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.
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Item 3.
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Source and Amount of Funds or Other Consideration
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Item 3 is hereby amended and restated to read as follows:
The aggregate purchase price of the 2,446,838 Shares beneficially owned by WILLC is approximately $29,001,111. The Shares beneficially owned by WILLC consist of 500 Shares that were acquired with WILLC’s working capital, 794,942 Shares that were acquired with WIHP’s working capital, 616,687 Shares that were acquired with WIAP’s working capital, 615,262 Shares that were acquired with WITRP’s working capital and 419,447 Shares that were acquired with WITRL’s working capital.
The aggregate purchase price of the 505,008 Shares beneficially owned by BPM is approximately $5,498,127. The Shares beneficially owned by BPM consist of 505,008 Shares that were acquired with BPIP’s working capital.
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Item 4.
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Purpose of Transaction
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Item 4 is hereby amended to add the following:
On March 8, 2011 the Issuer entered into an agreement (the “Agreement”) with the Reporting Persons pursuant to which the Issuer agreed to commence a tender offer to expire on or before June 30, 2011, for up to 30% of the Issuer’s then outstanding Shares, at a price equal to at least 98% of the net asset value (“NAV”) of the Shares (the “Initial Tender Offer”) as of the close of business on the expiration date of the Initial Tender Offer.
The Issuer also agreed to commence a tender offer for up to 5% of the Issuer’s then outstanding Shares, at a price equal to at least 98% of NAV (the “First Conditional Tender Offer”) as of the close of business on the expiration date of the First Conditional Tender Offer, if during the period from July 20, 2011 through August 19, 2011, the Shares trade at a market price representing an average daily discount to NAV of more than 5%. If required, the Issuer will commence the First Conditional Tender Offer on or about September 1, 2011.
The Issuer further agreed to commence a tender offer for up to 5% of the Issuer’s then outstanding Shares, at a price equal to at least 98% of NAV (the “Second Conditional Tender Offer”) as of the close of business on the expiration date of the Second Conditional Tender Offer, if during the period from October 19, 2011 through November 18, 2011, the Shares trade at a market price representing an average daily discount to NAV of more than 5%. If required, the Issuer will commence the Second Conditional Tender Offer on or about December 1, 2011.
The Issuer further agreed to commence a tender offer for up to 5% of the Issuer’s then outstanding Shares, at a price equal to at least 98% of NAV (the “Third Conditional Tender Offer”) as of the close of business on the expiration date of the Third Conditional Tender Offer, if during the period from January 19, 2012 through February 18, 2012, the Shares trade at a market price representing an average daily discount to NAV of more than 5%. If required, the Issuer will commence the Third Conditional Tender Offer on or about March 1, 2012.
The Reporting Persons agreed to, among other things, (i) withdraw the proposal to declassify the Issuer’s Board of Trustees (the “Stockholder Proposal”) from consideration at the Issuer’s meeting of shareholders to be held on April 29, 2011 (the “Annual Meeting”) and (ii) vote all Shares beneficially owned as of the close of business on March 1, 2011 in favor of the SCD Director Slate (as defined in the Agreement), against any proposal made in opposition to, or in competition or inconsistent with, the SCD Director Slate and cooperate with the Issuer in the approval of the SCD Director Slate and the rejection of the Stockholder Proposal.
The foregoing description of the Agreement is qualified in its entirety by reference to the Agreement, which is attached as exhibit 99.1 hereto and is incorporated herein by reference.
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Item 5.
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Interest in Securities of the Issuer
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Item 5(a) is amended and restated to read as follows:
(a) The aggregate percentage of Shares reported owned by each person named herein is based upon 29,964,106 Shares outstanding, which is the total number of Shares outstanding as of December 31, 2010, as reported in the Issuer’s Annual Report to Stockholders on Form N-CSR, filed with the Securities and Exchange Commission on February 28, 2011.
As of the close of business on March 9, 2011, WIHP, WIAP, WITRP and WITRL beneficially owned 794,942, 616,687, 615,262 and 419,447 Shares, respectively, constituting approximately 2.7%, 2.1%, 2.1% and 1.4%, respectively, of the Shares outstanding.
As the general partner of each of WIHP and WITRP, the managing member of WIAP and the investment manager of WITRL, WILLC may be deemed to beneficially own the 2,446,338 Shares owned in the aggregate by WIHP, WIAP, WITRP and WITRL, constituting approximately 8.2% 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 2,446,838 Shares beneficially owned by WILLC, constituting approximately 8.2% of the Shares outstanding.
As of the close of business on March 9, 2011, BPIP beneficially owned 505,008 Shares, constituting approximately 1.7% of the Shares outstanding. As the managing member of BPIP, BPM may be deemed to beneficially own the 505,008 Shares owned by BPIP, constituting approximately 1.7% of the Shares outstanding. As managing members of BPM, each of Messrs. Franzblau and Ferguson may be deemed to beneficially own the 505,008 Shares beneficially owned by BPM, constituting approximately 1.7% of the Shares outstanding.
Item 5(c) is amended to add the following:
(c) Schedule B annexed hereto lists all transactions in securities of the Issuer since the filing of Amendment No. 3 to the Schedule 13D by the Reporting Persons. All of such transactions were effected in the open market.
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Item 7.
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Material to be Filed as Exhibits
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Item 7 is hereby amended to include the following exhibits:
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99.1
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Agreement, dated March 8, 2011, by and among Arthur D. Lipson, Robert Ferguson, Scott Franzblau, Western Investment LLC, Western Investment Hedged Partners L.P., Western Investment Activism Partners LLC, Western Investment Total Return Partners L.P., Western Investment Total Return Fund Ltd., Benchmark Plus Institutional Partners L.L.C. and Benchmark Plus Management, L.L.C., and all of their respective directors, officers and Affiliates (as defined in the Agreement), and LMP Capital and Income Fund Inc.
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SCD Amendment No. 4 to the Schedule 13D - Signature Page
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.
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Dated: March 10, 2011
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WESTERN INVESTMENT LLC
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By:
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Name:
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Arthur D. Lipson
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Title:
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Managing Member
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WESTERN INVESTMENT HEDGED PARTNERS L.P.
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By:
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Western Investment LLC
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General Partner
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By:
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Name:
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Arthur D. Lipson
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Title:
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Managing Member
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WESTERN INVESTMENT ACTIVISM PARTNERS LLC
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By:
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Western Investment LLC
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Managing Member
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By:
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Name:
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Arthur D. Lipson
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Title:
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Managing Member
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WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
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By:
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Western Investment LLC
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General Partner
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By:
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Name:
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Arthur D. Lipson
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Title:
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Managing Member
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WESTERN INVESTMENT TOTAL RETURN FUND LTD.
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By:
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Western Investment LLC
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Investment Manager
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By:
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Name:
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Arthur D. Lipson
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Title:
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Managing Member
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SCD Amendment No. 4 to the Schedule 13D - Signature Page
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BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
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By:
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Benchmark Plus Management, L.L.C.
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Managing Member
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By:
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Name:
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Robert Ferguson
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Title:
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Managing Member
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By:
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Name:
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Scott Franzblau
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Title:
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Managing Member
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BENCHMARK PLUS MANAGEMENT, L.L.C.
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By:
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Name:
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Robert Ferguson
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Title:
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Managing Member
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By:
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Name:
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Scott Franzblau
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Title:
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Managing Member
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SCHEDULE B
Transactions in the Shares Since the Filing of Amendment No. 3 to the Schedule 13D
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Date of
Purchase/Sale
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Shares of Common Stock
Purchased/(Sold)
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Price Per
Share ($)
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WESTERN INVESTMENT TOTAL RETURN FUND LTD.
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03/09/11
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(11,400)
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13.4486
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03/09/11
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(15,000)
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13.4467
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BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
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02/18/11
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81
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13.1620
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02/18/11
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7,919
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13.0738
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