-----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, N1cSzFmp3BaUsolWoTCIh0lQXUzG62JQJidXW3Exugwtoeyr2/HON4F0nPMIaDH6 S1ZzhG6ui0F2nh7xi0TcVg== 0000921895-08-000742.txt : 20080306 0000921895-08-000742.hdr.sgml : 20080306 20080306172813 ACCESSION NUMBER: 0000921895-08-000742 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20080306 DATE AS OF CHANGE: 20080306 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: COHEN & STEERS REIT & UTILITY INCOME FUND INC CENTRAL INDEX KEY: 0001265419 IRS NUMBER: 510488133 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83458 FILM NUMBER: 08672028 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 sc13da206290018_03032008.htm sc13da206290018_03032008.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. 2)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)

March 3, 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
 
3,144,400
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,144,400
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,144,400
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
5.3%
14
TYPE OF REPORTING PERSON
 
OO

2

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
 
3,144,400
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,144,400
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,144,400
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
5.3%
14
TYPE OF REPORTING PERSON
 
IN

3

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
 
1,034,400
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,034,400
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,034,400
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.8%
14
TYPE OF REPORTING PERSON
 
PN

4

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
 
1,507,400
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,507,400
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,507,400
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
2.6%
14
TYPE OF REPORTING PERSON
 
OO

5

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

6

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
 
601,700
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
601,700
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
601,700
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.0%
14
TYPE OF REPORTING PERSON
 
PN

7

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.

8

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
 
 
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.

9

CUSIP NO. 19247Y108
 
 
1
NAME OF REPORTING PERSON
 
                    LYNN D. SCHULTZ
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
 
100 **
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
100 **
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
100 **
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.
 
10

CUSIP NO. 19247Y108
 

The following constitutes Amendment No. 2 the Schedule 13D filed by the undersigned (“Amendment No. 2”).  This Amendment No. 2 amends the Schedule 13D as specifically set forth.
 

Item 2.
Identity and Background.
                             
Item 2(a) is hereby amended to add the following:

(a)           On March 3, 2008, Lynn D. Schultz executed a Joinder Agreement to the Joint Filing and Solicitation Agreement entered into on January 22, 2008 (the "Joint Filing Agreement") by the Reporting Persons, whereby Ms. Schultz agreed to be bound by the terms of the Joint Filing Agreement. Accordingly, Ms. Schultz shall be deemed to be a Reporting Person following such date.
 
Item 2(b) is hereby amended to add the following:

(b)           The principal business address of Ms. Schultz is c/o Western Investment LLC, 7050 S. Union Park Center, Suite 590, Midvale, Utah 84047.

Item 2(c) is hereby amended to add the following:

 
(c)
The principal occupation of Ms. Schultz is psychotherapist.

Item 2(f) is hereby amended to add the following:

(f)           Ms.Schultz is a citizen 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 3,144,400 Shares beneficially owned by WILLC is approximately $65,620,986, including commissions. The Shares beneficially owned by WILLC consist of 900 Shares that were acquired with WILLC's working capital, 1,034,400 Shares that were acquired with WIHP's working capital, 1,507,400 Shares that were acquired with WIAP's working capital and 601,700 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 127.798 Shares that were acquired through the Issuer’s dividend reinvestment plan.

The 100 Shares owned by Ms. Schultz were a gift from WILLC.
 
 
11

CUSIP NO. 19247Y108
 

Item 5.
Interest in Securities of the Issuer.
                             
Item 5 is hereby amended and restated to read as follows:

(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 February 11, 2008, as reported in the Issuer’s Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission on February 15, 2008.

As of the date hereof, WIHP, WIAP and WITRP beneficially own 1,034,400, 1,507,400 and 601,700 Shares, respectively, representing approximately 1.8%, 2.6% and 1.0%, respectively, of the Shares outstanding.  WILLC beneficially owns 3,144,400 Shares, constituting approximately 5.3% of the Shares outstanding. Mr. Lipson beneficially owns 3,144,400 Shares, constituting approximately 5.3% 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 may be deemed to beneficially own the approximately 613 Shares beneficially owned in the aggregate by the other Reporting Persons.  The Western Group disclaims beneficial ownership of such Shares.

Mr. Roberts directly owns approximately 513 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 may be deemed to beneficially own the 3,144,500 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 may be deemed to beneficially own the approximately 3,145,013 Shares beneficially owned in the aggregate by the other Reporting Persons.  Mr. Crouse disclaims beneficial ownership of such Shares.

Ms. Schultz directly owns 100 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, Ms. Schultz may be deemed to beneficially own the approximately 3,144,913 Shares beneficially owned in the aggregate by the other Reporting Persons.  Ms. Schultz 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.

Ms. Schultz is deemed to have sole voting and dispositive power over the Shares reported as beneficially owned by her.
 
12

CUSIP NO. 19247Y108
 
(c)           Schedule A annexed hereto lists all transactions in the Shares by the Reporting Persons since the filing of Amendment No. 1 to 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.

Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended to add the following:

On March 3, 2008, Ms. Schultz executed a Joinder Agreement to the Joint Filing Agreement whereby Ms. Schultz agreed to be bound by the terms of the Joint Filing Agreement.  Ms. Schultz has also agreed in such Joinder Agreement to take all reasonable steps to request, all at WILLC’s sole cost and expense, a complete list of record and beneficial holders of the Issuer’s securities and related materials.  The Joinder Agreement is attached as exhibit 99.1 and is incorporated herein by reference.

Item 7.
Material to be Filed as Exhibits.

Item 7 is hereby amended to add the following exhibits:

 
99.1
Joinder Agreement, dated March 3, 2008, by Lynn D. Schultz to the Joint Filing and Solicitation Agreement dated January 22, 2008 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.

 
99.2
Power of Attorney for Lynn D. Schultz.
 
13

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 March 6, 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
 
14

CUSIP NO. 19247Y108

 
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

  /s/ Arthur D. Lipson
 
ARTHUR D. LIPSON
as Attorney-in-fact for Lynn D. Schultz
 
15

CUSIP NO. 19247Y108

SCHEDULE A

Transactions in the Shares Since the Filing of Amendment No. 1 to the Schedule 13D

Shares of Common Stock
Purchased / (Sold)
Price Per
Share($)
Date of
Purchase  / Sale

WESTERN INVESTMENT HEDGED PARTNERS L.P.

27,000
 
17.9983
01/23/08
(9,200)
 
18.7026
02/11/08
(1,800)
 
18.9078
02/12/08
(2,800)
 
18.8216
02/13/08
500
 
17.7125
02/15/08

WESTERN INVESTMENT ACTIVISM PARTNERS LLC

27,000
 
17.9983
01/23/08
(9,200)
 
18.7026
02/11/08
(1,900)
 
18.9078
02/12/08
(2,800)
 
18.8216
02/13/08
500
 
17.7125
02/15/08

WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.

65,200
 
17.8532
01/22/08
1,100
 
18.6925
01/24/08
500
 
17.7125
02/15/08

WESTERN INVESTMENT LLC

(100)*
 
N/A
02/2808
 
WESTERN INVESTMENT TOTAL RETURN FUND LTD.

None

ARTHUR D. LIPSON

None
 
16

CUSIP NO. 19247Y108

WILLIAM J. ROBERTS

None

MATTHEW S. CROUSE

None

LYNN D. SCHULTZ

(100)*
 
N/A
02/2808
 
 
 
 
 
 
* Transferred as gift
 
17

 
EX-99.1 2 ex991sc13da206290018_030308.htm JOINDER TO THE JOINT FILING AGREEMENT ex991sc13da206290018_030308.htm
Exhibit 99.1
 
JOINT FILING AND SOLICITATION AGREEMENT
JOINDER AGREEMENT
 
WHEREAS, 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 Crouse entered into a Joint Filing and Solicitation Agreement on January 22, 2008 (the “Agreement”) for the purpose of seeking representation on the Board of Directors of Cohen & Steers REIT and Utility Income Fund, Inc., a Maryland corporation (the “Fund”);
 
WHEREAS, Lynn D. Schultz (the “New Member) wishes to join the Group (as defined in the Agreement).
 
NOW, IT IS AGREED, this 3rd day of March 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 New Member agrees to the joint filing on behalf of her of statements on Schedule 13D with respect to the securities of the Fund to the extent required under applicable securities laws.  The New Member agrees to be bound by the other terms of the Agreement (a copy of which is attached hereto), the terms of which are incorporated herein and made a part hereof.
 
2.           The New Member agrees to take all reasonable steps to request, all at Western Investment’s sole cost and expense, a complete list of record and beneficial holders of the Fund’s securities, and related materials.
 
3.           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.
 
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

 
By:
/s/ Lynn D. Schultz
   
Name:
LYNN D. SCHULTZ
 
 
 

 

EX-99.2 3 ex992sc13da206290018_030308.htm POWER OF ATTORNEY ex992sc13da206290018_030308.htm
Exhibit 99.2
 
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 March 3, 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 3rd day of March, 2008.
 
 
/s/ Lynn D. Schultz
 
Lynn D. Schultz
 

 

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