-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A1wKY8rgX3xJPVXYWgMfmfaoAtOz393G3G+rckUocn9IhMKOuZcNcIfkdWh4mzEq zN1gruQy9JdUgI/NBCfEgw== 0001286207-10-000014.txt : 20100309 0001286207-10-000014.hdr.sgml : 20100309 20100309160752 ACCESSION NUMBER: 0001286207-10-000014 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20100309 DATE AS OF CHANGE: 20100309 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DYNEX CAPITAL INC CENTRAL INDEX KEY: 0000826675 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 521549373 STATE OF INCORPORATION: VA FISCAL YEAR END: 0709 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41043 FILM NUMBER: 10667224 BUSINESS ADDRESS: STREET 1: 4991 LAKE BROOK DRIVE STREET 2: STE 100 CITY: GLEN ALLEN STATE: VA ZIP: 23060 BUSINESS PHONE: 8042175830 MAIL ADDRESS: STREET 1: 4991 LAKE BROOK DRIVE STREET 2: STE 100 CITY: GLEN ALLEN STATE: VA ZIP: 23060 FORMER COMPANY: FORMER CONFORMED NAME: RESOURCE MORTGAGE CAPITAL INC/VA DATE OF NAME CHANGE: 19930722 FORMER COMPANY: FORMER CONFORMED NAME: RESOURCE MORTGAGE INVESTMENT CORP DATE OF NAME CHANGE: 19930505 FORMER COMPANY: FORMER CONFORMED NAME: RAC MORTGAGE INVESTMENT CORP /VA/ DATE OF NAME CHANGE: 19930505 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WESTERN INVESTMENT LLC CENTRAL INDEX KEY: 0001286207 IRS NUMBER: 870623442 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 7050 S. UNION PARK CENTER, SUITE 590 CITY: MIDVALE STATE: UT ZIP: 84047 BUSINESS PHONE: 801-568-1400 MAIL ADDRESS: STREET 1: 7050 S. UNION PARK CENTER, SUITE 590 CITY: MIDVALE STATE: UT ZIP: 84047 SC 13D/A 1 widx13d100309.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* Dynex Capital, Inc. - - ----------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $.01 per share - - ----------------------------------------------------------------------- (Title of Class of Securities) 26817Q506 - - ----------------------------------------------------------------------- (CUSIP Number) Arthur D. Lipson Western Investment LLC 7050 South Union Park Center, Ste. 590 Midvale, UT 84047 - - ----------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) January 14, 2010 - - ----------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), (f) or (g), check the following box [ ]. CUSIP No. - 26817Q506 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). WESTERN INVESTMENT LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* (See Item 3) OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) [ ] OR 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7 SOLE VOTING POWER (See Item 5) SHARES 1,056,632 shares BENEFICIALLY 8 SHARED VOTING POWER (See Item 5) OWNED BY 0 shares EACH 9 SOLE DISPOSITIVE POWER REPORTING 1,056,632 shares PERSON 10 SHARED DISPOSITIVE POWER WITH 0 shares 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 1,056,632 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.4% 14 TYPE OF REPORTING PERSON* OO 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). ARTHUR D. LIPSON 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* (See Item 3) OO,PF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) [ ] OR 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF 7 SOLE VOTING POWER (See Item 5) SHARES 1,081,632 shares BENEFICIALLY 8 SHARED VOTING POWER (See Item 5) OWNED BY 0 shares EACH 9 SOLE DISPOSITIVE POWER REPORTING 1,081,632 shares PERSON 10 SHARED DISPOSITIVE POWER WITH 0 shares 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 1,081,632 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.6% 14 TYPE OF REPORTING PERSON* IN 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). WESTERN INVESTMENT HEDGED PARTNERS LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* (See Item 3) WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) [ ] OR 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7 SOLE VOTING POWER (See Item 5) SHARES 62,501 shares BENEFICIALLY 8 SHARED VOTING POWER (See Item 5) OWNED BY 0 shares EACH 9 SOLE DISPOSITIVE POWER REPORTING 62,501 shares PERSON 10 SHARED DISPOSITIVE POWER WITH 0 shares 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 62,501 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.4% 14 TYPE OF REPORTING PERSON* PN 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). WESTERN INVESTMENT INSTITUTIONAL PARTNERS LLC 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* (See Item 3) WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) [ ] OR 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7 SOLE VOTING POWER (See Item 5) SHARES 977,894 shares BENEFICIALLY 8 SHARED VOTING POWER (See Item 5) OWNED BY 0 shares EACH 9 SOLE DISPOSITIVE POWER REPORTING 977,894 shares PERSON 10 SHARED DISPOSITIVE POWER WITH 0 shares 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 977,894 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.8% 14 TYPE OF REPORTING PERSON* OO 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). WESTERN INVESTMENT TOTAL RETURN PARTNERS LP 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] 3 SEC USE ONLY 4 SOURCE OF FUNDS* (See Item 3) WC 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) [ ] OR 2(e) [ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE NUMBER OF 7 SOLE VOTING POWER (See Item 5) SHARES 16,237 shares BENEFICIALLY 8 SHARED VOTING POWER (See Item 5) OWNED BY 0 shares EACH 9 SOLE DISPOSITIVE POWER REPORTING 16,237 shares PERSON 10 SHARED DISPOSITIVE POWER WITH 0 shares 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON (See Item 5) 16,237 shares 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% 14 TYPE OF REPORTING PERSON* PN The following constitutes Amendment No. 1 to the Schedule 13D filed by the undersigned ("Amendment No. 1"). This Amendment No. 1 amends the Schedule 13D as specifically set forth herein. ITEM 1. SECURITY AND ISSUER Item 1 is hereby amended and restated to read as follows: This statement relates to shares of the Common Stock, par value $.01 (the "Common Shares"), of Dynex Capital, Inc. (the "Issuer"). The Common Shares reported in this statement include Common Shares issuable upon conversion of the Issuer's Series D 9.50% Cumulative Convertible Preferred Stock, par value $.01 (the "Preferred Shares"). Based on the Issuer's public filings, each outstanding Preferred Share is currently convertible into one Common Share at the option of the holder. The address of the principal executive offices of the Issuer is 4991 Lake Brook Drive, Suite 100, Glen Allen, VA 23060. ITEM 2. IDENTITY AND BACKGROUND Item 2 is hereby amended and restated to read as follows: (a) This statement is filed by Western Investment LLC, a Delaware limited liability company ("WILLC"), Arthur D. Lipson, Western Investment Hedged Partners LP, a Delaware limited partnership ("WIHP"), Western Investment Institutional Partners LLC ("WIIP"), a Delaware limited liability company, and Western Investment Total Return Partners LP ("WITRP"), a Delaware limited partnership. Each of the foregoing is referred to as a "Reporting Person" and collectively as the "Reporting Persons." WILLC has sole voting and investment power over WIHP's, WIIP's and WITRP'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 each Reporting Person is 7050 South Union Park Center, Suite 590, Midvale, UT 84047. (c) The principal business of WILLC is acting as the managing member of WIIP and the general partner of each of WIHP and WITRP. The principal occupation of Arthur D. Lipson is acting as managing member of WILLC. The principal business of WIHP, WIIP and WITRP is acquiring, holding and disposing of investments in various companies. 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 914,631 Common Shares beneficially owned by WILLC (not including shares issuable upon conversion of Preferred Shares beneficially owned by WILLC) is approximately $6,346,562. The aggregate purchase price of the 142,001 Preferred Shares beneficially owned by WILLC is approximately $1,466,172. The Common Shares and Preferred Shares beneficially owned by WILLC were acquired with the investment funds of each of WIHP, WIIP and WITRP. The aggregate purchase price of the 25,000 Common Shares owned directly by Mr. Lipson is $141,500. The Common Shares owned directly by Mr. Lipson were acquired with his personal funds. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER Item 5 is hereby amended and restated to read as follows: (a) The aggregate percentage of Common Shares reported owned by each person named herein is based upon 14,182,912 Common Shares outstanding as of March 1, 2010, as reported in the Issuer's Form 10-K, filed with the Securities and Exchange Commission on March 8, 2010. As of the close of business on March 8, 2010, WIHP, WIIP and WITRP beneficially owned 62,501, 977,894 and 16,237 Common Shares, respectively, representing approximately 0.4%, 6.8% and 0.1%, respectively, of the Common Shares outstanding. The Common Shares beneficially owned by WIIP include 142,001 Common Shares that are issuable upon the conversion of Preferred Shares owned by WIIP. WILLC beneficially owned 1,056,632 Common Shares, constituting approximately 7.4% of the Common Shares outstanding. Mr. Lipson beneficially owned 1,081,632 Common Shares, constituting approximately 7.6% of the Common Shares outstanding. The Common Shares beneficially owned by Mr. Lipson consist of the 1,056,632 Common Shares beneficially owned by WILLC and 25,000 Common Shares owned directly by him. As the managing member of WIIP and general partner of each of WIHP and WITRP, WILLC may be deemed to beneficially own the 1,056,632 Common Shares beneficially owned in the aggregate by WIHP, WIIP and WITRP. As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 1,056,632 Common Shares beneficially owned by WILLC, in addition to the 25,000 Common Shares owned directly by him. (b) Each of WILLC and Mr. Lipson is deemed to have sole voting and dispositive power over the securities reported herein as beneficially owned by WIHP, WIIP and WITRP by virtue of their respective positions as described in paragraph (a). Mr. Lipson has sole voting and dispositive power over the securities reported herein as owned directly by him. (c) Schedule A annexed hereto lists all transactions in the Common Shares and Preferred Shares during the past sixty days by the Reporting Persons. 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 and restated to read as follows: On March 9, 2010, the Reporting Persons entered into a Joint Filing Agreement in which the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer. Other than as described herein, there are no contracts, arrangements, understandings or relationships among the Reporting Persons, or between the Reporting Persons and any other person, with respect to the securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 1. Joint Filing Agreement by and among Western Investment LLC, Arthur D. Lipson, Western Investment Hedged Partners LP, Western Investment Institutional Partners LLC and Western Investment Total Return Partners LP, dated March 9, 2010. SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. March 9, 2010 WESTERN INVESTMENT LLC By: /s/ Arthur D. Lipson, Managing Member WESTERN INVESTMENT HEDGED PARTNERS LP By: Western Investment LLC, its General Partner By: /s/ Arthur D. Lipson, Managing Member WESTERN INVESTMENT INSTITUTIONAL PARTNERS LLC By: Western Investment LLC, its Managing Member By: /s/ Arthur D. Lipson, Managing Member WESTERN INVESTMENT TOTAL RETURN PARTNERS LP By: Western Investment LLC, its General Partner By: /s/ Arthur D. Lipson, Managing Member /s/ Arthur D. Lipson ___________________________ ARTHUR D. LIPSON SCHEDULE A COMMON STOCK Transaction Code Quantity Trade Date Price WIHP Sell 3,875 1/11/2010 $9.1009 Sell 1,110 1/11/2010 $9.0823 Sell 1,100 1/12/2010 $9.1191 Sell 1,500 1/14/2010 $9.0747 Sell 2,955 1/14/2010 $9.0840 Sell 7,900 1/15/2010 $9.0861 Sell 646 1/15/2010 $9.0694 Sell 11,045 1/19/2010 $9.0865 Buy 5,715 1/21/2010 $9.0125 Buy 11,000 1/22/2010 $9.0080 Buy 800 1/25/2010 $9.0125 Buy 1,800 1/26/2010 $9.0125 Buy 400 1/27/2010 $9.0125 Buy 6,700 1/28/2010 $9.0125 Buy 1,400 1/29/2010 $9.0125 Buy 3,000 2/01/2010 $9.0125 Sell 13,718 2/25/2010 $9.0516 Sell 35,235 2/26/2010 $8.9955 Sell 2,300 3/02/2010 $8.9952 Sell 7,500 3/03/2010 $8.9967 Sell 10,100 3/04/2010 $8.9969 Sell 6,000 3/05/2010 $8.9975 Sell 3,400 3/08/2010 $8.9965 Sell 2,400 3/08/2010 $8.9965 WITRP Sell 1,905 3/03/2010 $8.9948 Sell 2,623 3/04/2010 $8.9955 Sell 1,601 3/05/2010 $8.9952 Sell 674 3/08/2010 $8.9941 Sell 868 3/08/2010 $8.9941 EX-99 2 widxexhibit100309.txt EXHIBIT A JOINT FILING AGREEMENT In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D dated August 7, 2006 (including amendments thereto) with respect to the Common Stock of Dynex Capital, Inc. This Joint Filing Agreement shall be filed as an Exhibit to such Statement. Dated: March 9, 2010 WESTERN INVESTMENT LLC By: /s/ Arthur D. Lipson, Managing Member WESTERN INVESTMENT HEDGED PARTNERS LP By: Western Investment LLC, its General Partner By: /s/ Arthur D. Lipson, Managing Member WESTERN INVESTMENT INSTITUTIONAL PARTNERS LLC By: Western Investment LLC, its Managing Member By: /s/ Arthur D. Lipson, Managing Member WESTERN INVESTMENT TOTAL RETURN PARTNERS LP By: Western Investment LLC, its General Partner By: /s/ Arthur D. Lipson, Managing Member /s/ Arthur D. Lipson ARTHUR D. LIPSON -----END PRIVACY-ENHANCED MESSAGE-----