The following constitutes Amendment No. 6 to the Schedule 13D filed by the undersigned (“Amendment No. 6”). This Amendment No. 6 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, Robert Ferguson (together with BPIP, BPP, BPM and Mr. Franzblau, the “Benchmark Entities”), Neil Chelo, Simon A. Lack, James R. Merchant and Richard A. Rappaport.
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 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, WIAP, WITRP, Mr. Lipson and Mr. Merchant 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 to Amendment No. 5 to the Schedule 13D (“Schedule A”) and incorporated by reference in this Item 2.
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 Mr. Rappaport is Cohne, Rappaport & Segal, P.C., 257 East 200 South, Suite 700, Salt Lake City, UT 84147.
The principal business address of Mr. Lack is SL Advisors, LLC, 210 Elmer Street, Westfield, N.J. 07090.
(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 occupation of Mr. Merchant is serving as the Chief Financial Officer and Chief Compliance Officer 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. The principal occupation of Mr. Chelo is serving as Director of Research of BPM.
The principal occupation of Mr. Rappaport is attorney.
The principal occupation of Mr. Lack is serving as the managing partner of SL Advisors, LLC, a registered investment advisor.
(d) No Reporting Person, nor any person listed on Schedule A, 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, 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, Chelo, Lack, Merchant and Rappaport 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 950,038.793 Shares beneficially owned by WILLC is approximately $9,337,513. 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 and 1.793 Shares held by WIHP that were acquired through the Issuer’s dividend repurchase plan, 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 (the “Tender Offer”) for up to 800,000 Shares for a 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 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 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”). 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 were filed as exhibits to the Schedule TO filed by the Western Funds with the Securities and Exchange Commission on April 4, 2011 (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.
On April 14, 2011, the Western Funds announced that they were amending the Tender Offer to increase the maximum number of Shares they seek to purchase in the Tender Offer from 800,000 to 1,000,000. Amendment No. 1 to the Schedule TO is listed as Exhibit 99.1 hereto and incorporated herein by reference.
WIHP is seeking representation on the Issuer’s Board of Trustees (the “Board”). On April 18, 2011, WIHP delivered letters to the Corporate Secretary of the Issuer nominating Neil Chelo, Simon A. Lack, James R. Merchant and Richard A. Rappaport (collectively, the “Nominees”) to be elected to the Board at the 2011 annual meeting of shareholders of the Issuer (including any other meeting of shareholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof, the “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 April 14, 2011, as reported in the Issuer’s Recommendation Statement on Schedule 14D-9, filed with the Securities and Exchange Commission on April 15, 2011.
As of the close of business on April 15, 2011, WIHP, WIAP and WITRP beneficially owned 346,001.793, 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 949,632.793 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 950,038.793 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 15, 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 950,038.793 Shares owned by the Western Entities. The Benchmark Entities disclaim beneficial ownership of such Shares.
None of Messrs. Chelo, Lack, Merchant or Rappaport directly own any Shares. Each of Messrs. Chelo, Lack, Merchant and Rappaport, as a member of a “group” with the other Reporting Persons for the purposes of Section 13(d)(3) of the Exchange Act is deemed the beneficial owner of the 1,443,540.793 Shares owned by the other members of the group. Each of Messrs. Chelo, Lack, Merchant and Rappaport disclaims beneficial ownership of such Shares.
Item 5(c) is hereby amended to add the following:
(c) On March 31, 2011, WIHP acquired 1.7930 Shares through the Issuer’s Dividend Repurchase Plan.
| 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 14, 2011, the Western Funds amended the Tender Offer as described in further detail in Item 4.
On April 18, 2011, 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 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 Nominees to the Board at the 2011 Annual Meeting and for the purpose of taking all other actions incidental to the foregoing. The Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference.
Pursuant to letter agreements, WILLC has agreed to indemnify each of the Nominees 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 99.3 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 | Amendment No. 1 to Schedule TO dated April 14, 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 14, 2011 (SEC File No. 005-84468), and incorporated herein by reference). |
| | 99.2 | Joint Filing and Solicitation Agreement, dated April 18, 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, Robert Ferguson, Neil Chelo, Simon A. Lack, James R. Merchant and Richard A. Rappaport. |
| | 99.3 | 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 18, 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 Individually and as Attorney-In-Fact for Neil Chelo, Simon A. Lack, James R. Merchant and Richard A. Rappaport |
| | 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 |
