UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 1)
Under the Securities Exchange Act of 1934
EXCAL ENTERPRISES, INC.
(Name of Issuer)
Common Stock, par value $.004 per share
(Title of Class of Securities)
300902103
(CUSIP Number)
Steven C. Koegler, Esq.
Walker & Koegler, P.A.
10151 Deerwood Park Blvd., Building 100, Suite 200
Jacksonville, Florida 32256
(904) 998-9800
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 17, 1996
(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 which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box. [ ]
Check the following box if a fee is being paid with the statement. [ ]
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
<PAGE>
EXCAL ENTERPRISES, INC.
Schedule 13D Amendment No. 1
The Reporting Persons, consisting of David J. Smith, Jonathan E. Humphreys,
Kyle K. Krueger, Apollo Capital Management Group, L.P., a Delaware limited
partnership and J. Steven Emerson, hereby amend their statement on Schedule
13D relating to the common stock, par value $.004 per share, of Excal
Enterprises, Inc. (the "Issuer"), as set forth herein. Unless otherwise
indicated, capitalized terms contained herein shall have the meaning ascribed
to them in the Reporting Persons' prior statement on Schedule 13D.
<PAGE>
SCHEDULE 13D CUSIP No. 300902103
1 NAME OF REPORTING PERSON
SSN OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jonathan E. Humphreys
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ x ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
PF;00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING
PERSON
WITH:
7 SOLE VOTING POWER
76,000
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
76,000
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
76,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES(*) [ x ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.62%
14 TYPE OF REPORTING PERSON*
IN
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration
Item 3 is hereby amended and restated in its entirety as follows:
The Reporting Persons purchased all Shares of the Issuer which they may be
deemed to beneficially own for the aggregate purchase price of $949,880.50.
Such Shares were purchased with personal funds or working capital of the
respective Reporting Persons.
Item 4. Purpose of Transaction
Item 4 is hereby amended and restated in its entirety as follows:
Since the Reporting Persons' original filing on Schedule 13D, David J.
Smith, on behalf of the Reporting Persons, attempted to contact W. Carey
Webb, the President and Chief Executive Officer of the Company on two
occasions to request a meeting with the Board of Directors. Because of Mr.
Webb's failure to respond, Mr. Smith provided a written request to the Board
of Directors of the Company for a meeting (by letter attached hereto as
Exhibit 2). Subsequent to the mailing of the referenced letter, Mr. Webb
contacted Mr. Smith to set up a meeting. On April 9, 1996, David J. Smith
met with Mr. Webb. Although Mr. Smith requested that Mr. Webb confirm that
he was attending the meeting on behalf of the Board of Directors, he refused
to do so; indicating only that he would advise board members of the meeting's
content. During the meeting, Mr. Smith made inquiry of Mr. Webb regarding
a variety of subjects designed to determine his views relating to the
position of the current Board of Directors regarding (i) maximization of
stockholder value, (ii) the current Board's willingness to resign in order
that representatives nominated by the Reporting Persons may be elected as
Board members, and (iii) the Company's willingness to terminate the Rights
Agreement previously adopted by the Company on April 18, 1994
("Rights Agreement").
Based upon that conversation, which Reporting Persons considered
unsatisfactory, Reporting Persons are considering their alternatives.
Reporting Persons have requested that the Company call a special meeting
in lieu of the Annual Meeting of Shareholders (by letter attached hereto
as Exhibit 3, which letter was transmitted to the Company on April 17, 1996),
and the Reporting Persons may solicit proxies in connection with such
meeting to elect Reporting Persons' own nominees as directors of the
Company at such meeting. The Reporting Persons are considering
additional alternatives as well.
David J. Smith, on behalf of the Reporting Persons, has requested the
Company to furnish it with a list of stockholders of the Company (by letter
attached hereto as Exhibit 4, which letter was transmitted to the Company on
April 17, 1996) pursuant to Delaware law in order to communicate with other
stockholders of the Company.
In considering their alternatives, Reporting Persons have had and may
continue to have discussions with third persons. No arrangements, agreements
or understandings with respect to the Company or the Shares exist between
Reporting Persons and such third persons.
<PAGE>
On April 18, 1996, David J. Smith received a letter from Mr. Webb concerning
their meeting of April 9, 1996. In that letter, Mr. Webb advised that he
had conveyed Mr. Smith's comments to the Board of Directors. Mr. Webb
advised that (i) the Board of Directors is unwilling to resign and replace
the Board of Directors with the Reporting Persons' nominees, (ii) the Company
is unwilling to rescind the Rights Agreement, and (iii) the Board of
Directors is unwilling to consider a general plan contemplating sale of assets,
but would consider any "specific proposal" regarding disposition of business
assets or a business combination. The Reporting Persons consider the Company's
and the Board of Directors' response to be unsatisfactory and as a result
the Reporting Persons are continuing to consider their alternatives as
described above.
Item 5. Interest in Securities of the Issuer
Item 5(a) is hereby amended to add the following:
(a) As of the close of business on April 9, 1996, the Reporting Persons may
be deemed to beneficially own in the aggregate 622,000 Shares, representing
approximately 13.33% of the outstanding Shares of the Issuer (based upon
the number of Shares reported to be outstanding in the Issuer's Form 10Q
for the fiscal quarter ended December 31, 1995). The Reporting Persons have
beneficial ownership of the Shares as follows:
Name Number of Shares Approximate
Percentage of
Outstanding Shares
David J. Smith 180,000 3.86%
Jonathan E. Humphreys 76,000 1.62%
Kyle K. Krueger 20,000 .43%
J. Steven Emerson 174,000 3.73%
Apollo Capital 172,000 3.70%
Management
Group, L.P.
Item 5 (c) is hereby amended to add the following:
(c) The following table sets forth all transactions with respect to the
Company's Shares effected by each of the Reporting Persons listed in
Item 5(a) since the most recent filing on Schedule 13D. Each transaction
set forth below reflects a purchase or sale effected by means of an
over-the-counter trade.
Identity Trade Date Number of Shares
Price Per Share
J.E. Humphreys 3/28/96 5,000 $2.0625
<PAGE>
Item 7. Material To Be Filed As Exhibits.
Item 7 is hereby amended to add the following:
Exhibit 2 Request by David J. Smith for meeting with Board of Directors
of Excal Enterprises, Inc.
Exhibit 3 Request by Reporting Persons for Special Meeting of Shareholders
of Excal Enterprises, Inc.
Exhibit 4 Request by David J. Smith to inspect a List of Stockholders of
Excal Enterprises, Inc.
[The remainder of this page left blank intentionally.]
<PAGE>
Signatures
After reasonable inquiry and to the best of the knowledge and belief of each
of the undersigned, each of the undersigned certifies that the information
set forth in this statement on Schedule 13D concerning the common stock, par
value $.004 per share, of Excal Enterprises, Inc., a Delaware corporation,
is true, complete and correct.
Date: 4/18/96 Signature: /s/ David J. Smith
David J. Smith
Date: 4/18/96 Signature: /s/ Jonathan E.
Humphreys
Jonathan E.
Humphreys
Date: 4/18/96 Signature: /s/ Kyle K. Krueger
Kyle K. Krueger
Date: 4/18/96 Signature: /s/ J. Steven Emerson
J. Steven Emerson
Date: 4/18/96 Apollo Capital Management
Group, L.P.
a Delaware limited
partnership
By: Apollo
Capital Corp.
a Delaware
corporation
its General
Partner
By: /s/ Kyle
K. Krueger
Kyle
K. Krueger
Its:
_________President
4503\amended.13d
<PAGE>
EXHIBIT 2
David J. Smith
Suite 860
150 Second Avenue North
St. Petersburg, Florida 33701
April 2, 1996
VIA CERTIFIED MAIL AND FACSIMILE
Board of Directors
Excal Enterprises, Inc.
100 North Tampa Street
Tampa, Florida 33602
RE: Request for Meeting with Board of Directors
Gentlemen:
As you are aware, I and four other shareholders owning approximately 13.25%
of Excal's outstanding stock, filed a Schedule 13D with respect to Excal
Enterprises, Inc. As mentioned in the Schedule 13D, we wish to meet with
the Board of Directors to discuss and propose methods for increasing value
to shareholders.
I have made several telephone calls to Carey Webb concerning a proposed
meeting but to date have received no response. We believe that such a
meeting is in the best interest of each and every shareholder of Excal
Enterprises.
We would like to meet with the Board of Directors within the next week to
discuss our concerns and proposals regarding Excal Enterprises. Please
contact us either directly (813-894-2508) or through our counsel, Steven
Koegler at Walker & Koegler (904-998-9800), to arrange a mutually beneficial
time and place for such a meeting.
Very truly yours,
David J. Smith
4503\director.ltr
<PAGE>
EXHIBIT 3
Excal Shareholders Committee
Suite 860
150 Second Avenue North
St. Petersburg, Florida 33701
April 12, 1996
VIA FACSIMILE and CERTIFIED MAIL
Mr. Timothy R. Barnes
Corporate Secretary
Excal Enterprises, Inc.
100 North Tampa Street, Suite 3575
Tampa, Florida 33602
RE: Excal Enterprises, Inc. ("Excal"): Demand for Shareholders Meeting
Ladies and Gentlemen:
The undersigned shareholders own approximately 13.3% of the issued and
outstanding common stock, par value $.004 per share, of Excal. Section 2.2
of the Bylaws of Excal states as follows:
"The annual meeting of shareholders shall be held within 120 days following
the close of the corporation's fiscal year, on such date and at such time as
the Board of Directors shall select, for the purpose of electing directors
and transacting any and all business that may properly come before the
meeting."
Excal's fiscal year ended June 30, 1995 and no annual meeting has been called
or held within 120 days of such date. Excal, therefore, is not in compliance
with the provisions of its Bylaws concerning annual meetings. Accordingly,
pursuant to Sections 2.3 and 2.4 of the Bylaws of Excal, the undersigned
shareholders hereby demand that Excal call a special meeting in lieu of the
annual meeting of the shareholders for the following purposes:
1. To elect a Board of Directors to serve until the next annual meeting or
until their earlier removal, resignation or death;
2. To conduct such other business as may be properly presented to the meeting or
any adjournment thereof.
<PAGE>
Please advise us promptly in writing of your receipt and compliance with
this request.
Sincerely,
________________________
David J. Smith
The above named signatory has signed this letter in counterparts for the
purpose of making the demand for meeting set forth therein.
Sincerely,
________________________
Jonathan E. Humphreys
The above named signatory has signed this letter in counterparts for the
purpose of making the demand for meeting set forth therein.
Sincerely,
________________________
Kyle K. Krueger
The above named signatory has signed this letter in counterparts for the
purpose of making the demand for meeting set forth therein.
Sincerely,
________________________
J. Steven Emerson
The above named signatory has signed this letter in counterparts for the
purpose of making the demand for meeting set forth therein.
Sincerely,
Apollo Capital Management Group, L.P.
a Delaware limited partnership
By: Apollo Capital Corp.
a Delaware corporation
its General Partner
By:____________________________________
Its: President
The above named signatory has signed this letter in counterparts for the
purpose of making the demand for meeting set forth therein.
4503\meeting.ltr
<PAGE>
EXHIBIT 4
David J. Smith
Suite 860
150 Second Avenue North
St. Petersburg, Florida 33701
April 15, 1996
VIA FACSIMILE and CERTIFIED MAIL
Mr. Timothy R. Barnes
Corporate Secretary
Excal Enterprises, Inc.
100 North Tampa Street
Tampa, Florida 33602
RE: Inspection of Shareholder List
Ladies and Gentlemen:
Pursuant to Section 220 of the Delaware General Corporation Law and the
Affidavit of which this letter forms a part, the undersigned, David J.
Smith, a record holder of common stock of Excal Enterprises, Inc. (the
"Company"), hereby requests to inspect a current list of record holders
of the Company's common stock ("Common Stock"), including the record address
and the amount of stock held by each stockholder.
The undersigned seeks to communicate with other stockholders of the Company
for purposes relative to the affairs of the Company and not for the purpose
of selling the list of stockholders or information or copies thereof or of
using the same for a purpose other than in the interest of the undersigned
as a stockholder relative to the affairs of the Company and not for the
purpose of obtaining the names of stockholders who might wish to sell their
stock to the undersigned.
The undersigned would prefer the Company to immediately send the documents
requested above to David J. Smith, Suite 860, 150 Second Avenue North, St.
Petersburg, Florida 33701. Alternatively, please inform our counsel, Steven
C. Koegler at (904) 998-9800 of a date prior to April _____, 1996 when a
representative of the undersigned can inspect and copy such documents.
The undersigned also requests that the Company provide the following records
and documents as soon as available:
1. All information in or which comes into the Company's possession or
control, or which can reasonably be obtained from brokers, dealers, banks,
clearing agencies or voting trustees or their nominees, concerning the name,
address and number of shares of Common Stock held by each participating
broker, dealer, bank or other person or entity in the individual nominees
names of Cede & Co. and any other similar nominees.
2. A list of non-objecting beneficial owners of Common Stock, which is in
the Company's possession or control, or that may come into the Company's
possession or control, or that can reasonably be obtained from brokers,
dealers, banks, clearing agencies or voting trustees,pursuant to Rules 14b-1
and 14b-2 promulgated under the Securities Exchange Act of 1934, as amended.
Please inform Mr. Koegler at the above referenced telephone number where and
how the documents listed in numbered paragraphs 1- 2 will be made available.
Very truly yours,
David J. Smith
4503\barnes.ltr
<PAGE>
AFFIDAVIT
STATE OF FLORIDA )
COUNTY OF ST. JOHNS )
BEFORE ME, the undersigned authority, this day personally appeared DAVID
J. SMITH, who on oath says as follows:
1. The undersigned is a stockholder of Excal Enterprises, Inc. a Delaware
corporation (the "Company").
2. The undersigned, directly or through his designated agent, wishes to
inspect the Company's stock ledger and list of its stockholders as of today's
date, and to make copies or extracts therefrom as more fully described in
the letter attached hereto and by reference incorporated herein.
3. The purpose of the foregoing examination is to enable the
undersigned to
communicate with other shareholders to ascertain whether they desire to
effect a change in the Board of Directors and to solicit proxies for that
purpose.
4. Such purpose is reasonably related to the undersigned's status as a
stockholder.
Further affiant saith not.
____________________________
David J. Smith
Sworn to and subscribed before me this
_______ day of April, 1996.
______________________________________
Notary Public, State of Florida at Large
Notary's Stamped or Printed Name:
My Commission Expires:
_______ Personally known
_______ Produced ___________________________ as identification.
4503\affidav.doc
