**See Item 5.
The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned (“Amendment No. 1”). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein.
| Item 2. | Identity and Background. |
Item 2 is hereby amended and restated to read as follows:
(a) This statement is filed by Western Investment LLC, a Delaware limited liability company (“WILLC”), Western Investment Hedged Partners L.P., a Delaware limited partnership (“WIHP”), Western Investment Total Return Partners L.P., a Delaware limited partnership (“WITRP”), Arthur D. Lipson (together with WILLC, WIHP and WITRP, the “Western Entities”), Benchmark Plus Institutional Partners, L.L.C., a Delaware limited liability company (“BPIP”), Benchmark Plus Partners, L.L.C., a Delaware limited liability company (“BPP”), Benchmark Plus Management, L.L.C., a Delaware limited liability company (“BPM”), Scott Franzblau, Robert Ferguson (together with BPIP, BPP, BPM and Mr. Franzblau, the 220;Benchmark Entities”), Neil H. Chelo and Robert A. Wood. Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.”
WILLC provides recommendations from time to time to BPIP and BPP with respect to purchases and sales of Shares of the Issuer, pursuant to an oral agreement between WILLC and BPIP and WILLC and BPP.
WILLC has sole voting and investment power over WIHP’s and WITRP’s security holdings and Mr. Lipson, in his role as the managing member of WILLC, controls WILLC’s voting and investment decisions. BPM is the managing member of each of BPIP and BPP, and Messrs. Franzblau and Ferguson, in their roles as managing members of BPM, have sole voting and investment control over BPIP’s and BPP’s security holdings.
Each of the Reporting Persons is party to that certain Joint Filing and Solicitation Agreement as further described in Item 6. Accordingly, the Reporting Persons are hereby filing a joint Schedule 13D.
(b) The principal business address of each of WILLC, WIHP, WITRP and Mr. Lipson is 7050 S. Union Park Center, Suite 590, Midvale, Utah 84047.
The principal business address of each of BPIP, BPP, BPM, Mr. Franzblau, Mr. Ferguson and Mr. Chelo is 820 A Street, Suite 700, Tacoma, Washington 98402.
The principal business address of Professor Wood is c/o Fogelman College of Business & Economics, The University of Memphis, Memphis, Tennessee 38152.
(c) The principal business of WILLC is acting as the general partner of each of WIHP and WITRP. The principal occupation of Mr. Lipson is acting as managing member of WILLC. The principal business of each of WIHP and WITRP is acquiring, holding and disposing of investments in various companies.
The principal business of each of BPIP and BPP is acquiring, holding and disposing of investments in various companies. The principal business of BPM is acting as the managing member of each of BPIP and BPP. The principal occupation of Mr. Ferguson is acting as a managing member of BPM. The principal occupation of Mr. Franzblau is acting as a managing member of BPM.
The principal occupation of Mr. Chelo is serving as Director of Research of BPM.
The principal occupation of Professor Wood is Emeritus Professor of Finance at the University of Memphis.
(d) No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
(f) Messrs. Lipson, Ferguson, Franzblau and Chelo and Professor Wood are citizens of the United States of America.
| Item 3. | Source and Amount of Funds or Other Consideration. |
Item 3 is hereby amended and restated to read as follows:
The aggregate purchase price of the 681,166.9345 Shares beneficially owned by WILLC is approximately $6,525,753. The Shares beneficially owned by WILLC consist of 406.9345 Shares, 400 of which were acquired with WILLC’s working capital and 6.9345 of which were acquired through the Issuer’s dividend repurchase plan,, 346,000 Shares that were acquired with WIHP’s working capital and 334,760 Shares that were acquired with WITRP’s working capital.
The aggregate purchase price of the 283,364 Shares beneficially owned by BPM is approximately $2,719,356. The Shares beneficially owned by BPM consist of 195,828 Shares that were acquired with BPIP’s working capital and 87,536 Shares that were acquired with BPP’s working capital.
| Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
WILLC is seeking representation on the Issuer’s Board of Directors (the “Board”). On April 26, 2010, WILLC delivered a letter to the Corporate Secretary of the Issuer nominating Neil H. Chelo, Arthur D. Lipson and Robert A. Wood to be elected to the Board at the 2010 annual meeting of shareholders of the Issuer, or any other meeting of shareholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “2010 Annual Meeting”).
| Item 5. | Interest in Securities of the Issuer. |
Item 5(a) is hereby amended and restated to read as follows:
(a) The aggregate percentage of Shares reported owned by each person named herein is based upon 15,407,000 Shares outstanding, which is the total number of Shares outstanding as of December 31, 2009, as reported in the Issuer’s Certified Shareholder Report on Form N-CSR, filed with the Securities and Exchange Commission on March 4, 2010.
As of the close of business on April 27, 2010, WIHP and WITRP beneficially owned 346,000 and 334,760 Shares, respectively, constituting approximately 2.2% and 2.2%, respectively, of the Shares outstanding.
As the general partner of each of WIHP and WITRP, WILLC may be deemed to beneficially own the 680,760 Shares owned in the aggregate by WIHP and WITRP, constituting approximately 4.4% of the Shares outstanding, in addition to the 406.9345 Shares it holds directly.
As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 681,166.9345 Shares beneficially owned by WILLC, constituting approximately 4.4% of the Shares outstanding. As members of a group for the purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Western Entities may be deemed to beneficially own the 283,364 Shares owned by the other Reporting Persons. The Western Entities disclaim beneficial ownership of such Shares.
As of the close of business on April 27, 2010, BPIP and BPP beneficially owned 195,828 and 87,536 Shares, respectively, constituting approximately 1.3% and less than 1%, respectively, of the Shares outstanding. As the managing member of each of BPIP and BPP, BPM may be deemed to beneficially own the 283,364 Shares owned in the aggregate by BPIP and BPP, constituting approximately 1.8% of the Shares outstanding. As managing members of BPM, each of Messrs. Franzblau and Ferguson may be deemed to beneficially own the 283,364 Shares beneficially owned by BPM, constituting approximately 1.8% of the Shares outstanding. As members of a group for the purposes of Rule 13d-5(b)(1) of the Exchange Act, the Benchmark Entities may be deemed to beneficially own the 681,166.9345 Shares owned by the other Reporting Pe rsons. The Benchmark Entities disclaim beneficial ownership of such Shares.
Mr. Chelo and Professor Wood do not own directly any Shares. As members of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, each of Mr. Chelo and Professor Wood may be deemed to beneficially own the 964,530.9345 Shares beneficially owned in the aggregate by the other Reporting Persons. Each of Mr. Chelo and Professor Wood disclaims beneficial ownership of such Shares.
Item 5(c) is hereby amended and restated to read as follows:
(c) Schedule A annexed hereto lists all transactions in securities of the Issuer during the past sixty days by the Reporting Persons. All of such transactions were effected in the open market, unless otherwise noted.
| Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended to add the following:
On April 26, 2010, the Reporting Persons entered into a Joint Filing and Solicitation Agreement (the “Joint Filing and Solicitation Agreement”) in which, among other things, (a) the parties agreed to the joint filing and solicitation on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required under applicable securities laws and (b) the parties agreed to form the group for the purpose of soliciting proxies or written consents for the election of the persons nominated by WILLC to the Issuer’s Board at the 2010 Annual Meeting and for soliciting stockholder support for the 14a-8 Proposal and for the purpose of taking all other actions incidental to the foregoing. The Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
Pursuant to letter agreements, WILLC has agreed to indemnify Mr. Chelo and Professor Wood against any and all claims of any nature arising from the Solicitation and any related transactions. A form of the indemnification letter agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
| Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended to add the following exhibits:
| | 99.1 | Joint Filing and Solicitation Agreement by and among Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Total Return Partners L.P., Arthur D. Lipson, Benchmark Plus Institutional Partners, L.L.C., Benchmark Plus Partners, L.L.C., Benchmark Plus Management, L.L.C., Robert Ferguson, Scott Franzblau, Neil H. Chelo and Robert A. Wood, dated April 26, 2010. |
| | 99.2 | Form of Indemnification Agreement. |
After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
| Dated: April 28, 2010 | WESTERN INVESTMENT LLC |
| | | |
| | By: | |
| | | Name: | Arthur D. Lipson |
| | | Title: | Managing Member |
| | WESTERN INVESTMENT HEDGED PARTNERS L.P. |
| | | |
| | By: | Western Investment LLC |
| | | General Partner |
| | | |
| | By: | |
| | | Name: | Arthur D. Lipson |
| | | Title: | Managing Member |
| | WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P. |
| | | |
| | By: | Western Investment LLC |
| | | General Partner |
| | | |
| | By: | |
| | | Name: | Arthur D. Lipson |
| | | Title: | Managing Member |
| | |
| | ARTHUR D. LIPSON Individually and as Attorney-In-Fact for Neil H. Chelo and Robert A. Wood |
| | BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C. |
| | | |
| | By: | Benchmark Plus Management, L.L.C. |
| | | Managing Member |
| | | |
| | By: | |
| | | Name: | Robert Ferguson |
| | | Title: | Managing Member |
| | | |
| | By: | |
| | | Name: | Scott Franzblau |
| | | Title: | Managing Member |
| | BENCHMARK PLUS PARTNERS, L.L.C. |
| | | |
| | By: | Benchmark Plus Management, L.L.C. |
| | | Managing Member |
| | | |
| | By: | |
| | | Name: | Robert Ferguson |
| | | Title: | Managing Member |
| | | |
| | By: | |
| | | Name: | Scott Franzblau |
| | | Title: | Managing Member |
| | BENCHMARK PLUS MANAGEMENT, L.L.C. |
| | | |
| | By: | |
| | | Name: | Robert Ferguson |
| | | Title: | Managing Member |
| | | |
| | By: | |
| | | Name: | Scott Franzblau |
| | | Title: | Managing Member |
SCHEDULE A
Transactions in the Shares During the Past 60 Days
Date of Purchase | Shares of Common Stock Purchased | Price Per Share ($) |
| BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C. |
| 03/22/10 | 9,600 | | 10.2344 |
| 03/23/10 | 900 | | 10.2565 |
| 03/30/10 | 350 | | 10.2342 |
| 04/06/10 | 3,526 | | 10.3004 |
| 04/09/10 | 1,600 | | 10.3048 |
| 04/16/10 | 2,800 | | 10.3710 |
| 04/22/10 | 19,800 | | 10.4379 |
| 04/23/10 | 1,000 | | 10.4785 |
| 04/26/10 | 4,800 | | 10.5208 |
| BENCHMARK PLUS PARTNERS, L.L.C. |
| 03/22/10 | 4,858 | | 10.2355 |
| 03/23/10 | 400 | | 10.2704 |
| 03/31/10 | 5,078 | | 10.2047 |
* Shares acquired through the Issuer’s Dividend Repurchase Plan.
