SEC Form SC 13D/A filed by Diversified Healthcare Trust (Amendment)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)
(Amendment No. 5)
Diversified Healthcare Trust
(Name of Issuer)
Common Shares of Beneficial Interest, $0.01 par value per share
(Title of Class of Securities)
25525P107
(CUSIP Number)
LAURA ARNOLD
FLAT FOOTED LLC
3415 North Pines Way
Suite 205
Wilson, Wyoming 83014
(917) 439-7926
SEAN E. O’DONNELL
CHRISTOPHER CARTY
HERRICK, FEINSTEIN LLP
Two Park Avenue
New York, New York 10016
(212) 592-1400
KEVIN NEUBAUER
SEWARD & KISSEL LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1355
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
December 19, 2023
(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 § 240.13d-7 for other parties to whom copies are to be sent.
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. 25525P107
| 1 |
NAME OF REPORTING PERSON
FLAT FOOTED LLC | |
| 2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
| |
| 3 |
SEC USE ONLY
| |
| 4 |
SOURCE OF FUNDS
AF | |
| 5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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
23,487,000 | |||
| 9 |
SOLE DISPOSITIVE POWER
- 0 - | |||
| 10 |
SHARED DISPOSITIVE POWER
23,487,000 |
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,487,000 | |
| 12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☐ | |
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.8% | |
| 14 |
TYPE OF REPORTING PERSON
IA, OO, HC |
CUSIP No. 25525P107
| 1 |
NAME OF REPORTING PERSON
MARC ANDERSEN | |
| 2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ☐ (b) ☐
| |
| 3 |
SEC USE ONLY
| |
| 4 |
SOURCE OF FUNDS
AF | |
| 5 |
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 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
23,487,000 | |||
| 9 |
SOLE DISPOSITIVE POWER
- 0 - | |||
| 10 |
SHARED DISPOSITIVE POWER
23,487,000 |
| 11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
23,487,000 | |
| 12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
☐ | |
| 13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.8% | |
| 14 |
TYPE OF REPORTING PERSON
IN, HC |
CUSIP No. 25525P107
The following constitutes Amendment No. 5 to the Schedule 13D filed by the undersigned (“Amendment No. 4”). This Amendment No. 5 amends the Schedule 13D as specifically set forth herein. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Schedule 13D.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
On December 19, 2023, the Reporting Persons delivered a letter (the “December Letter”) to the Board of Trustees of the Issuer (the “Board”) regarding the Issuer’s decision to (i) sell its 31.9% stake in AlerisLife, Inc. (“AlerisLife”) to ABP Acquisition 2 LLC (“ABP), an entity indirectly controlled by the Managing Trustee of the Board, and (ii) waive certain defaults under the master management agreement between AlerisLife and the Issuer, without any apparent consideration. The December Letter indicated that the Reporting Persons are particularly interested in knowing what, if any, analysis the Board has conducted to determine whether the Issuer should exercise its right to repurchase its 31.9% share of AlerisLife at $1.31 per share because (i) the sale to ABP significantly undervalued AlerisLife, (ii) AlerisLife was acquired at a time when its 2023 EBITDA projections were abnormally depressed, and (iii) by reacquiring AlerisLife, the Issuer would regain some ability to influence and oversee an entity vital to its business. Pursuant to the December Letter, the Reporting Persons, due to the reasons outlined above, strongly encouraged the Issuer to exercise its AlerisLife repurchase option by the December 31, 2023 deadline.
| Item 5. | Interest in Securities of the Issuer. |
The aggregate percentage of Shares reported owned by each person named herein is based upon 240,450,349 Shares outstanding as of October 27, 2023, which is the total number of Shares outstanding as reported in the Issuer’s Quarterly Report on Form 10-Q, filed with the Securities and Exchange Commission on November 1, 2023.
| A. | Flat Footed |
| (a) | As the investment manager of certain pooled investment vehicles (the “Funds”), Flat Footed may be deemed to beneficially own the 23,487,000 Shares held by the Funds. |
Percentage: Approximately 9.8%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. | Shared power to vote or direct vote: 23,487,000 |
| 3. | Sole power to dispose or direct the disposition: 0 |
| 4. | Shared power to dispose or direct the disposition: 23,487,000 |
| (c) | Flat Footed has not entered into any transactions in the Shares during the past sixty days. |
| B. | Mr. Andersen |
| (a) | As the Managing Member of Flat Footed, Mr. Andersen may be deemed to beneficially own the 23,487,000 Shares held by the Funds. |
Percentage: Approximately 9.8%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. | Shared power to vote or direct vote: 23,487,000 |
| 3. | Sole power to dispose or direct the disposition: 0 |
| 4. | Shared power to dispose or direct the disposition: 23,487,000 |
| (c) | Mr. Andersen has not entered into any transactions in the Shares during the past sixty days. |
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended to add the following:
The Funds hold (i) $3,635,000 aggregate principal amount of the Company’s 4.750% senior unsecured notes due 2024, (ii) $4,000,000 aggregate principal amount of the Company’s 9.750% senior unsecured notes due 2025, (iii) $28,015,000 aggregate principal amount of the Company’s 4.750% senior unsecured notes due 2028, (iv) $65,250,000 aggregate principal amount of the Company’s 4.375% senior unsecured notes due 2031, (v) $38,913,100 aggregate principal amount of the Company’s 5.625% senior unsecured notes due 2042, (vi) $18,094,900 aggregate principal amount of the Company’s 6.250% senior unsecured notes due 2046 and (vii) $35,000,000 aggregate principal amount of the Company’s 0/11.25% senior secured notes due 2026.
CUSIP No. 25525P107
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
Dated: December 22, 2023
| Flat Footed LLC | |||
| By: |
/s/ Marc Andersen |
||
| Name: | Marc Andersen | ||
| Title: | Managing Member | ||
|
/s/ Marc Andersen |
|
| Marc Andersen |