SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EXCAL ENTERPRISES, INC.
(Exact Name of registrant as specified in its charter)
Delaware 59-2855398
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
100 N. Tampa Street, Suite 3575, Tampa, Florida 33602
(Address of principal executive offices) (zip code)
NONQUALIFIED STOCK OPTIONS ISSUABLE
PURSUANT TO VARIOUS AGREEMENTS BETWEEN
EXCAL ENTERPRISES, INC. AND W. CAREY WEBB,
W. ARIS NEWTON AND JOHN L. CASKEY
(Full title of the Plan)
W. Carey Webb
President and Chief Executive Officer
Excal Enterprises, Inc.
100 N. Tampa Street, Suite 3575
Tampa, Florida 33602
(Name and address of agent for service)
(813) 224-0228
(Telephone number, including area code, of agent for service)
Copy to:
Linda Y. Kelso
Julia B. Davis
Foley & Lardner
200 Laura Street
Jacksonville, Florida 32202
(904) 359-2000
Calculation of Registration Fee
- ---------------------------------------------------------------------
Title of each Proposed Proposed
class of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ---------------- ---------- --------- ------------- ------------
Common Stock 547,500 $5.75(2) $3,148,125(2) $928.70
$0.001 par value shares(1)
(1) Plus an indeterminate number of shares which may be
issued as a result of anti-dilution provisions contained in the
Plans.
(2) Pursuant to Rule 457(h) under the Securities Act of
1933, as amended, the amounts shown are based on (i) 250,000
shares subject to outstanding options having an exercise price of
$1.13 per share; (ii) 95,000 shares subject to outstanding
options having an exercise price of $1.00 per share (iii) 20,000
shares subject to outstanding options having an exercise price of
$4.6875 per share; and (iv) 182,500 shares reserved for future
grants of reload options under outstanding option agreements, the
registration fee for which has been calculated using $5.75 per
share, the average of the closing bid and asked prices of the
registrant's common stock in the over the counter market as
reported by the National Quotation Bureau, Inc. on March 26,
1998.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part
I are not required to be filed with the Securities and Exchange
Commission as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the
Securities and Exchange Commission are hereby incorporated herein
by reference:
(a) Annual Report on Form 10-KSB for the fiscal
year ended June 30, 1997.
(b) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934 since June 30, 1997.
(c) The description of the registrant's Common
Stock, par value $0.001 per share set forth under the
caption "Description of Registrant's Securities to be
Registered" in the Company's Registration Statement on
Form 8-A (No. 0-17069) filed under the Securities
Exchange Act of 1934; and
All documents subsequently filed by the registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock being offered
hereby have been sold or which deregisters all shares of Common
Stock then remaining unsold shall be deemed incorporated by
reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law (the "Delaware Act")
and the registrant's Amended and Restated Certificate of
Incorporation permit the registrant to indemnify a present or
former director or officer of the corporation (and certain other
persons serving at the request of the corporation in related
capacities) for liabilities, including legal expenses, arising by
reason of the service in such capacity if such person shall have
acted in good faith and in a manner reasonably believed to be in
or not opposed to the best interests of the corporation, and in
any criminal proceeding if such person had no reasonable cause to
believe his conduct was unlawful. However, in the case of actions
brought by or in the right of the corporation, no indemnification
may be made with respect to any matter as to which such director
or officer shall have been adjudged liable, except in certain
limited circumstances.
The registrant has entered into indemnification agreements
with certain of its current or former executive officers and
directors providing for indemnification under certain
circumstances.
The registrant has a standard policy of directors' and
officers liability insurance covering directors and officers of
the corporation with respect to liabilities incurred as a result
of their service in such capacities.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4A. Employment Agreement between the registrant and W.
Carey Webb dated August 15, 1994 (Filed as Exhibit
10(u) to the registrant's Form 10-KSB for the fiscal
year ended June 30, 1994 and incorporated herein by
reference)
4B. First Amendment to Employment Agreement between
the registrant and Carey Webb dated April 3, 1996
(Filed as Exhibit 10.6 to the registrant's Form 10-KSB
for the year ended June 30, 1996 and incorporated
herein by reference)
4C. Nonqualified Stock Option Agreement between the
registrant and Carey Webb dated February 18, 1998
4D. Nonqualified Stock Option Agreement between the
registrant and Aris Newton dated February 18, 1998
4E. Nonqualified Stock Option Agreement between the
registrant and John L. Caskey dated February 18, 1998
4F. Nonqualified Stock Option Agreement between the
registrant and Aris Newton dated February 18, 1998
4G. Nonqualified Stock Option Agreement between the
registrant and John L. Caskey dated February 18, 1998
5. Opinion of Foley & Lardner as to the legality of
the securities to be issued
23A. Consent of Foley & Lardner (included in Opinion
filed as Exhibit 5)
23B. Consent of Pender Newkirk & Company
24. Power of Attorney (included on signature page of this
registration statement)
Item 9. Undertakings
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (the "Securities
Act"), 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.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the Articles of
Incorporation or Bylaws of the registrant 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 Securities 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 the 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 Tampa, State of Florida, on March 16, 1998.
EXCAL ENTERPRISES, INC.
By /s/ W. Carey Webb
W. Carey Webb, President and
Chief Executive Officer
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears on the Signature Page to this registration
statement constitutes and appoints W. Carey Webb and R. Park
Newton, III, and each or any of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and
stead, in any and all capacities to sign any and all amendments
(including post-effective amendments to this registration
statement and any and all registration statements filed pursuant
to Rule 462(b) under the Securities Act of 1933), and to file the
same, with all exhibits and other documents in connection
therewith, with the Securities and Exchange Commission, and
grants 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
fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or his or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Date: March 16, 1998 /s/ W. Carey Webb
W. Carey Webb, President and Chief
Executive Officer
Date: March 16, 1998 /s/ R. Park Newton, III
R. Park Newton, III, Chairman of
the Board and Director
Date: March 16, 1998 /s/ Timothy R. Barnes
Timothy R. Barnes, Vice President,
Chief Financial
Officer and Principal Accounting
Officer
Date: March 16, 1998 /s/ W. Aris Newton
W. Aris Newton, Director
Date: March 16, 1998 /s/ John L. Caskey
John L. Caskey, Director
EXHIBIT INDEX
Item 8. Exhibits.
4A. Employment Agreement between the registrant and W.
Carey Webb dated August 15, 1994 (Filed as Exhibit
10(u) to the registrant's Form 10-KSB for the fiscal
year ended June 30, 1994 and incorporated herein by
reference)
4B. First Amendment to Employment Agreement between
the registrant and Carey Webb dated April 3, 1996
(Filed as Exhibit 10.6 to the registrant's Form 10-KSB
for the year ended June 30, 1996 and incorporated
herein by reference)
4C. Nonqualified Stock Option Agreement between the
registrant and Carey Webb dated February 18, 1998
4D. Nonqualified Stock Option Agreement between the
registrant and Aris Newton dated February 18, 1998
4E. Nonqualified Stock Option Agreement between the
registrant and John L. Caskey dated February 18, 1998
4F. Nonqualified Stock Option Agreement between the
registrant and Aris Newton dated February 18, 1998
4G. Nonqualified Stock Option Agreement between the
registrant and John L. Caskey dated February 18, 1998
5. Opinion of Foley & Lardner as to the legality of
the securities to be issued
23A. Consent of Foley & Lardner (included in Opinion
filed as Exhibit 5)
23B. Consent of Pender Newkirk & Company
24. Power of Attorney (included on signature page of this
registration statement)
This Agreement constitutes part of a Prospectus covering
securities that have been registered under the Securities Act of
1933.
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 18th
day of February, 1998, by and between EXCAL ENTERPRISES, INC., a
Delaware corporation formerly known as Assix International, Inc.
(the "Company"), and W. CAREY WEBB, an employee of the Company
(the "Optionee").
W I T N E S S E T H :
WHEREAS, on August 12, 1994, the Board of Directors of
the Company (the "Board") approved the grant of stock options to
purchase shares of the Company's common stock, $.001 par value
(the "Common Stock"), to the Optionee pursuant to an employment
agreement;
WHEREAS, the stock option was granted under an
Employment Agreement dated August 15, 1994, by and between the
Company and the Optionee, as amended (the "Employment
Agreement"), as approved by the Board;
WHEREAS, it is the intention of the parties that this
Agreement confirm the terms and conditions of the grant as
previously approved by the Board; and
WHEREAS, the option granted under this Agreement is not
intended to constitute an incentive stock option ("Nonqualified
Stock Option"), as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
1. Grant.
(a) Option. Subject to the terms and conditions
of this Agreement, the Company confirms the grant to the Optionee
of a Nonqualified Stock Option to purchase from the Company all,
or any part, of the aggregate number of 250,000 shares of Common
Stock (hereinafter referred to as the "Optioned Shares," and the
option to purchase the Optioned Shares referred to as the
"Option").
(b) Reload Option. In addition to the Option
granted hereby (the "Underlying Option"), the Company will grant
to the Optionee a reload option (the "Reload Option") if the
Optionee acquires shares of Common Stock pursuant to the exercise
of the Underlying Option and pays for such shares and/or the tax
obligation incurred by reason of the exercise of the Underlying
Option (the "withholding taxes") with shares of Common Stock
already owned by, or otherwise issuable to, the Optionee (the
"Tendered Shares"). The Reload Option grants to the Optionee the
right to purchase shares of Common Stock equal in number to the
number of Tendered Shares. The date on which the Tendered Shares
are tendered to, or withheld by, the Company in full or partial
payment of the purchase price and withholding taxes for the
shares of Common Stock acquired pursuant to the exercise of the
Underlying Option is the Reload Grant Date. The exercise price
of the Reload Option is the fair market value of the Tendered
Shares on the Reload Grant Date. The fair market value of the
Tendered Shares shall be the closing bid price per share of the
Common Stock on the Reload Grant Date. The Reload Option shall
expire on August 1, 2004. Except as provided herein the Reload
Option is subject to all of the other terms and provisions of
this Agreement governing the Option.
2. Option Price. The price to be paid for the
Optioned Shares shall be $1.13 per share.
3. Time of Exercise. The Option is fully exercisable
as of the date of this Agreement and may be exercised by the
Optionee in whole or in part at any time and from time to time,
after the date hereof.
4. Manner of Exercise and Payment. The Option may be
exercised only by written notice to the Company by the Optionee
of the Optionee's intent to exercise the Option, delivered to the
Company at its principal office, specifying the number of shares
with respect to which the Option is being exercised, accompanied
by full payment for such shares: (a) in cash or its equivalent;
(b) with the consent of the Board, by tendering shares of Common
Stock valued at their fair market value at the time of exercise;
or (c) with the consent of the Board, by any combination of (a)
and (b).
5. Issuance of Stock Certificates. Upon satisfaction
of the conditions of Section 4, the Company shall promptly
deliver to the Optionee a certificate or certificates for the
number of shares of Common Stock in respect of which Options have
been exercised, legended to reflect the agreements and conditions
applicable to such shares referred to in Section 11.
6. Nontransferability of Option. The Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution.
7. Term. The Option shall expire on August 1, 2004,
and shall not be exercisable thereafter.
8. Termination of Employment.
(a) The Option shall terminate and shall not be
exercisable upon the date of expiration specified in Section 7
hereof and shall not otherwise terminate as a result of a
termination of Optionee's employment with the Company; and
(b) In the event of a Termination Upon Change of
Control (as defined in the Employment Agreement), the Optionee
shall have the immediate right to compel the purchase by the
Company of all Optioned Shares at a price per share equal to the
greater of (i) the average of the bid and asked prices per share
of Common Stock on the business day immediately preceding the
Change of Control (as defined in the Employment Agreement); or
(ii) $7.50 per share.
9. Tax Withholding.
(a) It shall be a condition of the obligation of
the Company to issue or transfer shares of Common Stock upon
exercise of the Option, that the Optionee shall pay to the
Company upon its demand, or agree that the Company may withhold
from compensation due the Optionee, such amount as may be
requested by the Company for the purpose of satisfying its
liability to withhold federal, state or local income or other
taxes incurred by reason of the exercise of the Option. If the
Optionee fails to comply with this Section 9, the Company may
refuse to issue or transfer shares of Common Stock upon exercise
of the Option.
(b) With the consent of the Board, the Optionee
may elect to have the Company withhold that number of Optioned
Shares otherwise issuable to the Optionee upon exercise of the
Option or to deliver to the Company a number of Shares, in each
case, having a fair market value at the time of exercise, as
determined by the Board, equal to the minimum amount required to
be withheld as a result of such exercise. The election must be
made in writing and delivered to the Company on or prior to the
date of exercise. The shares so withheld or delivered shall be
free of all adverse claims and shall be endorsed in blank by the
Optionee or accompanied by stock powers duly endorsed in blank.
10. Capital Adjustments Affecting Stock. In the event
of a capital adjustment resulting from a stock dividend, stock
split, spin-off, reorganization, recapitalization, merger,
consolidation, reclassification, combination or exchange of
shares, the Optioned Shares shall be adjusted in a manner
consistent with such capital adjustment. The price of any shares
under the Option shall be adjusted such that there will be no
change in the aggregate purchase price payable upon exercise of
the Option. To the extent deemed equitable and appropriate by
the Board, subject to any required action by stockholders, in any
merger, consolidation, reorganization, liquidation or
dissolution, the Option shall pertain to the securities and other
property to which a holder of the number of shares of stock
covered by the Option would have been entitled to receive in
connection with any such event.
11. Restriction on Transfer of Common Stock. The
shares to be acquired upon exercise of the Option may not be sold
or offered for sale except (i) pursuant to an effective
registration statement under the Securities Act of 1933, as
amended (the "Act") or any applicable state securities laws, (ii)
in a transaction satisfying the requirements of Rule 144
promulgated under the Act, or (iii) in a transaction which, in
the opinion of counsel for the Company, is exempt from the
registration provisions of the Act or applicable state securities
laws. The Optionee agrees that any certificate representing
shares acquired upon exercise of the Option may bear the
following legend:
The shares of Common Stock represented by
this certificate are restricted securities as that
term is defined under Rule 144 promulgated under
the Securities Act of 1933, as amended (the
"Act"). These shares may not be sold, transferred
or disposed of unless they are registered under
the Act, sold in a transaction satisfying the
requirements of Rule 144 or unless the request to
transfer is accompanied by an opinion of counsel
acceptable to the issuer, that the transfer will
not result in a violation of the Act or any
applicable state securities laws.
12. Specific Restrictions Upon Optioned Shares. The
Optionee hereby agrees with the Company that the Optionee shall
acquire the Optioned Shares for investment purposes only and not
with a view to resale or other distribution thereof to the public
in violation of the Act, and shall not dispose of the Optioned
Shares in any transaction which, in the opinion of counsel to the
Company, would violate the Act, or the rules and regulations
thereunder, or any applicable state securities or blue sky laws.
13. Rights as Shareholder. The Optionee shall not be
deemed for any purposes to be a shareholder of the Company with
respect to any of the Optioned Shares except to the extent that
the Option shall have been exercised, such shares shall have been
fully paid, and a stock certificate issued therefor.
14. Power of Company Not Affected. The existence of
the Option shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes
in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or dissolution
or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
15. Amendment or Modification. No term or provision
of this Agreement may be amended, modified or supplemented
orally, but only by an instrument in writing signed by the party
against which or whom the enforcement of the amendment,
modification or supplement is sought.
16. Governing Law. This Agreement shall be governed
by the internal laws of the State of Florida as to all matters,
including, but not limited to, matters of validity, construction,
effect, performance and remedies.
17. Entire Agreement. This Agreement entered into
between the Optionee and the Company sets forth the entire
agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained
herein, other than the Employment Agreement, is hereby terminated
and canceled.
18. Delegation by Board. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange or market, the Board may delegate all or any portion of
its responsibilities and powers to any one or more of its
members. Any such delegation may be revoked by the Board at any
time.
19. Heirs and Successors. This Agreement shall be
binding upon, and inure to the benefit of, the Company and its
successors and assigns, and upon any person acquiring all or
substantially all of the Company's assets and business. In the
event of the Optionee's death prior to exercise of the Option,
the Option may be exercised by the estate of the Optionee to the
extent such exercise is otherwise permitted by this Agreement.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed by its duly authorized officer, and the
Optionee has executed this Agreement as of the day and year first
above written.
EXCAL ENTERPRISES, INC.
By: Timothy R. Barnes
Title: Vice President/CFO
OPTIONEE:
/s/ W. Carey Webb
W. CAREY WEBB
This Agreement constitutes part of a Prospectus covering
securities that have been registered under the Securities Act of
1933.
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 18th
day of February, 1998, by and between EXCAL ENTERPRISES, INC., a
Delaware corporation formerly known as Assix International, Inc.
(the "Company"), and ARIS NEWTON, an employee and a director of
the Company (the "Optionee").
W I T N E S S E T H :
WHEREAS, on March 8, 1994, the Board of Directors of
the Company (the "Board") approved the grant of stock options to
purchase shares of the Company's common stock, $.001 par value
(the "Common Stock"), to certain officers, directors and
employees of the Company, including the Optionee, which options
were canceled and then regranted by the Board on June 10, 1994;
WHEREAS, it is the intention of the parties that this
Agreement memorialize and confirm the terms and conditions of the
grant as previously approved by the Board; and
WHEREAS, the option granted under this Agreement is not
intended to constitute an incentive stock option ("Nonqualified
Stock Option"), as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
1. Grant.
(a) Option. Subject to the terms and conditions
of this Agreement, the Company confirms the grant to the Optionee
of a Nonqualified Stock Option to purchase from the Company all,
or any part, of the aggregate number of 60,000 shares of Common
Stock (hereinafter referred to as the "Optioned Shares," and the
option to purchase the Optioned Shares referred to as the
"Option").
(b) Reload Option. In addition to the Option
granted hereby (the "Underlying Option"), the Company will grant
to the Optionee a reload option (the "Reload Option") if the
Optionee acquires shares of Common Stock pursuant to the exercise
of the Underlying Option and pays for such shares and/or the tax
obligation incurred by reason of the exercise of the Underlying
Option (the "withholding taxes") with shares of Common Stock
already owned by, or otherwise issuable to, the Optionee (the
"Tendered Shares"). The Reload Option grants to the Optionee the
right to purchase shares of Common Stock equal in number to the
number of Tendered Shares. The date on which the Tendered Shares
are tendered to, or withheld by, the Company in full or partial
payment of the purchase price and withholding taxes for the
shares of Common Stock acquired pursuant to the exercise of the
Underlying Option is the Reload Grant Date. The exercise price
of the Reload Option is the fair market value of the Tendered
Shares on the Reload Grant Date. The fair market value of the
Tendered Shares shall be the closing bid price per share of the
Company's Common Stock on the Reload Grant Date. The Reload
Option shall be fully exercisable as of the Reload Grant Date.
The Reload Option shall expire on June 9, 2004. Except as
provided herein, the Reload Option is subject to all of the other
terms and provisions of this Agreement governing the Option.
2. Option Price. The price to be paid for the
Optioned Shares shall be $1.00 per share.
3. Time of Exercise. The Option is fully exercisable
and may be exercised by the Optionee in whole or in part at any
time and from time to time, after the date hereof.
4. Manner of Exercise and Payment. The Option may be
exercised only by written notice to the Company by the Optionee
of the Optionee's intent to exercise the Option, delivered to the
Company at its principal office, specifying the number of shares
with respect to which the Option is being exercised, accompanied
by full payment for such shares: (a) in cash or its equivalent;
(b) with the consent of the Board, by tendering shares of Common
Stock valued at their fair market value at the time of exercise;
or (c) with the consent of the Board, by any combination of (a)
and (b).
5. Issuance of Stock Certificates. Upon satisfaction
of the conditions of Section 4, the Company shall promptly
deliver to the Optionee a certificate or certificates for the
number of shares of Common Stock in respect of which Options have
been exercised, legended to reflect the agreements and conditions
applicable to such shares referred to in Section 11.
6. Nontransferability of Option. The Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution.
7. Term. The Option shall expire on June 9, 2004,
and shall not be exercisable thereafter.
8. Termination of Employment. The Option shall
terminate and shall not be exercisable upon the date of
expiration specified in Section 7 hereof and shall not otherwise
terminate as a result of a termination of Optionee's employment
with the Company.
9. Tax Withholding.
(a) It shall be a condition of the obligation of
the Company to issue or transfer shares of Common Stock upon
exercise of the Option, that the Optionee shall pay to the
Company upon its demand, or agree that the Company may withhold
from compensation due the Optionee, such amount as may be
requested by the Company for the purpose of satisfying its
liability to withhold federal, state or local income or other
taxes incurred by reason of the exercise of the Option. If the
Optionee fails to comply with this Section 9, the Company may
refuse to issue or transfer shares of Common Stock upon exercise
of the Option.
(b) With the consent of the Board, the Optionee
may elect to have the Company withhold that number of Optioned
Shares otherwise issuable to the Optionee upon exercise of the
Option or to deliver to the Company a number of Shares, in each
case, having a fair market value at the time of exercise, as
determined by the Board, equal to the minimum amount required to
be withheld as a result of such exercise. The election must be
made in writing and delivered to the Company on or prior to the
date of exercise. The shares so withheld or delivered shall be
free of all adverse claims and shall be endorsed in blank by the
Optionee or accompanied by stock powers duly endorsed in blank.
10. Capital Adjustments Affecting Stock. In the event
of a capital adjustment resulting from a stock dividend, stock
split, spin-off, reorganization, recapitalization, merger,
consolidation, reclassification, combination or exchange of
shares, the Optioned Shares shall be adjusted in a manner
consistent with such capital adjustment. The price of any shares
under the Option shall be adjusted such that there will be no
change in the aggregate purchase price payable upon exercise of
the Option. To the extent deemed equitable and appropriate by
the Board, subject to any required action by shareholders, in any
merger, consolidation, reorganization, liquidation or
dissolution, the Option shall pertain to the securities and other
property to which a holder of the number of shares of stock
covered by the Option would have been entitled to receive in
connection with any such event.
11. Restriction on Transfer of Common Stock. The
shares to be acquired upon exercise of the Option may not be sold
or offered for sale except (i) pursuant to an effective
registration statement under the Securities Act of 1933, as
amended (the "Act") or any applicable state securities laws, (ii)
in a transaction satisfying the requirements of Rule 144
promulgated under the Act, or (iii) in a transaction which, in
the opinion of counsel for the Company, is exempt from the
registration provisions of the Act or applicable state securities
laws. The Optionee agrees that any certificate representing
shares acquired upon exercise of the Option may bear the
following legend:
The shares of Common Stock represented by
this certificate are restricted securities as that
term is defined under Rule 144 promulgated under
the Securities Act of 1933, as amended (the
"Act"). These shares may not be sold, transferred
or disposed of unless they are registered under
the Act, sold in a transaction satisfying the
requirements of Rule 144 or unless the request to
transfer is accompanied by an opinion of counsel
acceptable to the issuer, that the transfer will
not result in a violation of the Act or any
applicable state securities laws.
12. Specific Restrictions Upon Optioned Shares. The
Optionee hereby agrees with the Company that the Optionee shall
acquire the Optioned Shares for investment purposes only and not
with a view to resale or other distribution thereof to the public
in violation of the Act, and shall not dispose of the Optioned
Shares in any transaction which, in the opinion of counsel to the
Company, would violate the Act, or the rules and regulations
thereunder, or any applicable state securities or blue sky laws.
13. Rights as Shareholder. The Optionee shall not be
deemed for any purposes to be a shareholder of the Company with
respect to any of the Optioned Shares except to the extent that
the Option shall have been exercised, such shares shall have been
fully paid, and a stock certificate issued therefor.
14. Power of Company Not Affected. The existence of
the Option shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes
in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or dissolution
or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
15. Amendment or Modification. No term or provision
of this Agreement may be amended, modified or supplemented
orally, but only by an instrument in writing signed by the party
against which or whom the enforcement of the amendment,
modification or supplement is sought.
16. Governing Law. This Agreement shall be governed
by the internal laws of the State of Florida as to all matters,
including but not limited to matters of validity, construction,
effect, performance and remedies.
17. Entire Agreement. This Agreement entered into
between the Optionee and the Company sets forth the entire
agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
18. Delegation by Board. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange or market, the Board may delegate all or any portion of
its responsibilities and powers to any one or more of its
members. Any such delegation may be revoked by the Board at any
time.
19. Heirs and Successors. This Agreement shall be
binding upon, and inure to the benefit of, the Company and its
successors and assigns, and upon any person acquiring all or
substantially all of the Company's assets and business. In the
event of the Optionee's death prior to exercise of the Option,
the Option may be exercised by the estate of the Optionee to the
extent such exercise is otherwise permitted by this Agreement.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed by its duly authorized officer, and the
Optionee has executed this Agreement as of the day and year first
above written.
EXCAL ENTERPRISES, INC.
By: Timothy R. Barnes
Title: Vice President/CFO
OPTIONEE:
/s/ Aris Newton
ARIS NEWTON
This Agreement constitutes part of a Prospectus covering
securities that have been registered under the Securities Act of
1933.
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 18th
day of February, 1998, by and between EXCAL ENTERPRISES, INC., a
Delaware corporation formerly known as Assix International, Inc.
(the "Company"), and JOHN L. CASKEY, a director of the Company
(the "Optionee").
W I T N E S S E T H :
WHEREAS, on March 8, 1994, the Board of Directors of
the Company (the "Board") approved the grant of stock options to
purchase shares of the Company's common stock, $.001 par value
(the "Common Stock"), to certain officers, directors and
employees of the Company, including the Optionee, which options
were canceled and then regranted by the Board on June 10, 1994;
WHEREAS, it is the intention of the parties that this
Agreement memorialize and confirm the terms and conditions of the
grant as previously approved by the Board; and
WHEREAS, the option granted under this Agreement is not
intended to constitute an incentive stock option ("Nonqualified
Stock Option"), as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
1. Grant.
(a) Option. Subject to the terms and conditions
of this Agreement, the Company confirms the grant to the Optionee
of a Nonqualified Stock Option to purchase from the Company all,
or any part, of the aggregate number of 35,000 shares of Common
Stock (hereinafter referred to as the "Optioned Shares," and the
option to purchase the Optioned Shares referred to as the
"Option").
(b) Reload Option. In addition to the Option
granted hereby (the "Underlying Option"), the Company will grant
to the Optionee a reload option (the "Reload Option") if the
Optionee acquires shares of Common Stock pursuant to the exercise
of the Underlying Option and pays for such shares and/or the tax
obligation incurred by reason of the exercise of the Underlying
Option (the "withholding taxes") with shares of Common Stock
already owned by, or otherwise issuable to, the Optionee (the
"Tendered Shares"). The Reload Option grants to the Optionee the
right to purchase shares of Common Stock equal in number to the
number of Tendered Shares. The date on which the Tendered Shares
are tendered to, or withheld by, the Company in full or partial
payment of the purchase price and withholding taxes for the
shares of Common Stock acquired pursuant to the exercise of the
Underlying Option is the Reload Grant Date. The exercise price
of the Reload Option is the fair market value of the Tendered
Shares on the Reload Grant Date. The fair market value of the
Tendered Shares shall be the closing bid price per share of the
Company's Common Stock on the Reload Grant Date. The Reload
Option shall be fully exercisable as of the Reload Grant Date.
The Reload Option shall expire on June 9, 2004. Except as
provided herein, the Reload Option is subject to all of the other
terms and provisions of this Agreement governing the Option.
2. Option Price. The price to be paid for the
Optioned Shares shall be $1.00 per share.
3. Time of Exercise. The Option is fully exercisable
and may be exercised by the Optionee in whole or in part at any
time and from time to time, after the date hereof.
4. Manner of Exercise and Payment. The Option may be
exercised only by written notice to the Company by the Optionee
of the Optionee's intent to exercise the Option, delivered to the
Company at its principal office, specifying the number of shares
with respect to which the Option is being exercised, accompanied
by full payment for such shares: (a) in cash or its equivalent;
(b) with the consent of the Board, by tendering shares of Common
Stock valued at their fair market value at the time of exercise;
or (c) with the consent of the Board, by any combination of (a)
and (b).
5. Issuance of Stock Certificates. Upon satisfaction
of the conditions of Section 4, the Company shall promptly
deliver to the Optionee a certificate or certificates for the
number of shares of Common Stock in respect of which Options have
been exercised, legended to reflect the agreements and conditions
applicable to such shares referred to in Section 10.
6. Nontransferability of Option. The Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution.
7. Term. The Option shall expire on June 9, 2004,
and shall not be exercisable thereafter.
8. Tax Withholding.
(a) It shall be a condition of the obligation of
the Company to issue or transfer shares of Common Stock upon
exercise of the Option, that the Optionee shall pay to the
Company upon its demand, or agree that the Company may withhold
from compensation due the Optionee, such amount as may be
requested by the Company for the purpose of satisfying its
liability to withhold federal, state or local income or other
taxes incurred by reason of the exercise of the Option. If the
Optionee fails to comply with this Section 8, the Company may
refuse to issue or transfer shares of Common Stock upon exercise
of the Option.
(b) With the consent of the Board, the Optionee
may elect to have the Company withhold that number of Optioned
Shares otherwise issuable to the Optionee upon exercise of the
Option or to deliver to the Company a number of Shares, in each
case, having a fair market value at the time of exercise, as
determined by the Board, equal to the minimum amount required to
be withheld as a result of such exercise. The election must be
made in writing and delivered to the Company on or prior to the
date of exercise. The shares so withheld or delivered shall be
free of all adverse claims and shall be endorsed in blank by the
Optionee or accompanied by stock powers duly endorsed in blank.
9. Capital Adjustments Affecting Stock. In the event
of a capital adjustment resulting from a stock dividend, stock
split, spin-off, reorganization, recapitalization, merger,
consolidation, reclassification, combination or exchange of
shares, the Optioned Shares shall be adjusted in a manner
consistent with such capital adjustment. The price of any shares
under the Option shall be adjusted such that there will be no
change in the aggregate purchase price payable upon exercise of
the Option. To the extent deemed equitable and appropriate by
the Board, subject to any required action by shareholders, in any
merger, consolidation, reorganization, liquidation or
dissolution, the Option shall pertain to the securities and other
property to which a holder of the number of shares of stock
covered by the Option would have been entitled to receive in
connection with any such event.
10. Restriction on Transfer of Common Stock. The
shares to be acquired upon exercise of the Option may not be sold
or offered for sale except (i) pursuant to an effective
registration statement under the Securities Act of 1933, as
amended (the "Act") or any applicable state securities laws, (ii)
in a transaction satisfying the requirements of Rule 144
promulgated under the Act, or (iii) in a transaction which, in
the opinion of counsel for the Company, is exempt from the
registration provisions of the Act or applicable state securities
laws. The Optionee agrees that any certificate representing
shares acquired upon exercise of the Option may bear the
following legend:
The shares of Common Stock represented by
this certificate are restricted securities as that
term is defined under Rule 144 promulgated under
the Securities Act of 1933, as amended (the
"Act"). These shares may not be sold, transferred
or disposed of unless they are registered under
the Act, sold in a transaction satisfying the
requirements of Rule 144 or unless the request to
transfer is accompanied by an opinion of counsel
acceptable to the issuer, that the transfer will
not result in a violation of the Act or any
applicable state securities laws.
11. Specific Restrictions Upon Optioned Shares. The
Optionee hereby agrees with the Company that the Optionee shall
acquire the Optioned Shares for investment purposes only and not
with a view to resale or other distribution thereof to the public
in violation of the Act, and shall not dispose of the Optioned
Shares in any transaction which, in the opinion of counsel to the
Company, would violate the Act, or the rules and regulations
thereunder, or any applicable state securities or blue sky laws.
12. Rights as Shareholder. The Optionee shall not be
deemed for any purposes to be a shareholder of the Company with
respect to any of the Optioned Shares except to the extent that
the Option shall have been exercised, such shares shall have been
fully paid, and a stock certificate issued therefor.
13. Power of Company Not Affected. The existence of
the Option shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes
in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or dissolution
or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
14. Amendment or Modification. No term or provision
of this Agreement may be amended, modified or supplemented
orally, but only by an instrument in writing signed by the party
against which or whom the enforcement of the amendment,
modification or supplement is sought.
15. Governing Law. This Agreement shall be governed
by the internal laws of the State of Florida as to all matters,
including but not limited to matters of validity, construction,
effect, performance and remedies.
16. Entire Agreement. This Agreement entered into
between the Optionee and the Company sets forth the entire
agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
17. Delegation by Board. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange or market, the Board may delegate all or any portion of
its responsibilities and powers to any one or more of its
members. Any such delegation may be revoked by the Board at any
time.
18. Heirs and Successors. This Agreement shall be
binding upon, and inure to the benefit of, the Company and its
successors and assigns, and upon any person acquiring all or
substantially all of the Company's assets and business. In the
event of the Optionee's death prior to exercise of the Option,
the Option may be exercised by the estate of the Optionee to the
extent such exercise is otherwise permitted by this Agreement.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed by its duly authorized officer, and the
Optionee has executed this Agreement as of the day and year first
above written.
EXCAL ENTERPRISES, INC.
By: Timothy R. Barnes
Title: Vice President/CFO
OPTIONEE:
/s/ John L .Caskey
JOHN L. CASKEY
This Agreement constitutes part of a Prospectus covering
securities that have been registered under the Securities Act of
1933.
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 18th
day of February, 1998, by and between EXCAL ENTERPRISES, INC., a
Delaware corporation formerly known as Assix International, Inc.
(the "Company"), and Aris Newton, a director of the Company (the
"Optionee").
W I T N E S S E T H :
WHEREAS, on September 10, 1997, the Board of Directors
of the Company (the "Board") approved the grant of stock options
to purchase shares of the Company's common stock, $.001 par value
(the "Common Stock"), to each of the directors of the Company,
including the Optionee;
WHEREAS, it is the intention of the parties that this
Agreement memorialize and confirm the terms and conditions of the
grant as previously approved by the Board; and
WHEREAS, the option granted under this Agreement is not
intended to constitute an incentive stock option ("Nonqualified
Stock Option"), as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
1. Grant.
(a) Option. Subject to the terms and conditions
of this Agreement, the Company confirms the grant to the Optionee
of a Nonqualified Stock Option to purchase from the Company all,
or any part, of the aggregate number of 10,000 shares of Common
Stock (hereinafter referred to as the "Optioned Shares," and the
option to purchase the Optioned Shares referred to as the
"Option").
(b) Reload Option. In addition to the Option
granted hereby (the "Underlying Option"), the Company will grant
to the Optionee a reload option (the "Reload Option") if the
Optionee acquires shares of Common Stock pursuant to the exercise
of the Underlying Option and pays for such shares and/or the tax
obligation incurred by reason of the exercise of the Underlying
Option (the "withholding taxes") with shares of Common Stock
already owned by, or otherwise issuable to, the Optionee (the
"Tendered Shares"). The Reload Option grants to the Optionee the
right to purchase shares of Common Stock equal in number to the
number of Tendered Shares. The date on which the Tendered Shares
are tendered to, or withheld by, the Company in full or partial
payment of the purchase price and withholding taxes for the
shares of Common Stock acquired pursuant to the exercise of the
Underlying Option is the Reload Grant Date. The exercise price
of the Reload Option is the fair market value of the Tendered
Shares on the Reload Grant Date. The fair market value of the
Tendered Shares shall be the closing bid price per share of the
Company's Common Stock on the Reload Grant Date. The Reload
Option shall be fully exercisable as of the Reload Grant Date.
The Reload Option shall expire on September 9, 2007. Except as
provided herein, the Reload Option is subject to all of the other
terms and provisions of this Agreement governing the Option.
2. Option Price. The price to be paid for the
Optioned Shares shall be $4.687 per share.
3. Time of Exercise. The Option is fully exercisable
and may be exercised by the Optionee in whole or in part at any
time and from time to time, after the date hereof.
4. Manner of Exercise and Payment. The Option may be
exercised only by written notice to the Company by the Optionee
of the Optionee's intent to exercise the Option, delivered to the
Company at its principal office, specifying the number of shares
with respect to which the Option is being exercised, accompanied
by full payment for such shares: (a) in cash or its equivalent;
(b) with the consent of the Board, by tendering shares of Common
Stock valued at their fair market value at the time of exercise;
or (c) with the consent of the Board, by any combination of (a)
and (b).
5. Issuance of Stock Certificates. Upon satisfaction
of the conditions of Section 4, the Company shall promptly
deliver to the Optionee a certificate or certificates for the
number of shares of Common Stock in respect of which Options have
been exercised, legended to reflect the agreements and conditions
applicable to such shares referred to in Section 11.
6. Nontransferability of Option. The Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution.
7. Term. The Option shall expire on September 9,
2007, and shall not be exercisable thereafter.
8. Termination of Employment. The Option shall
terminate and shall not be exercisable upon the date of
expiration specified in Section 7 hereof and shall not otherwise
terminate as a result of a termination of Optionee's employment
with the Company.
9. Tax Withholding.
(a) It shall be a condition of the obligation of
the Company to issue or transfer shares of Common Stock upon
exercise of the Option, that the Optionee shall pay to the
Company upon its demand, or agree that the Company may withhold
from compensation due the Optionee, such amount as may be
requested by the Company for the purpose of satisfying its
liability to withhold federal, state or local income or other
taxes incurred by reason of the exercise of the Option. If the
Optionee fails to comply with this Section 9, the Company may
refuse to issue or transfer shares of Common Stock upon exercise
of the Option.
(b) With the consent of the Board, the Optionee
may elect to have the Company withhold that number of Optioned
Shares otherwise issuable to the Optionee upon exercise of the
Option or to deliver to the Company a number of Shares, in each
case, having a fair market value at the time of exercise, as
determined by the Board, equal to the minimum amount required to
be withheld as a result of such exercise. The election must be
made in writing and delivered to the Company on or prior to the
date of exercise. The shares so withheld or delivered shall be
free of all adverse claims and shall be endorsed in blank by the
Optionee or accompanied by stock powers duly endorsed in blank.
10. Capital Adjustments Affecting Stock. In the event
of a capital adjustment resulting from a stock dividend, stock
split, spin-off, reorganization, recapitalization, merger,
consolidation, reclassification, combination or exchange of
shares, the Optioned Shares shall be adjusted in a manner
consistent with such capital adjustment. The price of any shares
under the Option shall be adjusted such that there will be no
change in the aggregate purchase price payable upon exercise of
the Option. To the extent deemed equitable and appropriate by
the Board, subject to any required action by shareholders, in any
merger, consolidation, reorganization, liquidation or
dissolution, the Option shall pertain to the securities and other
property to which a holder of the number of shares of stock
covered by the Option would have been entitled to receive in
connection with any such event.
11. Restriction on Transfer of Common Stock. The
shares to be acquired upon exercise of the Option may not be sold
or offered for sale except (i) pursuant to an effective
registration statement under the Securities Act of 1933, as
amended (the "Act") or any applicable state securities laws, (ii)
in a transaction satisfying the requirements of Rule 144
promulgated under the Act, or (iii) in a transaction which, in
the opinion of counsel for the Company, is exempt from the
registration provisions of the Act or applicable state securities
laws. The Optionee agrees that any certificate representing
shares acquired upon exercise of the Option may bear the
following legend:
The shares of Common Stock represented by
this certificate are restricted securities as that
term is defined under Rule 144 promulgated under
the Securities Act of 1933, as amended (the
"Act"). These shares may not be sold, transferred
or disposed of unless they are registered under
the Act, sold in a transaction satisfying the
requirements of Rule 144 or unless the request to
transfer is accompanied by an opinion of counsel
acceptable to the issuer, that the transfer will
not result in a violation of the Act or any
applicable state securities laws.
12. Specific Restrictions Upon Optioned Shares. The
Optionee hereby agrees with the Company that the Optionee shall
acquire the Optioned Shares for investment purposes only and not
with a view to resale or other distribution thereof to the public
in violation of the Act, and shall not dispose of the Optioned
Shares in any transaction which, in the opinion of counsel to the
Company, would violate the Act, or the rules and regulations
thereunder, or any applicable state securities or blue sky laws.
13. Rights as Shareholder. The Optionee shall not be
deemed for any purposes to be a shareholder of the Company with
respect to any of the Optioned Shares except to the extent that
the Option shall have been exercised, such shares shall have been
fully paid, and a stock certificate issued therefor.
14. Power of Company Not Affected. The existence of
the Option shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes
in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or dissolution
or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
15. Amendment or Modification. No term or provision
of this Agreement may be amended, modified or supplemented
orally, but only by an instrument in writing signed by the party
against which or whom the enforcement of the amendment,
modification or supplement is sought.
16. Governing Law. This Agreement shall be governed
by the internal laws of the State of Florida as to all matters,
including but not limited to matters of validity, construction,
effect, performance and remedies.
17. Entire Agreement. This Agreement entered into
between the Optionee and the Company sets forth the entire
agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
18. Delegation by Board. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange or market, the Board may delegate all or any portion of
its responsibilities and powers to any one or more of its
members. Any such delegation may be revoked by the Board at any
time.
19. Heirs and Successors. This Agreement shall be
binding upon, and inure to the benefit of, the Company and its
successors and assigns, and upon any person acquiring all or
substantially all of the Company's assets and business. In the
event of the Optionee's death prior to exercise of the Option,
the Option may be exercised by the estate of the Optionee to the
extent such exercise is otherwise permitted by this Agreement.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed by its duly authorized officer, and the
Optionee has executed this Agreement as of the day and year first
above written.
EXCAL ENTERPRISES, INC.
By: Timothy R. Barnes
Title: Vice President/CFO
OPTIONEE:
/s/ Aris Newton
ARIS NEWTON
This Agreement constitutes part of a Prospectus covering
securities that have been registered under the Securities Act of
1933.
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 18th
day of February, 1998, by and between EXCAL ENTERPRISES, INC., a
Delaware corporation formerly known as Assix International, Inc.
(the "Company"), and JOHN L. CASKEY, a director of the Company
(the "Optionee").
W I T N E S S E T H :
WHEREAS, on September 10, 1997, the Board of Directors
of the Company (the "Board") approved the grant of stock options
to purchase shares of the Company's common stock, $.001 par value
(the "Common Stock"), to each of the directors of the Company,
including the Optionee;
WHEREAS, it is the intention of the parties that this
Agreement memorialize and confirm the terms and conditions of the
grant as previously approved by the Board; and
WHEREAS, the option granted under this Agreement is not
intended to constitute an incentive stock option ("Nonqualified
Stock Option"), as defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
1. Grant.
(a) Option. Subject to the terms and conditions
of this Agreement, the Company confirms the grant to the Optionee
of a Nonqualified Stock Option to purchase from the Company all,
or any part, of the aggregate number of 10,000 shares of Common
Stock (hereinafter referred to as the "Optioned Shares," and the
option to purchase the Optioned Shares referred to as the
"Option").
(b) Reload Option. In addition to the Option
granted hereby (the "Underlying Option"), the Company will grant
to the Optionee a reload option (the "Reload Option") if the
Optionee acquires shares of Common Stock pursuant to the exercise
of the Underlying Option and pays for such shares and/or the tax
obligation incurred by reason of the exercise of the Underlying
Option (the "withholding taxes") with shares of Common Stock
already owned by, or otherwise issuable to, the Optionee (the
"Tendered Shares"). The Reload Option grants to the Optionee the
right to purchase shares of Common Stock equal in number to the
number of Tendered Shares. The date on which the Tendered Shares
are tendered to, or withheld by, the Company in full or partial
payment of the purchase price and withholding taxes for the
shares of Common Stock acquired pursuant to the exercise of the
Underlying Option is the Reload Grant Date. The exercise price
of the Reload Option is the fair market value of the Tendered
Shares on the Reload Grant Date. The fair market value of the
Tendered Shares shall be the closing bid price per share of the
Company's Common Stock on the Reload Grant Date. The Reload
Option shall be fully exercisable as of the Reload Grant Date.
The Reload Option shall expire on September 9, 2007. Except as
provided herein, the Reload Option is subject to all of the other
terms and provisions of this Agreement governing the Option.
2. Option Price. The price to be paid for the
Optioned Shares shall be $4.687 per share.
3. Time of Exercise. The Option is fully exercisable
and may be exercised by the Optionee in whole or in part at any
time and from time to time, after the date hereof.
4. Manner of Exercise and Payment. The Option may be
exercised only by written notice to the Company by the Optionee
of the Optionee's intent to exercise the Option, delivered to the
Company at its principal office, specifying the number of shares
with respect to which the Option is being exercised, accompanied
by full payment for such shares: (a) in cash or its equivalent;
(b) with the consent of the Board, by tendering shares of Common
Stock valued at their fair market value at the time of exercise;
or (c) with the consent of the Board, by any combination of (a)
and (b).
5. Issuance of Stock Certificates. Upon satisfaction
of the conditions of Section 4, the Company shall promptly
deliver to the Optionee a certificate or certificates for the
number of shares of Common Stock in respect of which Options have
been exercised, legended to reflect the agreements and conditions
applicable to such shares referred to in Section 10.
6. Nontransferability of Option. The Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution.
7. Term. The Option shall expire on September 9,
2007, and shall not be exercisable thereafter.
8. Tax Withholding.
(a) It shall be a condition of the obligation of
the Company to issue or transfer shares of Common Stock upon
exercise of the Option, that the Optionee shall pay to the
Company upon its demand, or agree that the Company may withhold
from compensation due the Optionee, such amount as may be
requested by the Company for the purpose of satisfying its
liability to withhold federal, state or local income or other
taxes incurred by reason of the exercise of the Option. If the
Optionee fails to comply with this Section 8, the Company may
refuse to issue or transfer shares of Common Stock upon exercise
of the Option.
(b) With the consent of the Board, the Optionee
may elect to have the Company withhold that number of Optioned
Shares otherwise issuable to the Optionee upon exercise of the
Option or to deliver to the Company a number of Shares, in each
case, having a fair market value at the time of exercise, as
determined by the Board, equal to the minimum amount required to
be withheld as a result of such exercise. The election must be
made in writing and delivered to the Company on or prior to the
date of exercise. The shares so withheld or delivered shall be
free of all adverse claims and shall be endorsed in blank by the
Optionee or accompanied by stock powers duly endorsed in blank.
9. Capital Adjustments Affecting Stock. In the event
of a capital adjustment resulting from a stock dividend, stock
split, spin-off, reorganization, recapitalization, merger,
consolidation, reclassification, combination or exchange of
shares, the Optioned Shares shall be adjusted in a manner
consistent with such capital adjustment. The price of any shares
under the Option shall be adjusted such that there will be no
change in the aggregate purchase price payable upon exercise of
the Option. To the extent deemed equitable and appropriate by
the Board, subject to any required action by shareholders, in any
merger, consolidation, reorganization, liquidation or
dissolution, the Option shall pertain to the securities and other
property to which a holder of the number of shares of stock
covered by the Option would have been entitled to receive in
connection with any such event.
10. Restriction on Transfer of Common Stock. The
shares to be acquired upon exercise of the Option may not be sold
or offered for sale except (i) pursuant to an effective
registration statement under the Securities Act of 1933, as
amended (the "Act") or any applicable state securities laws, (ii)
in a transaction satisfying the requirements of Rule 144
promulgated under the Act, or (iii) in a transaction which, in
the opinion of counsel for the Company, is exempt from the
registration provisions of the Act or applicable state securities
laws. The Optionee agrees that any certificate representing
shares acquired upon exercise of the Option may bear the
following legend:
The shares of Common Stock represented by
this certificate are restricted securities as that
term is defined under Rule 144 promulgated under
the Securities Act of 1933, as amended (the
"Act"). These shares may not be sold, transferred
or disposed of unless they are registered under
the Act, sold in a transaction satisfying the
requirements of Rule 144 or unless the request to
transfer is accompanied by an opinion of counsel
acceptable to the issuer, that the transfer will
not result in a violation of the Act or any
applicable state securities laws.
11. Specific Restrictions Upon Optioned Shares. The
Optionee hereby agrees with the Company that the Optionee shall
acquire the Optioned Shares for investment purposes only and not
with a view to resale or other distribution thereof to the public
in violation of the Act, and shall not dispose of the Optioned
Shares in any transaction which, in the opinion of counsel to the
Company, would violate the Act, or the rules and regulations
thereunder, or any applicable state securities or blue sky laws.
12. Rights as Shareholder. The Optionee shall not be
deemed for any purposes to be a shareholder of the Company with
respect to any of the Optioned Shares except to the extent that
the Option shall have been exercised, such shares shall have been
fully paid, and a stock certificate issued therefor.
13. Power of Company Not Affected. The existence of
the Option shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes
in the Company's capital structure or its business, or any merger
or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or
affecting the Common Stock or the rights thereof, or dissolution
or liquidation of the Company, or any sale or transfer of all or
any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
14. Amendment or Modification. No term or provision
of this Agreement may be amended, modified or supplemented
orally, but only by an instrument in writing signed by the party
against which or whom the enforcement of the amendment,
modification or supplement is sought.
15. Governing Law. This Agreement shall be governed
by the internal laws of the State of Florida as to all matters,
including but not limited to matters of validity, construction,
effect, performance and remedies.
16. Entire Agreement. This Agreement entered into
between the Optionee and the Company sets forth the entire
agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained
herein is hereby terminated and canceled.
17. Delegation by Board. Except to the extent
prohibited by applicable law or the applicable rules of a stock
exchange or market, the Board may delegate all or any portion of
its responsibilities and powers to any one or more of its
members. Any such delegation may be revoked by the Board at any
time.
18. Heirs and Successors. This Agreement shall be
binding upon, and inure to the benefit of, the Company and its
successors and assigns, and upon any person acquiring all or
substantially all of the Company's assets and business. In the
event of the Optionee's death prior to exercise of the Option,
the Option may be exercised by the estate of the Optionee to the
extent such exercise is otherwise permitted by this Agreement.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed by its duly authorized officer, and the
Optionee has executed this Agreement as of the day and year first
above written.
EXCAL ENTERPRISES, INC.
By: Timothy R. Barnes
Title: Vice President/CFO
OPTIONEE:
/s/ John L. Caskey
JOHN L. CASKEY
FOLEY & LARDNER
POST OFFICE BOX 240
JACKSONVILLE, FLORIDA 32202-3510
200 LAURA STREET, JACKSONVILLE, FLORIDA 32202-3527
TELEPHONE (904) 359-2000
FACSIMILE (904) 359-8700
March 25, 1998
Excal Enterprises, Inc.
100 N. Tampa St., Suite 3575
Tampa, Florida 33602
Re: Registration Statement on Form S-8
Relating to Shares of Common Stock Issuable
Pursuant to Various Agreements with W. Carey
Webb, W. Aris Newton and John L. Caskey
Ladies and Gentlemen:
This opinion is being furnished in connection with the
Registration Statement on Form S-8 (the "Registration Statement")
of Excal Enterprises, Inc. (the "Company"), under the Securities
Act of 1933, as amended, for the registration of up to 547,500
shares of common stock par value $0.001 (the "Shares") issuable
pursuant to the following agreements (collectively, the
"Agreements"):
(i) an Employment Agreement dated August 15, 1994 between
the Company and W. Carey Webb, the Company's President and
Chief Executive Officer, as amended by First Amendment to
Employment Agreement between the Company and Carey Webb
dated April 3, 1996 and as supplemented by a Nonqualified
Stock Option Agreement between the Company and Carey Webb
dated February 18, 1998 (collectively, the "Webb
Agreements");
(ii) a Nonqualified Stock Option Agreement dated
February 18, 1998 between the Company and Aris Newton, a
Vice President and director of the Company, and a
Nonqualified Stock Option Agreement dated February 18, 1998
between the Company and Aris Newton (the "A. Newton
Agreements"); and
(iii) a Nonqualified Stock Option Agreement dated
February 18, 1998 between the Company and John L. Caskey, a
director of the Company, and a Nonqualified Stock Option
Agreement dated February 18, 1998 (the "Caskey Agreements").
We have examined and are familiar with the following:
A. Certificate of Incorporation of the Company, as
amended, as filed in the Office of the Secretary of State of the
State of Delaware;
B. Bylaws of the Company;
C. The proceedings of the Board of Directors of the
Company in connection with the approval of the Agreements; and
D. Such other documents, Company records and matters of
law as we have deemed to be pertinent.
Based on the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware.
2. The Shares have been duly authorized and when issued in
accordance with the terms of the Agreements will be duly and
validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5
in the Registration Statement. In giving this consent, we do not
thereby admit that we come within the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules or regulations of the Securities and Exchange
Commission promulgated thereunder.
FOLEY & LARDNER
By: /s/ Linda Y. Kelso
Linda Y. Kelso
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated August 8, 1997,
which appears on page F-1 of the Annual Report on Form 10-KSB for the
fiscal year ended June 30, 1997 of Excal Enterprises, Inc.
Pender Newkirk & Company
Certified Public Accountants
Tampa, Florida
March 25, 1998
