Cohen & Steers Fund Cancels Meeting with Its Largest Shareholder
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Western Investment Criticizes Recent By-Law Amendments and
Announces Proxy Challenge
NEW YORK--(Business Wire)--Western Investment LLC ("Western Investment"), the largest
shareholder of Cohen & Steers REIT and Utility Income Fund, Inc.
(NYSE:RTU), on Friday, January 18, 2008, sent a letter to each member
of the Board of Directors of RTU describing certain concerns Western
Investment has regarding what it believes to be shareholder unfriendly
actions taken by the Board. Prior to sending the letter, Western
Investment had arranged to meet in-person with an officer of RTU to
discuss such concerns, but that meeting was abruptly cancelled by RTU.
In its letter Western Investment describes some of its concerns with
RTU, including the recent decision by the Board to enact what Western
Investment believes to be shareholder unfriendly measures that serve
to entrench the Board. The Fund's investment manager, Cohen & Steers
Capital Management, Inc., is a subsidiary of Cohen & Steers, Inc.
(NYSE:CNS), which is listed on the New York Stock Exchange.
Western Investment also announced today that it had nominated a
slate of three directors for election at RTU's 2008 annual meeting of
shareholders.
The text of the letter from Western Investment to the Board of
Directors of RTU follows:
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WESTERN INVESTMENT LLC
7050 S. Union Park Center, Suite 590
Midvale, Utah 84047
January 18, 2008
BY HAND
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Cohen & Steers REIT and Utility Income Fund, Inc.
280 Park Avenue
New York, New York 10017
Attn: Board of Directors
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Dear Members of the Board of Directors:
Western Investment LLC ("Western Investment") is the largest
shareholder of Cohen & Steers REIT and Utility Income Fund, Inc.
("RTU" or the "Fund"), owning an aggregate of 3,047,300 shares of
common stock (approximately 5.2%) of the Fund. We have contacted
representatives of the Fund to discuss our concerns regarding recent
actions taken by the Fund's Board of Directors, which we believe
primarily serve to entrench the current Board, and make it more
difficult for shareholders to effectively participate in the Fund's
governance. Unfortunately, a meeting that had been scheduled with an
officer of the Fund was precipitously cancelled, which, we believe,
stemmed from the fact that there is a lack of interest by the Fund in
shareholder concerns. Therefore, in order to protect and enhance
shareholders' interests, we believe that we have no choice but to
communicate our concerns directly to the entire Board of Directors in
the hope that the Board will consider shareholder concerns and
promptly adopt modern-day corporate governance standards. We are
shocked that in the current business climate, where the majority of
public companies are moving towards more openness and are adopting
measures to encourage shareholder participation, the Fund has
seemingly moved backwards, seeking to impede its shareholders, the
Fund's true owners, from exercising their legal rights.
In particular, we were very concerned to see the Form 8-K filed
December 26, 2007 disclosing numerous measures adopted by the Fund
that clearly contradict general standards of good corporate
governance. Even the timing of the filing seems carefully chosen. Why
were such important amendments adopted and disclosed in the last week
of the year when many shareholders might miss the announcement?
In particular, we note the following:
-- The By-Laws have been unilaterally amended by the Board to
further restrict director nominations by shareholders. RTU
disclosed that the Fund amended its By-Laws regarding its
procedure for nominating directors to the Board, making it
more cumbersome for shareholders to nominate directors. As a
result, shareholders must now provide notice to the Fund a
full four months in advance if they wish to nominate directors
for election to the Board. In addition, shareholders who
nominate directors must provide an unusually large amount of
information about themselves, and, at the request of the
Board, provide updates to a previously acceptable nomination
notice, or risk having their nominees disqualified.
-- The Board has amended the By-Laws to restrict shareholders
from calling a special meeting of shareholders. We believe
that the Board has forgotten who the owners of the Fund are.
Annual and special meetings of shareholders are important
tools for shareholders' voices to be heard. The Board has
practically disenfranchised shareholders by requiring a
prohibitive threshold of over 50% of the Fund's outstanding
shares to call a special meeting of shareholders.
-- The Board has opted into a provision of Maryland law to
further entrench the directors. RTU disclosed that the Fund
had opted into Sections 3-804(b) and (c) of the Maryland
General Corporation Law ("MGCL") regarding the determination
of the size and composition of the Board. The amendments,
among other things, provide that directors that are appointed
by the Board may now serve for the remainder of the three-year
term without being elected by shareholders. We believe opting
into these provisions has given the Board further opportunity
to manipulate its size and composition without input from
shareholders. We are also concerned that the By-Laws do not
permit a majority of shareholders to remove directors without
cause.
These new restrictive provisions are in addition to restrictions
that have existed since the Fund's inception. Restrictive
anti-takeover provisions that already existed include provisions for
staggered terms of office for directors, as well as super-majority
voting requirements for mergers, consolidations, liquidations,
terminations and asset sale transactions, amendments to the articles
of incorporation and conversions to open-end status. By its own
admission, the Fund acknowledges that these provisions are greater
than required under Maryland law and the Investment Company act of
1940, as amended. We wonder whose interests the Board is trying to
protect with these provisions.
After a brief phone call in December regarding our concerns, we
had contacted the Fund to arrange an in-person meeting. In particular,
we wanted to understand the Board's rationale for such shareholder
unfriendly by-law amendments. In order to better share the explanation
with other shareholders, the true owners of the Fund, we thought all
parties would benefit if we brought a member of the press with us to
the meeting. However, after we notified the Fund that we had invited a
member of the press to accompany us, the meeting was abruptly
cancelled. We do not understand why a Fund representative was
unwilling to meet with the Fund's largest shareholder. A public
company is accountable to its shareholders, and we believe there
should be full transparency. We are left with the impression that the
interests of the Board and management may not be clearly aligned with
the interests of the Fund's shareholders. Western Investment's
3,047,300 shares owned in the Fund clearly demonstrate that its
interests are closely aligned with that of all of the Fund's
shareholders.
For these reasons, under separate cover, Western Investment is
simultaneously submitting a letter nominating three persons for
election as directors at the Fund's 2008 annual meeting of
shareholders. This nomination complies with the new overly burdensome
by-law amendments recently adopted.
Western Investment is committed to working for the benefit of all
shareholders of the Fund and would welcome the opportunity to do so
with the Board. However, as the Fund's largest shareholder, Western
Investment will not permit itself to be held hostage to a Board of
Directors acting to protect its own interests, rather than the
interests of all shareholders. Western Investment stands ready to meet
with the Board and its representatives as soon as possible if the
Board is willing to constructively address our concerns. Please
contact the undersigned in order to schedule a meeting.
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Very truly yours,
WESTERN INVESTMENT LLC
By:
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Name: Arthur D. Lipson
Title: Managing Member
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CERTAIN INFORMATION CONCERNING WESTERN INVESTMENT LLC
Western Investment LLC ("Western"), together with the other
Participants (as defined below) intends to make a preliminary filing
with the Securities and Exchange Commission ("SEC") of a proxy
statement and an accompanying WHITE proxy card to be used to solicit
votes for the election of its slate of nominees at the 2008 annual
meeting of shareholders at the annual meeting of Cohen & Steers REIT
and Utility Income Fund, Inc. (the "Fund") (the "Annual Meeting").
WESTERN ADVISES ALL STOCKHOLDERS OF THE COMPANY TO READ THE PROXY
STATEMENT AND OTHER PROXY MATERIALS RELATING TO THE ANNUAL MEETING AS
THEY BECOME AVAILABLE BECAUSE THEY CONTAIN IMPORTANT INFORMATION. SUCH
PROXY MATERIALS ARE AVAILABLE AT NO CHARGE ON THE SEC'S WEB SITE AT
HTTP://WWW.SEC.GOV.
The Participants in the proxy solicitation are Western, Western
Investment Hedged Partners L.P., ("WIHP"), Western Investment Activism
Partners LLC ("WIAP"), Western Investment Total Return Fund Ltd.
("WITRL"), Western Investment Total Return Partners L.P. ("WITRP"),
Arthur D. Lipson (together with Western, WIHP, WIAP, WITRL and WITRP,
the "Western Group"), William J. Roberts and Matthew S. Crouse (the
"Participants").
WIHP, WIAP and WITRP beneficially own 1,020,700, 1,493,800 and
531,800 shares of Common Stock of the Fund, respectively. Western, by
virtue of it being the general partner of WIHP and WITRP and the
managing member of WIAP, may be deemed to beneficially own the
3,046,300 shares of Common Stock of the Fund beneficially owned in the
aggregate by WIHP, WIAP and WITRP, in addition to the 1,000 shares it
owns directly. Arthur D. Lipson, by virtue of his position as the
managing member of Western, may be deemed to beneficially own the
3,047,300 shares of Common Stock beneficially owned by Western. As
members of a "group" for the purposes of Rule 13d-5(b)(1) of the
Securities Exchange Act of 1934, as amended, the Western Group is
deemed to beneficially own the 512.798 shares of Common Stock of the
Fund beneficially owned in the aggregate by the other Participants.
The Western Group disclaims beneficial ownership of such shares of
Common Stock.
William J. Roberts directly owns 512.798 shares of Common Stock of
the Fund. As a member of a "group" for the purposes of Rule
13d-5(b)(1) of the Securities Exchange Act of 1934, as amended, Mr.
Roberts is deemed to beneficially own the 3,047,300 shares of Common
Stock of the Fund beneficially owned in the aggregate by the other
Participants. Mr. Roberts disclaims beneficial ownership of such
shares of Common Stock.
Matthew S. Crouse does not directly own any shares of Common Stock
of the Fund. As a member of a "group" for the purposes of Rule
13d-5(b)(1) of the Securities Exchange Act of 1934, as amended, Mr.
Crouse is deemed to beneficially own the 3,047,812.798 shares of
Common Stock of the Fund beneficially owned in the aggregate by the
other Participants. Mr. Crouse disclaims beneficial ownership of such
shares of Common Stock.
Innisfree M&A Incorporated
Michael Brinn, 212-750-8253
Copyright Business Wire 2008
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