-----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, OSdEshDnI5Aj39GfRd1xNctfD1kgkokMSOGLwmbnnAMOhoHqh1ChGWMGnOTBZFTF sIGSKCg60N0qXqg1Xe1lmQ== 0000921895-08-003019.txt : 20081209 0000921895-08-003019.hdr.sgml : 20081209 20081209171241 ACCESSION NUMBER: 0000921895-08-003019 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20081209 DATE AS OF CHANGE: 20081209 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: TRI-CONTINENTAL CORP CENTRAL INDEX KEY: 0000099614 IRS NUMBER: 135441850 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-81256 FILM NUMBER: 081239104 BUSINESS ADDRESS: STREET 1: 100 PARK AVENUE, STREET 2: 8TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128501864 MAIL ADDRESS: STREET 1: 100 PARK AVENUE STREET 2: 8TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: TRI CONTINENTAL CORP DATE OF NAME CHANGE: 19920703 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 sc13da1106290008_12052008.htm sc13da1106290008_12052008.htm
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D
(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
§ 240.13d-2(a)

(Amendment No. 11)1

Tri-Continental Corporation
(Name of Issuer)

Common Stock, par value $0.50 per share
(Title of Class of Securities)

895436103
(CUSIP Number)

STEVEN WOLOSKY, ESQ.
OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP
Park Avenue Tower
65 East 55th Street
New York, New York 10022
(212) 451-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

December 8, 2008
(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 that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.


_______________
1              The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
5,143,215
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
5,143,215
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
5,143,215
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
4.96%
14
TYPE OF REPORTING PERSON
 
OO

2

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
ARTHUR D. LIPSON
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO, PF
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
5,144,116
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
5,144,116
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
5,144,116
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
4.96%
14
TYPE OF REPORTING PERSON
 
IN

3

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT HEDGED PARTNERS L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
2,097,615
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
2,097,615
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
2,097,615
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
2.02%
14
TYPE OF REPORTING PERSON
 
PN

4

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT ACTIVISM PARTNERS LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
1,969,700
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,969,700
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,969,700
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.90%
14
TYPE OF REPORTING PERSON
 
OO

5

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT INSTITUTIONAL PARTNERS LLC
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
992,100
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
992,100
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
992,100
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
OO

6

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
    WESTERN INVESTMENT TOTAL RETURN FUND LTD.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
CAYMAN ISLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
- 0 -
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
- 0 -
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
- 0 -
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
0%
14
TYPE OF REPORTING PERSON
 
CO

7

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
83,800
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
83,800
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
83,800
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
Less than 1%
14
TYPE OF REPORTING PERSON
 
PN

8

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
1,810,050
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,810,050
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,810,050
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.75%
14
TYPE OF REPORTING PERSON
 
OO

9

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
BENCHMARK PLUS PARTNERS, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
WC
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
1,525,175
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
1,525,175
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
1,525,175
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
1.47%
14
TYPE OF REPORTING PERSON
 
OO

10

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
BENCHMARK PLUS MANAGEMENT, L.L.C.
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
DELAWARE
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
3,335,225
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,335,225
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,335,225
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
3.22%
14
TYPE OF REPORTING PERSON
 
OO

11

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
SCOTT FRANZBLAU
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
3,335,225
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,335,225
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,335,225
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
3.22%
14
TYPE OF REPORTING PERSON
 
IN

12

CUSIP NO. 895436103
 
 
1
NAME OF REPORTING PERSON
 
ROBERT FERGUSON
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
  (a) o
  (b) o
3
SEC USE ONLY
 
4
SOURCE OF FUNDS
 
OO
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)
 
¨
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
3,335,225
8
SHARED VOTING POWER
 
- 0 -
9
SOLE DISPOSITIVE POWER
 
3,335,225
10
SHARED DISPOSITIVE POWER
 
- 0 -
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
3,335,225
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
 
¨
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
3.22%
14
TYPE OF REPORTING PERSON
 
IN

13

CUSIP NO. 895436103
 
The following constitutes Amendment No. 11 (“Amendment No. 11”) to the Schedule 13D filed by the undersigned.  This Amendment No. 11 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 as follows:
 
The aggregate purchase price of the 5,143,215 shares of common stock, $.50 par value per share (the “Common Stock”) beneficially owned by WILLC is approximately $99,269,591, including brokerage commissions.  The shares of Common Stock beneficially owned by WILLC were acquired with the working capital of each of WIHP, WIAP, WIIP and WITRP.  The aggregate purchase price of the 901 shares of Common Stock owned directly by Mr. Lipson is approximately $18,785, including brokerage commissions.  The shares of Common Stock owned directly by Mr. Lipson were acquired with personal funds.  The aggregate purchase price of the 3,335,225 shares of Common Stock beneficially owned by BPM is approximately $60,782,340, including brokerage commissions.  The shares of Common Stock beneficially owned by BPM were acquired with the working capital of BPIP and the working capital of BPP.
 
Item 5.
Interest in Securities of the Issuer.
 
Item 5 is hereby amended and restated as follows:
 
(a)           The aggregate percentage of shares of Common Stock reported owned by each person named herein is based upon 103,738,828 shares of Common Stock outstanding as of November 10, 2008, as reported in the Issuer’s Offer to Purchase filed as Exhibit 99.(A)(1)(i) to the Issuer’s Schedule TO filed with the Securities and Exchange Commission on November 12, 2008.
 
As of the close of business on December 5, 2008, WIHP, WIAP, WIIP and WITRP beneficially owned 2,097,615, 1,969,700, 992,100 and 83,800 shares of Common Stock, respectively, constituting approximately 2.02%, 1.90%, less than 1% and less than 1%, respectively, of the shares of Common Stock outstanding.  WILLC beneficially owned 5,143,215 shares of Common Stock, constituting approximately 4.96% of the shares of Common Stock outstanding.  Mr. Lipson beneficially owned 5,144,116 shares of Common Stock, constituting approximately 4.96% of the shares of Common Stock outstanding.
 
As the general partner or managing member, as the case may be, of WIHP, WIAP, WIIP and WITRP, WILLC may be deemed to beneficially own the 5,143,215 shares of Common Stock owned in the aggregate by WIHP, WIAP, WIIP and WITRP.  As the managing member of WILLC, Mr. Lipson may be deemed to beneficially own the 5,143,215 shares of Common Stock beneficially owned by WILLC, in addition to the 901 shares of Common Stock owned directly by Mr. Lipson.
 
14

CUSIP NO. 895436103
 
As of the close of business on December 5, 2008, BPIP and BPP beneficially owned 1,810,050 and 1,525,175 shares of Common Stock, respectively, constituting approximately 1.75% and 1.47%, respectively, of the shares of Common Stock outstanding.  As the managing member of BPIP and BPP, BPM may be deemed to beneficially own the 3,335,225 shares of Common Stock owned in the aggregate by BPIP and BPP, constituting approximately 3.22% of the shares of Common Stock outstanding.  As managing members of BPM, Messrs. Franzblau and Ferguson may be deemed to beneficially own the 3,335,225 shares of Common Stock beneficially owned by BPM, constituting approximately 3.22% of the shares of Common Stock outstanding.
 
Each of the Western Entities disclaims beneficial ownership of the shares of Common Stock beneficially owned by the other Reporting Persons.
 
Each of the Benchmark Entities disclaims beneficial ownership of the shares of Common Stock beneficially owned by the other Reporting Persons.
 
(b)           Each of WILLC and Mr. Lipson is deemed to have sole voting and dispositive power over the shares of Common Stock reported as beneficially owned by the Western Entities by virtue of their respective positions as described in paragraph (a).
 
Each of BPM, Mr. Ferguson and Mr. Franzblau is deemed to have sole voting and dispositive power over the shares of Common Stock reported as beneficially owned by the Benchmark Entities by virtue of their respective positions as described in paragraph (a).
 
None of the Western Entities has voting or dispositive control over the shares of Common Stock held by the other Reporting Persons.  None of the Benchmark Entities has voting or dispositive control over the shares of Common Stock held by the other Reporting Persons.
 
(c)           Schedule A annexed hereto lists all transactions in the shares of Common Stock by the Reporting Persons during the past 60 days.
 
(d)           No person other than the Reporting Persons is known to have the right to receive, or the power to direct the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock.
 
(e)           Effective December 8, 2008, the Reporting Persons ceased to be beneficial owners of more than 5% of the securities of the Issuer.
 
Item 6.
Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
 
Item 6 is hereby amended to add the following:
 
On December 8, 2008, Western, BPIP and BPP entered into an agreement (the “Agreement”) whereby Western agreed to cease providing recommendations to BPIP and BPP with respect to purchases and sales of securities of the Issuer.  In addition, pursuant to the terms of the Agreement, BPIP, BPP, BPM, Mr. Ferguson and Mr. Franzblau are no longer members of a “group” with respect to the securities of the Issuer with the other Reporting Persons.
 
Since the filing of Amendment No. 10, each of WIHP, WIAP and WIIP has unwound its position with respect to the Swap Arrangements.  Accordingly, as of the close of business on December 5, 2008, WIHP, WIAP and WIIP are no longer parties to the Swap Arrangements.
 
15

CUSIP NO. 895436103
 
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: December 9, 2008
WESTERN INVESTMENT LLC
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT HEDGED PARTNERS L.P.
     
 
By:
Western Investment LLC
   
General Partner
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT ACTIVISM PARTNERS LLC
     
 
By:
Western Investment LLC
   
Managing Member
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
     
 
By:
Western Investment LLC
   
General Partner
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member

16


 
WESTERN INVESTMENT TOTAL RETURN FUND LTD.
     
 
By:
Western Investment LLC
   
Investment Manager
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member

 
 
WESTERN INVESTMENT INSTITUTIONAL PARTNERS LLC
     
 
By:
Western Investment LLC
   
Managing Member
     
 
By:
/s/ Arthur D. Lipson
   
Name:
Arthur D. Lipson
   
Title:
Managing Member


 
/s/ Arthur D. Lipson
 
ARTHUR D. LIPSON


 
BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
     
 
By:
Benchmark Plus Management, L.L.C.
   
Managing Member
     
 
By:
/s/ Robert Ferguson
   
Name:
Robert Ferguson
   
Title:
Managing Member
     
 
By:
/s/ Scott Franzblau
   
Name:
Scott Franzblau
   
Title:
Managing Member

17

CUSIP NO. 895436103

 
BENCHMARK PLUS PARTNERS, L.L.C.
     
 
By:
Benchmark Plus Management, L.L.C.
   
Managing Member
     
 
By:
/s/ Robert Ferguson
   
Name:
Robert Ferguson
   
Title:
Managing Member
     
 
By:
/s/ Scott Franzblau
   
Name:
Scott Franzblau
   
Title:
Managing Member


 
BENCHMARK PLUS MANAGEMENT, L.L.C.
     
 
By:
/s/ Robert Ferguson
   
Name:
Robert Ferguson
   
Title:
Managing Member
     
 
By:
/s/ Scott Franzblau
   
Name:
Scott Franzblau
   
Title:
Managing Member

 
 
/s/ Robert Ferguson
 
ROBERT FERGUSON

 
 
/s/ Scott Franzblau
 
SCOTT FRANZBLAU
 
18

CUSIP NO. 895436103

SCHEDULE A
Transactions in the Shares of Common Stock During the Past 60 Days

Shares of Common Stock
Purchased / Sold
Price Per
Share($)
Date of
Purchase / Sale

WESTERN INVESTMENT HEDGED PARTNERS L.P.
(1,500)
 
12.1074
10/14/08
(15,200)
 
10.9044
10/16/08
(1,500)
 
10.4374
10/24/08
(13,800)
 
10.6590
10/27/08
(2,000)
 
11.0423
10/29/08
(25,000)
 
12.3530
11/04/08
(80,900)
 
12.0034
11/05/08
(23,700)
 
11.2097
11/06/08
(86,200)
 
11.3766
11/07/08
(70,500)
 
11.3956
11/10/08
(65,200)
 
10.9788
11/11/08
(59,900)
 
10.6231
11/12/08
(38,500)
 
10.4733
11/13/08
(45,600)
 
10.8592
11/14/08
(5,900)
 
10.5823
11/17/08
(58,000)
 
10.2930
11/18/08
(27,000)
 
10.2209
11/19/08
(6,800)
 
9.3173
11/20/08
(1,200)
 
9.3391
11/21/08
(1,200)
 
10.2075
11/24/08
(10,000)
 
9.8033
11/25/08
(15,000)
 
10.2028
11/26/08
(8,200)
 
10.5247
11/28/08
(22,500)
 
10.0936
12/01/08

19

CUSIP NO. 895436103
 
WESTERN INVESTMENT ACTIVISM PARTNERS LLC
(1,500)
 
12.1074
10/14/08
(200)
 
11.3874
10/15/08
(2,700)
 
10.9007
10/16/08
(12,500)
 
10.9044
10/16/08
(1,600)
 
10.4374
10/24/08
(14,100)
 
10.6590
10/27/08
(1,300)
 
10.3628
10/28/08
(2,100)
 
11.0423
10/29/08
(25,000)
 
12.3530
11/04/08
(81,000)
 
12.0034
11/05/08
(23,700)
 
11.2097
11/06/08
(86,300)
 
11.3766
11/07/08
(70,600)
 
11.3956
11/10/08
(65,200)
 
10.9788
11/11/08
(60,000)
 
10.6231
11/12/08
(38,600)
 
10.4733
11/13/08
(45,700)
 
10.8592
11/14/08
(6,000)
 
10.5824
11/17/08
(58,000)
 
10.2930
11/18/08
(27,000)
 
10.2209
11/19/08
(6,800)
 
9.3173
11/20/08
(1,100)
 
9.3384
11/21/08
(1,300)
 
10.2081
11/24/08
(10,000)
 
9.8033
11/25/08
(8,300)
 
10.5247
11/28/08
(22,500)
 
10.0936
12/01/08
 
20

CUSIP NO. 895436103
 
WESTERN INVESTMENT INSTITUTIONAL PARTNERS LLC
145,700*
 
10.2900
11/25/08
(15,000)
 
10.2028
11/26/08
120,000*
 
10.2921
11/26/08

WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
(12,900)
 
10.9041
10/16/08
(11,700)
 
11.8783
10/17/08
(29,600)
 
12.0580
10/20/08
(19,900)
 
12.0021
10/21/08
(10,000)
 
11.4059
10/22/08
(60,000)
 
11.4059
10/22/08
(10,100)
 
10.7231
10/23/08
(1,500)
 
10.4374
10/24/08
(13,800)
 
10.6590
10/27/08

WESTERN INVESTMENT TOTAL RETURN FUND LTD.
(145,700)**
 
10.2900
11/25/08
(120,000)**
 
10.2878
11/26/08



 
** Shares were transferred in a cross trade with Western Investment Institutional Partners LLC, an affiliate of Western Investment Total Return Fund Ltd.
 
 
21

 


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