Sec Form 13D Filing - Gunther Dale O. filing for Altabancorp (ALTA) - 2021-01-27

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Amendment No. 4

 

to

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

 

ALTABANCORP

(Name of Issuer)

 

 

Common Stock, par value $0.01 per share

(Title of Class of Securities)

 

 

712706209

(CUSIP Number)

 

 

Dale O. Gunther	Blaine C. Gunther
856 East 700 North	75 East 1010 North
American Fork, UT 84003	American Fork, UT 84003
(801) 592-1826	(801) 234-9620

 

The address for all other Reporting Persons is:

 

Marcus J. Williams

Buchalter APC

1000 Wilshire Blvd., Suite 1500

Los Angeles, CA 90017

(213) 891-5088

 

(Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications)

 

January 27, 2021

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-l(f) or 240.13d-l(g), check the following box. ¨

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

*

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).  

 

 

 

SCHEDULE 13D

 

Explanatory Note: This Amendment No. 3 (“Amendment”) to the beneficial ownership report on Schedule 13D filed by the Reporting Persons on June 10, 2020 (“Schedule 13D”) amends and supplements certain information set forth in the Schedule 13D. The Schedule 13D has previously been amended by Amendment No. 1 (July 22, 2020), Amendment No. 2 (January 14, 2021), and Amendment No. 3 (January 15, 2021). References herein to the Schedule 13D describe the initial filing as so amended. The Schedule 13D relates to shares of common stock of Altabancorp, a Utah corporation and a registered bank holding company, beneficially owned by the Reporting Persons identified in the Schedule 13D. Except as set forth herein, this Amendment does not modify any information previously set forth in the Schedule 13D. Capitalized terms used herein and not defined have the meanings assigned thereto in the Schedule 13D.

 

The purpose of this Amendment is to disclose certain recent developments identified in Item 4. The information herein is also being filed contemporaneously as definitive additional proxy soliciting materials (non-management) for reasons further described herein.

 

Item 4. Purpose of Transaction

 

Item 4 of the Schedule 13D is amended in its entirety to read as follows.

 

On January 27, 2021, Dale O. Gunther and Blaine C. Gunther, in their capacity as the designated representatives of the collective Reporting Persons, sent to the Board a letter in the form of Exhibit 99.5, responding to a press release issued by the registrant on January 19, 2021 (“Defensive Release”), filed as an exhibit to a Current Report on Form 8-K filed by the registrant on that same date. The text of the Reporting Persons’ January 27, 2021, letter is incorporated herein by reference. The Defensive Release postures itself as a response to previous attempts by the Reporting Persons to communicate to the registrant’s board of directors certain matters of concern to the Reporting Persons and, to the knowledge and belief of the Reporting Persons, to other shareholders of the Registrant.

 

The Reporting Persons’ January 27, 2021, letter is intended to identify a number of unanswered questions and to seek clarification of certain statements in the Defensive Release that the Reporting Persons believe may be misleading or inaccurate. Among those, the Defensive Release contains the following quotation:

 

“Members of our Board have had several meetings with the Gunther representatives since their original Schedule 13D filing in an attempt to ascertain the Gunther Family 13D Group’s specific areas of concern with the Company’s strategic plan. Our Board remains open to continuing those discussions with the Gunther representatives.”

 

Filed herewith as Exhibit 99.6 is a letter from Dale O. Gunther, and Blaine C. Gunther, the designated representatives of the Reporting Persons, to the registrant’s board of directors dated October 6, 2020, in which Mr. Gunther specifically requested a meeting with the full board of directors and offered, as a part of the agenda for that meeting, to answer the board’s questions about the Reporting Persons’ desire to address matters of concern to shareholders. Filed herewith as Exhibit 99.7 is a response from the registrant dated October 23, 2020, rejecting Mr. Gunther’s request, ostensibly on the grounds that such a discussion without a nondisclosure agreement would result in a violation of Regulation FD. (The designated representatives had neither requested nor agreed to receive nonpublic information that would be governed by Regulation FD, and the Family Members believe that the unstated primary purpose of the nondisclosure agreement was to impose a lengthy and highly objectionable standstill agreement that would serve only to further entrench the registrant’s board and management at the shareholders’ expense.) The designated representatives’ response letter, dated December 3, 2020, is filed herewith as Exhibit 99.8.

 

 

 

This exchange of letters is one of several similar exchanges that took place orally or in writing within the past 12 months. To contend that the registrant’s “[b]oard remains open to continuing those discussions,” at best mischaracterizes the board’s willingness to engage in a dialogue with the Reporting Persons. The shareholders’ concerns are perhaps best highlighted by the fact that, on November 20, 2020, the registrant announced that it had entered into amended and restated employment agreements with Chief Executive Officer Len Williams and Chief Financial Officer Mark Olson, each of which contained terms that were substantially more protective of management (and correspondingly more detrimental to the registrant) than similar arrangements that previously had been in effect. The Reporting Persons believe that the purpose of these arrangements was to expose the registrant to substantially greater financial obligations that would serve as a disincentive to further pressure from the Reporting Persons and that would decrease the likelihood of an unsolicited business combination, all to the detriment of the registrant’s stockholders and to the value of the registrant’s franchise.

 

The designated representatives’ January 27, 2021 letter follows up on two previous public communications from the Reporting Persons to the registrant’s board of directors. On January 14, 2021, the designated representatives sent a letter intended to reiterate to the Board certain concerns previously identified by the Reporting Persons, including increasingly serious apprehension about the effect of recent management decisions on the employees and customers of the Issuer’s wholly owned subsidiary, Altabank. In part as a result of these decisions and their attendant risks, and in part arising out of skepticism about management’s articulated growth strategy, the January 14 letter had recommended, among other things, that the Board conduct an objective evaluation of the strategic alternatives available to maximize the value of the Issuer to shareholders and other stakeholders.

 

On January 15, 2021, Reporting Person Paul R. Gunther tendered his resignation from the boards of directors of the registrant and Altabank.

 

The Reporting Persons intend to review their investment in the Issuer on a continuing basis. Subject to the Shareholder Agreement, the Reporting Persons may from time to time communicate, directly and indirectly, with the Board, members of management, other shareholders and third parties, including advisors and prospective acquirors, regarding operational, strategic, financial and governance matters relating to the Issuer, or to otherwise work or propose to work with management, the Board, other shareholders, and potentially third parties, in each case with a view to maximizing shareholder value. In connection therewith, and subject to and in compliance with, Regulation 14A of the Securities Exchange Act of 1934, as amended, the Reporting Persons may communicate with one or more of the foregoing parties with respect to the composition of the board of directors of the Issuer and/or with respect to the Issuer’s charter, bylaws or instruments corresponding thereto, or regarding instruments or actions that may impede the acquisition of control of the Issuer by any person. Without limiting the generality of the foregoing, the Reporting Persons are filing, contemporaneously with this Amendment, definitive additional proxy soliciting materials (non-issuer) containing information substantially similar to that set forth in this Amendment. The Reporting Persons specifically reserve the right to communicate with other shareholders regarding the voting of shares for or in opposition to the election of one or more of the registrant’s directors and/or for or against one or more other proposals that might be considered at the registrant’s 2021 annual meeting of shareholders.

 

Except as otherwise described in this Statement, none of the Reporting Persons currently has any plans or proposals that would result in or relate to any of the transactions or changes listed in Items 4(a) through 4(j) of Schedule 13D. However, as part of their ongoing evaluation of their investment and the Reporting Persons’ legacy of investment in and support for the Issuer as customers and employees, the Reporting Persons may consider such matters and, subject to applicable law, may formulate a plan with respect to such matters or make formal proposals to the Board of directors of the Issuer, other shareholders of the Issuer or other third parties regarding such matters.

 

The Reporting Persons reserve the right to acquire additional securities of the Issuer in the open markets, in privately negotiated transactions (which may be with the Issuer or with third parties) or otherwise, to dispose of all or a portion of their holdings of securities of the Issuer or to change their intention with respect to any or all of the matters referred to in this Item 4.

 

 

Item 7. Material to be Filed as Exhibits

Exhibit		Description
99.1		Shareholder Agreement (including agreement regarding joint filing in accordance with Exchange Act Rule 13d-1(k)(1))*
99.2		Letter from Dale O. Gunther and Blaine C. Gunther to Board of Directors of the Issuer dated January 13, 2021*
99.3		Letter from Paul R. Gunther to Board of Directors of the Issuer dated January 15, 2021*
99.4		Form of Indemnification Agreement between the Issuer and each of Jonathan B. Gunther and Paul R. Gunther (incorporated herein by reference to Exhibit 10.7 of the Issuer’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019)*
99.5		Letter from Dale O. Gunther and Blaine C. Gunther to Board of Directors of the Issuer dated January 27, 2021†
99.6		Letter from Dale O. Gunther and Blaine C. Gunther to Board of Directors of the Issuer dated October 6, 2020†
99.7		Letter from the Board of Directors of the Issuer to Dale O. Gunther and Blaine C. Gunther to Board dated October 23, 2020†
99.8		Letter from Dale O. Gunther and Blaine C. Gunther to Board of Directors of the Issuer dated December 3, 2020†
24.1		Form of Power of Attorney*
	* †	Previously Filed. Filed Herewith.

 

 

SIGNATURES

 

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.

 

Dated: January 27, 2021

 

 

	DALE O. GUNTHER
	/s/ Dale O. Gunther
	Dale O. Gunther
	DRG PARTNERS, LLC
	/s/ Dale O. Gunther
	Name:	Dale O. Gunther
	Title:	Manager
	THE RASPBERRY TRUST
	/s/ Matthew O. Cleary
	Name:	Matthew O. Cleary
	Title:	Trustee

 

 

	GUNTHER LEGACY TRUST
	/s/ Chantel Gunther
	Name:	Chantel Gunther
	Title:	Trustee
	/s/ W. Bruce Miller
	Name:	W. Bruce Miller
	Title:	Trustee
	/s/ Brett D. Christiansen
	Name:	Brett D. Christiansen
	Title:	Trustee
	/s/ Holli Gunther
	Name:	Holli Gunther
	Title:	Trustee
	/s/ Christian Gunther
	Name:	Christian Gunther
	Title:	Trustee
	/s/ Orrin Porter Rockwell
	Name:	Orrin Porter Rockwell
	Title:	Trustee
	/s/ Ryan Thompson
	Name:	Ryan Thompson
	Title:	Trustee
	RUSSEL GUNTHER
	/s/ Russel Gunther
	Russel Gunther
	JACOB GUNTHER
	/s/ Jacob Gunther
	Jacob Gunther
	HUDSON GUNTHER
	/s/ Hudson Gunther
	Hudson Gunther
	KIMBALL GUNTHER
	/s/ Kimball Gunther
	Kimball Gunther

 

 

	THE MARY G. MILLER REVOCABLE TRUST
	/s/ Mary G. Miller
	Name:	Mary G. Miller
	Title:	Trustee
	/s/ W. Bruce Miller
	Name:	W. Bruce Miller
	Title:	Trustee
	DEREK GUNTHER MILLER
	/s/ Derek Gunther Miller
	Derek Gunther Miller
	THE BRETT AND SUSAN CHRISTIANSEN FAMILY TRUST
	/s/ Brett David Christiansen
	Name: Brett David Christiansen
	Title:	Trustee
	/s/ Susan Gunther Christiansen
	Name:	Susan Gunther Christiansen
	Title:	Trustee
	CHRISTOPHER BRETT CHRISTIANSEN
	/s/ Christopher Brett Christiansen
	Christopher Brett Christiansen
	BRUCE O. GUNTHER
	/s/ Bruce O. Gunther
	Bruce O. Gunther
	JULIA MARIE ROCKWELL
	/s/ Julia Marie Rockwell
	Julia Marie Rockwell
	RUTH ANN GUNTHER THOMPSON
	/s/ Ruth Ann Gunther Thompson
	Ruth Ann Gunther Thompson

 

 

	THE PAUL GUNTHER FAMILY LLC
	/s/ Paul Gunther
	Name:	Paul Gunther
	Title:	Managing Member
	/s/ Lynda C. Gunther
	Name:	Lynda C. Gunther
	Title:	Managing Member
	JANELLE GUNTHER
	/s/ Janelle Gunther
	Janelle Gunther
	JORDAN GUNTHER
	/s/ Jordan Gunther
	Jordan Gunther
	JENESSA GUNTHER
	/s/ Jenessa Gunther
	Jenessa Gunther
	JILENNE GUNTHER
	/s/ Jilenne Gunther
	Jilenne Gunther
	JUSTUS ROBERT GUNTHER
	/s/ Justus Robert Gunther
	Justus Robert Gunther
	JESSE OMEGA GUNTHER
	/s/ Jesse Omega Gunther
	Jesse Omega Gunther

 

	JANSEN ORVILLE GUNTHER
	/s/ Jansen Orville Gunther
	Jansen Orville Gunther

 

 

	JULIA KELSEY GUNTHER
	/s/ Julia Kelsey Gunther
	Julia Kelsey Gunther
	THE PAUL AND MIRIAM THOMAS FAMILY LLC
	/s/ Paul Y. Thomas
	Name:	Paul Y. Thomas
	Title:	Managing Member
	/s/ Miriam G. Thomas
	Name:	Miriam G. Thomas
	Title:	Managing Member
	HETS, LLC
	/s/ Eric Neal Sabourin
	Name:	Eric Neal Sabourin
	Title:	Manager
	/s/ Heather Thomas-Sabourin
	Name:	Heather Thomas-Sabourin
	Title:	Manager

 

 

	BLAINE GUNTHER INVESTMENTS, L.C.
	/s/ Blaine C. Gunther
	Name:	Blaine C. Gunther
	Title:	Member
	/s/ Linda Gunther
	Name:	Linda Gunther
	Title:	Member
	/s/ Kristin Gunther Howard
	Name:	Kristin Gunther Howard
	Title:	Member
	/s/ Jonathan Blaine Gunther
	Name:	Jonathan Blain Gunther
	Title:	Member
	/s/ Anne Marie Gunther
	Name:	Anne Marie Gunther
	Title:	Member

 

 

	THE JOHN W. HOWARD II AND KRISTIN G. HOWARD TRUST FBO HOWARD FAMILY TRUST U/A JAN. 3, 2002
	/s/ John W. Howard II
	Name:	John W. Howard II
	Title:	Trustee
	/s/ Kristin G. Howard
	Name:	Kristin G. Howard
	Title:	Trustee
	JONATHAN BLAINE GUNTHER
	/s/ Jonathan Blaine Gunther
	Jonathan Blaine Gunther
	THE LIVING TRUST OF JONATHAN BLAINE GUNTHER AND LISA PETERSEN GUNTHER
	/s/ Jonathan Blaine Gunther
	Name:	Jonathan Blaine Gunther
	Title:	Trustee
	/s/ Lisa Petersen Gunther
	Name:	Lisa Petersen Gunther
	Title:	Trustee

 

 

	ANNE MARIE GUNTHER
	/s/ Anne Marie Gunther
	Anne Marie Gunther
	GUNTHER HOLDING COMPANY L.C.
	/s/ Dean Gunther
	Name:	Dean Gunther
	Title:	Manager

 

 

	THE GUNTHER FAMILY TRUST
	/s/ Dean Gunther
	Name:	Dean Gunther
	Title:	Trustee
	/s/ Deana Gunther
	Name:	Deana Gunther
	Title:	Trustee
	DEBRA GUNTHER HOLLEY
	/s/ Debra Gunther Holley
	Debra Gunther Holley
	STEPHEN H. HOLLEY
	/s/ Stephen H. Holley
	Stephen H. Holley
	RUPRECHT & CO., L.L.C.
	/s/ Stephen H. Holley
	Name:	Stephen H. Holley
	Title:	Member-Manager
	/s/ Debra Gunther Holley
	Name:	Debra Gunther Holley
	Title:	Member-Manager

 

 

	THE NEWBOLD FAMILY TRUST
	/s/ Jace Tyler Newbold
	Name:	Jace Tyler Newbold
	Title:	Trustee
	/s/ Rebecca Holley Newbold
	Name:	Rebecca Holley Newbold
	Title:	Trustee
	STEPHEN MARK HOLLEY
	/s/ Stephen Mark Holley
	Stephen Mark Holley

 

 

	BENJAMIN HOLLEY
	/s/ Benjamin Holley
	Benjamin Holley
	ANDREA HOLLEY
	/s/ Andrea Holley
	Andrea Holley

 

 

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