Cohen & Steers Fund Cancels Meeting with One of Its Largest Shareholders.Western Investment Criticizes Recent By-Law Amendments and Announces Proxy Challenge NEW YORK New York, state, United States New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of -- Western Investment LLC (Logical Link Control) See "LANs" under data link protocol. LLC - Logical Link Control ("Western Investment"), one of the largest shareholders of Cohen cohen or kohen (Hebrew: “priest”) Jewish priest descended from Zadok (a descendant of Aaron), priest at the First Temple of Jerusalem. The biblical priesthood was hereditary and male. & Steers Select Utility Fund, Inc. (NYSE NYSE See: New York Stock Exchange :UTF (Unicode Transformation Format) See Unicode. UTF - UCS transformation format ), on Friday, January 18, 2008, sent a letter to each member of the Board of Directors of UTF 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 UTF to discuss such concerns, but that meeting was abruptly cancelled by UTF. In its letter Western Investment describes some of its concerns with UTF, including the recent decision by the Board to enact what Western Investment believes to be shareholder unfriendly measures that serve to entrench en·trench also in·trench v. en·trenched, en·trench·ing, en·trench·es v.tr. 1. To provide with a trench, especially for the purpose of fortifying or defending. 2. the Board. The Fund's investment manager, Cohen & Steers Capital Management, Inc., is a subsidiary of Cohen & Steers, Inc. (NYSE:CNS See Continuous net settlement. CNS See continuous net settlement (CNS). ), which is listed on the New York Stock Exchange New York Stock Exchange (NYSE) World's largest marketplace for securities. The exchange began as an informal meeting of 24 men in 1792 on what is now Wall Street in New York City. . Western Investment also announced today that it had nominated a slate of three directors for election at UTF's 2008 annual meeting of shareholders. The text of the letter from Western Investment to the Board of Directors of UTF follows: WESTERN INVESTMENT LLC 7050 S. Union Park Center, Suite 590 Midvale, Utah Midvale is a city in Salt Lake County, Utah, United States. The population was 27,029 at the 2000 census. Its estimated population in 2005 was placed at 27,170. Geography Midvale is located at (40.613990, -111. 84047 January 18, 2008 BY HAND Cohen & Steers Select Utility Fund, Inc. 280 Park Avenue New York, New York 10017 Attn: Board of Directors Dear Members of the Board of Directors: Western Investment LLC ("Western Investment") is one of the largest shareholders of Cohen & Steers Select Utility Fund, Inc. ("UTF" or the "Fund"), owning an aggregate of approximately 3,323,509 shares of common stock (approximately 7.7%) 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 pre·cip·i·tous adj. 1. Resembling a precipice; extremely steep. See Synonyms at steep1. 2. Having several precipices: a precipitous bluff. 3. 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 Corporate Governance The relationship between all the stakeholders in a company. This includes the shareholders, directors, and management of a company, as defined by the corporate charter, bylaws, formal policy, and rule of law. 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 Form 8-K The form required by the SEC when a publicly held company incurs any event that might affect its financial situation or the share value of its stock. Form 8-K See 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. UTF 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 dis·qual·i·fy tr.v. dis·qual·i·fied, dis·qual·i·fy·ing, dis·qual·i·fies 1. a. To render unqualified or unfit. b. To declare unqualified or ineligible. 2. . * 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. UTF disclosed that the Fund had opted into Sections 3-804(b) and (c) of the Maryland General Corporation Law ("MGCL MGCL Mari Gas Company Limited (Pakistan) MGCL Moto Guzzi Correspondence List (motorcycle) ") 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 staggered terms Membership terms for a firm's directors that expire in different years. A firm with 12 directors might have 4-year terms with 3 seats up for election each year. Staggered terms make it more difficult for a raider to gain control of a board. 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 The document that must be filed with an appropriate government agency, commonly the office of the Secretary of State, if the owners of a business want it to be given legal recognition as a corporation. 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 one of the Fund's largest shareholders. A public company is accountable to its shareholders, and we believe there should be full transparency. We are left with the conviction that the interests of the Board and management may not be clearly aligned with the interests of the Fund's shareholders. Western Investment's approximately 3,323,509 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 one of the Fund's largest shareholders, 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 un·der·signed adj. 1. Having signatures or a signature at the bottom or end. Used of documents. 2. Signed or having signed at the bottom or end of a document: in order to schedule a meeting. < Very truly your- < < < < WESTERN INVESTM- < < < < By: < < Name: < Arthur D. Lipson < Title: < Managing Member 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 Proxy Statement A document containing the information that a company is required by the SEC to provide to shareholders so they can make informed decisions about matters that will be brought up at an annual stockholder meeting. and an accompanying WHITE proxy card A proxy card is an easily-acquired or home-made substitute for a collectible card. A proxy is used when a collectible card game player does not own a card, and it would be impractical for such purposes to acquire the 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 Select Utility Fund, Inc. (the "Fund") (the "Annual Meeting"). WESTERN ADVISES ALL STOCKHOLDERS OF THE COMPANY TO READ THE PROXY STATEMENT AND OTHER PROXY MATERIALS Proxy Materials Documents regulated by the Securities & Exchange Commission in which a public company outlines its methods and procedures. These documents are used to inform shareholders and solicit votes for corporate decisions, such as the election of directors and other RELATING TO relating to relate prep → concernant relating to relate prep → bezüglich +gen, mit Bezug auf +acc 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 HTTP in full HyperText Transfer Protocol Standard application-level protocol used for exchanging files on the World Wide Web. HTTP runs on top of the TCP/IP protocol. ://WWW.SEC.GOV. The Participants in the proxy solicitation solicitation In criminal law, the act of asking, inducing, or directing someone to commit a crime. The person soliciting another becomes an accomplice to the crime. The term also refers to the act of obtaining bribes, as well as to the crime of a prostitute who offers sexual are Western, Western Investment Hedged Partners L.P., ("WIHP"), Western Investment Activism Partners LLC ("WIAP WIAP Wellington International Airport (New Zealand) "), 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 William J. Roberts "has been appointed as a copyright royalty judge with expertise in copyright law. He will serve a term of two years, subject to reappointment to additional six year terms. Mr. Roberts began his legal career in the Copyright Office in 1987. and Matthew S Matthew one of the twelve disciples. [N.T.: Matthew] See : Evangelism . Crouse (the "Participants"). WIHP, WIAP and WITRP beneficially own 1,292,900, 1,290,900 and 738,700 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 3,322,500 shares of Common Stock of the Fund beneficially owned in the aggregate by WIHP, WIAP and WITRP, in addition to the 1,009.3 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 approximately 3,323,509 shares of Common Stock beneficially owned by Western. William J. Roberts 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. Roberts is deemed to beneficially own the approximately 3,323,509 shares of Common Stock of the Fund beneficially owned in the aggregate by the Western Group. 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 approximately 3,323,509 shares of Common Stock of the Fund beneficially owned in the aggregate by the Western Group. Mr. Crouse disclaims beneficial ownership of such shares of Common Stock. |
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