-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, P/bhP7z1MoVCFdmL38BESzIHoIUToN/Y51Zqd2sheJMPzMDPV7dJ+dKiTrxXc6x8 NPAiohVRdKp6wtyk46URqg== 0000950134-03-014388.txt : 20031104 0000950134-03-014388.hdr.sgml : 20031104 20031104153953 ACCESSION NUMBER: 0000950134-03-014388 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20031104 GROUP MEMBERS: JOSEPH MAGLIOLO III GROUP MEMBERS: OWEN BLICKSILVER GROUP MEMBERS: PHILIP ZUZELO GROUP MEMBERS: ROGER STULL FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MCTAVISH KEVIN C CENTRAL INDEX KEY: 0001208788 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 5400 LBJ FREEWAY STREET 2: STE 1470 CITY: DALLAS STATE: TX ZIP: 75230 BUSINESS PHONE: 9729828653 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WILSHIRE OIL CO OF TEXAS CENTRAL INDEX KEY: 0000107454 STANDARD INDUSTRIAL CLASSIFICATION: DRILLING OIL & GAS WELLS [1381] IRS NUMBER: 840513668 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-32567 FILM NUMBER: 03976270 BUSINESS ADDRESS: STREET 1: 921 BERGEN AVE CITY: JERSEY CITY STATE: NJ ZIP: 07306-4204 BUSINESS PHONE: 2014202796 MAIL ADDRESS: STREET 1: 921 BERGEN AVENUE CITY: JERSEY CITY STATE: NJ ZIP: 07306 SC 13D/A 1 d10187a1sc13dza.txt AMENDMENT NO. 1 TO SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D (RULE 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (AMENDMENT NO. 1) WILSHIRE ENTERPRISES, INC. - -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, $1 PAR VALUE - -------------------------------------------------------------------------------- (Title of Class of Securities) 971889100 - -------------------------------------------------------------------------------- (CUSIP Number) Kevin C. McTavish 5400 LBJ Freeway, Suite 1470 Dallas, Texas 75240 Telephone No.: (972) 982-8653 Facsimile: (972) 982-8655 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) with copies to: Don M. Glendenning, Esq. Toni Weinstein, Esq. Locke Liddell & Sapp LLP 2200 Ross Avenue, Suite 2200 Dallas, Texas 75201 Telephone No.: (214) 740-8000 Facsimile: (214) 740-8800 OCTOBER 23, 2003 - -------------------------------------------------------------------------------- (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 Section 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 Rule 13d-7 for other parties to whom copies are to be sent. CUSIP NO. - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Kevin McTavish - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 80,700 NUMBER OF SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 80,700 REPORTING PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 80,700 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.0% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP NO. - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Owen Blicksilver - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 23,000 NUMBER OF SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 23,000 REPORTING PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 23,000 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP NO. - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Roger Stull - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 4,800 NUMBER OF SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 4,800 REPORTING PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,800 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP NO. - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Philip Zuzelo - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 18,000 NUMBER OF SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 18,000 REPORTING PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 18,000 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.2% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- CUSIP NO. - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY). Joseph Magliolo III - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) PF - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 6,000 NUMBER OF SHARES ----------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ----------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER 6,000 REPORTING PERSON ----------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,000 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.1% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- This Amendment No. 1 to the Schedule 13D filed on April 21, 2003 by the Reporting Persons (the "Schedule 13-D") relates to the common stock, par value $1.00 per share (the "Shares"), of Wilshire Enterprises, Inc., previously known as Wilshire Oil Company of Texas, a Delaware corporation (the "Company"), and is being filed to amend and supplement Items 4, 5 and 6. Unless otherwise indicated, each capitalized term used but not otherwise defined herein shall have the meaning assigned to such term in the Schedule 13D. The information set forth in the Exhibits is hereby expressly incorporated herein by reference and the responses to each item of this Amendment are qualified in their entirety by the provisions of such Exhibits. ITEM 4. PURPOSE OF THE TRANSACTION Item 4 is hereby amended and supplemented as follows: On October 23, 2003, Summit Capital, LLC ("Summit"), as agent and on behalf of the Reporting Persons, entered into a Confidentiality Agreement for the benefit of the Company, the form of which is attached hereto as Exhibit 6 (the "Confidentiality Agreement"). Substantially concurrently with the execution and delivery of the Confidentiality Agreement by Summit, Oaktree Capital Management, LLC, as agent and on behalf of Oaktree, entered into a similar confidentiality agreement with the Company. Pursuant to the Confidentiality Agreement, the Company granted Summit the right to examine information concerning the Company, including information regarding the Company's oil, gas and real estate properties and its corporate operations, for the sole purpose of enabling Summit to make an evaluation of such properties in order to determine whether Summit desires to make an offer to purchase for cash the outstanding Shares. Summit has agreed to keep information obtained from the Company in strict confidence. In addition, Summit has agreed that for a period of 18 months from October 23, 2003 (the "Confidentiality Period") it will not directly or indirectly, without the prior written approval of the board of directors of the Company, in any manner (i) acquire, agree to acquire or make any offer to acquire, propose, seek or offer to acquire or facilitate the acquisition or ownership of securities or assets of the Company, provided that confidential proposals made to the Company's advisors to purchase for cash the outstanding Shares are not prohibited, (ii) make, or in any way participate, directly or indirectly, in any solicitation of proxies to vote, or seek to advise or influence any person with respect to the voting of any voting securities of the Company or any of its subsidiaries, (iii) otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of the Company or any of its subsidiaries, (iv) disclose any intention, plan or arrangement prohibited by, or inconsistent with, clauses (i)-(iii) above, or (v) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing, with the exception of Oaktree Capital Management, LLC. In addition, Summit has agreed that during the Confidentiality Period it will not (a) request the Company (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any restrictions summarized in this paragraph and (b) take any action that requires the Company to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph to avoid potential liability. ITEM 5. INTEREST IN SECURITIES OF THE COMPANY Item 5 is hereby amended and supplemented as follows: Mr. McTavish may be deemed to beneficially own 80,700 Shares, or approximately 1.0% of the outstanding Shares, by virtue of his sole power to vote and his sole power to dispose of such Shares. Mr. Blicksilver may be deemed to beneficially own 23,000 Shares, or approximately 0.3% of the outstanding Shares, by virtue of his sole power to vote and his sole power to dispose of such Shares. Mr. Stull may be deemed to beneficially own 4,800 Shares, or approximately 0.1% of the outstanding Shares, by virtue of his sole power to vote and his sole power to dispose of such Shares. Mr. Zuzelo may be deemed to beneficially own 18,000 Shares, or approximately 0.2% of the outstanding Shares, by virtue of his sole power to vote and his sole power to dispose of such Shares. Mr. Magliolo may be deemed to beneficially own 6,000 Shares, or approximately 0.1% of the outstanding Shares, by virtue of his sole power to vote and his sole power to dispose of such Shares. The Reporting Persons, in the aggregate, beneficially own 132,500 Shares, or approximately 1.7% of the outstanding Shares. The Reporting Persons, together with Oaktree, may be deemed to be members of a group under Section 13(d)(3) of the Exchange Act. At the close of business on October 28, 2003, Oaktree may be deemed to beneficially own 357,400 Shares, or approximately 4.6% of the outstanding Shares. Each of the Reporting Persons and Oaktree may therefore be deemed to beneficially own 489,900 Shares, or approximately 6.3% of the outstanding Shares. None of the Reporting Persons, directly or indirectly, have or share the power to vote or to direct the vote of, or to dispose or to direct the disposition of, Shares held or record by the other Reporting Persons or Oaktree. Neither the fact of this filing nor anything contained herein shall be deemed to be an admission that any Reporting Person beneficially owns any Shares held of record by any other Reporting Person or Oaktree for purposes of Section 13(d) of the Exchange Act, and each Reporting Person disclaims beneficial ownership of the shares held by the other Reporting Persons and Oaktree. The percentages of Shares outstanding reported as beneficially owned by each person herein on the date hereof is based upon 7,809,833 Shares outstanding on August 12, 2003, as reported in the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2003. Information concerning transactions in equity securities of the Company effected by the Reporting Persons during the past 60 days is set forth on Schedule A hereto. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE COMPANY. Item 6 is hereby amended and supplemented as follows: The information set forth in Item 4 above is hereby incorporated herein by reference ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 6 Form of Confidentiality Agreement, dated October 23, 2003, made by Summit Capital, LLC, as agent and on behalf of certain funds and accounts, for the benefit of Wilshire Enterprises, Inc. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 4, 2003 /s/ Kevin McTavish --------------------------------------- Kevin McTavish /s/ Owen Blicksilver --------------------------------------- Owen Blicksilver /s/ Roger Stull --------------------------------------- Roger Stull /s/ Philip Zuzelo --------------------------------------- Philip Zuzelo /s/ Joseph Magliolo III --------------------------------------- Joseph Magliolo III SCHEDULE 1 The following table sets forth information with respect to each transaction in Shares by the Reporting Persons during the past 60 days. All transactions were effected in the open market on a national securities exchange through a broker and reflect the trade date of such transaction.
Number of Shares Number of Shares Price Per Date Reporting Person Purchased Sold Share* - -------- ------------------ --------------------- -------------------- ----------- 10/13/03 Kevin McTavish 200 $6.70 10/13/03 Kevin McTavish 3,800 $6.50 10/22/03 Kevin McTavish 5,000 $6.50 9/5/03 Owen Blicksilver 1,000 $5.75 9/9/03 Owen Blicksilver 500 $5.41 9/17/03 Owen Blicksilver 500 $5.37 9/18/03 Owen Blicksilver 500 $5.25 9/30/03 Owen Blicksilver 500 $5.32
* Excludes brokerage commissions. EX-6 3 d10187a1exv6.txt FORM OF CONFIDENTIALITY AGREEMENT EXHIBIT 6 FORM OF CONFIDENTIALITY AGREEMENT This CONFIDENTIALITY AGREEMENT (this "Agreement") is made and entered into effective October 23, 2003 by Summit Capital, LLC as agent and on behalf of certain funds and accounts ("Recipient") for the benefit of Wilshire Enterprises, Inc., a Delaware corporation ("Wilshire" or the "Company" and each of Wilshire and Recipient, individually, a "Party" and Wilshire and Recipient, collectively, the "Parties"). WITNESSETH: WHEREAS, Recipient has requested that it be permitted to examine certain information (the "Evaluation Material") in the possession of Wilshire relating to general information concerning the Company and information regarding its oil and gas properties, its real estate properties and its corporate operations in both the United States and Canada for the sole purpose (the "Purpose") of enabling Recipient to make an evaluation of such properties and the interests therein and related rights and interests of Wilshire in order to determine whether Recipient desires to make an offer to purchase for cash the outstanding common stock of the Company (a "Transaction"). NOW, THEREFORE, for and in consideration of the premises, Recipient hereby agrees as follows: 1. The Evaluation Material, any other information obtained by Recipient directly or indirectly from Wilshire or any of its employees, consultants, agents or representatives, and any analyses, compilations, reports, studies or other documentation prepared by Recipient or its Representatives (as defined below) are herein collectively referred to as the "Confidential Information". Such Confidential Information includes, by way of illustration, but not limitation and irrespective of the form of communication: geophysical data and surveys, well and log data, maps, charts, production and engineering data, title and land information, technical data and financial data, prospective drilling opportunities or other ventures with existing or new partners, locations of properties, individual property profit and loss statements, tenant rolls, development plans, and potential bids for individual properties owned by the Company or others. 2. Recipient's directors, officers, employees, attorneys, agents, consultants, financial institutions and representatives are sometimes herein collectively referred to as its "Representatives". 3. Recipient agrees that it will use the Confidential Information solely for the Purpose and will not use, or allow the use of any portion of same by Recipient's Representatives, for any other purpose and, in doing so, agrees to limit access to the Confidential Information to such of its Representatives who have a need to review such Confidential Information for the Purpose and who are informed by Recipient of the confidential nature of the Confidential Information. Recipient shall be responsible and liable for ensuring that its Representatives hold such Confidential Information in the same strict confidence as is required of Recipient hereunder. 4. Upon Wilshire's written request, Recipient agrees to return all original Evaluation Material to Wilshire or its advisor without retaining copies thereof or excerpts therefrom and, concurrently therewith, to destroy all other Confidential Information not so returned to Wilshire or its advisor that is in its and/or its Representatives' possession. 5. Recipient agrees that until the expiration of eighteen months from the date of this Agreement, Recipient shall not, directly or indirectly, without the prior written approval of the Board of Directors of Wilshire, in any manner (i) acquire, agree to acquire or make any offer to acquire, propose, seek or offer to acquire, or facilitate the acquisition or ownership of securities or assets of Wilshire, (ii) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Securities and Exchange Commission) to vote, or seek to advise or influence any person with respect to the voting of any voting securities of Wilshire or any of its subsidiaries, (iii) otherwise act, alone or in concert with others, to seek to control or influence the management or the policies of Wilshire or any of its subsidiaries, (iv) disclose any intention, plan or arrangement prohibited by, or inconsistent with, the foregoing or (v) advise, assist or encourage or enter into any discussions, negotiations, agreements or arrangements with any other persons in connection with the foregoing with the exception of Oaktree Capital Management; provided that the restrictions set forth in clause (i) above shall not apply to confidential proposals made to Wilshire's advisors concerning a Transaction. Recipient also agrees during such period (a) not to request Wilshire (or its directors, officers, employees or agents), directly or indirectly, to amend or waive any provision of this paragraph and (b) not to take any action that requires Wilshire to make a public announcement regarding the possibility of a business combination, merger or other type of transaction described in this paragraph to avoid potential liability, provided that Recipient may disclose this letter agreement in an amendment to its Form 13D on file. 6. The confidentiality obligations contained in this Agreement shall continue for a period of eighteen months from the effective date hereof. 7. Recipient shall not reproduce or remove any Evaluation Material from Wilshire's offices without Wilshire's express permission. All Confidential Information and copies thereof and excerpts therefrom shall remain or become Wilshire's property, and Wilshire retains all right, title and interest therein. 8. Recipient's obligations under Section 3, 4, 6 and 7 above shall not apply to: (a) information which at the time of initial disclosure hereunder was already in the possession of Recipient or its Representatives; (b) information which at the time of initial disclosure hereunder was in the public domain or which after disclosure becomes a part of the public domain through no action or failure to act on the part of Recipient or any of its Representatives; and (c) information which at the time of initial disclosure hereunder was or is thereafter lawfully acquired by Recipient or its Representatives from a source other than Wilshire, provided to the best of Recipient's knowledge (i) such source was not under an obligation of confidence to Wilshire with respect thereto and (ii) did not acquire such information directly or indirectly from Wilshire. 9. Recipient acknowledges and agrees that Wilshire, in its sole discretion, (a) is free to explore other potential opportunities that may lead to a possible transaction with another party, (b) may change the procedures relating to its consideration of a transactions at any time without prior notice, (c) may reject any and all proposals made by Recipient with respect to a possible Transaction, (d) may terminate discussions with Recipient at any time and for any reason, and (e) will have no obligation or liability to Recipient with regard to a possible Transaction by virtue of this Agreement or otherwise, unless and until and only in the event that definitive agreements have been executed for a Transaction. Accordingly, Wilshire may elect at any time to terminate further access to and review of the Confidential Information, at which time the obligations of Recipient contained in Section 4 above shall be applicable. 10. Except as may be set forth in a definitive agreement between the parties, Recipient understands and agrees that Wilshire is making no express warranty and disclaims all implied warranties as to the accuracy or completeness of the Confidential Information, including the Evaluation Material furnished by Wilshire or located in Wilshire's offices. 11. Except as may be set forth in a definitive agreement between the parties, Recipient agrees that it and its Representatives will use the Confidential Information at their sole risk, and Wilshire will have no liability whatsoever with respect to the use of the same. Except as may be set forth in a definitive agreement between the parties, Recipient hereby releases Wilshire, its affiliates and their respective directors, officers, employees, consultants, agents and representatives (the "Indemnified Parties") from, and agrees to defend, indemnify and hold harmless all Indemnified Parties from and against, any and all claims, liabilities, losses or damages resulting in any way from or attributable to such reliance. 12. In the event any Representative or Recipient is permitted at any time to visit the Company's headquarters or its property locations, such visit shall be conducted at the sole cost, risk and expense of Recipient. Recipient hereby agrees to defend, indemnify and hold harmless all Indemnified Parties from and against any and all claims for injury, death, property damages or other loss resulting from or attributable to any such visit, regardless of the cause of same excerpt gross negligence or willful misconduct of Wilshire or its employees. Recipient agrees that it will not contact the Company's employees or management and will direct all communications through the Company's advisors. 13. Recipient acknowledges and agrees that remedies at law may be inadequate to protect Wilshire against any actual or threatened breach of this Agreement by Recipient or its Representatives, and accordingly, Recipient agrees that Wilshire shall be entitled to obtain injunctive relief in its favor. Such remedy shall not be deemed to be the exclusive remedy for a breach by Recipient or its Representatives of this Agreement, but rather shall be in addition to all other remedies available to Wilshire at law or in equity. In the event of litigation relating to this Agreement, then the non-prevailing party shall reimburse the prevailing party for its costs and expenses (including, but not limited, to, reasonable legal fees and expenses) incurred in connection with any such litigation as concerns such breach, including, but not limited to, in connection with any appeal therefrom. 14. Notices to either Party with regard to any matter covered by this Agreement shall be made in writing and (a) delivered in person, by U.S. mail, postage prepaid, or overnight courier service, such notice to be deemed given upon actual receipt, or (b) facsimile, such notice to be deemed given upon confirmation of the receipt thereof. 15. If Recipient or any its Representatives are required by any court or legislative or administrative body (by oral questions, interrogatories, requests for information or documents, subpoena or similar process) to disclose any Confidential Information, Recipient shall provide Wilshire promptly with written notice of such requirement in order to afford Wilshire an opportunity to seek an appropriate protective order. Recipient and its Representatives agree to cooperate with any reasonable request of Wilshire in its efforts to secure such protective order. If Wilshire is unable to obtain such protective order, however, or does not seek such protective order and Recipient or its Representatives are, in the opinion of their counsel, compelled to disclose the Confidential Information under pain of liability for contempt, censure or penalty, disclosure of such information may be made without liability hereunder. 16. No failure or delay by Wilshire in exercising any right, power or privilege hereunder shall be deemed a waiver thereof or preclude exercise of any other or further right, power or privilege hereunder. No amendments, changes, or modifications to this Agreement shall be valid unless in writing and signed by a duly authorized representative of each of the Parties. This Agreement comprises the full and complete agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces any oral or written communications, understandings and agreements heretofore made between the Parties with respect to such subject matter. This Agreement shall inure to the benefit of Wilshire and its successors and assigns, and shall be binding upon Recipient and its Representatives and their heirs, representatives, successors and assigns, provided that Recipient may not assign any of its rights or obligations hereunder to any third party without the prior written consent of Wilshire. Any attempted assignment without such consent shall be null and void. This Agreement shall be governed by the laws of the state of Delaware, excluding its choice of law rules, and any disputes hereunder shall be heard solely in state or federal courts sitting in the state of New Jersey, and each party consents to the jurisdiction of such courts for those purposes. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement. IN WITNESS WHEREOF, the duly authorized representative of Recipient has executed this Agreement effective as of the day and year first above written. Summit Capital, LLC, as agent and on behalf of certain funds and accounts By: ----------------------------------- Name: Title: DELOITTE & TOUCHE CORPORATE FINANCE LLC as a representative: By: ----------------------------------- Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----