================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
SCHEDULE TO-T/A
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 9)
KRUPP GOVERNMENT INCOME TRUST
(Name of Subject Company (Issuer))
BERKSHIRE INCOME REALTY, INC.
KRF COMPANY, L.L.C.
KRUPP FAMILY LIMITED PARTNERSHIP - 94
THE GEORGE KRUPP 1980 FAMILY TRUST
THE DOUGLAS KRUPP 1980 FAMILY TRUST
GEORGE D. KRUPP
DOUGLAS KRUPP
(Names of Filing Persons (Offerors))
__________________
SHARES OF BENEFICIAL INTEREST
(Title of Class of Securities)
__________________
NONE
(CUSIP Number of Class of Securities)
__________________
SCOTT D. SPELFOGEL, ESQ.
GENERAL COUNSEL
BERKSHIRE INCOME REALTY, INC.
ONE BEACON STREET, SUITE 1500
BOSTON, MASSACHUSETTS 02108
(617) 523-7722
(Name, address and telephone number of
person authorized to receive notices and
communications on behalf of filing persons)
WITH COPIES TO:
JAMES M. DUBIN, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
1285 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019-6064
(212) 373-3000
CALCULATION OF FILING FEE:
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
---------------------- ----------------------
$16,720,271.55 $3,344.05
* For purposes of calculating the filing fee only. This calculation assumes
the exchange of 4,515,941 shares of beneficial interest of Krupp Government
Income Trust for 668,810.86 shares of Series A Cumulative Redeemable
Preferred Stock of Berkshire Income Realty, Inc. valued as of January 10,
2003 at $25.00 per share.
** The amount of the filing fee, calculated in accordance with Rule 0-11 of
the Securities Exchange Act of 1934, as amended, equals 1/50 of 1% of the
transaction valuation.
[X] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number or the Form or Schedule and the date of its filing.
Amount Previously Paid: $9,947.50
Filing Party: Berkshire Income Realty, Inc.
Form or Registration No.: Form S-11 (333-98571)
Date Filed: August 22, 2002
The filing fee in the amount of $3,344.05 was offset against the
above-referenced S-11 fees.
[_] Check the box if the filing relates 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.
[X] Check the box if the filing is a final amendment reporting the results
of the tender offer.
2
This Amendment No. 9 amends and supplements the Tender Offer Statement
on Schedule TO filed with the SEC on January 10, 2003 (as amended, the "Schedule
TO") by Berkshire Income Realty, Inc., a Maryland corporation ("BIR"), BIR's
sole stockholder, KRF Company, L.L.C., a Delaware limited liability company
("KRF"), KRF's sole member, Krupp Family Limited Partnership - 94, a
Massachusetts limited partnership ("KFLP"), KFLP's limited partners, The George
Krupp 1980 Family Trust, a Massachusetts trust, and The Douglas Krupp 1980
Family Trust, a Massachusetts trust, and KFLP's general partners, George D.
Krupp and Douglas Krupp. The Schedule TO relates to the offer by BIR to exchange
shares of BIR's 9% Series A Cumulative Redeemable Preferred Stock for up to
4,515,941 shares of beneficial interest of Krupp Government Income Trust, a
Massachusetts business trust (the "Company"), on the terms and conditions
contained in BIR's prospectus, dated January 9, 2003, and in the related letter
of transmittal, copies of which are incorporated by reference on the Schedule TO
filed with the SEC on January 10, 2003 as Exhibits (a)(1) and (a)(2),
respectively (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Capitalized terms used herein but not
otherwise defined have the respective meanings given them in the Offer.
This Amendment No. 9 reports the results of the Offer and is the final
amendment to the Schedule TO.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 8 of the Schedule TO is hereby amended and supplemented by adding
the following:
The Offer expired at 5:00 p.m., New York City time, on April 2, 2003. A
total of approximately 4,632,630 Interests were validly tendered and not
withdrawn pursuant to the Offer. On April 4, 2003, BIR accepted all of those
Interests (the "Accepted Interests") in accordance with the terms of the Offer.
On April 4, 2003, BIR transferred all of the Accepted Interests to its
operating partnership, Berkshire Income Realty-OP, L.P. ("BIR-OP"), in exchange
for preferred limited partner interests in BIR-OP. Based on 15,053,135 Interests
issued and outstanding as of April 4, 2003, BIR-OP became the record owner of
approximately 30.78% of the outstanding Interests. BIR-OP will have the sole
power to vote or to direct the vote and to dispose or to direct the disposition
of the Accepted Interests. However, pursuant to a voting agreement to which the
Company, BIR and BIR-OP are parties, BIR has agreed to vote all of the Interests
owned by BIR or any of its affiliates (which include all of the Accepted
Interests) in proportion to the votes cast by the other holders of Interests.
Each of (i) the filing persons (BIR, KRF, KFLP, the Trusts, George D. Krupp and
Douglas Krupp) and (ii) BIR GP, L.L.C. (the general partner of BIR-OP and a
wholly owned subsidiary of BIR), by virtue of their beneficial ownership of
BIR-OP, may be deemed to beneficially own the Accepted Interests held of record
by BIR-OP.
ITEM 11. ADDITIONAL INFORMATION.
As more fully described under Item 8 above (which description is
incorporated herein in response to this Item 11), on April 4, 2003, BIR
completed the Offer.
On April 7, 2003, BIR issued a press release announcing the final
results of the Offer, a copy of which is filed as Exhibit (a)(19) to this
Amendment No. 9 and is incorporated herein by reference.
ITEM 12. EXHIBITS.
Item 12 of the Schedule TO is hereby amended and supplemented to add
the following exhibit:
3
(a)(19) Press Release, dated April 7, 2003.
4
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.
BERKSHIRE INCOME REALTY, INC.
By: /s/ David C. Quade
---------------------------------------
David C. Quade
President
KRF COMPANY, L.L.C.
By: Krupp Family Limited Partnership - 94,
its sole member
By: /s/ Douglas Krupp
---------------------------------------
Douglas Krupp
General Partner
KRUPP FAMILY LIMITED PARTNERSHIP - 94
By: /s/ Douglas Krupp
---------------------------------------
Douglas Krupp
General Partner
THE GEORGE KRUPP 1980 FAMILY TRUST
By: /s/ Lawrence I. Silverstein
---------------------------------------
Lawrence I. Silverstein
Trustee
THE DOUGLAS KRUPP 1980 FAMILY TRUST
By: /s/ Lawrence I. Silverstein
---------------------------------------
Lawrence I. Silverstein
Trustee
/s/ George D. Krupp
--------------------------------------------
GEORGE D. KRUPP
/s/ Douglas Krupp
--------------------------------------------
DOUGLAS KRUPP
Dated: April 7, 2003
5
INDEX TO EXHIBITS
EXHIBIT
NUMBER
-------
*(a) (1) Prospectus, dated January 9, 2003 (incorporated by reference from BIR's
Registration Statement on Form S-11(Registration No. 333-98571) (the "Form
S-11")).
*(a) (2) Form of Letter of Transmittal.
*(a) (3) Letter to Investors.
*(a) (4) Instructions for Completing the Letter of Transmittal.
*(a) (5) Brochure.
*(a) (6) Press Release, dated January 10, 2003.
*(a) (7) Transcripts of telephone messages to potential investors.
*(a) (8) Transcript of telephone message to potential investors.
*(a) (9) Letter to Brokers.
*(a) (10)Letter to Investors.
*(a) (11)Press Release, dated February 14, 2003.
*(a) (12)Letter of Transmittal.
*(a) (13)Prospectus Supplement No. 1, dated February 27, 2003.
*(a) (14)Letter to Investors.
*(a) (15)Letter to Investors.
*(a) (16)Transcript of telephone message to potential investors.
*(a) (17)Press Release, dated March 14, 2003.
*(a) (18)Prospectus Supplement No. 2, dated March 14, 2003.
(a) (19)Press Release, dated April 7, 2003.
(b) Not applicable.
*(d) (1) Waiver and Standstill Agreement, dated as of August 22, 2002, by and
among Krupp Government Income Trust, Krupp Government Income Trust II,
Berkshire Income Realty, Inc. and Berkshire Income Realty-OP, L.P.
(incorporated herein by reference to Exhibit 10.10 of the Form S-11).
6
*(d) (2) Form of Amended and Restated Voting Agreement, by and among Krupp
Government Income Trust, Krupp Government Income Trust II and Berkshire
Income Realty, Inc. (incorporated herein by reference to Exhibit 10.12 of
the Form S-11).
*(d) (3) Amendment to Waiver and Standstill Agreement, dated March 5, 2003.
*(g) (1) Transcript of telephone messages to potential investors.
*(g) (2) Power point presentation to information agents.
*(g)(3) Transcripts of telephone messages to potential investors.
*(h) Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP regarding federal
income tax considerations (incorporated herein by reference to Exhibit 8.1
of the Form S-11).
================================================================================
* Previously filed.
7