The following constitutes Amendment No. 4 to the Schedule 13D filed by the undersigned (“Amendment No. 4”). This Amendment No. 4 amends the Schedule 13D as specifically set forth herein.
Item 2 | Identity and Background. |
Item 2(a) is hereby amended to add the following:
(a) On April 22, 2010, Lynn D. Schultz executed a Joinder Agreement to the Amended and Restated Joint Filing and Solicitation Agreement entered into on February 9, 2010 (the “Amended and Restated Joint Filing Agreement”) by the Reporting Persons, whereby Ms. Schultz agreed to be bound by the terms of the Amended and Restated Joint Filing Agreement. Accordingly, Ms. Schultz shall be deemed to be a Reporting Person following such date.
Item 2(b) is hereby amended to add the following:
(b) The principal business address of Ms. Schultz is c/o Western Investment LLC, 7050 S. Union Park Center, Suite 590, Midvale, Utah 84047.
Item 2(c) is hereby amended to add the following:
(c) The principal occupation of Ms. Schultz is psychotherapist.
Item 2(f) is hereby amended to add the following:
(f) Ms. Schultz is a citizen 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 2,424,575 Shares beneficially owned by WILLC is approximately $29,111,753.
The Shares beneficially owned by WILLC consist of 400 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 457,650 Shares beneficially owned by BPM is approximately $5,813,660.
The Shares beneficially owned by BPM consist of 256,500 Shares that were acquired with BPIP’s working capital and 201,150 Shares that were acquired with BPP’s working capital.
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.
The 100 Shares owned by Ms. Schultz were a gift from WILLC.
Item 4 is hereby amended to add the following:
On April 22, 2010, Ms. Schultz delivered a letter to the Issuer requesting, pursuant to Section 1315 of the New York Business Corporation Law, among other things, a complete record or list in appropriate formats of the holders of the Shares, showing the name and address of all shareholders, as of April 9, 2010.
On April 20, 2010, WILLC filed with the Securities and Exchange Commission a definitive proxy statement (the “Definitive Proxy Statement”) in connection with its anticipated solicitation of proxies from the shareholders of the Issuer at the Issuer’s 2010 annual meeting of shareholders with respect to the following:
1. Elect four WILLC nominees to the Board of Directors of the Issuer (the “Board”) to serve as Class III Directors of the Issuer until the 2013 annual meeting of shareholders;
2. Approve WILLC’s proposal that the Board take the necessary steps to declassify the Board so that all directors are elected on an annual basis; and
3. Transact such other business as may properly come before the meeting or any adjournment or postponement thereof.
WILLC reserves the right to take any other actions it deems appropriate to protect its rights as a shareholder of the Issuer.
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 25,128,908.19 Shares outstanding, which is the total number of Shares outstanding as of April 9, 2010, as reported in the Issuer’s Definitive Proxy Statement, filed with the Securities and Exchange Commission on April 16, 2010.
As of the close of business on April 23, 2010, WIHP, WIAP, WITRP and WITRL beneficially owned 718,495, 273,700, 715,822 and 716,158 Shares, respectively, representing approximately 2.9%, 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 9.6% of the Shares outstanding, in addition to the 400 Shares it holds directly.
As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 2,424,575 Shares beneficially owned by WILLC, constituting approximately 9.6% 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 458,350 Shares owned by the other Reporting Persons. The Western Entities disclaim beneficial ownership of such Shares.
As of the close of business on April 23, 2010, BPIP and BPP beneficially owned 256,500 and 201,150 Shares, respectively, constituting approximately 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 457,650 Shares owned in the aggregate by BPIP and BPP, constituting approximately 1.8% of the Shares outstanding.
As managing members of BPM, Messrs. Franzblau and Ferguson may each be deemed to beneficially own the 457,650 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 2,425,275 Shares owned by the other Reporting Persons. The Benchmark Entities disclaim beneficial ownership of such Shares.
As of the close of business on April 23, 2010, Mr. Daniels directly owned 600 Shares, constituting less than 1% of the Shares outstanding. 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 2,882,325 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 2,882,925 Shares beneficially owned in the aggregate by the other Reporting Persons. Each of Messrs. Dube and Roberts disclaims beneficial ownership of such Shares.
As of the close of business on April 23, 2010, Ms. Schultz directly owned 100 Shares, constituting less than 1% of the Shares outstanding. As a member of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, Ms. Schultz may be deemed to beneficially own the 2,882,825 Shares beneficially owned in the aggregate by the other Reporting Persons. Ms. Schultz 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 the Reporting Persons since the filing of Amendment No. 3 to the Schedule 13D. Except as otherwise stated, 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 22, 2010, Lynn D. Schultz and WILLC executed a Joinder Agreement to the Amended and Restated Joint Filing and Solicitation Agreement whereby Ms. Schultz and WILLC agreed to be bound by the terms of the Amended and Restated Joint Filing and Solicitation Agreement. The Joinder Agreement is attached 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 exhibits:
| 99.1 | Joinder Agreement by and between Western Investment LLC and Lynn D. Schultz, dated April 22, 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: April 26, 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, William J. Roberts and Lynn D. Schultz |
| 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 Since the Filing of Amendment No. 3 to the Schedule 13D
Date of Purchase/ Sale | Shares of Common Stock Purchased /(Sold) | Price Per Share ($) |
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
3/26/2010 | 7,800 | | 12.8598 |
3/31/2010 | 22,000 | | 12.9305 |
3/31/2010 | 13,300 | | 12.9269 |
4/1/2010 | 4,300 | | 13.0106 |
4/1/2010 | 9,300 | | 13.0159 |
4/5/2010 | 900 | | 13.0685 |
4/6/2010 | 3,400 | | 13.1055 |
4/7/2010 | 21,500 | | 13.1097 |
4/7/2010 | 6,600 | | 13.0981 |
4/8/2010 | 4,500 | | 13.1329 |
4/8/2010 | 5,400 | | 13.1307 |
BENCHMARK PLUS PARTNERS, L.L.C.
3/26/2010 | 7,700 | | 12.8598 |
3/31/2010 | 21,900 | | 12.9305 |
3/31/2010 | 13,400 | | 12.9268 |
| | | |
LYNN D. SCHULTZ |
4/12/2010 | 1001 | | -- |
| | | |
WESTERN INVESTMENT LLC |
4/12/2010 | (100)2 | | -- |
1 Shares were a gift from Western Investment LLC. 2 Shares were a gift to Lynn D. Schultz.