SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
10-K/A
(Amendment
No. 1)
(adding
Items 10 –14 and amending Item 15 only)
FOR
ANNUAL AND TRANSITION REPORTS
PURSUANT
TO SECTIONS 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
(Mark
One)
|
x
|
ANNUAL REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
For the
fiscal year ended
December 31,
2008
OR
|
o
|
TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
For the
transition period from
__________ to __________
Commission
File Number 0-29359
WILSHIRE
ENTERPRISES, INC.
(Exact
Name of Registrant as Specified in Its Charter)
|
|
|
|
|
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
|
(I.R.S.
Employer Identification No.)
|
|
1
Gateway Center, Newark, New Jersey
|
|
07102
|
|
(Address
of Principal Executive Offices)
|
|
(Zip
Code)
|
Registrant’s
telephone number, including area code
(201)
420-2796
Securities
registered pursuant to Section 12(b) of the Act:
|
Title of each class
|
|
Name of Each Exchange on Which
Registered
|
|
|
|
|
|
Common
Stock, $1.00 par value
|
|
American
Stock
Exchange
|
|
Securities
registered pursuant to Section 12(g) of the Act:
|
|
|
|
None
|
|
(Title
of Class)
|
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act.
Indicate by a check mark if the
registrant is not required to file reports pursuant to Section 13 or Section
15(d) of the Act.
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.
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K 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 the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
|
Large
Accelerated Filer:
|
|
|
Accelerated
Filer:
|
|
|
Non-accelerated
filer:
|
|
|
Smaller
Reporting
Company:
|
|
Indicate
by check mark whether the registrant is a shell company (as defined
in
Rule 12b-2
of the Exchange Act.)
The
aggregate market value of the voting common equity of the registrant 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, 2008), was $14,519,000.
The
number of shares outstanding of the registrant’s $1 par value common stock, as
of March 19, 2009, was 8,051,248.
EXPLANATORY
NOTE
This
Amendment No. 1 on Form 10-K/A to the Annual Report on Form 10-K (the “Annual
Report”) of Wilshire Enterprises, Inc. (the “Company” or “Wilshire”) filed with
the Securities and Exchange Commission (the “SEC”) on March 31, 2009 is filed
solely for the purpose of including information that was to be incorporated by
reference from the Company’s definitive proxy statement pursuant to Regulation
14A of the Securities Exchange Act of 1934. The Company will not file its proxy
statement for its annual meeting of stockholders to be held later in 2009 within
120 days of its fiscal year ended December 31, 2008, and is therefore amending
and restating in their entirety Items 10, 11, 12, 13 and 14 of Part III of the
Annual Report. In addition, pursuant to Rule 13a-14(a) under the Securities
Exchange Act of 1934, we are including with this Amendment No. 1 certain
currently dated certifications. Except as described above, no other amendments
are being made to the Annual Report. This Form 10-K/A does not reflect events
occurring after the March 31, 2009 filing of our Annual Report or modify or
update the disclosure contained in the Annual Report in any way other than as
required to reflect the amendments discussed above and reflected
below.
TABLE OF
CONTENTS
|
|
Item
|
|
|
Page
|
|
|
|
|
|
|
|
PART
III
|
10.
|
Directors,
Executive Officers and Corporate Governance
|
|
1
|
|
|
|
|
|
|
|
|
11.
|
Executive
Compensation
|
|
6
|
|
|
|
|
|
|
|
|
12.
|
Security
Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters
|
|
13
|
|
|
|
|
|
|
|
|
13.
|
Certain
Relationships and Related Transactions, and Director
Independence
|
|
16
|
|
|
|
|
|
|
|
|
14.
|
Principal
Accountant Fees and Services
|
|
16
|
|
|
|
|
|
|
|
PART
IV
|
15.
|
Exhibits
and Financial Statement Schedules
|
|
18
|
|
|
|
|
|
|
|
SIGNATURES
|
|
19
|
|
|
|
|
|
EXHIBIT
INDEX
|
|
20
|
PART
III
Item
10. Directors,
Executive Officers and Corporate Governance.
Board
of Directors
The
Company’s current Restated Certificate of Incorporation and By-Laws provide for
a seven member Board of Directors divided into three classes of directors
serving staggered three-year terms. The term of office of directors
in Class I expires at the annual meeting to be held in 2011, Class II at the
annual meeting to be held later in calendar 2009 and Class III at the following
succeeding annual meeting. The following table provides information
regarding the members of our Board of Directors:
|
Name
|
|
Class
|
|
Principal
Occupation
and Age (a)(b)
|
|
Year
Became
Director
of
the Company
|
|
|
|
|
|
|
|
|
|
Miles
Berger
|
|
I
|
|
Chairman
of Berger Organization, Real Estate Management and Development Company,
Newark, NJ Age 55
|
|
2002
|
|
Milton
Donnenberg
|
|
II
|
|
Formerly
President, Milton Donnenberg Assoc., Realty Management, Carlstadt,
NJ
Age
85
|
|
1981
|
|
S.
Wilzig Izak
|
|
II
|
|
Chairman
of the Board since September 1990; Chief Executive Officer since May 1991;
Executive Vice President (1987-1990); prior thereto, Senior Vice
President
Age
50
|
|
1987
|
|
James
M. Orphanides
|
|
III
|
|
Chairman
Emeritus of First American Title Insurance Company of New York (“First
American”) and a director of First American (December 31, 2007 to
present); President, CEO and Chairman of the Board of First American (1996
through 2007), New York, NY; also a director of CB Richard Ellis Realty
Trust, a public company, since 2006
Age
58
|
|
January
9, 2009
|
|
Eric
J. Schmertz, Esq.
|
|
I
|
|
Of
Counsel to the Dweck Law Firm; Distinguished Professor Emeritus and
formerly Dean, Hofstra University School of Law, Hempstead,
NY
Age
82
|
|
1983
|
|
Kevin
B. Swill
|
|
III
|
|
President
and Chief Operating Officer since January 5, 2009; President of
Westminster Capital, the financing arm of The Kushner Companies, a
multi-billion dollar real estate development and management company based
in New York, and President of Kushner Properties, which oversees
a portfolio of office, retail and industrial properties in New
York, New Jersey and Pennsylvania (2001 through November
2008)
Age
43
|
|
December
5, 2008
|
|
W.
Martin Willschick
|
|
III
|
|
Manager,
Capital Markets, City of Toronto, Canada
Age
56
|
|
1997
|
|
(a)
|
Except
as indicated above, no nominee or director is a director of any other
company with a class of securities registered pursuant to Section 12 of
the Securities Exchange Act of 1934 or subject to the requirements of
Section 15(d) of that Act or any company registered as an investment
company under the Investment Company Act of
1940.
|
|
(b)
|
Mr.
Donnenberg is Ms. Izak’s uncle by marriage. Mr. Willschick is
Ms. Izak’s first cousin.
|
Upon his retirement in January 2009,
Ernest Wachtel, who had served as a director of the Company since 1970, was
named Director Emeritus.
In March, 2005, the Board of Directors
created a new position of presiding director, whose primary responsibility is to
preside over periodic sessions of the Board of Directors in which management
directors do not participate. The presiding director also advises the
Chairman of the Board and Committee chairs with respect to agendas and
information needs relating to the Board and Committee meetings, provides advice
with respect to the selection of Committee chairs and performs other duties that
the Board may from time to time delegate to assist the Board in the fulfillment
of its responsibilities. The non-management members of the Board of
Directors have designated Eric J. Schmertz to serve in this
position. Stockholders and other parties interested in communicating
directly with the presiding director or with the non-management directors as a
group may do so by writing to Presiding Director, Wilshire Enterprises, Inc., 1
Gateway Center, Newark, New Jersey 07102.
Independence
Since the adoption of the
Sarbanes-Oxley Act in July 2002, there has been a growing public and regulatory
focus on the independence of directors. The American Stock Exchange
(the “AMEX”) has its own definition of independence. Additional
requirements relating to independence are imposed by the Sarbanes-Oxley Act with
respect to members of the Audit Committee. All of the non-employee
members of the Board of Directors, and, accordingly, all members of the Audit
Committee, Compensation Committee and Nominating Committee of the Board, have
been determined to be “independent” pursuant to the definition contained in the
AMEX’s Corporate Governance Rules and under the SEC’s Rule 10A-3.
Board
of Directors’ Meetings
The Board of Directors of the Company
holds periodic meetings as necessary to deal with matters which it must
consider. The Board of Directors has an Audit Committee, a
Compensation Committee, an Executive Committee, a Nominating Committee and,
since December 2008, a Strategic Planning Committee. During
2008,
the full
Board met a total of 12 times, the Audit Committee five times, the
Compensation Committee one time, the Nominating Committee one time, the
Executive Committee did not meet and the Strategic Planning Committee met one
time. Each Board member attended at least 75% of the aggregate of the
Board and committee meetings (of committees on which each such director served)
held during 2008.
Executive
Committee
The Board of Directors has an Executive
Committee, which consists of S. Wilzig Izak (Chair), W. Martin Willschick and
Eric J. Schmertz, Esq. This Committee may exercise all authority of
the full Board with the exception of specified limitations relating to major
corporate matters.
The
Audit Committee
The Audit Committee of the Board of
Directors serves to: (a) oversee the accounting and financial
reporting processes of the Company, internal controls of the Company, and audits
of the financial statements of the Company; (b) assist the Board of Directors in
its oversight of (i) the integrity of the Company’s financial statements,
(ii) the Company’s compliance with legal and regulatory requirements, (iii) the
independent auditors’ qualifications and independence, (iv) the performance
of the Company’s internal audit functions and its independent auditors, and
(v) the accounting and financial reporting processes of the Company; and
(c) prepare the Audit Committee report for inclusion in the proxy statement as
required by the SEC.
The members of the Audit Committee are
Mr. Willschick (Chair), Mr. Schmertz and Mr. Donnenberg.
The Board of Directors has determined
that W. Martin Willschick constitutes an “audit committee financial expert”, as
such term is defined by the SEC. As noted above, Mr. Willschick
- as well as the other members of the Audit Committee - has been determined to
be “independent” within the meaning of SEC and AMEX regulations.
Compensation
Committee
The Compensation Committee of the Board
serves to: (a) assist the Board in establishing and maintaining compensation and
benefits policies and practices that support the successful recruitment,
development and retention of talent in order to achieve the Company’s business
objectives and optimize long-term financial returns; and (b) assist the Board in
discharging its responsibilities for compensating the Company’s
executives.
The members of the Compensation
Committee are Mr. Schmertz (Chair) and Mr. Berger.
Nominating
Committee
The purposes of the Nominating
Committee are to: (a) identify and screen individuals qualified for nomination
to the Board; (b) recommend to the Board director nominees for election at each
meeting of stockholders at which directors are to be elected and recommend to
the Board individuals to fill any vacancies on the Board that arise between such
meetings; and (c) recommend to the Board directors for appointment to each
committee of the Board.
The members of the Nominating Committee
are Mr. Berger (Chair), Mr. Orphanides and Mr. Donnenberg.
Strategic
Planning Committee
In December 2008, the Board established
a Strategic Planning Committee, which consists of S. Wilzig Izak, Miles Berger,
Eric J. Schmertz, Esq., Kevin B. Swill and James M. Orphanides
(Chair). The purpose of this Committee is to explore possible
alternative strategies for the Company’s future with the goal of ultimately
enhancing stockholder value for all of the Company’s stockholders.
Executive
Officers
The
following table identifies the current executive officers of the
Company:
|
Name
|
|
Age
|
|
Capacities in
Which Serving
|
|
In Current
Position Since
|
|
S. Wilzig Izak
(1)
|
|
50
|
|
Chairman
of the Board and Chief Executive Officer
|
|
1990
|
|
Kevin
B. Swill (1)
|
|
43
|
|
President
and Chief Operating Officer
|
|
January
5, 2009
|
|
Francis
J. Elenio (2)
|
|
42
|
|
Chief
Financial Officer
|
|
September,
2006
|
|
(1)
|
For
descriptions of Ms. Izak’s and Mr. Swill’s respective business
backgrounds, see “Board of
Directors”.
|
|
(2)
|
Mr.
Elenio joined the Company in September, 2006 as its Chief Financial
Officer. On September 4, 2007, the Company entered into a
letter agreement with Mr. Elenio, under which he continues to be employed
by the Company while also providing services to an unaffiliated
company. Pursuant to the letter agreement, Mr. Elenio continues
to serve, on an "at-will" basis, as the Company's Senior Vice President
and Chief Financial Officer, at a reduced annual salary of
$50,000. He served as Chief Financial Officer of WebCollage,
Inc. (a private company engaged in on-line content syndication) from
March, 2006 to September, 2006, and as Interim Chief Financial Officer of
TWS Holdings, Ltd. (a private company engaged in business process
outsourcing) from November, 2005 to March, 2006. Prior to that
he served as Chief Financial Officer and a director of RoomLinx, Inc. (a
public company which provides wireless high-speed network solutions to the
hospitality industry) from December, 2003 to November, 2005, and as Chief
Financial Officer, Secretary and Treasurer of GoAmerica, Inc. (a public
company which provides online wireless relay services to the deaf and hard
of hearing community) from January, 1999 to August,
2003.
|
Section
16(a) Beneficial Ownership Reporting Compliance
Section
16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
requires our directors, officers, and stockholders who beneficially own more
than 10% of any class of our equity securities registered pursuant to Section 12
of the Exchange Act, to file initial reports of ownership and reports of changes
in ownership with respect to our equity securities with the Securities and
Exchange Commission. All reporting persons are required to furnish us
with copies of all reports that such reporting persons file with the SEC
pursuant to Section 16(a). Based on our records and other
information, we believe that in 2008 our directors and our executive officers
who are subject to Section 16 met all applicable filing
requirements.
Code
of Ethics
The Company has adopted a Code of
Ethics that applies to its principal executive officer, principal financial
officer, principal accounting officer or controller and persons performing
similar functions. A copy of the Code of Ethics is available on the
Company’s website
(http://
www.wilshireenterprisesinc.com) under the caption “Corporate
Policies.”
Item
11. Executive Compensation
Compensation
Discussion and Analysis
General
During 2006, the SEC substantially
revised the disclosures that we are required to make with respect to executive
compensation. As part of the SEC’s revised executive compensation
discussion requirements, issuers must provide a “Compensation Discussion and
Analysis” in which issuers explain the material elements of their compensation
of executive officers by describing the following:
|
|
·
|
the
objectives of the issuer’s compensation
programs;
|
|
|
·
|
the
conduct that the compensation programs are designed to
reward;
|
|
|
·
|
the
elements of the compensation
program;
|
|
|
·
|
the
rationale for each of the elements of the compensation
program;
|
|
|
·
|
how
the issuer determines the amount (and, where applicable, the formula) for
each element of the compensation program;
and
|
|
|
·
|
how
each element and the issuer’s decisions regarding that element fit into
the issuer’s overall compensation objectives and affect decisions
regarding other elements of the compensation
program.
|
Our compensation philosophy is dictated
by the Compensation Committee of our Board of Directors. The duties
and responsibilities of the Compensation Committee, which consists entirely of
independent directors of the Board, include the following:
|
|
·
|
administer
the employee benefit plans of the Company designated for such
administration by the Board;
|
|
|
·
|
establish
the compensation of the Company’s Chief Executive Officer (subject to the
terms of any existing employment
agreement);
|
|
|
·
|
with
input from the Company’s Chief Executive Officer, establish or recommend
to the Board the compensation of the Company’s other executive officers
(subject to the terms of any existing employment agreements);
and
|
|
|
·
|
monitor
the Company’s overall compensation policies and employment benefit
plans.
|
S. Wilzig Izak, our Chairman of the
Board and Chief Executive Officer, participates in determinations regarding the
compensation and design of our benefit programs for all employees, including our
other executive officers. However, she does not participate in
determining her own compensation.
Our Compensation Objectives and the
Focus of Our Compensation Rewards
We believe that an appropriate
compensation program should draw a balance between providing rewards to
executive officers while at the same time effectively controlling compensation
costs. We reward executive officers in order to attract highly
qualified individuals, to retain those individuals in a highly competitive
marketplace for executive talent and to motivate them to perform in a manner
that maximizes our corporate performance.
We view executive compensation as
having two key elements:
|
|
·
|
a
current cash compensation program consisting of salary and cash bonus
incentives; and
|
|
|
·
|
long-term
equity incentives reflected in grants of stock options and/or restricted
stock awards.
|
We do not provide executive officers
with significant perquisites or other benefits.
We annually review our mix of short
term performance incentives versus longer term incentives. We do not
have set percentages of short term versus long term
incentives. Instead, we look to provide a reasonable balance of those
incentives.
We compare our salaries and other
elements of compensation against the salaries and other compensation measures of
other public companies in our industry by reviewing the proxy statements of such
other companies. However, we do not prepare formal benchmarking
studies. The Compensation Committee believes that the compensation
paid to the Company’s Chief Executive Officer is less than the compensation paid
to chief executive officers at other comparably sized real estate
companies.
During 2008, none of the Named Officers
received a salary increase, bonus or grant of restricted stock or stock
options.
Specific Elements of Our Compensation
Program
We have described below the specific
elements of our compensation program for executive officers.
Salary
. We pay
salaries to our Named Officers in order to fairly compensate them for their
day-to-day responsibilities in managing our business. Ms. Izak’s
salary was not increased for 2008. As stated above, the Compensation
Committee believes that Ms. Izak is paid less than what chief executive officers
at other comparably sized real estate companies receive. Pursuant to
a September 4, 2007 letter agreement with the Company, during 2008, Mr. Elenio
continued to serve as the Company's Senior Vice President and Chief Financial
Officer at a reduced annual salary of $50,000, while he also provided services
to an unaffiliated company. See “Employment Agreements and Other
Arrangements with Executive Officers” for information concerning the employment
agreement with Kevin B. Swill, who joined the Company on January 5, 2009 as
President and Chief Operating Officer.
Bonus.
Bonuses are
designed to motivate executives by rewarding their individual performance and
contribution to the Company’s financial performance. In connection
with the Company’s continuing efforts to contain costs and in light of the
Company's efforts to sell or merge the Company during 2008, no bonuses were
granted to the Company’s Chief Executive Officer or the Chief Financial Officer
for 2008.
Long-Term Incentive
Compensation.
We provide long-term incentives to our executive
officers through our 2004 Stock Option and Incentive Plan. We refer
to this as our Stock Option Plan. The Compensation Committee did not
grant any stock options or restricted stock awards to the Chief Executive
Officer or the Chief Financial Officer in 2008.
Compliance with Sections 162(m) and
409A of the Internal Revenue Code
Section 162(m) of the Internal Revenue
Code denies a deduction to any publicly held corporation for compensation paid
to certain “covered employees” in a taxable year to the extent that compensation
exceeds $1,000,000 for a covered employee. Certain performance-based
compensation that has been approved by our shareholders is not subject to this
limitation. As a result, stock options granted under our Stock Option
Plan are not subject to the limitations of Section 162(m). However,
restricted stock awards under our Stock Option Plan generally will not be
treated as performance-based compensation. Restricted stock award
grants made to date under the Stock Option Plan have not been at levels that,
together with other compensation, approached the $1,000,000
limit. Also, since we retain discretion over cash bonuses, those
bonuses also will not qualify for the exemption for performance-based
compensation. Since none of the Company’s executive officers had
compensation in excess of $1,000,000 for 2008, Section 162(m) was not
applicable.
It is also our intention to maintain
our executive compensation arrangements in conformity with the requirements of
Section 409A of the Internal Revenue Code, which imposes certain restrictions on
deferred compensation arrangements.
Summary
of Cash and Certain other Compensation
The following table sets forth, for the
years ended December 31, 2008, 2007 and 2006, a summary of the compensation
earned by our Chief Executive Officer and our Chief Financial Officer, who were
our only executive officers as of December 31, 2008. We refer to the
executive officers named in this table as the “Named Officers.” Kevin
B. Swill joined the Company as President and Chief Operating Officer on January
5, 2009.
SUMMARY
COMPENSATION TABLE
|
Name and Principal
Position
|
|
Year
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
Awards
($)
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
|
S.
Wilzig Izak
|
|
2008
|
|
|
218,000
|
|
|
|
0
|
|
|
|
0
|
|
|
|
28,769
|
|
|
|
246,769
|
|
|
Chairman
of the Board (Chief
|
|
2007
|
|
|
218,000
|
|
|
|
180,000
|
|
|
|
0
|
|
|
|
28,769
|
|
|
|
426,769
|
|
|
Executive
Officer)
|
|
2006
|
|
|
218,000
|
|
|
|
0
|
|
|
|
0
|
|
|
|
28,769
|
|
|
|
246,769
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Francis
J. Elenio (1)
|
|
2008
|
|
|
50,000
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
50,000
|
|
|
Chief
Financial Officer
|
|
2007
|
|
|
133,333
|
|
|
|
0
|
|
|
|
0
|
|
|
|
2,760
|
|
|
|
136,093
|
|
|
|
|
2006
|
|
|
58,333
|
|
|
|
0
|
|
|
|
112,500
|
|
|
|
12,760
|
|
|
|
183,593
|
|
|
(1)
|
Mr.
Elenio joined the Company in September, 2006 as its Chief Financial
Officer. On September 4, 2007, the Company entered into a
letter agreement with Mr. Elenio, under which he continues to serve as the
Company's Senior Vice President and Chief Financial Officer at a reduced
annual salary of $50,000, and also provides services to an unaffiliated
company.
|
In the
table above:
|
|
·
|
no
stock awards were granted to the Named Officers in 2008 or 2007 and Mr.
Elenio received stock awards in 2006;
and
|
|
|
·
|
“all
other compensation” for Ms. Izak 2008 includes $12,000 for a travel
allowance and $16,769 for unused vacation
pay.
|
Grants
of Plan Based Awards
Neither of the Named Officers received
an option grant or a grant of restricted stock in 2008.
Outstanding
Equity Awards at December 31, 2008
The
following table sets forth, for each of the Named Officers, information
regarding stock options outstanding at December 31, 2008. All of the
restricted stock awards previously granted to the Named Officers were fully
vested as of December 31, 2008.
|
Option
Awards
|
|
|
Name
(a)
|
|
Number of
Securities
Underlying
Unexercised Options
(#)
Exercisable
(b)
|
|
|
Number of Securities
Underlying
Unexercised Options
(#)
Unexercisable
(c)
|
|
|
Option
Exercise
Price
($)
(e)
|
|
|
Option
Expiration
Date
(f)
|
|
|
S.
Wilzig Izak
|
|
|
10,000
|
|
|
|
0
|
|
|
|
3.32
|
|
|
7/15/2012
|
|
|
Francis
J. Elenio
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
In the
table above, we are disclosing:
|
|
·
|
in
column (b), the number of shares of our common stock underlying
unexercised stock options that were exercisable as of December 31,
2008;
|
|
|
·
|
in
column (c), the number of shares of our common stock underlying
unexercised stock options that were not exercisable as of December 31,
2008; and
|
|
|
·
|
in
columns (e) and (f), respectively, the exercise price and expiration date
for each stock option that was outstanding as of December 31,
2008.
|
Options Exercised and Stock Awards
Vested
Neither of the Named Officers exercised
stock options during 2008. The following table sets forth, for each
of the Named Officers, information regarding stock awards that vested during
2008. The phrase “value realized on vesting” represents the number of
shares of common stock set forth in column (d) multiplied by the market price of
our common stock on the date on which the Named Officer’s stock award
vested.
|
|
|
Stock Awards
|
|
|
Name
(a)
|
|
Number of
Shares Acquired
on Vesting
(#)
(d)
|
|
|
Value
Realized on
Vesting
($)
(e)
|
|
|
S.
Wilzig Izak
|
|
|
8,667
|
|
|
|
29,708
|
|
|
Francis
J. Elenio
|
|
|
16,333
|
|
|
|
59,615
|
|
Employment
Agreements and Other Arrangements with Executive Officers
On March 29, 2004, the Company provided
S. Wilzig Izak, the Chairman of the Board and Chief Executive Officer, with a
severance agreement. The agreement provides that on termination of
her employment for any reason other than termination for Cause (as defined), she
will receive a payment equal to $200,000. The agreement was amended
on December 31, 2008 in order to comply with the provisions of Section 409A of
the Internal Revenue Code of 1986, as amended.
Mr.
Elenio joined the Company in September, 2006 as its Chief Financial
Officer. On September 4, 2007, the Company entered into a letter
agreement with Mr. Elenio, under which he continues to serve as the Company's
Senior Vice President and Chief Financial Officer at a reduced annual salary of
$50,000, and also provides services to an unaffiliated company.
On
December 5, 2008, the Board appointed Kevin B. Swill as a member of the
Company's Board and the Board's Strategic Planning Committee. Mr.
Swill joined the Company after serving since 2001 as President of Westminster
Capital, the financing arm of The Kushner Companies, a real estate
development and management company based in New York, and President of Kushner
Properties, which oversees a portfolio of office, retail and
industrial properties in New York, New Jersey and Pennsylvania.
The
Company and Kevin B. Swill entered into an Employment Agreement, dated as of
December 8, 2008 (the "Employment Agreement"), pursuant to which Mr. Swill will
serve as the Company's President and Chief Operating Officer commencing on
January 5, 2009 (the “Effective Date”) and expiring on December 31, 2010,
provided that the term of the Employment Agreement will be automatically
extended for successive one year periods thereafter, unless either party
provides at least 90 days prior written notice to the other of its (or his)
intent not to extend the then current term.
The
Employment Agreement provides that Mr. Swill will be paid a base salary of
$250,000 per year. On the Effective Date, he was granted 125,000
restricted shares under the Company's stock option plan, one half of which will
vest after one year, and the remaining one half of which will vest after two
years. Mr. Swill will also be entitled to participate in all employee
benefit plans and programs made available generally to executive officers of the
Company, and he will receive an automobile allowance of $1,000 per
month. The Employment Agreement also contains confidentiality and
noncompetition provisions.
The
Employment Agreement provides that if Mr. Swill's employment is terminated by
the Company without Cause, or he resigns for Good Reason (in each case, as
defined in the Employment Agreement), Mr. Swill will be entitled to receive 11
months severance. In the event of non-renewal, Mr. Swill will be
entitled to receive three months severance, provided that if the Employment
Agreement has been in effect for at least five years and the Company decides not
to renew, then Mr. Swill will be entitled to receive six months
severance. If, within 12 months following a “Change in Control”
(as defined in the Employment Agreement), Mr. Swill's employment is terminated
without Cause or he resigns for Good Reason, then he will be entitled to receive
a change in control payment (as described in the following sentence), and all of
Mr. Swill's restricted shares and stock options (to the extent not already
vested) will become fully vested. If a Change in Control occurs
during the first 12 months of the initial term of the Employment Agreement, the
change in control payment will equal Mr. Swill's monthly base salary multiplied
by the number of full calendar months remaining in the initial term; if a Change
in Control occurs at any time after the one year anniversary of the Effective
Date, the change in control payment will equal Mr. Swill's monthly base salary
multiplied by 12.
Compensation
of Directors
The following table sets forth certain
information regarding the compensation we paid to our current directors, other
than Ms. Izak, Mr. Swill and Mr. Orphanides, during 2008. Ms. Izak
and Mr. Swill do not receive compensation for serving as directors of the
Company. Mr. Orphanides joined the Board on January 9,
2009. None of our non-employee directors received a stock option or a
restricted stock award during 2008.
|
Name
(a)
|
|
Fees
Earned
or Paid
in Cash
($)
(b)
|
|
|
All
Other
Compensation
($)
(g)
|
|
|
Total
($)
(j)
|
|
|
Miles
Berger
|
|
|
27,500
|
|
|
|
0
|
|
|
|
27,500
|
|
|
Milton
Donnenberg
|
|
|
33,000
|
|
|
|
0
|
|
|
|
33,000
|
|
|
Eric
J. Schmertz, Esq.
|
|
|
37,500
|
|
|
|
0
|
|
|
|
37,500
|
|
|
W.
Martin Willschick
|
|
|
34,250
|
|
|
|
0
|
|
|
|
34,250
|
|
In the
table above:
|
|
·
|
when
we refer to “Fees Earned or Paid in Cash”, we are referring to all cash
fees that we paid or were accrued in 2008, including annual retainer fees,
committee and/or chairmanship fees and meeting fees;
and
|
|
|
·
|
the
aggregate number of stock options outstanding at December 31, 2008 for
each director who served as such during 2008 is as follows: for
Mr. Berger, 27,500; for Mr. Donnenberg, 22,500; for Mr. Schmertz,
22,500; and for Mr. Willschick,
30,000.
|
Ernest Wachtel, who served the Company
as a director from 1970 until his retirement in January 2009, received an
aggregate of $27,000 in fees for serving on the Board during
2008. Mr. Wachtel currently serves as Director Emeritus, and does not
receive Board fees. At December 31, 2008, Mr. Wachtel held options to
purchase 22,500 shares, which options expired by their terms prior to the filing
of this Report.
Each
non-employee director receives an annual fee of $11,000. Non-employee
members of the Executive Committee also receive an annual fee of
$4,000. Members of the Audit Committee and the Strategic Planning
Committee also receive an annual fee of $5,000 and members of the Compensation
Committee and Nominating Committee also receive an annual fee of
$2,000. Each non-employee director also receives an additional fee of
$750 for each meeting of the Board and each Committee thereof which such
director attends. Ms. Izak and Mr. Swill do not receive any annual or
per meeting fees for attending Board or Committee meetings.
Pursuant to the Company’s 2004
Non-employee Director Stock Option Plan (the “Outside Director Plan”), each of
the Company’s non-employee directors received, on the date of the 2004 Annual
Meeting, a stock option grant covering 10,000 shares of Common Stock, at an
exercise price equal to the fair market value of the Common Stock on such
date. The Outside Director Plan provides that any new non-employee
director will receive a grant of 10,000 options at fair market value upon
becoming a director and that on each Annual Meeting date after the 2004 Annual
Meeting, each non-employee director will be granted an option covering 5,000
shares of Common Stock, at fair market value, so long as he or she continues to
serve on the Board on the Annual Meeting date. The options vest in
25% installments beginning one year after the grant date. Since the
Company did not hold an Annual Meeting during calendar 2008, no options were
granted to the non-employee directors during 2008.
Compensation
Committee Interlocks and Insider Participation
The
Compensation Committee currently consists of Messrs. Berger and
Schmertz. Mr. Wachtel also served as a member of the
Compensation Committee during 2008. None of these individuals is or
was at any time an officer or employee of the Company. No executive
officer of the Company has served as a director or member of the compensation
committee of any other entity, one of whose executive officers served as a
member of the Compensation Committee of the Company. No interlocking
relationship exists between our Board of Directors or Compensation Committee and
the board of directors or compensation committee of any other
company.
Compensation
Committee Report
The Compensation Committee has reviewed
and discussed the information provided under the caption “Compensation
Discussion and Analysis” set forth above. Based on that review and
those discussions, the Compensation Committee recommended to our Board that such
“Compensation Discussion and Analysis” be included in this report.
Eric J. Schmertz, Esq.
(Chair)
Miles Berger
Item
12. Security Ownership of Certain Beneficial Owners and Management
and Related Stockholder Matters
Common
Stock
The
following tables set forth certain information, as of April 1, 2009, with
respect to holdings of the Company’s Common Stock by (i) each person the Company
believes beneficially owned more than 5% of the Company’s Common Stock as of
April 1, 2009, (ii) each of the Company’s current directors and Named Officers,
and (iii) all current directors and current executive officers as a
group.
|
Name and Address of Beneficial
Owner
|
|
Amount and Nature
of
Beneficial
Ownership
(1)
|
|
|
Percent
of Class
(2)
|
|
|
|
|
|
|
|
|
|
|
5%
or Greater Holders*:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Estate
of Siggi B. Wilzig
c/o
Daniel Swick
Herrick,
Feinstein LLP
2
Penn Plaza
Newark,
NJ 07105-2245
|
|
|
1,660,792
|
(2)
|
|
|
21.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Phillip
Goldstein
60
Heritage Drive
Pleasantville,
NY 10570 and
Bulldog
Investors and Andrew Dakos
Park
80 West-Plaza Two
Saddle
Brook, NJ 07663
|
|
|
1,471,893
|
(3)
|
|
|
18.28
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Dimensional
Fund Advisors, LP
1299
Ocean Avenue, Suite 650
Santa
Monica, CA 90401
|
|
|
455,143
|
(4)
|
|
|
5.65
|
%
|
|
*
|
See
“Directors and Named Executive Officers” for the shares beneficially owned
by S. Wilzig Izak, the Company’s Chairman of the Board and Chief Executive
Officer.
|
|
(1)
|
Each
beneficial owner’s percentage ownership of Common Stock is determined by
assuming that options, warrants and other convertible securities that are
held by such person (but not those held by any other person) and that are
exercisable or convertible within 60 days of April 1, 2009 have been
exercised or converted. Options, warrants and other convertible securities
that are not exercisable within 60 days of April 1, 2009 have been
excluded. Unless otherwise noted, the Company believes that all
persons named in the above table have sole voting and investment power
with respect to all shares of Common Stock beneficially owned by
them.
|
|
(2)
|
Mr.
Wilzig, former Chairman and President of the Company, served as the Senior
Consultant to the Company until his death on January 7,
2003. The table above reflects the Estate’s ownership as
reported by the Estate.
|
|
(3)
|
Pursuant
to a filing with the Securities and Exchange Commission on April 7, 2009,
Bulldog Investors, Phillip Goldstein and Andrew Dakos beneficially owned
the shares set forth in the table above. The filing also
indicates that power to dispose of and to vote these securities resides
either with Mr. Goldstein, Mr. Dakos or with
clients.
|
|
(4)
|
Pursuant
to a filing with the Securities and Exchange Commission, Dimensional Fund
Advisors, LP (“Dimensional”), a registered investment advisor, disclosed
that it is deemed to have beneficial ownership of 455,143 shares of common
stock, all of which shares are held in the portfolios of certain
“Funds”. Such Funds consist of investment companies to which
Dimensional provides investment advice and certain other commingled group
trusts and separate accounts for which Dimensional serves as an investment
manager. Dimensional disclaims beneficial ownership of all such
shares.
|
|
Name of Beneficial Owner
|
|
Amount and Nature
of
Beneficial
Ownership
(1)
|
|
|
Percent
of Class
|
|
|
|
|
|
|
|
|
|
|
Directors
and Named Executives:
|
|
|
|
|
|
|
|
Miles
Berger
|
|
|
28,750
|
(2)
|
|
|
*
|
|
|
Milton
Donnenberg
|
|
|
37,712
|
|
|
|
*
|
|
|
S.
Wilzig Izak
|
|
|
543,768
|
(2)
|
|
|
6.7
|
%
|
|
James
M. Orphanides
|
|
|
38,433
|
(3)
|
|
|
*
|
|
|
Eric
J. Schmertz, Jr.
|
|
|
43,859
|
(5)
|
|
|
*
|
|
|
Kevin
B. Swill
|
|
|
127,200
|
(6)
|
|
|
1.6
|
%
|
|
W.
Martin Willschick
|
|
|
30,810
|
(7)
|
|
|
*
|
|
|
Francis
J. Elenio
|
|
|
26,793
|
|
|
|
*
|
|
|
All
directors and current executive officers as a
group (8
persons)
|
|
|
877,325
|
(8)
|
|
|
10.8
|
%
|
|
(1)
|
Each
beneficial owner’s percentage ownership of Common Stock is determined by
assuming that options, warrants and other convertible securities that are
held by such person (but not those held by any other person) and that are
exercisable or convertible within 60 days of April 1, 2009 have been
exercised or converted. Options, warrants and other convertible securities
that are not exercisable within 60 days of April 1, 2009 have been
excluded. Unless otherwise noted, the Company believes that all
persons named in the above table have sole voting and investment power
with respect to all shares of Common Stock beneficially owned by
them.
|
|
(2)
|
Includes
21,250 shares of stock that could be obtained by Mr. Berger upon the
exercise of stock options exercisable within 60 days of April 1,
2009.
|
|
(3)
|
Includes
16,250 shares of stock that could be obtained by Mr. Donnenberg upon the
exercise of stock options exercisable within 60 days of April 1,
2009.
|
|
(4)
|
Includes
10,000 shares of stock that could be obtained by Ms. Izak upon the
exercise of stock options exercisable within 60 days of April 1,
2009.
|
|
(5)
|
These
shares are held jointly by Mr. Orphanides and his
wife.
|
|
(6)
|
Includes
16,250 shares of stock that could be obtained by Mr. Schmertz upon the
exercise of stock options exercisable within 60 days of April 1,
2009.
|
|
(7)
|
Includes
125,000 shares of stock that are restricted shares which were granted to
Mr. Swill upon his joining the Company as President and Chief Operating
Officer on January 5, 2009. One-half of these shares will vest on January
5, 2010 and the remaining one-half will vest on December 31,
2010.
|
|
(8)
|
Includes
23,750 shares of stock that could be obtained by Mr. Willschick upon the
exercise of stock options exercisable within 60 days of April 1,
2009.
|
|
(9)
|
Includes
87,500 shares of stock that could be obtained by the current directors and
current executive officers upon the exercise of stock options exercisable
within 60 days of April 1, 2009 and 125,000 shares subject to restricted
stock awards which had not vested as of April 1,
2009.
|
Upon his
retirement in January 2009, Ernest Wachtel, who had served as a director of the
Company since 1970, was named Director Emeritus. As of April 1, 2009,
Mr. Wachtel beneficially owned 140,723 shares of the Company’s Common Stock
(excluding stock options, which have expired by their terms prior to the filing
of this Report), or 1.8% of the outstanding shares.
See the Company’s Annual Report on Form
10-K filed with the Securities and Exchange Commission on March 31, 2009 for the
information required by Item 201(d) of the SEC’s Regulation S-K.
Item
13. Certain Relationships and Related Transactions, and Director
Independence
Each of Messrs. Berger, Donnenberg,
Schmertz, Orphanides and Willschick has been determined to be “independent”
within the meaning of SEC and AMEX regulations. Accordingly, all of
the members of the Company’s Compensation, Nominating and Audit Committees are
independent.
There have been no related party
transactions requiring disclosure under the SEC’s rules since January 1,
2008.
The Audit Committee of the Board of
Directors has adopted written procedures governing related party
transactions. The procedures require the Audit Committee to approve
in advance any related party transaction. On a quarterly basis, the
Audit Committee makes inquiry of management and the other directors of the
Company to determine whether any of these persons is aware of any related party
transactions. By “related party transaction,” we mean a transaction
between the Company or any of its subsidiaries, on the one hand, and an
executive officer, director or immediate family member of an executive officer
or a director, on the other hand.
Item
14. Principal Accounting Fees and Services
In
accordance with the requirements of the Sarbanes-Oxley Act of 2002 and the Audit
Committee’s charter, all audit and audit-related work and all non-audit work
performed by the Company’s independent accountants is approved in advance by the
Audit Committee, including the proposed fees for such work. The Audit
Committee is informed of each service actually rendered and differences between
the proposed fees and the final fees, if any.
Audit
Fees
The
aggregate fees incurred by the Company for the fiscal years ended December 31,
2008 and 2007 for professional services rendered by J.H. Cohn LLP, the Company’s
Independent Registered Public Accounting Firm, in connection with (i) the audit
of the Company’s annual financial statements and (ii) the review of the
financial statements included in the Company’s Quarterly Reports on Form 10-Q
were $255,649 and $183,634, respectively.
Audit-Related
Fees
The
Company incurred $0 and $30,066 for the fiscal years ended December 31, 2008 and
2007, respectively, for assurance and related services by J.H. Cohn in
connection with the performance of the audit and review of the Company’s
financial statements.
Tax
Fees
The
Company did not incur any fees for the fiscal years ended December 31, 2008 and
2007 for professional services rendered by J.H. Cohn for tax compliance, tax
advice or tax planning.
The
Company incurred $82,750 and $75,000 for the fiscal years ended December 31,
2008 and 2007 for professional services rendered by Grant Thornton LLP for tax
return preparation. The Company incurred an additional $90,688 for
the fiscal year ended December 31, 2008 for professional services rendered by
Grant Thornton LLP for a review under Section 304 of the Sarbanes Oxley Act of
2002.
All
Other Fees
The
Company incurred $7,789 and $11,072 for the fiscal years ended December 31, 2008
and 2007, respectively, for other services rendered by J.H. Cohn, including work
related to their attendance at Audit Committee meetings and the Annual Meeting
of Shareholders.
Of the
time expended by the Company’s principal accountants to audit the Company’s
financial statements for the year ended December 31, 2008, less than 50% of such
time involved work performed by persons other than the principal accountant’s
full-time, permanent employees.
Other
Matters
The Audit
Committee of the Board of Directors has considered whether the provision of the
Audit-Related Fees, Tax Fees and All Other Fees are compatible with maintaining
the independence of the Company’s principal accountant.
Applicable
law and regulations provide an exemption that permits certain services to be
provided by the Company’s outside auditors even if they are not pre-approved by
the Audit Committee. The Company has not relied on this exemption
since the Sarbanes-Oxley Act was enacted.
PART
IV
|
|
Item
15.
|
Exhibits
and Financial Statements.
|
|
(a)(3)
|
Exhibits.
|
|
|
|
|
31.1
|
Certification
of the Chief Executive Officer as required by Rule 13a-14(a), as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
|
|
|
|
|
31.2
|
Certification
of Chief Financial Officer as required by Rule 13a-14(a), as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
|
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this Amendment No. 1 to the
Registrant’s Annual Report on Form 10-K to be signed on its behalf by the
undersigned, thereunto duly authorized this 30th day of April,
2009.
|
WILSHIRE
ENTERPRISES, INC.
|
|
|
|
|
By:
|
/s/ S.
Wilzig Izak
|
|
|
S.
Wilzig Izak
|
|
|
Chairman
of the Board and
|
|
|
Chief
Executive Officer
|
|
|
|
|
|
/s/ Francis J. Elenio
|
|
|
Francis
J. Elenio
|
|
|
Chief
Financial
Officer
|
EXHIBIT
INDEX
|
31.1
|
Certification
of the Chief Executive Officer as required by Rule 13a-14(a), as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
|
|
|
|
|
31.2
|
Certification
of Chief Financial Officer as required by Rule 13a-14(a), as adopted
pursuant to Section 302 of the Sarbanes-Oxley Act of
2002.
|
Wilshire (AMEX:WOC)
Gráfico Histórico do Ativo
De Dez 2024 até Jan 2025
Wilshire (AMEX:WOC)
Gráfico Histórico do Ativo
De Jan 2024 até Jan 2025
