SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Amendment
No. 3
To
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.
[X] 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: $886.90
Form or Registration Number: Schedule TO
Filing Party: Above listed Bidders
Date Filed: 11/15/04
[ ] 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 filed by SUTTER OPPORTUNITY FUND
3, LLC, and ROBERT E. DIXON (together, the "Purchasers") for the purchase of 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") is hereby
amended as set forth in this amended Schedule TO. Except as expressly set forth
herein, the terms and the conditions of the Offer remain unchanged and all terms
used herein are as defined in the previously filed Schedule. The Expiration Date
of the Offer has been extended to January 14, 2005, or such other date to which
this Offer may be further extended (the "Expiration Date"). A total of 231
Shares have been tendered to the Purchasers and not withdrawn as of the date of
this amendment.
Item 12. Exhibits.
(a)(1) Revised Offer to Purchase dated November 15, 2004
(a)(4) Press release
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: December 22, 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) Revised Offer to Purchase dated November 15, 2004
(a)(4) Press release
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 JANUARY 14, 2005, 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 January 14, 2005, 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 0.02% 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:
- 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.
- 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 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
2
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
IMPORTANT
Any Shareholder desiring to tender any or all of such Shareholder's
Shares should 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.
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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 approximately 0.02% 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 31 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.
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
5
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, 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 0.02% 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:
- 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.
- 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 Company's quarterly report on Form 10-Q for the quarter ended
September 30, 2004 stated as follows:
"As our stock is currently not listed on a national exchange, there is no
significant public trading market for our stock. Consequently, there is the risk
that a stockholder may not be able to sell our stock at a time or price
acceptable to the stockholder. Our board of directors has authorized a share
redemption program for investors who have held their shares for more than one
year, subject to the limitation that (i) during any calendar year, we will not
redeem in excess of 3% of the weighted average common shares outstanding during
the prior calendar year, and (ii) funding for the redemption of shares will come
exclusively from the sale of shares pursuant to our dividend reinvestment plan
such that in no event shall the aggregate amount of redemptions under our share
redemption program exceed aggregate proceeds received from the sale of shares
pursuant to our dividend reinvestment plan. Our board of directors may modify or
terminate our share redemption program at any time in its discretion upon 30
days' notice."
The Company has disclosed that any stock repurchases in its redemption
plan as currently implemented will be at a fixed price of $10 a Share.
Accordingly, if your Shares are eligible for participation, if there are Company
funds available for repurchases pursuant to the plan, and if the Company's board
of directors in the exercise of its discretion elects to effect repurchases on
terms similar to those used in prior repurchases, then Share holders may be able
to receive a higher price for their Shares by participating in the redemption
plan than by acceptance of the offer. The Purchasers have no knowledge of the
timing or terms of any future Company redemption of 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.
7
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.
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 31 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.
8
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
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 thetendering
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 31 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 Shares 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.
9
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
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.
10
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
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. Federal Income Tax Consequences. THE FEDERAL INCOME TAX
DISCUSSION SET FORTH BELOW IS INCLUDED HEREIN 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. ACCORDINGLY, THE PURCHASERS RECOMMEND
THAT EACH SHAREHOLDER TENDERING SHARES 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
11
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.
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 are responsible for
determining the information extracted from reports and published in this Offer.
However, the Purchasers hereby expressly disclaim any responsibility for the
information included in the issuer's reports, as the Purchasers are not related
to the Company or its management, have no access to any inside information
concerning the Company and have no independent knowledge concerning the
information included in the Company's public reports and have no ability to
verify its accuracy or completeness.
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.
12
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
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 resources. Accordingly, there are no
financing arrangements to fall through and no alternative financing plans.
Sutter Opportunity Fund 3, LLC is a privately held investment fund managed by
Sutter Capital Management, LLC, which, in turn is managed by Robert Dixon. The
entities are privately held limited liability companies and neither prepares
audited financial statements. Sutter Opportunity Fund 3, LLC has total capital
contributions and binding capital commitments from members in the aggregate
amount of approximately $4.1 million. Robert Dixon has a net worth in excess of
$5 million and available liquid capital in excess of $3 million for purposes of
funding the purchase of Shares.
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 are not currently aware of any authorizations or
approvals of, or waiting periods imposed by, any such agency or authority and
necessary for the consummation of the transactions contemplated by the Offer.
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 reduction in the value of the Shares
proposed to be purchased in 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 every case in the reasonable judgment
of the Purchasers;
13
(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
which results in a significant reduction in the value of the Shares, 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 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.
14
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
15
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.
15
Exhibit (a)(4)
PRESS RELEASE
FOR IMMEDIATE RELEASE
Sutter Capital Management, LLC
220 Montgomery Street, Suite 2100
San Francisco, California 94104
(415) 788-1441
December 23, 2004
Re: Offer by SUTTER OPPORTUNITY FUND 3, LLC, and ROBERT E. DIXON (together,
the "Purchasers") to purchase up to one million Shares of Common Stock,
Par Value $.01 (the "Shares") in WELLS REAL ESTATE INVESTMENT TRUST,
INC., a Maryland corporation, at a purchase price equal to $7.00 per
Share
The Purchasers have extended the expiration date for their tender offer to
purchase Shares to January 14, 2005. As of the date hereof the Purchasers have
received and accepted a total of 231 Shares.
For further information, contact Robert E. Dixon at the above address
and telephone number.
LAW OFFICES OF
DERENTHAL & DANNHAUSER LLP
ONE POST STREET, SUITE 575
SAN FRANCISCO, CALIFORNIA 94104
(415) 981-4844
FACSIMILE: (415) 981-4840
December 22, 2004
BY EDGAR
Abby Adams, Esq.
Special Counsel
Office of Mergers
and Acquisitions
Division of Corporation Finance, Stop 3-3
Securities and Exchange Commission
Washington, D.C. 20549
Facsimile: (202) 942-9638
Re: Wells Real Estate Investment Trust, Inc.
Schedule TO-T, Amendment No. 2 filed December 13,2004
By Sutter Opportunity Fund 3, LLC; Sutter Capital Management, LLC;
and Robert E. Dixon
Dear Ms. Adams:
This letter is in response to your letter dated December 21, 2004
concerning the above-referenced filing. The numbered responses correspond to
your numbered comments. All references to revisions to the "Offer" refer to the
revised Offer to Purchase included as exhibit (a)(1) to amendment no. 3 to the
Schedule TO filed concurrently, with changes marked to reflect revisions to the
version included in amendment no. 2.
1. As counsel for the bidders named on the cover page of the Schedule
TO, I hereby acknowledge on their behalf that
o the bidders are responsible for the adequacy and accuracy of the
disclosure in the filings;
o staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose
the Commission from taking any action with respect to the
filing; and
o the bidders may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
Abby Adams, Esq.
December 22, 2004
Page 2
2. It would appear from the follow-up comment that you are referring to
comment 7, rather than 6, in your letter dated November 29. See the revision
under "Establishment of the Offer Price."
3. See the revised admonition.
4. See the revised paragraph (a) under Section 13.
Please contact me if you have any further questions concerning these
filings.
Very truly yours,
Paul J. Derenthal
cc: Mr. Robert E. Dixon