-----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, Cxf5JDVnDzJadRJ3pA0fZuBreZzIws7fSJXNr13GDZi3wBdtByg1Ma9cywB4cKNU zKQ6IZfhv06RE0w9syEVGQ== 0001125282-04-004655.txt : 20040929 0001125282-04-004655.hdr.sgml : 20040929 20040929163526 ACCESSION NUMBER: 0001125282-04-004655 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20040929 DATE AS OF CHANGE: 20040929 EFFECTIVENESS DATE: 20040929 FILER: COMPANY DATA: COMPANY CONFORMED NAME: WILSHIRE OIL CO OF TEXAS CENTRAL INDEX KEY: 0000107454 STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF APARTMENT BUILDINGS [6513] IRS NUMBER: 840513668 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-119370 FILM NUMBER: 041053096 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 S-8 1 b401265_s8.txt REGISTRANT STATEMENT As filed with the Securities and Exchange Commission on September 29, 2004 -------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 WILSHIRE ENTERPRISES, INC. (Exact name of registrant as specified in its charter) Delaware 84-0513668 (State or other jurisdiction of (I.R.S. Employer) incorporation or organization) Identification No.) 921 Bergen Avenue, Jersey City, New Jersey 07306 (Address of Principal Executive Offices) (Zip Code) WILSHIRE ENTERPRISES, INC. 2004 STOCK OPTION AND INCENTIVE PLAN WILSHIRE ENTERPRISES, INC. 2004 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN (Full title of the plans) S. Wilzig Izak Chairman of the Board Wilshire Enterprises, Inc. 921 Bergen Avenue Jersey City, New Jersey 07306 201-420-2796 (Name, address and telephone number, including area code, of agent for service) with a copy to: Laura R. Kuntz, Esq. Lowenstein Sandler PC 65 Livingston Avenue Roseland, New Jersey 07068 CALCULATION OF REGISTRATION FEE Proposed Proposed Title of maximum maximum securities offering aggregate Amount of to be Amount to be price per offering registration registered registered unit (1) price fee ---------- -------- ----- --- Common Stock, $1.00 par value 750,000 shares (2) $4.975 $3,731,250 $473 ------------------ ------ ---------- ---- - -------------- (1) Pursuant to Rule 457(c) and (h) of the Securities Act of 1933, the proposed maximum offering price per share is estimated solely for the purpose of computing the amount of the registration fee and is based on the average of the high and low sales prices of the Common Stock of the registrant reported on the American Stock Exchange on September 28, 2004. (2) Plus such indeterminate number of additional shares as shall become issuable pursuant to the anti-dilution provisions of the above-mentioned Plans. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. The SEC allows us to "incorporate" into this Registration Statement information we file with it in other documents. This means that we can disclose important information to you by referring to other documents that contain that information. The information incorporated by reference is considered to be part of this Registration Statement, and information we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below, except to the extent information in those documents is different from the information contained in this Registration Statement, and all future documents filed with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we terminate the offering of these shares: (a) our Annual Report on Form 10-K for the year ended December 31, 2003; (b) our Quarterly Report on Form 10-Q for the quarters ended March 31, 2004 and June 30, 2004; (c) our Current Reports on Form 8-K (other than those deemed furnished under Item 9 of Form 8-K) filed with the SEC on April 15, 2004, May 27, 2004, June 4, 2004, June 17, 2004, June 28, 2004, July 7, 2004, July 20, 2004 and July 29, 2004; (d) our proxy statement for our 2004 annual meeting of shareholders; and (e) the description of our Common Stock set forth in our most recently filed Registration Statement filed pursuant to Section 12 of the Securities Exchange Act of 1934. ITEM 4. DESCRIPTION OF SECURITIES. Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not Applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law contains detailed provisions for indemnification of directors and officers of Delaware corporations against expenses, judgments, fines and settlements in connection with litigation. The Company's Certificate of Incorporation provides for indemnification of its directors and officers against certain liabilities to the fullest extent permitted by law. The Company's Certificate of Incorporation also eliminates the liability of directors for monetary damages in certain instances. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable. ITEM 8. EXHIBITS. 4.1 Restated Certificate of Incorporation of Wilshire Enterprises, Inc., as amended, is incorporated by reference to Exhibit 3.1 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1992. 4.2 Amended By-Laws, as of June 11, 1998, of Wilshire Enterprises, Inc., is incorporated by reference to Exhibit 3 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1998. 4.3 Stockholder Protection Rights Agreement, dated as of June 21, 1996, between Wilshire Enterprises, Inc. and Continental Stock Transfer & Trust Company, as Rights Agent, is incorporated by reference to Exhibit 1 to the Company's Current Report on Form 8-K dated June 21, 1996. II-1 5.1 Opinion of Lowenstein Sandler PC. 23.1 Consent of Ernst & Young, LLP 24.1 Power of Attorney Item 9. Undertakings. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1993; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; Provided, however, that Paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel that matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jersey City, State of New Jersey, on the 29th day of September, 2004. WILSHIRE ENTERPRISES, INC. By: /s/ S. Wilzig Izak ---------------------------------------- S. Wilzig Izak Chairman of the Board Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURES TITLE DATE /s/ S. Wilzig Izak - ------------------ S. Wilzig Izak Chairman of the Board (Chief Executive Officer) September 29, 2004 /s/ Miles Berger* - ----------------- Miles Berger Director September 29, 2004 /s/ Milton Donnenberg* - ---------------------- Milton Donnenberg Director September 29, 2004 /s/ Eric J. Schmertz, Esq.* - --------------------------- Eric J. Schmertz, Esq. Director September 29, 2004 /s/ Ernest Wachtel* - ------------------- Ernest Wachtel Director September 29, 2004 /s/ W. Martin Willschick* - ------------------------- W. Martin Willschick Director September 29, 2004 /s/ Seth Ugelow* - ---------------- Seth Ugelow Chief Financial Officer September 29, 2004 *By: /s/ S. Wilzig Izak ---------------------------- S. Wilzig Izak Attorney in Fact
II-3 EXHIBIT INDEX Exhibit No. Description Page No. 4.1 Restated Certificate of Incorporation of Wilshire Enterprises, Inc., as amended, is incorporated by reference to Exhibit 3.1 of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1992. 4.2 Amended By-Laws, as of June 11, 1998, of Wilshire Enterprises, Inc., is incorporated by reference to Exhibit 3 of the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1998. 4.3 Stockholder Protection Rights Agreement, dated as of June 21, 1996, between Wilshire Enterprises, Inc. and Continental Stock Transfer & Trust Company, as Rights Agent, is incorporated by reference to Exhibit 1 to the Company's Current Report on Form 8-K dated June 21, 1996. 5.1 Opinion of Lowenstein Sandler PC. 23.1 Consent of Ernst & Young, LLP 24.1 Power of Attorney II-4 EX-5.1 2 b401265ex_5-1.txt LETTER EXHIBIT 5.1 September 29, 2004 Wilshire Enterprises, Inc. 921 Bergen Avenue Jersey City, NJ 07306 Ladies and Gentlemen: You have requested our opinion, as securities counsel, in connection with the registration with the Securities and Exchange Commission under the Securities Act of 1933, as amended, of an aggregate of 750,000 shares of the common stock, par value $1.00 per share (the "Common Stock"), of Wilshire Enterprises, Inc. (the "Company") on a registration statement on Form S-8 (the "Registration Statement"). The shares of Common Stock to which the Registration Statement relates are issuable pursuant to the Company's 2004 Stock Option and Incentive Plan and the Company's 2004 Non- Employee Director Stock Option Plan (collectively, the "Plans"). We have examined and relied upon originals or copies, authenticated or certified to our satisfaction, of all such corporate records of the Company, communications or certifications of public officials, certificates of officers, directors and representatives of the Company, and such other documents as we have deemed relevant and necessary as the basis of the opinions expressed herein. In making such examination, we have assumed the genuineness of all signatures, the issuance of all shares for the consideration provided in the Plans or for services rendered to the Company, the authenticity of all documents tendered to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based upon the foregoing and relying upon statements of fact contained in the documents which we have examined, we are of the opinion that the shares of Common Stock offered by the Company pursuant to the Plans, when paid for in full by the participants in accordance with the Plans (to the extent that payment is required pursuant to the Plans), will be, when issued, legally issued, fully paid, and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and any amendment thereto and to all references to this firm contained in the Registration Statement. Very truly yours, /s/LOWENSTEIN SANDLER PC II-5 EX-23.1 3 b401265ex_23-1.txt CONSENT LETTER EXHIBIT 23.1 Consent of Independent Registered Public Accounting Firm We consent to the incorporation by reference in this Registration Statement on Form S-8 of Wilshire Enterprises, Inc. of our report dated March 26, 2004 with respect to the consolidated financial statements and schedule of Wilshire Enterprises, Inc. included in the Annual Report (Form 10-K) for the year ended December 31, 2003, filed with the Securities and Exchange Commission. /s/Ernst & Young LLP New York, New York September 24, 2004 II-6 EX-24.1 4 b401265ex_24-1.txt POWER OF ATTORNEY EXHIBIT 24.1 POWER OF ATTORNEY WHEREAS, the undersigned officers and directors of Wilshire Enterprises, Inc. (the "Company") desire to authorize S. Wilzig Izak to act as their attorneys-in-fact and agents, for the purpose of executing and filing a Registration Statement on Form S-8, including all amendments thereto, NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sherry Wilzig Izak his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to sign a Registration Statement on Form S-8 registering with the Securities and Exchange Commission an aggregate of 750,000 shares of Common Stock issuable pursuant to the Company's 2004 Stock Option and Incentive Plan and the Company's 2004 Non- Employee Director Stock Option Plan, including any and all amendments and supplements thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this power of attorney in the following capacities as of the 16th day of June, 2004. SIGNATURES TITLE /s/ S. Wilzig Izak - ------------------ S. Wilzig Izak Chairman of the Board (Chief Executive Officer) /s/ Miles Berger - ---------------- Miles Berger Director /s/ Milton Donnenberg - --------------------- Milton Donnenberg Director /s/ Eric J. Schmertz, Esq. - -------------------------- Eric J. Schmertz, Esq. Director /s/ Ernest Wachtel - ------------------ Ernest Wachtel Director /s/ W. Martin Willschick - ------------------------ W. Martin Willschick Director /s/ Philip Kupperman - --------------------- Philip Kupperman President and Chief Financial Officer II-7 EXHIBIT 24.1 CONTINUED POWER OF ATTORNEY WHEREAS, the undersigned officers and directors of Wilshire Enterprises, Inc. (the "Company") desire to authorize S. Wilzig Izak to act as their attorneys-in-fact and agents, for the purpose of executing and filing a Registration Statement on Form S-8, including all amendments thereto, NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sherry Wilzig Izak his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, to sign a Registration Statement on Form S-8 registering with the Securities and Exchange Commission an aggregate of 750,000 shares of Common Stock issuable pursuant to the Company's 2004 Stock Option and Incentive Plan and the Company's 2004 Non- Employee Director Stock Option Plan, including any and all amendments and supplements thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned have executed this power of attorney in the following capacities as of the 1st day of July, 2004. SIGNATURES TITLE /s/ Seth Ugelow - ---------------- Seth Ugelow Chief Financial Officer II-8 -----END PRIVACY-ENHANCED MESSAGE-----