SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 13)*
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)
November 18, 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 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 118,388,202.3752 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) 118,387,518 Shares of beneficial interest outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 7, 2013. |
This Amendment No. 13 to the Schedule 13D (this Amendment No. 13) 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, Amendment No. 11 thereto, filed with the SEC on June 24, 2013 and Amendment No. 12 thereto, filed with the SEC on August 8, 2013 (the Original Schedule 13D and, together with this Amendment No. 13, the Schedule 13D). Capitalized terms used and not defined in this Amendment No. 13 have the meanings set forth in the Original Schedule 13D.
This Amendment No. 13 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. 13 is being filed to amend Item 2, Item 4, Item 5 and Item 7 of the Schedule 13D as follows:
Item 2 | Identity and Background |
Item 2 of the Schedule 13D is amended and restated to read as follows:
(a) This Schedule 13D is filed jointly by the following entities and persons, all of whom are together referred to herein as the Reporting Persons:
(i) Corvex Management LP, a Delaware limited partnership (Corvex), and Keith Meister, a U.S. citizen (collectively, the Corvex Persons). This Schedule 13D reports Shares held for the account of certain private investment funds for which Corvex acts as investment adviser, including Corvex Master Fund, LP, a Cayman Islands limited partnership, the general partner of which is controlled by Mr. Meister (collectively, the Corvex Funds). The general partner of Corvex is also controlled by Mr. Meister. The principal business address of each of Corvex and Mr. Meister is 712 Fifth Avenue, 23rd Floor, New York, New York 10019.
(ii) Related Fund Management, LLC, a Delaware limited liability company (Related Management), Related Real Estate Recovery Fund GP-A, LLC, a Delaware limited liability company (Related Recovery GP-A), Related Real Estate Recovery Fund GP, L.P., a Delaware limited partnership (Related Recovery GP), Related Real Estate Recovery Fund, L.P., a Delaware limited partnership (Related Recovery Fund), and RRERF Acquisition, LLC, a Delaware limited liability company (RRERF and, together with Related Management, Related Recovery GP-A, Related Recovery GP, and Related Recovery Fund the Related Persons). This Schedule 13D reports Shares held for the account of RRERF. Related Recovery Fund owns a majority of the membership interests in, and is the controlling member of, RRERF. Related Recovery Fund is a private investment fund for which Related Management acts as investment adviser. Related Management holds all membership interests of Related Recovery GP-A, which, in turn, is the general partner of Related Recovery GP. Related Recovery GP is the general partner of Related Recovery Fund.
(iii) This Schedule 13D reports Shares held for the account of David R. Johnson, a U.S. citizen. Mr. Johnson is engaged in the business of commercial and residential real estate sales and leasing. Mr. Johnsons principal business address is 206 Island View Lane, Seneca, South Carolina 29672.
A joint filing agreement of the Reporting Persons is attached as Exhibit 1 to this Schedule 13D.
(b) The Related Companies, L.P., a New York limited partnership (Related Companies), is the managing member of Related Management. Related Companies develops, manages and finances real estate developments. Related Companies general partner is The Related Realty Group, Inc., a Delaware corporation (Realty Group) owned by Stephen M. Ross (Ross). The name, citizenship, present principal occupation or employment and business address of each director and executive officer of each of the Related Persons, Related Companies and Realty Group is attached as Exhibit 2 to the Schedule 13D. The principal business address of each of the Related Persons, Related Companies and Realty Group is 60 Columbus Circle, New York, NY 10023. Each of Related Companies, Realty Group, Ross and the other individuals listed in Exhibit 2 disclaim beneficial ownership of all Shares held by RRERF or any other Reporting Person.
(c) During the last five years, none of the Reporting Persons nor, to their knowledge, any of the Related Companies, Realty Group or the individuals listed on Exhibit 2, has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(d) Information in this Schedule 13D concerning each Corvex Person has been provided by each such Corvex Person and none of the other Reporting Persons assumes responsibility for such information. Information contained in this Schedule 13D concerning each Related Person has been provided by each such Related Person and none of the other Reporting Persons assumes responsibility for such information. Information contained in this Schedule 13D concerning Mr. Johnson has been provided by Mr. Johnson and none of the other Reporting Persons assumes responsibility for such information.
Item 4 | Purpose of Transaction |
Item 4 of the Schedule 13D is amended by adding thereto the following:
On November 18, 2013, following an evidentiary hearing, the arbitration panel issued an interim award. The arbitration panels interim award is attached as Exhibit 28 and incorporated by reference in this Item 4 in its entirety. In addition, on November 18, 2013, Corvex and Related issued a press release commenting on the arbitration panels interim award. The press release is attached as Exhibit 29 and incorporated by reference in this Item 4 in its entirety.
Item 5 Interest in Securities of the Issuer
Item 5 of the Schedule 13D is amended and restated to read as follows:
The percentages set forth above and in the rest of this Schedule 13D are calculated based upon an aggregate of 118,388,202.3752 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) 118,387,518 Shares outstanding as of November 4, 2013, as reported in the Issuers Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2013, filed with the SEC on November 7, 2013.
(a)-(b) Each of the Corvex Persons may be deemed to be the beneficial owner of 11,360,154.441 Shares (representing approximately 9.6% of the Issuers outstanding Shares), which includes: (i) 5,675,250 Shares held on behalf of the Corvex Funds (the Corvex Shares), (ii) 5,675,250 Shares held on behalf of RRERF (the Related Shares) and (iii) 9,654.441 Shares held by the Individual Shareholder (the Additional Shares). By virtue of his position as a control person of the general partner of Corvex, Mr. Meister and Corvex may be deemed to share voting power and dispositive power with respect to the Corvex Shares. In addition, (A) by virtue of the Agreement, the Corvex Persons may be deemed to share with the Related Persons voting power and dispositive power with respect to the Related Shares and (B) by virtue of the Support Agreement, the Corvex Persons may be deemed to share with the Related Persons and the Individual Shareholder voting power and dispositive power with respect to the Additional Shares owned by the Individual Shareholder. Each of the Corvex Persons disclaims beneficial ownership with respect to the Related Shares and the Additional Shares.
Each of the Related Persons may be deemed to be the beneficial owner of 11,360,154.441 Shares (representing approximately 9.6% of the Issuers outstanding Shares), which includes: (i) the Related Shares, (ii) the Corvex Shares and (iii) the Additional Shares. By virtue of their relationship, as previously described in Item 2, the Related Persons may be deemed to share voting power and dispositive power with respect to the Related Shares. In addition, (A) by virtue of the Agreement, the Related Persons may be deemed to share with the Corvex Persons voting power and dispositive power with respect to the Corvex Shares and (B) by virtue of the Support Agreements, the Related Persons may be deemed to share with the Corvex Persons and the Individual Shareholder voting power and dispositive power with respect to the Additional Shares owned by the Individual Shareholder. Each of the Related Persons disclaims beneficial ownership with respect to the Corvex Shares and the Additional Shares.
Mr. Johnson beneficially owns 9,654.441 Shares (representing less than 1% of the Issuers outstanding Shares) which number includes 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).
The filing of this Schedule 13D shall not be construed as an admission that any of the Reporting Persons is the beneficial owner of any securities covered by the Schedule 13D.
(c) Except as set forth on Exhibit 5 to this Schedule 13D, there have been no transactions with respect to the Shares during the sixty days prior to the date of filing of this Schedule 13D by any of the Reporting Persons or, to their knowledge, any other person or entity referred to in Item 2 of this Schedule 13D.
(d) Except as set forth below, no person is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Shares beneficially owned by any of the Reporting Persons, other than the Reporting Persons themselves and investment funds, institutions and mutual funds for which some of the Reporting Persons provide management services.
The limited partners of (or investors in) each of the private investment funds, or their respective subsidiaries or affiliated entities, for which Corvex or its affiliates acts as general partner and/or investment adviser have the right to participate in the receipt of dividends from, or proceeds from the sale of, the Shares held for the accounts of their respective funds in accordance with their respective limited partnership interests (or investment percentages) in their respective funds.
The limited partners of Related Recovery Fund have the right to participate in the receipt of certain dividends and proceeds from the sale of the Shares, in each case in accordance with their respective limited partnership interests and Related Recovery Funds membership interest in RRERF. Related Real Estate Recovery Fund Master AIV, L.P., (Master AIV) owns the membership interests in RRERF that are not owned by Related Recovery Fund. Master AIV has the right to participate in the receipt of certain dividends and proceeds from the sale of the Shares in accordance with its membership interest in RRERF.
(e) | Not applicable. |
Item 7 | Material to be Filed as Exhibits |
Item 7 of the Schedule 13D is amended by adding thereto the following:
Exhibit 28 | Arbitration Panels interim award dated November 18, 2013 | |
Exhibit 29 | Press Release dated November 18, 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: November 19, 2013 | CORVEX MANAGEMENT LP | |||||
By: | /s/ Keith Meister | |||||
Keith Meister | ||||||
Managing Partner | ||||||
Date: November 19, 2013 | KEITH MEISTER | |||||
By: | /s/ Keith Meister | |||||
Date: November 19, 2013 | RELATED FUND MANAGEMENT, LLC | |||||
By: | /s/ Richard OToole | |||||
Richard OToole | ||||||
Vice President | ||||||
Date: November 19, 2013 | RELATED REAL ESTATE RECOVERY FUND GP-A, LLC | |||||
By: | /s/ Richard OToole | |||||
Richard OToole | ||||||
Vice President | ||||||
Date: November 19, 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: November 19, 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: November 19, 2013 | RRERF ACQUISITION, LLC | |||||
By: | /s/ Richard OToole | |||||
Richard OToole | ||||||
Vice President | ||||||
Date: November 19, 2013 | DAVID R. JOHNSON | |||||
By: | /s/ David R. Johnson |
Exhibit 28
IN THE MATTER OF AN ARBITRATION BETWEEN
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COMMONWEALTH REIT, et al., | ) | |||
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Claimants and Counterclaim |
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Respondents, and |
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REIT MANAGEMENT & RESEARCH LLC, | ) | |||
) | AAA No. 11-512-Y-276-13 | |||
Claimant, |
) | |||
v. | ) | |||
) | ||||
CORVEX MANAGEMENT LP, et al., | ) | |||
) | ||||
Respondents and Counterclaimants. |
) |
INTERIM ARBITRATION AWARD
THE UNDERSIGNED ARBITRATORS, Henry J. Silberberg, William B. Chandler III and Adrian M. Overstreet, having been designated in accordance with Article XVI of the Bylaws of Claimant and Counterclaim Respondent CommonWealth REIT (CWH), and having been duly sworn, and having duly heard the proofs and allegations of the parties, hereby issue this INTERIM ARBITRATION AWARD (Interim Award). This Interim Award is being rendered (i) following an evidentiary hearing which occurred on October 7 through 11 and October 14 through 17, 2013, and (ii) after consideration of all of the pleadings, the oral and documentary evidence presented by the parties, the oral presentations of counsel, and the prehearing and post-hearing briefs of the parties.
CWH was represented at the evidentiary hearing by the law firms of Nixon Peabody LLP and Gallagher Evelius & Jones LLP.
Claimants and Counterclaim Respondents Barry M. Portnoy, Adam D. Portnoy, Joseph L. Morea, William A. Lamkin and Frederick N. Zeytoonjian (the Trustees or the Individual Claimants, and together with CWH, Claimants) were represented at the evidentiary hearing by the law firm of Skadden Arps Slate Meagher & Flom LLP.
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Respondents and Counterclaimants Corvex Management LP (Corvex) and Related Fund Management, LLC (Related, and together with Corvex, Respondents) were represented at the evidentiary hearing by the law firm of Gibson, Dunn & Crutcher LLP.
I. BACKGROUND
At the heart of this dispute is the validity of a consent solicitation initiated by Respondents to remove the Trustees of CWH by a vote of two-thirds of CWHs outstanding shares. Although both sides presented copious amounts of expert testimony during the hearing, there is no evidence of a comparable consent solicitation because the circumstances here are so unusual.
CWH is a Maryland Real Estate Investment Trust (REIT) organized under Maryland law. Under Maryland law, Maryland REITs are governed by a Declaration of Trust (which, with limited exceptions not applicable here, cannot be amended without a vote of the Board of Trustees and shareholders) and Bylaws which must be not inconsistent with law or with [the] Declaration [of Trust].1 CWH has a Board of five Trusteescurrently the five Individual Claimants. CWH has no employees, and its operations are entirely run by an external manager, Reit Management and Research LLC (RMR). RMR is owned by CWHs two Managing Trustees, Barry Portnoy and his son Adam Portnoy.
CWH has a staggered Board of Trustees divided into three classes,2 and its Declaration of Trust gives the holders of two-thirds of the common shares the right, by vote or consent, to remove Trustees at any time, with or without cause.3. In February 2009, CWHs Trustees adopted bylaws that, among other things, when read together, set a requirement that shareholders must hold a minimum of $2,000 in market value (or 1% of CWHs common shares) for at least one year before they could request a record date to take action by written consent (the $2,000/1-Year Requirement).4 In January 2012, CWHs Trustees adopted bylaws in Section 2.14.1(b)(ii) requiring that, among other things, any shareholder wishing to nominate an individual to CWHs Board of Trustees must hold at least 3% of CWHs common shares continuously for at least three years (the 3+3 Requirement). CWHs Trustees then also adopted bylaws in Section 2.15(a) importing or incorporating by reference this 3+3 Requirement to the process for requesting
1 | Decl. of Trust § 3.3; see also Section 8-301(11) of the Maryland Code. Only the Trustees may adopt, amend or repeal CWHs Bylaws. CWH Decl. of Trust, § 3.3. |
2 | CWH Decl. of Trust, § 2.1 (classifying the Board). |
3 | CWH Decl. of Trust, § 2.3 (A Trustee may be removed at any time with or without cause by a vote or consent of holders of Shares representing two-thirds of the total votes authorized to be cast by Shares then outstanding and entitled to vote thereon.). |
4 | CWH 2009 Bylaws, §§ 2.14.1(a); 2.15 (a). |
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a record date in order to act by written consent. Next, in March 2013 the Trustees amended Section 3.14 (captioned Removal of Trustees) to provide, inter alia, that a CWH shareholder seeking to take action by written consent to remove one or more Trustees shall comply with all the requirements in Article II applicable to a shareholder seeking to nominate an individual for election to the Board of Trustees. Read collectively, these bylaws imposed the 3+3 Requirement upon any shareholders seeking to remove Trustees or seeking to nominate a person or persons to be a Trustee. Thus, in order to even request a record date for shareholders to take action by written consent, the Bylaws required a shareholder or group of shareholders to hold at least 3% of CWHs common stock for a period of three years.
In addition to the holding requirement Bylaws, at various times, CWHs Trustees adopted a series of bylaws containing information and documentation requirements for, amongst other things, obtaining a record date for a consent solicitation (the Information Bylaws), and certain timing requirements, including the time in which the Trustees must act in responding to a record date request and the time in which the Trustees must certify the results of a consent solicitation (the Timing Bylaws), as well as the time in which a shareholder must complete a consent solicitation (the Consent Solicitation Window). Respondents contest the validity of these Bylaws (collectively the Challenged Bylaws) in whole or in part.
Corvex and Related became shareholders of CWH beginning on January 16, 2013, and acquired approximately 9.8% of the outstanding common shares by late February of 2013. In February 2013, CWH initiated a secondary stock offering. On February 26, 2013, Corvex and Related filed a statement with the SEC publicly disclosing that they had written the Board of Trustees of CWH offering to purchase the outstanding shares of CWH at a premium if CWH ceased the secondary offering. In the alternative, Corvex and Related announced that they were prepared to seek the removal of the entire Board of Trustees of CWH through an action by written consent.
The Board of Trustees of CWH refused to stop the secondary offering and Corvex and Related filed suit in both the City Court of Baltimore and the United States District Court for the District of Massachusetts attempting to stop the secondary offering, seeking derivative relief for the alleged mismanagement of CWH and seeking to have certain bylaws which they viewed as impeding their right to act by written consent to remove the Trustees of CWH declared invalid.
While the lawsuits were pending CWH completed the secondary offering referenced above.
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The City Court of Baltimore ordered that the CWH Bylaws required the parties to arbitrate their dispute. Respondents later joined the three arbitration proceedings which CWH, the Trustees and RMR, respectively, had already begun.5 On May 23, 2013, the parties stipulated to the consolidation of these three arbitrations in which this Panel had been appointed.
Respondents viewed the Challenged Bylaws as invalid and impossible to meet. In light of what they viewed as an impossible task, they set their own record date in accordance with the default record date under an earlier version of CWHs Bylaws which had been repealed and commenced their consent solicitation to remove the Board. Respondents also opted not to conduct their consent solicitation in compliance with the current (albeit challenged) 30 day Consent Solicitation Window, choosing instead a 60 day period (which had been in effect under CWHs Bylaws until November 6, 2008 when it was replaced by a 10 day period which was in effect until the Board on March 1, 2013 adopted the current 30 day window provision).
On June 21, 2013, Corvex and Related announced that over 70% of the shareholders of CWH had supported their request to remove the entire Board of Trustees.
Claimants argue that all of the Challenged Bylaws should be upheld and that Respondents failure to meet the requirements of such Bylaws renders Respondents consent solicitation invalid. Respondents argue that the Challenged Bylaws conflict with the Declaration of Trust which grants shareholders the right to act by written consent to remove Trustees at any time with or without cause. Respondents ask this Panel to strike down each of the Challenged Bylaws as invalid and to uphold the results of their consent solicitation and order CWH to call a special meeting at which the shareholders can elect a new Board of Trustees.6
Respondents moved for partial summary judgment on the validity of the challenged Bylaws as a matter of law. The parties briefed the issues and a hearing was held in New York, New York on July 26, 2013. On August 7,
5 | In addition to suing CWH and its Trustees, Corvex and Related also sued RMR in the Maryland action. RMR, however, was not named as a Respondent on Respondents Counterclaims alleged in this arbitration. Nonetheless, RMR continued to prosecute the claims it had alleged against Respondents until the evidentiary hearing was about to begin, at which time RMR stipulated with Respondents to a dismissal of its claims pursuant to terms approved by the Panel. In addition, after joining this arbitration, Respondents voluntarily dismissed both the Massachusetts federal court action and the Maryland state court action which they had commenced. |
6 | Respondents also had alleged a derivative claim on behalf of CWH against the Trustees which they later requested be dismissed. The Panel by Order dated September 19, 2013 granted such dismissal without prejudice to derivative claims asserted by other CWH shareholders. |
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2013, this Panel issued an Interim Order (1) invalidating the 3+3 Bylaw to the extent that it set a minimum requirement for a shareholder requesting a record date for a consent solicitation to hold 3% of the company stock for a three year period and (2) reinstating the $2,000/1-Year Requirement to obtain a record date for a consent solicitation, pending further order of the Panel or valid action by CWH. The Panel deferred ruling on other issues until after the full evidentiary hearing.
There is no question that CWHs Bylaws, in the aggregate, erect a complex wall of procedural hurdles to any consent solicitation. Respondents were frustrated by the Bylaw barriers and in their frustration resorted to unilateral actions that they saw as necessary to scale the procedural hurdles created by the Bylaws, rather than waiting for either a court or this Panel to rule on the validity of the Challenged Bylaws. That being said, while the Panel believes that CWHs current Bylaws require material modification, the Panel is unable, based on what occurred, to validate the consent solicitation process as it took place. Although the Panel finds that Respondents consent solicitation did not validly remove the current CWH Trustees, the Panel finds that Respondents are entitled to an opportunity to conduct a valid consent solicitation in which the right granted to them under the Declaration of Trust to remove Trustees by a supermajority vote is realistically attainable. To that end, under the unique present circumstances, and in the interest of achieving a just and equitable result, the Panel herein establishes ground rules for a new consent solicitation (the New Solicitation) in the event Respondents elect to pursue it, as well as a procedure for prompt resolution of any issues or disputes that may arise regarding compliance or implementation of such ground rules. (See Sections VIII and IX, infra.)
Upon consideration of the evidentiary record, including the testimony of some 23 witnesses, thousands of pages of exhibits, and all of the written and oral argument presented by the parties, including the specific relief requests presented on the last day of the hearing, the Panel hereby finds, concludes and orders the following:
II. MUTA
A. | The Effect of the Maryland Unsolicited Takeovers Act of 1999 (MUTA) on the Removal of CWHs Trustees |
The Panel determines that CWHs election on April 12, 2013 to opt into Section 3-803 of MUTA does not alter the ability of shareholders of CWH to remove Trustees without cause. Section 3-803 provides that, notwithstanding any provision in the charter or the bylaws, a Maryland corporation can adopt a staggered board. In other words, MUTA allows the
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directors or Trustees of Maryland corporations (or REITs) to unilaterally adopt staggered boards even without shareholder authorization or if contrary to the charter or bylaws. Thus, Section 3-803 trumps whatever the charter or bylaws may say about creating a staggered board (i.e., a company could create a staggered board even if its charter says that it shall have annual elections and does not provide for a staggered board). Importantly, however, Section 3-803 says absolutely nothing about removal of directors or Trustees.
Section 3-804(a) of MUTA addresses removal. Indeed, it is the sole provision of MUTA addressing removal. Section 3-804(a) allows a board to unilaterally increase the voting threshold to remove Trustees to two-thirds, notwithstanding any lesser voting threshold required by the charter or bylaws. CWH did not opt into Section 3-804(a) (presumably because it already had a two-thirds voting threshold), but it would not make a difference if they did because that section is subject to Section 8-205(b)(3) of the Maryland Code, which in turn is trumped by CWHs Declaration of Trust.
Section 8-205(b)(3), which does not require opting into, provides for removal of Trustees only for cause on a staggered board, unless the declaration of trust of the [REIT] provides otherwise. CWHs Declaration of Trust does provide otherwiseit explicitly provides for removal without cause. According to CWHs Declaration of Trust, the Trustees can be removed at any time with or without cause by two-thirds of the shareholders. The Panel concludes that CWHs election to opt into Section 3-803 of MUTA does not alter the CWH shareholders explicit ability under the Declaration of Trust to remove Trustees without cause.
III. RESPONDENTS CONSENT SOLICITATION
For the reasons set forth in this Interim Award, the Panel finds that Respondents consent solicitation was not properly conducted and cannot be validated.
IV. THE DISPUTED BYLAWS
The Panel makes the following determinations with respect to each of the challenged Bylaws:
A. | The 3+3 Requirement and the Prior $2,000/1-Year Requirement to Obtain A Record Date |
To the extent it was not clear in our August 7, 2013 ruling on the 3+3 Requirement incorporated by reference in Section 2.15(a) of the Bylaws, the
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Panel hereby confirms its determination that any Bylaw provision which imposes the 3+3 Requirement in order to obtain a record date for a consent solicitation to remove the Trustees is inconsistent with the Declaration of Trusts provision giving shareholders the right to act by written consent to remove Trustees without cause at any time and is therefore invalid. As stated in the Panels August 7, 2013 Order, the effect of striking such 3+3 Bylaw provision as invalid was to reinstate the prior version of that bylaw which provided for a $2,000 stock ownership threshold and a 1-year holding period for a consent solicitation.
Given the evidence presented in the evidentiary hearing regarding the number of shareholders who could meet the $2,000/1-Year Requirement, the Panel has determined that the $2,000/1-Year Requirement is valid and should be applied in this case.7 Although Respondents presented evidence that the $2,000/1-Year Requirement is exceedingly rare among REITs, the test here, is not how rare the Bylaws are or whether they are contrary to reasonable expectations [of shareholders] as a matter of corporate governance,8 or even, frankly, whether the Bylaws are good corporate governance or are desirable as a policy matter. The question is whether they are inconsistent with the Declaration of Trust giving shareholders the right to act by written consent.
Claimants presented evidence that more than half of CWHs shareholders at all relevant times met this holding requirement and that this was a reasonable and not particularly difficult requirement to meet.
The Panel finds that for the purposes of satisfying the $2000/l-Year Requirement for the New Solicitation as set out in Section VIII below, the Respondents, by acting together with David R. Johnson, and Cede & Co., as nominee of the Depository Trust Company, satisfy the holding requirement set forth in the $2,000/1-Year Requirement. At the time of the April 12, 2013 record date request, it is uncontested that Corvex and Related did not own the requisite shares continuously for one year prior to making their request (they acquired shares in January 2013). David R. Johnson (Johnson), however, did either individually or through his IRA own over $2,000 worth of shares for over a year, and Cede & Co. is the holder of record for the vast majority of shares of CWH. Regardless of whether Johnson was a record holder at the time of his record date request and whether he submitted share certificates to evidence that he was the beneficial owner of $2,000 worth of
7 | Arbitrator Chandler does not agree that the $2,000/1-Year Requirement is valid, but agrees that there is no prejudice in applying it to the parties in this proceeding because it is satisfied for the reasons stated herein, and therefore the question of its ultimate validity need not be formally decided for purposes of this proceeding. |
8 | Ex. CX-2370 at ¶ 48 (Expert Report of Professor Guhan Subramanian (Sept 11, 2013)). |
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CWHs shares continuously for one year prior to the date of the April 12 request, he is, in fact, the beneficial owner of more than $2,000 worth of CWH shares and has held those shares for more than one year, and by the time of the hearing he had share certificates to prove such ownership and was the record holder of such shares. Although his April 12, 2013 request may not have met all technical requirements (and thus is invalid), going forward with a New Solicitation as outlined in Section VIII of this Interim Award, Johnson is deemed to satisfy the ownership requirements as required by Section 2.15 (a) of the Bylaws.9
January 16, 2014 is the one-year anniversary of Respondents acquisition of their first $2000 of CWH stock; and thus, Respondents in any event will themselves satisfy the holding requirement by that date.
B. | The Information Bylaws |
Without addressing the validity or invalidity of any particular requirement except for the share certificate requirement discussed below, the Panel finds that, after reviewing the information provided by Respondents with their record date request, as well as the voluminous, in effect supplemental documents produced in this arbitration, Respondents have substantially met the requirements of the Information Bylaws for the purposes of a New Solicitation as defined in Section VIII below. Indeed, as Barry Portnoy testified, all thats missing at this point if there was a new solicitation, in his view, is a clear articulation by Respondents of their purpose: If they would let me know their purpose and clearly articulate their purpose I suppose wed give them a Record Date.10 The Panel believes that the Respondents purpose is now self-evident: to conduct a consent solicitation to remove the Board of Trustees of CWH.
Since the subject was repeatedly raised at the hearing, we address with specificity the share certificate requirement set forth in Section 2.15(a) of the Bylaws, requiring a shareholder to hold certificates for all shares of beneficial interest and to present a copy of such certificates to CWH in order to request a record date to take action by written consent. We conclude that this requirement is invalid. While a requirement to present share certificates to show that a shareholder has met the minimum holding requirements ($2,000
9 | Counsel for the Trustees conceded as much at the hearing. (They have established that they have the ability to get share certificates. They have established that they have the ability, through Mr. Johnson, to meet the $2,000-and-one-year ownership requirement.) Tr. 2584:6-9. |
10 | Tr. 193. |
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for 1 year) may be validalbeit certainly unnecessary to prove such ownershipa requirement that a shareholder must present certificates for all shares owned is inconsistent with the Declaration of Trust and goes far beyond what would be considered a reasonable or appropriate requirement.
Accordingly, Respondents are deemed by the Panel to have met any and all information requirements in order to request a record date and conduct a New Solicitation pursuant to this Interim Award.
C. | The Timing Bylaws |
The Panel hereby finds that the Timing Bylaws provided for in Sections 2.15(a) and 2.15(c) of the current Bylaws, which include the 30 day time period for the Trustees to respond to a record date request, the 60 day time period for the Trustees to set a record date, the 60 day default record date if the Trustees fail to act, and the 90 day time period for the Trustees and their inspectors to review and certify the results of a consent solicitation, operating together, are inconsistent with the Declaration of Trusts provision giving shareholders the right to act by written consent to remove Trustees without cause at any time. Such Bylaws are therefore declared invalid.
D. | The Consent Window Bylaw |
According to the evidence, a 30-day consent window is extremely rareto wit, there are no examples of a 30-day window where a two-thirds vote is required for action. The expert witnesses from both sides confirmed that no comparable consent solicitation had been completed in at least the last eight years with a 30-day window. Since 2005, there have been a total of only 30 definitive consent solicitations. Of those, only 10 were completed, and only five were completed in 30 days (the amount of time to complete a consent solicitation that Claimants are asking this Panel to uphold here). Of those five completed in 30 days, none actually had a 30-day window in which to complete the solicitation; they all had a 60-day consent window but happened to complete the solicitation earlier within 30 days. Perhaps more importantly, none of those five had a supermajority vote requirement (which is the requirement here); they all required only a simple majority vote. Claimants point to these five solicitations as evidence that a consent solicitation can be run within a 30-day window and thus Respondents could have run their consent solicitation in 30 days and the Consent Window Bylaw should be upheld as valid. Five consent solicitations in eight years, however, each with only a majority vote requirement and actually allowing for a longer consent window, is hardly evidence of anything. In short, there is no relevant situation on point, and it is an extremely rare and unusual circumstance that we find ourselves in.
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Nonetheless, it is not clear from the evidence whether Respondents could not have completed their consent solicitation within the 30 day time frameespecially such a highly publicized one that had garnered so much shareholder support. For example, the evidence showed that in less than two weeks 40% of shares [had] already voted in favor of the removal of Commonwealths trustees.11 The evidence further showed that there is significant institutional ownership of CWHs shares; that institutional shareholders are more inclined to vote and often have a responsibility to vote; that in 2012 institutional shareholders comprised approximately 74% of CWHs shareholders and that by the time of Respondents prior, invalidated consent solicitation, that percentage had increased to about 87%; and that as of the April 22 record date employed by Respondents, 47%, or nearly half, were held by the largest 10 shareholders, and 72% were held by the largest 40 shareholders. (E.g., Tr. 1587-1590.) The Panel thus has determined that, given the specific evidence presented during the evidentiary hearing, 30 days is the minimally adequate amount of time to conduct a consent solicitation to remove the CWH Trustees, and the 30 day consent window, in the specific circumstances of this case, has not sufficiently been shown to be invalid, and therefore remains valid.12
11 | Ex. CX-2348 at 9. |
12 | Arbitrator Chandler does not agree that 30 days is a sufficient period of time to complete a consent solicitation in which a supermajority (2/3) vote of shareholders is required to take action by written consent. The following is Arbitrator Chandlers reasoning: All of the evidence adduced at the evidentiary hearing supports a 60 day period of time as the standard for written consent procedures. CWH has over 118 million common shares outstanding, and over 50,000 shareholders. The corporation laws of Maryland and Delaware, to take just two examples, recognize 60 days as the default period of time required to effectively conduct a consent solicitation. See 8 Del. C. § 228 (c); Md. Corp. Ann., Corps & Assns. § 2-505 (f). Moreover, no evidence was offered to show that a supermajority vote had ever been achieved in a 30 day period. In fact, every example of a consent solicitation conducted at a public company in the United States in the last ten years provided a 60 day period of time for the solicitation to occur. Because a 30 day window does not afford a CWH shareholder a realistically viable opportunity to secure written consents from a supermajority of CWHs stockholders, it is inconsistent with the Declaration of Trust, which affords shareholders a right to remove Trustees by written consent. Accordingly, Arbitrator Chandler would hold a 30 day consent window to be invalid under the Declaration of Trust, and would instead allow the standard 60 day consent window, consistent with CWHs earlier bylaw provision. |
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V. THE OWNERSHIP/HOLDING REQUIREMENT IN SECTION
2.14.1(b) OF THE BYLAWS FOR SHAREHOLDER NOMINATIONS AT
A SPECIAL MEETING
Since the New Solicitation ground rules established herein specifically include a provision requiring CWH officers to call a special meeting for the election of a new Board of Trustees if Respondents are successful in obtaining sufficient votes for the removal of the current Board, we hereby further find and conclude that the $2,000/1-Year Requirement, and not the 3+3 Requirement, should be the applicable ownership/holding requirement for the nomination by shareholders of persons as new Trustees in connection with such special meeting. This finding and conclusion with respect to the nomination process shall be applicable only to a special meeting of shareholders under the New Solicitation rules set forth herein. We make no finding or conclusion as to what, if any, ownership/holding requirement would be applicable to the nomination by shareholders of persons to serve as Trustees in any other circumstance.13
If all of the Trustees are removed pursuant to a successful shareholder consent solicitation, it follows that there then would be no functioning Nominating and Governance Committee of the Board of Trustees to nominate persons for election as Trustees. Thus, only shareholders, whether or not aligned with the then former Trustees, could nominate persons for election as new Trustees. While the Declaration of Trust provides for CWH officers to call a special meeting of shareholders for purposes of electing new Trustees (see Section 2.4), the Bylaws do not appear to adequately set forth a mechanism for the effective nomination of new Trustees. If the 3+3 Requirement in Section 2.14.1 is applied, based upon the indisputable evidence presented at the hearing, there would no more than one or two shareholders, acting alone, who could satisfy that Requirement. Such a result would not make any sense and could have various unintended and undesirable consequences. In the absence of better guidance from the Bylaws, on an interim basis for purposes only of any required special meeting of shareholders under the New Solicitation rules enunciated in this Interim Award, we conclude that some minimal ownership requirement for shareholders to be eligible to submit nominations of persons for election to the Board would be consistent with the Bylaws and that the $2,000/1 Year Requirement is reasonable and should apply under the circumstances.
13 | Arbitrator Chandler believes the 3+3 Requirement, wherever it appears in CWHs bylaws, is inconsistent with the Declaration of Trust and is, therefore, invalid and unenforceable. Accordingly, Arbitrator Chandler necessarily agrees with the Panels more limited determination that the 3+3 Requirement in Section 2.14.1 (the 3+3 nomination requirement) should not apply to any special meeting of shareholders convened under the New Solicitation process established in this Award. |
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VI. FEDERAL SECURITIES LAWS CLAIMS
The Panel concludes that the evidence does not support a finding of any actionable violations of Section 13(d) and Section 14(a) of the Exchange Act and Rules 13d-1 and 14a-9 thereunder by any of the parties to this proceeding, and therefore denies any relief sought under these statutes and rules.
VII. INDEMNIFICATION
CWH seeks indemnification for the legal fees and expenses it and the Trustees incurred in defending against Respondents Maryland lawsuit challenging the arbitration clause contained in the CWH Bylaws. CWHs request for indemnification hereby is denied. The Panel finds that Section 7.12 of the Declaration of Trust and Section 15.2 of the Bylaws, which were adopted in 2007 and 2008 and purport to make shareholders personally liable for indemnification in certain circumstances, are invalid because they contravene Section 8.3 of the Declaration of Trust, which has been in place since CWHs original Declaration of Trust in 1986 and provides that provisions governing the personal liability of the Shareholders and the prohibition of assessments upon Shareholders may not be amended in any respect that could increase the personal liability of such Shareholders.
Respondents seek indemnification based upon several specified acts of bad faith. Respondents request for attorneys fees also is denied.
VIII. THE OPPORTUNITY FOR A NEW CONSENT SOLICITATION
In furtherance of the above findings and conclusions, and in the interest of achieving a just and equitable result, the Panel has determined to allow Respondents an opportunity to conduct a new consent solicitation (the New Solicitation) in accordance with the procedures set forth below. The rules established for this New Solicitation should not be read as the Panel generally approving or disapproving of these rules except in this one specific circumstance.
The New Solicitation shall be conducted according to the following rules:
1. | Respondents shall notify in writing Commonwealth and its Trustees as well as this Panel, within ten days of the date of this Interim Award if they desire to pursue a New Solicitation in accordance with the New Solicitation procedures set forth herein. |
2. | If Respondents provide the notice required by the preceding paragraph they shall have up to 90 days from the date of this Interim Award to request a record date from CWH for the New Solicitation. |
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3. | Upon the request for a record date by Respondents, Claimants shall have 10 business days to set a record date for the New Solicitation, which record date shall be not more than 10 business days from the date of the request. No information other than a simple letter requesting a record date is required. Failure by Claimants to set a record date shall result in the record date being set automatically on the tenth business day following the request from Respondents. |
4. | Upon complying with the foregoing paragraphs, Respondents shall be deemed to have fully satisfied all of the information requirements and any other requirements contained in the Bylaws necessary to obtain a record date in order to conduct a New Solicitation. If Johnson remains a part of the New Solicitation, a record date may be requested before the one-year anniversary of Respondents first purchases of CWH shares. If Johnson is not a part of any New Solicitation, Respondents Corvex and Related must wait until the one-year anniversary of their first purchase of CWH shares to request a record date. |
5. | Respondents shall submit to the applicable government agencies all information required in connection with the New Solicitation to the extent necessary and appropriate in order to comply with either state or federal securities or other laws. |
6. | The New Solicitation must be concluded within 30 days of the record date (the Consent Window) at which time Respondents must present the signed consents to CWH. |
7. | CWH shall have 5 business days from the receipt of the signed consents to inspect the consents and declare the results of the New Solicitation. |
8. | If the New Solicitation is successful in removing the entire Board of Trustees, promptly after the results have been declared, the officers of CWH shall call a special meeting of shareholders for the purpose of electing new Trustees to the Board. The special meeting of shareholders shall be noticed to occur within 10 to 60 days of the date of notice. |
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9. | As discussed earlier in this Interim Award, the nomination procedure with respect to any such special meeting of shareholders for the purpose of electing new Trustees to the Board shall be subject to the $2,000/1-Year Requirement for nominations contained in the prior version of Section 2.14.1, and not the 3+3 Requirement in the current version of that Bylaw. |
10. | The Board of Trustees of CWH may take steps to amend those Bylaws the Panel has declared invalid; however, no such amendment(s) shall affect the procedure for the New Solicitation as set out above. |
11. | If Respondents provide the written notice set forth in paragraph 1 above, the parties shall provide the Panel short written updates on the status of the New Solicitation in approximately 30 day intervals. |
IX. CONDUCT THAT IS CONTRARY TO OR INCONSISTENT
WITH THE INTERIM AWARD
No party may take any action that is intended or designed to impede or frustrate, or that has the effect of impeding or frustrating, the New Solicitation process established herein or that does not comply with or would interfere with the implementation of this Interim Award in any way. The Panel, upon proper notice and hearing, will consider granting relief against any party engaging in any such action. Nothing in this section should be construed as prohibiting any party from advancing or contesting a New Solicitation (should one occur) by any appropriate or legally permissible method.
X. CONCLUSION
This is not intended to be a final award. The Panel has concluded that in order to provide complete and meaningful relief in this case and for the sake of good order and a just and equitable result, it must remain available to resolve any issues or disputes which may arise regarding compliance with and implementation of the New Solicitation rules set forth in Section VIII above. Accordingly, we reopen the proceedings in this matter solely for such limited purposes.14
14 | Following the submission by the parties of their post-hearing briefs, the AAA Case Manager had declared the hearings closed. |
14
The Panel ultimately will issue a final award, which in part will attach and incorporate this Interim Award, when it becomes apparent that the New Solicitation process provided for above has concluded or if there is unequivocal evidence that Respondents are no longer proceeding with the New Solicitation.
Any relief requested at the evidentiary hearing or in any of the pleadings (including the requests for relief submitted by the parties at the conclusion of the hearing), which are not specifically addressed in this Interim Award, is hereby denied.
Dated: November 18, 2013 | ||||||
| ||||||
Henry J. Silberberg, Panel Chair | ||||||
Dated: November 18, 2013 | ||||||
| ||||||
Adrian M. Overstreet, Arbitrator | ||||||
Dated: November 18, 2013 | ||||||
| ||||||
William B. Chandler III, Arbitrator |
15
Exhibit 29
CORVEX AND RELATED APPLAUD ARBITRATION PANEL RULING IN COMMONWEALTH REIT CASE
CREATING IMMEDIATE PATH FOR SHAREHOLDERS TO CONTROL FUTURE OF COMMONWEALTH
Ruling Invalidates CommonWealth REIT Bylaws Designed to Disenfranchise Shareholders;
Creates Precise Timeline to Nominate Independent and Accountable Trustees
Panel Expressly Prohibits Any Action to Impede or Frustrate Consent Process and
Will Ensure Compliance with and Proper Implementation of the Ruling
NEW YORK, November 18, 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), today commented on the ruling issued today by the Arbitration Panel.
The Arbitration Panel agreed with Corvex and Related that there is no question that CWHs Bylaws erect a complex wall of procedural hurdles to any consent solicitation. In its ruling, the Panel has created a precise timeline for Corvex and Related to commence and complete a consent solicitation and nominate a new independent board of trustees. The Panel will remain involved to ensure its decision is properly implemented.
Based on the Panels ruling, Corvex and Related will expeditiously notify CommonWealth, its Trustees and the Arbitration Panel of their intent to pursue a new solicitation and promptly file a preliminary consent solicitation statement with the SEC. Once the consent solicitation statement is cleared by the SEC, Corvex and Related will formally request a record date and CommonWealth will have 10 business days to set a record date.
Keith Meister of Corvex and Jeff T. Blau of Related said: The Arbitration Panels decision is a tremendous victory for shareholder democracy and for all CommonWealth shareholders. With the path cleared by the Panels decision, we firmly believe it is a foregone conclusion that shareholders will take back CommonWealth. We are heartened by the previous endorsement of the holders of more than 70% of the outstanding shares who voted to remove the entire board, as well as by ISS and Glass Lewis.
Shareholders now have an immediate and precise process that we will undertake to restore value and nominate truly independent and accountable trustees who are committed to the future success of CommonWealth for the long-term benefit of all shareholders.
The Panel ruled that (1) CommonWealths election to opt into Section 3-803 of the Maryland Unsolicited Takeover Act does not alter CommonWealth shareholders explicit right under the Declaration of Trust to remove Trustees without cause, (2) Corvex and Related have met the requirements of the information bylaws for the purposes of a new solicitation, (3) the 30 day time period for the trustees to respond to a record date request, the 60 day time period for the trustees to set a record date, the 60 day default record date if trustees fail to act, and the 90 day time period for the trustees and inspectors to review and certify the results are all invalid and (4) the requirement of three years and three percent holdings for shareholders to nominate trustees will not apply to the special meeting to follow the new consent solicitation. The Arbitration Panel also reiterated its August ruling that 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.
The Arbitration Panel also found no violation of Section 13(d) and Section 14(a) of the Exchange Act by Corvex or Related, and denied CommonWealths request for reimbursement of legal fees and expenses, finding that Section 7.12 of the Declaration of Trust and Section 15.2 of the Bylaws are invalid.
The three-member Arbitration Panel expressly prohibited the parties from taking any action that is intended or designed to impede or frustrate, or that has the effect of impeding or frustrating, the new solicitation process or any action that would interfere with implementation of the ruling in any way. The Arbitration Panel will also remain available to resolve any issues or disputes which may arise regarding compliance with and implementation of the new solicitation rules.
The full text of the Arbitration Panels ruling can be found at www.shareholdersforcommonwealth.com.
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.
For further information, contact:
Rupal Doshi
Corvex
(212) 474-6750
rdoshi@corvexcap.com
Joanna Rose
Related
(212) 801-3902
jrose@related.com
INVESTORS:
Edward McCarthy / Richard Grubaugh
D.F. King & Co., Inc.
(212) 269-5550
# # #
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