- Amended Statement of Beneficial Ownership (SC 13D/A)

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. 2) 1

Nuveen Florida Investment Quality Municipal Fund

(Name of Issuer)

Common Stock, $0.01 Par Value

(Title of Class of Securities)

670970102

(CUSIP Number)

 

STEVEN WOLOSKY, ESQ.

OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

[phone]

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

August 12, 2009

(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. 670970102

 

 

1	NAME OF REPORTING PERSON   WESTERN INVESTMENT LLC
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (b)  o
3	SEC USE ONLY
4	SOURCE OF FUNDS   OO, 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   763,000
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   763,000
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   763,000
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   4.7%
14	TYPE OF REPORTING PERSON   OO

2

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   ARTHUR D. LIPSON
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   763,001
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   763,001
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   763,001
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   4.7%
14	TYPE OF REPORTING PERSON   IN

3

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   WESTERN INVESTMENT HEDGED PARTNERS L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   266,240
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   266,240
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   266,240
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   1.6%
14	TYPE OF REPORTING PERSON   PN

4

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   189,516
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   189,516
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   189,516
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   1.2%
14	TYPE OF REPORTING PERSON   PN

5

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   WESTERN INVESTMENT TOTAL RETURN FUND LTD.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   CAYMAN ISLANDS
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER   306,844
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   306,844
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   306,844
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   1.9%
14	TYPE OF REPORTING PERSON   CO

6

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   BENCHMARK PLUS INSTITUTIONAL PARTNERS, L.L.C.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   70,009
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   70,009
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   70,009
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   LESS THAN 1%
14	TYPE OF REPORTING PERSON   OO

7

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   BENCHMARK PLUS PARTNERS, L.L.C.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   66,013
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   66,013
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   66,013
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   LESS THAN 1%
14	TYPE OF REPORTING PERSON   OO

8

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   BENCHMARK PLUS MANAGEMENT, L.L.C.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   136,022
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   136,022
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   136,022
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   LESS THAN 1%
14	TYPE OF REPORTING PERSON   OO

9

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   ROBERT FERGUSON
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   136,022
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   136,022
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   136,022
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   LESS THAN 1%
14	TYPE OF REPORTING PERSON   IN

10

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   SCOTT FRANZBLAU
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   136,022
	8	SHARED VOTING POWER   - 0 -
	9	SOLE DISPOSITIVE POWER   136,022
	10	SHARED DISPOSITIVE POWER   - 0 -
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   136,022
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   LESS THAN 1%
14	TYPE OF REPORTING PERSON   IN

11

---

CUSIP NO. 670970102

 

 

1	NAME OF REPORTING PERSON   ROBERT H. DANIELS
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a)  x   (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   USA
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		x
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0%
14	TYPE OF REPORTING PERSON   IN

 

**See Item 5.

12

---

CUSIP NO. 670970102

 

The following constitutes Amendment No. 2 to the Schedule 13D filed by the undersigned (“Amendment No. 2”).  This Amendment No. 2 amends the Schedule 13D as specifically set forth.

 

Item 2.

Identity and Background .

 

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 and 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.

 

13

---

CUSIP NO. 670970102

 

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 annexed hereto, 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 annexed hereto, 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.

 

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 763,000 Shares beneficially owned by WILLC is approximately $8,871,148.  The Shares beneficially owned by WILLC consist of 400 Shares that were acquired with WILLC’s working capital, 266,240 Shares that were acquired with WIHP’s working capital, 189,516 Shares that were acquired with WITRP’s working capital and 306,844 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 136,022 Shares beneficially owned by BPM is approximately $1,557,717.  The Shares beneficially owned by BPM consist of 70,009 Shares that were acquired with BPIP’s working capital and 66,013 Shares that were acquired with BPP’s working capital.

 

Item 4.

Purpose of Transaction .

 

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 12, 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”).

 

14

---

CUSIP NO. 670970102

 

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 NQF, which if consummated would result in a change to NQF’s investment policy, that NQF 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 NQF for cash at a price equivalent to 99% of the net asset value, or NAV, per share of NQF.

 

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 16,325,802 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 14, 2009, WIHP, WITRP and WITRL beneficially owned 266,240, 189,516 and 306,844 Shares, respectively, representing approximately 1.6%, 1.2% and 1.9%, 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 762,600 Shares owned in the aggregate by WIHP, WITRP and WITRL, constituting approximately 4.7% 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 763,000 Shares beneficially owned by WILLC, constituting approximately 4.7% 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 136,022 Shares owned by the other Reporting Persons.  The Western Entities disclaim beneficial ownership of such Shares.

 

As of the close of business on August 14, 2009, BPIP and BPP beneficially owned 70,009 and 66,013 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 136,022 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 136,022 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 763,001 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 899,023 Shares beneficially owned in the aggregate by the other Reporting Persons.  Mr. Daniels disclaims beneficial ownership of such Shares.

 

15

---

CUSIP NO. 670970102

 

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 Amendment No. 1 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 August 17, 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.

 

Item 7.

Material to be Filed as Exhibits .

 

Item 7 is hereby amended to add the following exhibits:

 

99.1

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 17, 2009.

 

99.2

Power of Attorney.

 

99.3

Form of Indemnification Letter Agreement.

 

16

---

CUSIP NO. 670970102

 

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: August 17, 2009	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 TOTAL RETURN PARTNERS L.P.
	By:	Western Investment LLC
		General Partner
	By:	/s/ Arthur D. Lipson
		Name:	Arthur D. Lipson
		Title:	Managing Member

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

	/s/ Arthur D. Lipson
	ARTHUR D. LIPSON

 

17

---

CUSIP NO. 670970102

 

	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

	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

 

	/s/ Arthur D. Lipson
	ARTHUR D. LIPSON As Attorney-In-Fact for Robert H. Daniels

18

---

CUSIP NO. 670970102

 

SCHEDULE A

 

Transactions in the Shares Since the Filing of Amendment No. 1 to the Schedule 13D

 

Date of Purchase / Sale

Shares of Common Stock Purchased / (Sold)

Price Per Share ($)

WESTERN INVESTMENT HEDGED PARTNERS L.P.

07/30/09	3,348		12.1418
08/06/09	1,700		12.2644
08/07/09	600		12.2918
08/10/09	400		12.3585
08/12/09	505		12.3485

WESTERN INVESTMENT LLC

None

WESTERN INVESTMENT TOTAL RETURN PARTNERS L.P.

07/29/09	200		12.0385
07/29/09	(113)		12.0612
08/03/09	2,500		12.3345
08/06/09	1,700		12.2644

WESTERN INVESTMENT TOTAL RETURN FUND LTD.

07/30/09	3,347		12.1418
07/31/09	(1,000)		12.2012

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

 

19

---

CUSIP NO. 670970102

 

ROBERT FERGUSON

None

 

ROBERT H. DANIELS

None

 

20

---

CUSIP NO. 670970102

 

SCHEDULE B

 

Directors and Officers of Western Investment Total Return Fund Ltd.

Name and Position	Principal Occupation	Principal Business Address
Don M. Seymour Director	Businessperson dms Management Ltd.	dms Management P.O. Box 31910 dms House, 20 Genesis Close, Grand Cayman KY1-1208, Cayman Islands
David Bree Director	Businessperson dms Management Ltd.	dms Management P.O. Box 31910 dms House, 20 Genesis Close, Grand Cayman KY1-1208, Cayman Islands
J.D. Clark & Co. Secretary	Trust Company	2225 Washington Blvd. Ogden, Utah 84401

21