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.
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Item
2.
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Identity and
Background
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Item 2 is
hereby amended and restated as follows:
(a) This
statement is filed by Western Investment LLC, a Delaware limited liability
company (“WILLC”), Western Investment Hedged Partners L.P., a Delaware limited
partnership (“WIHP”), Western Investment Total Return Fund Ltd., a Cayman
Islands corporation (“WITRL”), Western Investment Total Return Partners L.P., a
Delaware limited partnership (“WITRP”), Arthur D. Lipson (“Mr. Lipson” and
together with WILLC, WIHP, WITRL and WITRP, the “Western Entities”) Benchmark
Plus Institutional Partners, L.L.C., a Delaware limited liability company
(“BPIP”), Benchmark Plus Partners, L.L.C., a Delaware limited liability company
(“BPP”), Benchmark Plus Management, L.L.C., a Delaware limited liability company
(“BPM”), Scott Franzblau (“Mr. Franzblau”), Robert Ferguson (“Mr. Ferguson,” and
together with BPIP, BPP, BPM and Mr. Franzblau, the “Benchmark Entities”) and
Robert H. Daniels (“Mr. Daniels”). Each of the foregoing is referred
to as a “Reporting Person” and collectively as the “Reporting
Persons.”
WILLC
provides recommendations from time to time to BPIP and BPP with respect to
purchases and sales of Shares of the Issuer, pursuant to an oral agreement
between WILLC and BPIP and WILLC and BPP.
WILLC has
sole voting and investment power over WIHP’s, WITRP’s and WITRL’s security
holdings and Mr. Lipson, in his role as the managing member of WILLC, controls
WILLC’s voting and investment decisions. BPM is the managing member
of each of BPIP and BPP, and Messrs. Franzblau and Ferguson, in their roles as
managing members of BPM, have sole voting and investment control over BPIP’s and
BPP’s security holdings.
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 Mr. Lipson is 7050
S. Union Park Center, Suite 590, Midvale, Utah 84047. The principal
business address of WITRL is c/o dms Management, P.O. Box 31910, dms House, 20
Genesis Close, Grand Cayman KY1-1208, Cayman Islands.
The
officers
and directors of WITRL and their principal occupations and business addresses
are set forth on Schedule B of the initial Schedule 13D and are incorporated
herein by reference.
The
principal business address of each of BPIP, BPP, BPM, Mr. Franzblau and Mr.
Ferguson is 820 A Street, Suite 700, Tacoma, Washington 98402.
The
principal business address of Mr. Daniels is 1685 Eighth Avenue, San Francisco,
California 94122.
(c) The
principal business of WILLC is acting as the investment manager of WITRL and 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 WIHP, WITRL and WITRP is acquiring, holding and disposing of
investments in various companies.
The
principal business of BPIP and BPP is acquiring, holding and disposing of
investments in various companies. The principal business of BPM is
acting as the managing member of BPIP and BPP. The principal
occupation of Mr. Ferguson is acting as a managing member of BPM. The
principal occupation of Mr. Franzblau is acting as a managing member of
BPM.
The
principal occupation of Mr. Daniels is Emeritus Professor of Accounting at San
Francisco State University and attorney.
(d) No
Reporting Person, nor any person listed on Schedule B to the initial Schedule
13D, 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 B to the initial Schedule
13D, 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.
Lipson, Franzblau, Ferguson and Daniels are citizens of the United States of
America.
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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 889,542 Shares beneficially owned by WILLC is
approximately $10,371,461. The Shares beneficially owned by WILLC
consist of 400 Shares that were acquired with WILLC’s working capital, 334,507
Shares that were acquired with WIHP’s working capital, 155,972 Shares that were
acquired with WITRP’s working capital and 398,663 Shares that were acquired with
WITRL’s working capital.
The
aggregate purchase price of the Share directly owned by Mr. Lipson is
approximately $15.00.
The
aggregate purchase price of the 117,603 Shares beneficially owned by BPM is
approximately $1,362,135. The Shares beneficially owned by BPM
consist of 67,385 Shares that were acquired with BPIP’s working capital and
50,218 Shares that were acquired with BPP’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:
WILLC is
seeking representation on the Issuer’s Board of Trustees (the
“Board”). WILLC delivered a letter dated August 6, 2009 to the
Corporate Secretary of the Issuer (the “Nomination Letter”) nominating Arthur D.
Lipson and Robert H. Daniels to be elected to the Board at the 2009 annual
meeting of stockholders of the Company, or any other meeting of stockholders
held in lieu thereof, and any adjournments, postponements, reschedulings or
continuations thereof (the “2009 Annual Meeting”).
WILLC had
previously delivered a letter to the Corporate Secretary of 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 2009 Annual
Meeting and to be voted on at the 2009 Annual Meeting (the “14a-8
Proposal”). WILLC is proposing that the Board take all necessary
steps to ensure that in the case of a merger or other extraordinary transaction
involving NUF, which if consummated would result in a change to NUF’s investment
policy, that NUF take all actions and measures necessary prior to the
consummation of such transaction to provide stockholders with the ability to
redeem their beneficial interest in NUF for cash at a price equivalent to 99% of
the net asset value, or NAV, per share of NUF.
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Item
5.
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Interest in Securities
of the Issuer
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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 14,111,195 Shares outstanding, which is the total number of Shares
outstanding as of April 30, 2009, as reported in the Issuer’s Certified
Shareholder Report of Registered Management Investment Companies on Form N-CSR,
filed with the Securities and Exchange Commission on July 8, 2009.
As of the
close of business on August 7, 2009, WIHP, WITRP and WITRL beneficially owned
334,507, 155,972 and 398,663 Shares, respectively, representing approximately
2.4%, 1.1% and 2.8%, respectively, of the Shares outstanding. As the
investment manager of WITRL and the general partner of each of WIHP and WITRP,
WILLC may be deemed to beneficially own the 889,142 Shares owned in the
aggregate by WIHP, WITRP and WITRL, constituting approximately 6.3% 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 889,542 Shares beneficially owned by WILLC, constituting
approximately 6.3% of the Shares outstanding, in addition to the Share 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 Western Entities may be
deemed to beneficially own the 117,603 Shares owned by the other Reporting
Persons. The Western Entities disclaim beneficial ownership of such
Shares.
As of the
close of business on August 7, 2009, BPIP and BPP beneficially owned 67,385 and
50,218 Shares, respectively, constituting less than 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 117,603 Shares
owned in the aggregate by BPIP and BPP, constituting less than 1% of the Shares
outstanding. As managing members of BPM, Messrs. Franzblau and
Ferguson may be deemed to beneficially own the 117,603 Shares beneficially owned
by BPM, constituting less than 1% 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 Benchmark Entities may be deemed to
beneficially own the 889,543 Shares owned by the other Reporting
Persons. The Benchmark Entities disclaim beneficial ownership of such
Shares.
Mr.
Daniels does not own directly any Shares. As a member of a “group”
for the purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as
amended, Mr. Daniels is deemed to beneficially own the 1,007,146 Shares
beneficially owned in the aggregate by the other Reporting
Persons. Mr. Daniels 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 since the
filing of the Amendment No. 4 to the Schedule 13D. All of such
transactions were effected in the open market.
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Item
6.
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Contracts,
Arrangements, Understandings or Relationships With Respect to Securities
of the Issuer
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Item 6 is
hereby amended to add the following:
On August
10, 2009, WILLC, WIHP, WITRP, WITRL, BPP, BPIP, BPM and Messrs. Lipson,
Franzblau, Ferguson and Daniels entered into a Joint Filing and Solicitation
Agreement (the “Joint Filing and Solicitation Agreement”) in which,
among other things, (a) the parties agreed to the joint filing and solicitation
on behalf of each of them of statements on Schedule 13D with respect to the
securities of the Issuer to the extent required under applicable securities laws
and (b) the parties agreed to form the group for the purpose of soliciting
proxies or written consents for the election of the persons nominated by WILLC
to the Issuer’s Board at the 2009 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.
Pursuant
to letter agreements, WILLC has agreed to indemnify Mr. Daniels against any and
all claims of any nature arising from the solicitation and any related
transactions. A form of the indemnification letter agreement is
attached hereto as exhibit 99.3 and is incorporated herein by
reference.
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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 add the following exhibits:
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99.1
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Joint
Filing and Solicitation Agreement by and among Western Investment LLC,
Western Investment Hedged Partners L.P., Western Investment Total
Return Fund Ltd., Western Investment Total Return Partners
L.P., Arthur D. Lipson, Benchmark Plus Institutional Partners,
L.L.C., Benchmark Plus Partners, L.L.C., Benchmark Plus
Management, L.L.C., Scott Franzblau, Robert Ferguson and Robert
H. Daniels, dated August 10, 2009.
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99.3
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Form
of Indemnification Letter
Agreement.
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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.
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Dated:
August 10, 2009
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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 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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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 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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ARTHUR
D. LIPSON
As
Attorney-In-Fact for Robert H.
Daniels
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SCHEDULE
A
Transactions in the Shares
Since the Filing of Amendment No. 4 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 HEDGED
PARTNERS L.P.
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07/29/09
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3,207
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12.4458
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07/30/09
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3,803
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12.5074
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WESTERN INVESTMENT
LLC
None
WESTERN INVESTMENT TOTAL
RETURN FUND LTD.
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07/29/09
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3,208
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12.4458
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07/31/09
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690
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12.4685
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07/31/09
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(1,000)
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12.5012
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WESTERN INVESTMENT TOTAL
RETURN PARTNERS L.P.
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07/29/09
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3,207
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12.4458
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07/30/09
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3,802
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12.5074
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08/03/09
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501
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12.6731
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08/05/09
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3,100
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12.6627
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08/06/09
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1,000
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12.6685
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ARTHUR D.
LIPSON
None
BENCHMARK PLUS INSTITUTIONAL
PARTNERS, L.L.C.
None
BENCHMARK PLUS PARTNERS,
L.L.C.
None
BENCHMARK PLUS MANAGEMENT,
L.L.C.
None
SCOTT
FRANZBLAU
None
ROBERT
FERGUSON
None
ROBERT H.
DANIELS
None