The following constitutes Amendment No. 1 (“Amendment No. 1”) to the Schedule 13D filed by the undersigned (the “Schedule 13D”). 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:
| (i) | Western Investment Hedged Partners L.P., a Delaware limited partnership (“WIHP”); |
| (ii) | Western Investment Total Return Partners L.P., a Delaware limited partnership (“WITRP”); |
| (iii) | Western Investment LLC, a Delaware limited liability company (“WILLC”), which serves as the general partner of each of WIHP and WITRP; |
| (iv) | Arthur D. Lipson, who serves as the managing member of WILLC (together with WILLC, WIHP and WITRP, the “Western Entities”), and as nominee; |
| (v) | Benchmark Plus Institutional Partners, L.L.C., a Delaware limited liability company (“BPIP”); |
| (vi) | Benchmark Plus Management, L.L.C., a Delaware limited liability company (“BPM”), which serves as the managing member of BPIP; |
| (vii) | Robert Ferguson, who serves as a managing member of BPM (together with BPIP and BPM, the “Benchmark Entities”), and as nominee; |
| (vii) | Neil R. Chelo, as nominee; and |
| (ix) | Matthew S. Crouse, as nominee. |
Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons”. 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 Messrs. Lipson and Crouse is P.O. Box 71279, Salt Lake City, UT 84171. The principal business address of each of BPIP, BPM and Messrs. Ferguson and Chelo is 820 A Street, Suite 700, Tacoma, Washington 98402.
(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 BPIP is acquiring, holding and disposing of investments in various companies. The principal business of BPM is acting as the managing member of BPIP. The principal occupation of Mr. Ferguson is acting as a managing member of BPM. The principal occupation of Mr. Chelo is serving as Director of Research at BPM. The principal occupation of Mr. Crouse is serving as Portfolio Manager at WILLC.
(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. Chelo, Crouse, Lipson and Ferguson 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 Shares purchased by WIHP, WITRP and WILLC were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted. The aggregate purchase price of the 128,322 Shares owned directly by WIHP is approximately $1,328,944, including brokerage commissions. The aggregate purchase price of the 107,268 Shares owned directly by WITRP is approximately $1,099,118, including brokerage commissions. The aggregate purchase price of the 900 Shares owned directly by WILLC is approximately $9,107, including brokerage commissions.
The Shares purchased by BPIP were purchased with working capital (which may, at any given time, include margin loans made by brokerage firms in the ordinary course of business) in open market purchases, except as otherwise noted. The aggregate purchase price of the 73,788 Shares owned directly by BPIP is approximately $755,492, including brokerage commissions.
Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following information:
On April 18, 2016, pursuant to the Issuer’s Amended and Restated Bylaws, WILLC delivered a letter to the Issuer (the “Nomination Letter”) nominating Neil R. Chelo, Matthew S. Crouse, Robert S. Ferguson and Arthur D. Lipson (collectively, the “Nominees”), for election to the Board at the 2016 annual meeting of stockholders (the “2016 Annual Meeting”). WILLC intends to deliver a proxy statement and form of proxy to the Issuer’s shareholders and solicit proxies in support of the Nominees.
Also, on April 18, 2016, WILLC delivered a letter (the “14a-8 Proposal”) to the Issuer submitting, pursuant to Rule 14a-8 of the Securities Exchange Act of 1934, as amended, a proposal for inclusion in the Issuer’s proxy for the 2016 Annual Meeting and to be voted on at the 2016 Annual Meeting. WILLC is proposing that the Board take the necessary steps to declassify the Board so that all directors are elected on an annual basis. Such declassification shall be completed in a manner that does not affect the unexpired terms of the previously elected directors.
Item 5. | Interest in Securities of the Issuer. |
Item 5 is hereby amended and restated to read as follows:
The aggregate percentage of Shares reported owned by each person named herein is based upon 4,415,736 Shares outstanding, which is the total number of Shares outstanding as of November 30, 2015, as reported in the Issuer’s Annual Report to Stockholders on Form N-CSR, filed with the Securities and Exchange Commission on February 5, 2016.
| (a) | As of the close of business on April 18, 2016, WIHP beneficially owned 128,322 Shares. |
Percentage: Approximately 2.9%
| (b) | 1. Sole power to vote or direct vote: 128,322 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 128,322 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | WIHP has not entered into any transactions in the Shares since the filing of the Schedule 13D. |
| (a) | As of the close of business on April 18, 2016, WITRP beneficially owned 107,268 Shares. |
Percentage: Approximately 2.4%
| (b) | 1. Sole power to vote or direct vote: 107,268 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 107,268 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | The transactions in the Shares by WITRP since the filing of the Schedule 13D are set forth in Schedule A and are incorporated herein by reference. |
| (a) | As of the close of business on April 18, 2016, WILLC directly owned 900 Shares. WILLC, as the general partner of WIHP and WITRP, may be deemed the beneficial owner of the (i) 128,322 Shares owned by WIHP and (ii) 107,268 Shares owned by WITRP. |
Percentage: Approximately 5.4%
| (b) | 1. Sole power to vote or direct vote: 236,490 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 236,490 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | WILLC has not entered into any transactions in the Shares since the filing of the Schedule 13D. The transactions in the Shares by WITRP since the filing of the Schedule 13D are set forth in Schedule A and are incorporated herein by reference. |
| (a) | Mr. Lipson, as the managing member of WILLC, may be deemed the beneficial owner of the (i) 900 Shares owned by WILLC, (ii) 128,322 Shares owned by WIHP and (iii) 107,268 Shares owned by WITRP. |
Percentage: Approximately 5.4%
| (b) | 1. Sole power to vote or direct vote: 236,490 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 236,490 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Mr. Lipson has not entered into any transactions in the Shares since the filing of the Schedule 13D. The transactions in the Shares by WITRP since the filing of the Schedule 13D are set forth in Schedule A and are incorporated herein by reference. |
| (a) | As of the close of business on April 18, 2016, BPIP beneficially owned 73,788 Shares. |
Percentage: Approximately 1.7%
| (b) | 1. Sole power to vote or direct vote: 73,788 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 73,788 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | BPIP has not entered into any transactions in the Shares since the filing of the Schedule 13D. |
| (a) | BPM, as the managing member of BPIP, may be deemed the beneficial owner of the 73,788 Shares owned by BPIP. |
Percentage: Approximately 1.7%
| (b) | 1. Sole power to vote or direct vote: 73,788 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 73,788 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | BPM has not entered into any transactions in the Shares since the filing of the Schedule 13D. |
| (a) | Mr. Ferguson, as a managing member of BPM, may be deemed the beneficial owner of the 73,788 Shares owned by BPIP. |
Percentage: Approximately 1.7%
| (b) | 1. Sole power to vote or direct vote: 73,788 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 73,788 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Mr. Ferguson has not entered into any transactions in the Shares since the filing of the Schedule 13D. |
| (a) | As of the close of business on April 18, 2016, Mr. Chelo, did not beneficially own any Shares. |
Percentage: 0%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Mr. Chelo has not entered into any transactions in the Shares since the filing of the Schedule 13D. |
| (a) | As of the close of business on April 18, 2016, Mr. Crouse, did not beneficially own any Shares. |
Percentage: 0%
| (b) | 1. Sole power to vote or direct vote: 0 |
| 2. Shared power to vote or direct vote: 0 |
| 3. Sole power to dispose or direct the disposition: 0 |
| 4. Shared power to dispose or direct the disposition: 0 |
| (c) | Mr. Crouse has not entered into any transactions in the Shares since the filing of the Schedule 13D. |
The Reporting Persons, as members of a “group” for the purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, may be deemed the beneficial owner of the Shares directly owned by the other Reporting Persons. Each Reporting Person disclaims beneficial ownership of such Shares except to the extent of his or its pecuniary interest therein.
Item 6. | Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. |
Item 6 is hereby amended to add the following information:
On April 18, 2016, the Reporting Persons entered into a Joint Filing and Solicitation Agreement (the “Joint Filing and Solicitation Agreement”) in which, among other things, (a) the Reporting Persons agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer and (b) the Reporting Persons agreed to form the group for the purpose of soliciting proxies or written consents for the election of the Nominees at the 2016 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. |
| 99.1 | Joint Filing and Solicitation Agreement, dated April 18, 2016. |
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 19, 2016 | 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 |
| WESTERN INVESTMENT LLC |
| | |
| By: | |
| | Name: | Arthur D. Lipson |
| | Title: | Managing Member |
| |
| ARTHUR D. LIPSON, Individually and as attorney-in-fact for Matthew S. Crouse |
| BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C. |
| | |
| By: | Benchmark Plus Management, L.L.C. |
| | Managing Member |
| | |
| By: | |
| | Name: | Robert Ferguson |
| | Title: | Manager |
| BENCHMARK PLUS MANAGEMENT, L.L.C. |
| | |
| By: | |
| | Name: | Robert Ferguson |
| | Title: | Manager |
| | |
| |
| ROBERT FERGUSON, Individually and as attorney-in-fact for Neil R. Chelo |
SCHEDULE A
Transactions in the Shares Since the Filing of the Schedule 13D