SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
__________________
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities
Exchange Act of 1934
Date of
report (Date of earliest event reported):
October
30, 2009
Commission
File Number
1-8356
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DVL,
Inc.
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(Exact name of registrant as
specified in its charter)
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Delaware
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13-2892858
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(State
or other jurisdiction of incorporation)
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(IRS
Employer Identification No.)
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70
East 55
th
Street, 7
th
Floor, New York, NY 10022
(Address
of principal executive offices)
Registrant’s
telephone number including area code:
(212) 350-9900
Not
Applicable
(Former
name or former address, if changed since last report)
Check the
appropriate box if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
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¨
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Written
communication pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communication pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communication pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01 Entry into a Material Definitive Agreement
The
information contained in Item 5.02(c) with respect to an agreement entered into
on November 2, 2009, between DVL, Inc. (the “Company”) and Real Estate Systems
Implementation Group, LLC is hereby incorporated by reference.
Item
4.01 Changes in Registrant’s Certifying Accountant
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(a)
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On
October 30, 2009, the Company and its independent registered public
accounting firm, Imowitz Koenig & Co., LLP (“IKC”) agreed that IKC
would resign and not stand for re-appointment as the Company’s
independent registered public accounting
firm.
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With
respect to IKC and its service as the Company’s independent registered public
accounting firm;
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·
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IKC’s
reports on the Company’s consolidated financial statements as of and for
the years ended December 31, 2008 and 2007 did not contain an adverse
opinion or a disclaimer of opinion and, were not qualified or modified as
to uncertainty, audit scope, or accounting
principle.
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·
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During
the Company’s fiscal years ended December 31, 2008 and 2007 and through
the most recent interim period, there were no disagreements with IKC on
any matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedures, which disagreement(s), if not
resolved to the satisfaction of IKC, would have caused IKC to make a
reference to the subject matter of the disagreement(s) in connection with
their reports on the Company’s financial statements for such
years.
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·
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During
the Company’s fiscal years ended December 31, 2008 and 2007 and through
the most recent interim period, there was a “reportable event” as
described in Item 304(a)(1)(v) of Regulation S-K promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”). As disclosed in our 2008 Form 10-K, our control
environment did not sufficiently promote effective internal control over
financial reporting throughout the organization. No misstatements occurred
as a result of such material weakness in our internal controls over
financial reporting.
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·
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In
an effort to improve its internal controls over financial reporting on
November 2, 2009 the Company engaged Real Estate Systems Implementation
Group LLC (“RESIG”) to provide substantially all of the Company’s internal
accounting, financial statement preparation and bookkeeping functions on
an outsourced consulting basis. RESIG is an affiliate of IKC and therefore
IKC is no longer independent with respect to our financial statements.
Consequently IKC has resigned and the Company engaged a new independent
registered public accounting firm as described
below.
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(b)
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On
November 3, 2009, the Company, with approval of the Audit Committee of the
Board of Directors of the Company, engaged McGladrey & Pullen, LLP
(“M&P”) as the Company’s new independent registered public accounting
firm as of and for the year ending December 31, 2009. During
the fiscal years ended December 31, 2008 and 2007, and through the most
recent interim period, neither the Company nor anyone acting on the
Company’s behalf consulted with M&P regarding either (i) the
application of the accounting principles to a specified transaction,
either completed or proposed; or the type of audit opinion that might be
rendered on the Company’s financial statements, and neither a written
report nor oral advice was provided by M&P to the Company that was an
important factor considered by the Company in reaching a decision as to
any accounting, auditing or financial reporting issues: or (ii) any matter
that was either the subject of a “disagreement”, as that term is described
in item 304 (a) (1) (v) of Regulation S-K promulgated under the Exchange
Act, and the related instructions to Item 304 of Regulation S-K, or a
“reportable event”, as the term is described in Item 304 (a) (1) (v) of
Regulation S-K.
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The
Company provided IKC with a copy of the above disclosures it is making in this
Current Report on Form 8-K (the “Report”) prior to the time the Report was filed
with the Securities and Exchange Commission (the “SEC”). The Company
requested that IKC furnish a letter addressed to the SEC stating whether or not
it agrees with the above statements. A copy of IKC’s letter dated
November 5, 2009, is attached as Exhibit 16.1 hereto.
Item
5.02 Departure of Directors or Principal Officers; Election of
Directors: Appointment of Principal Officers
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(b)
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On
November 2, 2009, Henry Swain, the Principal Financial Officer and
Principal Accounting Officer of the Company resigned from the offices of
Chief Financial Officer and Treasurer of the Company and he is no longer
the Principal Financial Officer and Principal Accounting Officer of the
Company. Mr. Swain, Executive Vice President will retain other duties at
the Company with respect to the Company’s
operations.
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(c)
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On
November 2, 2009, the Company appointed Neil H. Koenig as Executive Vice
President and Chief Financial Officer of the Company and as such, Mr.
Koenig is the Principal Financial Officer and Principal Accounting Officer
of the Company. Mr. Koenig’s appointment as Executive Vice
President and Chief Financial Officer was required pursuant to an
agreement (the “Agreement”) entered into on November 2, 2009 between the
Company and RESIG pursuant to which RESIG will provide substantially all
of the Company’s internal accounting, financial statement preparation and
bookkeeping functions on an outsourced consulting basis, as further
described below.
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Mr.
Koenig, age 59, has been a managing member of RESIG since 1999 and has been a
managing partner of IKC since 1980. IKC was the independent registered public
accounting firm of the Company as of and for the years ended December 31, 2008
and 2007 and through the most recent interim period. IKC and RESIG have common
ownership. Mr. Koenig serves on the Board of Directors of NBTY, Inc, a public
company that manufactures, markets, distributes and retails nutritional
supplements.
Pursuant
to the Agreement, RESIG will provide substantially all of the Company’s internal
accounting, financial statement preparation and bookkeeping functions on an
outsourced consulting basis. The Agreement does not provide for a
specified term and is terminable by either the Company or RESIG upon 30 days
prior notice to the non-terminating party. Pursuant to the Agreement,
the Company will pay a fee to RESIG of $305,000 per annum (subject to reduction
for the amount of any direct compensation which may be received by Mr. Koenig),
payable quarterly, and such amount is subject to review and adjustment annually
upon agreement of the Company and RESIG. In addition, RESIG is
entitled to reimbursement of all out of pocket disbursements.
During
2009 and through the date of this filing, IKC charged the Company $85,000 for
audit related fees and $48,570 for tax preparation and tax consulting
fees. During 2008, IKC charged the Company $167,000 for audit related
fees and $33,000 for tax preparation and tax consulting fees.
Mr.
Koenig currently will not receive any direct compensation for his services as
Executive Vice President and Chief Financial Officer of the Company and is
neither an employee of the Company nor providing services to the Company on a
full-time basis.
Item
9.01 Financial Statements and Exhibits
(c)
Exhibits.
16.1 Letter
from IKC to the Securities and Exchange Commission, dated November 5,
2009
SIGNATURE
Pursuant
to the requirements of Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly
authorized.
Dated: November
5, 2009.
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DVL,
INC,
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By:
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/s/
Alan Casnoff
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Alan
Casnoff
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President
& Chief Executive Officer
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