Exhibit 12
COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
SUFFOLK, ss. SUPERIOR COURT DEPT.
Docket No. 95-2095-A
* * * * * * * * * * * * * * * * * * * * * * * * *
*
RICHARD M.
OSBORNE,
et al., *
*
Plaintiffs, *
*
v. *
*
PRUDENTIAL REALTY TRUST, a *
Massachusetts Business Trust, et al., *
*
Defendants. *
*
***** *
*
PRUDENTIAL REALTY TRUST, a *
Massachusetts Business
Trust, *
*
Counterclaim-Plaintiff,
*
*
v. * ANSWER AND
* COUNTERCLAIMS
RICHARD M. OSBORNE, *
ROBERT G. STERN, BLACK *
BEAR REALTY, Ltd., and *
TURKEY VULTURE FUND XIII, Ltd., *
*
Counterclaim-Defendants. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
ANSWER
Defendants Prudential Realty Trust, Jeffrey L. Danker,
Thomas F. Murray, Joseph M. Selzer, Richard J. Boyle, and Francis
L. Bryant ( Defendants ) hereby answer and respond to the
Complaint ( Complaint )
filed by plaintiffs Richard M. Osborne
and Robert G. Stern ( Plaintiffs ) in this action.
1. Defendants admit the averments contained in paragraph 1.
2.
Defendants
are without knowledge or information
sufficient to form a belief as to the truth of the averments
contained in paragraph 2, and thus Defendants deny them.
3. Defendants admit the averments contained in paragraph 3.
4. Defendants admit the averments contained in paragraph 4.
5. Defendants admit the averments contained in paragraph 5.
6. Defendants admit the averments contained in paragraph 6.
7. Defendants admit the averments contained in paragraph 7.
8. Defendants admit the averments contained in paragraph 8.
9. Defendants admit the averments contained in paragraph 9.
10. Defendants admit the averments contained in paragraph
10.
11. Defendants admit the averments contained in paragraph 11
but deny that paragraph 11 is a complete or accurate summary of
the relevant provisions of the Declaration of Trust.
12. Defendants admit the averments contained in paragraph
12.
13. Defendants admit that, under the terms of the
Declaration of Trust,
Income
Shares
are entitled to receive
dividends and a liquidation preference over the
Capital
Shares.
To the extent Plaintiffs attempt to interpret the Declaration of
Trust in this sentence of paragraph 13, Defendants state that the
Declaration of Trust speaks for itself and deny the averments in
the third sentence. As for the remainder of paragraph 13,
defendants are without knowledge or information sufficient to
form a belief as to the truth of the averments contained therein,
and thus Defendants deny them.
14. Defendants state that the Declaration of Trust speaks
for itself. To the extent Plaintiffs attempt to interpret the
Declaration of Trust, Defendants deny the averments contained in
paragraph 14.
15. Defendants assert that the Declaration of Trust speaks
for itself. To the extent Plaintiffs attempt to interpret the
Declaration of Trust, Defendants deny the averments contained in
paragraph 15. Defendants assert that the registration statement
became effective on or about June 19, 1985.
16. Defendants deny the first sentence of paragraph 16. As
for the remainder of paragraph 16, Defendants state that the
Declaration of Trust speaks for itself. To the extent Plaintiffs
attempt to interpret the Declaration of Trust, Defendants deny
the averments contained in paragraph 16.
17. Defendants deny the first sentence of paragraph 17,
because the SEC does not approve prospectuses. As for the
remainder of paragraph 17, Defendants state that the Declaration
of Trust speaks for itself. To the extent Plaintiffs attempt to
interpret the Declaration of Trust, Defendants deny the averments
contained in paragraph 17.
18. Defendants state that the Declaration of Trust speaks
for itself. To the extent Plaintiffs attempt to interpret the
Declaration of Trust, Defendants deny the averments contained in
paragraph 18.
19. Defendants state that the Declaration of Trust speaks
for itself. To the extent Plaintiffs attempt to interpret the
Declaration of Trust, Defendants deny the averments contained in
paragraph 19.
20. Defendants assert that the capital share trading price
was at a high of $2.25 per share on August 30, 1985, and $0.41
per share on February 17, 1995, and further
assert
that the
income share trading price was at a high of $8.00 per share on
August 30, 1985, and $4.13 per share on February 17, 1995.
Defendants admit that the appraised value of the Trust Estate was
between $90 million and $100 million in 1985. Defendants admit
that a Form 8-K report filed with the Securities and Exchange
Commission in February, 1995 reported that the appraised value of
the Trust Estate was $73.7 million at the close of 1994.
Defendants deny the remainder of the averments contained in
paragraph 20.
21. Defendants deny the averments contained in paragraph
21.
22. Defendants admit that a Form 8-K report filed with the
Securities and Exchange Commission in February, 1995 reported
that the market value of the Trust Estate increased by 13% during
the calendar year 1994. Defendants further admit that the
Capital
Share
and
Income
Share
trading price increased during
1994 and 1995. Defendants deny the remainder of the averments
contained in paragraph 22.
23. Defendants deny the averments contained in paragraph
23.
24. Defendants state that the Form 10-K filed on March 29,
1995 speaks for itself. To the extent Plaintiffs attempt to
interpret the Form 10-K, Defendants deny the averments contained
in paragraph 24.
25. Defendants deny the averments contained in paragraph
25.
26. Defendants admit the averments contained in paragraph
26.
27. Defendants deny the averments contained in paragraph
27.
28. Defendants deny the averments contained in paragraph
28.
29. Defendants deny the averments contained in paragraph
29.
30. Defendants deny the averments contained in paragraph
30.
31. Defendants repeat and reallege their answers to
paragraphs 1 through 30 as though fully stated herein.
32. Defendants deny the averments contained in paragraph
32.
33. Defendants repeat and reallege their answers to
paragraphs 1 through 32 as though fully stated herein.
34. Defendants deny the averments contained in paragraph
34.
35. Defendants repeat and reallege their answers to
paragraphs 1 through 34 as though fully stated herein.
36. Defendants admit the averments contained in the first
sentence of paragraph 36. Defendants deny that plaintiffs are
entitled to the declaratory relief requested.
37. Defendants deny that Plaintiffs are entitled to any of
the relief requested in the Complaint.
ADDITIONAL DEFENSES
38. The Complaint fails to state a claim against the
Defendants upon which relief may be granted.
39. The claims contained in the Complaint are barred by the
doctrine of estoppel.
40. The claims contained in the Complaint are barred by the
doctrine of laches.
41. The claims contained in the Complaint are barred by the
doctrine of unclean hands.
42. The claims contained in the Complaint are barred by the
doctrine of waiver.
43. The claims alleged in the Complaint are barred because
such claims may only be brought as a derivative action and the
plaintiffs have failed to meet any of the requirements or
preconditions for bringing a derivative action pursuant to Rule
23.1 of the Massachusetts Rules of Civil Procedure.
44. The claims alleged in the Complaint are barred because
the plaintiffs do not fairly and adequately represent the
interests of the shareholders.
45. The claims alleged in the Complaint are barred because
the alleged actions of defendants Danker, Murray, Selzer, Boyle
and Bryant are protected by the business judgment rule.
46. The claims alleged in the Complaint are barred by
Article VII of the Declaration of
Trust.
COUNTERCLAIMS
As and for its Counterclaims against counterclaim-defendants
Richard M. Osborne, Robert G. Stern, Black Bear Realty, Ltd., and
Turkey Vulture Fund XIII, Ltd., counterclaim-plaintiff Prudential
Realty Trust, a Massachusetts Business Trust, states as follows:
PARTIES
1. Counterclaim-plaintiff Prudential Realty Trust (the
Trust or Prudential ) is a Massachusetts Business Trust with
its place of business at Prudential Center, 4th Floor, Boston,
Massachusetts 02199. The Trust is qualified as a real estate
investment trust (a REIT ) under the Internal Revenue Code.
2. Counterclaim-defendant Richard M. Osborne ( Osborne )
resides at 9050 Jackson Street, Mentor, Ohio, and is both a
direct and indirect holder of both Capital Shares and Income
Shares of the Trust. Osborne s business address is 7001 Center
Street, Mentor, Ohio. Osborne is the sole managing member of
counterclaim-defendant Black Bear Realty, Ltd., and is the sole
managing member of counterclaim-defendant Turkey Vulture Fund
XIII, Ltd. Osborne controls Black Bear Realty, Ltd., and Turkey
Vulture Fund XIII, Ltd. Osborne directly and indirectly acquired
shares of the Trust, and caused Black Bear Realty, Ltd. and
Turkey Vulture Fund XIII, Ltd. to acquire shares of the Trust,
with the intent and purpose of gaining control of the Trust.
Osborne has taken actions with regard to the Trust in the
Commonwealth of Massachusetts directly and indirectly on behalf
of himself and by and through the other counterclaim-defendants,
including, among other things, the filing of the instant lawsuit
in the Superior Court Department of the Massachusetts Trial Court
and the initiation of a tender offer for shares of the Trust.
3. Counterclaim-defendant Black Bear Realty, Ltd. ( Black
Bear ) purports to be an Ohio limited liability company. Black
Bear is organized and controlled by counterclaim-defendant
Osborne. Black Bear s business address is 7001 Center Street,
Mentor, Ohio. Black Bear was newly formed by Osborne, who is
Black Bear s sole managing member, for the sole purpose of
effectuating Osborne s scheme to gain control of the Trust.
Black Bear has not conducted any business other than in
connection with that scheme. Black Bear has acted in the
Commonwealth of Massachusetts with regard to the Trust,
including, among other things, participating with Osborne in
commencing a tender offer for Capital Shares of the Trust and
participating in the instant lawsuit, which was filed by Osborne
directly and indirectly on behalf of Black Bear in the Superior
Court Department of the Trial Court of the Commonwealth of
Massachusetts.
4. Counterclaim-defendant Turkey Vulture Fund XIII, Ltd.
( Vulture ) purports to be an Ohio limited liability company.
Osborne is the sole managing member of Vulture. Vulture s
business address is 7001 Center Street, Mentor, Ohio. Osborne
created Vulture for the purpose of, among other things, gaining
control of the Trust. Vulture has taken actions regarding the
Trust in the Commonwealth of Massachusetts including, among other
things, purchasing Income Shares and participating directly or
indirectly with Osborne in the filing of this lawsuit in the
Superior Department of the Trial Court of the Commonwealth of
Massachusetts and in other aspects of Osborne s scheme to gain
control of the Trust.
5. Counterclaim-defendant Robert G. Stern ( Stern ) is a
Massachusetts resident, a plaintiff in this action, and a
shareholder of the Trust. Upon information and belief, Mr. Stern
is working directly and indirectly with Mr. Osborne as part of
Osborne s scheme to gain control of the Trust.
JURISDICTION AND VENUE
6. This Court has jurisdiction over this matter pursuant
to Mass. Gen. L. c. 215,
section 6, because this is a case and matter in which equitable relief
is sought relative to a Massachusetts Business Trust. This Court
also has jurisdiction over the matter since the Trust maintains
an office in Massachusetts and the terms of the Declaration of
Trust provide that the rights of all parties and the effect and
construction of every provision of the Declaration of Trust
should be subject to and construed according to the statutes and
laws of the Commonwealth of Massachusetts.
7. Venue is proper in this Court pursuant to Mass. Gen. L.
c. 215, section 8, because Prudential maintains an office in Boston,
Suffolk County, Massachusetts. Venue is also proper in this
Court for these counterclaims because this is the Court in which
the counterclaim-defendants chose to commence this action.
8. This Court has personal jurisdiction over counterclaim-
defendant Osborne pursuant to Mass. Gen. L. c. 227, section 2, since
Osborne has consented to this Court s jurisdiction by filing the
instant action. This Court also has personal jurisdiction over
Osborne pursuant to the Massachusetts long-arm statute, Mass.
Gen. L. c. 223A, since Osborne, through a tender offer conducted
ostensibly in the name of Black Bear, has transacted business
within the Commonwealth, and since, on information and belief,
Osborne recruited counterclaim-defendant Stern to participate in
filing the instant action.
9. This Court has personal jurisdiction over counterclaim-
defendant Black Bear pursuant to Mass. Gen. L. c. 227, section 2, since
Black Bear, as Osborne s alter ego, is participating in Osborne s
scheme to gain control of the Trust, including the filing of the
instant action. This Court also has personal jurisdiction over
counterclaim-defendant Black Bear Realty pursuant to the
Massachusetts long-arm statute, Mass. Gen. L. c. 223A, since
Black Bear, through its tender offer, has transacted business
within the Commonwealth, and since Black Bear is merely the alter
ego of Osborne.
10. This Court has personal jurisdiction over counterclaim-
defendant Vulture pursuant to Mass. Gen. L. c. 227, section 2, since
Vulture is participating directly or indirectly in Osborne s
scheme to gain control of the Trust, including the filing of the
instant action. This Court has personal jurisdiction over
Vulture pursuant to the Massachusetts long-arm statute, Mass.
Gen. L. c. 223A, since Vulture, through its sole managing member,
has transacted business within the Commonwealth.
11. This Court has personal jurisdiction over counterclaim-
defendant Stern under Mass. Gen. L. c. 227, section 2, since Stern has
consented to this Court s jurisdiction by filing the instant
action. This Court also has personal jurisdiction over
counterclaim-defendant Stern because Stern is a resident of the
Commonwealth of Massachusetts. This Court also has personal
jurisdiction over counterclaim-defendant Stern under the
Massachusetts long-arm statute, Mass. Gen. L. c. 223A, since
Stern has transacted business within the Commonwealth, including,
on information and belief, participating directly or indirectly
with Osborne in Osborne s scheme to gain control of the Trust.
BACKGROUND TO THE ACTION
12. The Trust is a closed-end, finite-life, self-
liquidating Massachusetts business trust formed in 1985 pursuant
to a Declaration of Trust made as of June 19, 1985, and amended
August 20, 1985, (the Declaration of Trust ).
13. The Trust is governed by a Board of Trustees (the
Trustees ), a majority of whom (the Unaffiliated Trustees ) are
not affiliated with The Prudential Realty Advisors, Inc., (the
Advisor ), the advisor to the Trust.
14. The Trust has two classes of shares, Capital Shares and
Income Shares. The Trust was formed to acquire real property
with a view to providing (1) current distributions of cash flow
from operations to holders of Income Shares of the Trust in
addition to a preferential return to Income Shareholders of up to
the stated value ($8.00) of the Income Shares, depending on the
value of the Trust s properties remaining at the time of
liquidation, and (2) realizing capital appreciation for
distribution on the Capital Shares of the Trust, subject to a
liquidation preference in favor of the Income Shares.
15. Pursuant to the Declaration of Trust, the Trust is
qualified as a real estate investment trust ( REIT ) under the
provisions of the Internal Revenue Code.
16. The Trust s policies as to duration of the Trust and
liquidation of the Trust s assets are set forth in Article V of
the Declaration of Trust. Pursuant to Article V of the
Declaration of Trust, the Trust was intended at the outset to
liquidate no more than 12 years from the Trust s inception in
1985. The Trust was intended to hold its portfolio of real
properties for approximately 10 1/2 years and thereafter to
liquidate any remaining properties within a period of
approximately 18 months in order to achieve a complete
liquidation of the Trust within the 12-year period. Pursuant to
the Declaration of Trust, and consistent with the nature of the
Trust as a finite-life rather than an infinite-life investment,
the Trustees of the Trust were empowered to dispose of Trust
properties without a shareholder vote as early as five years
after the inception of the Trust, but the Trustees could only
extend the 12 year maximum life of the Trust for a period not to
exceed two years, and then only if (a) a majority of the
Trustees, including a majority of the Unaffiliated Trustees,
affirmatively determined that such an extension would be in the
best interests of the shareholders, and (b) a vote of the holders
of a majority of each class of the Trust s shares then
outstanding and entitled to vote approved such an extension of
two years or less.
17. Capital and Income Shares of the Trust were sold to the
public pursuant to a public offering in 1985. Purchasers of
either or both classes of shares of the Trust purchased their
shares with the knowledge that the Trust was a fixed-life, self-
liquidating investment pursuant to the Declaration of Trust and
that any alteration of such policies would require approval by
75% of the outstanding shares of each class, voting separately as
a class.
18. Such fixed-life investments are frequently purchased by
investors so as to provide liquidity by a fixed date in order to
meet anticipated obligations (such as payment of college tuition
for the investor s children, or to enable retirement at a certain
time).
19. In order to protect the shareholders expectations that
the Trust was a finite-life, self-liquidating investment, the
Declaration of Trust provides that none of the Trust s policies
set forth in Article V of the Declaration of Trust can be amended
without the approval of holders of 75% of each class of the
outstanding shares, voting separately as a class.
20. Consistent with the policies set forth in Article V of
the Declaration of Trust, in December, 1994, the Trustees of the
Trust engaged J.P. Morgan Securities, Inc. ( J.P. Morgan ) on
behalf of the Trust as an independent financial advisor to review
and to provide recommendations on the strategic options available
to maximize the value of the Trust to its shareholders as the
Trust approached its scheduled liquidation date. After December
31, 1994, J.P. Morgan recommended the Trustees proceed to solicit
bids for the shares of the Trust or its assets. On February 9,
1995, the Trustees accepted J.P. Morgan s and the Advisor s
recommendations and the Board approved the engagement of J.P.
Morgan to solicit bids for the Trust s properties and/or shares.
Pursuant to a letter agreement dated March 16, 1995, the Board of
Trustees of the Trust engaged J.P. Morgan to undertake certain
services in connection with the solicitation of bids and, if so
decided by the Trustees, to assist the Trust in liquidating the
Trust by selling the Trust and/or its properties. The Trustees
decision to retain J.P. Morgan to conduct this process was made
in prudent exercise of the Trustees business judgment, in good
faith and with due care, and in reliance, among other things, on
the advice of the Trust s independent financial advisor, J.P.
Morgan, that it was in the best interest of the shareholders to
solicit bids and investigate a liquidation of the Trust at this
time rather than waiting until the end of the 12-year life of the
Trust or soliciting shareholder approval for a two-year extension
of the Trust.
21. Pursuant to its engagement letter, J.P. Morgan prepared
an offering memorandum for the Trust and its properties, and has
solicited bids for the Trust and/or its properties. The deadline
for initial bids was set as May 26, 1995. J.P. Morgan received
substantial expressions of interest on or about May 26, 1995,
from a number of bidders regarding the Trust or the Trust s
properties. It is in the best interest of the shareholders for
representatives of the Trust to continue the process of
discussing such bids with the bidders in order to attempt to
maximize value for the shareholders of the Trust.
22. On information and belief, in 1994, counterclaim-
defendant Osborne, acting individually and also for and through
Vulture, conceived a plan to gain control of the Trust at a cheap
price and to take advantage of that control for his personal
profit at the detriment of holders of Income Shares. Osborne and
Vulture, acting at Osborne s direction and control, thereupon
began accumulating Capital Shares and Income Shares of the Trust
without disclosing their true intent to gain control of the
Trust. While Osborne and Vulture were aware of the finite-life,
self-liquidating nature of the Trust, Osborne s plan included
attempting to change the Trust into an infinite-life trust with
the goal of achieving personal profit for Osborne at the
detriment of holders of Income Shares. As part of and in
furtherance of this scheme, Osborne commenced the instant action
in the Superior Court Department of the Trial Court (the
Superior Court Action ) seeking to remove the current Trustees,
and subsequently commenced a virtually identical action in the
Probate Court Department of the Trial Court, Suffolk County (the
Probate Court Action ), seeking damages and a declaratory
judgment. Also as part of his scheme, Osborne, acting directly
and for and through Vulture and Black Bear, commenced a tender
offer for Capital Shares of the Trust on May 17, 1995 (the
Tender Offer ).
23. Pursuant to the Tender Offer, Osborne and his
affiliates Black Bear and Vulture seek to gain control of the
Trust by acquiring sufficient shares of Capital Stock at 30 cents
per share to increase their control to greater than 50% of the
combined voting power of the Income Shares and Capital Shares,
and thus enable Osborne to remove current Trustees following
consummation of the Tender Offer, to install an advisor
controlled by Osborne, and to seek to prevent the liquidation of
the Trust which would otherwise take place pursuant to Article V
of the Declaration of the Trust. According to the Proposed
Merger, Osborne intends in effect to amend Article V of the
Declaration of the Trust through a process of merging of the
Trust into an entity controlled by Osborne and to provide
remaining shareholders of the Trust with shares in this new,
Osborne-controlled entity, all without the requisite vote of 75%
of each class of shares, voting separately as a class, required
by the Declaration of Trust.
24. Osborne, Black Bear and Vulture have stated in the
Tender Offer statement filed by Black Bear in connection with the
Tender Offer that the life of the Trust may be extended to an
infinite-life trust, and the liquidation of the Trust prevented,
by a majority vote of each class of the shareholders of the
Trust, voting separately as a class, in favor of the merger
proposed by Osborne. In fact, a 75% vote of the outstanding
shares of each class, voting separately as a class, is required
to effect such a change in the Trust s policies.
25. Osborne, Black Bear and Vulture have also structured
the Tender Offer so that the counterclaim-defendants will obtain
all capital gains, if any, payable to holders of the Capital
Shares of the Trust. Osborne contends in the Superior Court
Action that capital gains will be due and owing to holders of the
Capital Shares of the Trust upon a liquidation or sale of any of
the Trust s properties. The Trustees do not believe that any
capital gains will be due and payable to any of the capital
shareholders upon a current liquidation of the Trust or its
properties. Osborne, Black Bear and Vulture have also asserted
in their Tender Offer that there would be no statutory appraisal
rights available to dissenting shareholders of the Trust should
they not wish to have the merger proposed by Osborne proceed.
The Trustees believe, however, that common law appraisal rights
may be available to certain shareholders of the Trust under
Massachusetts law given the facts and circumstances regarding the
Tender Offer and the Proposed Merger.
26. Osborne, Black Bear and Vulture have structured and
timed their attempt to gain control of the Trust, including the
initiation of the Superior Court Action, the Probate Court
Action, and the Tender Offer, intentionally to interfere with the
bidding process initiated by J.P. Morgan at the request of the
Board of Trustees and with the express intention of interfering
with that process so as to prevent shareholders of the Trust from
obtaining value for their shares pursuant to the policies set
forth in the Declaration of Trust and instead to convert the
Trust s value to the personal gain of the counterclaim-defendants
at the detriment to holders of Income Shares.
COUNT I
(Declaratory Judgment as to Shareholder
Vote Necessary to Approve the Merger
Proposed by the Counterclaim-Defendants)
27. The counterclaim-plaintiff repeats and incorporates by
reference the allegations in paragraphs 1 through 26, above, of
these counterclaims, as if set forth wholly herein.
28. Osborne and the other counterclaim-defendants have
stated in their Offer to Purchase to the shareholders of the
Trust that if the Tender Offer is successful, the counterclaim-
defendants will seek to execute a merger (the Proposed Merger )
for the purpose of preventing the liquidation of the Trust as
required by the Declaration of Trust and thereby converting the
Trust from a fixed-life Trust into a new REIT with an infinite
life.
29. Osborne and the other counterclaim-defendants have
asserted to the shareholders of the Trust in the Offer to
Purchase issued in connection with the Tender Offer that the
Proposed Merger would require a bare majority vote of each class
of shares, voting separately as a class.
30. On information and belief, Osborne and the other
counterclaim-defendants intend, if the Tender Offer is
successful, to attempt to declare the Proposed Merger as
receiving the necessary shareholder vote, and to consummate the
Proposed Merger, upon a vote of a majority of the outstanding
shares of each class, voting separately as a class, in violation
of the Declaration of Trust.
31. The Proposed Merger, which is being proposed expressly
for the purpose and effect of amending the policies set forth in
Article V of the Declaration of Trust, and which will create a
new entity without a certificate or by-laws carrying forward the
policies set forth in Article V of the Declaration, in fact
requires an affirmative vote of 75% of the outstanding shares of
each class of share, voting separately as a class.
32. Shareholders of the Trust considering whether to tender
their shares in accordance with the Tender Offer will be misled
if they tender their shares in reliance on the statements in the
Offer to Purchase that a bare majority vote of each class of
shares, voting separately as a class, would be sufficient to
approve the Proposed Merger.
33. If the Tender Offer is successful, remaining public
shareholders will be oppressed and their rights and property
misappropriated by the counterclaim-defendants should Osborne and
the other counterclaim-defendants follow through on their stated
plan to consummate the Proposed Merger upon an inadequate
majority vote.
34. Thus, there presently exists an actual and justiciable
controversy regarding the proper percentage of vote of each class
of the outstanding shares necessary to approve the Proposed
Merger. The counterclaim-plaintiff seeks declaratory relief
pursuant to Mass. Gen. L. c. 231A, and requests that the Court
determine the respective rights and obligations of the parties
thereunder.
35. Osborne, directly and through and for the other
counterclaim-defendants, has already stated their intention to
remove some or all of the current Trustees upon consummation of
the Tender Offer if necessary to further the Proposed Merger, and
thus the current Trustees may not be in a position to protect the
rights of the shareholders after consummation of the Tender Offer
if the Tender Offer is successful.
36. The Trustees have standing to bring this counterclaim
in the exercise of their fiduciary duties to the shareholders of
the Trust.
WHEREFORE, the counterclaim-plaintiff respectfully prays
that this Court enter an order and judgment:
(a) declaring whether an affirmative vote of 75% or a
majority vote of the outstanding shares of each class of shares,
voting separately as a class, is required to effectuate the
Proposed Merger;
(b) awarding the counterclaim-plaintiff its costs and
reasonable attorneys fees in this action; and
(c) issuing such other and further relief as may be
appropriate.
PRUDENTIAL REALTY TRUST
JEFFREY L. DANKER
THOMAS F. MURRAY
JOSEPH M. SELZER
RICHARD M. BOYLE
FRANCIS L. BRYANT
By their attorneys,
/s/ Stephen D. Poss, P.C.
Stephen D. Poss, P.C. (BBO No.
551760)
Dana L. McAlister (BBO No.
565398)
Gus P. Coldebella (BBO No.
566918)
GOODWIN, PROCTER & HOAR
Exchange Place
Boston, MA 02109-2881
(617) 570-1000
DATED: May 31, 1995