Other Information
Except as set forth in this Consent Statement (including
the Annexes hereto), (i) during the past ten years, no Participant has been convicted in a criminal proceeding (excluding traffic violations or similar
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misdemeanors); (ii) no Participant in this Consent Solicitation directly or indirectly beneficially owns any securities of the Company; (iii) no Participant owns any securities of the
Company which are owned of record but not beneficially; (iv) no Participant has purchased or sold any securities of the Company during the past two years; (v) no part of the purchase price or market value of the securities of the Company
owned by any Participant is represented by funds borrowed or otherwise obtained for the purpose of acquiring or holding such securities; (vi) no Participant is, or within the past year was, a party to any contract, arrangements or
understandings with any person with respect to any securities of the Company, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits,
or the giving or withholding of proxies; (vii) no associate of any Participant owns beneficially, directly or indirectly, any securities of the Company; (viii) no Participant owns beneficially, directly or indirectly, any securities of any
parent or subsidiary of the Company; (ix) no Participant or any of his, her or its associates was a party to any transaction, or series of similar transactions, since the beginning of the Companys last fiscal year, or is a party to any
currently proposed transaction, or series of similar transactions, to which the Company or any of its subsidiaries was or is to be a party, in which the amount involved exceeds $120,000; (x) no Participant or any of his, her or its associates
has any arrangement or understanding with any person with respect to any future employment by the Company or its affiliates, or with respect to any future transactions to which the Company or any of its affiliates will or may be a party; and
(xi) no Participant or any of his, her or its associates has a substantial interest, direct or indirect, by security holdings or otherwise in any matter to be acted on as set forth in this Consent Statement. Except as set forth in this Consent
Statement (including the Annexes hereto), there are no material proceedings to which any Participant or any of his, her or its associates is a party adverse to the Company or any of its subsidiaries or has a material interest adverse to the Company
or any of its subsidiaries. With respect to each of the Participants, none of the events enumerated in Item 401(f)(1)-(8) of Regulation S-K of the Securities Exchange Act of 1934, as amended (the Exchange Act) occurred during
the past ten years.
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BACKGROUND OF THE CONSENT SOLICITATION
In January 2013, representatives of Corvex and Related Management met to discuss, among other things, a potential investment in the
Company.
On January 29, 2013, Corvex and Related Recovery Fund entered into the Corvex/Related Agreement, pursuant to
which, among other things, Corvex agreed to cause the acquisition and/or sale of Shares in an aggregate amount mutually agreed by Corvex and Related Recovery Fund from time to time, which amount may not result in the beneficial ownership by Corvex
and Related Recovery Fund of more than 9.8% in the aggregate (and as to each of Corvex and Related Recovery Fund, 4.9%) of the total number of outstanding Shares.
On February 25, 2013, the Company announced that it had commenced a tender offer to purchase for cash up to $450.0 million of its outstanding 5.75% Senior Notes due February 15, 2014, 6.40%
Senior Notes due February 15, 2015, 5.75% Senior Notes due November 1, 2015 and 6.25% Senior Notes due August 15, 2016, subject to the terms and conditions set forth in the offer to purchase and letter of transmittal related to the
tender offer. Also on February 25, 2013, the Company announced that it had commenced a public offering of up to 31,050,000 Shares (the Equity Offering).
During the course of the same day, the Proposing Shareholders made various requests, through calls to the Company and its advisors, to meet with the Board and the Companys management but were told
that the Company did not wish to meet with the Proposing Shareholders.
On February 26, 2013, Corvex and Related
Management issued an open letter to the Board demanding that the Company immediately cease the Equity Offering and debt repurchase, and enter into discussions with Corvex and Related Management regarding maximizing long-term value for all
shareholders. Corvex and Related Management also stated that if the Board failed to adequately respond, Corvex and Related Management would be prepared to seek the removal of the Board through an action by written consent. In addition, Corvex and
Related Management also stated that they would be prepared to acquire all of the outstanding Shares.
Also on
February 26, 2013, Corvex and Related Management issued a press release that included an open letter to the Board reiterating their demand that the Company immediately cease its proposed Equity Offering and debt repurchase, and enter into
discussions with Corvex and Related Management regarding maximizing long-term value for all shareholders. Corvex and Related Management noted that they would initially be prepared to acquire all the outstanding Shares at a price of $25.00 per share
(a 58% premium to the closing price of $15.85 per share on February 25, 2013), with the opportunity to meaningfully increase this proposed offer after completing due diligence. Corvex and Related Management also noted that if the Company
proceeded with the proposed Equity Offering, however, their proposed valuation would be significantly negatively impacted.
On
February 27, 2013, Corvex and Related Management issued a press release that included an open letter to the Board providing additional details regarding their proposal to acquire all of the outstanding Shares at a price of $25.00 per share,
with the opportunity to meaningfully increase this offer after completing confirmatory due diligence.
Also on
February 27, 2013, Corvex and Related Management issued an open letter to the Board again reiterating its demand that the Company immediately cease its proposed Equity Offering and debt repurchase. Corvex and Related Management specified that
they would be prepared to increase their initial offer to acquire all the outstanding Shares to a price of $27.00 per share, with the opportunity to meaningfully increase this proposed offer after completing due diligence. This increased proposal
was conditioned on the Board immediately cancelling the Equity Offering and engaging in good faith discussions with Corvex and Related Management within 48 hours. Such discussions did not occur. While our previous offer was conditioned on the
Company cancelling its dilutive equity offering, Corvex and Related Management are continuing to evaluate strategic alternatives with respect to the Company, including a potential acquisition proposal. We anticipate that
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any such acquisition proposal, if made, would be subject to completion of due diligence and obtaining requisite financing. In that regard, we note that the $1.25 billion facility discussed below
in the section entitled Financing beginning on page 10 is intended to replace the Companys existing term loan agreement and revolving credit agreement in the event the entire Board is removed pursuant to the Removal Proposal, and
is currently not intended to be used to acquire additional Shares. Corvex and Related Management intend to work with Deutsche Bank Securities Inc. on any further required financing.
On March 1, 2013, the Company announced that on February 27, 2013 it had priced the Equity Offering for 30,000,000 Shares and
granted the underwriters an option to purchase up to an additional 4,500,000 Shares.
On March 5, 2013, the Company
announced that its previously announced Equity Offering of 34,500,000 Shares had closed that morning and that the Company received net proceeds, after the underwriting discount, of approximately $627.6 million.
On March 12, 2013, Corvex and Related sent a letter to the independent trustees of the Company reiterating their request to meet
with the Company. Corvex and Related further requested that the independent trustees form a special committee and cease any plans to enter into any extraordinary transactions that could further erode shareholder value, including any
related-party transactions.
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REASONS FOR OUR SOLICITATION
We believe that the Companys collection of hard assets are undervalued due to, among other things, the Companys externally
advised management structure. In that regard, we note that the Companys day-to-day operations are conducted by REIT Management & Research LLC (RMR). According to the Companys public filings, RMR originates and
presents investment and divestment opportunities to the Board and provides management and administrative services to the Company. RMR is a Delaware limited liability company beneficially owned by Barry M. Portnoy and Adam D. Portnoy, two of the
Companys five trustees.
We also believe the current Board has implemented policies which have resulted in destruction
of shareholder value, including:
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the implementation of a portfolio strategy of purchasing properties at a high valuation in order to maximize RMRs management fees, which are
based, in part, on the volume of the Companys acquisitions, regardless of their impact on shareholder value. In that regard, we note that rather than returning value to shareholders, the Company has spent $2.7 billion on net acquisitions and
capital expenditures since 2007, growing its gross real estate assets by 27.2%. Given that RMRs fees are driven by the historical cost of the Companys properties, such fees grow with every new acquisition completed by management and, in
fact, RMRs annual fees have grown from $59.7 million in 2007 to $77.3 million in 2012, an increase of 29.5%. In contrast to the remuneration paid out to RMR, the total return (including dividends) to a shareholder who has held the
Companys Shares from January 1, 2007 through January 15, 2013 is a loss of 38.4%, and the Companys stock price has declined 67.5% over this same period; and
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consummation of dilutive equity offerings. For example, the Equity Offering was completed at a time when the Shares were trading at a 57% discount from
the Companys book value as of December 31, 2012, in order to repay debt trading at prices ranging from 102% to 111% of par.
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We believe that shareholder value can be created by, among other things:
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internalization of management structure (meaning that the Company should transition to having its own management team and employees instead of relying
on the services of RMR or another external manager), adoption of a market cost structure (meaning that the Companys operating expenses as a percentage of revenues should in our view be reduced), and alignment of management compensation with
shareholder returns (meaning that management compensation should not be based on the historical cost of managed properties, but instead primarily on shareholder returns in order to, among other things, avoid incentivizing management to complete
acquisitions at high valuations that would increase management fees even though they might not increase shareholder value, and that management compensation should be structured through management owning shares of the Company alongside its
shareholders, rather than paying out fees to an external manager);
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amendment of the Companys existing Declaration of Trust and Bylaws to conform to ISS and Glass Lewis best practices;
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cessation of all asset sales to entities affiliated with, or managed by, RMR;
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cessation of all acquisition and development activity until the Companys market value exceeds its net asset value (NAV); and
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use of excess cash flow and proceeds from asset sales to buy back shares or de-lever until the Companys market value exceeds its NAV.
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We believe the Companys existing Board is not prepared to independently evaluate or
undertake the steps outlined above. We believe that the Removal Proposal as a first step, if supported by shareholders, will send a clear and unequivocal message to the Board that the time has come for them to be held accountable to the true owners
of the Company. This process also presents a clean path for all shareholders to fairly participate in the process of electing replacement trustees without the oversight of an interested Board. We expect such replacement trustees will be prepared to
undertake an independent evaluation of some or all of the steps outlined above and undertake such steps, if deemed appropriate and consistent with the exercise of their fiduciary duties. We note that, unless the entire Board is removed, any
remaining trustees will have the ability to fill vacancies created by the removal of individual trustees.
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FINANCING
A successful removal of the Board will constitute a change of control and an event of default under each of the Companys Credit Agreement, dated August 9, 2010 (the Revolving
Credit Agreement), as amended and the Companys Term Loan Agreement, dated December 16, 2010, as amended (the Term Loan Agreement and collectively, the Financing Agreements). As a result, the lenders
under the Financing Agreements would have the right to immediately accelerate all amounts due and payable under each of the Financing Agreements. We expect that the Board, in accordance with its fiduciary duties, will engage with us and its lenders
in a discussion to secure appropriate waivers in the event that shareholders elect to remove the existing trustees pursuant to this Consent Solicitation. In addition, we intend to arrange backstop commitments by requesting that Deutsche Bank
Securities Inc. (Deutsche Bank) attempt to arrange third party debt financing for a new revolving credit facility and a new term loan facility that will be available to repay, in full, amounts due and payable under the Financing
Agreements in the event that such waivers are not obtained (the Transaction).
Deutsche Bank has delivered a
highly confident letter to the Proposing Shareholders to the effect that, subject to the assumptions, terms and conditions described therein, Deutsche Bank is highly confident of its ability to arrange such third party debt financing.
The highly confident letter (which is not a commitment to provide, arrange, place, underwrite or participate in, in each case, directly or through an affiliate thereof, any such financing) is subject to customary terms and conditions,
including, but not limited to, the following: (i) no material adverse change in the condition (financial or otherwise), results of operations, business, assets, property, liabilities or prospects of the Company and its subsidiaries; (ii) the terms
and structure of the third party debt financing being acceptable to Deutsche Bank; (iii) the negotiation, execution and delivery of documentation for the third party debt financing satisfactory to Deutsche Bank; (iv) completion of business and legal
due diligence with respect to the Company and its subsidiaries and the Transaction; (v) the availability of consolidated financial statements and pro forma financial statements (giving effect to the Transaction) of the Company and its subsidiaries;
(vi) the existing indebtedness of the Company and its subsidiaries, other than the Financing Agreements, remaining outstanding and in full force and effect, with no default or event of default existing thereunder and no requirement to offer to
purchase the same as a result of a change of control or otherwise; (vii) there being no incremental debt (other than the third party debt financing) to be incurred in connection with the Transaction; (viii) there being a detailed plan
satisfactory to Deutsche Bank with respect to the replacement of RMR, the changes to the Board effected as part of the Transaction, and with the status of any related litigation; (ix) there not having been any disruption or material adverse change
in the syndication market for credit facilities or the financial or capital markets in general; (x) Deutsche Bank having a reasonable time to arrange and market the third party debt financing; and (xi) satisfaction of all other conditions Deutsche
Bank would require to be fulfilled.
As at December 31, 2012, the Company had $297 million outstanding under its
Revolving Credit Agreement and $500 million outstanding under its Term Loan Agreement.
LITIGATION
Maryland Action
On
February 27, 2013, Corvex and Related Management filed a Complaint for Injunctive and Declaratory Relief and Rescission in the Circuit Court for Baltimore City, Maryland styled
Corvex Management LP, et al. v. CommonWealth REIT, et al.
,
Case No. 24-C-13-00111 (the Maryland Action) against the Company, its Board, including Barry M. Portnoy, Adam D. Portnoy, Joseph L. Morea, William A. Lamkin and Frederick N. Zeytoonjian, and its external manager, RMR. The Maryland
Action alleges, among other things, that the trustees, aided and abetted by RMR, have breached their fiduciary duties to the Companys shareholders. Corvex and Related Management requested that the Court, among other things: enjoin the Company
and its Board from taking actions to implement the proposed Equity Offering; rescind the Equity Offering should it be completed; and enjoin the Company and its Board from taking further actions in violation of their fiduciary duties.
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On March 15, 2013, Corvex and Related Management filed an Amended Complaint in the Maryland
Action. The Amended Complaint, among other things, added claims seeking a declaratory judgment that Bylaw amendments adopted by the Board that restrict the ability of shareholders to seek a record date to act by written consent to those shareholders
that have held 3% of the Companys Shares continuously for at least three years shall be declared null and void. On the same day, Corvex and Related Management filed a motion for partial summary judgment in connection with this relief.
Federal Action
On March 1, 2013, Corvex and Related Management filed a complaint in the United States District Court for the District of Massachusetts
Corvex Management LP, et al. v. CommonWealth REIT, et
al.
, Case No. 13-CV-10475(DJC) (the Massachusetts Action) against the Company and the trustees, including Barry M. Portnoy, Adam D. Portnoy, Joseph L. Morea, William A. Lamkin and Frederick N. Zeytoonjian. The Massachusetts
Action seeks that the Court declare the defendants in violation of anti-fraud provisions of the Exchange Act. The Massachusetts Action alleges, among other things, that the members of the Board violated Section 10(b) of the Exchange Act and SEC
Rule 10b-5 by disseminating or approving materially false and misleading statements and by employing devices, schemes, and artifices to defraud the Companys shareholders. As part of the Massachusetts Action, Corvex and Related Management asked
that the Court grant a temporary restraining order to prevent completion of the Equity Offering. On March 4, 2013, the Court held a hearing on the request for a temporary restraining order and related matters. Later that day, the Court issued a
ruling denying the request for a temporary restraining order. The Court has not yet reached a final decision on aspects of the Massachusetts Action beyond the request for the temporary restraining order.
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REMOVAL PROPOSAL
Shareholders are being asked to act by written consent to remove without cause Barry M. Portnoy, Adam D. Portnoy, Joseph L. Morea,
William A. Lamkin, and Frederick N. Zeytoonjian as trustees of the Company and any other person or persons elected or appointed to the Board prior to the effective time of this Consent Solicitation, whether to fill any newly-created trusteeship or
to fill any vacancy on the Board or for any other reason. The language relating to any other person or persons elected or appointed to the Board is intended to address the possibility that the current trustees might try to add trustees
to the Board prior to the effectiveness of this Consent Solicitation.
A shareholder may consent to the removal of only
certain existing trustees by designating the names of one or more trustees who the shareholder does not wish to be removed in the indicated space on the consent card. The removal of each individual trustee must be consented to by two-thirds of the
Shares outstanding and entitled to vote on the Consent Record Date. If some, but not all, of the trustees receive votes for removal from two-thirds of the outstanding Shares, only those trustees will be removed as of the effective time of the
Removal Proposal, and the other trustees will remain on the Board. Any remaining trustees will be able to fill any vacancies created by the removal of the other trustees.
Section 2.3 of the Declaration of Trust authorizes the removal of the Board at any time without cause by a vote of two-thirds of the Shares outstanding and entitled to vote. Section 6.9 of the
Declaration of Trust permits this action to be taken by written consents signed by the holders of two-thirds of the Shares outstanding and entitled to vote. We believe these provisions provide the authority through which the current Board can be
removed pursuant to this Consent Solicitation.
WE URGE YOU TO CONSENT TO THE REMOVAL PROPOSAL BY PROMPTLY SIGNING, DATING
AND RETURNING YOUR
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CONSENT CARD IN THE ENCLOSED POST-PAID ENVELOPE.
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VOTING SECURITIES
The Shares constitute the voting securities of the Company for purposes of this Consent Solicitation. Based upon information provided in
the Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed with the SEC on February 25, 2013, and the Current Report on Form 8-K filed on March 5, 2013 (which announced the completion of the
Equity Offering), the Company had 118,304,068 Shares outstanding as of March 5, 2013. Cumulative voting is not permitted.
APPRAISAL RIGHTS
Shareholders are not entitled to appraisal or dissenters rights under Maryland law in connection with the Removal Proposal or this Consent Statement.
SOLICITATION OF CONSENTS
The members and agents of the Corvex Persons or the Related Persons may solicit consents. Consents will be solicited by mail, advertisement, telephone, facsimile, other electronic means and in person.
None of those persons will receive additional compensation for their solicitation efforts.
In addition, we have retained D.F.
King & Co., Inc. (D.F. King) to assist in this Consent Solicitation, for which services D.F. King will be paid a fee not to exceed $200,000. D.F. King will also be reimbursed for its reasonable out-of-pocket expenses. We have
also agreed to indemnify D.F. King against certain liabilities and expenses, including certain liabilities and expenses under the federal securities laws. It is anticipated that approximately 75 persons will be employed by D.F. King to solicit
shareholders in connection with the Consent Solicitation. D.F. King does not believe that any of its directors, officers, employees, affiliates or controlling persons, if any, is a participant in this Consent Solicitation.
We have engaged Deutsche Bank to act as our financial advisor in connection with our investment in the Company. We expect Deutsche Bank
will be paid customary compensation in connection with its engagement. Deutsche Bank will also be reimbursed for its reasonable out-of-pocket expenses. We have also agreed to indemnify Deutsche Bank against certain liabilities and expenses,
including certain liabilities and expenses under the federal securities laws. Deutsche Bank does not believe that any of its directors, officers, employees, affiliates or controlling persons, if any, is a participant in this Consent
Solicitation.
We will request that banks, broker firms, dealers, trust companies and other nominees forward solicitation
materials to beneficial owners of Shares. We will reimburse such banks, broker firms, dealers, trust companies and other nominees for their reasonable expenses for sending solicitation material to the beneficial owners.
Our estimate of the total cost to be incurred in connection with this Consent Solicitation (excluding litigation costs) is
$
. To date, $
of expenses have been incurred in connection with this Consent Solicitation. Costs related to the Consent
Solicitation of consents may include expenditures for attorneys, investment bankers, accountants, printing, advertising, postage and related expenses and fees. We will bear the costs of this Consent Solicitation. To the extent legally permissible,
if successful in the adoption of the Removal Proposal, we currently intend to seek reimbursement from the Company for the costs of this Consent Solicitation. We do not currently intend to submit the question of such reimbursement to a vote of the
shareholders of the Company.
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CONSENT PROCEDURE
Section 6.9 of the Companys Declaration of Trust provides that, subject to certain exceptions set forth therein which are not
applicable to this Consent Solicitation, whenever shareholders are required or permitted to take action, such action may be taken without a meeting by written consents setting forth the action so taken signed by the holders of a majority (or such
higher percentage as may be specified in the Declaration of Trust) of the total number of votes authorized to be cast by Shares then outstanding and entitled to vote thereon. Section 2.3 of the Declaration of Trust authorizes the removal of the
Board at any time without cause by vote or consent of two-thirds of the Shares outstanding and entitled to vote.
Record Date
The amendments to the Bylaws adopted by the Board on March 1, 2013, following the announcement of our ownership stake in
the Company (the March 1 Amendments), purport to require that any person seeking to take action to remove trustees must comply with the requirements of the Bylaws with respect to the nomination of trustees. Therefore, the March 1
Amendments purport to require that only shareholders who hold at least 3% of the Companys Shares and have held such Shares continuously for at least three years be entitled to request a record date in connection with a solicitation of written
consents to remove trustees. We believe such Bylaw provisions are inconsistent with the Companys Declaration of Trust and Maryland law, as they effectively eviscerate the right all Company shareholders have to act by written consent. We have
initiated litigation in Maryland State Court as described in the section entitled Litigation beginning on page 10 requesting, among other things, that the Court declare such Bylaw provisions null and void. We may request that the Company
fix the Consent Record Date prior to the resolution of this lawsuit. We believe that any participant in the Consent Solicitation is entitled to request the Consent Record Date and that the Company should fix such record date regardless of whether or
not the shareholder requesting the record date has held 3% of the Companys Shares continuously for at least three years. If any of the participants makes a request for a Consent Record Date prior to the resolution of the litigation in Maryland
State Court, we will promptly disseminate such information in an appropriate manner, including by issuing a press release.
In
addition, pursuant to the March 1 Amendments, the Bylaws purport to permit the Board a period of up to 90 days to fix a record date following a shareholder request therefor. Specifically, Section 2.15(a) of the Bylaws purports to provide the Board
with a period of 30 days following a request for a record date in order to take action to fix a record date, which record date must be within 60 days following such Board action. The Bylaws further purport to provide that if the Board fails to take
action to fix a record date within 30 days, the record date will be the 60th day following receipt of a request for a record date. Prior to the March 1 Amendments, the Bylaws provided that the Board had a period of 20 days to fix a record date
(comprised of 10 days for the Board to take action to fix a record date, which record date must be within 10 days following such Board action). Furthermore, prior to the March 1 Amendments, the Bylaws provided that if the Board failed to take action
to fix a record date within 10 days, the record date would be the 10th day following receipt of a request for a record date. We believe that the March 1 Amendments to the Bylaws described above are invalid as they impermissibly restrict
shareholders ability to act by written consent.
Consent Process
Section 2.15(b) of the Bylaws purports to require that written consents be delivered to the Company authorizing the requested action
within 30 days after the Consent Record Date. In addition, Section 2.15(c) of the Bylaws purports to mandate a 90 day review period to permit independent inspectors of elections appointed by the Company to review and certify the written consent
if necessary or appropriate in the Boards discretion. We believe that both such Bylaw provisions are inconsistent with the Declaration of Trust and Maryland law and, as such, are not enforceable.
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In particular, we do not believe the 30-day period provided for in Section 2.15(b) of the
Bylaws to deliver written consents is a sufficient length of time to complete a consent solicitation of a public company. We believe a Maryland court would consider, among other things, Section 2-505 of the Maryland General Corporate Law, which
provides that shareholders have 60 days to deliver consents to the company in order to act by written consent. In addition, we do not believe a 90-day period as provided in Section 2.15(c) to review and certify written consents is
reasonable and that any such review can be completed in less than one week. We believe such Bylaw provisions restrict and eviscerate the rights of shareholders to act by written consent are thus in violation of the Companys Declaration of
Trust, which expressly provides for the ability of shareholders to act by written consent. We believe that shareholders will have at least 60 days from the time the first signed written consent is dated to deliver written consents approving the
Consent Proposal, and that any review period prior to the certification of results would not be longer than one week.
The
failure to sign and return a consent will have the same effect as voting AGAINST the Removal Proposal.
The adoption of the Removal Proposal requires the written consent of two-thirds of the outstanding Shares; the failure to return a
written consent, abstentions and broker non-votes, if any, will have the effect of a vote AGAINST the Removal Proposal.
If you have any questions or require any assistance in executing your consent, please call: D.F. King at (800) 714-3313. Banks and brokers may call collect at (212) 269-5550.
The results of our Consent Solicitation will be communicated to you by the issuance of a press release.
THE PROPOSING SHAREHOLDERS RECOMMEND THAT ALL OF THE COMPANYS SHAREHOLDERS CONSENT TO THE REMOVAL PROPOSAL.
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ELECTION OF NEW TRUSTEES
Section 2.4 of the Companys Declaration of Trust provides that if at any time there shall be no trustees in office, successor
trustees shall be elected by shareholders as provided in Section 6.9 of the Declaration of Trust. Section 6.9 of the Declaration of Trust states that if there shall be no trustees, the officers of the Company shall promptly call a
special meeting of the shareholders entitled to vote for the election of successor trustees. Therefore, if we obtain enough written consents to approve the Removal Proposal, we expect the officers of the Company immediately to call a special
meeting of shareholders to elect successor trustees among nominations that may be submitted by shareholders at that time.
We are currently not soliciting proxies for the election of successor trustees at such special meeting.
We may
determine to propose one or more candidates for election as trustees at such special meeting, or may support candidates that may be made by other Company shareholders at that time. Pursuant to the Companys existing Bylaws, only shareholders
who hold at least 3% of the Companys Shares and have held such Shares continuously for at least three years are entitled to nominate trustees for election to the Board. We believe such restriction (which would restrict the Proposing
Shareholders ability to make nominations prior to the removal of the existing Board) is inconsistent with Maryland law. In any event, we believe any such restrictions would not be applicable following the removal of the entire Board.
REVOCATION PROCEDURE
An executed consent card may be revoked at any time before the time that the action authorized by the previously executed consent becomes effective by marking, dating, signing and delivering a written
revocation. A revocation may be in any written form validly signed by the record holder as long as it clearly states that the consent previously given is no longer effective. The delivery of a completed, later dated consent card will revoke any
earlier dated consent. The revocation may be delivered either to the Company or to the Proposing Shareholders, c/o D.F. King & Co., Inc. at 48 Wall Street, New York, NY 10005. We will promptly deliver any revocations we receive to the
Company. Although a revocation is effective if delivered to the Company, we request that either the original or a copy of all revocations of consents be mailed or delivered to D.F. King & Co., Inc. at the address set forth above, so that we
will be aware of all revocations and can more accurately determine if and when valid consents of two-thirds of the outstanding Shares to the Removal Proposal have been received in connection with this Consent Solicitation.
SPECIAL INSTRUCTIONS
If you were a holder of record of the Shares on the Consent Record Date, you may elect to consent to, vote against or abstain with respect to the Removal Proposal by marking the CONSENT to Removal
Proposal, AGAINST Removal Proposal or ABSTAIN box, as applicable, underneath the Removal Proposal on the accompanying
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consent card and signing, dating and returning it promptly in the enclosed
post-paid envelope. In addition, you may withhold consent to the removal of any individual trustee by writing that persons name on the consent card in the space indicated. To the extent you sell your Shares before the Consent Record Date, you
will not have the right to consent to the Removal Proposal.
If a shareholder executes and delivers a
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consent
card, but does not check a box marked CONSENT to Removal Proposal, AGAINST Removal Proposal or ABSTAIN for the Removal Proposal, that shareholder will be deemed to have consented to the Removal Proposal, except
that the shareholder will not be deemed to consent to the removal of any trustee whose name is written in the space the application instruction to the Removal Proposal provides on the consent card.
Your consent is important. Please sign, date and return the enclosed
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consent card in the postage-paid envelope provided.
If you fail to return a
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consent card or to instruct your bank,
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broker firm, dealer, trust company or other nominee to submit a
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consent card on your behalf, you will effectively be voting AGAINST the Removal Proposal. YOU MUST SIGN AND DATE
THE
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CONSENT CARD IN ORDER FOR IT TO BE VALID.
If your Shares are held in the name of a bank, broker firm,
dealer, trust company or other nominee, only that nominee can exercise the right to consent with respect to the Shares that you beneficially own through such nominee, and only upon receipt of your specific instructions. Accordingly, it is critical
that you promptly give instructions to your bank, broker firm, dealer, trust company or other nominee to execute a consent in favor of the proposal set forth herein. Please follow the instructions to consent provided on the enclosed
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consent card. If your bank, broker firm, dealer, trust company or other nominee provides for consent instructions to be delivered to them by telephone or internet, instructions will be included on the
enclosed
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consent card. We urge you to confirm in writing your instructions to the person responsible for your account and provide a copy of those instructions to the Proposing Shareholders, c/o D.F. King & Co.,
Inc., 48 Wall Street, 22nd Floor, New York, New York 10005, so that we will be aware of all instructions given and can attempt to ensure that such instructions are followed.
If you have any questions or require any assistance in executing your consent, please contact:
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, NY 10005
Shareholders call toll-free: (800) 714-3313
Banks and brokers call:
(212) 269-5550
17
ADDITIONAL INFORMATION
The Proposing Shareholders have omitted from this Consent Statement certain disclosure that is already included in the Companys
proxy statement relating to the 2013 Annual Meeting of Shareholders filed with the SEC on February 25, 2013. Such disclosure includes, among other things, information regarding securities of the Company beneficially owned by the Companys
trustees and management; certain shareholders beneficial ownership of more than 5% of the Companys securities; information concerning executive compensation; and information concerning the procedures for submitting shareholder proposals
and trustee nominations intended for consideration at the 2014 Annual Meeting of Shareholders and for consideration for inclusion in the proxy materials for that meeting. The Proposing Shareholders take no responsibility for the accuracy or
completeness of information contained in the Companys proxy statement. Except as otherwise noted herein, the information in this Consent Statement concerning the Company has been taken from or is based upon documents and records on file with
the SEC and other publicly available information. Although the Proposing Shareholders do not have any knowledge indicating that any statement contained herein is untrue, we do not take responsibility, except to the extent imposed by law, for the
accuracy or completeness of statements taken from public documents and records that were not prepared by or on behalf of the Proposing Shareholders, or for any failure of the Company to disclose events that may affect the significance or accuracy of
such information.
FORWARD-LOOKING STATEMENTS
This Consent Statement may include forward-looking statements that reflect the Proposing Shareholders current views with respect to future events. Statements that include the words
expect, intend, plan, believe, project, anticipate, will, may, would and similar statements of a future or forward-looking nature are often
used to identify forward-looking statements. All forward-looking statements address matters that involve risks and uncertainties, many of which are beyond our control. Accordingly, there are or will be important factors that could cause actual
results to differ materially from those indicated in such statements and, therefore, you should not place undue reliance on any such statements. Any forward-looking statements made in this Consent Statement are qualified in their entirety by these
cautionary statements, and there can be no assurance that the actual results or developments anticipated by the Proposing Shareholders will be realized or, even if substantially realized, that they will have the expected consequences to, or effects
on, the Company or its business, operations or financial condition. Except to the extent required by applicable law, the Proposing Shareholders undertake no obligation to update publicly or revise any forward-looking statement, whether as a result
of new information, future developments or otherwise.
Dated:
, 2013
18
ANNEX I
TRANSACTIONS BY THE PARTICIPANTS IN THE SECURITIES OF COMMONWEALTH REIT
DURING THE PAST TWO YEARS
This Annex I sets forth information with respect to each purchase and sale of securities of the Company that was effectuated by a Participant, or an
affiliate of a Participant, during the past two years. As of the date of this Consent Statement, Corvex Management LP (Corvex) is the only Participant, or affiliate of a Participant, that has effectuated a transaction with respect
to any securities of the Company within the past two years. Unless otherwise indicated, all transactions were effectuated in the open market and the table includes commissions paid in per share prices. Pursuant to the agreement dated
January 29, 2013 by and between Corvex and Related Real Estate Recovery Fund, L.P. (Related Recovery Fund), 50% of all Shares purchased by Corvex were allocated to a trading account established by Related Recovery Fund, and Related
Recovery Fund promptly reimbursed Corvex at cost for the purchase price of such Shares.
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Trade Date
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Number Purchased (Sold)
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Price Per Share
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1/16/2013
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50,000
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16.05
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1/16/2013
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25,000
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16.04
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1/16/2013
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59,772
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16.05
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1/17/2013
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75,000
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15.99
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1/17/2013
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22,892
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15.97
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1/17/2013
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100,255
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15.98
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1/17/2013
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1,213
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15.89
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1/17/2013
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25,000
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15.95
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1/18/2013
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52,350
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16.16
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1/18/2013
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400
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16.04
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1/18/2013
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25,000
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16.08
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1/18/2013
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6,382
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16.10
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1/22/2013
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90,000
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16.53
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1/23/2013
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199,031
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16.58
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1/24/2013
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180,905
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16.61
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1/25/2013
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95,138
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16.78
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1/28/2013
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134,160
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16.79
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1/29/2013
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176,534
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16.89
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1/30/2013
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205,773
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16.87
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2/1/2013
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77,074
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16.77
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2/1/2013
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1,100
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16.92
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2/4/2013
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213,100
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16.87
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2/5/2013
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209,874
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17.01
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2/6/2013
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103,583
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17.02
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2/7/2013
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325,357
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17.00
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2/8/2013
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35,646
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17.05
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2/8/2013
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55,582
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17.05
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2/11/2013
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116,976
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17.05
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2/12/2013
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64,824
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17.26
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2/12/2013
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98,100
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17.30
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2/13/2013
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81,177
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17.31
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2/13/2013
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208,710
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17.30
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2/14/2013
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39,854
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17.35
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2/14/2013
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40,170
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17.35
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2/15/2013
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46,872
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17.38
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2/15/2013
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103,803
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17.41
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2/19/2013
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78,400
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17.48
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2/19/2013
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471,600
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17.46
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Trade Date
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Number Purchased (Sold)
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Price Per Share
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2/20/2013
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35,062
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17.53
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2/20/2013
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584,449
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17.55
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2/20/2013
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240,400
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17.57
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2/21/2013
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143,644
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17.43
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2/21/2013
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190,327
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17.61
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2/21/2013
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20,761
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17.66
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2/21/2013
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16,258
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17.64
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2/22/2013
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386,204
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17.95
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2/22/2013
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21,989
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17.79
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2/25/2013
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1,155,000
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16.44
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2/25/2013
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1,109,300
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17.02
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2/25/2013
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375,000
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16.29
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3/5/2013
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100,000
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22.91
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3/5/2013
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50,000
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22.96
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3/5/2013
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530,766
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23.01
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3/7/2013
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125,000
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21.96
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3/7/2013
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365,000
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21.86
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3/8/2013
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454,233
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22.09
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3/8/2013
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202,800
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22.28
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3/8/2013
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2,700
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22.05
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3/8/2013
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50,000
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22.02
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3/12/2013
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110,000
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21.85
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3/25/2013
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110,000
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22.80
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PRELIMINARY COPY SUBJECT TO COMPLETION
[FORM OF CONSENT CARD]
CONSENT OF SHAREHOLDERS OF COMMONWEALTH REIT
TO ACTION WITHOUT A MEETING
THIS CONSENT SOLICITATION IS BEING MADE BY CORVEX MANAGEMENT LP, KEITH MEISTER, RELATED FUND MANAGEMENT, LLC, RELATED
REAL ESTATE RECOVERY FUND GP-A, LLC, RELATED REAL ESTATE RECOVERY FUND GP, L.P., RELATED REAL ESTATE RECOVERY FUND, L.P., RRERF ACQUISITION, LLC, JEFF T. BLAU AND RICHARD OTOOLE
Unless otherwise indicated below, the undersigned, a shareholder of record of CommonWealth REIT (the Company), hereby
consents pursuant to Sections 2.3 and 6.9 of the Declaration of Trust of the Company with respect to all common shares of beneficial interest, par value $0.01 per share, held by the undersigned to the taking of the following action without a meeting
of the shareholders of the Company:
IF NO BOX IS MARKED FOR THE REMOVAL PROPOSAL AND THIS CARD IS PROPERLY SIGNED, DATED AND DELIVERED,
THE UNDERSIGNED WILL BE DEEMED TO CONSENT TO THE REMOVAL PROPOSAL, EXCEPT THAT THE UNDERSIGNED WILL NOT BE DEEMED TO CONSENT TO THE REMOVAL OF ANY CURRENT TRUSTEE WHOSE NAME IS WRITTEN IN THE SPACE PROVIDED. CORVEX MANAGEMENT LP AND RELATED FUND
MANAGEMENT, LLC RECOMMEND THAT YOU CONSENT TO THE REMOVAL PROPOSAL.
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1.
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The removal without cause of Barry M. Portnoy, Adam D. Portnoy, Joseph L. Morea, William A. Lamkin, and Frederick N. Zeytoonjian as trustees of the Company and any
other person or persons elected or appointed to the Board of Trustees of the Company prior to the effective time of this proposal.
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¨
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¨
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¨
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Consent to Removal Proposal
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Against Removal Proposal
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Abstain
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INSTRUCTION: TO CONSENT TO, VOTE AGAINST OR ABSTAIN FROM CONSENTING TO THE REMOVAL OF ALL THE ABOVE-NAMED TRUSTEES,
CHECK THE APPROPRIATE BOX ABOVE. IF YOU WISH TO APPROVE THE REMOVAL OF CERTAIN OF THE ABOVE-NAMED PERSONS, BUT NOT ALL OF THEM, OR IF YOU DO NOT WISH TO APPROVE THE REMOVAL OF ANY OTHER PERSON OR PERSONS ELECTED OR APPOINTED TO THE BOARD OF TRUSTEES
OF THE COMPANY PRIOR TO THE EFFECTIVE TIME OF THE REMOVAL PROPOSAL, CHECK THE CONSENT TO REMOVAL PROPOSAL BOX ABOVE AND WRITE THE NAME OF EACH SUCH PERSON YOU
DO NOT
WISH REMOVED IN THE FOLLOWING SPACE:
VOTING AGAINST OR ABSTAINING ON THIS REMOVAL PROPOSAL WILL HAVE THE SAME EFFECT AS NOT CONSENTING.
(IN THE ABSENCE OF VOTING AGAINST OR ABSTENTION BEING INDICATED ABOVE, THE UNDERSIGNED HEREBY CONSENTS TO EACH ACTION LISTED ABOVE.)
FOR YOUR CONSENT TO BE VALID, IT MUST BE DATED.
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Signature:
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Signature (if held jointly):
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Title(s):
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Please sign exactly as name appears on share certificates or on label affixed hereto. When shares are held by joint
tenants, both should sign. In case of joint owners, EACH joint owner should sign and date. When signing as attorney, executor, administrator, trustee, guardian, corporate officer, etc., give full title as such.
PLEASE SIGN, DATE AND MAIL YOUR CONSENT PROMPTLY IN THE POSTAGE-PAID ENVELOPE ENCLOSED.