UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULES 13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
Ecology and Environment, Inc.
(Name of Issuer) |
Class A and Class B Common Stock
(Class B Common Stock is Convertible into
Class A Common Stock on a One-for-One Basis)
(Title of Class of Securities) |
278878 10 3
(CUSIP Number) |
Kevin S. Neumaier, President
368 Pleasant View Drive
Lancaster, NY 14086
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) |
September 8, 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 Rule 13d-1(e), 13d-1(f) or 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 Rule 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 Persons 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).
2
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Gerhard J. Neumaier |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
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4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Gerhard J. Neumaier With:
|
7. | Sole Voting Power |
Class A (2) (5) |
Class B (1) |
|||||
415,144 | 363,188 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (2) (5) |
Class B |
|||||
51,956 | -0- |
10. | Shared Dispositive Power (4) |
Class A (5) |
Class B (1) |
|||||
363,188 | 363,188 |
3
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Gerhard J. Neumaier: |
Class A (2) (3) (5) |
Class B (1) |
|||||
415,695 | 363,188 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (5) (6) |
Class B Common Stock (1) (6) |
|||||
14.9% | 21.8% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
Includes 23,201 shares of Class A Common Stock owned by Mr. Gerhard J. Neumaiers Individual Retirement Account. Does not include any shares of Class A Common Stock or Class B Common Stock held by Mr. Gerhard J. Neumaiers adult children. Includes 9,793 shares which represents his share of the total Class A Common Stock owned by a Partnership in which Mr. Gerhard J. Neumaier is a general partner and has a 1/3 equity interest. |
(3) |
Includes 551 shares of Class A Common Stock owned by Mr. Gerhard J. Neumaiers spouse, as to which he disclaims beneficial ownership. |
(4) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(5) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(6) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
4
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Ronald L. Frank |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
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4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
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¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Ronald L. Frank With:
|
7. | Sole Voting Power |
Class A (2) (5) |
Class B (1) |
|||||
203,324 | 187,234 |
8. | Shared Voting Power |
Class A (3) (5) |
Class B (1) (3) |
|||||
3,806 | 3,806 |
9. | Sole Dispositive Power |
Class A (2) (3) (5) |
Class B |
|||||
16,090 | -0- |
10. | Shared Dispositive Power (4) |
Class A (5) |
Class B (1) |
|||||
191,040 | 191,040 |
5
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Ronald L. Frank: |
Class A (2) (3) (5) |
Class B (1) |
|||||
207,130 | 191,040 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (5) (6) |
Class B Common Stock (1) (6) |
|||||
7.9% | 11.5% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
Includes 2,640 shares of Class A Common Stock owned by Mr. Franks individual retirement account and 9,670 shares of Class A Common Stock owned by Mr. Franks 401(k) plan account. Does not include any shares owned by Mr. Franks children. |
(3) |
Includes 3,806 shares of Class B Common Stock owned by Mr. Franks former spouse as to which he disclaims beneficial ownership except for the right to vote the shares which he retains pursuant to an agreement with his former spouse. |
(4) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(5) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(6) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
6
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Gerald A. Strobel |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
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4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Gerald A. Strobel With:
|
7. | Sole Voting Power |
Class A (2) (4) |
Class B (1) |
|||||
218,652 | 218,652 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (2) (4) |
Class B (1) |
|||||
704 | 704 |
10. | Shared Dispositive Power (3) |
Class A (4) |
Class B (1) |
|||||
217,948 | 217,948 |
7
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Gerald A. Strobel: |
Class A (2) (4) |
Class B (1) |
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218,652 | 218,652 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (4) (5) |
Class B Common Stock (1) (5) |
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8.3% | 13.1% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
Includes 704 shares of Class B Common Stock held in equal amounts by Mr. Strobel as custodian for two of his children as to which he disclaims beneficial ownership. Does not include any shares of Class B Common Stock held by a Trust which one of his children created for which Mr. Strobel serves as Trustee. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(5) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
8
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Frank B. Silvestro |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
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4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Frank B. Silvestro With:
|
7. | Sole Voting Power |
Class A (3) |
Class B (1) |
|||||
290,783 | 290,783 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (3) |
Class B (1) |
|||||
199,373 | 199,373 |
10. | Shared Dispositive Power (2) |
Class A (3) |
Class B (1) |
|||||
91,410 | 91,410 |
9
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Frank B. Silvestro: |
Class A (3) |
Class B (1) |
|||||
290,783 | 290,783 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (3) (4) |
Class B Common Stock (1) (4) |
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10.7% | 17.4% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(3) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
10
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Harvey J. Gross |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
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4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Harvey J. Gross With:
|
7. | Sole Voting Power |
Class A (2) |
Class B (1) |
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61,950 | 52,500 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (2) |
Class B (1) |
|||||
61,950 | 52,500 |
10. | Shared Dispositive Power |
Class A |
Class B |
|||||
-0- | -0- |
11
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Harvey J. Gross: |
Class A (2) |
Class B (1) |
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52,500 | 52,500 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (2) (3) |
Class B Common Stock (1) (3) |
|||||
2.5% | 3.1% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
12
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Gerard A. Gallagher, Jr. |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
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4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Gerard A. Gallagher, Jr. With:
|
7. | Sole Voting Power |
Class A (2) |
Class B (1) |
|||||
62,606 | 62,265 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (2) |
Class B (1) |
|||||
62,606 | 62,265 |
10. | Shared Dispositive Power |
Class A |
Class B |
|||||
-0- | -0- |
13
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Gerard A. Gallagher, Jr.: |
Class A (2) |
Class B (1) |
|||||
62,606 | 62,265 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (2) (3) |
Class B Common Stock (1) (3) |
|||||
2.5% | 3.7% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
14
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Kevin S. Neumaier |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by him on this cover page. |
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3. | SEC Use Only
|
|||
4. | Source of Funds
Not Applicable. |
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5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Kevin S. Neumaier With:
|
7. | Sole Voting Power |
Class A (2)(3) |
Class B (1) |
|||||
129,060 | 101,354 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (2) (3) |
Class B |
|||||
27,706 | -0- |
10. | Shared Dispositive Power (5) |
Class A (2) |
Class B (1) |
|||||
101,354 | 101,354 |
15
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Kevin S. Neumaier: |
Class A (2) (3) (4) |
Class B (1) |
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130,211 | 101,354 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (2) (6) |
Class B Common Stock (1) (6) |
|||||
5.2% | 6.1% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Includes 9,793 shares which represents the Reporting Persons share of the total Class A Common Stock owned by a Partnership in which he is a general partner and has a 1/3 equity interest. |
(4) |
Includes 1,151 shares of Class A Common Stock owned by the Reporting Persons spouse as to which he disclaims beneficial ownership. |
(5) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. Certain of the Reporting Persons shares of Class B Common Stock are subject to this 1970 Agreement. |
(6) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
16
CUSIP No. 278878 10 3
1. | Names of Reporting Persons. I.R.S. Identification No. of above persons (entities only).
Kirsten Shelly |
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2. | Check the Appropriate Box if a Member of a Group (a) x* (b) ¨
* The Reporting Persons making this filing hold an aggregate of 1,378,374 shares of Class B Common Stock which in the aggregate represents 72.2% of the voting power of Ecology and Environment, Inc. (the Company) and affirm that they are members of a group only for the purposes described in the Introductory Statement of Items 1 7 of Schedule 13D. The Reporting Person on this cover page, however, is a beneficial owner of only the securities reported by her on this cover page. |
|||
3. | SEC Use Only
|
|||
4. | Source of Funds
Not Applicable. |
|||
5. | Check box if Disclosure of Legal Proceedings is Required Pursuant to Item 2(d) or 2(e).
|
¨ | ||
6. | Citizenship or Place of Organization
United States |
Number of Shares Beneficially Owned by Kirsten Shelly With:
|
7. | Sole Voting Power |
Class A (2) (3) |
Class B (1) |
|||||
119,523 | 98,602 |
8. | Shared Voting Power |
Class A |
Class B |
|||||
-0- | -0- |
9. | Sole Dispositive Power |
Class A (2) (3) |
Class B |
|||||
20,921 | -0- |
10. | Shared Dispositive Power (4) |
Class A (2) |
Class B (1) |
|||||
98,602 | 98,602 |
17
CUSIP No. 278878 10 3
11. | Aggregate Amount Beneficially Owned by Kirsten Shelly: |
Class A (2) (3) |
Class B (1) |
|||||
119,523 | 98,602 |
12. | Check box if the aggregate amount in Row 11 excludes certain shares.
|
¨ |
13. | Percent of Class Represented by Amount in Row 11: |
Class A Common Stock (2) (5) |
Class B Common Stock (1) (5) |
|||||
4.7% | 5.9% |
14. | Type of Reporting Person:
Individual |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Includes 9,793 shares which represents the Reporting Persons share of the total Class A Common Stock owned by a Partnership in which she is a general partner and has a 1/3 equity interest. |
(4) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. Certain of the Reporting Persons shares of Class B Common Stock are subject to this 1970 Agreement. |
(5) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
18
CUSIP No. 278878 10 3
Introductory Statement
This Schedule 13D is being filed jointly by the persons listed in Item 2 below, which persons are sometimes individually referred to as a Reporting Person and collectively as the Reporting Persons. The Reporting Persons are making this single, joint filing because they may be deemed to constitute a group within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the Exchange Act), with respect to the purpose described in Item 4 of this Schedule 13D and are thus eligible to make a joint filing under Rule 13d-1(k) promulgated under the Exchange Act. Except as expressly set forth in this Schedule 13D, each Reporting Person disclaims beneficial ownership of the Class A Common Stock and Class B Common Stock of the Company beneficially owned by any other Reporting Person. The Reporting Persons are participating in this group filing solely to identify themselves as a group under Section 13(d)(3) of the Exchange Act as it relates solely to the voting power of these Reporting Persons and the Company as a controlled company for purposes of Section 4350(c) of the NASDAQ Marketplace Rules based on the aggregate stock ownership of the Reporting Persons see Item 4 below for additional detail.
Item 1. | Security and Issuer. |
This Schedule 13D relates to the Class A Common Stock and Class B Common Stock (Class B Common Stock is convertible into Class A Common Stock on a one-for-one basis) of Ecology and Environment, Inc. (E&E or the Company), with its principal executive offices at 368 Pleasant View Drive, Lancaster, New York.
Item 2. | Identity and Background. |
This Schedule 13D is being filed jointly by the individual shareholders set forth below. All principal occupations are positions held with the Company.
Shareholder/Address |
Occupation/Employment | |
Gerhard J. Neumaier | Chairman of the Board of Directors and Director | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 | ||
Ronald L. Frank | Secretary, Executive Vice President of Finance and Director | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 | ||
Gerald A. Strobel | Director and Executive Vice President | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 |
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CUSIP No. 278878 10 3
Frank B. Silvestro | Director and Executive Vice President | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 | ||
Harvey J. Gross | Director | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 | ||
Gerard A. Gallagher, Jr. | Director | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 | ||
Kevin S. Neumaier | President and Chief Executive Officer | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 | ||
Kirsten Shelly | Part-Time Employee of the Company | |
368 Pleasant View Drive | ||
Lancaster, New York 14086 |
Each Reporting Person is a citizen of the United States. During the last five years, no Reporting Person has: (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) nor (ii) been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
Item 3. | Source and Amount of Funds or Other Consideration. |
As explained further in Item 4, this Schedule 13D is being filed at the request of representatives of NASDAQ Stock Market LLC (NASDAQ) to confirm the applicability of the controlled company exemption under Section 4350(c) of the NASDAQ Marketplace Rules and not to report any specific transaction.
Item 4. | Purpose of Transaction. |
The Reporting Persons are filing this Schedule 13D for the following purpose:
Formation of a Group and NASDAQ Controlled Company Exemption:
By filing this Schedule 13D, the Reporting Persons are providing notice (1) that they beneficially own and have owned, in the aggregate, securities of the Company controlling in excess of 50% of the voting power of the Company and (2) that, as a result, the Company is and has been a
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CUSIP No. 278878 10 3
controlled company pursuant to Section 4350(c)(5) of the NASDAQ Marketplace Rules. On September 8, 2008, the Company switched the listing of its common stock from the American Stock Exchange (AMEX) to the NASDAQ and, on that day, the Company began trading on the NASDAQ market. Prior to trading on the NASDAQ market, the Company availed itself of the controlled company exemption under the AMEX rules. AMEX and NASDAQ both define controlled company as a company of which more than 50% of the voting power is held by an individual, a group or another company. Although AMEX did not suggest that a Schedule 13D be filed in connection with the controlled company exemption, NASDAQ has requested that the Company do so. Therefore, responsive to requests of representatives of NASDAQ and NASDAQ Interpretative Material IM-4350-4, the Company is filing this Schedule 13D. The filing of this Schedule 13D is in no way an acknowledgment or admission that such a filing is required.
As a controlled company, the Company is not required to have a majority of independent directors on its board of directors or to comply with the NASDAQ corporate governance rules that require a majority of independent directors to determine the compensation of the CEO and other executive officers and select or recommend director nominees
The possible activities of the Reporting Persons are subject to change at any time, and there can be no assurance that a Reporting Person will take or refrain from taking any actions with respect to such persons shares. The Reporting Persons reserve the right to, among other things, purchase or dispose of shares of Class A and Class B Common Stock and/or other securities of E&E in accordance with the instruments and agreements governing such actions, to the extent that they are applicable.
Item 5. | Interest in Securities of the Issuer. |
(a) (b) The Reporting Persons, as members of a group, are deemed to beneficially own an aggregate of 1,378,374 shares of Class B Common Stock. This represents 82.7% of the total outstanding shares of Class B Common Stock.
The holders of Class A Common Stock are entitled, as a class, to elect two Directors and the holders of Class B Common Stock are entitled, as a class, to elect the remaining six Directors. With respect to all matters other than the election of directors or any matters for which class voting is required by law, holders of both classes of Common Stock vote or consent as a single class on all maters, with each share of Class A Common Stock having one-tenth vote per share and each share of Class B Common Stock having one vote per share.
Based on the relative voting rights of the Class B Common Stock, the Reporting Persons have or share 72.2% of the total outstanding voting power of the Company. The stock ownership of each Reporting Person is as follows:
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CUSIP No. 278878 10 3
(i) Gerhard J. Neumaier:
Amount Beneficially Owned: (1) (2) (3) (5) (6) | ||
Class A |
Class B | |
415,695 | 363,188 | |
Percent of Class: (1) (2) (4) (5) (6) | ||
Class A |
Class B | |
14.9% | 21.8% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) (5) | ||
Class A |
Class B | |
415,144 | 363,188 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (2) (5) | ||
Class A |
Class B | |
51,956 | -0- | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
363,188 | 363,188 |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
(5) |
Includes 23,201 shares of Class A Common Stock owned by Mr. Gerhard J. Neumaiers Individual Retirement Account. Does not include any shares of Class A Common Stock or Class B Common Stock held by Mr. Gerhard J. Neumaiers adult children. Includes 9,793 shares which represents his share of the total Class A Common Stock owned by a Partnership in which Mr. Gerhard J. Neumaier is a general partner and has a 1/3 equity interest. |
(6) |
Includes 551 shares of Class A Common Stock owned by Mr. Gerhard J. Neumaiers spouse, as to which he disclaims beneficial ownership. |
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CUSIP No. 278878 10 3
(ii) Ronald L. Frank:
Amount Beneficially Owned: (1) (2) (3) (5) (6) | ||
Class A |
Class B | |
207,130 | 191,040 | |
Percent of Class: (1) (2) (4) (5) (6) | ||
Class A |
Class B | |
7.9% | 11.5% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) (5) | ||
Class A |
Class B | |
203,324 | 187,234 | |
Shared Power to Vote or to Direct the Vote: (1) (2) (6) | ||
Class A |
Class B | |
3,806 | 3,806 | |
Sole Power to Dispose or to Direct the Disposition of: (2) (5) (6) | ||
Class A |
Class B | |
16,090 | -0- | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) (6) | ||
Class A |
Class B | |
191,040 | 191,040 |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
(5) |
Includes 2,640 shares of Class A Common Stock owned by Mr. Franks individual retirement account and 9,670 shares of Class A Common Stock owned by Mr. Franks 401(k) plan account. Does not include any shares owned by Mr. Franks children. |
(6) |
Includes 3,806 shares of Class B Common Stock owned by Mr. Franks former spouse as to which he disclaims beneficial ownership except for the right to vote the shares which he retains pursuant to an agreement with his former spouse. |
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CUSIP No. 278878 10 3
(iii) Gerald A. Strobel:
Amount Beneficially Owned: (1) (2) (3) (5) | ||
Class A |
Class B | |
218,652 | 218,652 | |
Percent of Class: (1) (2) (4) (5) | ||
Class A |
Class B | |
8.3% | 13.1% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) (5) | ||
Class A |
Class B | |
218,652 | 218,652 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (1) (2) (5) | ||
Class A |
Class B | |
704 | 704 | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
217,948 | 217,948 |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
(5) |
Includes 704 shares of Class B Common Stock held in equal amounts by Mr. Strobel as custodian for two of his children as to which he disclaims beneficial ownership. Does not include any shares of Class B Common Stock held by a Trust which one of his children created for which Mr. Strobel serves as Trustee. |
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CUSIP No. 278878 10 3
(iv) Frank B. Silvestro:
Amount Beneficially Owned: (1) (2) (3) | ||
Class A |
Class B | |
290,783 | 290,783 | |
Percent of Class: (1) (2) (4) | ||
Class A |
Class B | |
10.7% | 17.4% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) | ||
Class A |
Class B | |
290,783 | 290,783 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
199,373 | 199,373 | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
91,410 | 91,410 |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
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CUSIP No. 278878 10 3
(v) Harvey J. Gross:
Amount Beneficially Owned: (1) (2) | ||
Class A |
Class B | |
52,500 | 52,500 | |
Percent of Class: (1) (2) (3) | ||
Class A |
Class B | |
2.5% | 3.1% | |
Sole Power to Vote or to Direct the Vote: (1) (2) | ||
Class A |
Class B | |
61,950 | 52,500 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (1) (2) | ||
Class A |
Class B | |
61,950 | 52,500 | |
Shared Power to Dispose or to Direct the Disposition of: | ||
Class A |
Class B | |
-0- | -0- |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
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CUSIP No. 278878 10 3
(vi) Gerard A. Gallagher, Jr.:
Amount Beneficially Owned: (1) (2) | ||
Class A |
Class B | |
62,606 | 62,265 | |
Percent of Class: (1) (2) (3) | ||
Class A |
Class B | |
2.5% | 3.7% | |
Sole Power to Vote or to Direct the Vote: (1) (2) | ||
Class A |
Class B | |
62,606 | 62,265 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (1) (2) | ||
Class A |
Class B | |
62,606 | 62,265 | |
Shared Power to Dispose or to Direct the Disposition of: | ||
Class A |
Class B | |
-0- | -0- |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
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CUSIP No. 278878 10 3
(vii) Kevin S. Neumaier:
Amount Beneficially Owned: (1) (2) (3) (5) (6) | ||
Class A |
Class B | |
130,211 | 101,354 | |
Percent of Class: (1) (2) (4) (5) (6) | ||
Class A |
Class B | |
5.2% | 6.1% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) (5) | ||
Class A |
Class B | |
129,060 | 101,354 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (2) (5) | ||
Class A |
Class B | |
27,706 | -0- | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
101,354 | 101,354 |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. Certain of the Reporting Persons shares of Class B Common Stock are subject to this 1970 Agreement. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
(5) |
Includes 9,793 shares which represents the Reporting Persons share of the total Class A Common Stock owned by a Partnership in which he is a general partner and has a 1/3 equity interest. |
(6) |
Includes 1,151 shares of Class A Common Stock owned by the Reporting Persons spouse as to which he disclaims beneficial ownership. |
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CUSIP No. 278878 10 3
(viii) Kirsten Shelly:
Amount Beneficially Owned: (1) (2) (3) (5) | ||
Class A |
Class B | |
119,523 | 98,602 | |
Percent of Class: (1) (2) (4) | ||
Class A |
Class B | |
4.7% | 5.9% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) (5) | ||
Class A |
Class B | |
119,523 | 98,602 | |
Shared Power to Vote or to Direct the Vote: | ||
Class A |
Class B | |
-0- | -0- | |
Sole Power to Dispose or to Direct the Disposition of: (1) (2) (5) | ||
Class A |
Class B | |
20,921 | 98,602 | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
98,602 | 98,602 |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Person is deemed to be the beneficial owner of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. Certain of the Reporting Persons shares of Class B Common Stock are subject to this 1970 Agreement. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
(5) |
Includes 9,793 shares which represents the Reporting Persons share of the total Class A Common Stock owned by a Partnership in which he is a general partner and has a 1/3 equity interest. |
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CUSIP No. 278878 10 3
(e) | Reporting Persons Group Total: |
Amount Beneficially Owned: (1) (2) (3) (5) (6) (7) (8) (9) (10) (11) (12) | ||
Class A |
Class B | |
1,497,100 | 1,378,374 | |
Percent of Class: (1) (2) (4) (5) (6) (7) (8) (9) (10) (11) (12) | ||
Class A |
Class B | |
39.4% | 82.7% | |
Sole Power to Vote or to Direct the Vote: (1) (2) (3) (5) (6) (7) (9) (10) | ||
Class A |
Class B | |
1,501,042 | 1,374,578 | |
Shared Power to Vote or to Direct the Vote: (1) (2) (3) (11) | ||
Class A |
Class B | |
3,806 | 3,806 | |
Sole Power to Dispose or to Direct the Disposition of: (1)(2)(3)(5)(6)(7) (9)(10)(11) | ||
Class A |
Class B | |
441,306 | 314,842 | |
Shared Power to Dispose or to Direct the Disposition of: (1) (2) (3) | ||
Class A |
Class B | |
1,063,542 | 1,063,542 | |
Total No. of Votes Outstanding as of 12/31/2008: (2) (4) | ||
Class A Votes (@ 1/10 per share): |
242,376.1 | |
Class B Votes (@1 per share): |
1,667,426.0 | |
Total Votes Outstanding: |
1,909,802.1 | |
Percentage of Total Votes Controlled by Reporting Persons: 72.2% | ||
(1,378,374 / 1,909,802.1 = 72.2%) |
(1) |
Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) |
The Reporting Persons are deemed to be the beneficial owners of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) |
Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
There are 2,423,761 shares of Class A Common Stock outstanding and 1,667,426 shares of Class B Common Stock outstanding as of December 31, 2008. |
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CUSIP No. 278878 10 3
(5) |
Includes 23,201 shares of Class A Common Stock owned by Mr. Gerhard J. Neumaiers Individual Retirement Account. Does not include any shares of Class A Common Stock or Class B Common Stock held by Mr. Gerhard J. Neumaiers adult children. Includes 9,793 shares which represents his share of the total Class A Common Stock owned by a Partnership in which Mr. Gerhard J. Neumaier is a general partner and has a 1/3 equity interest. |
(6) |
Includes 2,640 shares of Class A Common Stock owned by Mr. Franks individual retirement account and 9,670 shares of Class A Common Stock owned by Mr. Franks 401(k) plan account. Does not include any shares owned by Mr. Franks children. |
(7) |
Includes 704 shares of Class B Common Stock held in equal amounts by Mr. Strobel as custodian for two of his children as to which he disclaims beneficial ownership. Does not include any shares of Class B Common Stock held by a Trust which one of his children created for which Mr. Strobel serves as Trustee. |
(8) |
Includes 551 shares of Class A Common Stock owned by Mr. Gerhard J. Neumaiers spouse, as to which he disclaims beneficial ownership. |
(9) |
Includes 9,793 shares which represents Mr. Kevin S. Neumaiers share of the total Class A Common Stock owned by a Partnership in which he is a general partner and has a 1/3 equity interest. |
(10) |
Includes 9,793 shares which represents the Kirsten Shellys share of the total Class A Common Stock owned by a Partnership in which he is a general partner and has a 1/3 equity interest. |
(11) |
Includes 3,806 shares of Class B Common Stock owned by Mr. Franks former spouse as to which he disclaims beneficial ownership except for the right to vote the shares which he retains pursuant to an agreement with his former spouse. |
(12) |
Includes 1,151 shares of Class A Common Stock owned by the Kevin S. Neumaiers spouse as to which he disclaims beneficial ownership. |
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CUSIP No. 278878 10 3
(c) | Transactions in the last 60 days: |
(i) On December 19, 2008 Ronald L. Frank sold 200 shares of Class A Common Stock through his 401(k) plan.
(ii) On January 12, 2009 Ronald L. Frank sold 200 shares of Class A Common Stock through his 401(k) plan.
(d) | Not Applicable |
(e) | Not Applicable |
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
(1) | Class B Stock is convertible into Class A Stock on a one-for-one basis. |
(2) | The Reporting Persons are deemed to be the beneficial owners of securities that may be acquired within 60 days through the exercise of exchange or conversion rights. The shares of Class A Common Stock issuable upon conversion by any such shareholder are not included in calculating the number of shares or percentage of Class A Common Stock beneficially owned by any other Reporting Person. |
(3) | Messrs. Gerhard J. Neumaier, Silvestro, Frank and Strobel entered into a Stockholders Agreement in 1970 which governs the sale of certain shares of common stock owned by them, the former spouse of one of the individuals and the children of those individuals. The agreement provides that prior to accepting a bona fide offer to purchase all or any part of their shares, each party must first allow the other members to the agreement the opportunity to acquire on a pro rata basis, with right of over-allotment, all of such shares covered by the offer on the same terms and conditions proposed by the offer. |
(4) |
Under the January 9, 1987 Amendment to the Certificate of Incorporation of the Company, the Class A and Class B stockholders have one vote per vote and 1/10 votes per vote, respectively, subject to the following: |
a. | Holders of Class A Common Stock are entitled to elect 25% of the Board of Directors so long as the number of outstanding shares of Class A Common Stock is at least 10 percent of the total number of outstanding shares of both classes of stock (i.e. at least 10% of 4,091,187 or 409,118.7 shares). If the number of outstanding shares of Class A Common Stock is less than 10%, the total number of outstanding shares of Class A and Class B, then the holders of Class A Common Stock and Class B Common Stock vote together for the directors, where the Class A Common Stock has |
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one-tenth ( 1/10) vote per share and the holders of Class B Common Stock have one (1) vote per share. |
b. |
Holders of Class B Common Stock continue to have super majority voting and elect a majority of directors so long as the number of outstanding shares of Class B Common Stock is at least 12 1/2% of the combined number of outstanding shares of both classes of Common Stock (i.e. at 12 1/2% of 4,091,187 shares or a minimum of 511,399 shares need to be Class B Common Stock. If the number of outstanding shares of Class B Common Stock falls below 12 1/2%, then the directors not elected by the holders of Class A Common Stock are elected by holders of both classes of Common Stock, with the holders of Class A Common Stock having one-tenth ( 1/10) vote per share and the holders of Class B Common Stock having one (1) vote per share. |
Item 7. | Material to be Filed as Exhibits. |
EXHIBIT INDEX
Exhibit 1 | Stockholders Agreement by and among Gerhard J. Neumaier, Frank B. Silvestro, Ronald L. Frank and Gerald A. Strobel dated May 12, 1970.* | |
Exhibit 2 | Joint Filing Agreement dated February 5, 2009 by and among the Reporting Persons.** | |
Exhibit 3 | January 9, 1987 Amendment to the Certificate of Incorporation of the Company.* |
* | Filed as exhibits to the Companys Registration Statement on Form S-1, as amended by Amendment Nos. 1 and 2 (Registration No. 33-11543) and incorporated herein by reference. |
** | Filed herewith. |
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
/s/ Gerhard J. Neumaier |
February 5, 2009 | |
Gerhard J. Neumaier | ||
/s/ Ronald L. Frank |
February 5, 2009 | |
Ronald L. Frank | ||
/s/ Gerald A. Strobel |
February 5, 2009 | |
Gerald A. Strobel | ||
/s/ Frank B. Silvestro |
February 5, 2009 | |
Frank B. Silvestro | ||
/s/ Harvey J. Gross |
February 5, 2009 | |
Harvey J. Gross | ||
/s/ Gerard A. Gallagher, Jr. |
February 5, 2009 | |
Gerard A. Gallagher, Jr. | ||
/s/ Kevin S. Neumaier |
February 5, 2009 | |
Kevin S. Neumaier | ||
/s/ Kirsten Shelly |
February 5, 2009 | |
Kirsten Shelly |