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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
EXCAL ENTERPRISES, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
300902103
(CUSIP Number)
Peter J. Barack, Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 WEST WACKER DRIVE, SUITE 2700, CHICAGO, ILLINOIS, (312) 984-3100
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
SEPTEMBER 10, 1998
(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 o.
Check the following box if a fee is being paid with this statement o. (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 to thereto reporting beneficial ownership of less
than five percent 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).
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<TABLE>
<CAPTION>
CUSIP NO. 300902103
<S> <C>
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EP Opportunity Fund, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(See Instructions)
(a)o
(b)o
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
o
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF SHARES 7 SOLE VOTING POWER
BENEFICIALLY OWNED BY
EACH 600,000
REPORTING PERSON WITH
8 SHARED VOTING POWER
0
9 SOLE DISPOSITIVE POWER
600,000
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
600,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES (See Instructions)
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
15.2%
14 TYPE OF REPORTING PERSON (See Instructions)
OO
</TABLE>
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This Amendment No. 2 amends and supplements the Statement on Schedule
13D (the "Statement") relating to the Common Stock, $.001 par value
("Common Stock"), of Excal Enterprises, Inc., a Delaware corporation
(the "Company") previously filed by EP Opportunity Fund, L.L.C., a
Delaware limited liability company (the "EPOF"), and Amendment No. 1
filed with respect thereto ("Amendment No 1"). Capitalized terms used
and not defined in this Amendment have the meanings set forth in the
Statement.
Except as specifically provided herein, this Amendment does not
modify any of the information previously reported in Amendment No. 1.
ITEM 4 IS HEREBY AMENDED IN ITS ENTIRETY TO READ AS FOLLOWS:
The Reporting Person originally acquired the Common Stock for
investment purposes, and the Reporting Person intends to continue to
evaluate the performance of such Common Stock as an investment in the
ordinary course of its business. The Reporting Person generally
pursues an investment objective that seeks capital appreciation. In
pursuing this investment objective, the Reporting Person analyzes the
operations, capital structure and markets of companies in which it
invests, including the Company, on a continuous basis through analysis
of documentation and discussions with knowledgeable industry and
market observers and with representatives of such companies (often at
the invitation of management). As a result of these activities, the
Reporting Person may participate in interviews or hold discussions
with third parties or with management in which the Reporting Person
may suggest or take a position with respect to potential changes in
the operations, management or capital structure of such companies as a
means of enhancing stockholder values. Such suggestions or positions
may relate to one or more of the transactions specified in clauses (a)
through (j) of Item 4 of the Schedule 13D form, including, without
limitation, such matters as disposing of one or more businesses,
selling the Company or acquiring another company or business, changing
the operating or marketing strategies, adopting, not adopting,
modifying or eliminating certain types of anti-takeover measures,
restructuring the Company's capitalization, and reviewing dividend or
compensation policies.
Additionally, on September 10, 1998, the Reporting Person
intends to submit to Mr. R. Park Newton, III, the Chairman of the
Board of the Company, and to W. Carey Webb, the Company's President
and Chief Executive Officer, with a copy to the Company's Secretary, a
request that Mr. Jeffrey Eisenberg, the Manager of Eisenberg Partners,
L.L.C., which in turn is the Manager of the Reporting Person, be
nominated as a Class III director and that such nomination be included
in the Company's proxy statement and form of proxy to be used in
connection with the Company's 1998 annual meeting (the "Annual
Meeting"). The letter also requests that certain proposals (the
"Proposals"), as more fully described below, be placed on the agenda
for the Annual Meeting and included in the Company's proxy materials
for the Annual Meeting, and states that the Reporting Person currently
intends to deliver a proxy statement and form of proxy to holders of
at least the percentage of the Company's voting shares required under
Delaware law to carry the Proposals.
The letter also states the intention of the Reporting Person to
attend the Annual Meeting and to introduce such Proposals and make
such nomination in the event the Company fails to take these steps.
The full text of each Proposal is included in the letter to be
delivered to the Company, which is filed with this Amendment No. 2 to
Schedule 13D as Exhibit 99.1.
The Proposals pertain to the following: (i) that "the Board of
Directors should take all steps necessary to solicit one or more
offers regarding the sale of the Company or all, or substantially all,
of its assets followed by a liquidation of the Company, and to
negotiate and consummate such transaction on terms which are fair and
in the best interests of the stockholders of the Company"; (ii) that
"the Board of Directors should terminate the Company's Rights
Agreement, dated April 18, 1994, by redeeming the Rights previously
issued pursuant to the Rights Agreement, and that any further "Poison
Pills" adopted by the Company be subject to the approval of the
Company's stockholders"; (iii) that "the first sentence of Section 3.2
of Article III of the Company's Second Amended and Restated Bylaws
shall be deleted in its entirety and shall be replaced with the
following: `Except as otherwise fixed by or pursuant to the
provisions of Article IV of the Amended and Restated Certificate of
Incorporation relating to the rights of the holders of any class or
series of stock having a preference over the
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Common Stock as to dividends or upon liquidation to elect additional
Directors under specified circumstances, the number of Directors of
the corporation shall be three unless otherwise determined from time
to time by the stockholders'," and that "Section 3.2 shall
otherwise remain unchanged"; and (iv) that the Company reimburse the
Reporting Person for all reasonable expenses incurred in connection
with soliciting proxies or consents in favor of the above Proposals
and the election of Mr. Eisenberg to the Company's Board of Directors.
The Reporting Person will continue to assess the Company's
business, financial condition, results of operations and prospects,
general economic, financial and industry conditions, the securities
markets and future trading prices in general and those for the
Company's securities in particular, other developments and other
investment opportunities. Depending on such assessments, the
Reporting Person may acquire additional Common Stock or may determine
to sell or otherwise dispose of all or some of its holdings of Common
Stock. The Reporting Person may also commence a proxy contest in
connection with the nomination of Mr. Eisenberg to the Board of
Directors and may undertake a proxy or consent solicitation for the
adoption of the Proposals, and may solicit proxies or consents with
respect to, or take such other actions as may be necessary to, unseat
any of the current directors of the Company and replace such directors
with persons who are in favor of a sale or liquidation of the Company
and its assets. Also, the Reporting Person may take other actions to
influence the Board of Directors with respect to certain other
provisions contained in the Company's Amended and Restated Certificate
of Incorporation or Second Amended and Restated Bylaws which the
Reporting Person perceives as making it more difficult for the
Company's stockholders to call meetings, unseat directors or cause the
Company to receive or approve offers to purchase the Company or its
assets, or take such other actions or submit such further Proposals as
the Reporting Person may deem necessary or advisable to cause the
Company to enter into a business combination or similar transaction
which is fair and in the best interests of the Company's stockholders.
In this regard, the Reporting Person may actively seek offers from
real estate investment trusts, investment bankers or other persons to
buy the Company or all, or substantially all, of the assets of the
Company, and may retain the services of third parties in this regard.
Except as set forth above, the Reporting Person has no plans or
proposals which would relate to or result in any of the matters set
forth in items (a) through (j) of Item 4 of Schedule 13D.
ITEM 5 IS HEREBY AMENDED AS FOLLOWS:
The percentage ownership represented by the 600,000 shares of
Common Stock held by the Reporting Person has increased to 15.2%
solely as a result of apparent stock repurchases, and redemptions in
connection with various lawsuits, by the Company since the date of
Amendment No. 1, as reported in the Form 10-QSB filed by the Company
for the quarter ended March 31, 1998.
ITEM 7 IS HEREBY AMENDED AS FOLLOWS:
Attached hereto as Exhibit 99.1 to this Amendment No. 2 is a
copy of the letter, dated September 10, 1998, to be sent by the
Reporting Person to the Company requesting that certain shareholder
proposals (the "Proposals") relating to the sale of the Company and
the termination of the Company's Rights Agreement be included in the
Company's proxy materials for the 1998 annual meeting and placed on
the agenda for consideration by stockholders at the annual meeting.
The letter further requests that the Company's Board of Directors
nominate Mr. Eisenberg to fill the Class III Board seat to be elected
at the annual meeting, and advises the Company that in the event the
Company fails to include the Proposals on the agenda for the annual
meeting or to nominate Mr. Eisenberg as a Class III director, the
Reporting Person intends to attend the annual meeting and present such
Proposals and make such nomination.
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After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is
true, complete and correct.
EP Opportunity Fund, L.L.C.
By: Eisenberg Partners, L.L.C.,
Manager
September 10, 1998 By: /S/ J. EISENBERG
Signature: Jeffrey
Eisenberg, Manager
/S/ JEFFREY EISENBERG, MANAGER
Name/Title
LETTERHEAD OF EISENBERG PARTNERS, L.L.C.
September 10, 1998
VIA FEDERAL EXPRESS VIA FEDERAL EXPRESS
Mr. W. Carey Webb Mr. R. Park Newton, III
President and Chief Executive OfficerChairman of the Board
Excal Enterprises, Inc. Excal Enterprises, Inc.
100 North Tampa Street 100 North Tampa Street
Suite 3575 Suite 3575
Tampa, Florida 33602 Tampa, Florida 33602
Dear Gentlemen:
This letter is to provide notice that the undersigned, as a
shareholder of Excal Enterprises, Inc. (the "Company"), hereby requests
that Mr. Jeffrey Eisenberg be nominated as a Class III director and that
such nomination be included in the Company's proxy statement and form of
proxy to be used in connection with the Company's 1998 annual meeting.
Furthermore, this letter is to also provide notice to the Company of
certain stockholder proposals the EP Opportunity Fund, L.L.C. intends to
introduce at the annual meeting, and to request that such proposals also
be included in the Company's proxy statement and form of proxy to be used
in connection with the Company's 1998 annual meeting.
Pursuant to Article XVIII, Section (C), of the Company's Amended and
Restated Certificate of Incorporation (the "Certificate"), and Section
4.3 of the Company's Second Amended and Restated Bylaws (the "Bylaws"),
the following information is sufficient to provide notice to the
Company's Secretary for Mr. Jeffrey Eisenberg to be nominated as a
director:
(i)Name of Nominee: Mr. Jeffrey Eisenberg;
(Age: 33;
(Business Address: 33 West Monroe Street, 21st Floor, Chicago, IL
60603;
(Residential Address: 750 North Rush Street, Chicago, IL 60611.
(ii)Principal occupation: Mr. Eisenberg's principal occupations for
the past five years are as follows. Mr. Eisenberg's principal
occupation is serving as Manager for Eisenberg Partners, L.L.C.,
which position he has held since 1996. Prior to that, Mr.
Eisenberg served as Managing Director of Angelo, Gordon & Co.,
L.P., an investment management firm located in New York, NY, and
was a partner of that firm at the time of founding Eisenberg
Partners, L.L.C.
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(iii)Number of shares beneficially owned by Mr. Eisenberg: Mr.
Eisenberg does not beneficially own any Common Stock, except as
described in Item 5(a) of our Schedule 13D, as amended by
Amendment No. 1 thereto, a copy of which is attached hereto for
your convenience.
(iv)Other information required to be filed in a proxy statement
soliciting proxies for the election of such nominee: Mr.
Eisenberg has not been, and is not currently, involved in any
litigation or any other legal proceedings or transactions, nor
does Mr. Eisenberg have any material interest adverse to the
Company which would be required to be disclosed under Items 103,
401 or 404 of Regulation S-B.
In the event the Company should reasonably require any additional
information in connection with this nomination or with respect to the
proxy statement to be used by the Company in connection with the 1998
Annual Meeting, Mr. Eisenberg has expressed his intention to promptly
provide such information to the Company upon its request. Mr. Eisenberg
can be contacted by mail at the business address specified above.
Additionally, written requests for information may be sent via facsimile
to Mr. Eisenberg at (312) 456-9501.
Please note that this letter provides notice to the Secretary of the
Company more than sixty (60) days prior to the annual meeting.
Furthermore, Addendum 1 to this letter shall serve as Mr. Eisenberg's
signed consent to serve on the Board if elected.
In addition to seeking to nominate Mr. Eisenberg for election to the
Board of Directors of the Company, EP Opportunity Fund, L.L.C. requests
that the following proposals be placed on the agenda for the 1998 annual
meeting and be included in the Company's proxy materials for the annual
meeting, pursuant to Article XVII, Section (A), of the Company's
Certificate and Section 2.2(b) of the Company's Bylaws.
Proposal 1 - "Resolved, that the Board of Directors should take all
steps necessary to solicit one or more offers regarding the sale of
the Company or all, or substantially all, of its assets followed by
a liquidation of the Company, and to negotiate and consummate such
transaction on terms which are fair and in the best interests of the
stockholders of the Company."
Proposal 2 - "Resolved, that the Board of Directors should terminate
the Company's Rights Agreement, dated April 18, 1994, by redeeming
the Rights previously issued pursuant to the Rights Agreement, and
that any further "Poison Pills" adopted by the Company be subject to
the approval of the Company's stockholders."
Proposal 3 - "Resolved, that the first sentence of Section 3.2 of
Article III of the Company's Second Amended and Restated Bylaws
shall be deleted in its entirety and shall be replaced with the
following: "Except as otherwise fixed by or pursuant to the
provisions of Article IV of the Amended and Restated Certificate of
Incorporation relating to the rights of the holders of any class or
series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect additional Directors under
specified circumstances, the number of Directors of the corporation
shall be three
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unless otherwise determined from time to time by the
stockholders." Section 3.2 shall otherwise remain unchanged."
Proposal 4 - "Resolved, that the Company reimburse EP Opportunity
Fund, L.L.C. for all reasonable expenses incurred in connection with
soliciting proxies or consents in favor of the above Proposals and
the election of Mr. Eisenberg to the Company's Board of Directors."
Please note that we currently intend to deliver a proxy statement
and form of proxy to holders of at least the percentage of the Company's
voting shares required under Delaware law to carry the proposals.
The shareholder, EP Opportunity Fund, L.L.C., located at 33 West
Monroe Street, 21st Floor, Chicago, IL 60603 is making the above
proposals. The shareholder is the beneficial owner of 600,000 shares of
Common Stock of the Company. Other than the fact that Mr. Eisenberg
serves as Manager of Eisenberg Partners, L.L.C., which is the Manager of
EP Opportunity Fund, L.L.C., EP Opportunity Fund, L.L.C. has no material
interest in any of the matters included in this letter, other than as a
shareholder of the Company.
Please note that this letter provides notice to the Secretary of the
Company more than sixty (60) days prior to the annual meeting.
Furthermore, EP Opportunity Fund, L.L.C. intends to be present at
the annual meeting and introduce the above stated proposals and to make
such nomination in the event the Company fails to nominate Mr. Eisenberg
as a director and include such proposals as matters scheduled to be
included for a vote by stockholders, as stated in the notice of annual
meeting and on the form of proxy distributed by the Company.
Also enclosed herewith is a copy of Amendment No. 2 to Schedule 13D,
filed with the Securities and Exchange Commission on September 10, 1998
and pertaining to the foregoing.
EP Opportunity Fund, L.L.C.
By: Eisenberg Partners, L.L.C.,
Manager
By: ______________________________
Jeffrey Eisenberg, Manager
Enclosures
cc: Mr. Timothy R. Barnes,
Corporate Secretary (Via FedEx, w/encls.)
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ADDENDUM 1
CONSENT TO SERVE AS A DIRECTOR
I, Jeffrey Eisenberg, hereby consent to be nominated as a director
for Excal Enterprises, Inc. and named as such in the proxy materials to
be distributed by Excal in connection with its 1998 Annual Meeting of
Stockholders. I further consent to serve on the Board of Directors on
Excal Enterprises, Inc. if so elected by the stockholders at such
meeting.
_____________________________
Jeffrey Eisenberg
State of __________)
) SS.
County of ________)
The undersigned, a notary public in and for the above county and
state, certifies that Jeffrey Eisenberg, known to me to be the same
person whose name is stated above with respect to the foregoing Consent
to Serve as Director, appeared before me in person and acknowledged
signing and delivering the instrument as his free and voluntary act, for
the uses and purposes therein set forth.
Dated:__________________ (SEAL)
___________________________________________
Notary Public
My Commission Expires:______________
