0001193125-13-325555.txt : 20130808 0001193125-13-325555.hdr.sgml : 20130808 20130808075359 ACCESSION NUMBER: 0001193125-13-325555 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20130808 DATE AS OF CHANGE: 20130808 GROUP MEMBERS: DAVID R. JOHNSON GROUP MEMBERS: KEITH MEISTER GROUP MEMBERS: RELATED FUND MANAGEMENT, LLC GROUP MEMBERS: RELATED REAL ESTATE RECOVERY FUND GP, LP GROUP MEMBERS: RELATED REAL ESTATE RECOVERY FUND GP-A, LLC GROUP MEMBERS: RELATED REAL ESTATE RECOVERY FUND, LP GROUP MEMBERS: RRERF ACQUISITION, LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CommonWealth REIT CENTRAL INDEX KEY: 0000803649 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 046558834 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-37896 FILM NUMBER: 131019945 BUSINESS ADDRESS: STREET 1: TWO NEWTON PLACE STREET 2: 255 WASHINGTON STREET CITY: NEWTON STATE: MA ZIP: 02458 BUSINESS PHONE: 6177968350 MAIL ADDRESS: STREET 1: TWO NEWTON PLACE STREET 2: 255 WASHINGTON STREET CITY: NEWTON STATE: MA ZIP: 02458 FORMER COMPANY: FORMER CONFORMED NAME: HRPT PROPERTIES TRUST DATE OF NAME CHANGE: 19980701 FORMER COMPANY: FORMER CONFORMED NAME: HEALTH & RETIREMENT PROPERTIES TRUST DATE OF NAME CHANGE: 19940811 FORMER COMPANY: FORMER CONFORMED NAME: HEALTH & REHABILITATION PROPERTIES TRUST DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Corvex Management LP CENTRAL INDEX KEY: 0001535472 IRS NUMBER: 274190685 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 712 FIFTH AVENUE, 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 BUSINESS PHONE: (212) 474-6700 MAIL ADDRESS: STREET 1: 712 FIFTH AVENUE, 23RD FLOOR CITY: NEW YORK STATE: NY ZIP: 10019 SC 13D/A 1 d582116dsc13da.htm AMENDMENT NO. 12 TO SCHEDULE 13D Amendment No. 12 to Schedule 13D

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 12)*

 

 

CommonWealth REIT

(Name of Issuer)

Common Shares of Beneficial Interest, par value $0.01 per share

(Title of Class of Securities)

203233101

(CUSIP Number)

Keith Meister

Corvex Management LP

712 Fifth Avenue, 23rd Floor

New York, New York 10019

(212) 474-6700

Richard O’Toole

Related Fund Management, LLC

60 Columbus Circle

New York, New York 10023

(212) 421-5333

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

August 8, 2013

(Date of Event Which Requires Filing of This Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box  ¨.

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

 

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

CORVEX MANAGEMENT LP

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    PN; IA

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Related Persons (as defined in this Schedule 13D) (the “Related Shares”) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D) (the “Additional Shares”). Each of the Corvex Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Related Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

KEITH MEISTER

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    UNITED STATES

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    IN

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Related Persons (as defined in this Schedule 13D) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D). Each of the Corvex Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Related Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

RELATED FUND MANAGEMENT, LLC

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    IA

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Corvex Persons (as defined in this Schedule 13D) (the “Corvex Shares”) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D). Each of the Related Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Corvex Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

RELATED REAL ESTATE RECOVERY FUND GP-A, LLC

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    OO

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Corvex Persons (as defined in this Schedule 13D) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D). Each of the Related Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Corvex Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

RELATED REAL ESTATE RECOVERY FUND GP, LP

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    PN

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Corvex Persons (as defined in this Schedule 13D) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D). Each of the Related Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Corvex Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

RELATED REAL ESTATE RECOVERY FUND, LP

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    WC

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    PN

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Corvex Persons (as defined in this Schedule 13D) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D). Each of the Related Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Corvex Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

RRERF ACQUISITION, LLC

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    AF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    DELAWARE

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    11,360,154.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    11,360,154.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    11,360,154.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    9.6%**

14  

Type of reporting person (see instructions)

 

    OO

 

* Includes (i) 5,675,250 common shares of beneficial interest of the Issuer held by the Corvex Persons (as defined in this Schedule 13D) and (ii) 9,654.441 Shares held in the aggregate by the Individual Shareholder (as defined in this Schedule 13D). Each of the Related Persons (as defined in this Schedule 13D) disclaims beneficial ownership with respect to the Corvex Shares and the Additional Shares.
**

The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,314,752.3752 Shares outstanding, comprised of (i) 684.3752 Shares which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 ½% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


CUSIP No. 203233101  

 

  1   

Names of reporting persons

 

DAVID R. JOHNSON

  2  

Check the appropriate box if a member of a group (see instructions)

a.  ¨        b.  ¨

 

  3  

SEC use only

 

  4  

Source of funds (see instructions)

 

    PF

  5  

Check box if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e)  ¨

 

  6  

Citizenship or place of organization

 

    UNITED STATES

Number of

shares

beneficially

owned by

each

reporting

person

with

 

     7    

Sole voting power

 

    0

     8   

Shared voting power

 

    9,654.441*

     9   

Sole dispositive power

 

    0

   10   

Shared dispositive power

 

    9,654.441*

11  

Aggregate amount beneficially owned by each reporting person

 

    9,654.441*

12  

Check box if the aggregate amount in Row (11) excludes certain shares (see instructions)  ¨

 

13  

Percent of class represented by amount in Row (11)

 

    —**

14  

Type of reporting person (see instructions)

 

    IN

 

*

Includes 684.3752 common shares of beneficial interest of the Issuer which would be received upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 1/2% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share).

**

Less than 1% based upon an aggregate of 118,314,752.3752 Shares, comprised of (i) 684.3752 Shares which would be outstanding upon the conversion of Mr. Johnson’s 1,423.4834 shares of the Issuer’s 6 1/2% Series D Cumulative Convertible Preferred Shares (calculated based upon a conversion rate of 0.480775 common shares per series D preferred share) and (ii) 118,314,068 Shares of beneficial interest outstanding as of August 5, 2013, as reported in the Issuer’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013, filed with the SEC on August 7, 2013.


This Amendment No. 12 to the Schedule 13D (this “Amendment No. 12”) relates to the common shares of beneficial interest, par value $0.01 per share (the “Shares”), of CommonWealth REIT, a Maryland real estate investment trust (the “Issuer” or “CommonWealth”) and amends the Schedule 13D filed on February 26, 2013, as amended by Amendment No. 1 thereto, filed with the SEC on February 27, 2013, Amendment No. 2 thereto, filed with the SEC on March 4, 2013, Amendment No. 3 thereto, filed with the SEC on March 4, 2013, Amendment No. 4 thereto, filed with the SEC on March 11, 2013, Amendment No. 5 thereto, filed with the SEC on March 13, 2013, Amendment No. 6 thereto, filed with the SEC on March 15, 2013, Amendment No. 7 thereto, filed with the SEC on March 28, 2013, Amendment No. 8 thereto, filed with the SEC on April 12, 2013, Amendment No. 9 thereto, filed with the SEC on April 18, 2013, Amendment No. 10 thereto, filed with the SEC on June 20, 2013 and Amendment No. 11 thereto, filed with the SEC on June 24, 2013 (the “Original Schedule 13D” and, together with this Amendment No. 12, the “Schedule 13D”). Capitalized terms used and not defined in this Amendment No. 12 have the meanings set forth in the Original Schedule 13D.

This Amendment No. 12 is being filed by (i) Corvex Management LP, a Delaware limited partnership (“Corvex”), and Keith Meister, (ii) Related Fund Management, LLC, a Delaware limited liability company (“Related”), Related Real Estate Recovery Fund GP-A, LLC, a Delaware limited liability company, Related Real Estate Recovery Fund GP, L.P., a Delaware limited partnership, Related Real Estate Recovery Fund, L.P., a Delaware limited partnership, and RRERF Acquisition, LLC, a Delaware limited liability company and (iii) David R. Johnson (the “Individual Shareholder”).

This Amendment No. 12 is being filed to amend Item 4 and Item 7 of the Schedule 13D as follows:


Item 4 Purpose of Transaction

Item 4 of the Schedule 13D is amended by adding the following:

On August 7, 2013, the arbitration panel issued an interim order concluding that CommonWealth’s bylaw provisions that sought to impose a minimum requirement of three years and three percent holdings for shareholders to request a record date for a consent solicitation are invalid as a matter of law. The arbitration panel’s interim order is attached as Exhibit 26 and incorporated by reference in this Item 4 in its entirety. In addition, on August 8, 2013, Corvex and Related issued a press release commenting on the arbitration panel’s interim order. The press release is attached as Exhibit 27 and incorporated by reference in this Item 4 in its entirety.


Item 7 Material to be Filed as Exhibits

Item 7 of the Schedule 13D is amended by adding thereto the following:

 

Exhibit 26    Arbitration Panel’s interim order dated August 7, 2013
Exhibit 27    Press Release dated August 8, 2013


SIGNATURES

After reasonable inquiry and to the best of our knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Date: August 8, 2013     CORVEX MANAGEMENT LP
    By:  

/s/ Keith Meister

      Keith Meister
      Managing Partner
Date: August 8, 2013     KEITH MEISTER
    By:  

/s/ Keith Meister

Date: August 8, 2013     RELATED FUND MANAGEMENT, LLC
    By:  

/s/ Richard O’Toole

      Richard O’Toole
      Vice President
Date: August 8, 2013     RELATED REAL ESTATE RECOVERY FUND GP-A, LLC
    By:  

/s/ Richard O’Toole

      Richard O’Toole
      Vice President
Date: August 8, 2013     RELATED REAL ESTATE RECOVERY FUND GP, L.P.
    By: Related Real Estate Recovery Fund GP-A, LLC, its general partner
    By:  

/s/ Richard O’Toole

      Richard O’Toole
      Vice President


Date: August 8, 2013     RELATED REAL ESTATE RECOVERY FUND, L.P.
    By: Related Real Estate Recovery Fund GP, L.P., its general partner
    By: Related Real Estate Recovery Fund GP-A, LLC, its general partner
    By:  

/s/ Richard O’Toole

      Richard O’Toole
      Vice President
Date: August 8, 2013     RRERF ACQUISITION, LLC
    By:  

/s/ Richard O’Toole

      Richard O’Toole
      Vice President
Date: August 8, 2013     DAVID R. JOHNSON
    By:  

/s/ David R. Johnson

EX-99.26 2 d582116dex9926.htm EX-26 EX-26

Exhibit 26

IN THE MATTER OF AN ARBITRATION BETWEEN

 

COMMONWEALTH REIT, et al.,

   )
)
 

Claimants and Counterclaim

Respondents,

   )
)
 

 

REIT MANAGEMENT & RESEARCH LLC,

   )
)
 

 

Claimant,

   )
)
  AAA No. 11-512-Y-276-13

v.

   )
)
)
 

CORVEX MANAGEMENT LP, et al.,

   )
)
 

Respondents and Counterclaimants.

   )
)
 

INTERIM ORDER GRANTING IN PART AND DENYING IN PART

RESPONDENTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

Upon consideration of all of the briefs, affidavits and exhibits submitted on behalf of the parties in support of and in opposition to the Motion for Partial Summary Judgment of Respondents and Counterclaimants Corvex Management LP and Related Fund Management, LLC (hereafter “Respondents”) on Counts I through VII of their Counterclaims (the “Motion”), and upon hearing and considering the oral arguments presented by counsel at a July 26, 2013 hearing held in New York, New York, the Motion is hereby GRANTED in part and DENIED in part.

 

  1.

With respect to what the parties have referred to as the 3+3 bylaws (which sets a minimum requirement for requesting a record date for a consent solicitation as holding 3% of the company stock for a 3 year period), the Panel has concluded as a matter of law that while some holding period and some minimum threshold ownership level either singularly or in combination can be set in the bylaws as a condition to a shareholder or shareholders obtaining a record date for a consent solicitation, the Trustees may not adopt either a minimum ownership threshold or a minimum holding period which operating either

 

1


  separately or together substantially impairs the right of shareholders to proceed with a consent solicitation by making the obtaining of a record date on a consent solicitation unreasonably difficult to achieve. The Panel has determined that the 3+3 bylaws exceed this standard as a matter of law even though the Panel concludes that there is no evidence that the Trustees of CommonWealth REIT (“CWH”) were not acting in good faith in adopting the 3+3 bylaws.

The Panel further has determined that the effect of striking the 3+3 bylaws as invalid is to reinstate the prior version of that bylaw. The prior version of the 3+3 bylaw, which Respondents also have challenged, provided for a $2,000 stock ownership threshold and a 1- year holding period for a consent solicitation (the “2+1 bylaws”).

The validity of the 2+1 bylaws shall be determined, if necessary, after the full evidentiary hearing scheduled to commence on October 7, 2013 together with all of the other multiple unresolved issues raised by the Motion and other issues pertinent to the claims and counterclaims which have been alleged in this arbitration.

Having determined that the 3+3 bylaws are invalid as set out above, pending further order of the Panel or valid action of CWH, the Panel further finds that the 2+1 bylaws are in effect.

This Order should not be interpreted to hold as a matter of law that the ownership threshold or holding periods in the 2+1 bylaws are valid limits, but rather only that the limits in the 3+3 bylaws are invalid.

It is therefore ORDERED that Respondents’ Motion for Partial Summary Judgment is granted striking the current version of the 3+3 bylaws and that the prior version of such bylaws (the 2+1 bylaws) providing for a $2,000 ownership threshold and a 1 year holding period in order to apply for a record date for a consent solicitation is in effect and in force until further order of the Panel or valid action of CWH.

 

  2.

The balance of the relief requested by Respondents’ Motion for Partial Summary Judgment is DENIED so as to afford all Parties the opportunity at the evidentiary hearing to present and cross examine

 

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  the pertinent evidence on all remaining claims, counterclaims and issues in the case. It is the intention of the Panel to render a single, final dispositive award, following the conclusion of the scheduled evidentiary hearing.

 

  3. By way of guidance to the parties on one of the issues raised by the Motion, the parties hereby are informed that it is the Panel’s preliminary view that the opt-in by CWH to Section 3-803 of the Maryland General Corporation Law does not eliminate or otherwise modify the right of the shareholders of CWH under CWH’s Declaration of Trust to remove CWH’s Trustees without cause; this view is subject to change based upon the arguments and evidence presented at the evidentiary hearing in October 2013.

 

  4. Given the Panel’s rulings above, a decision on Respondents’ additional motion for an order directing the officers of CWH to call a special meeting would be premature. Accordingly, that motion hereby is taken off calendar without prejudice to further consideration at a later date, if appropriate.

 

  5. Any relief requested in connection with the Motion by any Party, which is not specifically granted, is DENIED.

 

Dated: August 7, 2013  

/s/ Henry J. Silberberg

 
  Henry J. Silberberg, Panel Chair  
Dated: August 7, 2013  

/s/ Adrian M. Overstreet

 
  Adrian M. Overstreet, Arbitrator  
Dated: August 7, 2013  

/s/ William B. Chandler, III

 
  William B. Chandler, III, Arbitrator  

 

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EX-99.27 3 d582116dex9927.htm EX-27 EX-27

Exhibit 27

CORVEX AND RELATED COMMENT ON INTERIM ORDER BY THE ARBITRATION PANEL IN COMMONWEALTH REIT CASE

Panel Finds CommonWealth REIT’s Bylaw Provisions That Sought to Impose a Minimum Requirement of Three Years and Three Percent Holdings for Shareholders to Request a Record Date for a Consent Solicitation are Invalid as a Matter of Law

NEW YORK, August 8, 2013 – Corvex Management LP (“Corvex”) and Related Fund Management, LLC (“Related”), whose separately managed investment funds collectively own approximately 9.6% of the outstanding shares of CommonWealth REIT (NYSE:CWH), commented on an interim order issued yesterday by the arbitration panel.

The arbitration panel concluded that bylaw provisions that sought to impose a minimum requirement of three years and three percent holdings for shareholders to request a record date for a consent solicitation are invalid as a matter of law. The panel also noted in the ruling its preliminary view that, contrary to CommonWealth’s public assertions, the opt-in by CommonWealth in April 2013 to Section 3-803 of the Maryland General Corporation Law does not eliminate or otherwise modify the right of the shareholders of CommonWealth to remove trustees without cause. An evidentiary hearing scheduled for October 2013 will address the validity of Corvex and Related’s consent solicitation, in which the holders of over 70% of the outstanding shares voted to remove the entire board.

Keith Meister of Corvex and Jeff T. Blau of Related issued the following statement: “Today’s decision is a tremendous victory for shareholder rights and for all CommonWealth shareholders. We are gratified by the decision and look forward to October’s evidentiary hearing and an expeditious and favorable resolution that will enable shareholders to regain control of CommonWealth by year-end.”

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About Corvex Management LP

Corvex Management LP is an investment firm headquartered in New York, New York that engages in value-based investing across the capital structure in situations with identifiable catalysts. Corvex was founded in March 2011 and follows an opportunistic approach to investing with a specific focus on equity investments, special situations and distressed securities largely in North America.

About Related Fund Management LLC

Related Fund Management, LLC is an affiliate of Related Companies, one of the most prominent privately-owned real estate firms in the United States. Formed 40 years ago, Related is a fully-integrated, highly diversified industry leader with experience in virtually every aspect of development, acquisitions, management, finance, marketing and sales. Related’s existing portfolio of real estate assets, valued at over $15 billion, is made up of best-in-class mixed-use, residential, retail, office and affordable properties. For more information about Related Companies please visit www.related.com.