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 OToole
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 persons 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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. Johnsons 1,423.4834 shares of the Issuers 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 Issuers 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 CommonWealths 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 panels 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 panels 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 Panels 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 OToole | |||||
Richard OToole | ||||||
Vice President | ||||||
Date: August 8, 2013 | RELATED REAL ESTATE RECOVERY FUND GP-A, LLC | |||||
By: | /s/ Richard OToole | |||||
Richard OToole | ||||||
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 OToole | |||||
Richard OToole | ||||||
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 OToole | |||||
Richard OToole | ||||||
Vice President | ||||||
Date: August 8, 2013 | RRERF ACQUISITION, LLC | |||||
By: | /s/ Richard OToole | |||||
Richard OToole | ||||||
Vice President | ||||||
Date: August 8, 2013 | DAVID R. JOHNSON | |||||
By: | /s/ David R. Johnson |
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 |
2
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 Panels 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 CWHs Declaration of Trust to remove CWHs 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 Panels 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 |
3
Exhibit 27
CORVEX AND RELATED COMMENT ON INTERIM ORDER BY THE ARBITRATION PANEL IN COMMONWEALTH REIT CASE
Panel Finds CommonWealth REITs 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 CommonWealths 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 Relateds 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: Todays decision is a tremendous victory for shareholder rights and for all CommonWealth shareholders. We are gratified by the decision and look forward to Octobers 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. Relateds 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.