The following constitutes Amendment No. 9 to the Schedule 13D filed by the undersigned (“Amendment No. 9”). This Amendment No. 9 amends the Schedule 13D as specifically set forth.
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 2,123,176.24 Shares beneficially owned by WILLC is approximately $36,708,331. The Shares beneficially owned by WILLC consist of 1,337.24 Shares, 1,100 of which were acquired with WILLC’s working capital and 237.24 of which were acquired through the Issuer’s dividend repurchase plan, 530,570 Shares that were acquired with WIHP’s working capital, 530,328 Shares that were acquired with WIAP’s working capital, 531,032 Shares that were acquired with WITRP’s working capital and 529,909 Shares that were acquired with WITRL’s working capital.
The aggregate purchase price of the 14,475 Shares owned directly by Mr. Lipson is approximately $113,701. The Shares owned directly by Mr. Lipson were acquired with Mr. Lipson’s personal funds.
The aggregate purchase price of the 842,683 Shares beneficially owned by BPM is approximately $10,205,572. The Shares beneficially owned by BPM consist of 456,903 Shares that were acquired with BPIP’s working capital and 385,780 Shares that were acquired with BPP’s working capital.
The aggregate purchase price of the 1,437.1 Shares owned directly by Mr. Daniels is approximately $22,353. The Shares owned directly by Mr. Daniels were acquired with Mr. Daniels’ personal funds.
The 100 Shares owned by Ms. Schultz were a gift from WILLC.
Item 4. | Purpose of Transaction. |
Item 4 is hereby amended to add the following:
On February 22, 2010, WILLC filed a complaint (the “Complaint”) in the United States District Court for the Southern District of New York against the Issuer. The Complaint seeks declaratory and injunctive relief from, among other things, the Issuer’s failure to hold a meeting of stockholders during 2009, and requests that WILLC be granted an injunction requiring the Issuer to hold a meeting of stockholders to elect directors at the earliest date legally possible.
The Issuer has not held a meeting of stockholders since October 2008, and 2009 was the first calendar year since its inception that the Issuer did not hold any meeting of stockholders. WILLC has submitted to the Issuer a nomination letter nominating 9 individuals for election as directors at the 2009 annual meeting, or at the next stockholder meeting. At the 2008 annual meeting of stockholders WILLC had nominated five individuals for election as director. At this meeting, every WILLC nominee received approximately 64% of the votes cast for each director seat, and every incumbent director received less than 36%. The Issuer’s bylaws provide that “directors shall be elected by the affirmative vote of holders of a majority of the shares of stock outstanding and entitled to vote thereon.” Although the WILLC nominees received the vote of the majority of Shares voting, they did not receive the vote of a majority of the Shares outstanding. Accordingly, the election “failed” and the incumbents remained in office, and have continued to remain in office for the past 16 months since the 2008 meeting, despite receiving significantly less votes than the WILLC nominees.
The Complaint also seeks relief from the Issuer’s adoption of the voting restrictions of the Maryland Control Share Acquisition Act (“MCSAA”), seeking an injunction requiring the Issuer to recognize the voting rights of all of the Reporting Persons' Shares and declaratory relief that the Issuer’s adoption of the MCSAA is void and does not affect the Reporting Persons' rights to vote any of their Shares now owned or hereafter acquired at the next stockholder meeting, as well as any future meetings of stockholders. A copy of the Complaint is attached hereto as Exhibit 99.1 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 16,588,270 Shares outstanding, which is the total number of Shares outstanding as of June 30, 2009, as reported in the Issuer’s annual report on Form N-CSR, filed with the Securities and Exchange Commission on September 2, 2009.
As of the close of business on February 22, 2010, WIHP, WIAP, WITRP and WITRL beneficially owned 530,570, 530,328, 531,032 and 529,909 Shares, respectively, constituting approximately 3.2%, 3.2%, 3.2% and 3.2%, 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 2,121,839 Shares owned in the aggregate by WIHP, WIAP, WITRP and WITRL, constituting approximately 12.8% of the Shares outstanding, in addition to the 1,337.24 Shares it holds directly. As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 2,123,176.24 Shares beneficially owned by WILLC, constituting approximately 12.8% of the Shares outstanding, in addition to the 14,475 Shares he owns directly. 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 844,220.1 Shares owned by the other Reporting Persons. The Western Entities disclaim beneficial ownership of such Shares.
As of the close of business on February 22, 2010, BPIP and BPP beneficially owned 456,903 and 385,780 Shares, respectively, constituting approximately 2.8% and 2.3%, respectively, of the Shares outstanding. As the managing member of each of BPIP and BPP, BPM may be deemed to beneficially own the 842,683 Shares owned in the aggregate by BPIP and BPP, constituting approximately 5.1% of the Shares outstanding. As managing members of BPM, Messrs. Franzblau and Ferguson may each be deemed to beneficially own the 842,683 Shares beneficially owned by BPM, constituting approximately 5.1% 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 2,139,188.34 Shares owned by the other Reporting Persons. The Benchmark Entities disclaim beneficial ownership of such Shares.
None of Messrs. Hellerman, Rappaport, Roberts, Chelo, Crouse or Dube or Professor Wood directly own any Shares. As members of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, Messrs. Hellerman, Rappaport, Roberts, Chelo, Crouse and Dube and Professor Wood may each be deemed to beneficially own the 2,981,871.34 Shares beneficially owned in the aggregate by the other Reporting Persons. Each of Messrs. Hellerman, Rappaport, Roberts, Chelo, Crouse and Dube and Professor Wood disclaims beneficial ownership of such Shares.
Mr. Daniels owns 1,437.1 Shares directly, 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 2,980,434.24 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Daniels disclaims beneficial ownership of such Shares.
Ms. Schultz directly owns 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 2,981,771.34 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 the securities of the Issuer since the filing of Amendment No. 8 to the Schedule 13D. All of such transactions were effected in the open market.
Item 7. | Material to be Filed as Exhibits. |
Item 7 is hereby amended to add the following exhibit:
99.1 Complaint dated February 22, 2010.
SIGNATURES
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 23, 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 |
| 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 |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Neil Chelo |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Matthew S. Crouse |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Robert H. Daniels |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Gregory R. Dube |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Gerald Hellerman |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Richard A. Rappaport |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for William J. Roberts |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Robert A. Wood |
| |
| |
| |
| ARTHUR D. LIPSON As Attorney-In-Fact for Lynn D. Schultz |
SCHEDULE A
Transactions in the Securities of the Issuer Since the Filing of Amendment No. 8 to the Schedule 13D
Shares of Common Stock Purchased | Price Per Share ($) | Date of Purchase |
WESTERN INVESTMENT LLC
4,400 | | 8.0156 | 01/22/10 |
400 | | 7.3900 | 02/05/10 |
1,075 | | 7.4800 | 02/08/10 |
2,500 | | 7.5297 | 02/08/10 |
2,700 | | 7.5299 | 02/08/10 |
| | | |
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
1,800 | | 8.2341 | 01/21/10 |
13,900 | | 8.0049 | 01/22/10 |
4,000 | | 8.0755 | 01/25/10 |
3,000 | | 7.9738 | 01/26/10 |
11,722 | | 7.7761 | 01/28/10 |
2,300 | | 7.7528 | 01/29/10 |
6,577 | | 7.8051 | 02/01/10 |
2,922 | | 7.9710 | 02/02/10 |
4,357 | | 7.9351 | 02/03/10 |
3,950 | | 7.4596 | 02/05/10 |
982 | | 7.4987 | 02/08/10 |
5,018 | | 7.6368 | 02/09/10 |
2,800 | | 7.6561 | 02/09/10 |
27,700 | | 7.6168 | 02/10/10 |
8,600 | | 7.5537 | 02/10/10 |
| | | |
| | | |
Shares of Common Stock Purchased | Price Per Share ($) | Date of Purchase |
BENCHMARK PLUS PARTNERS, L.L.C.
10,000 | | 7.5986 | 02/11/10 |
6,200 | | 7.6101 | 02/12/10 |
4,000 | | 7.8623 | 02/22/10 |