As filed with the Securities and Exchange Commission on January 6, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Wilshire Real Estate Investment Inc.
(Exact name of registrant as specified in its charter)
Maryland
(State or other jurisdiction of incorporation or organization)
52-2081138
(I.R.S. Employer Identification Number)
1310 SW 17th Street
Portland, OR 97201
(Address of principal executive offices) (Zip code)
Wilshire Real Estate Investment Trust Inc.
1998 Stock Option Plan
(Full Title of Plan)
Lawrence A. Mendelsohn
1310 SW 17th Street
Portland, OR 97201
(503) 721-6500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
James M. Waddington, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed maximum Amount of
securities to be maximum aggregate Registration
to be registered offering price offering Fee
registered per share(1) price(1)
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Common Stock, 3,500,000 $2.1875 $7,656,250 $2,021.25
par value shares
$.0001 per
share
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) calculated on the basis of the high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
January 3, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
The following documents filed with the Securities and Exchange Commission
by Wilshire Real Estate Investment Inc., a Maryland corporation (the
"Corporation" or the "Registrant"), are incorporated herein by reference:
(1) The Corporation's Annual Report filed on Form 10-K for the
fiscal year ended December 31, 1998;
(2) The Corporation's Annual Report filed on Form 10-K/A for the
fiscal year ended December 31, 1998;
(3) The Corporation's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999;
(4) The Corporation's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999;
(5) The Corporation's Quarterly Report on Form 10-Q/A for the
quarter ended June 30, 1999;
(6) The Corporation's Current Report on Form 8-K dated September
30, 1999;
(7) The Corporation's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999;
(8) The Corporation's Current Report on Form 8-K dated November
12, 1999;
(9) The Corporation's Current Report on Form 8-K dated December
13, 1999;
(10) The Corporation's Current Report on Form 8-K dated December
15, 1999; and
(11) the description of the Corporation's common stock, par value
$.0001 per share, contained in the Company's Registration Statement filed
on Form 8-A pursuant to Section 12 of the Securities Exchange Act of 1934.
All documents subsequently filed by the Corporation pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a
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post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
thereof from the date of filing such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Corporation's Amended and Restated Articles of Incorporation (the
"Charter") limits the liability of its directors and officers to the Corporation
and its stockholders to the fullest extent permitted from time to time by
Maryland law. Maryland law presently permits the liability of directors and
officers to a corporation or its stockholders for money damages to be limited,
except (i) to the extent that it is proved that the director or officer actually
received an improper benefit or profit in money, property or services for the
amount of the benefit or profit in money, property or services actually
received, or (ii) if a judgment or other final adjudication is entered in a
proceeding based on a finding that the director's or officer's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding. This provision
does not limit the ability of the Corporation or its stockholders to obtain
other relief, such as an injunction or rescission. The Charter and the
Corporation's Bylaws require the Corporation to indemnify and hold harmless and,
without requiring a determination of the ultimate entitlement to
indemnification, pay reasonable expenses in advance of the final disposition of
any proceeding to its present and former directors and officers and certain
other parties to the fullest extent permitted from time to time by Maryland law.
The Maryland General Corporation Law ("MGCL") permits a corporation to indemnify
its directors, officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses incurred by them in connection with
any proceeding to which they may be made a party by reason of their service to
or at the request of the corporation, unless it is established that (i) the act
or omission of the indemnified party was material to the matter giving rise to
the proceeding and (x) was committed in bad faith or (y) was the result of
active and deliberate dishonesty, (ii) the indemnified party actually received
an improper personal benefit in money, property or services or (iii) in the case
of any criminal proceeding, the indemnified party had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be
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made against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the director or officer in connection with the proceeding.
Indemnification is limited to court ordered reimbursement for expenses; however,
if the proceeding is one by or in the right of the corporation, and the director
or officer was adjudged to be liable to the corporation or if the proceeding is
one charging improper personal benefit to the director or officer and the
director or officer was adjudged to be liable on the basis that personal benefit
was improperly received. The termination of any proceeding by conviction, or
upon a plea of nolo contendere or its equivalent, or an entry of any order of
probation prior to judgment, creates a rebuttal presumption that the director or
officer did not meet the requisite standard of conduct required for
indemnification to be permitted. Maryland law requires a corporation (unless its
charter provides otherwise, which the Corporation's Charter does not) to
indemnify a director or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity. It is the position of the Securities and
Exchange Commission that indemnification of directors and officers for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act") is against public policy and is unenforceable pursuant to
Section 14 of the Securities Act.
The Corporation maintains an insurance policy providing directors' and
officers' liability insurance for any liability its directors or officers or the
directors or officers of any of its subsidiaries may incur in their capacities
as such.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
3.1 Amended and Restated Articles of Incorporation of the Corporation
(incorporated by reference to Exhibit 3.1 to the Corporation's
Quarterly Report on Form 10-Q for the quarter ended September 30, 1999
3.2 Bylaws of the Corporation (incorporated by reference to Exhibit 3.2 of
the Corporation's Registration Statement on Form S-11 (Registration
No. 333-39035) dated February 27, 1998
4.1 Wilshire Real Estate Investment Trust Inc. 1998 Employee Stock Option
Plan
5 Opinion of Proskauer Rose LLP
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5)
24 Powers of Attorney (included on signature page)
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being 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 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in value of securities offered (if just the
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume or price represent no more than a
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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 the
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.
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(b) The undersigned Registrant hereby 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
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 Act 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 the 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 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Portland, State of Oregon on December 29, 1999.
WILSHIRE REAL ESTATE INVESTMENT INC.
By:/s/ Andrew A. Wiederhorn
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Andrew A. Wiederhorn
Chairman and Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each director and officer whose
signature appears below constitutes and appoints Andrew A. Wiederhorn and
Lawrence A. Mendelsohn, or either of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to act, without
the other, for him and in his name, place, and stead, in any and all capacities,
to sign a Registration Statement on Form S-8 and any or all amendments
(including post-effective amendments) thereto, relating to the registration,
under the Securities Act of 1933, as amended, of shares of common stock of the
Corporation to be issued pursuant to the Corporation's 1998 Stock Option Plan
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents 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 full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, their substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
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/s/ Andrew A. Wiederhorn Chairman of the Board, December 29, 1999
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Andrew A. Wiederhorn and a Director
(principal executive officer)
/s/ Lawrence A. Mendelsohn President and a Director December 29, 1999
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Lawrence A. Mendelsohn
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Signatures Title Date
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Executive Vice President and December 29, 1999
/s/ Chris Tassos Chief Financial Officer
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Chris Tassos Accounting Officer)
/s/ David C. Egelhoff Director December 29, 1999
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David C. Egelhoff
/s/ Jordan D. Schnitzer Director December 29, 1999
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Jordan D. Schnitzer
/s/ Patrick Terrell Director December 29, 1999
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Patrick Terrell
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EXHIBIT 5
December 29, 1999
Wilshire Real Estate Investment Inc.
1310 SW 17th Street
Portland, OR 97201
Dear Sirs:
We are acting as counsel to Wilshire Real Estate Investment Inc., a
Maryland corporation (the "Company"), in connection with the Registration
Statement on Form S-8 with exhibits thereto (the "Registration Statement") filed
by the Company under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, relating to the registration of 3,500,000 shares (the
"Shares") of Common Stock, par value $.0001 per share, of the Company. The
Shares are to be issued by the Company pursuant to the Company's 1998 Stock
Option Plan (the "Plan").
As such counsel, we have participated in the preparation of the
Registration Statement and have reviewed the corporate proceedings in connection
with the adoption of the Plans and have also examined and relied upon originals
or copies, certified or otherwise authenticated to our satisfaction, of all such
corporate records, documents, agreements, and instruments relating to the
Company, and certificates of public officials and of representatives of the
Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
we have deemed proper and necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares are duly authorized and, upon issuance of the Shares in accordance with
the Plan, will be, assuming no change in the applicable law or pertinent facts,
validly issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Proskauer Rose LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 19, 1999
included in the Company's Form 10-K and Form 10-K/A for the year ended December
31, 1998.
Arthur Andersen LLP
Los Angeles, California
December 22, 1999