The following constitutes Amendment No. 5 to the Schedule 13D filed by the undersigned (“Amendment No. 5”). This Amendment No. 5 amends the Schedule 13D as specifically set forth herein.
Item 2. | Identity and Background. |
Items 2(a), (b) and (c) are hereby amended to add the following:
(a) On July 8, 2010, Western Investment Activism Partners LLC, a Delaware limited liability company (“WIAP” and together with WILLC, WIHP, WITRL, WITRP and Arthur Lipson, the “Western Entities”), executed a Joinder Agreement to that certain Joint Filing and Solicitation Agreement entered into on February 26, 2010 (the “Joint Filing and Solicitation Agreement”) by the Reporting Persons, whereby WIAP agreed to be bound by the terms of the Amended and Restated Joint Filing Agreement. Accordingly, WIAP shall be deemed to be a Reporting Person following such date.
WILLC has sole voting and investment power over WIAP’s security holdings and Mr. Lipson, in his role as the managing member of WILLC, controls WILLC’s voting and investment decisions.
(b) The principal business address of WIAP is 7050 S. Union Park Center, Suite 590, Midvale, Utah 84047.
(c) The principal business of WIAP is acquiring, holding and disposing of investments in various companies. The principal business of WILLC includes acting as the managing member of WIAP.
Items 2(d) and (e) are hereby amended and restated to read as follows:
(d) No Reporting Person, nor any person listed on Schedule A annexed to the Schedule 13D (“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.
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 490,719 Shares beneficially owned by WILLC is approximately $7,235,834. The Shares beneficially owned by WILLC consist of 900 Shares that were acquired with WILLC’s working capital, 162,675 Shares that were acquired with WIHP’s working capital, 162,644 Shares that were acquired with WITRP’s working capital, 162,600 Shares that were acquired with WITRL’s working capital and 1,900 Shares that were acquired with WIAP’s working capital.
The aggregate purchase price of the 500 Shares directly owned by Mr. Lipson is approximately $7,095. The Shares directly owned by Mr. Lipson were acquired with personal funds.
The aggregate purchase price of the 212,897 Shares beneficially owned by BPM is approximately $3,158,098. The Shares beneficially owned by BPM consist of 60,997 Shares that were acquired with BPP’s working capital and 151,900 Shares that were acquired with BPIP’s working capital.
The aggregate purchase price of the 1,000 Shares beneficially owned by Mr. Daniels is approximately $11,839. 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 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 5,955,697.66 Shares outstanding, which is the total number of Shares outstanding as of May 21, 2010, as reported in the Issuer’s Definitive Proxy Statement, filed with the Securities and Exchange Commission on June 7, 2010.
As of the close of business on July 8, 2010, WIHP, WITRP, WITRL and WIAP beneficially owned 162,675, 162,644, 162,600 and 1,900 Shares, respectively, constituting approximately 2.7%, 2.7%, 2.7% and less than 1%, respectively, of the Shares outstanding.
As the investment manager of WITRL, the general partner of each of WIHP and WITRP and the managing member of WIAP, WILLC may be deemed to beneficially own the 489,819 Shares owned in the aggregate by WIHP, WITRP, WITRL and WIAP, constituting approximately 8.2% of the Shares outstanding, in addition to the 900 Shares it holds directly.
As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 490,719 Shares beneficially owned by WILLC, constituting approximately 8.2% of the Shares outstanding, in addition to the 500 Shares he holds 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 213,997 Shares owned by the other Reporting Persons. The Western Entities disclaim beneficial ownership of such Shares.
As of the close of business on July 8, 2010, BPIP and BPP beneficially owned 151,900 and 60,997 Shares, respectively, constituting approximately 2.6% and 1.0%, respectively, of the Shares outstanding.
As the managing member of each of BPP and BPIP, BPM may be deemed to beneficially own the 212,897 Shares owned in the aggregate by BPP and BPIP, constituting approximately 3.6% of the Shares outstanding.
As managing members of BPM, Messrs. Franzblau and Ferguson may each be deemed to beneficially own the 212,897 Shares beneficially owned by BPM, constituting approximately 3.6% 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 492,319 Shares owned by the other Reporting Persons. The Benchmark Entities disclaim beneficial ownership of such Shares.
Mr. Daniels directly owns 1,000 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 704,216 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Daniels disclaims beneficial ownership of such Shares.
Mr. Dube does not own directly any Shares. As a member of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, Mr. Dube may be deemed to beneficially own the 705,216 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Dube disclaims beneficial ownership of such Shares.
Mr. Chelo does not own directly any Shares. As a member of a “group” for the purposes of Rule 13d-5(b)(1) of the Exchange Act, Mr. Chelo may be deemed to beneficially own the 705,216 Shares beneficially owned in the aggregate by the other Reporting Persons. Mr. Chelo disclaims beneficial ownership of such Shares.
Ms. Schultz directly owns 100 Shares. 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 705,116 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 B annexed hereto lists all transactions in securities of the Issuer by the Reporting Persons since the filing of Amendment No. 4 to the Schedule 13D. 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 July 8, 2010, WIAP and WILLC executed a Joinder Agreement to the Joint Filing and Solicitation Agreement, whereby WIAP agreed to be bound by the terms of the Joint Filing and Solicitation Agreement. Such 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 exhibit:
| 99.1 | Joinder Agreement by and between Western Investment LLC and Western Investment Activism Partners LLC, dated July 8, 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: July 8, 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 Individually and as Attorney-In-Fact for Robert H. Daniels, Gregory R. Dube, Neil Chelo 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 B
Transactions in the Shares Since the Filing of Amendment No. 4 to the Schedule 13D
Date of Purchase | Shares of Common Stock Purchased | Price Per Share ($) |
BENCHMARK PLUS PARTNERS, L.L.C.
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
6/4/2010 | 100 | | 14.0185 |
6/14/2010 | 700 | | 14.2728 |
6/15/2010 | 5,500 | | 14.3095 |
6/24/2010 | 1,000 | | 14.0365 |
6/25/2010 | 10,700 | | 14.0070 |
6/28/2010 | 3,700 | | 14.0234 |
6/28/2010 | 200 | | 14.0915 |
WESTERN INVESTMENT ACTIVISM PARTNERS LLC.
7/7/2010 | 500 | | 13.7785 |
7/8/2010 | 1,400 | | 13.8885 |