Attached files
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K
(Amendment No. 1)
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the fiscal year ended December 31, 2010
Or
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period from ___________ to __________
Commission files number 1-4673
WILSHIRE ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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84-0513668
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(State or other jurisdiction of
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(IRS Employer
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incorporation or organization)
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Identification No.)
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100 Eagle Rock Avenue
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East Hanover, New Jersey
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07936
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: (201) 420-2796
Securities registered pursuant to section 12(b) of the Act:
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Name of each exchange
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Title of each class
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on which registered
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None
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None
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Securities registered pursuant to section 12(g) of the Act:
Common Stock, $1 par value (Title of each class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No x
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Yes x No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. x
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o Accelerated filer o Non-accelerated filer o Smaller reporting company x
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes o No x
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter (June 30, 2010), was $962,430.
The number of shares outstanding of the registrant’s $1 par value common stock, as of July 1, 2011 was 3,767,174.
EXPLANATORY NOTE
The purpose of this Amendment No. 1 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2010 (“Form 10-K”) as filed with the Securities and Exchange Commission (the “SEC”) on July 29, 2011, is to furnish Exhibits 3.3, 10.28 and 10.29, which were inadvertently not filed with the Form 10-K, and to correct the Exhibit list to reflect that Exhibits 3.3, 10.28 and 10.29 are being filed herewith.
No other changes have been made to the Form 10-K other than the furnishing of the exhibits described above and the updated Exhibit list in Item 15. This Amendment No. 1 does not reflect subsequent events occurring after the original filing date of the Form 10-K or modify or update in any way disclosures made in the Form 10-K.
PART IV
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(b)
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Exhibits
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Exhibit #
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Description
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3.1
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Restated Certificate of Incorporation of Wilshire Enterprises, Inc., as amended. (Incorporated by referenced to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed with the SEC on December 8, 2008.)
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3.2
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By-laws, as amended and restated through August 7, 2009. (Incorporated by reference to Exhibit 3.1 of the Company's Current Report on Form 8-K filed with the SEC on August 7, 2009.)
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3.3
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Certificate of Amendment of Certificate of Incorporation filed with the Delaware Secretary of State on February 28, 2011 (filed herewith)
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4.1
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Qualified Offer Plan Rights Agreement, dated as of December 4, 2008, between Wilshire Enterprises, Inc. and Continental Stock Transfer & Trust Company, as Rights Agent. (Incorporated by referenced to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed with the SEC on December 4, 2008.)
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10.2
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Wilshire Enterprises, Inc. 1995 Stock Option and Incentive Plan. (Incorporated by reference to Exhibit A of the Company’s Definitive Proxy Statement for its 1995 Annual Meeting of Stockholders.)
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10.3
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Wilshire Enterprises, Inc. 1995 Non-Employee Director Stock Option Plan. (Incorporated by reference to Exhibit B of the Company’s Definitive Proxy Statement for its 1995 Annual Meeting of Stockholders.)
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10.4
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Wilshire Enterprises, Inc. 2004 Stock Option and Incentive Plan. (Incorporated by reference to Appendix C of the Company’s Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders.)
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10.5
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Wilshire Enterprises, Inc. 2004 Non-Employee Director Stock Option Plan. (Incorporated by reference to Appendix D of the Company’s Definitive Proxy Statement for its 2004 Annual Meeting of Stockholders.)
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10.6
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Promissory Note given by Alpine Village Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., to Merrill Lynch Mortgage Lending, Inc. dated February 28, 2003. (Incorporated by reference to Exhibit 10.74 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.7
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Environmental Indemnity Agreement between Alpine Village Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 28, 2003. (Incorporated by reference to Exhibit 10.75 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.8
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Indemnity and Guaranty Agreement between Alpine Village Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 28, 2003. (Incorporated by reference to Exhibit 10.76 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.9
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Multifamily Mortgage, Security Agreement, Assignment of Rents and Fixture Filing between Alpine Village Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 28, 2003. (Incorporated by reference to Exhibit 10.77 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.10
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Promissory Note given by Sunrise Ridge, L.L.C., a subsidiary of Wilshire Enterprises, Inc., to Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.78 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.11
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Environmental Indemnity Agreement between Sunrise Ridge, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.79 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.12
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Indemnity and Guaranty Agreement between Sunrise Ridge, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.80 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.13
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Multifamily Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing between Sunrise Ridge, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to
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10.14
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Promissory Note given by Van Buren, L.L.C., a subsidiary of Wilshire Enterprises, Inc., to Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.82 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.15
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Environmental Indemnity Agreement between Van Buren, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.83 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.16
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Indemnity and Guaranty Agreement between Van Buren, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.84 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.17
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Multifamily Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing between Van Buren, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.85 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.18
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Promissory Note given by Wellington Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., to Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.86 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.19
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Environmental Indemnity Agreement between Wellington Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.87 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.20
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Indemnity and Guaranty Agreement between Wellington Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.88 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.21
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Multifamily Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing between Wellington Apartments, L.L.C., a subsidiary of Wilshire Enterprises, Inc., and Merrill Lynch Mortgage Lending, Inc. dated February 27, 2003. (Incorporated by reference to Exhibit 10.89 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2002.)
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10.22
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Letter Agreement, dated as of September 4, 2007, between Wilshire Enterprises, Inc. and Frank Elenio. (Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on September 5, 2007.)
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10.23
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Severance Letter Agreement between the Company and Sherry Wilzig Izak dated as of March 29, 2004. (Incorporated by reference to Exhibit 10.94 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2003.)
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10.24
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Amendment to Severance Letter Agreement between the Company and Sherry Wilzig Izak dated December 31, 2008, in order to comply with Section 409A of the Internal Revenue Code of 1986, as amended. (Incorporated by reference to Exhibit 10.26 of the Company’s Annual Report on Form 10-K for the year ended December 31, 2008.)
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10.25
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Form of Indemnification Agreement of Directors and Chief Financial Officer (Incorporated by reference to Exhibit 10.1 of the Company's Current Report on Form 8-K filed with the SEC on January 18, 2007).
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10.26
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Settlement Agreement, dated as of April 2, 2009, among Wilshire Enterprises, Inc., Bulldog Investors, Full Value Partners, L.P. and certain of their affiliates. (Incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed with the SEC on April 3, 2009.)
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10.27
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Amendment No. 1 to Qualified Offer Plan Rights Agreement, dated as of March 11, 2010, between Wilshire Enterprises, Inc.
and Continental Stock Transfer & Trust Company, as Rights Agent. (Incorporated by reference to Exhibit 4.1 of the Company’s
Current Report on Form 8-K filed with the SEC on March 12, 2010.)
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10.28
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Office Lease, dated July 1, 2010 and amended September 2, 2010, between The Realty Associates Fund VII, LP (as “Landlord”) and Wilshire Enterprises, Inc. (as “Tenant) (filed herewith).
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10.29
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Letter Agreement, dated as of November 24, 2010, between the Company and David Morrow (filed herewith).
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21
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List of significant subsidiaries of the Company.
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23.1
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Consent of J.H. Cohn LLP, Independent Registered Public Accounting Firm.
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24
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Power of Attorney.
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31.1
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Certification of the Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
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31.2
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Certification of the Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
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32.1
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Certification of the Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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32.2
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Certification of the Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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The Company agrees to furnish the Commission upon request any agreements with respect to long-term debt not referenced herein.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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WILSHIRE ENTERPRISES, INC.
(Registrant)
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Date: August 5, 2011
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By:
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/s/ S. Wilzig Izak
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S. Wilzig Izak
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Chairman of the Board and Chief Executive Officer
(Principal Executive Officer)
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Exhibit Index
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Exhibit #
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Description
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3.3
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Certificate of Amendment of Certificate of Incorporation filed with the Delaware Secretary of State on February 28, 2011
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10.28
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Office Lease, dated July 1, 2010 and amended September 2, 2010, between The Realty Associates Fund VII, LP (as “Landlord”) and Wilshire Enterprises, Inc. (as “Tenant”) (filed herewith).
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10.29
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Letter Agreement, dated as of November 24, 2010, between the Company and David Morrow (filed herewith).
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31.1
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Certification of the Chief Executive Officer Pursuant to Section 302 of Sarbanes-Oxley Act of 2002.
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31.2
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Certification of the Chief Financial Officer Pursuant to Section 302 of Sarbanes-Oxley Act of 2002.
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32.1
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Certification of the Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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32.2
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Certification of the Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
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