the Company or to change the management or
operations of the Company. The Purchasers are using a tender offer to acquire
Shares because the lack of a regular trading market for the Shares means that
open market purchases are an uncertain and inefficient means for acquiring
Shares in any significant quantity.
WHOM CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call Sutter Capital Management, LLC, at 415-788-1441.
6
TO THE SHAREHOLDERS OF WELLS REAL ESTATE INVESTMENT TRUST, INC.
INTRODUCTION
The Purchasers hereby offer to purchase up to 1,000,000 Shares (the
"Maximum Offer") at a purchase price of $7.00 per Share ("Offer Price"), less
the amount of any dividends declared or paid with respect to the Shares between
November 15, 2004, and the Expiration Date, in cash, without interest, upon the
terms and subject to the conditions set forth in the Offer.
For further information concerning the Purchasers, see Section 11 below and
Schedule I.
Shareholders are urged to consider the following factors:
o The Shares are not listed for trading on a national securities exchange
and are thinly traded, and prices reported on the Pink Sheets have ranged
from $7.00 to $8.00 per Share in the 30 days preceding this offer, and
from $5.00 to $10.25 in the year preceding this offer. In addition, the
Company reported a total of 624,000 Shares were redeemed by the Company
during the quarter ended September 30, 2004, at $10 per Share pursuant
to its fixed price redemption plan. Because the Shares are not widely
traded, the prices at which Shares have been bought and sold may not
reflect the underlying value of the Shares.
o No independent party will hold securities tendered until the offer closes
and payment is made. Because there is no independent intermediary to hold
the Purchasers' funds and tendered securities, the Purchasers may have
access to the securities before all conditions to the Offer have been
satisfied and selling Shareholders have been paid.
The Offer will provide Shareholders with an opportunity to liquidate their
investment without the usual transaction costs associated with market sales.
Shareholders may have a more immediate need to use the cash now tied up in an
investment in the Shares and wish to sell them to the Purchasers.
Establishment of the Offer Price
The Purchasers have set the Offer Price at $7.00 per Share, less the amount
of any dividends declared or paid with respect to the Shares between November
15, 2004 and the Expiration Date. In determining the Offer Price, the Purchasers
analyzed a number of quantitative and qualitative factors, including: (i) the
limited secondary market for resales of the Shares and the resulting lack of
liquidity of an investment in the Company; and (ii) the costs to the Purchasers
associated with acquiring the Shares.
The Offer Price represents the price at which the Purchasers are willing to
purchase Shares. No independent person has been retained to evaluate or render
any opinion with respect to the fairness of the Offer Price and no
representation is made by the Purchasers or any affiliate of the Purchasers as
to such fairness. Other measures of the value of the Shares may be relevant to
Shareholders. Shareholders are urged to consider carefully all of the
information contained herein and consult with their own advisors, tax, financial
or otherwise, in evaluating the terms of the Offer before deciding whether to
tender Shares.
The Offer is not made with any current view toward or plan or purpose of
acquiring Shares in a series of successive and periodic offers. Nevertheless,
the Purchasers reserve the right to gauge the response to this solicitation,
and, if not successful in achieving the Maximum Offer, may consider future
offers. Factors affecting the Purchasers' future interest in acquiring
additional Shares include, but are not limited to, the relative success of the
current Offer, any increase or decrease in the availability of capital for
investment by the Purchasers and its investment fund affiliates, changes in the
public market in the Shares or actions by unrelated parties to tender for or
purchase Shares, the status of and changes and trends in the Company's
operations, any significant capital transactions by the Company, and local and
national economic and financial market developments and trends.
7
General Background Information
Certain information contained in this Offer to Purchase which relates to,
or represents, statements made by the Company has been derived from information
provided in reports filed by the Company with the Securities and Exchange
Commission.
Tendering Shareholders will not be obligated to pay transfer fees,
brokerage fees or commissions on the sale of the Shares to the Purchasers
pursuant to the Offer. The Purchasers will pay all charges and expenses incurred
in connection with the Offer. The Purchasers desire to purchase all Shares
tendered by each Shareholder.
If, prior to the Expiration Date, the Purchasers increase the consideration
offered to Shareholders pursuant to the Offer, such increased consideration will
be paid with respect to all Shares that are purchased pursuant to the Offer,
whether or not such Shares were tendered prior to such increase in
consideration.
Shareholders are urged to read this Offer to Purchase and the accompanying
Letter of Transmittal carefully before deciding whether to tender their Shares.
TENDER OFFER
Section 1. Terms of the Offer. Upon the terms and subject to the conditions
of the Offer, the Purchasers will accept for payment and pay for Shares validly
tendered on or prior to the Expiration Date and not withdrawn in accordance with
Section 4 of this Offer to Purchase. The term "Expiration Date" shall mean 12:00
midnight, Pacific Standard Time, on December 20, 2004, unless and until the
Purchasers shall have extended the period of time for which the Offer is open,
in which event the term "Expiration Date" shall mean the latest time and date on
which the Offer, as so extended by the Purchasers, shall expire.
The Offer is conditioned on satisfaction of certain conditions. See Section
13, which sets forth in full the conditions of the Offer. The Purchasers reserve
the right (but shall not be obligated), in their sole discretion and for any
reason, to waive any or all of such conditions. If, by the Expiration Date, any
or all of such conditions have not been satisfied or waived, the Purchasers
reserve the right (but shall not be obligated) to (i) decline to purchase any of
the Shares tendered, terminate the Offer and return all tendered Shares to
tendering Shareholders, (ii) waive all the unsatisfied conditions and, subject
to complying with applicable rules and regulations of the Commission, purchase
all Shares validly tendered, (iii) extend the Offer and, subject to the right of
Shareholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended or (iv) to amend the Offer. Notwithstanding the foregoing, upon the
expiration of the Offer, if all conditions are either satisfied or waived, the
Purchasers will promptly pay for all validly tendered Shares, and the Purchasers
do not intend to imply that the foregoing rights of the Purchasers would permit
the Purchasers to delay payment for validly tendered Shares following
expiration.
The Purchasers do not anticipate and have no reason to believe that any
condition or event will occur that would prevent the Purchasers from purchasing
tendered Shares as offered herein.
Section 2. Proration, Acceptance for Payment and Payment for Shares. Upon
the terms and subject to the conditions of the Offer (including, if the Offer is
extended or amended, the terms and conditions of any extension or amendment),
the Purchasers will accept for payment, and will pay for, Shares validly
tendered and not withdrawn in accordance with Section 4, promptly following the
Expiration Date. In all cases, payment for Shares purchased pursuant to the
Offer will be made only after timely tender of the Shares or of a properly
completed and duly executed Letter of Transmittal (or facsimile thereof) and any
other documents required by the Letter of Transmittal.
The Purchasers desire to purchase up to 1,000,000 Shares. If the number of
Shares validly tendered and not properly withdrawn on or prior to the Expiration
Date is less than or equal to 1,000,000, we will purchase all Shares so tendered
and not withdrawn, upon the terms and subject to the conditions of the Offer.
However, if more than 1,000,000 Shares are so tendered and not withdrawn, we
will accept for payment and pay for 1,000,000 Shares so tendered, pro rata
according to the number of Shares so tendered, adjusted by rounding down to the
nearest whole number of Shares tendered by each Shareholder to avoid purchases
of fractional Shares, as appropriate.
For purposes of the Offer, the Purchasers shall be deemed to have accepted
for payment (and thereby purchased) tendered Shares when, as and if the
8
Purchasers give oral or written notice to the Shareholder of the Purchasers'
acceptance for payment of such Shares pursuant to the Offer. Upon the terms and
subject to the conditions of the Offer, payment for Shares purchased pursuant to
the Offer will in all cases be made by deposit of the Offer Price with the
Shareholder or the custodian of the Shares.
Under no circumstances will interest be paid on the Offer Price by reason
of any delay in making such payment.
If any tendered Shares are not purchased for any reason (other than by
reason of proration as discussed above), the Letter of Transmittal with respect
to such Shares not purchased will be of no force or effect. If, for any reason
whatsoever, acceptance for payment of, or payment for, any Shares tendered
pursuant to the Offer is delayed or the Purchasers are unable to accept for
payment, purchase or pay for Shares tendered pursuant to the Offer, then,
without prejudice to the Purchasers' rights under Section 13 (but subject to
compliance with Rule 14e-1(c) under the Exchange Act), the Purchasers may,
nevertheless, retain tendered Shares, subject to any limitations of applicable
law, and such Shares may not be withdrawn except to the extent that the
tendering Shareholders are entitled to withdrawal rights as described in Section
4.
If, prior to the Expiration Date, the Purchasers shall increase the
consideration offered to Shareholders pursuant to the Offer, such increased
consideration shall be paid for all Shares accepted for payment pursuant to the
Offer, whether or not such Shares were tendered prior to such increase.
Section 3. Procedures for Tendering Shares.
Valid Tender. For Shares to be validly tendered pursuant to the Offer, you
may instruct your broker to submit your shares to Depository Trust Company, or
submit a properly completed and duly executed Letter of Transmittal with any
other documents required by the Letter of Transmittal, in either case with
Shares received by Depository Trust Company or the Letter of Transmittal
received by the Purchasers at the address set forth on the back cover of this
Offer to Purchase on or prior to the Expiration Date. A Shareholder may tender
any or all Shares owned by such Shareholder.
In order for a tendering Shareholder to participate in the Offer, Shares
must be validly tendered and not withdrawn prior to the Expiration Date, which
is 12:00 midnight, Pacific Standard Time, on December 20, 2004, or such date to
which the Offer may be extended.
The method of delivery of the Letter of Transmittal and all other required
documents is at the option and risk of the tendering Shareholder and delivery
will be deemed made only when actually received by the Purchasers.
Other Requirements. By tendering Sharest as set forth above, and upon
acceptance for payment, a tendering Shareholder irrevocably appoints the
designees of the Purchasers as such Shareholder's proxies, in the manner set
forth in the Letter of Transmittal, each with full power of substitution, to the
full extent of such Shareholder's rights with respect to the Shares tendered by
such Shareholder and accepted for payment by the Purchasers. Such appointment
will be effective when, and only to the extent that, the Purchasers accept such
Shares for payment. Upon such acceptance for payment, all prior proxies given by
such Shareholder with respect to such Shares will, without further action, be
revoked, and no subsequent proxies may be given (and if given will not be
effective). The designees of the Purchasers will, with respect to such Shares,
be empowered to exercise all voting and other rights of such Shareholder as they
in their sole discretion may deem proper at any meeting of Shareholders, by
written consent or otherwise. In addition, by tendering Shares, upon acceptance
for payment, a Shareholder also assigns to the Purchasers all of the
Shareholder's rights to receive distributions from the Company with respect to
Shares which are accepted for payment and purchased pursuant to the Offer, other
than those dividends declared or paid during the period commencing on the Offer
Date and terminating on the Expiration Date.
Determination of Validity; Rejection of Shares; Waiver of Defects; No
Obligation to Give Notice of Defects. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares pursuant to the procedures described above will be determined by the
Purchasers, in their sole discretion, which determination shall be final and
binding. The Purchasers reserve the absolute right to reject any or all tenders
if not in proper form or if the acceptance of, or payment for, the absolute
right to reject any or all tenders if not in proper form or if the acceptance
of, or payment for, the Shares tendered may, in the opinion of the Purchasers'
counsel, be unlawful. The Purchasers also reserve the right to waive any defect
or irregularity in any tender with respect to any particular Shares of any
particular Shareholder, and the Purchasers' interpretation of the terms and
conditions of the Offer (including the Letter of Transmittal and the
Instructions thereto) will be final and binding. Neither the Purchasers nor any
9
other person will be under any duty to give notification of any defects or
irregularities in the tender of any Shares or will incur any liability for
failure to give any such notification.
A tender of Shares pursuant to any of the procedures described above will
constitute a binding agreement between the tendering Shareholder and the
Purchasers upon the terms and subject to the conditions of the Offer, including
the tendering Shareholder's representation and warranty that (i) such
Shareholder owns the Shares being tendered within the meaning of Rule 14e-4
under the Exchange Act and (ii) the tender of such Share complies with Rule
14e-4. Rule 14e-4 requires, in general, that a tendering security holder
actually be able to deliver the security subject to the tender offer, and is of
concern particularly to any Shareholders who have granted options to sell or
purchase the Shares, hold option rights to acquire such securities, maintain
"short" positions in the Shares (i.e., have borrowed the Shares) or have loaned
the Shares to a short seller. Because of the limited public market for the
Shares, the Purchasers believe it is unlikely that any option trading or short
selling activity exists with respect to the Shares. In any event, a Shareholder
will be deemed to tender Shares in compliance with Rule 14e-4 and the Offer if
the holder is the record owner of the Shares and the holder (i) delivers the
Shares pursuant to the terms of the Offer, (ii) causes such delivery to be made,
(iii) guarantees such delivery, (iv) causes a guaranty of such delivery, or (v)
uses any other method permitted in the Offer (such as facsimile delivery of the
Transmittal Letter).
Section 4. Withdrawal Rights. Except as otherwise provided in this Section
4, all tenders of Shares pursuant to the Offer are irrevocable, provided that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment as provided in this
Offer to Purchase, may also be withdrawn at any time on or after January 14,
2005.
For withdrawal to be effective, a written or facsimile transmission notice
of withdrawal must be timely received by the Purchasers at the address or the
facsimile number set forth in the attached Letter of Transmittal. Any such
notice of withdrawal must specify the name of the person who tendered the Shares
to be withdrawn and, if tendered by letter of Transmittal, must be signed by the
person(s) who signed the Letter of Transmittal in the same manner as the Letter
of Transmittal was signed.
If purchase of, or payment for, Shares is delayed for any reason or if the
Purchasers are unable to purchase or pay for Shares for any reason, then,
without prejudice to the Purchasers' rights under the Offer, tendered Shares may
be retained by the Purchasers and may not be withdrawn except to the extent that
tendering Shareholders are entitled to withdrawal rights as set forth in this
Section 4, subject to Rule 14e-1(c) under the Exchange Act, which provides that
no person who makes a tender offer shall fail to pay the consideration offered
or return the securities deposited by or on behalf of security holders promptly
after the termination or withdrawal of the tender offer.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchasers, in their sole
discretion, which determination shall be final and binding. Neither the
Purchasers nor any other person will be under any duty to give notification of
any defects or irregularities in any notice of withdrawal or will incur any
liability for failure to give any such notification.
Any Shares properly withdrawn will be deemed not to be validly tendered for
purposes of the Offer. Withdrawn Shares may be re-tendered, however, by
following the procedures described in Section 3 at any time prior to the
Expiration Date.
Section 5. Extension of Tender Period; Termination; Amendment. The
Purchasers expressly reserve the right, in their sole discretion, at any time
and from time to time, (i) to extend the period of time during which the Offer
is open and thereby delay acceptance for payment of, and the payment for, any
Shares by giving oral or written notice of such extension to the Shareholders,
(ii) upon the occurrence or failure to occur of any of the conditions specified
in Section 13, to delay the acceptance for payment of, or payment for, any
Shares not heretofore accepted for payment or paid for, or to terminate the
Offer and not accept for payment any Shares not theretofore accepted for payment
or paid for, by giving oral or written notice of such termination to the
Shareholders, and (iii) to amend the Offer in any respect (including, without
limitation, by increasing or decreasing the consideration offered or the number
of Shares being sought in the Offer or both or changing the type of
consideration) by giving oral or written notice of such amendment to the
Shareholders. Any extension, termination or amendment will be followed as
promptly as practicable by public announcement, the announcement in the case of
an extension to be issued no later than 9:00 a.m., Eastern Standard Time, on the
next business day after the previously scheduled Expiration Date, in accordance
with the public announcement requirement of Rule 14d-4(c) under the Exchange
Act. Without limiting the manner in which the Purchasers may choose to make any
public announcement, except as provided by applicable law (including Rule
14d-4(c) under the Exchange Act), the Purchasers will have no obligation to
10
publish, advertise or otherwise communicate any such public announcement, other
than by issuing a release to the Dow Jones News Service or PR Newswire, and by
filing the amendment with the Securities Exchange Commission.
If the Purchasers extend the Offer, or if the Purchasers (whether before or
after their acceptance for payment of Shares) are delayed in payment for Shares
or are unable to pay for Shares pursuant to the Offer for any reason, then,
without prejudice to the Purchasers' rights under the Offer, the Purchasers may
retain tendered Shares, and such Shares may not be withdrawn except to the
extent tendering Shareholders are entitled to withdrawal rights as described in
Section 4. However, the ability of the Purchasers to delay payment for Shares
that the Purchasers have accepted for payment is limited by Rule 14e-1 under the
Exchange Act, which requires that the Purchasers pay the consideration offered
or return the securities deposited by or on behalf of holders of securities
promptly after the termination or withdrawal of the Offer.
If the Purchasers make a material change in the terms of the Offer or the
information concerning the Offer or waive a material condition of the Offer, the
Purchasers will extend the Offer to the extent required by Rules 14d-4(c),
14d-6(d) and 14e-1 under the Exchange Act. The minimum period during which an
offer must remain open following a material change in the terms of the offer or
information concerning the offer, other than a change in price or a change in
percentage of securities sought, will depend upon the facts and circumstances,
including the relative materiality of the change in the terms or information.
With respect to a change in price, including a reduction for dividends declared
or paid prior to the Expiration Date, or a change in percentage of securities
sought (other than an increase of not more than 2% of the securities sought),
however, a minimum ten business day period is generally required to allow for
adequate dissemination to security holders and for investor response. As used in
this Offer to Purchase, "business day" means any day other than a Saturday,
Sunday or a federal holiday, and consists of the time period from 12:01 a.m.
through 12:00 midnight, Pacific Standard Time.
Section 6. Certain Federal Income Tax Consequences. THE FEDERAL INCOME TAX
DISCUSSION SET FORTH BELOW IS INCLUDED HEREIN FOR GENERAL INFORMATION ONLY AND
DOES NOT PURPORT TO ADDRESS ALL ASPECTS OF TAXATION THAT MAY BE RELEVANT TO A
PARTICULAR SHAREHOLDER. For example, this discussion does not address the effect
of any applicable foreign, state, local or other tax laws other than federal
income tax laws. Certain Shareholders (including trusts, foreign persons,
tax-exempt organizations or corporations subject to special rules, such as life
insurance companies or S corporations) may be subject to special rules not
discussed below. This discussion is based on the Internal Revenue Code of 1986,
as amended (the "Code"), existing regulations, court decisions and Internal
Revenue Service ("IRS") rulings and other pronouncements. EACH SHAREHOLDER
TENDERING SHARES SHOULD CONSULT SUCH SHAREHOLDER'S OWN TAX ADVISOR AS TO THE
PARTICULAR TAX CONSEQUENCES TO SUCH SHAREHOLDER OF ACCEPTING THE OFFER,
INCLUDING THE APPLICATION OF THE ALTERNATIVE MINIMUM TAX AND FEDERAL, FOREIGN,
STATE, LOCAL AND OTHER TAX LAWS.
A taxable Shareholder will recognize a gain or loss on the sale of such
Shareholder's Shares in an amount equal to the difference between (i) the amount
realized by such Shareholder on the sale and (ii) such Shareholder's tax basis
in the Shares sold. If the Shareholder reports a loss on the sale, such loss
generally could not be currently deducted by such Shareholder except against
such Shareholder's capital gains from other investments.
The tax basis in the Shares of a Shareholder will depend upon individual
circumstances. Each Shareholder who plans to tender hereunder should consult
with the Shareholder's own tax advisor as to the Shareholder's tax basis in the
Shareholder's Shares and the resulting tax consequences of a sale.
A tax-exempt Shareholder (other than an organization described in Code
Section 501(c)(7) (social club), 501(c)(9) (voluntary employee benefit
association), 501(c)(17) (supplementary unemployment benefit trust), or
501(c)(20) (qualified group legal services plan)) should not be required to
recognize unrelated trade or business income upon the sale of its Shares
pursuant to the Offer, assuming that such Shareholder does not hold its Shares
as a "dealer" and has not acquired such Shares with debt financed proceeds.
Section 7. Effects of the Offer.
Effect on Trading Market. Due to the number of outstanding Shares and the
number of shareholders of the Company, the Purchasers have no reason to believe
that the Offer is likely to have any material impact on trading in the secondary
market for the Company's shares.
Voting Power of Purchasers. The Offer will not result in a change in the
voting control of the Company.
11
Section 8. Future Plans. Following the completion of the Offer, the
Purchasers, or their affiliates, may acquire additional Shares. Any such
acquisitions may be made through private purchases, one or more future tender
offers or by any other means deemed advisable or appropriate. Any such
acquisitions may be at a consideration higher or lower than the consideration to
be paid for the Shares purchased pursuant to the Offer. The Purchasers are
seeking to purchase a total of up to 1,000,000 Shares. If the Purchasers acquire
fewer than 1,000,000 Shares pursuant to the Offer, the Purchasers may seek to
make further purchases on the open market at prevailing prices, or solicit
Shares pursuant to one or more future tender offers at the same price, a higher
price or, if the Company's circumstances change, at a lower price.
Alternatively, the Purchasers may discontinue any further purchases of Shares
after termination of the Offer, regardless of the number of Shares purchased.
The Offer is not made with any current view toward or plan or purpose of
acquiring Shares in a series of successive and periodic offers. Nevertheless, as
noted above, the Purchasers reserve the right to gauge the response to this
solicitation, and, if not successful in achieving the Maximum Offer, may
consider future offers. Factors affecting the Purchasers' future interest in
acquiring additional Shares include, but are not limited to, the relative
success of the current Offer, any increase or decrease in the availability of
capital for investment by the Purchasers and their investment fund affiliates,
the current diversification and performance of each affiliated fund=s portfolio
of assets, including the mix and performance of their real estate interests and
securities, the development of any public market in the Shares or actions by
unrelated parties to tender for or purchase Shares, the status of and changes
and trends in the Company's operations, announcement of pending capital
transactions and local and national economic and financial market developments
and trends.
The Purchasers have no present intention to seek control of the Company or
to change the management or operations of the Company, to cause the Company to
engage in any extraordinary transaction, to cause any purchase, sale or transfer
of a material amount of the assets of the Company, to make any change in the
dividend policies, indebtedness or capitalization of the Company, or to change
the structure of the Company, the listing status of the Shares or the reporting
requirements of the Company.
Section 9. The Business of the Company. Information included herein
concerning the Company is derived from the Company's publicly-filed reports.
Information concerning the Company, its assets, operations and management is
contained in its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q
and other filings with the Securities and Exchange Commission. Such reports and
filings are available on the Commission's EDGAR system, at its internet web site
at www.sec.gov, and are available for inspection at the Commission's principal
office in Washington, D.C. and at its regional offices in New York, New York and
Chicago, Illinois. The Purchasers have relied on such information to the extent
information is presented herein concerning the Company, and expressly disclaim
any responsibility for the information included in such reports and extracted in
this Offer.
Section 10. Conflicts of Interest. The Purchasers are aware of no material
conflicts of interest affecting the Offer.
Section 11. Certain Information Concerning the Purchasers. The Purchasers
are Sutter Opportunity Fund 3, LLC and Robert Dixon. The principal business
address of each of the Purchasers is 220 Montgomery Street, Suite 2100, San
Francisco, California 94104 and their business telephone number is (415)
788-1441. For certain information concerning the directors and executive
officers of the Purchasers see Schedule I to this Offer to Purchase.
Except as otherwise set forth herein, (i) neither the Purchasers nor, to
the best knowledge of the Purchasers, the persons listed on Schedule I nor any
affiliate of the Purchasers beneficially owns or has a right to acquire any
Shares, (ii) neither the Purchasers nor, to the best knowledge of the
Purchasers, the persons listed on Schedule I nor any affiliate of the
Purchasers, or any director, executive officer or subsidiary of any of the
foregoing has effected any transaction in the Shares within the past 60 days,
(iii) neither the Purchasers nor, to the best knowledge of the Purchasers, the
persons listed on Schedule I nor any affiliate of the Purchasers have any
contract, arrangement, understanding or relationship with any other person with
respect to any securities of the Company, including but not limited to,
contracts, arrangements, understandings or relationships concerning the transfer
or voting thereof, joint ventures, loan or option arrangements, puts or calls,
guarantees of loans, guarantees against loss or the giving or withholding of
proxies, consents or authorizations, (iv) there have been no transactions or
business relationships which would be required to be disclosed under the rules
and regulations of the Commission between the Purchasers or, to the best
knowledge of the Purchasers, the persons listed on Schedule I, or any affiliate
of the Purchasers on the one hand, and the Company or its affiliates, on the
other hand, (v) there have been no contracts, negotiations or transactions
between the Purchasers, or to the best knowledge of the Purchasers any affiliate
of the Purchasers on the one hand, the persons listed on Schedule I, and the
Company or its affiliates, on the other hand, concerning a merger, consolidation
or acquisition, tender offer or other acquisition of securities, an election of
directors or a sale or other transfer of a material amount of assets, (vi) no
person listed on Schedule I has been convicted in a criminal proceeding during
12
the past five years (excluding traffic violations or similar misdemeanors), and
(vii) no person listed on Schedule I has been a party to any judicial or
administrative proceeding during the past five years (except for matters
dismissed without sanction or settlement) that resulted in a judgment, decree,
or final order enjoining the person from future violations of, or prohibiting
activities subject to, federal or state securities laws, or a finding of any
violation of federal or state securities laws. .
Section 12. Source of Funds. The Purchasers expect that approximately
$7,000,000 would be required to purchase up to 1,000,000 Shares, if tendered,
and an additional $20,000 may be required to pay related fees and expenses. The
Purchasers anticipate funding all of the purchase price and related expenses
through their existing liquid capital reserves. Accordingly, there are no
financing arrangements to fall through and no alternative financing plans.
Section 13. Conditions of the Offer. Notwithstanding any other term of the
Offer, the Purchasers shall not be required to accept for payment or to pay for
any Shares tendered unless all authorizations or approvals of, or expirations of
waiting periods imposed by, any court, administrative agency or other
governmental authority necessary for the consummation of the transactions
contemplated by the Offer shall have been obtained or occurred on or before the
Expiration Date.
The Purchasers shall not be required to accept for payment or pay for any
Shares not theretofore accepted for payment or paid for and may terminate or
amend the Offer as to such Shares if, at any time on or after the date of the
Offer and before the Expiration Date, any of the following conditions exists:
(a) a preliminary or permanent injunction or other order of any federal or
state court, government or governmental authority or agency shall have been
issued and shall remain in effect which (i) makes illegal, delays or otherwise
directly or indirectly restrains or prohibits the making of the Offer or the
acceptance for payment of or payment for any Shares by the Purchasers, (ii)
imposes or confirms limitations on the ability of the Purchasers effectively to
exercise full rights of ownership of any Shares, including, without limitation,
the right to vote any Shares acquired by the Purchasers pursuant to the Offer or
otherwise on all matters properly presented to the Company's Shareholders, (iii)
requires divestiture by the Purchasers of any Shares, (iv) causes any material
diminution of the benefits to be derived by the Purchasers as a result of the
transactions contemplated by the Offer or (v) might materially adversely affect
the business, properties, assets, liabilities, financial condition, operations,
results of operations or prospects of the Purchasers or the Company, in the
reasonable judgment of the Purchasers;
(b) there shall be any action taken, or any statute, rule, regulation or
order proposed, enacted, enforced, promulgated, issued or deemed applicable to
the Offer by any federal or state court, government or governmental authority or
agency, other than the application of the waiting period provisions of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, which might,
directly or indirectly, result in any of the consequences referred to in clauses
(i) through (v) of paragraph (a) above;
(c) any change or development shall have occurred or been threatened since
the date hereof, in the business, properties, assets, liabilities, financial
condition, operations, results of operations or prospects of the Company, which,
in the reasonable judgment of the Purchasers, is or may be materially adverse to
the Company, or the Purchasers shall have become aware of any fact that, in the
reasonable judgment of the Purchasers, does or may have a material adverse
effect on the value of the Shares;
(d) there shall have occurred (i) any general suspension of trading in, or
limitation on prices for, securities on any national securities exchange or in
the over-the-counter market in the United States, (ii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States, (iii) any limitation by any governmental authority on, or other
event which might affect, the extension of credit by lending institutions or
result in any imposition of currency controls in the United States, (iv) a
commencement of a war or armed hostilities or other national or international
calamity directly or indirectly involving the United States, (v) a material
change in United States or other currency exchange rates or a suspension of a
limitation on the markets thereof, or (vi) in the case of any of the foregoing
existing at the time of the commencement of the Offer, a material acceleration
or worsening thereof; or
(e) it shall have been publicly disclosed or the Purchasers shall have
otherwise learned that (i) more than fifty percent of the outstanding Shares
have been or are proposed to be acquired by another person (including a "group"
within the meaning of Section 13(d)(3) of the Exchange Act), or (ii) any person
or group that prior to such date had filed a Statement with the Commission
pursuant to Sections 13(d) or (g) of the Exchange Act has increased or proposes
to increase the number of Shares beneficially owned by such person or group as
disclosed in such Statement by two percent or more of the outstanding Shares.
The foregoing conditions are for the sole benefit of the Purchasers and may
13
be asserted by the Purchasers or may be waived by the Purchasers in whole or in
part at any time and from time to time prior to the Expiration Date in their
sole exercise of reasonable discretion. In the event of any waiver of a material
condition, the Purchaser will publicly announce such a waiver and the Offer will
remain open for a period of at least five business days following the
announcement of any such waiver of a material condition. Any termination by the
Purchasers concerning the events described above will be final and binding upon
all parties.
Section 14. Certain Legal Matters.
General. Except as set forth in this Section 14, the Purchasers are not
aware of any filings, approvals or other actions by any domestic or foreign
governmental or administrative agency that would be required prior to the
acquisition of Shares by the Purchasers pursuant to the Offer. Should any such
approval or other action be required, it is the Purchasers' present intention
that such additional approval or action would be sought. While there is no
present intent to delay the purchase of Shares tendered pursuant to the Offer
pending receipt of any such additional approval or the taking of any such
action, there can be no assurance that any such additional approval or action,
if needed, would be obtained without substantial conditions or that adverse
consequences might not result to the Company's business, or that certain parts
of the Company's business might not have to be disposed of or held separate or
other substantial conditions complied with in order to obtain such approval or
action, any of which could cause the Purchasers to elect to terminate the Offer
without purchasing Shares thereunder. The Purchasers' obligation to purchase and
pay for Shares is subject to certain conditions, including conditions related to
the legal matters discussed in this Section 14.
Antitrust. The Purchasers do not believe that the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, is applicable to the acquisition
of Shares pursuant to the Offer.
Margin Requirements. The Shares are not "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System and,
accordingly, such regulations are not applicable to the Offer.
State Takeover Laws. A number of states have adopted anti-takeover laws
which purport, to varying degrees, to be applicable to attempts to acquire
securities of corporations which are incorporated in such states or which have
substantial assets, security holders, principal executive offices or principal
places of business therein. The Purchasers are not seeking a controlling block
of Shares nor such a number of Shares as to fall within these state statutes
and, therefore, do not believe that any anti-takeover laws apply to the
transactions contemplated by the Offer.
Although the Purchasers have not attempted to comply with any state
anti-takeover statutes in connection with the Offer, the Purchasers reserve the
right to challenge the validity or applicability of any state law allegedly
applicable to the Offer and nothing in this Offer nor any action taken in
connection herewith is intended as a waiver of such right. If any state
anti-takeover statute is applicable to the Offer, the Purchasers might be unable
to accept for payment or purchase Shares tendered pursuant to the Offer or be
delayed in continuing or consummating the Offer. In such case, the Purchasers
may not be obligated to accept for purchase or pay for any Shares tendered.
Section 15. Fees and Expenses. The Purchasers have not retained any
independent party to act as depositary in connection with the Offer. The
Purchasers will pay all costs and expenses of printing, publication and mailing
of the Offer and all costs of transfer.
Section 16. Miscellaneous. THE OFFER IS NOT BEING MADE TO (NOR WILL TENDERS
BE ACCEPTED FROM OR ON BEHALF OF) SHAREHOLDERS IN ANY JURISDICTION IN WHICH THE
MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH
THE LAWS OF SUCH JURISDICTION. THE PURCHASERS ARE NOT AWARE OF ANY JURISDICTION
WITHIN THE UNITED STATES IN WHICH THE MAKING OF THE OFFER OR THE ACCEPTANCE
THEREOF WOULD BE ILLEGAL.
No person has been authorized to give any information or to make any
representation on behalf of the Purchasers not contained herein or in the Letter
of Transmittal and, if given or made, such information or representation must
not be relied upon as having been authorized.
November 15, 2004
SUTTER OPPORTUNITY FUND 3, LLC
ROBERT E. DIXON
14
SCHEDULE I
THE PURCHASERS AND THEIR PRINCIPALS
The Purchasers are Sutter Opportunity Fund 3, LLC and Robert E. Dixon.
Sutter Opportunity Fund 3, LLC is a privately held California limited liability
company managed by Sutter Capital Management, LLC, a California limited
liability company, which, in turn, is managed by Robert E. Dixon. Sutter
Opportunity Fund 3, LLC is a private investment fund formed by Sutter Capital
Management, LLC in 2004.
The principal business address for each of the Purchasers and Sutter
Capital Management , LLC is 220 Montgomery Street, Suite 2100, San Francisco,
California 94104, and the business telephone number for each is 415-788-1441.
Sutter Capital Management, LLC
Sutter Capital Management, LLC is a California limited liability company
formed in 1998. The managing member and controlling interest holder in Sutter
Capital Management, LLC is Robert E. Dixon. Robert E. Dixon has served as
co-chief executive officer and a director of Sutter Holding Company, Inc. since
March 2002. Mr. Dixon received his Bachelors degree in economics from the
University of California at Los Angeles in 1992. He worked for Lehman Brothers,
Inc. in equity sales and trading during 1993 and 1994. From October 1994 to
June, 1996 he worked for MacKenzie Patterson, Inc. as a securities research
analyst. Mr. Dixon became a Chartered Financial Analyst in 1996, and received
his Master of Business Administration degree from Cornell University in 1998. In
July of 1998 he began buying and selling securities for his own account and that
of the entities he controls, and he has principally been engaged in that
activity since that date. Mr. Dixon was a registered representative of North
Coast Securities from 1994 through 1997. Mr. Dixon is a U.S. citizen.
Exhibit (a)(2)
LETTER OF TRANSMITTAL
THE OFFER, WITHDRAWAL RIGHTS AND PRORATION PERIOD WILL
EXPIRE AT 12:00 MIDNIGHT, PACIFIC STANDARD TIME, ON
DECEMBER 20, 2004 (THE "EXPIRATION DATE") UNLESS
EXTENDED.
Deliver to: Sutter Capital Management, LLC
220 Montgomery Street, Suite 2100,
San Francisco, California 94104
For Assistance: (415) 788-1441
Via Facsimile: Facsimile: (415) 788-1515
E-Mail Address:
(PLEASE INDICATE CHANGES OR CORRECTIONS
TO THE ADDRESS PRINTED TO THE LEFT)
To participate in the Offer, a duly executed copy of this Letter of
Transmittal and any other documents required by this Letter of Transmittal must
be received by the Purchasers on or prior to the Expiration Date.
Delivery of this Letter of Transmittal or any other required documents to
an address other than as set forth above does not constitute valid delivery. The
method of delivery of all documents is at the election and risk of the tendering
Shareholder. Please use the pre-addressed, postage-paid envelope provided.
This Letter of Transmittal is to be completed by holders of COMMON STOCK,
PAR VALUE $.01 in WELLS REAL ESTATE INVESTMENT TRUST, INC., a Maryland
corporation (the "Company"), pursuant to the procedures set forth in the Offer
to Purchase (as defined below). Capitalized terms used herein and not defined
herein have the meanings ascribed to such terms in the Offer to Purchase.
PLEASE CAREFULLY READ THE ACCOMPANYING INSTRUCTIONS
Gentlemen:
The undersigned hereby tenders to SUTTER OPPORTUNITY FUND 3, LLC and ROBERT
E. DIXON (the "Purchasers") all of the Shares of common stock, $.01 par value
("Shares") in the Company held by the undersigned as set forth above (or, if
less than all such Shares, the number set forth below in the signature box), at
a purchase price equal to $7.00 per Share, less the amount of any dividends paid
or declared with respect to the Shares between November 15, 2004 and the
Expiration Date, and upon the other terms and subject to the conditions set
forth in the Offer to Purchase, dated November 15, 2004 (the "Offer to
Purchase") and in this Letter of Transmittal, as each may be supplemented or
amended from time to time (which together constitute the "Offer"). Receipt of
the Offer to Purchase is hereby acknowledged. The undersigned recognizes that,
if more than the maximum number of Shares sought are validly tendered prior to
or on the Expiration Date and not properly withdrawn, the Purchasers will, upon
the terms of the Offer, accept for payment from among those Shares tendered
prior to or on the Expiration Date a total of up to 1,000,000 Shares on a pro
rata basis, with adjustments to avoid purchases of certain fractional Shares,
based upon the number of Shares validly tendered prior to the Expiration Date
and not withdrawn. Subject to and effective upon acceptance for payment of any
of the Shares tendered hereby, the undersigned hereby sells, assigns and
transfers to, or upon the order of, Purchasers all right, title and interest in
and to such Shares which are purchased pursuant to the Offer. The undersigned
hereby irrevocably constitutes and appoints the Purchasers as the true and
lawful agent and attorney-in-fact and proxy of the undersigned with respect to
such Shares, with full power of substitution (such power of attorney and proxy
being deemed to be an irrevocable power and proxy coupled with an interest), to
deliver such Shares and transfer ownership of such Shares, on the books of the
Company, together with all accompanying evidences of transfer and authenticity,
to or upon the order of the Purchasers and, upon payment of the purchase price
in respect of such Shares by the Purchasers, to exercise all voting rights and
to receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares all in accordance with the terms of the Offer. Upon the
purchase of Shares pursuant to the Offer, all prior proxies and consents given
by the undersigned with respect to such Shares will be revoked and no subsequent
proxies or consents may be given (and if given will not be deemed effective). In
addition, by executing this Letter of Transmittal, the undersigned assigns to
the Purchasers all of the undersigned's rights to receive distributions from the
Company with respect to Shares which are purchased pursuant to the Offer, other
than dividends declared or paid through the Expiration Date and to change the
address of record for such distributions on the books of the Company. Upon
request, the Seller will execute and deliver, and irrevocably directs any
custodian to execute and deliver, any additional documents deemed by the
Purchasers to be necessary or desirable to complete the assignment, transfer and
purchase of such Shares.
The undersigned hereby represents and warrants that the undersigned owns
the Shares tendered hereby within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934, as amended, and has full power and authority to validly
tender, sell, assign and transfer the Shares tendered hereby, and that when any
such Shares are purchased by the Purchasers, the Purchasers will acquire good,
marketable and unencumbered title thereto, free and clear of all liens,
restrictions, charges, encumbrances, conditional sales agreements or other
obligations relating to the sale or transfer thereof, and such Shares will not
be subject to any adverse claim. Upon request, the undersigned will execute and
deliver any additional documents deemed by the Purchasers to be necessary or
desirable to complete the assignment, transfer and purchase of Shares tendered
hereby.
The undersigned understands that a tender of Shares to the Purchasers will
constitute a binding agreement between the undersigned and the Purchasers upon
the terms and subject to the conditions of the Offer. The undersigned recognizes
the right of the Purchasers to effect a change of distribution address to care
of Sutter Capital Management, LLC, at 150 Post Street, Suite 405, San Francisco,
California 94108. The undersigned recognizes that under certain circumstances
set forth in the Offer to Purchase, the Purchasers may not be required to accept
for payment any of the Shares tendered hereby. In such event, the undersigned
understands that any Letter of Transmittal for Shares not accepted for payment
will be destroyed by the Purchasers. All authority herein conferred or agreed to
be conferred shall survive the death or incapacity of the undersigned and any
obligations of the undersigned shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned. Except as stated in
the Offer to Purchase, this tender is irrevocable.
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SIGNATURE BOX
(Please complete Boxes A, B, C and D on the following page as necessary)
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Please sign exactly as your name X-------------------------------------
is printed (or corrected) above, (Signature of Owner) Date
and insert your Taxpayer
Identification Number or Social
Security Number in the space provided
below your signature.
For joint owners, each joint owner
must sign. (See Instructions 1) The
signatory hereto hereby certifies
under penalties of perjury the
statements in Box B, Box C and if
applicable, Box D. X-------------------------------------
(Signature of Owner) Date
If the undersigned is tendering less
than all Units held the number of
Units tendered is set forth below.
Otherwise, all Units held by the
undersigned are tendered hereby.
Taxpayer I.D. or Social#______________
_____________ Units Telephone No. (day)_______________
(eve.)______________
1
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BOX A
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Medallion Signature Guarantee
(Required for all Sellers)
(See Instruction 1)
Name and Address of Eligible Institution: ______________________________________
Authorized Signature ________________________________ Title ________________
Name _____________________________________________ Date ______________, 200_
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BOX B
SUBSTITUTE FORM W-9
(See Instruction 3 - Box B)
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The person signing this Letter of Transmittal hereby certifies the
following to the Purchasers under penalties of perjury:
(i) The TIN set forth in the signature box on the front of this Letter of
Transmittal is the correct TIN of the Shareholder, or if this box [ ] is
checked, the Shareholder has applied for a TIN. If the Shareholder has applied
for a TIN, a TIN has not been issued to the Shareholder, and either: (a) the
Shareholder has mailed or delivered an application to receive a TIN to the
appropriate IRS Center or Social Security Administration Office, or (b) the
Shareholder intends to mail or deliver an application in the near future (it
being understood that if the Shareholder does not provide a TIN to the
Purchasers within sixty (60) days, 31% of all reportable payments made to the
Shareholder thereafter will be withheld until a TIN is provided to the
Purchasers); and
(ii) Unless this box [ ] is checked, the Shareholder is not subject to
backup withholding either because the Shareholder: (a) is exempt from backup
withholding, (b) has not been notified by the IRS that the Shareholder is
subject to backup withholding as result of a failure to report all interest or
dividends, or (c) has been notified by the IRS that such Shareholder is no
longer subject to backup withholding.
Note: Place an "X" in the box in (ii) if you are unable to certify that the
Shareholder is not subject to backup withholding.
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BOX C
FIRPTA AFFIDAVIT
(See Instruction 3 - Box C)
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Under Section 1445(e)(5) of the Internal Revenue Code and Treas. Reg.
1.1445-11T(d), a transferee must withhold tax equal to 10% of the amount
realized with respect to certain transfers of an interest in a Company if 50% or
more of the value of its gross assets consists of U.S. real property interests
and 90% or more of the value of its gross assets consists of U.S. real property
interests plus cash equivalents, and the holder of the Company interest is a
foreign person. To inform the Purchasers that no withholding is required with
respect to the Shareholder's interest in the Company, the person signing this
Letter of Transmittal hereby certifies the following under penalties of perjury;
(i) Unless this box [ ] is checked, the Shareholder, if an individual, is a
U.S. citizen or a resident alien for purposes of U.S. income taxation, and if
other than an individual, is not a foreign corporation, foreign Company, foreign
estate or foreign trust (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations); (ii) the Shareholder's U.S. social security number
(for individuals) or employer identification number (for non-individuals) is
correctly printed in the signature box on the front of this Letter of
Transmittal; and (iii) the Shareholder's home address (for individuals), or
office address (for non-individuals), is correctly printed (or corrected) on the
front of this Letter of Transmittal. If a corporation, the jurisdiction of
incorporation is __________.
The person signing this Letter of Transmittal understands that this
certification may be disclosed to the IRS by the Purchasers and that any false
statements contained herein could be punished by fine, imprisonment, or both.
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BOX D
SUBSTITUTE FORM W-8
(See Instruction 4 - Box D)
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By checking this box [ ], the person signing this Letter of Transmittal
hereby certifies under penalties of perjury that the Shareholder is an "exempt
foreign person" for purposes of the backup withholding rules under the U.S.
federal income tax laws, because the Shareholder:
(i) Is a nonresident alien individual or a foreign corporation, Company,
estate or trust;
(ii) If an individual, has not been and plans not to be present in the U.S.
for a total of 183 days or more during the calendar year; and
(iii) Neither engages, nor plans to engage, in a U.S. trade or business
that has effectively connected gains from transactions with a broker or barter
exchange.
2
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Tender, Signature Requirements; Delivery. After carefully reading and
completing this Letter of Transmittal, in order to tender Shares a Shareholder
must sign at the "X" on the bottom of the first page of this Letter of
Transmittal and insert the Shareholder's correct Taxpayer Identification Number
or Social Security Number ("TIN") in the space provided below the signature. The
signature must correspond exactly with the name printed (or corrected) on the
front of this Letter of Transmittal without any change whatsoever. If this
Letter of Transmittal is signed by the registered Shareholder of the Shares a
Medallion signature guarantee on this Letter of Transmittal is required.
Similarly, if Shares are tendered for the account of a member firm of a
registered national security exchange, a member firm of the National Association
of Securities Dealers, Inc. or a commercial bank, savings bank, credit union,
savings and loan association or trust company having an office, branch or agency
in the United States (each an "Eligible Institution"), a Medallion signature
guarantee is required. In all other cases, signatures on this Letter of
Transmittal must be Medallion guaranteed by an Eligible Institution, by
completing the Signature guarantee set forth in BOX A of this Letter of
Transmittal. If any tendered Shares are registered in the names of two or more
joint holders, all such holders must sign this Letter of Transmittal. If this
Letter of Transmittal is signed by trustees, administrators, guardians,
attorneys-in-fact, officers of corporations, or others acting in a fiduciary or
representative capacity, any such person should so indicate when signing and
must submit proper evidence satisfactory to the Purchasers of its authority to
so act. For Shares to be validly tendered, a properly completed and duly
executed Letter of Transmittal, together with any required signature guarantees
in BOX A, and any other documents required by this Letter of Transmittal, must
be received by the Purchasers prior to or on the Expiration Date at its address
or facsimile number set forth on the front of this Letter of Transmittal. No
alternative, conditional or contingent tenders will be accepted. All tendering
Shareholders by execution of this Letter of Transmittal waive any right to
receive any notice of the acceptance of their tender.
2. Transfer Taxes. The Purchasers will pay or cause to be paid all transfer
taxes, if any, payable in respect of Shares accepted for payment pursuant to the
Offer.
3. U.S. Persons. A Shareholder who or which is a United States citizen or
resident alien individual, a domestic corporation, a domestic Company, a
domestic trust or a domestic estate (collectively "United States persons") as
those terms are defined in the Internal Revenue Code and Income Tax Regulations,
should complete the following:
Box B - Substitute Form W-9. In order to avoid federal income tax backup
withholding, the Shareholder must provide to the Purchasers the Shareholder's
correct Taxpayer Identification Number or Social Security Number ("TIN") in the
space provided below the signature line and certify, under penalties of perjury,
that such Shareholder is not subject to such backup withholding. The TIN that
must be provided is that of the registered Shareholder indicated on the front of
this Letter of Transmittal. If a correct TIN is not provided, penalties may be
imposed by the Internal Revenue Service ("IRS"), in addition to the Shareholder
being subject to backup withholding. Certain Shareholders (including, among
others, all corporations) are not subject to backup withholding. Backup
withholding is not an additional tax. If withholding results in an overpayment
of taxes, a refund may be obtained from the IRS.
Box C - FIRPTA Affidavit. To avoid potential withholding of tax pursuant to
Section 1445 of the Internal Revenue Code, each Shareholder who or which is a
United States Person (as defined Instruction 3 above) must certify, under
penalties of perjury, the Shareholder's TIN and address, and that the
Shareholder is not a foreign person. Tax withheld under Section 1445 of the
Internal Revenue Code is not an additional tax. If withholding results in an
overpayment of tax, a refund may be obtained from the IRS.
4. Foreign Persons. In order for a Shareholder who is a foreign person
(i.e., not a United States Person as defined in 3 above) to qualify as exempt
from 31% backup withholding, such foreign Shareholder must certify, under
penalties of perjury, the statement in BOX D of this Letter of Transmittal
attesting to that foreign person's status by checking the box preceding such
statement. However, such person will be subject to withholding of tax under
Section 1445 of the Code.
5. Additional Copies of Offer to Purchase and Letter of Transmittal.
Requests for assistance or additional copies of the Offer to Purchase and this
Letter of Transmittal may be obtained from the Purchasers by calling
415-788-1441.
3
Exhibit (a)(3)
November 15, 2004
TO: SHAREHOLDERS OF WELLS REAL ESTATE INVESTMENT TRUST, INC.
SUBJECT: OFFER TO PURCHASE SHARES FOR $7.00 PER SHARE
Dear Shareholder:
As described in the Offer to Purchase (the "Offer"), Sutter Opportunity
Fund 3, LLC and Robert E. Dixon (the "Purchasers") are offering to purchase up
to 1,000,000 Shares of Common Stock, Par Value $.01 ("Shares") in WELLS REAL
ESTATE INVESTMENT TRUST, INC., (the "Company") at a purchase price equal to:
$7.00 per Share
The Offer will provide you with an opportunity to liquidate all, or a
portion of, your investment in the Company without the usual transaction costs
associated with selling commissions, bid/ask spreads, and brokerage fees.
To respond to our offer, instruct your broker to tender your shares to
Depository Trust Company, or complete and return a Letter of Transmittal to the
Purchasers.
The Letter of Transmittal and a complete copy of the Offer documents may be
obtained free of charge by contacting the Purchasers at the number below, or
from the Securities Exchange Commission website at www.sec.gov. Once you reach
the website, under the section "Filings & Forms (EDGAR)", select "Search for
Company Filings", then select "Historical EDGAR Archives", then enter the
Company's name in the search bar. The Offer documents are filed on Schedule TO.
If you elect to tender your Shares via Letter of Transmittal, fax a duly
completed and executed copy of the Letter of Transmittal, and any other
documents required by the Letter of Transmittal, to the Purchasers at:
Sutter Capital Management, LLC
220 Montgomery Street, Suite 2100,
San Francisco, California 94104
Facsimile: (415) 788-1515
Email: info@suttercapital.com
If you have any questions or need assistance, please call the Purchasers at
(415) 788-1441. This Offer expires (unless extended) December 20, 2004.