SETTLEMENT AGREEMENT
EXECUTION
COPY
This
Settlement Agreement, dated as of April 2, 2009 (the “Agreement”), is by
and among the following parties:
(a) Wilshire
Enterprises, Inc., a Delaware corporation (the “Company”);
and
(b) the
following parties (each individually a “Bulldog Investor” and
collectively the “Bulldog
Investors”): Full Value Partners L.P., a Delaware limited
partnership (“Full
Value”), Opportunity Partners L.P., an Ohio limited partnership (“Opportunity
Partners”), Opportunity Income Plus Fund L.P., a Delaware limited
partnership (“Opportunity Income”),
Full Value Offshore Partners L.P., a Cayman Islands exempted limited partnership
(“Offshore”),
Full Value Special Situations Fund L.P., a Delaware limited partnership (“Special Situations”),
Xxxxxxx & Winthrop, Inc., an Ohio corporation and general partner of
Opportunity Partners, Full Value Advisors LLC, a New Jersey limited liability
company and general partner of Full Value and Offshore, Spar Advisors, LLC, a
New York limited liability company and general partner of Opportunity Income,
Full Value Special Situations Fund GP LLC, a Delaware limited liability company
and general partner of Special Situations, Bulldog Investors, a “doing business
as” name for Full Value and Opportunity Partners, Xx. Xxxxxxx Xxxxxxxxx, Xx.
Xxxxxx Xxxxx, Xx. Xxxxxx Xxxxxxxxx and each Affiliate and Associate of each of
the foregoing.
RECITALS
WHEREAS, as of the date of
this Agreement, the Bulldog Investors Beneficially Own (as defined below) and
have the right to vote, 1,471,893 shares of common stock, $1.00 par value, of
the Company (the “Company Common Stock”),
representing approximately 18.57% of the outstanding Company Common
Stock;
WHEREAS, prior to the date
hereof the Bulldog Investors filed a definitive proxy statement on Schedule 14A
with the Securities and Exchange Commission (the “SEC”) soliciting proxies in
favor of, among other things, (i) the two individuals, Xx. Xxxxxx Xxxxx and Xx.
Xxxxxx Xxxxxxxxx, nominated by the Bulldog Investors (the “Bulldog Nominees”)
for election to the Board of Directors of the Company (the “Board”) by the
shareholders of the Company (the “Shareholders”) and
(ii) a proposal that the Shareholders recommend to the Board that it pursue a
liquidity event (the “Bulldog
Proposal”);
WHEREAS, the Company has
informed the Bulldog Investors that, subject to the availability to the Company
of funds that legally can be used to effect such tender offer and to customary
conditions, the Company, or the Company and a third party, shall commence a
tender offer, which shall be consummated no earlier than August 19, 2009 and no
later than September 4, 2009, for at least 4,000,000 shares of Company Common
Stock at a price of $2.00 per share; and
WHEREAS, the Company and the
Bulldog Investors have agreed that it is in their mutual interests to enter into
this Agreement, pursuant to which, among other things, the Bulldog Investors
shall withdraw for consideration at the Annual Meeting initially convened on
March 24, 2009 and adjourned until March 30, 2009 and subsequently adjourned
until April 20, 2009 (together with any further adjournment or postponement
thereof, the “Annual
Meeting”) their nominations of the Bulldog Nominees for election to the
Board and the Bulldog Proposal;
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Defined
Terms. For purposes of this Agreement:
(a) The
term “Affiliate” has the
meaning set forth in Rule 12b-2 promulgated by the SEC under the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”).
(b) The
term “Associate” has the
meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange
Act.
(c) “Beneficial Owner” and
“Beneficially
Own” have the same meanings as set forth in Rule 13d-3 promulgated by the
SEC under the Exchange Act; provided, however, that for
purposes of this Agreement, any option, warrant, right, conversion privilege or
arrangement to purchase, acquire or vote Voting Securities, regardless of the
time period during, or the time at which, it may be exercised, and regardless of
the consideration paid, shall be deemed to give the holder thereof beneficial
ownership of the Voting Securities to which it relates.
(d) “Economic Owner” and
“Economically
Own” will have the same meanings as “Beneficial Owner” and “Beneficially
Own,” except that a Person will also be deemed to economically own and to be the
economic owner of (i) all shares of Company Common Stock that such Person has
the right to acquire pursuant to the exercise of any rights in connection with
any securities or any agreement, regardless of when such rights may be exercised
and whether they are conditional and (ii) all shares of Company Common Stock in
which the Person has any economic interest, including, without limitation,
pursuant to any short positions, profit interests, options, hedging
transactions, borrowed or loaned shares, swaps or other derivative security,
contract or instruction in any way related to the price of shares of Company
Common Stock.
(e) “Extraordinary
Transaction” means any merger, consolidation, business combination,
tender or exchange offer, restructuring, liquidation, recapitalization,
dissolution, or similar transaction involving the Company.
-2-
(f) The
term “Person”
will mean any individual, partnership, corporation, group, syndicate, trust,
government or agency, or any other organization, entity or
enterprise.
(g) “Voting Securities”
means any securities of the Company entitled, or which may be entitled, to vote
in the election of directors, or securities convertible into or exercisable or
exchangeable for such securities, whether or not subject to passage of time or
other contingencies.
Section
1.2 Interpretation. When
reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement unless otherwise indicated. Whenever the
words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation.” The
words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. This Agreement shall be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
ARTICLE
II
BOARD
COMPOSITION AND RELATED MATTERS
Section
2.1 Bulldog Nominees and
Proposal Withdrawn. The Bulldog Investors hereby withdraw (i)
their nominations of the Bulldog Nominees for election to the Board at the
Annual Meeting and (ii) the Bulldog Proposal. The Bulldog Investors
will promptly notify the SEC that they are withdrawing their definitive proxy
statement filed with the SEC on February 20, 2009. Each Bulldog
Investor will take all steps necessary immediately to cease, and to cause each
of its respective Affiliates and Associates immediately to cease, all efforts to
nominate or elect the Bulldog Nominees or seek the approval of the Bulldog
Proposal. Within two business days of the date of this Agreement, the
Bulldog Investors shall file, or cause to be filed on their behalf, with the SEC
an amendment to their Schedule 13D with respect to the Company disclosing the
material contents of this Agreement, which amendment shall be subject to the
prior review and approval of the Company (such approval not to be unreasonably
withheld or delayed). The Company and the Bulldog Investors agree
that Xx. Xxxxxx Xxxxxxxxx shall not be considered an Affiliate or Associate of
any other Bulldog Investor. Xx. Xxxxxx Xxxxxxxxx expressly disclaims
being an Affiliate or Associate of any other Bulldog Investor.
Section
2.2 Annual Meeting Date.
The Company shall convene the Annual Meeting on April 20, 2009.
Section
2.3 Repurchase of Company Common
Stock Through an Issuer Tender Offer. Subject to the availability to the
Company of funds that legally can be used to effect such tender offer and to
customary conditions, including those set forth in Exhibit B hereto (the
“Conditions”),
the Company, a third party or the Company together with a third party, shall
commence a tender offer, which, subject to the Conditions, shall be consummated
no earlier than August 19, 2009 and no later than September 4, 2009, for at
least 4,000,000 shares of Company Common Stock at a price of $2.00 per
share. The Bulldog Investors agree to tender all Voting Securities
Beneficially Owned by them in such tender offer.
-3-
Section
2.4 Voting and Transfer
Provisions. At the Annual Meeting, the Bulldog Investors,
together with their Affiliates and Associates, shall take all action necessary,
including, without limitation, providing new “white” proxy cards to the Company,
to cause all shares of Company Common Stock for which they have the right to
vote as of the record date for the Annual Meeting to be present for quorum
purposes and to be voted at such meeting and at any adjournments or
postponements thereof, (i) in favor of each director nominated and
recommended by the Board for election at such meeting and (ii) in the
manner recommended by the Board with respect to each other matter presented at
such meeting. The Bulldog Investors agree not to sell, pledge,
dispose of, transfer, lease, license, guarantee or encumber, or authorize the
sale, pledge, disposition, transfer, lease, license, guarantee or encumbrance
of, or grant or otherwise transfer any proxy or other voting rights (other than
to the Company) with respect to, the Voting Securities Beneficially Owned by the
Bulldog Investors as of the date hereof prior to the date of the completion of
the tender offer; provided, however, that the
Bulldog Investors may sell Voting Securities Beneficially Owned by them on the
open market (with no block trades of more than 1% of the outstanding shares to
any one person or group) to the extent such sales are required under the terms
of the governing documents of any Bulldog Investor relating to redemptions
requested by investors in the funds managed by any Bulldog
Investor. The Bulldog Investors further agree not to vote or use or
cause to be voted or used at the Annual Meeting any proxies received by the
Bulldog Investors as a result of any contract, arrangement understanding or
relationship (legal or otherwise) with any person with respect to any securities
of the Company, including, without limitation, any proxies received as a result
of the Bulldog Investors’ proxy solicitation.
Section
2.5 Irrevocable
Proxies. In order to secure the performance of each of the
Bulldog Investors’ obligations under this Agreement, each Bulldog Investor
hereby irrevocably grants a proxy appointing such persons as the Company
designates as such Bulldog Investor’s attorney-in-fact and proxy, with full
power of substitution, for and in its or his name, place and xxxxx, to vote,
express consent or dissent, or otherwise to utilize such voting power in the
manner contemplated by and in accordance with this Agreement, in such person’s
discretion, with respect to the Voting Securities Beneficially Owned by such
Bulldog Investor. Each Bulldog Investor hereby represents that any
proxies heretofore given in respect of the Voting Securities Beneficially Owned
by such Bulldog Investor are not irrevocable and that any such proxies are
hereby revoked. Each Bulldog Investor hereby affirms that the
irrevocable proxy granted hereby is coupled with an interest and may under no
circumstances be revoked. Each Bulldog Investor hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. THE PROXY AND POWER OF ATTORNEY SET FORTH IN THIS
SECTION 2.5 IS IRREVOCABLE AND COUPLED WITH AN INTEREST.
Section
2.6 Publicity. The
Company shall announce this Agreement and the material terms hereof by means of
a press release as soon as practicable on or after the date hereof, which press
release shall be subject to the prior review and approval of the Bulldog
Investors (such approval not to be unreasonably withheld or
delayed). Except as set forth in this Agreement, neither the Company
nor the Bulldog Investors shall make any public announcement or statement
concerning this Agreement or public comment on this Agreement; provided, however, that any
party may make such announcement, statement or comment concerning this Agreement
as is required by law, including, without limitation, any filing required by
applicable rules or regulations of the SEC, or the rules of any stock exchange;
provided, further, that the
Company may respond to shareholder, analyst and media inquiries regarding the
terms of the Agreement.
-4-
Section
2.7 Mutual
Releases. Promptly after the execution of this Agreement, the
Company and the Bulldog Investors shall provide mutual releases in the forms
annexed hereto as Exhibit
A. The Company and the Bulldog Investors further agree to take
all action necessary to promptly dismiss with prejudice all pending litigation
between the parties, including, but not limited to, the litigation currently
pending in the Superior Court of New Jersey.
Section
2.8 Expenses. Within
fifteen business days from the date of this Agreement, the Company shall pay the
Bulldog Investors an amount equal to $25,000 as reimbursement for expenses
incurred in connection with their proxy solicitation, and the Bulldog Investors
hereby agree that such payment shall be in full satisfaction of any claims or
rights they may have as of the date hereof for reimbursement of fees, expenses
or costs in connection with their proxy solicitation.
ARTICLE
III
ACTIONS
BY THE BULLDOG INVESTORS
Section
3.1 Bulldog
Standstill. The Bulldog Investors, either individually or as a
group, shall not, without the prior written consent of the Board specifically
expressed in a written resolution adopted by a majority vote of the entire
Board:
(a) acquire,
offer or propose to acquire, or agree to acquire (except by way of stock
dividends or other distributions or offerings made available to holders of
Voting Securities generally on a pro rata basis, provided that any such
securities so received will be subject to the provisions hereof), directly or
indirectly, whether by purchase, tender or exchange offer, through the
acquisition of control of another Person, by joining a partnership, limited
partnership, syndicate or other “group” as defined under Section 13(d) of the
1934 Act or otherwise, any Voting Securities, or otherwise become the Economic
Owner of any such securities;
(b) solicit
proxies or written consents of shareholders, or any other person with the right
to vote or power to give or withhold consent in respect of Voting Securities, or
conduct, encourage, participate or engage in, or otherwise seek to influence in
any manner, any other type of referendum (binding or non-binding) with respect
to any matter, or from the holders of Voting Securities or any other person with
the right to vote or power to give or withhold consent in respect of Voting
Securities, or make, or in any way participate, influence or engage in (other
than by voting their Voting Securities in a manner that does not violate this
Agreement), any “solicitation” of any “proxy” (as such terms are used in the
proxy rules of the SEC), consent or other authority to vote any Voting
Securities, with respect to any matter, or participate directly or indirectly in
any contested solicitation with respect to the Company, including without
limitation relating to the removal or the election of directors;
(c) form
or join in a partnership, limited partnership, syndicate or other group,
including without limitation a “group” as defined under Section 13(d) of the
1934 Act, with respect to Voting Securities, or otherwise support or participate
in any effort by a third party with respect to the matters set forth in Section
3.1(b), or deposit any Voting Securities in a voting trust or subject any Voting
Securities to any voting agreement, other than solely with other Bulldog
Investors with respect to Voting Securities now or hereafter Beneficially Owned
by them or pursuant to this Agreement;
-5-
(d) act,
alone or in concert with others, to seek to control or influence, in any manner,
the management, the Board or the policies of the Company or nominate any person
as a director of the Company who is not nominated by the then incumbent
directors of the Company or propose any matter to be voted upon by the
shareholders of the Company;
(e) make
any public announcement with respect to, or submit a proposal for, or offer of
(with or without conditions) any Extraordinary Transaction of or involving the
Company or the securities or assets of the Company;
(f) seek
to have called, or cause to be called, any meeting of shareholders of the
Company;
(g) make
any demand to inspect the books and records of the Company or demand a copy of
the Company’s stock ledger list, including pursuant to any statutory rights that
the Bulldog Investors may have;
(h) make,
or cause to be made, any statement or announcement that relates to and
constitutes an ad hominem attack on, or relates to and otherwise disparages, the
Company, its officers or its directors or any person who has served as an
officer or director of the Company on or following the date of this Agreement:
(i) in any document or report filed with or furnished to the SEC or any other
governmental agency, (ii) in any press release or other publicly available
format (including on the Internet), (iii) to any journalist or member of the
media (including without limitation, in a television, radio, newspaper or
magazine interview) or (iv) in any letter or other communication to or with any
shareholder of the Company;
(i) request
the Company to amend, waive or terminate any provision of this Agreement
(including this sentence);
(j) take
any action which will require the Company to make a public announcement
regarding the possibility of an Extraordinary Transaction;
(k) make
any proposal (including publicly disclose or discuss any proposal) or have any
discussions or communications, or enter into any arrangements, understandings or
agreements (whether written or oral) with, or advise, finance, assist or
encourage, any other Person in connection with any of the foregoing, or make any
investment in or enter into any arrangement with, any other Person that engages,
or offers or proposes to engage, in any of the foregoing; or
(l) take
or cause or induce others to take any action inconsistent with any of the
foregoing.
-6-
Section
3.2 Bulldog
Voting. At each shareholder meeting of the Company following
the Annual Meeting, the Bulldog Investors will cause all Voting Securities for
which they have the right to vote as of the record date for any meeting of
shareholders to be present for quorum purposes and to be voted at such meeting
in the manner recommended by the Board.
Section
3.3 Termination of the
Standstill. The Bulldog Investors will be released from the
obligations set forth in this Article 3 on the date that is thirty (30) days
before the last date on which a shareholder of the Company may submit
nominations for the Board in connection with the 2012 Annual Meeting of
Shareholders of the Company.
ARTICLE
IV
ACTIONS
BY THE COMPANY
Section
4.1 Unless
and until the Bulldog Investors are released from their obligations under
Article III pursuant to Section 3.3 hereof, the Company shall not make, or cause
to be made, any statement or announcement that relates to and constitutes an ad
hominem attack on, or relates to and otherwise disparages, any of the Bulldog
Investors, any of their officers, directors, partners or members or any person
who has served as an officer, director, partner or member of any of the Bulldog
Investors: (i) in any press release or other publicly available format
(including on the Internet), (ii) to any journalist or member of the media
(including without limitation, in a television, radio, newspaper or magazine
interview) or (iii) in any letter or other communication to or with any
shareholder of the Company.
ARTICLE
V
OTHER
PROVISIONS
Section
5.1 Company Representations and
Warranties. The Company represents and warrants to each of the
Bulldog Investors that:
(a) the
Company’s execution, delivery and performance of this Agreement has been duly
authorized and does not violate its Certificate of Incorporation, its Bylaws,
the Delaware General Corporation Law, or any agreement to which it is a
party;
(b) this
Agreement constitutes the Company’s valid and binding obligation, enforceable
against it in accordance with the terms thereof; and
(c) as
of the date hereof, the Company’s expectation is that the Conditions to the
tender offer will be satisfied and the Company has no plans to take any action
which would cause the Conditions not to be satisfied.
Section
5.2 Bulldog Representations and
Warranties. Each of the Bulldog Investors represents and
warrants to the Company that:
(a) if
the Bulldog Investor making such representation and warranty is not a natural
person, its execution, delivery and performance of this Agreement has been
approved by its respective general partner, managing member, board of directors,
trustee or other governing body or authority, as the case may be, and does not
violate its respective organizational or constituent document;
-7-
(b) its
execution, delivery and performance of this Agreement does not violate any
agreement to which it is a party or any of its constituent
documents;
(c) this
Agreement constitutes its valid and binding obligation, enforceable against it
in accordance with the terms thereof;
(d) it
has consulted with counsel of its choice in connection with its decision to
enter into and be bound by this Agreement or waived its right to so consult;
and
(e) the
amount set forth in the Recitals to this Agreement is a true statement of the
aggregate number of Voting Securities Beneficially Owned by the Bulldog
Investors.
Section
5.3 Remedies.
i) Each
party hereto hereby acknowledges and agrees, on behalf of itself and its
Affiliates and Associates, that irreparable harm would occur in the event any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed
that the parties will be entitled to specific relief hereunder, including an
injunction or injunctions to prevent and enjoin breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof in
any state or federal court in New York County in the State of New York, in
addition to any other remedy to which they may be entitled at law or in
equity. Any requirements for the securing or posting of any bond with
such remedy are hereby waived.
(b) Each
party hereto agrees, on behalf of itself and its Affiliates, that any actions,
suits or proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby will be brought solely and exclusively in any
state or federal court in New York County in the State of New York (and the
parties agree not to commence any action, suit or proceeding relating thereto
except in such courts), and further agrees that service of any process, summons,
notice or document by U.S. registered mail to the respective addresses set forth
in Section 5.5 will be effective service of process for any such action,
suit or proceeding brought against any party in any such court. Each
party, on behalf of itself and its Affiliates, irrevocably and unconditionally
waives any objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement or the transactions contemplated hereby, in the
state or federal courts in New York County in the State of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an improper or inconvenient forum.
Section
5.4 Entire
Agreement. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof and may be amended only by
an agreement in writing executed by the parties hereto.
Section
5.5 Notices. All
notices, consents, requests, instructions, approvals and other communications
provided for herein and all legal process in regard hereto shall be in writing
and shall be deemed validly given, made or served, if (a) given by
telecopy, when such telecopy is transmitted to the telecopy number set forth
below and the appropriate confirmation is received or (b) if given by any
other means, when actually received during normal business hours at the address
specified in this subsection:
-8-
|
|
if
to the Company:
|
|
|
Wilshire
Enterprises, Inc.
|
|
|
0
Xxxxxxx Xxxxxx
|
|
|
Xxxxxx,
Xxx Xxxxxx, 00000
|
|
|
Facsimile: (000)
000-0000
|
|
|
Attention: Xxxxxx
Xxxxxx Izak, Chairman of the Board and
Chief
|
|
|
Executive Officer
|
|
|
with
a copy to:
|
|
|
Cadwalader,
Xxxxxxxxxx & Xxxx LLP
|
|
|
Xxx
Xxxxx Xxxxxxxxx Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Facsimile: (000) 000-0000
|
|
|
Attention:
Xxxxxx
X. Block, Esq.
|
|
|
|
if
to the Bulldog Investors:
|
|
|
Bulldog
Investors
|
|
|
00
Xxxxxxxx Xxxxx
|
|
|
Xxxxxxxxxxxxx,
Xxx Xxxx 00000
|
|
|
Facsimile: (000)
000-0000 (000) 000-0000
|
|
|
Attention: Xxxxxxx
Xxxxxxxxx
|
|
|
Xxxxxx Xxxxx
|
Section
5.6 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
Section
5.7 Further
Assurances. Each party agrees to take or cause to be taken
such further actions, and to execute, deliver and file or cause to be executed,
delivered and filed such further documents and instruments, and to obtain such
consents, as may be reasonably required or requested by the other party in order
to effectuate fully the purposes, terms and conditions of this
Agreement.
Section
5.8 No Third-Party
Beneficiaries. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and
assigns, and, except as provided in the releases attached hereto as Exhibit A, nothing in
this Agreement is intended to confer on any person other than the parties hereto
or their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section
5.9 Other
Agreements. This Agreement supersedes in its entirety the
Settlement Agreement and Mutual Release dated February 4, 2009, among certain of
the Bulldog Investors and the Company. For the avoidance of doubt,
this Agreement and the release granted herein, among other things, eliminate the
right of plaintiffs in the lawsuit entitled Xxxxxxx Xxxxxxxxx and Full Value
Partners L.P. v. Wilshire Enterprises, Inc., C.A. No. 4311-VCL, to apply
for an award of attorney's fees in that action.
-9-
Section
5.10 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
[Remainder
of Page Left Blank Intentionally]
-10-
IN
WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or
caused the same to be executed by its duly authorized representative as of the
date first above written.
| WILSHIRE ENTERPRISES, INC. |
FULL
VALUE PARTNERS L.P.
|
|||
|
By:
Full Value Advisors LLC, General Partner
|
||||
| By: | /s/ Xxxxxx Xxxxxx Xxxx | By: |
/s/
Xxxxxxx Xxxxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx Xxxx
Title:
Chairman of the Board and Chief Executive
Officer
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
|||
|
OPPORTUNITY
PARTNERS L.P.
|
||||
|
By: Xxxxxxx
& Winthrop, Inc., General Partner
|
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
President
|
||||
| OPPORTUNITY INCOME PLUS FUND L.P. | ||||
| By: Spar Advisors, LLC, General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
|
||||
|
|
||||
| FULL VALUE OFFSHORE PARTNERS L.P. | ||||
| By: Full Value Advisors LLC, General Partner | ||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
FULL VALUE
SPECIAL SITUATIONS FUND L.P.
|
||||
|
By:
Full Value Special Situations Fund GP LLC, General
Partner
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
FULL
VALUE ADVISORS LLC
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
XXXXXXX
& WINTHROP, INC.
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
President
|
||||
|
SPAR
ADVISORS, LLC
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:Managing
Member
|
||||
|
FULL
VALUE SPECIAL SITUATIONS FUND GP LLC
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
| /s/ XXXXXXX XXXXXXXXX | ||||
| XXXXXXX XXXXXXXXX | ||||
| /s/ XXXXXX XXXXX | ||||
| XXXXXX XXXXX | ||||
| /s/ XXXXXX XXXXXXXXX | ||||
| XXXXXX XXXXXXXXX | ||||
EXHIBIT
A
RELEASE
WILSHIRE
ENTERPRISES, INC., its subsidiaries, affiliates, successors and assigns, their
respective current and former officers, directors, employees and agents and each
of their respective successors and assigns, hereby fully releases and forever
discharges THE BULLDOG INVESTORS (as defined in the Settlement Agreement dated
April 2, 2009 by and among Wilshire Enterprises, Inc. and the other parties
signatory thereto (the “Settlement
Agreement”)), each member of the Bulldog Investors, their current and
former officers, directors, partners, members, subsidiaries, affiliates, heirs,
executors, administrators, and their respective successors and assigns (the
“Bulldog
Releasees”) from any and all claims, or causes of action they have had,
could have had or may have had against the Bulldog Releasees from the beginning
of time to the date of the Settlement Agreement, including but not limited to
any and all claims arising out of or in connection with or relating to the
election of directors to Wilshire Enterprises’ Board of Directors in 2009 or the
solicitation of proxies in connection with Wilshire Enterprises’ 2009
shareholders’ meetings. Nothing herein shall limit Wilshire
Enterprises’ right to enforce the terms of the Settlement
Agreement.
| WILSHIRE ENTERPRISES, INC. | ||
| By: | /s/ Xxxxxx Xxxxxx Xxxx | |
|
Name:
Xxxxxx Xxxxxx Izak
Title:
Chairman of the Board and Chief Executive
Officer
|
||
RELEASE
THE
BULLDOG INVESTORS (as defined in the Settlement Agreement dated April 2, 2009 by
and among Wilshire Enterprises, Inc. and the other parties signatory thereto
(the “Settlement
Agreement”)), each member of the Bulldog Investors, their current and
former subsidiaries, affiliates, successors and assigns, their respective
current and former officers, directors, partners, members, subsidiaries,
affiliates, heirs, executors, administrators, and their respective successors
and assigns, hereby fully releases and forever discharges WILSHIRE ENTERPRISES,
INC., its subsidiaries, affiliates, successors and assigns, their respective
current and former officers, directors, employees and agents and each of their
respective successors and assigns (the “Wilshire Releasees”)
from any and all claims, or causes of action they have had, could have had or
may have had against the Wilshire Releasees from the beginning of time to the
date of the Settlement Agreement, including but not limited to any claims
arising out of or in connection with or relating to the election of directors to
Wilshire Enterprises’ Board of Directors in 2009 or the solicitation of proxies
in connection with Wilshire Enterprises’ 2009 shareholders’
meetings. Nothing herein shall limit the rights of each member of the
Bulldog Investors to enforce the terms of the Settlement Agreement.
|
FULL VALUE
PARTNERS L.P.
By:
Full Value Advisors LLC, General Partner
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
OPPORTUNITY
PARTNERS L.P.
By: Xxxxxxx
& Winthrop, Inc., General Partner
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
President
|
||||
|
OPPORTUNITY
INCOME PLUS FUND L.P.
By:
Spar Advisors, LLC, General Partner
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
FULL VALUE
OFFSHORE PARTNERS L.P.
By: Full Value
Advisors LLC, General Partner
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
FULL VALUE
SPECIAL SITUATIONS FUND L.P.
By:
Full Value Special Situations Fund GP LLC, General
Partner
|
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
FULL
VALUE ADVISORS LLC
|
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
XXXXXXX
& WINTHROP, INC.
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
President
|
||||
|
SPAR
ADVISORS, LLC
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
|
FULL
VALUE SPECIAL SITUATIONS FUND GP LLC
|
||||
|
By:
|
/s/
Xxxxxxx Xxxxxxxxx
|
|||
|
Name:
Xxxxxxx Xxxxxxxxx
Title:
Managing Member
|
||||
| /s/ XXXXXXX XXXXXXXXX | ||||
| XXXXXXX XXXXXXXXX | ||||
| /s/ XXXXXX XXXXX | ||||
| XXXXXX XXXXX | ||||
| /s/ XXXXXX XXXXXXXXX | ||||
| XXXXXX XXXXXXXXX | ||||
EXHIBIT B
Conditions
to Offer
Notwithstanding
any other provision of the tender offer, the Company will not be required to
commence the tender offer or, if the tender offer is commenced, accept for
payment, purchase or pay for any shares tendered, and may terminate or amend the
tender offer or may postpone the acceptance for payment of, or the purchase of
and the payment for, shares tendered, subject to the rules under the Securities
Exchange Act of 1934, as amended, if at any time any of the following events has
occurred:
|
(i)
|
any
judgment, order or injunction shall have been entered, enforced or deemed
applicable by any court, authority, agency or tribunal, which makes
illegal, or directly or indirectly restrains, prohibits or otherwise
affects the making of the tender offer or the acquisition of shares under
the tender offer;
|
|
(ii)
|
there
has occurred a general suspension of trading in, or limitation on prices
for, securities on any United States national securities exchange or in
the over-the-counter markets in the United States or a declaration of a
banking moratorium or any suspension of payments in respect of banks in
the United States, whether or not mandatory;
or
|
|
(iii)
|
legislation
amending the Internal Revenue Code of 1986, as amended (the “Code”), has
been passed by either the U.S. House of Representatives or the Senate
or becomes pending before the U.S. House of Representatives or the
Senate or any committee thereof, the effect of which would be to change
the U.S. federal income tax consequences of the consummation of the
tender offer in any manner that would adversely affect the Company or any
of its
affiliates
|
