The following constitutes Amendment No. 5 to the Schedule 13D filed by the undersigned (“Amendment No. 5”). This Amendment No. 5 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 Activism Partners LLC, a Delaware limited liability company (“WIAP”), Western Investment Total Return Partners L.P., a Delaware limited partnership (“WITRP”), Western Investment Total Return Fund Ltd., a Cayman Islands corporation (“WITRL”), Arthur D. Lipson (together with WILLC, WIHP, WIAP, WITRP and WITRL, 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 and Robert Ferguson (together with BPIP, BPP, BPM and Mr. Franzblau, the “Benchmark Entities”). 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, WIAP’s, WITRP’s and WITRL’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 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, WIAP, WITRP and Mr. Lipson is 7050 S. Union Park Center, Suite 590, Midvale, Utah 84047. The principal business address of WITRL is c/o dms Management, P.O. Box 31910, dms House, 20 Genesis Close, Grand Cayman KY1-1208, Cayman Islands. The officers and directors of WITRL and their principal occupations and business addresses are set forth on Schedule A annexed hereto and incorporated by reference in this Item 2.
The principal business address of each of BPIP, BPP, BPM, Mr. Franzblau and Mr. Ferguson is 820 A Street, Suite 700, Tacoma, Washington 98402.
(c) The principal business of WILLC is acting as the investment manager of WITRL, the managing member of WIAP and 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, WITRP, WIAP and WITRL 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.
(d) No Reporting Person, nor any person listed on Schedule A annexed hereto, has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) No Reporting Person, nor any person listed on Schedule A annexed hereto, 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 and Franzblau 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 950,037 Shares beneficially owned by WILLC is approximately $9,337,493. The Shares beneficially owned by WILLC consist of 406 Shares that were acquired with WILLC’s working capital, 346,000 Shares that were acquired with WIHP’s working capital, 279,877 Shares that were acquired with WIAP’s working capital and 323,754 Shares that were acquired with WITRP’s working capital..
The aggregate purchase price of the 493,502 Shares beneficially owned by BPM is approximately $4,951,698. The Shares beneficially owned by BPM consist of 405,966 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:
On April 4, 2011, WILLC, WIHP, WIAP, WITRP and WITRL (collectively, the “Western Funds”) announced they were commencing a partial cash tender offer for up to 800,000 Shares for a price (the “Offer Price”), net to the seller in cash (subject to applicable withholding taxes and any brokerage fees that may apply), without interest thereon, equal to 94.5% of the net asset value (“NAV”) per Share determined as of the close of the regular trading session of the New York Stock Exchange, on the Expiration Date (as defined below). The Press Release is attached as Exhibit 99.1 hereto and incorporated herein by reference.
The tender offer expires at midnight (one minute after 11:59 P.M.), New York City Time, on April 29, 2011, unless the tender offer is extended (the “Expiration Date”). If the Western Funds purchase all of the Shares they seek to purchase in the tender offer, then, after completion of the tender offer, the Western Funds will beneficially own approximately 11.4% of the outstanding Shares. The tender offer is subject to the terms and conditions set forth in the Offer to Purchase and in the related Letter of Transmittal, both of which are filed as exhibits to the Schedule TO filed by the Western Funds with the Securities and Exchange Commission on the date hereof (the “Schedule TO”). The foregoing description of the tender offer is only a summary, does not purport to be complete and is qualified in its entirety by reference to the Schedule TO and the exhibits thereto. The Schedule TO is listed as Exhibit 99.2 hereto and incorporated herein by reference.
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, 2010, as reported in the Issuer’s Certified Shareholder Report on Form N-CSR, filed with the Securities and Exchange Commission on March 9 , 2011.
As of the close of business on April 4, 2011, WIHP, WIAP and WITRP beneficially owned 346,000, 279,877 and 323,754 Shares, respectively, constituting approximately 2.2%, 1.8% and 2.1%, respectively, of the Shares outstanding.
As the general partner of each of WIHP and WITRP and the managing member of WIAP, WILLC may be deemed to beneficially own the 949,631 Shares owned in the aggregate by WIHP, WIAP and WITRP, constituting approximately 6.2% of the Shares outstanding, in addition to the 406 Shares it holds directly.
As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 950,037 Shares beneficially owned by WILLC, constituting approximately 6.2% 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 493,502 Shares owned by the other Reporting Persons. The Western Entities disclaim beneficial ownership of such Shares.
As of the close of business on April 4, 2011, BPIP and BPP beneficially owned 405,966 and 87,536 Shares, respectively, constituting approximately 2.6% 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 493,502 Shares owned in the aggregate by BPIP and BPP, constituting approximately 3.2% of the Shares outstanding. As managing members of BPM, each of Messrs. Franzblau and Ferguson may be deemed to beneficially own the 493,502 Shares beneficially owned by BPM, constituting approximately 3.2% 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 950,037 Shares owned by the other Reporting Persons. The Benchmark Entities disclaim beneficial ownership of such Shares.
Item 5(c) is hereby amended and restated to read as follows:
(c) Schedule B annexed hereto lists all transactions in securities of the Issuer since the filing of Amendment No. 4 to the Schedule 13D. All of such transactions were effected in the open market.
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 4, 2011, the Western Funds commenced a partial cash tender offer for up to 800,000 Shares, as described in further detail in Item 4.
On April 5, 2011, the Reporting Persons entered into a Joint Filing Agreement (the “Joint Filing Agreement”) in which the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. The Joint Filing Agreement is attached hereto as Exhibit 99.3 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 | Press Release issued by Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Partners L.P. and Western Investment Total Return Fund Ltd., dated April 4, 2011. |
| 99.2 | Schedule TO dated April 4, 2011, filed by Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Partners L.P., Western Investment Total Return Fund Ltd. and Arthur D. Lipson (filed by the foregoing with the Securities and Exchange Commission on April 4, 2011 (SEC File No. 005-84468), and incorporated herein by reference). |
| 99.3 | Joint Filing Agreement, dated April 5, 2011, by and among Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Partners L.P., Western Investment Total Return Fund Ltd., Arthur D. Lipson, Benchmark Plus Institutional Partners, L.L.C., Benchmark Plus Partners, L.L.C., Benchmark Plus Management, L.L.C., Scott Franzblau and Robert Ferguson. |
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 5, 2011 | 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 ACTIVISM PARTNERS LLC |
| | |
| By: | Western Investment LLC |
| | Managing Member |
| | |
| 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 |
|
| WESTERN INVESTMENT TOTAL RETURN FUND LTD. |
| | |
| By: | Western Investment LLC |
| | Investment Manager |
| | |
| By: | |
| | Name: | Arthur D. Lipson |
| | Title: | Managing Member |
|
| |
| ARTHUR D. LIPSON |
| 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
Directors and Officers of Western Investment Total Return Fund Ltd.
Name and Position | | Principal Occupation | | Principal Business Address | | Citizenship |
| | | | | | |
Don M. Seymour Director | | Businessperson dms Management Ltd. | | dms Management P.O. Box 31910 dms House, 20 Genesis Close, Grand Cayman KY1-1208, Cayman Islands | | Cayman Islands |
| | | | | | |
David Bree Director | | Businessperson dms Management Ltd. | | dms Management P.O. Box 31910 dms House, 20 Genesis Close, Grand Cayman KY1-1208, Cayman Islands | | Cayman Islands |
| | | | | | |
J.D. Clark & Co. Secretary | | Trust Company | | 2225 Washington Blvd. Ogden, Utah 84401 | | United States |
SCHEDULE B
Transactions in the Shares Since the Filing of Amendment No. 4 to the Schedule 13D
Date of Purchase | Shares of Common Stock Purchased | Price Per Share ($) |
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P. |
02/14/11 | 300 | | 10.9952 |
02/15/11 | 200 | | 11.0285 |
02/16/11 | 800 | | 10.9785 |
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C. |
02/16/11 | 7,475 | | 10.9453 |
02/17/11 | 7,917 | | 10.9929 |
02/18/11 | 24,810 | | 11.0657 |
02/22/11 | 2,175 | | 11.0876 |
02/23/11 | 2,338 | | 11.0756 |
02/24/11 | 4,980 | | 11.0697 |
02/25/11 | 20,800 | | 11.1467 |
02/28/11 | 15,300 | | 11.2035 |
03/01/11 | 3,589 | | 11.2053 |
03/17/11 | 1,400 | | 10.7939 |
03/30/11 | 734 | | 11.0161 |