-----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, L+IctRrK8hKvnA1vLARI/kFEawR50pfDVTWxyPU1blFxZyANzrtvyzXAUPZruB6w mJM4x0Fz74NmKO95RCrpYA== 0000950124-07-006459.txt : 20071228 0000950124-07-006459.hdr.sgml : 20071228 20071228060237 ACCESSION NUMBER: 0000950124-07-006459 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20071228 DATE AS OF CHANGE: 20071228 GROUP MEMBERS: JOHN D. ZIEGELMAN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MEADOW VALLEY CORP CENTRAL INDEX KEY: 0000934749 STANDARD INDUSTRIAL CLASSIFICATION: HEAVY CONSTRUCTION OTHER THAN BUILDING CONST - CONTRACTORS [1600] IRS NUMBER: 880328443 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48695 FILM NUMBER: 071330216 BUSINESS ADDRESS: STREET 1: 4602 E. THOMAS ROAD CITY: PHOENIX STATE: AZ ZIP: 85018 BUSINESS PHONE: 6024375400 MAIL ADDRESS: STREET 1: 4602 E. THOMAS ROAD CITY: PHOENIX STATE: AZ ZIP: 85018 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CD CAPITAL MANAGEMENT LLC CENTRAL INDEX KEY: 0001271084 IRS NUMBER: 000000000 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2 N RIVERSIDE PLAZA SUITE 600 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124663239 MAIL ADDRESS: STREET 1: 2 N RIVERSIDE PLAZA SUITE 600 CITY: CHICAGO STATE: IL ZIP: 60606 SC 13D/A 1 c22594sc13dza.htm AMENDMENT TO SCHEDULE 13D sc13dza
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
MEADOW VALLEY CORPORATION
 
(Name of Issuer)
COMMON STOCK, $0.001 PAR VALUE
 
(Title of Class of Securities)
583185103
 
(CUSIP Number of Class of Securities)
CD Capital Management LLC
111 South Wacker Drive, Suite 3950
Chicago, Illinois 60606
Attention: John Ziegelman
Telephone: (312) 803-5010
 
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
with copy to:
Greenberg Traurig, LLP
77 West Wacker Drive
Chicago, Illinois 60601
Attention: Peter H. Lieberman, Esq.
Telephone: (312) 456-8400
December 27, 2007
 
(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 Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7(b) for other parties to whom copies are to be sent.
*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).

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ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
ITEM 4. PURPOSE OF TRANSACTION
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
SIGNATURE
EXHIBIT INDEX
Director Nomination Letter
Stockholder Proposal Letter

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CUSIP No.
  
583185103 
 SCHEDULE 13D/A    
Page 2 of 8 Pages  

 

           
1   NAME OF REPORTING PERSON:
CD Capital Management LLC
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  OO
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  Delaware
       
  7   SOLE VOTING POWER
     
NUMBER OF   -0- (see Item 5)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   401,832 (see Item 5)
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   -0- (see Item 5)
       
WITH 10   SHARED DISPOSITIVE POWER
     
    401,832 (see Item 5)
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  401,832
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  7.8% OF COMMON STOCK(1)
     
14   TYPE OF REPORTING PERSON
   
  IA, OO
(1)   Based on 5,133,971 shares of Common Stock of Meadow Valley Corporation outstanding on September 30, 2007, as reported in the Form 10-Q filed by the Issuer on November 8, 2007.

 

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CUSIP No.
  
583185103 
 SCHEDULE 13D/A    
 
    
Page 3 of 8 Pages

 

           
1   NAME OF REPORTING PERSON:

John D. Ziegelman
     
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY
   
   
     
4   SOURCE OF FUNDS
   
  OO
     
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION
   
  United States
       
  7   SOLE VOTING POWER
     
NUMBER OF   -0- (see Item 5)
       
SHARES 8   SHARED VOTING POWER
BENEFICIALLY    
OWNED BY   401,832 (see Item 5)
       
EACH 9   SOLE DISPOSITIVE POWER
REPORTING    
PERSON   -0- (see Item 5)
       
WITH 10   SHARED DISPOSITIVE POWER
     
    401,832 (see Item 5)
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
   
  401,832
     
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
   
  7.8% OF COMMON STOCK(1)
     
14   TYPE OF REPORTING PERSON
   
  IN
(1)   Based on 5,133,971 shares of Common Stock of Meadow Valley Corporation outstanding on September 30, 2007, as reported in the Form 10-Q filed by the Issuer on November 8, 2007.

 

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SCHEDULE 13D/A
     CD Capital Management LLC, a Delaware limited liability company (‘‘CD Capital’’), and John D. Ziegelman (‘‘Mr. Ziegelman’’, and collectively with CD Capital, the ‘‘Reporting Persons’’), are jointly filing this Amendment No. 6 relating to the Statement of Beneficial Ownership on Schedule 13D, as filed with the Securities and Exchange Commission (the “Commission”) on March 15, 2007, as amended by Amendment No. 1 thereto filed with the Commission on June 8, 2007, Amendment No. 2 thereto filed with the Commission on October 24, 2007, Amendment No. 3 thereto filed with the Commission on October 24, 2007, Amendment No. 4 thereto filed with the Commission on November 6, 2007 and Amendment No. 5 thereto filed with the Commission on December 21, 2007 (collectively, the “Schedule 13D”).
     Except as set forth below, all Items of the Schedule 13D remain unchanged. All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Schedule 13D is hereby amended to add the following information:
     Schedule A to this Amendment No. 6 to the Schedule 13D reflects all transactions in securities of the Issuer that have been made since the filing of Amendment No. 5 to the Schedule 13D. All purchases and sales of Common Stock reflected on Schedule A to this Amendment No. 6 to the Schedule 13D were made in open market transactions, and in the case of purchases, with investment funds in accounts under management on behalf of CD Capital, which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business. The total amount of funds expended for such purchases reflected on Schedule A to this Amendment No. 6 to the Schedule 13D was approximately $63,162.67, which was expended entirely by CD Capital. These amounts are in addition to the amounts previously reported.
     The per share price for the purchase of 795 shares of Common Stock on December 20, 2007, which was reflected on Schedule A to Amendment No. 5, should have been $12.5551 instead of $12.5606.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Schedule 13D is hereby amended to add the following information:
     On December 27, 2007, CD Capital and CD Investment Partners, Ltd. sent two letters to the Issuer, in accordance with the advance notice requirements contained in the Issuer’s Bylaws, in connection with the Issuer’s 2008 annual meeting of stockholders (including any adjournment thereof, the “Annual Meeting”): (i) the first of which, nominated Mr. Ziegelman for election to the Board of Directors of the Issuer (the “Director Nomination Letter”) and (ii) the second of which, submitted a stockholder proposal to amend the Issuer’s Bylaws to allow stockholders to call a special meeting of stockholders and requested that such stockholder proposal be included in the Issuer’s proxy materials in connection with the Annual Meeting (the “Stockholder Proposal Letter”). Copies of the Director Nomination Letter and the Stockholder Proposal Letter are attached hereto as Exhibit 99.9 and Exhibit 99.10, respectively, and incorporated herein by reference.

PAGE 4 OF 6 PAGES

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     CD Investment Partners, Ltd., CD Capital, Mr. Ziegelman, ZPII, L.P., and C3 Management Inc. (the “Participants”) may solicit proxies from all stockholders in support of Mr. Ziegelman’s nomination for election to the Issuer’s Board of Directors and in support of such stockholder proposal to amend the Bylaws at the Annual Meeting. In that event, the Participants intend to file a proxy statement with the Commission to the extent required by law.
     THE PARTICIPANTS ADVISE ALL STOCKHOLDERS OF THE ISSUER TO READ THE PROXY STATEMENT AND OTHER PROXY MATERIALS WHEN AND IF THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. IN ADDITION, THE PARTICIPANTS IN THE PROXY SOLICITATION WILL PROVIDE COPIES OF THE PROXY STATEMENT WHEN AND IF AVAILABLE WITHOUT CHARGE UPON REQUEST. ANY SUCH PROXY MATERIALS WILL ALSO BE AVAILABLE AT NO CHARGE ON THE COMMISSION’S WEBSITE AT HTTP://WWW.SEC.GOV.
     The Reporting Persons expressly hereby reaffirm the reservation of all rights, options and possible future actions heretofore disclosed by them in this Item 4 to the Schedule 13D.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER
Item 5 is hereby amended to add the following information:
     As a result of the purchases and sales of shares of Common Stock as reflected on Schedule A to this Amendment No. 6, the aggregate number of shares of Common Stock beneficially owned by the Reporting Persons increased to 401,832, representing approximately 7.8% of the shares of Common Stock presently outstanding based upon the 5,133,971 shares of Common Stock reported by the Issuer to be outstanding as of September 30, 2007 in the Issuer’s Form 10-Q filed with the Commission on November 8, 2007.
     As a result of the transactions described in this Amendment No. 6 to the Schedule 13D, the Reporting Persons may be deemed to beneficially own shares of Common Stock as follows:
                 
    Number of   Approximate
    Shares of   Percentage of
Name of Reporting Person   Common Stock   Outstanding Shares
     
Mr. Ziegelman
     401,832       7.8 %
CD Capital
     401,832       7.8 %
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is hereby amended to add the following:
     
Exhibit 99.9
  Director Nomination letter dated December 27, 2007 from CD Capital and CD Investment Partners, Ltd. to the Issuer.
 
    
Exhibit 99.10
  Stockholder Proposal letter dated December 27, 2007 from CD Capital and CD Investment Partners, Ltd. to the Issuer.

PAGE 5 OF 6 PAGES

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SIGNATURE
     After reasonable inquiry and to the best of each of the undersigned’s knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
DATED: December 27, 2007
             
    CD CAPITAL MANAGEMENT LLC    
 
            
    By: ZPII, L.P., its Managing Member    
 
            
    By: C3 Management Inc., its General Partner    
 
            
 
  BY:   /s/ John D. Ziegelman
 
    
    Name: John D. Ziegelman    
    Title: President    
 
            
    /s/ John D. Ziegelman    
         
    JOHN D. ZIEGELMAN    

PAGE 6 OF 6 PAGES

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SCHEDULE A
     This schedule sets forth information with respect to each purchase and sale of Common Stock which was effectuated by the Reporting Persons since the filing of Amendment No. 5. All transactions were effectuated in the open market through a broker.
Purchase (Sale) of Shares effected by CD Capital for the account of CD Investment
                         
    Number of Shares           Aggregate
Date   Purchased (Sold)   Price Per Share($)   Price($)(1)
 
12/21/2007
    4,929       12.8145     $ 63,162.67  
 
(1)   Excludes commissions and other execution-related costs.

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EXHIBIT INDEX
     
Exhibit 99.9
  Director Nomination letter dated December 27, 2007 from CD Capital and CD Investment Partners, Ltd. to the Issuer.
 
    
Exhibit 99.10
  Stockholder Proposal letter dated December 27, 2007 from CD Capital and CD Investment Partners, Ltd. to the Issuer.

EX-99.9 2 c22594exv99w9.htm DIRECTOR NOMINATION LETTER exv99w9
 

EXHIBIT 99.9
CD INVESTMENT PARTNERS, LTD
c/o CD CAPITAL MANAGEMENT LLC
111 South Wacker Drive, Suite 3950
Chicago. Illinois 60606
(312) 803-5010
December 27, 2007
Via U.S. Mail and Hand Delivery
Meadow Valley Corporation
4602 East Thomas Road
Phoenix, Arizona 85018
     
Attention:
  Mr. Charles E. Cowan, Chairman, Nominating and Governance Committee
Mr. Charles R. Norton, Member, Nominating and Governance Committee
Mr. Don A. Patterson, Member, Nominating and Governance Committee
Mr. David D. Doty, Chief Financial Officer, Principal Accounting Officer, Secretary and Treasurer
          Re:      Notice of Nomination of Candidate for Election to Board of Directors
Gentlemen:
     In accordance with Article XXXIII, Section 1 of the Amended and Restated Bylaws (the “Bylaws”) of Meadow Valley Corporation, a Nevada corporation (“Meadow Valley”), CD Capital Management LLC, a Delaware limited liability company (“CD Capital”), as investment manager to CDIP (as defined below), and CD Investment Partners, Ltd., an exempted company with limited liability incorporated and an open-end investment company formed under the laws of the Cayman Islands (“CDIP”), hereby submit this written notice (the “Notice”) to Meadow Valley, c/o the Nominating and Governance Committee and the Corporate Secretary, of their nomination of Mr. John D. Ziegelman for election to the Board of Directors of Meadow Valley at Meadow Valley’s annual meeting of stockholders (including any adjournments or postponements thereof or any special meeting that may be called in lieu thereof (the “Annual Meeting”). Enclosed with this letter are the following exhibits: Exhibit A, Consent of Mr. Ziegelman, Exhibit B, biography of Mr. Ziegelman, and Exhibit C, a list of the securities transactions of CD Capital and CDIP for the last two years and a letter from Goldman Sachs regarding the Shares (as defined below).
1.   Name and Address; Class and Number of Shares of Stock Beneficially Owned
     CD Capital acts as investment manager to CDIP, an open-end investment company. CD Capital (in the name, and for the benefit, of CDIP) maintains an account (the “Account”) in which 401,832 shares (the “Shares”) of common stock, $.01 par value, of Meadow Valley (the “Common Stock”), are held, representing approximately 7.8% of the

 

 

outstanding shares of Common Stock, determined by reference to Meadow Valley’s Quarterly Report on Form 10-Q for its fiscal quarter ended September 30, 2007. CD Capital, as attorney-in-fact on behalf of CDIP, has full and exclusive discretionary authority to effect acquisitions, dispositions, voting decisions and other transactions in respect of the Shares and is the beneficial owner of the Shares, as determined by Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. The Account is maintained with Goldman Sachs, as reflected in the letter from Goldman Sachs to CD Capital attached as Exhibit C-2 hereto.
     The name and address of CD Capital is CD Capital Management LLC, 111 South Wacker Drive, Suite 3950, Chicago, Illinois 60606. The name and address of CDIP is CD Investment Partners, Ltd., c/o Admiral Administration Ltd., P.O. Box 32021, SMB Anchorage Centre, 2nd Floor Harbour Drive, GeorgeTown, Grand Cayman, Cayman Islands.
2.   Representation
     CDIP is the holder of record of capital stock of Meadow Valley and is entitled to vote at the Annual Meeting and CDIP (through CD Capital) intends to appear in person or by proxy at the Annual Meeting to present Mr. Ziegelman’s nomination on its behalf. The undersigned further represents that CD Capital and CDIP may deliver a proxy statement or form of proxy to the holders of at least the percentage of Meadow Valley’s outstanding capital stock entitled to elect Mr. Ziegelman or otherwise to solicit proxies from stockholders in support of the nomination.
3.   Nomination
     Further to previous correspondence between representatives of CD Capital and Messrs. Charles E. Cowan, Charles R. Norton and Don A. Patterson on October 23, 2007, November 5, 2007 and December 21, 2007, CD Capital and CDIP hereby formally submit to Meadow Valley for consideration by its Nominating and Governance Committee, its entire Board and its stockholders, for election as a director of Meadow Valley, the name, qualifications and background of Mr. Ziegelman. Mr. Ziegelman is the President of CD Capital and Chairman of the Board, President and Treasurer and the beneficial owner of 100% of the outstanding common stock of the general partner of the manager and sole member of CD Capital. CD Capital and CDIP further hereby request that Mr. Ziegelman be named in the definitive proxy statement on Schedule 14A (the “Proxy Statement”) to be filed by Meadow Valley with the Securities and Exchange Commission pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended, and disseminated to Meadow Valley’s stockholders in connection with the Board’s solicitation of proxies for use at the Annual Meeting to elect Meadow Valley’s directors to serve until their successors are duly elected and qualified.
     CD Capital and CDIP reserve the right to nominate additional nominees to Meadow Valley’s Board of Directors for any reason, including if Meadow Valley, by the appropriate corporate action, has increased or increases the number of directors to be

 

 

elected at the Annual Meeting or if the composition of the Board of Directors has changed prior to the Annual Meeting.
4.   Interests Which CD Capital and CDIP May Have In Such Business
     Neither CD Capital nor CDIP has any interest in the nomination to be brought before the Annual Meeting other than the interest which it shares in common with all other owners of Common Stock.
5.   Description of Arrangements or Understandings between CD Capital, CDIP and Nominee
     There are no arrangements between CD Capital and CDIP and Mr. Ziegelman or any other person pursuant to which Mr. Ziegelman has been nominated to the Board of Directors. Mr. Ziegelman will not receive any compensation from CD Capital or CDIP for his service as a director of Meadow Valley if elected. If elected, Mr. Ziegelman will be entitled to such compensation from Meadow Valley as is provided to other non-employee directors, which compensation is expected to be described in the Proxy Statement.
6.   Other Information Regarding Nominees Required by Proxy Rules
     Pursuant to the Bylaws, all requisite information about Mr. Ziegelman is set forth in this Notice and Exhibit B hereto. Mr. Ziegelman is a demonstrated leader with a strong ability to make independent, analytical judgments, is a highly-skilled and effective communicator and problem-solver and has diverse financial, transactional and international business experience. Accordingly, CD Capital and CDIP believe that Mr. Ziegelman is extremely well-qualified and would be a superb addition to the Board and would help serve the best interests of Meadow Valley’s stockholders.
     Mr. Ziegelman has never served on the Board of Directors or otherwise been employed by Meadow Valley. There are no arrangements between CD Capital and CDIP and Mr. Ziegelman or any other person pursuant to which Mr. Ziegelman has been nominated to the Board of Directors. Neither Mr. Ziegelman nor any of his associates has received any cash compensation, cash bonuses, deferred compensation, compensation pursuant to other plans or other compensation from, or related to, services rendered on behalf of Meadow Valley, or is subject to any arrangement described in Item 402 of Regulation S-K. There are no family relationships (as defined in Section 401(d) of Regulation S-K) between Mr. Ziegelman and any director or officer of Meadow Valley or, to Mr. Ziegelman’s knowledge, any other person nominated by Meadow Valley to become a director or executive officer. Accordingly, Mr. Ziegelman is not aware of any facts or circumstances that would prevent him from being deemed an “independent” director under the rules of the Securities and Exchange Commission and Nasdaq Capital Market (as in effect on the date hereof).
     Except as disclosed herein or in any of the exhibits attached hereto, none of the Participants (as defined below):

 

 

  (i)   owns any securities of Meadow Valley of record but not beneficially;
 
  (ii)   has, during the past ten years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors);
 
  (iii)   owns, nor do any of their associates own, beneficially any securities of Meadow Valley;
 
  (iv)   owns any securities of any parent or subsidiary of Meadow Valley;
 
  (v)   has borrowed any funds for the purpose of acquiring or holding any securities of Meadow Valley (except for margin borrowings for that purpose or margin borrowings in the ordinary course of business);
 
  (vi)   is presently, or has been within the past year, a party to any contract, arrangement or understanding with any person with respect to securities of Meadow Valley, including, but not limited to, joint ventures, loan or option arrangements, puts or calls, guarantees against loss or guarantees of profit, division of losses or profits, or the giving or withholding of proxies;
 
  (vii)   had or will have, nor do any of their associates have or will have, a direct or indirect material interest in any transaction, arrangement or relationship, or series of similar transactions, arrangements or relationships since the beginning of Meadow Valley’s last fiscal year, or any currently proposed transaction, or series of similar transactions, arrangements or relationships to which Meadow Valley or any of its subsidiaries was or is to be a party, in which the amount involved exceeds $120,000 (the representation in this subclause (vii) shall include any “related person” of Mr. Ziegelman as defined in Instruction 1 to Item 404(a) of Regulation S-K under the Securities Act of 1933, as amended (“Regulation S-K”));
 
  (viii)   has pledged or otherwise deposited as collateral any securities of Meadow Valley (except for pledges of securities in connection with margin borrowings) or caused or agreed to permit such securities to be subject to any voting trust or other similar agreement or of any contract providing for the sale or other disposition of such securities;
 
  (ix)   is aware of any arrangement (including any pledge, voting trust, or contract for sale) which may at a subsequent date result in a change in control of Meadow Valley;
 
  (x)   is aware of any arrangement, or has reason to believe that any arrangement exists, under which 5% or more of any class of Meadow Valley’s voting securities is held or is to be held subject to any voting agreement, voting trust or other similar agreement;

 

 

  (xi)   is aware of any person or group that holds beneficial ownership of more than 5% of the outstanding shares of Meadow Valley or has the right to acquire beneficial ownership of more than 5% of such outstanding voting securities, except for persons or groups who may be identified through a review of publicly available information regarding the beneficial ownership of Meadow Valley;
 
  (xii)   is aware of any circumstance in which Mr. Ziegelman’s election to the Board of Directors of Meadow Valley would create a compensation committee interlock or other insider relationship as described in Item 407(e)(4) of Regulation S-K;
 
  (xiii)   has, during the past five years, been involved in any of the legal proceedings described in Item 401(f) of Regulation S-K. The term “associates” shall have the meaning as that term is defined in Rule 14a-1 of Regulation 14A under the Securities Exchange Act of 1934, as amended;
 
  (xiv)   has, nor do any of their associates have, any arrangement or understanding with any person with respect to any future employment by Meadow Valley or its affiliates;
 
  (xv)   has, nor do any of their associates have, any arrangement or understanding with any person with respect to any future transactions to which Meadow Valley or any of its affiliates will or may be a party; or
 
  (xvi)   has any substantial interest, direct or indirect, by security holdings or otherwise, in any matter to be acted upon at the Annual Meeting proposed in this Notice aside from their respective interests as shareholders of Meadow Valley.
     Except as otherwise set forth in this Notice, there are no material proceedings (as described in Instructions 4 and 5 to Item 103 of Regulation S-K) in which Mr. Ziegelman or any of his associates is a party adverse to Meadow Valley or any of its subsidiaries, or in which Mr. Ziegelman or his associates have a material interest adverse to Meadow Valley or any of its subsidiaries.
     Exhibit C-1 sets forth the purchases and sales effected by CD Capital (in the name, and for the benefit, of CDIP) of Common Stock (and common stock derivatives) within the previous two years, the dates of the transactions and the amounts purchased or sold.
     CD Capital, CDIP, Mr. Ziegelman, ZPII, LP and C3 Management Inc. (the “Participants”) may solicit proxies from all stockholders of Meadow Valley in connection with the matters to be brought before the Annual Meeting. The manager and sole member of CD Capital is ZPII, L.P., a Delaware limited partnership. C3 Management Inc., a Delaware corporation, is the general partner of ZPII, LP. Mr. Ziegelman is the Chairman of the Board, President and Treasurer and the beneficial owner of 100% of the

 

 

outstanding common stock of C3, and the President of CD Capital. ZPII, LP, as the manager and sole member of CD Capital, C3 Management Inc., as the general partner of ZPII, LP, and Mr. Ziegelman, as the Chairman of the Board, President and Treasurer and the beneficial owner of 100% of the outstanding shares of common stock of C3 Management Inc., each may be deemed to have beneficial ownership of the Shares (as determined under Rule 13d-3 promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended).
     CD Capital is principally engaged in the business of providing investment management services to various investment funds, including CDIP, and managed accounts and of acquiring, holding, voting and disposing of various portfolio securities investments. ZPII, LP’s principal business is serving as manager and sole member of CD Capital. C3’s principal business is serving as general partner of ZPII, LP. Mr. Ziegelman’s principal occupation is serving as Chairman of the Board, President and Treasurer of C3 and as President of CD Capital. In such capacity, Mr. Ziegelman acts as investment manager of the investment funds and managed accounts to which CD Capital provides investment management services. Mr. Ziegelman also serves as managing agent and co-general partner of ZPII, LP.
     In connection with any solicitation of proxies at the Annual Meeting, the Participants may engage a proxy solicitation agent whose fees and number of employees to be employed for such solicitation would be agreed upon at the time of such engagement. To the extent that any employee of any of the Participants engages in solicitation activities, no such employee will receive any additional compensation for his or her efforts. The business address of each employee of the Participants would be the same as that of his or her employer.
     The Participants would bear the cost of such proxy solicitation, but would intend to seek reimbursement for the cost of such solicitation from Meadow Valley if Mr. Ziegelman is elected as a director. The Participants do not intend to seek shareholder approval for such reimbursement. While no precise estimate of this cost can be made at the present time, the Participants currently estimate that they would spend a total of approximately $200,000 for such solicitation of proxies, including expenditures for attorneys, proxy solicitation agents, and advertising, public relations, printing, transportation and related expenses. As of the date hereof, the Participants have not incurred any solicitation expenses. In addition to soliciting proxies by mail, proxies may be solicited in person, by telephone, facsimile or other electronic means, through advertisements or otherwise.
7.   Consent of Nominee
     Mr. Ziegelman has executed a consent indicating his agreement to be nominated for election as a director of Meadow Valley and to serve as a director of Meadow Valley if elected at the Annual Meeting. A copy of this consent is attached as Exhibit A to this Notice.
8.   Other Matters
     Pursuant to Article XXXIII, Section 1 of the Bylaws, please be advised that, by a letter addressed to Meadow Valley’s Corporate Secretary, dated December 27, 2007, CD Capital and CDIP have requested that their stockholder proposal to amend the Bylaws be included in Meadow Valley’s proxy materials for the Annual Meeting. A copy of that letter, which is being filed with the Securities and Exchange Commission as an attachment to CD Capital’s amended Form 13D (to be filed on

 

 

December 27, 2007), is hereby incorporated by reference and is available at the Securities and Exchange Commission’s website at www.sec.gov.
     The information included in this Notice and in the exhibits attached hereto represents the undersigned’s best knowledge as of the date hereof. CD Capital and CDIP reserve the right, in the event such information shall be or become inaccurate, to provide corrective information to Meadow Valley as soon as reasonably practicable, although CD Capital and CDIP do not commit to update any information which may change from and after the date hereof. If this Notice shall be deemed for any reason by a court of competent jurisdiction to be ineffective with respect to the nomination of Mr. Ziegelman at the Annual Meeting, or if he shall be unable to serve for any reason, this Notice shall continue to be effective with respect to any replacement nominee or nominees selected by CD Capital and CDIP.
     Please be advised that neither the delivery of this Notice nor the delivery of additional information, if any, provided by or on behalf of CD Capital or CDIP or any of their affiliates to Meadow Valley from and after the date hereof shall be deemed to constitute an admission by CD Capital or CDIP or any of their affiliates that this Notice or any such information is required or is in any way defective or as to the legality or enforceability of any matter or a waiver by CD Capital or CDIP or any of their affiliates of its right to, in any way, contest or challenge any such matter.
     Please direct any questions regarding the information contained in this Notice to the undersigned at (312) 803-5010. In the event that Meadow Valley requires any additional information to determine the eligibility of Mr. Ziegelman (or the eligibility of any additional or substitute nominee of the undersigned) to serve as a member of the Board of Directors of Meadow Valley, please advise the undersigned immediately.
     The Exhibits hereto are hereby incorporated into and made a part of this letter. Accordingly, all matters disclosed in any part of this letter, including the Exhibits hereto, should be deemed disclosed for all purposes of this letter.
[Signature page follows]

 

 

         
  CD CAPITAL MANAGEMENT LLC

By: ZPII, L.P., its Managing Member

By: C3 Management Inc., its General Partner
 		  
  BY:   /s/ John Ziegelman    
    Name:   John Ziegelman   
    Title:   President   
 
 
  CD INVESTMENT PARTNERS LTD.

By: CD Capital Management LLC, its investment
manager

By: ZPII, L.P., its Managing Member

By: C3 Management Inc., its General Partner
 		  
  By:   /s/ John Ziegelman    
    Name:   John Ziegelman   
    Title:   President   
 
     
cc:
  President, Meadow Valley Corporation
Corporate Secretary, Meadow Valley Corporation
4602 East Thomas Road
Phoenix, Arizona 85018
[Signature page]

 

 

EXHIBIT A
CONSENT OF NOMINEE
     The undersigned hereby consents (a) to serve as a director of Meadow Valley Corporation, a Nevada corporation (“Meadow Valley”), (b) to being named as a nominee for election as a director of Meadow Valley in Meadow Valley’s proxy statement on Schedule 14A to be filed with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, to be used in connection with the solicitation of proxies by the Board of Directors of Meadow Valley from stockholders of Meadow Valley to be voted at the 2008 Annual Meeting of Stockholders of Meadow Valley and any adjournments or postponements thereof (the “Annual Meeting”), and (c) to serve as a director of Meadow Valley, if elected at the Annual Meeting.
Dated: December 27, 2007
         
     
  /s/ John D. Ziegelman    
  JOHN D. ZIEGELMAN   
     

 

 

         
EXHIBIT B
Information about the Nominee is set forth in the attachments to this Exhibit B.

 

 

EXHIBIT B
CD Capital Management LLC, a Delaware limited liability company, was formed in December 2001 (“CD Capital”). CD Capital’s Founder, President and Chief Investment Officer is John Ziegelman. John has over 20 years of financial management, investment banking and principal investing experience as summarized below. John’s business address is c/o CD Capital Management LLC, 111 South Wacker Drive, Suite 3950, Chicago, Illinois 60606.
CD Capital is an SEC registered Investment Advisor that manages capital on behalf of a fund family, principally engaged in two small-cap investment strategies: Pro-Active Value Investing and Private Placements. In both cases, CD Capital seeks to invest in undervalued public companies, preferring to work collaboratively with the Issuers’ management teams and Boards to unlock long-term shareholder value.
By working with existing Boards of Directors and corporate management teams, we seek to effect positive change through a hands-on effort focusing on undervalued companies with several identifiable governance, strategy and communication issues. We believe that our expertise in the financial markets and in critical strategic planning is a major benefit for resource strapped small-cap public Issuers. Where we do not have direct expertise, we bring to bear our substantial strategic contacts to assist companies in strategic and operational matters. Our goal is to unlock value for all shareholders by removing overhang associated with past failed strategies, creating credibility in the marketplace, and adding substantial strategic value. To date, CD Capital has been involved in two 13D activist campaigns, Sunterra Corporation (Acquired) and Meadow Valley Corporation (NASDAQ-MVCO). With respect to Sunterra Corp., from July 2006 until the sale in April 2007, John was a member of the Board of Directors (and Chairman of the Board from October 2006) of Sunterra and was instrumental in effecting the company’s successful sale to a strategic buyer.
With respect to our Private Placement activities, CD Capital makes direct equity and equity-like investments in small and micro-cap public companies. Our goal in making Private Placements in such companies is to provide both growth capital and strategic advisory services to the Issuers to help enable them to execute their strategic objectives and to create shareholder value.
Prior to founding CD Capital’s predecessor John was a co-founder, Managing Member and Chief Investment Officer of Castle Creek Partners LLC. During his tenure at Castle Creek, John originated, structured and closed in excess of 80 private placement transactions (PIPEs), managed, and restructured as needed, the PIPE portfolio for a series of private investment funds. From December 1996 until he sold his membership interests in Castle Creek to his partner in April 2000, John built Castle Creek’s private placement business, managed the day-to-day operations of Castle Creek, co-founded two external investment managers and expanded the investment strategy to include opportunistic trading and investment strategies. Prior to co-founding Castle Creek, and during 1996, John was employed by Citadel Investment Group in Chicago. While at Citadel, John was

 

 

the portfolio manager and trader for the special situations desk where he managed a portfolio of private placements including originating, structuring, negotiating and in multiple situations restructuring equity, equity linked and convertible investment instruments.
Between 1986 and 1996, John held several financial positions, including at the internationally recognized (affiliates of) investment banks: Shearson Lehman Brothers and Kidder, Peabody & Co. During this period, John participated in closing more than 100 financing and M&A transactions for both corporate and real estate clients and was part of the advisory team to dozens of public and private companies regarding growth capital and financial strategy.
John earned his A.B. in philosophy and classical archaeology from the University of Michigan in 1986; and a M.B.A. from the University of Chicago in 1993. John currently serves on several charitable boards including: The Illinois Holocaust Museum and Education Center, Children’s Memorial Hospital Foundation and until its May 2007 merger with the Christopher Reeves Foundation, the Daniel Heumann Foundation for Spinal Cord Research. In addition, John is a Member of the Windy City Chapter of the Young Presidents Organization.

 

 

EXHIBIT C-1
LIST OF SECURITIES TRANSACTIONS
                             
Ticker   Trade Date   Activity   Number of Shares   Price per Share ($)
MVCO
     2/27/2006     PURCHASE     7,500       15.0742  
MVCO
     2/28/2006     PURCHASE     23,000       15.4759  
MVCO
     3/1/2006     PURCHASE     2,000       15.1467  
MVCO
     3/17/2006     PURCHASE     2,500       13.8979  
MVCO
     4/12/2006     PURCHASE     10,000       11.5923  
MVCO
     5/2/2006     PURCHASE     10,000       11.1244  
MVCO
     5/2/2006     PURCHASE     10,000       10.9884  
MVCO
     5/11/2006     PURCHASE     3,500       11.8188  
MVCO
     5/12/2006     PURCHASE     2,000       11.5133  
MVCO
     5/17/2006     PURCHASE     1,200       10.8695  
MVCO
     5/18/2006     PURCHASE     6,500       10.8448  
MVCO
     5/19/2006     PURCHASE     1,800       10.56  
MVCO
     6/5/2006     PURCHASE     2,355       11.3653  
MVCO
     6/5/2006     SALE     (299 )     11.46  
MVCO
     6/7/2006     PURCHASE     1,200       11.1717  
MVCO
     6/8/2006     PURCHASE     4,000       11.1913  
MVCO
     6/9/2006     PURCHASE     2,000       11.093  
MVCO
     6/12/2006     PURCHASE     20,744       10.4407  
MVCO
     6/13/2006     PURCHASE     5,150       10.2801  
MVCO
     6/15/2006     PURCHASE     200       10.71  
MVCO
     6/16/2006     PURCHASE     2,392       10.9171  
MVCO
     6/28/2006     PURCHASE     1,000       11.11  
MVCO
     6/29/2006     PURCHASE     100       11.09  
MVCO
     6/30/2006     PURCHASE     7,000       11.3911  
MVCO
     7/5/2006     PURCHASE     24,000       11.5145  
MVCO
     7/28/2006     PURCHASE     100       10.86  
MVCO
     8/2/2006     PURCHASE     5,000       10.4310  
MVCO
     8/23/2006     PURCHASE     13,900       9.5806  
MVCO
     8/24/2006     PURCHASE     900       9.54  
MVCO
     8/25/2006     SALE     (100 )     9.63  
MVCO
     8/29/2006     PURCHASE     1,000       9.8755  
MVCO
     8/31/2006     PURCHASE     4,800       9.9998  
MVCO
     9/1/2006     PURCHASE     2,500       10.0300  
MVCO
     9/13/2006     PURCHASE     1,075       10.0335  
MVCO
     9/14/2006     PURCHASE     1,000       9.84  
MVCO
     9/15/2006     PURCHASE     3,300       9.8467  
MVCO
     9/18/2006     PURCHASE     500       9.95  
MVCO
     9/19/2006     PURCHASE     6,000       9.8596  
MVCO
     9/20/2006     PURCHASE     5,921       10.0015  
MVCO
     9/22/2006     PURCHASE     3,262       10.1383  
MVCO
     10/02/2006     PURCHASE     1,000       9.756  
MVCO
     10/03/2006     PURCHASE     1,000       9.95  
MVCO
     10/04/2006     PURCHASE     4,000       9.9378  

 

 

                             
Ticker   Trade Date   Activity   Number of Shares   Price per Share ($)
MVCO
     10/06/2006     PURCHASE     100       9.94  
MVCO
     10/17/2006     PURCHASE     4,900       10.8143  
MVCO
     10/24/2006     PURCHASE     5,000       9.8  
MVCO
     10/25/2006     PURCHASE     100       9.6  
MVCO
     10/31/2006     PURCHASE     5,300       10.6472  
MVCO
     11/07/2006     SALE     (1,000 )     10.2248  
MVCO
     11/10/2006     PURCHASE     500       10.15  
MVCO
     11/14/2006     PURCHASE     3,508       10.096  
MVCO
     11/16/2006     PURCHASE     600       10.3517  
MVCO
     11/22/2006     PURCHASE     3,340       10.2323  
MVCO
     11/29/2006     PURCHASE     500       10.25  
MVCO
     02/12/2007     PURCHASE     5,000       12.4  
MVCO
     02/14/2007     PURCHASE     4,700       12.4596  
MVCO
     02/21/2007     PURCHASE     378       12.25  
MVCO
     02/28/2007     PURCHASE     100       11.85  
MVCO
     03/08/2007     PURCHASE     16,205       12.6652  
MVCO
     03/12/2007     PURCHASE     2,700       12.6733  
MVCO
     03/13/2007     PURCHASE     100       12.38  
MVCO
     03/14/2007     PURCHASE     500       12.5  
MVCO
     03/30/2007     PURCHASE     5,000       12.95  
MVCO
     04/12/2007     PURCHASE     3,479       12.95  
MVCO
     04/26/2007     PURCHASE     800       13.06  
MVCO
     05/02/2007     SALE     (100 )     13.61  
MVCO
     05/03/2007     PURCHASE     100       13.31  
MVCO
     05/10/2007     PURCHASE     1,000       13  
MVCO
     05/11/2007     PURCHASE     5,000       12.7488  
MVCO
     05/11/2007     PURCHASE     1,398       12.628  
MVCO
     05/18/2007     PURCHASE     1,100       12.95  
MVCO
     05/22/2007     PURCHASE     2,800       13.0093  
MVCO
     05/24/2007     PURCHASE     1,000       13  
MVCO
     05/25/2007     PURCHASE     2,000       13.2478  
MVCO
     05/29/2007     PURCHASE     1,000       13.2641  
MVCO
     05/30/2007     PURCHASE     1,000       13.294  
MVCO
     05/30/2007     PURCHASE     1,800       13.282  
MVCO
     05/31/2007     PURCHASE     684       13.2117  
MVCO
     06/07/2007     PURCHASE     1,500       13.5967  
MVCO
     06/07/2007     PURCHASE     3,900       13.677  
MVCO
     06/08/2007     PURCHASE     800       13.6988  
MVCO
     06/13/2007     PURCHASE     1,500       13.4548  
MVCO
     06/15/2007     PURCHASE     2,000       13.2995  
MVCO
     06/15/2007     PURCHASE     5,000       13.294  
MVCO
     06/28/2007     SALE     (2,191 )     14.0722  
MVCO
     06/29/2007     SALE     (2,700 )     14.087  
MVCO
     07/12/2007     SALE     (500 )     14.034  
MVCO
     07/19/2007     PURCHASE     5,000       13.31  
MVCO
     07/30/2007     PURCHASE     4,205       12.5  
MVCO
     08/01/2007     PURCHASE     3,106       12.5949  
MVCO
     08/01/2007     SALE     (1,300 )     13.6385  
MVCO
     08/06/2007     SALE     (200 )     12.785  

 

 

                             
Ticker   Trade Date   Activity   Number of Shares   Price per Share ($)
MVCO
     08/10/2007     PURCHASE     2,199       12.8992  
MVCO
     08/14/2007     PURCHASE     400       12.65  
MVCO
     08/21/2007     PURCHASE     393       12.8176  
MVCO
     08/31/2007     SALE     (500 )     13.15  
MVCO
     09/17/2007     SALE     (292 )     12.6532  
MVCO
     09/18/2007     PURCHASE     1,392       12.5969  
MVCO
     09/26/2007     PURCHASE     2,000       11.8607  
MVCO
     09/27/2007     PURCHASE     100       12  
MVCO
     10/01/2007     PURCHASE     993       11.9001  
MVCO
     10/02/2007     PURCHASE     479       11.25  
MVCO
     10/04/2007     PURCHASE     2,050       11.6144  
MVCO
     10/05/2007     PURCHASE     1,500       11.8953  
MVCO
     10/09/2007     PURCHASE     4,500       12.3851  
MVCO
     10/10/2007     PURCHASE     4,300       11.7514  
MVCO
     10/12/2007     PURCHASE     2,198       11.9941  
MVCO
     10/12/2007     SALE     (100 )     11.8601  
MVCO
     10/12/2007     SALE     (200 )     11.8398  
MVCO
     10/17/2007     PURCHASE     10,177       12.0366  
MVCO
     10/18/2007     PURCHASE     1,500       11.9547  
MVCO
     10/19/2007     PURCHASE     2,400       11.75  
MVCO
     10/22/2007     PURCHASE     2,004       11.7236  
MVCO
     10/23/2007     PURCHASE     2,495       12.0273  
MVCO
     10/24/2007     PURCHASE     16,000       12.4013  
MVCO
     10/25/2007     PURCHASE     1,000       12.243  
MVCO
     11/05/2007     PURCHASE     7,010       12.5706  
MVCO
     11/06/2007     SALE     (200 )     13.25  
MVCO
     11/07/2007     SALE     (200 )     13.29  
MVCO
     11/13/2007     SALE     (200 )     13.48  
MVCO
     11/16/2007     PURCHASE     600       12.965  
MVCO
     11/20/2007     SALE     (700 )     12.8156  
MVCO
     11/28/2007     PURCHASE     1,900       12.7816  
MVCO
     11/30/2007     PURCHASE     17,598       12.678  
MVCO
     12/12/2007     PURCHASE     2,000       13.25  
MVCO
     12/13/2007     PURCHASE     600       12.75  
MVCO
     12/18/2007     PURCHASE     5,000       12.60  
MVCO
     12/20/2007     PURCHASE     795       12.5551  
MVCO
     12/21/2007     PURCHASE     4,929       12.8145  

 

 

EXHIBIT C-2
GOLDMAN SACHS LETTER TO CD CAPITAL
[GOLDMAN, SACHS & CO. LETTERHEAD]
[GOLDMAN, SACHS & CO. LOGO]
FORM OF POSITION REPORT
CD Capital Management LLC
111 South Wacker Drive
Suite 3950
Chicago, IL 60606
December 27, 2007
Sirs,
Statement of Holdings: [Security], [CUSIP 583185-10-3]: (the “Security”)
Goldman, Sachs & Co. (“GSCO”) act as prime broker, custodian and/or lender to the fund and for the account listed below (the “Fund”). This will confirm that the Securities described below were reflected on GSCO’s book and records for the accounts of the applicable Fund on the date indicated:
Account : 002-36831-4
Dates December 26, 2007
Fund Name : CD Investment Partners, LTD
Trade Date Quantity : 401,832 shares
We also confirm that at least 227,848 shares of the Securities described above were reflected on GSCO’s book and records for the accounts of the applicable Fund on each day between 12/27/2006 and 12/26/2007.
Please note that to the extent financing was extended against any of the Securities during any of the applicable time periods, standard collateral arrangements may have resulted in transfers of such Securities pursuant to GSCO’s rights as a secured creditor, in which case the applicable Fund retained a contractual right against GSCO, as applicable, for the delivery of equivalent securities, with the result that one or more of the Funds may not have had the right to vote or exercise other indicia of ownership of the Securities, and that GSCO, as applicable, may have lent, sold or otherwise used the Securities.
Yours faithfully,
/s/ Kara Saxon        
Managing Director
For and on behalf of
Goldman Sachs & Co.
Please note that we accept no responsibility or liability to you or any third party in connection with the contents of this letter. The foregoing information is disclosed to you for informational purposes only and should not be relied upon by you or any third party for any other purpose. The letter is based on information that we believe to be correct, however, the information is correct only as of the date stated and would need to be reconfirmed in respect of

 

 

any other date. The above information lists purchases and sales cleared by us for the accounts and the dates indicated therein, along with certain additional information. Please note however that the official statement of your transactions and securities holdings is provided to you in the form of Goldman Sachs confirmations at the time of the transaction for transactions executed through Goldman Sachs, and monthly customer statements at the end of each calendar month for all transactions cleared to your Goldman Sachs prime brokerage account. The attached is being provided at your request as a courtesy and is not an official report nor in a form customarily provided to our clients nor is it maintained in such a format by us as part of our official books and records. Goldman, Sachs & Co. has no independent regulatory requirement or duty to maintain, and the attached is not meant to be a substitute for, your or your funds’ official books and records, nor do we assume any responsibility for any regulatory compliance obligations to which you may be subject. We do not represent that this material is accurate, complete or up-to-date, nor suitable for your intended use and we do not accept liability for any losses or damages arising from your use of this information.

 

EX-99.10 3 c22594exv99w10.htm STOCKHOLDER PROPOSAL LETTER exv99w10
 

EXHIBIT 99.10
CD INVESTMENT PARTNERS, LTD
c/o CD CAPITAL MANAGEMENT LLC
111 South Wacker Drive, Suite 3950
Chicago. Illinois 60606
(312) 803-5010
December 27, 2007
Via U.S. Mail and Hand Delivery
Meadow Valley Corporation
4602 East Thomas Road
Phoenix, Arizona 85018
Attention:   Mr. David D. Doty, Chief Financial Officer, Principal Accounting Officer, Secretary and Treasurer
  Re:   Notice of Submission of Stockholder Proposal to Amend Bylaws and
Request for Inclusion of Proposal in Proxy Statement under Rule 14a-8 of the Securities Exchange Act of 1934, as amended
Dear Mr. Doty:
     In accordance with Article XXXIII, Section 1 and Article XXXIV of the Amended and Restated Bylaws (the “Bylaws”) of Meadow Valley Corporation, a Nevada corporation (“Meadow Valley”), CD Capital Management LLC, a Delaware limited liability company (“CD Capital”), as investment manager to CDIP (as defined below), and CD Investment Partners, Ltd., an exempted company with limited liability incorporated and an open-end investment company formed under the laws of the Cayman Islands (“CDIP”), hereby submit the stockholder proposal attached hereto as Exhibit A (the “Proposal”), for consideration at the Meadow Valley 2008 Annual Meeting of Stockholders and any adjournments or postponements thereof (the “Annual Meeting”). Furthermore, CD Capital and CDIP also hereby request that the Proposal and Supporting Statement (as defined below) be included in Meadow Valley’s proxy statement in connection with the Annual Meeting in accordance with Rule 14a-8 promulgated by the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended.
1.   Name and Address; Class and Number of Shares of Stock Beneficially Owned
     CD Capital acts as investment manager to CDIP, an open-end investment company. CD Capital (in the name, and for the benefit, of CDIP) maintains an account (the “Account”) in which 401,832 shares (the “Shares”) of common stock, $.01 par value, of Meadow Valley (the “Common Stock”), are held, representing approximately 7.8% of the outstanding shares of Common Stock, determined by reference to Meadow Valley’s Quarterly Report on Form 10-Q for its fiscal quarter ended September 30, 2007. CD Capital, as attorney-in-fact on behalf of CDIP, has full and exclusive discretionary

 

 

authority to effect acquisitions, dispositions, voting decisions and other transactions in respect of the Shares and is the beneficial owner of the Shares, as determined by Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended. The Account is maintained with Goldman Sachs, as reflected in the letter from Goldman Sachs to CD Capital attached as Exhibit B hereto. Exhibit B also contains evidence that CD Capital (in the name, and for the benefit, of CDIP) has continuously beneficially held shares of Common Stock with a value of at least $2,000 in market value or comprising at least 1% of Meadow Valley’s securities for more than one year.
     The name and address of CD Capital is CD Capital Management LLC, 111 South Wacker Drive, Suite 3950, Chicago, Illinois 60606. The name and address of CDIP is CD Investment Partners, Ltd., c/o Admiral Administration Ltd., P.O. Box 32021, SMB Anchorage Centre, 2nd Floor Harbour Drive, GeorgeTown, Grand Cayman, Cayman Islands.
2.   Representation
     CDIP is the holder of record of capital stock of Meadow Valley and is entitled to vote at the Annual Meeting and CDIP (through CD Capital) intends to appear in person or by proxy at the Annual Meeting to present the Proposal on its behalf. The undersigned further represents that CD Capital and CDIP and certain of their affiliates may deliver a proxy statement or form of proxy to the holders of at least the percentage of Meadow Valley’s outstanding capital stock entitled to approve the Proposal or otherwise to solicit proxies from stockholders in support of the Proposal.
3.   Interests Which CD Capital and CDIP May Have In Such Business
     Neither CD Capital nor CDIP has any interest in the Proposal other than the interest which it shares in common with all other owners of Common Stock.
4,   Other Information Required by the Proxy Rules
     In accordance with Rule 14a-8, the undersigned hereby represent that (i) CD Capital (in the name, and for the benefit, of CDIP) is the beneficial holder of shares of Common Stock with a value of at least $2,000 in market value and has held such shares for the one-year period prior to the date hereof, and (ii) CD Capital (in the name, and for the benefit, of CDIP) intends to hold shares of Common Stock with a value of at least $2,000 in market value through the date of the Annual Meeting.
     Exhibit A hereto includes the supporting statement of CD Capital and CDIP in favor of the Proposal (the “Supporting Statement”). The Supporting Statement describes the reasons for making the Proposal at the Annual Meeting.
     Exhibits A & B are hereby incorporated into and made a part of this letter. Accordingly, all matters disclosed in any part of this letter, including the Exhibits hereto, should be deemed disclosed for all purposes of this letter.

 

 

     Please direct any questions regarding the Proposal to the undersigned at (312) 803-5010.
[signature page follows]

 

 

         
  CD CAPITAL MANAGEMENT LLC
 		  
  By:   ZPII, L.P., its Managing Member    
     
  By:   C3 Management Inc., its General Partner    
       
  BY:   /s/ John Ziegelman    
    Name:   John Ziegelman   
    Title:   President   
 
  CD INVESTMENT PARTNERS LTD.
 		  
  By:   CD Capital Management LLC, its    
    investment manager   
     
  By:   ZPII, L.P., its Managing Member    
     
  By:   C3 Management Inc., its General Partner    
     
  By:   /s/ John Ziegelman    
    Name:   John Ziegelman   
    Title:   President   
 
cc:    President, Meadow Valley Corporation
Corporate Secretary, Meadow Valley Corporation
4602 East Thomas Road
Phoenix, Arizona 85018
[Signature page]

 

 

EXHIBIT A
Stockholder Proposal and Supporting Statement.
RESOLVED, that the Amended and Restated Bylaws of Meadow Valley Corporation be amended by inserting the following new Article XXXV at the end:
“ARTICLE XXXV
SPECIAL STOCKHOLDER MEETINGS
Notwithstanding anything to the contrary contained in these Bylaws, special meetings of the stockholders of the Corporation for any purpose permitted by law may be called at any time by written demand(s) of holders of at least 10% of the common stock issued and outstanding. Such demands shall be delivered to the Secretary of the Corporation and shall state the purpose of such meeting. Such meeting shall be held within sixty days after the receipt of such demands in the aggregate have been delivered to the Corporation and notice of such meeting shall be provided in accordance with Article V hereof. This Article XXXV may not be amended, altered or repealed in whole or in part, and no other amendment or alteration to these Bylaws may be made that adversely affects the rights of stockholders under this Article XXXV, in each case, unless holders of at least a majority of the common stock issued and outstanding approve such amendment, alteration or repeal. The Board of Directors shall not take any action that adversely affects, or is inconsistent with, the rights of stockholders under this Article XXXV.”
SUPPORTING STATEMENT:
In 2007, Meadow Valley stockholders were deprived of an important right without their consent when the Board of Directors amended the Bylaws to remove our right to call stockholder meetings. As a result, we have lost the ability to have our voice heard immediately when we think a matter is sufficiently important to merit our collective consideration. Thus, our Board, which, as of December 26, 2007, has less than an aggregate 0.4% stock ownership stake, is not quickly answerable to stockholders through the stockholder meeting process. This is critical in change in control situations where stockholders should be able to express their views through special meetings. We believe the inability of stockholders to call a meeting, as well as other amendments to the Bylaws adopted this year, result in entrenchment of the Board and management from the company’s true owners, the stockholders.
This proposal establishes a process by which holders of at least 10% of our stock may demand a special meeting be held within sixty days. We believe a 10% threshold strikes a reasonable balance between restoring stockholder rights and avoiding excessive distraction at our company.
Prominent institutional investors support a shareholder right to call special meetings.

 

 

Fidelity and Vanguard are among the mutual funds that have supported this right. The 2007 proxy voting guidelines of many public employee pension funds, including the NYC Employees Retirement System and the Connecticut Retirement Plans, favor preserving this right. Governance ratings services, such as ISS and Glass Lewis, take special meeting rights into account when assigning company ratings.
Vote YES on this proposal to re-establish the right of stockholders to call special meetings.

 

 

EXHIBIT B
LIST OF SECURITIES TRANSACTIONS
                         
Ticker   Trade Date   Activity   Number of Shares   Price per Share ($)
MVCO
   2/27/2006   PURCHASE     7,500       15.0742  
MVCO
   2/28/2006   PURCHASE     23,000       15.4759  
MVCO
   3/1/2006   PURCHASE     2,000       15.1467  
MVCO
   3/17/2006   PURCHASE     2,500       13.8979  
MVCO
   4/12/2006   PURCHASE     10,000       11.5923  
MVCO
   5/2/2006   PURCHASE     10,000       11.1244  
MVCO
   5/2/2006   PURCHASE     10,000       10.9884  
MVCO
   5/11/2006   PURCHASE     3,500       11.8188  
MVCO
   5/12/2006   PURCHASE     2,000       11.5133  
MVCO
   5/17/2006   PURCHASE     1,200       10.8695  
MVCO
   5/18/2006   PURCHASE     6,500       10.8448  
MVCO
   5/19/2006   PURCHASE     1,800       10.56  
MVCO
   6/5/2006   PURCHASE     2,355       11.3653  
MVCO
   6/5/2006   SALE     (299 )     11.46  
MVCO
   6/7/2006   PURCHASE     1,200       11.1717  
MVCO
   6/8/2006   PURCHASE     4,000       11.1913  
MVCO
   6/9/2006   PURCHASE     2,000       11.093  
MVCO
   6/12/2006   PURCHASE     20,744       10.4407  
MVCO
   6/13/2006   PURCHASE     5,150       10.2801  
MVCO
   6/15/2006   PURCHASE     200       10.71  
MVCO
   6/16/2006   PURCHASE     2,392       10.9171  
MVCO
   6/28/2006   PURCHASE     1,000       11.11  
MVCO
   6/29/2006   PURCHASE     100       11.09  
MVCO
   6/30/2006   PURCHASE     7,000       11.3911  
MVCO
   7/5/2006   PURCHASE     24,000       11.5145  
MVCO
   7/28/2006   PURCHASE     100       10.86  
MVCO
   8/2/2006   PURCHASE     5,000       10.4310  
MVCO
   8/23/2006   PURCHASE     13,900       9.5806  
MVCO
   8/24/2006   PURCHASE     900       9.54  
MVCO
   8/25/2006   SALE     (100 )     9.63  
MVCO
   8/29/2006   PURCHASE     1,000       9.8755  
MVCO
   8/31/2006   PURCHASE     4,800       9.9998  
MVCO
   9/1/2006   PURCHASE     2,500       10.0300  
MVCO
   9/13/2006   PURCHASE     1,075       10.0335  
MVCO
   9/14/2006   PURCHASE     1,000       9.84  
MVCO
   9/15/2006   PURCHASE     3,300       9.8467  
MVCO
   9/18/2006   PURCHASE     500       9.95  
MVCO
   9/19/2006   PURCHASE     6,000       9.8596  
MVCO
   9/20/2006   PURCHASE     5,921       10.0015  
MVCO
   9/22/2006   PURCHASE     3,262       10.1383  
MVCO
   10/02/2006   PURCHASE     1,000       9.756  
MVCO
   10/03/2006   PURCHASE     1,000       9.95  
MVCO
   10/04/2006   PURCHASE     4,000       9.9378  

 

 

                         
Ticker   Trade Date   Activity   Number of Shares   Price per Share ($)
MVCO
   10/06/2006   PURCHASE     100       9.94  
MVCO
   10/17/2006   PURCHASE     4,900       10.8143  
MVCO
   10/24/2006   PURCHASE     5,000       9.8  
MVCO
   10/25/2006   PURCHASE     100       9.6  
MVCO
   10/31/2006   PURCHASE     5,300       10.6472  
MVCO
   11/07/2006   SALE     (1,000 )     10.2248  
MVCO
   11/10/2006   PURCHASE     500       10.15  
MVCO
   11/14/2006   PURCHASE     3,508       10.096  
MVCO
   11/16/2006   PURCHASE     600       10.3517  
MVCO
   11/22/2006   PURCHASE     3,340       10.2323  
MVCO
   11/29/2006   PURCHASE     500       10.25  
MVCO
   02/12/2007   PURCHASE     5,000       12.4  
MVCO
   02/14/2007   PURCHASE     4,700       12.4596  
MVCO
   02/21/2007   PURCHASE     378       12.25  
MVCO
   02/28/2007   PURCHASE     100       11.85  
MVCO
   03/08/2007   PURCHASE     16,205       12.6652  
MVCO
   03/12/2007   PURCHASE     2,700       12.6733  
MVCO
   03/13/2007   PURCHASE     100       12.38  
MVCO
   03/14/2007   PURCHASE     500       12.5  
MVCO
   03/30/2007   PURCHASE     5,000       12.95  
MVCO
   04/12/2007   PURCHASE     3,479       12.95  
MVCO
   04/26/2007   PURCHASE     800       13.06  
MVCO
   05/02/2007   SALE     (100 )     13.61  
MVCO
   05/03/2007   PURCHASE     100       13.31  
MVCO
   05/10/2007   PURCHASE     1,000       13  
MVCO
   05/11/2007   PURCHASE     5,000       12.7488  
MVCO
   05/11/2007   PURCHASE     1,398       12.628  
MVCO
   05/18/2007   PURCHASE     1,100       12.95  
MVCO
   05/22/2007   PURCHASE     2,800       13.0093  
MVCO
   05/24/2007   PURCHASE     1,000       13  
MVCO
   05/25/2007   PURCHASE     2,000       13.2478  
MVCO
   05/29/2007   PURCHASE     1,000       13.2641  
MVCO
   05/30/2007   PURCHASE     1,000       13.294  
MVCO
   05/30/2007   PURCHASE     1,800       13.282  
MVCO
   05/31/2007   PURCHASE     684       13.2117  
MVCO
   06/07/2007   PURCHASE     1,500       13.5967  
MVCO
   06/07/2007   PURCHASE     3,900       13.677  
MVCO
   06/08/2007   PURCHASE     800       13.6988  
MVCO
   06/13/2007   PURCHASE     1,500       13.4548  
MVCO
   06/15/2007   PURCHASE     2,000       13.2995  
MVCO
   06/15/2007   PURCHASE     5,000       13.294  
MVCO
   06/28/2007   SALE     (2,191 )     14.0722  
MVCO
   06/29/2007   SALE     (2,700 )     14.087  
MVCO
   07/12/2007   SALE     (500 )     14.034  
MVCO
   07/19/2007   PURCHASE     5,000       13.31  
MVCO
   07/30/2007   PURCHASE     4,205       12.5  
MVCO
   08/01/2007   PURCHASE     3,106       12.5949  
MVCO
   08/01/2007   SALE     (1,300 )     13.6385  
MVCO
   08/06/2007   SALE     (200 )     12.785  

 

 

                         
Ticker   Trade Date   Activity   Number of Shares   Price per Share ($)
MVCO
   08/10/2007   PURCHASE     2,199       12.8992  
MVCO
   08/14/2007   PURCHASE     400       12.65  
MVCO
   08/21/2007   PURCHASE     393       12.8176  
MVCO
   08/31/2007   SALE     (500 )     13.15  
MVCO
   09/17/2007   SALE     (292 )     12.6532  
MVCO
   09/18/2007   PURCHASE     1,392       12.5969  
MVCO
   09/26/2007   PURCHASE     2,000       11.8607  
MVCO
   09/27/2007   PURCHASE     100       12  
MVCO
   10/01/2007   PURCHASE     993       11.9001  
MVCO
   10/02/2007   PURCHASE     479       11.25  
MVCO
   10/04/2007   PURCHASE     2,050       11.6144  
MVCO
   10/05/2007   PURCHASE     1,500       11.8953  
MVCO
   10/09/2007   PURCHASE     4,500       12.3851  
MVCO
   10/10/2007   PURCHASE     4,300       11.7514  
MVCO
   10/12/2007   PURCHASE     2,198       11.9941  
MVCO
   10/12/2007   SALE     (100 )     11.8601  
MVCO
   10/12/2007   SALE     (200 )     11.8398  
MVCO
   10/17/2007   PURCHASE     10,177       12.0366  
MVCO
   10/18/2007   PURCHASE     1,500       11.9547  
MVCO
   10/19/2007   PURCHASE     2,400       11.75  
MVCO
   10/22/2007   PURCHASE     2,004       11.7236  
MVCO
   10/23/2007   PURCHASE     2,495       12.0273  
MVCO
   10/24/2007   PURCHASE     16,000       12.4013  
MVCO
   10/25/2007   PURCHASE     1,000       12.243  
MVCO
   11/05/2007   PURCHASE     7,010       12.5706  
MVCO
   11/06/2007   SALE     (200 )     13.25  
MVCO
   11/07/2007   SALE     (200 )     13.29  
MVCO
   11/13/2007   SALE     (200 )     13.48  
MVCO
   11/16/2007   PURCHASE     600       12.965  
MVCO
   11/20/2007   SALE     (700 )     12.8156  
MVCO
   11/28/2007   PURCHASE     1,900       12.7816  
MVCO
   11/30/2007   PURCHASE     17,598       12.678  
MVCO
   12/12/2007   PURCHASE     2,000       13.25  
MVCO
   12/13/2007   PURCHASE     600       12.75  
MVCO
   12/18/2007   PURCHASE     5,000       12.6  
MVCO
   12/20/2007   PURCHASE     795       12.5551  
MVCO
   12/21/2007   PURCHASE     4,929       12.8145  

 

 

GOLDMAN SACHS LETTER TO CD CAPITAL
[GOLDMAN, SACHS & CO. LETTERHEAD]
[GOLDMAN, SACHS & CO. LOGO]
FORM OF POSITION REPORT
CD Capital Management LLC
111 South Wacker Drive
Suite 3950
Chicago, IL 60606
December 27, 2007
Sirs,
Statement of Holdings: [Security], [CUSIP 583185-10-3]: (the “Security”)
Goldman, Sachs & Co. (“GSCO”) act as prime broker, custodian and/or lender to the fund and for the account listed below (the “Fund”). This will confirm that the Securities described below were reflected on GSCO’s book and records for the accounts of the applicable Fund on the date indicated:
Account : 002-36831-4
Dates December 26, 2007
Fund Name : CD Investment Partners, LTD
Trade Date Quantity : 401,832 shares
We also confirm that at least 227,848 shares of the Securities described above were reflected on GSCO’s book and records for the accounts of the applicable Fund on each day between 12/27/2006 and 12/26/2007.
Please note that to the extent financing was extended against any of the Securities during any of the applicable time periods, standard collateral arrangements may have resulted in transfers of such Securities pursuant to GSCO’s rights as a secured creditor, in which case the applicable Fund retained a contractual right against GSCO, as applicable, for the delivery of equivalent securities, with the result that one or more of the Funds may not have had the right to vote or exercise other indicia of ownership of the Securities, and that GSCO, as applicable, may have lent, sold or otherwise used the Securities.
Yours faithfully,
/s/ Kara Saxon
Managing Director
For and on behalf of
Goldman Sachs & Co.
Please note that we accept no responsibility or liability to you or any third party in connection with the contents of this letter. The foregoing information is disclosed to you for informational purposes only and should not be relied upon by you or any third party for any other purpose. The letter is based on information that we believe to be correct, however, the information is correct only as of the date stated and would need to be reconfirmed in respect of any other date. The above information lists purchases and sales cleared by us for the accounts and the dates indicated therein, along with certain additional information. Please note however that the official statement of your transactions and securities holdings is provided to you in the form of Goldman Sachs confirmations at the time of the transaction for transactions executed through Goldman Sachs, and monthly customer statements at the

 

 

end of each calendar month for all transactions cleared to your Goldman Sachs prime brokerage account. The attached is being provided at your request as a courtesy and is not an official report nor in a form customarily provided to our clients nor is it maintained in such a format by us as part of our official books and records. Goldman, Sachs & Co. has no independent regulatory requirement or duty to maintain, and the attached is not meant to be a substitute for, your or your funds’ official books and records, nor do we assume any responsibility for any regulatory compliance obligations to which you may be subject. We do not represent that this material is accurate, complete or up-to-date, nor suitable for your intended use and we do not accept liability for any losses or damages arising from your use of this information.

 

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