The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”). This Amendment No. 2 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 Fund Ltd., a Cayman Islands corporation (“WITRL”), Western Investment Total Return Partners L.P., a Delaware limited partnership (“WITRP”), Arthur D. Lipson (together with WILLC, WIHP, WIAP, WITRL 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 and Robert Ferguson (together with BPIP, BPP, BPM and Mr. Franzblau, the “Benchmark Entities”), Robert H. Daniels, Gregory R. Dube and William J. Roberts. 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 Amended and Restated 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 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 B annexed to the Schedule 13D dated and filed with the Securities and Exchange Commission on January 8, 2010, and incorporated by reference in this Item 2 (“Schedule B”).
The principal business address of each of BPIP, BPP, BPM, Mr. Franzblau and Mr. Ferguson is 820 A Street, Suite 700, Tacoma, Washington 98402.
The principal business address of Mr. Daniels is 1685 Eighth Avenue, San Francisco, California 94122.
The principal business address of Mr. Dube is 873 East Saddle River Road, Ho-Ho-Kus, New Jersey 07423.
The principal business address of Mr. Roberts is c/o The Atlantic Philanthropies (USA) Inc., 125 Park Avenue, 21st Floor, New York, New York 10017.
(c) The principal business of WILLC is acting as the managing member of WIAP, investment manager of WITRL 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 WIHP, WIAP, WITRL and WITRP is acquiring, holding and disposing of investments in various companies.
The principal occupation of Mr. Daniels is Emeritus Professor of Accounting at San Francisco State University and attorney.
The principal occupation of Mr. Dube is serving as Chairman of Roseheart Associates.
The principal occupation of Mr. Roberts is serving as the Director of U.S. Advocacy for the Atlantic Philanthropies (USA) Inc.
(d) No Reporting Person, nor any person listed on Schedule B 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 B 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, Franzblau, Ferguson, Daniels, Dube and Roberts 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 2,424,675 Shares beneficially owned by WILLC is approximately $29,111,753.
The Shares beneficially owned by WILLC consist of 500 Shares that were acquired with WILLC’s working capital, 718,495 Shares that were acquired with WIHP’s working capital, 273,700 Shares that were acquired with WIAP’s working capital, 715,822 Shares that were acquired with WITRP’s working capital and 716,158 Shares that were acquired with WITRL’s working capital.
The aggregate purchase price of the 9,547 Shares beneficially owned by BPM is approximately $116,801.
The aggregate purchase price of the 600 Shares beneficially owned by Mr. Daniels is approximately $17,596. The Shares beneficially owned by Mr. Daniels were acquired with personal funds.
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 25,800,109 Shares outstanding, which is the total number of Shares outstanding as of September 30, 2009, as reported in the Issuer’s Certified Shareholder Report of Registered Management Investment Companies on Form N-CSR, filed with the Securities and Exchange Commission on December 3, 2009.
As of the date hereof, WIHP, WIAP, WITRP and WITRL beneficially owned 718,495, 273,700, 715,822 and 716,158 Shares, respectively, representing approximately 2.8%, 1.1%, 2.8% and 2.8%, respectively, of the Shares outstanding.
As the managing member of WIAP, the investment manager of WITRL and the general partner of each of WIHP and WITRP, WILLC may be deemed to beneficially own the 2,424,175 Shares owned in the aggregate by WIHP, WIAP, WITRP and WITRL, constituting approximately 9.4% of the Shares outstanding, in addition to the 500 Shares it holds directly.
As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 2,424,675 Shares beneficially owned by WILLC, constituting approximately 9.4% 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 10,147 Shares owned by the other Reporting Persons. The Western Entities disclaim beneficial ownership of such Shares.
As of the date hereof, BPIP and BPP beneficially owned 3,900 and 5,647 Shares, respectively, constituting less than 1% 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 9,547 Shares owned in the aggregate by BPIP and BPP, constituting less than 1% of the Shares outstanding.
As managing members of BPM, each of Messrs. Franzblau and Ferguson may be deemed to beneficially own the 9,547 Shares beneficially owned by BPM, constituting less than 1% 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 2,425,275 Shares owned by the other Reporting Persons. The Benchmark Entities disclaim beneficial ownership of such Shares.
As of the date hereof, Mr. Daniels directly owns 600 Shares. As a member of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, Mr. Daniels may be deemed to beneficially own the 2,434,222 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Daniels disclaims beneficial ownership of such Shares.
Neither Messrs. Dube nor Roberts owns directly any Shares. As members of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, each of Messrs. Dube and Roberts may be deemed to beneficially own the 2,434,822 Shares beneficially owned in the aggregate by the other Reporting Persons. Each of Messrs. Dube and Roberts disclaims beneficial ownership of such Shares.
Item 5(c) is hereby amended to add the following:
(c) Schedule A annexed hereto lists all transactions in securities of the Issuer by WITRL since the filing of Amendment No. 1 to the Schedule 13D and all transactions in securities of the Issuer by WIAP, BPIP and BPP during the past sixty days. 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 February 9, 2010, the Reporting Persons entered into an Amended and Restated 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 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.
Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended to add the following exhibit:
99.1 | Amended and Restated Joint Filing and Solicitation Agreement by and among Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Fund Ltd., 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., Scott Franzblau, Robert Ferguson, Robert H. Daniels, Gregory R. Dube and William J. Roberts dated February 9, 2010. |
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: February 9, 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 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 As Attorney-In-Fact for Robert H. Daniels, Gregory R. Dube and William J. Roberts |
| 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 by Western Investment Total Return Fund Ltd. Since the Filing of Amendment No. 1 to the Schedule 13D and by Western Investment Activism Partners LLC, Benchmark Plus Institutional Partners, L.L.C. and Benchmark Plus Partners, L.L.C. During the Past Sixty Days
Date of Purchase | Shares of Common Stock Purchased | Price Per Share ($) |
WESTERN INVESTMENT ACTIVISM PARTNERS LLC
01/28/10 | 12,300 | | 12.3323 |
01/29/10 | 4,600 | | 12.3820 |
01/29/10 | 69,300 | | 12.3203 |
02/01/10 | 16,800 | | 12.3710 |
02/02/10 | 6,800 | | 12.4854 |
02/03/10 | 10,000 | | 12.4292 |
02/04/10 | 5,900 | | 12.2877 |
02/04/10 | 20,400 | | 12.2487 |
02/05/10 | 5,800 | | 12.1280 |
02/05/10 | 84,800 | | 12.1026 |
02/08/10 | 2,300 | | 12.1185 |
02/08/10 | 34,700 | | 12.1855 |
WESTERN INVESTMENT TOTAL RETURN FUND LTD.
01/27/10 | 40,800 | | 12.4368 |
01/27/10 | 9,057 | | 12.4424 |
01/28/10 | 43,000 | | 12.3320 |
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
BENCHMARK PLUS PARTNERS, L.L.C.
2/9/2010 | 3,947 | | 12.2582 |
2/9/2010 | 1,700 | | 12.2849 |