sc13da106290rtu_01182008.htm

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ljb5oBeZKofMywOGStHbLL5xpV/S5aGtPpkbr85wUXSHaox+rYBbFcFskEcvGo/L gY/k6R+Lqidfd46IqXOAQg== 0000921895-08-000207.txt : 20080122 0000921895-08-000207.hdr.sgml : 20080121 20080122172816 ACCESSION NUMBER: 0000921895-08-000207 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20080122 DATE AS OF CHANGE: 20080122 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COHEN & STEERS REIT & UTILITY INCOME FUND INC CENTRAL INDEX KEY: 0001265419 IRS NUMBER: 000000000 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83458 FILM NUMBER: 08542791 BUSINESS ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128323232 MAIL ADDRESS: STREET 1: 280 PARK AVENUE STREET 2: 10TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WESTERN INVESTMENT LLC CENTRAL INDEX KEY: 0001286207 IRS NUMBER: 870623442 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 7050 S. UNION PARK CENTER, SUITE 590 CITY: MIDVALE STATE: UT ZIP: 84047 BUSINESS PHONE: 801-568-1400 MAIL ADDRESS: STREET 1: 7050 S. UNION PARK CENTER, SUITE 590 CITY: MIDVALE STATE: UT ZIP: 84047 SC 13D/A 1 sc13da106290rtu_01182008.htm sc13da106290rtu_01182008.htm

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. 1)1

Cohen & Steers REIT and Utility Income Fund, Inc.

(Name of Issuer)

Common Stock, $0.001 par value

(Title of Class of Securities)

19247Y108

(CUSIP Number)

STEVEN WOLOSKY, ESQ.

OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

January 18, 2008

(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.

_______________

1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

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. 19247Y108

1	NAME OF REPORTING PERSON WESTERN INVESTMENT LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO, WC
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 3,050,400
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER 3,050,400
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,050,400
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.2%
14	TYPE OF REPORTING PERSON OO

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON ARTHUR D. LIPSON
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 3,050,400
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER 3,050,400
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,050,400
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.2%
14	TYPE OF REPORTING PERSON IN

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON WESTERN INVESTMENT HEDGED PARTNERS L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
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 1,020,700
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER 1,020,700
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,020,700
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.7%
14	TYPE OF REPORTING PERSON PN

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON WESTERN INVESTMENT ACTIVISM PARTNERS LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
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 1,493,800
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER 1,493,800
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,493,800
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.5%
14	TYPE OF REPORTING PERSON OO

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON WESTERN INVESTMENT TOTAL RETURN FUND LTD.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION CAYMAN ISLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) - 0 -
14	TYPE OF REPORTING PERSON CO

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
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 534,900
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER 534,900
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 534,900
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) LESS THAN 1%
14	TYPE OF REPORTING PERSON PN

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON WILLIAM J. ROBERTS
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS PF, OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 512.798 **
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER 512.798 **
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 512.798 **
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) LESS THAN 1% **
14	TYPE OF REPORTING PERSON IN

**See Item 5.

CUSIP NO. 19247Y108

1	NAME OF REPORTING PERSON MATTHEW S. CROUSE
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -**
	8	SHARED VOTING POWER - 0 -
	9	SOLE DISPOSITIVE POWER - 0 -**
	10	SHARED DISPOSITIVE POWER - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -**
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) - 0 -**
14	TYPE OF REPORTING PERSON IN

**See Item 5.

CUSIP NO. 19247Y108

The following constitutes Amendment No. 1 the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth.

Item 2. Identity and Background

Item 2 is hereby amended and restated as follows:

(a) This statement is filed by Western Investment LLC, a Delaware limited liability company ("WILLC"), Western Investment Hedged Partners L.P., a Delaware limited partnership ("WIHP"), Western Investment Activism Partners LLC, a Delaware limited liability company ("WIAP"), Western Investment Total Return Fund Ltd., a Cayman Islands corporation (“WITRL”), Western Investment Total Return Partners L.P., a Delaware limited partnership (“WITRP”) Arthur D. Lipson (“Mr. Lipson” and together with WILLC, WIHP, WIAP, WITRL and WITRP, the “Western Group”), William J. Roberts (“Mr. Roberts”) and Matthew S. Crouse (“Mr. Crouse”). Each of the foregoing is referred to as a "Reporting Person" and collectively as the "Reporting Persons." Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement as further described in Item 6.

WILLC has sole voting and investment power over WIHP's, WIAP's, WITRL’s and WITRP's security holdings and Mr. Lipson, in his role as the managing member of WILLC, controls WILLC's voting and investment decisions. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.

(b) The principal business address of WILLC, WIHP, WIAP, WITRL, WITRP, Mr. Lipson and Mr. Crouse is 7050 S. Union Park Center, Suite 590, Midvale, Utah 84047. The principal business address of Mr. Roberts is c/o Beldon Fund, 99 Madison Avenue, 8th Floor, New York, New York 10016. The officers and directors of WITRL and their principal occupations and business addresses are set forth on Schedule B to the initial Schedule 13D and incorporated herein by reference in this Item 2.

(c) The principal business of WILLC is acting as the managing member of WIAP, investment manager of WITRL and the general partner of each of WIHP and WITRP. The principal occupation of Mr. Lipson is acting as managing member of WILLC. The principal business of WIHP, WIAP, WITRL and WITRP is acquiring, holding and disposing of investments in various companies. The principal occupation of Mr. Roberts is serving as the President and Executive Director of the Beldon Fund, a non-profit organization. The principal occupation of Mr. Crouse is serving as portfolio manager at WILLC.

(d) No Reporting Person, nor any person listed on Schedule B to the initial Schedule 13D, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) No Reporting Person, nor any person listed on Schedule B to the initial Schedule 13D, has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

CUSIP NO. 19247Y108

(f) Mr. Lipson, Mr. Roberts and Mr. Crouse are citizens of the United States of America.

Item 3. Source and Amount of Funds or Other Consideration.

Item 3 is hereby amended and restated to read as follows:

The aggregate purchase price of the 3,050,400 Shares beneficially owned by WILLC is approximately $64,019,643. The Shares beneficially owned by WILLC consist of 1,000 Shares that were acquired with WILLC's working capital, 1,020,700 Shares that were acquired with WIHP's working capital, 1,493,800 Shares that were acquired with WIAP's working capital and 534,900 Shares that were acquired with WITRP's working capital.

The aggregate purchase price of the 512.798 Shares beneficially owned by Mr. Roberts is approximately $9,482. The Shares beneficially owned by Mr. Roberts consist of 385 Shares that were acquired with Mr. Roberts’ personal funds and approximately 127.798 Shares that were acquired through the Issuer’s dividend reinvestment plan.

Item 4. Purpose of Transaction.

Item 4 is hereby amended to add the following:

WILLC is seeking representation on the Issuer’s Board of Directors (the “Board”). WILLC delivered a letter dated January 18, 2008 to the Corporate Secretary of the Issuer (the "Nomination Letter") nominating Messrs. Lipson, Roberts and Crouse, as set forth therein, for election to the Board at the Issuer's 2008 annual meeting of shareholders (the "2008 Annual Meeting").

On January 18, 2008, WILLC delivered a letter to each member of the Board of Directors of the Issuer describing certain concerns WILLC has regarding what it believes to be shareholder unfriendly actions taken by the Board. Prior to sending the letter, WILLC had arranged to meet in-person with an officer of the Issuer to discuss such concerns, but that meeting was abruptly cancelled by the Issuer. In its letter WILLC describes some of its concerns with the Issuer, including the recent decision by the Board to enact what WILLC believes to be shareholder unfriendly measures that serve to entrench the Board. A copy of a press release dated January 22, 2008, which includes a copy of the letter, is attached hereto as Exhibit 99.2 and incorporated herein by reference.

Item 5. Interest in Securities of the Issuer.

Item 5 is hereby amended and restated to read as follows:

CUSIP NO. 19247Y108

(a) The aggregate percentage of Shares reported owned by each person named herein is based upon 58,858,135 Shares outstanding, which is the total number of Shares outstanding as of September 30, 2007, as reported in the Issuer’s Form N-Q filed with the Securities and Exchange Commission on November 29, 2007.

As of the date hereof, WIHP, WIAP and WITRP beneficially own 1,020,700, 1,493,800 and 534,900 Shares, respectively, representing approximately 1.7%, 2.5% and less than 1%, respectively, of the Shares outstanding. WILLC beneficially owns 3,050,400 Shares, constituting approximately 5.2% of the Shares outstanding. Mr. Lipson beneficially owns 3,050,400 Shares, constituting approximately 5.2% of the Shares outstanding. WITRL does not currently beneficially own any Shares. 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 beneficially owned in the aggregate by the other Reporting Persons. The Western Group disclaims beneficial ownership of such Shares.

Mr. Roberts directly owns 512.798 Shares constituting less than 1% of the Shares outstanding. 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 3,050,400 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Roberts disclaims beneficial ownership of such Shares.

Mr. Crouse does not directly own any Shares. 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 3,050,912.798 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Crouse disclaims beneficial ownership of such Shares.

(b) Each of WILLC and Mr. Lipson is deemed to have sole voting and dispositive power over the Shares reported as beneficially owned by WIHP, WIAP and WITRP by virtue of their respective positions as described in Item 2.

Mr. Roberts is deemed to have sole voting and dispositive power over the Shares reported as beneficially owned by him.

(c) Schedule A annexed hereto lists all transactions in the Shares by the Reporting Persons since the initial filing of the Schedule 13D. All of such transactions were effected in the open market.

(d) No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the Shares.

(e) Not applicable.

CUSIP NO. 19247Y108

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended to add the following:

On January 22, 2008, WILLC, WIHP, WIAP, WITRL, WITRP, and Messrs. Lipson,Roberts and Crouse entered into a Joint Filing and Solicitation Agreement (the "Joint Filing and Solicitation Agreement") in which, among other things, (a) the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required under applicable securities laws and (b) the parties agreed to form the group for the purpose of soliciting proxies or written consents for the election of the persons nominated by WILLC to the Issuer’s Board at the 2008 Annual Meeting and for the purpose of taking all other actions incidental to the foregoing. The Joint Filing and Solicitation Agreement is attached as an exhibit hereto and is incorporated herein by reference.

As of the date hereof, each of WIHP, WIAP and WITRL was a party to certain equity swap arrangements (the “Swap Arrangements”) with a financial institution (the “Bank”) as the counterparty. Pursuant to these Swap Arrangements, each of WIHP, WIAP and WITRL is obligated to pay to the Bank the equity notional amount on a total of 119,000, 102,036 and 368,700 Shares, respectively, subject to the Swap Arrangements (the “Reference Shares”) as of the beginning of the valuation period (which resets monthly), plus interest. At the termination of the Swap Arrangements, the Bank is obligated to pay to each of WIHP, WIAP and WITRL the market value of their respective interest in the Reference Shares as of the end of the valuation period. Any dividends received by the Bank on the Reference Shares during the term of the Swap Arrangements will be paid to WIHP, WIAP and WITRL. All balances will be cash settled and there will be no transfer to WIHP, WIAP and WITRL of voting or dispositive power over the Reference Shares. The Swap Arrangements expire on May 5, 2008. Each of the Reporting Persons disclaims beneficial ownership of the Reference Shares except to the extent of his or its pecuniary interest therein. The Reference Shares are not included as part of the totals, with respect to Shares, disclosed herein by the Reporting Persons.

Other than as described herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer.

Item 7.

Material to be Filed as Exhibits.

Item 7 is hereby amended to add the following exhibits:

99.1

Joint Filing and Solicitation Agreement by and among Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Fund Ltd., Western Investment Total Return Partners L.P., Arthur D. Lipson, William J. Roberts, and Matthew S. Crouse, dated January 22, 2008.

99.2

Press Release, dated January 22, 2008.

99.3

Power of Attorney for William J. Roberts dated January 18, 2008.

CUSIP NO. 19247Y108

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: January 22, 2008	WESTERN INVESTMENT LLC

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT HEDGED PARTNERS L.P.

	By:	Western Investment LLC,
		Its General Partner

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT ACTIVISM PARTNERS LLC

	By:	Western Investment LLC,
		Its Managing Member

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT TOTAL RETURN FUND LTD.

	By:	Western Investment LLC,
		Its Investment Manager

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
	By:	Western Investment LLC,
		Its General Partner

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	/s/ Arthur D. Lipson
	ARTHUR D. LIPSON



	/s/ Arthur D. Lipson
	ARTHUR D. LIPSON
	as Attorney-In-Fact for William J. Roberts



	/s/ Matthew S. Crouse
	MATTHEW S. CROUSE

CUSIP NO. 19247Y108

SCHEDULE A

Transactions in the Shares Since the Filing of the Initial Schedule 13D

Shares of Common Stock

Purchased / (Sold)

Price Per

Share($)

Date of

Purchase / Sale

WESTERN INVESTMENT HEDGED PARTNERS L.P.

None

WESTERN INVESTMENT ACTIVISM PARTNERS LLC

(20,000)		20.1433	01/03/08
(1,900)		19.8840	01/04/08

WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.

6,300	19.7508	12/21/07
1,300	19.9725	12/24/07
18,400	20.0000	01/10/08
200	19.5725	01/11/08
2,800	19.2025	01/15/08
13,000	19.2763	01/16/08
3,100	18.1851	01/18/08

WESTERN INVESTMENT LLC

None

WESTERN INVESTMENT TOTAL RETURN FUND LTD.

None

ARTHUR D. LIPSON

None

WILLIAM J. ROBERTS

None

MATTHEW S. CROUSE

None

CUSIP NO. 19247Y108

EXHIBIT INDEX

Exhibit	Exhibit Number
Joint Filing and Solicitation Agreement by and among Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Fund Ltd., Western Investment Total Return Partners L.P., Arthur D. Lipson, William J. Roberts, and Matthew S. Crouse, dated January 22, 2008.	99.1

Press Release, dated January 22, 2008.	99.2

Power of Attorney for William J. Roberts dated January 18, 2008	99.3

EX-99.1 2 ex991sc13da106290rtu_011808.htm ex991sc13da106290rtu_011808.htm

Exhibit 99.1

JOINT FILING AND SOLICITATION AGREEMENT

WHEREAS, certain of the undersigned are stockholders, direct or beneficial, of Cohen & Steers REIT and Utility Income Fund, Inc., a Maryland corporation (the “Fund”);

WHEREAS, Western Investment LLC, a Delaware limited liability company, Western Investment Hedged Partners L.P., a Delaware limited partnership, Western Investment Activism Partners LLC, a Delaware limited liability company, Western Investment Total Return Fund Ltd., a Cayman Islands corporation, Western Investment Total Return Partners L.P., a Delaware limited partnership, Arthur D. Lipson, William J. Roberts and Matthew S. Crouse wish to form a group for the purpose of seeking representation on the Board of Directors of the Fund at the 2008 annual meeting of stockholders of the Fund, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “2008 Annual Meeting”) and for the purpose of taking all other action necessary to achieve the foregoing.

NOW, IT IS AGREED, this 22 day of January 2008 by the parties hereto:

1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), each of the undersigned (collectively, the “Group”) agrees to the joint filing on behalf of each of them of statements on Schedule 13D, and any amendments thereto, with respect to the securities of the Fund. Each member of the Group shall be responsible for the accuracy and completeness of his/its own disclosure therein, and is not responsible for the accuracy and completeness of the information concerning the other members, unless such member knows or has reason to know that such information is inaccurate.

2. So long as this agreement is in effect, each of the undersigned shall provide written notice to Olshan Grundman Frome Rosenzweig & Wolosky LLP (“Olshan”) of (i) any of their purchases or sales of securities of the Fund; or (ii) any securities of the Fund over which they acquire or dispose of beneficial ownership. Notice shall be given no later than 24 hours after each such transaction.

3. Each of the undersigned agrees to form the Group for the purpose of soliciting proxies or written consents for the election of the persons nominated by the Group to the Board of Directors of the Fund at the 2008 Annual Meeting and for the purpose of taking all other actions incidental to the foregoing.

4. Western Investment LLC shall have the right to pre-approve all expenses incurred in connection with the Group’s activities and agree to pay directly all such pre-approved expenses.

5. Each of the undersigned agrees that any SEC filing, press release or stockholder communication proposed to be made or issued by the Group or any member of the Group in connection with the Group’s activities set forth in Section 4 shall be first approved by Western Investment LLC, or its representatives, which approval shall not be unreasonably withheld.

6. The relationship of the parties hereto shall be limited to carrying on the business of the Group in accordance with the terms of this Agreement. Such relationship shall be construed and deemed to be for the sole and limited purpose of carrying on such business as described herein. Nothing herein shall be construed to authorize any party to act as an agent for any other party, or to create a joint venture or partnership, or to constitute an indemnification. Nothing herein shall restrict any party’s right to purchase or sell securities of the Fund, as he/it deems appropriate, in his/its sole discretion, provided that all such sales are made in compliance with all applicable securities laws.

7. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument, which may be sufficiently evidenced by one counterpart.

8. In the event of any dispute arising out of the provisions of this Agreement or their investment in the Fund, the parties hereto consent and submit to the exclusive jurisdiction of the Federal and State Courts in the State of New York.

9. Any party hereto may terminate his/its obligations under this Agreement on 24 hours’ written notice to all other parties, with a copy by fax to Adam Finerman at Olshan, Fax No. (212) 451-2222.

10. Each party acknowledges that Olshan shall act as counsel for both the Group and Western Investment LLC and its affiliates relating to their investment in the Fund.

11. Each of the undersigned parties hereby agrees that this Agreement shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.

	WESTERN INVESTMENT LLC

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT HEDGED PARTNERS L.P.

	By:	Western Investment LLC,
		Its General Partner

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT ACTIVISM PARTNERS LLC

	By:	Western Investment LLC,
		Its Managing Member

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT TOTAL RETURN FUND LTD.
	By:	Western Investment LLC,
		Its Investment Manager

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
	By:	Western Investment LLC,
		Its General Partner

	By:	/s/ Arthur D. Lipson
	Name:	Arthur D. Lipson
	Title:	Managing Member

	/s/ Arthur D. Lipson
	ARTHUR D. LIPSON

	/s/ William J. Roberts
	WILLIAM J. ROBERTS

	/s/ Matthew S. Crouse
	MATTHEW S. CROUSE

EX-99.2 3 ex992sc13da106290rtu_011808.htm ex992sc13da106290rtu_011808.htm

Exhibit 99.2

Cohen & Steers Fund Cancels Meeting with Its Largest Shareholder

Tuesday January 22, 8:44 am ET

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 - News), 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 - News), 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:

WESTERN INVESTMENT LLC

7050 S. Union Park Center, Suite 590

Midvale, Utah 84047

January 18, 2008

BY HAND

Cohen & Steers REIT and Utility Income 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 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.

Very truly yours,

WESTERN INVESTMENT LLC

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 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.

Contact:

Innisfree M&A Incorporated

Michael Brinn, 212-750-8253

Source: Western Investment LLC

EX-99.3 4 ex993sc13da106290rtu_011808.htm ex993sc13da106290rtu_011808.htm

Exhibit 99.3

POWER OF ATTORNEY

Know all by these presents, that the undersigned hereby constitutes and appoints Arthur D. Lipson signing singly, the undersigned's true and lawful attorney-in-fact to take any and all action in connection with the investment by Western Investment LLC, or its affiliates (“Western”), in the voting securities of Cohen & Steers REIT and Utility Income Fund, Inc. (“RTU”), including without limitation, relating to the formation of a Group (as defined below) between the undersigned and Western, all filings on Schedule 13D (as defined below), all filings on Forms 3, 4 and 5 (as defined below), any solicitation of proxies in support of the election of directors of RTU or other proposal(s), and all other matters related, directly or indirectly, to RTU (together, the “Investment”). Such action shall include, but not be limited to:

1. executing for and on behalf of the undersigned all Schedules 13D (“Schedule 13D”) required to be filed under Section 13(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) and the rules thereunder in connection with the Investment;

2. executing for and on behalf of the undersigned all Forms 3, 4 and 5 (“Forms 3, 4 and 5”) required to be filed under Section 16(a) of the Securities Exchange Act of 1934 and the rules thereunder in connection with the Investment;

3. executing for and on behalf of the undersigned all Joint Filing and Solicitation Agreements or similar documents pursuant to which the undersigned shall agree to be a member of a group, as contemplated by Rule 13d-1(k) promulgated under the Exchange Act (a “Group”), in connection with the Investment;

4. performing any and all acts for and on behalf of the undersigned that may be necessary or desirable to complete and execute any such document, complete and execute any amendment or amendments thereto, and timely file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and

5. taking any other action of any type whatsoever in connection with the Investment which in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's discretion.

The undersigned hereby grants to such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact's substitute or substitutes, shall lawfully do or cause to be done by virtue of this Power of Attorney and the rights and powers herein granted. The undersigned acknowledges that the foregoing attorney-in-fact, in serving in such capacity at the request of the undersigned, is not assuming any of the undersigned's responsibilities to comply with Section 13(d), Section 16 or Section 14 of the Exchange Act.

This Power of Attorney shall remain in full force and effect until January 15, 2009 unless earlier revoked by the undersigned in a signed writing delivered to the foregoing attorney-in-fact.

IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be executed as of this 18 day of January, 2008.

/s/ William J. Roberts

William J. Roberts

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