U. S. SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-QSB
(Mark One)
[X] QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended December 31, 1998
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT
For the transition period from _______________ to _______________
Commission File No. 0-17069
Excal Enterprises, Inc.
----------------------------------------------------------------
(Exact name of small business issuer as specified in its charter)
Delaware 59-2855398
------------------------------ -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
100 North Tampa Street, Suite 3575, Tampa, Florida 33602
---------------------------------------------------------
(Address of principal executive offices)
(813) 224-0228
-------------------------
Issuer's telephone number
-------------------------------------------------------------------------
(Former Name, former address and former fiscal year, if changed since last
report)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for
such shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
As of January 31, 1999, there were 4,385,458 shares of the issuer's common
stock, par value $0.001, outstanding.
Transitional Small Business Disclosure Format (Check One): Yes [ ] No [X]
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements.
EXCAL ENTERPRISES, INC.
CONSOLIDATED BALANCE SHEET
DECEMBER 31, 1997
ASSETS (unaudited)
Current Assets
Cash and cash equivalents $ 10,452,919
Accounts receivable, less allowance of $103,687 708,399
Notes receivable 315,893
Inventory 545,741
Prepaid expenses and deposits 294,227
Deferred tax asset 250,000
----------
Total current assets 12,567,179
----------
Property, plant and equipment
Land 1,600,000
Buildings and improvements 6,863,235
Furniture, fixtures, vehicles and equipment 2,428,308
----------
10,891,543
Less accumulated depreciation and amortization 1,623,471
----------
Net property, plant and equipment 9,268,072
----------
Restricted cash reserves 735,131
Commission costs, less accumulated amortization of $276,564 338,027
Loan costs, less accumulated amortization of $208,246 624,738
----------
Total Assets $ 23,533,147
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities
Accounts payable $ 679,975
Accrued liabilities 349,677
Reserve for litigation 432,246
Income tax payable 25,000
Line of credit 723,087
Current portion of long-term debt 180,104
----------
Total current liabilities 2,390,089
Long-term debt 13,459,896
Deferred tax liability 1,248,000
----------
Total Liabilities 17,097,985
----------
Minority interest equity 1,041
Stockholders' equity
Preferred stock, $.01 par value, 7,500,000 shares authorized,
5,000,000 shares issued, no shares outstanding --
Common stock, $.001 par value, 20,000,000 shares authorized,
4,738,866 shares issued, 4,308,113 shares outstanding 4,738
Additional paid-in capital 4,778,983
Retained earnings 4,044,464
Less 430,753 shares of common stock held in treasury at cost ( 1,815,039)
----------
7,013,146
Less notes receivable from stockholders ( 579,025)
----------
Total stockholders' equity 6,434,121
----------
Total Liabilities and Stockholders' Equity $ 23,533,147
==========
The accompanying notes are an integral part of the consolidated financial
statements
EXCAL ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
Three Months Ended Six Months Ended
December 31 December 31
----------------------- ----------------------
1998 1997 1998 1997
--------- --------- --------- ---------
Rental revenue $ 1,160,824 $ 1,128,991 $ 2,331,653 $ 2,296,940
Sports licensing sales 188,548 -- 188,548 --
--------- --------- --------- ---------
Total net revenue 1,349,372 1,128,991 2,520,201 2,296,940
Cost of sports
licensing sales 105,672 -- 105,672 --
--------- --------- --------- ---------
Gross margin 1,243,700 1,128,991 2,414,529 2,296,940
--------- --------- --------- ---------
Rental operating costs 539,788 575,900 1,204,020 1,174,588
Sports licensing
operating costs 138,124 -- 138,124 --
Depreciation and
amortization 172,471 160,575 329,919 276,342
--------- --------- --------- ---------
Total operating costs 850,383 736,475 1,672,063 1,450,930
--------- --------- --------- ---------
Net operating profit 393,317 392,516 742,466 846,010
--------- --------- --------- ---------
Other expense (income)
Interest expense 305,306 307,136 616,203 310,771
Professional fees
related to litigation 297,721 155,810 455,812 284,810
Litigation Settlement -- 45,395 217,273 45,395
Loss (gain) on
disposals of assets 170 ( 58,141) 170 ( 58,141 )
Interest income ( 174,904) ( 182,822) ( 359,740) ( 194,910 )
Miscellaneous income ( 15,015) ( 34,875) ( 68,258) ( 57,552 )
--------- --------- --------- ---------
Net other expense 413,278 232,503 861,460 330,373
--------- --------- --------- ---------
Income (loss)
before income taxes ( 19,961) 160,013 ( 118,994) 515,637
Income tax
provision (benefit) ( 1,000) 67,000 ( 38,000) 212,000
--------- --------- --------- ---------
Net income (loss) $( 18,961) $ 93,013 $( 80,994) $ 303,637
========= ========= ========= =========
Earnings (loss)
per share
Basic $( --) $ .02 $( .02) $ .08
========= ========= ========= =========
Diluted $( --) $ .02 $( .02) $ .07
========= ========= ========= =========
Weighted average
shares outstanding
Common 4,336,071 3,999,148 4,140,410 3,997,034
Common and equivalent 4,336,071 4,466,081 4,140,410 4,467,886
The accompanying notes are an integral part of the consolidated financial
statements
EXCAL ENTERPRISES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
Six Months Ended December 31
----------------------------
1998 1997
---------- ----------
Cash provided by operating activities
Net income (loss) $( 80,994) $ 303,637
Adjustments to reconcile net income (loss)
to net cash used by operating activities:
Depreciation and amortization 329,919 279,799
Other adjustments ( 98,947) 98,830
Increase in net operating assets ( 625,236) ( 685,651)
---------- ----------
Net cash provided by operating activities ( 475,258) ( 3,385)
---------- ----------
Cash flows from investing activities
Proceeds from sale of assets -- 535,006
Property and equipment additions ( 81,744) ( 56,485)
Loans to unrelated privately held company ( 300,000) --
---------- ----------
Net cash provided by investing activities ( 381,744) 478,521
---------- ----------
Cash flows from financing activities
Net proceeds (payments) on line of credit -- ( 10,952)
Principal repayments of notes payable ( 430,000) --
Net proceeds from long-term debt -- 13,500,000
Principal repayments of long-term debt ( 80,764) ( 36,396)
Loan costs -- ( 799,824)
Restricted cash reserves -- ( 950,000)
Issuance of common stock -- 73,000
Repurchase warrants -- ( 110,000)
Purchase of treasury stock ( 1,089,716) ( 166,635)
---------- ----------
Net cash provided (used)
by financing activities ( 1,600,480) 11,499,193
---------- ----------
Increase (decrease) in cash ( 2,457,482) 11,974,329
Cash and cash equivalents at beginning of period 12,910,401 1,047,166
---------- ----------
Cash and cash equivalents at end of period $ 10,452,919 $ 13,021,495
========== ==========
See Note 5 for discussion of non-cash transactions.
The accompanying notes are an integral part of the consolidated financial
statements
EXCAL ENTERPRISES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - FINANCIAL STATEMENTS
In the opinion of management, all adjustments, consisting only of normal
recurring adjustments necessary for a fair statement of (a) the results of
operations for the three-month and six-month periods ended December 31, 1998
and 1997, (b) the financial position at December 31, 1998, and (c) cash flows
for the six-month periods ended December 31, 1998 and 1997, have been made.
The unaudited consolidated financial statements and notes are presented as
permitted by Form 10-QSB. Accordingly, certain information and footnote
disclosures normally included in financial statements prepared in accordance
with generally accepted accounting principles have been omitted. The
accompanying consolidated financial statements and notes should be read in
conjunction with the audited financial statements and notes of the Company for
the fiscal year ended June 30, 1998. The results of operations for the three-
month and six-month periods ended December 31, 1998 are not necessarily
indicative of those to be expected for the entire year.
NOTE 2 - ACQUISITION
In December 1998, Excal Enterprises, Inc, through its wholly owned
subsidiary Excal Sports Group, Inc., closed on the acquisition of Roxbury
Industries Corp ("Roxbury"). Excal invested $1.5 million in Roxbury and
received 1,000,000 shares of Roxbury's common stock, par value $0.001,
representing all of the outstanding shares of common stock of Roxbury. The
former common stockholders of Roxbury exchanged their common stock for
1,040,816 shares of convertible preferred stock of Roxbury, par value $0.001.
The preferred stock does not contain preferential rights to distributions,
does not have voting rights and is convertible into common stock of Roxbury
beginning on July 15, 2002. The number of shares that the preferred stock
will convert into varies based on the financial performance of Roxbury.
NOTE 3 - INVENTORY
The gross profit method was used to estimate inventories at December 31,
1998.
NOTE 4 - NOTES PAYABLE AND LONG-TERM DEBT
There were several short-term debt obligations of Roxbury outstanding at
the time of acquisition. The short-term notes, totaling $430,000 were paid-
off in December 1998. The remaining debt of Roxbury consists of the following
three notes.
Roxbury has a $725,000 line of credit from European American Bank, bearing
interest at 1.5% over prime rate (9.25% at December 31, 1998). The line of
credit renews in July 1999 and had an outstanding balance of $723,087 as of
December 31, 1998.
Prior to the acquisition, the majority shareholder of Roxbury loaned
$150,000 to Roxbury. Interest is due annually in December at the rate of 6%
per annum. The principal balance is due on July 15, 2002.
Roxbury received a loan from the New York Job Development Authority, the
proceeds of which were used to renovate the building where the operations are
located. This loan bears interest at 8.25% per annum. The outstanding
principal was $180,421 at December 31, 1998. Monthly principal and interest
payments of $2,328 are due through March 2008.
NOTE 5 - STOCKHOLDERS' EQUITY
On September 28, 1998, officers and directors of the Company exercised
options to purchase an aggregate of 640,000 shares of common stock. The
640,000 shares were issued from treasury stock with a cost basis of
$2,215,558. One director paid the exercise price with 41,026 shares of
previously owned shares of common stock with a value of $200,000. The
exercise prices for the remaining shares were paid with recourse notes to the
Company in the aggregate amount of $579,025. The notes require annual
interest payments at a rate of 5.57% with the principal due on September 28,
2003. In addition to the aggregate exercise price of $779,025, the Company
received an income tax benefit of $816,000 and incurred payroll tax costs of
$38,381 as a result of the exercise of the options. The officers and
directors used 197,992 shares otherwise issuable under the options, with a
value of $965,213, to pay the withholding taxes due upon the exercise of the
options.
During the six months ended December 31, 1998, the Company purchased
28,900 shares of its common stock in market transactions at an aggregate cost
of $86,122.
NOTE 6 - SEGMENT INFORMATION
With the acquisition of Roxbury, the Company has two reportable business
segments. These segments have been determined by product line and consist of
the rental of commercial real estate and the manufacture and distribution of
sports licensing products. The revenue shown on the face of the financial
statements was from external sources. The segment information disclosures not
included on the face of the financial statements are detailed in the tables
below. The "Other" category includes corporate related items and income and
expense items not allocated to reportable segments.
Three Months Ended Six Months Ended
December 31 December 31
------------------ ------------------
1998 1997 1998 1997
------- ------- ------- -------
Segment income (loss)
before income taxes
Real estate operations $ 222,566 $ 161,397 $ 331,922 $ 641,973
Sports licensing operations ( 75,234) -- ( 75,234) --
Other (167,293) ( 1,384) (375,682) (126,336)
------- ------- ------- -------
Total income (loss)
before income taxes $( 19,961) $ 160,013 $(118,994) $ 515,637
======= ======= ======= =======
As of December 31
--------------------------
1998 1997
---------- ----------
Identifiable assets
Real estate operations $12,766,277 $12,260,478
Sports licensing operations 3,165,904 --
Other 7,600,966 11,551,872
---------- ----------
Total identifiable assets $23,533,147 $23,812,350
========== ==========
Item 2. Management's Discussion and Analysis.
Except for historical matters, the matters discussed in this Form 10-QSB
are forward-looking statements based on current expectations. Forward-looking
statements, including without limitation, statements relating to the Company's
plans, strategies, objectives, expectations, intentions and adequacy of
resources, are made pursuant to the Safe Harbor Provisions of the Private
Securities Litigation Reform Act of 1995. Investors are cautioned that such
forward-looking statements involve risks and uncertainties including without
limitation the following: (i) the Company's plans, strategies, objectives,
expectations and intentions are subject to change at any time at the
discretion of the Company, (ii) the Company's plans and results of operations
will be affected by economic, competitive, governmental and technological
factors affecting the Company's operations, markets, products, services, and
prices; and (iii) other risks and uncertainties as indicated from time to time
in the Company's filings with the Securities and Exchange Commission.
The Company has conducted a review of its computer systems to identify the
systems that could be affected by the "year 2000 issue". The "year 2000
issue" is the result of computer programs being written using two digits
rather than four to define the applicable year. Programs with this problem
may recognize a date using "00" as the year 1900 rather than the year 2000,
resulting in system failures or miscalculations. Although no assurance can be
given, the Company presently believes that its software and that of its major
vendors and customers are year 2000 compliant or will not pose significant
operational problems for the Company's computer systems.
The following discussion should be read in conjunction with the
information contained in the financial statements of the Company and the notes
thereto appearing elsewhere herein and in conjunction with Management's
Discussion and Analysis set forth in the Company's Form 10-KSB for the fiscal
year ended June 30, 1998.
The following discussion compares the results of operations for the three-
month period ended December 31, 1998 (Second Quarter 1999) with the three-
month period ended December 31, 1997 (Second Quarter 1998) and the six-month
period ended December 31, 1998 (1999 YTD) with the six-month period ended
December 31, 1997 (1998 YTD).
Results of Continuing Operations
The Company's operations fall into two distinct businesses: the
manufacture and distribution of sports licensing knit products and the rental
of commercial real estate. In December 1998, the Company acquired Roxbury
Industries Corp ("Roxbury"), which produces and distributes knit products.
The Company owns, leases, and manages a two story warehouse and office facility
containing approximately 1,666,000 square feet of rentable space located on
approximately 74 acres in an industrial park in Duval County, Florida.
Sports Licensing Products
Roxbury manufactures and distributes logo/personalized knit scarves, knit
headwear and bears with sweaters. The logos include team names of the
National Football League, Major League Baseball, the National Hockey League,
and most major colleges. In addition, Roxbury has produced logo products for
high schools throughout the United States. Roxbury's logo products are
primarily sold through bookstores, arena concessions and sporting goods
outlets. These products are marketed under the "4.0" (4 point 0) tradename.
The personalized products that Roxbury manufactures are marketed under the
tradename "1 800 I-LOVE-IT"T. The products are personalized knit gifts that
evoke lasting memories of special occasions passed. The leading products are
the "Birth Bear"r and "Birth Blanket"T. These bears and blankets are
personalized with the baby's name, date of birth, weight and length knitted
into the fabric of the product. Other products include bears with sweaters
celebrating special occasions sold under the trademark "Ultimate Greeting
Card"T. These products are distributed through gift shops and directly to
consumers through catalog sales.
The revenue and expenses of the sports licensing division are only included
for the month of December 1998. The sports licensing division accounted
for $15,241 of the total depreciation and amortization expenses for the
Second Quarter 1999 and 1999 YTD. The net operating loss of the sports
licensing division was $70,489 for both the Second Quarter 1999 and 1999
YTD.
Commercial Real Estate
The commercial real estate operations consist of the lease and management
of property located in Jacksonville, Florida (Imeson Center). The property
consists of approximately 1,392,000 square feet of warehouse space and 274,000
square feet of office space. The Company's lease agreements are structured to
include a base minimum rental fee, a contingent rental fee to reimburse the
Company for operating expenses, common area maintenance costs, insurance and
property taxes, and a requirement that the tenant pay for its own utilities.
Net revenue increased slightly to $1,160,824 in Second Quarter 1999 from
$1,128,991 in Second Quarter 1998 and to $2,331,653 in 1999 YTD from
$2,296,940 in 1998 YTD. The base minimum rental fee increased by $38,476 (4%)
in the three-month period and $77,337 (4%) in the six-month period as a result
of increases in the base minimum rent per square foot. The contingent rental
fee decreased by $6,644 (3%) in the three-month period and $42,624 (9%) in the
six-month period as a result of reductions in reimbursable operating costs.
Operating costs decreased slightly to $539,788 in Second Quarter 1999 from
$575,900 in Second Quarter 1998. Operating costs for 1999 YTD increased by 3%
to $1,204,020 from $1,174,588 in 1998 YTD. Reimbursable operating costs
declined for both the three-month and six-month periods ended December 31,
1998, as compared to the same periods of the prior year. This decline was
offset in the 1999 YTD period by an increase in professional fees related to
investigating expansion opportunities on the property.
Depreciation and amortization decreased by $3,345 in Second Quarter 1999
to $157,230, as compared to Second Quarter 1998. However, depreciation and
amortization increased by $38,336 in 1999 YTD compared to 1998 YTD. The
increase was primarily the result of the amortization of loan costs, which did
not begin until October of 1997.
The net operating profit of the commercial real estate division increased
from $392,516 in Second Quarter 1998 to $463,806 in Second Quarter 1999. The
net operating profit for 1999 YTD was $ 812,955, compared to $846,010 for 1998
YTD.
Other Expense (Income)
The increase in interest expense for 1999 YTD, as compared to 1998 YTD,
was related to the mortgage loan obtained at the end of the First Quarter
1998. Professional fees related to litigation increased significantly in
Second Quarter 1999 and 1999 YTD as compared to Second Quarter 1998 and 1998
YTD. The costs in Second Quarter 1999 and 1999 YTD are almost totally related
to the Securities and Exchange Commission litigation. The litigation
settlement expenses in 1999 YTD are related to the Harvey Moore and Channel
Partnership, LLP settlements. The Court awarded legal fees to Harvey Moore in
the amount of $82,246. The Court said it may award a small amount of
additional costs pending receipt of adequate documentation. This is
significantly less than the $362,766 requested by Harvey Moore. However,
Harvey Moore has appealed the Court's decision. The Court approved the
settlement agreement with Channel Partnership, LLP at the hearing held on
October 15, 1998. The Court also awarded Channel Partnership reimbursement of
fees and costs in the amount of $134,500. The increase in interest income in
1999 YTD as compared to 1998 YTD relates to the increased cash balances as a
result of the closing of the mortgage loan at the end of September 1997.
Liquidity and Capital Resources
The cash used by operating activities was $475,258 in 1999 YTD compared to
$3,385 in 1998 YTD. The Company's operations provided $149,978 in working
capital in 1999 YTD compared to $682,266 of working capital in 1998 YTD. The
increase in net operating assets in 1999 YTD was primarily created by an
increase of $416,909 in net operating assets of Roxbury between the date of
acquisition and December 31, 1998. The increase in net operating assets in
1998 YTD was the result of paying off liabilities, incurred prior to June 30,
1997, related to the lease of office space to Prudential Insurance Company and
placing $299,216 in reserves with the mortgage lender for taxes, insurance,
and repairs.
Property and equipment additions in both fiscal 1999 and fiscal 1998 YTD
were for equipment used at Imeson Center.
Cash of $1,600,480 was used by financing activities in 1999 YTD, as
compared to cash provided by financing activities of $11,499,193 in 1998 YTD.
The Company closed on a mortgage loan in the amount of $13,500,000 on
September 30, 1997. Loan costs associated with the loan were $832,984, of
which $33,160 was incurred in the prior fiscal year. As a requirement of the
mortgage loan, $950,000 was placed into a reserve for future tenant
improvements and leasing commissions. The net proceeds of the mortgage are
expected to be used primarily for the acquisition of new businesses but will
also be used for the continued development of the Imeson Center property. In
First Quarter 1998, the Company acquired three warrants to purchase a total of
285,000 shares of common stock for $435,500. Total payments of $215,500 and
$325,500 were still owed as of December 31, 1998 and 1997, respectively. On
September 28, 1998, stock options held by officers and directors of the
Company were exercised for the purchase of 640,000 shares of common stock with
an aggregate exercise price of $779,025, generating $816,000 of income tax
savings and $38,381 of payroll tax expenses for the Company. The exercise
price was paid with existing shares of common stock and recourse notes. Of
the 640,000 shares, 197,992 shares were turned into the Company as payment for
withholding taxes due on exercise. The Company purchased 28,900 shares of its
common stock at an aggregate cost of $86,122 in 1999 YTD.
The Company did not have any material commitments for capital expenditures
as of December 31, 1998 other than for ordinary expenses incurred during the
usual course of business. The Company is looking for additional tenants for
Imeson Center for the remaining 41,000 square feet of office space. It is
expected that any new tenant will require the Company to incur significant
costs related to renovation of the property to meet the tenant's needs.
Additionally, the Company is considering opportunities to develop outparcels
at the Imeson Center. The Company is expending resources to identify,
evaluate, and negotiate with potential acquisition candidates in order to
expand the Company's business operations into other areas. Any new business
operation will likely involve a substantial commitment of Company resources
and a significant degree of risk. The Company also has potential liability
related to litigation. The Company's $725,000 line of credit renews in July
1999. No assurance can be given that a renewal on terms acceptable to the
Company will be obtained. The Company believes its current liquidity position
will be sufficient to meet its needs for at least the next year. However, any
of the above mentioned items could require significant capital resources in
excess of the Company's liquidity, requiring it to raise additional capital
through public or private debt or equity financing. The availability of these
capital sources will depend upon prevailing market conditions, interest rates,
and the then existing financial position and results of operations of the
Company. Therefore, no assurances can be made by the Company that such
additional capital will be available.
PART II - OTHER INFORMATION
Item 1. - Legal Proceedings
No material events have occurred in the Company's ongoing litigation
matters other than those described below. For the history of such litigation,
please refer to the Company's Annual Report on Form 10-KSB for the fiscal year
ended June 30, 1998.
Securities and Exchange Commission
The trial has not been scheduled and is not expected to begin before
summer of 1999.
Channel Partnership II, GP
The Court approved the settlement agreement at the hearing held on October
15, 1998. The settlement agreement required, among other things, that the
Company purchase shares of its common stock in accordance with SEC Rule 10b-18
in the event the closing bid price falls below $3.30 for twenty consecutive
days. The purchase commitment will continue until such time as the Company:
(i) has purchased an aggregate of 600,000 shares, or (ii) the stock price
closes at or above $3.30 per share, or (iii) October 15, 1999. The Court also
awarded Channel Partnership fees and costs of $134,500.
Harvey Moore
The Court awarded Harvey Moore fees and costs of $82,246. The Court may
award a small amount of additional costs pending receipt of adequate
documentation. Harvey Moore has appealed the Court's decision.
Item 2. Exhibits and Reports on Form 8-K.
(a) Exhibits
3.1 By-laws, as amended
4.1 Amendment to Rights Agreement dated April 18, 1994
10.1 Second amendment to Webb employment agreement
10.2 Third amendment to Newton employment agreement
10.3 Stock Option Agreement with Timothy R. Barnes dated 9/28/98
10.4 Stock Option Agreement with John L. Caskey dated 2/18/98 *
10.5 Stock Option Agreement with John L. Caskey dated 2/18/98 *
10.6 Stock Option Agreement with John L. Caskey dated 9/28/98
10.7 Stock Option Agreement with John L. Caskey dated 9/28/98
10.8 Stock Option Agreement with W. Aris Newton dated 2/18/98 *
10.9 Stock Option Agreement with W. Aris Newton dated 2/18/98 *
10.10 Stock Option Agreement with W. Aris Newton dated 9/28/98
10.11 Stock Option Agreement with W. Aris Newton dated 9/28/98
10.12 Stock Option Agreement with R. Park & Francine H. Newton dated 5/1/98
10.13 Stock Option Agreement with R. Park & Francine H. Newton dated 5/1/98
10.14 Stock Option Agreement with R. Park & Francine H. Newton dated 9/28/98
10.15 Stock Option Agreement with R. Park & Francine H. Newton dated 1/26/99
10.16 Stock Option Agreement with R. Park & Francine H. Newton dated 1/26/99
10.17 Stock Option Agreement with W. Carey Webb dated 2/18/98 *
10.18 Stock Option Agreement with W. Carey Webb dated 9/28/98
27 Financial Data Schedule
* Filed with the Registration Statement on Form S-8 filed on April
29, 1998.
(b) Reports on Form 8-K.
None.
(c) Sales of Unregistered Securities.
On September 28, 1998, R. Park Newton, III and Francine H. Newton
exercised options to purchase 200,000 shares of common stock. The
exercise price was paid for with 41,026 shares of previously owned
shares of common stock with a value of $200,000.
Item 4. Submission of Matters to a Vote of Security Holders.
The Company held its annual shareholder meeting on November 18, 1998 to
elect one Class III director and ratify the election of Pender Newkirk &
Company as independent auditors for the fiscal year ended June 30, 1999. The
terms of office as director for W. Aris Newton and John L. Caskey continued
after the meeting. The voting results were as follows:
Issue For Against Abstain
- ---------------------------------------------- --------- ------- -------
Elect R. Park Newton, III
as Class III director 3,428,253 23,618 32,182
Ratify selection of Pender Newkirk &
Company as auditors for fiscal 1999 3,460,847 12,976 10,230
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
EXCAL ENTERPRISES, INC.
Registrant
Dated: February 22, 1997 /s/ W. CAREY WEBB
W. Carey Webb
President and Chief Executive Officer
Dated: February 22, 1997 /s/ TIMOTHY R. BARNES
Timothy R. Barnes
Vice President and
Chief Financial Officer
EXCAL ENTERPRISES, INC.
COMPOSITE SECOND AMENDED AND RESTATED BYLAWS
OF EXCAL ENTERPRISES, INC.
SECOND AMENDED AND RESTATED BYLAWS
TABLE OF CONTENTS
ARTICLE I -- OFFICES AND AGENT 1
Section 1.1 Registered Office and Agent 1
Section 1.2 Other Offices 1
ARTICLE II -- STOCKHOLDERS' MEETINGS 1
Section 2.1 Place of Meetings 1
Section 2.2 Annual Meetings 1
Section 2.3 Substitute Annual Meeting 2
Section 2.4 Calling of Special Stockholders Meetings 2
Section 2.5 Notice of Meetings. 2
Section 2.6 Quorum 2
Section 2.7 Voting of Shares 3
Section 2.8 Proxies. 3
Section 2.9 Presiding Officer 3
Section 2.10 Adjournments 3
Section 2.11 Action of Stockholders Without a Meeting 3
ARTICLE III -- THE BOARD OF DIRECTORS 4
Section 3.1 General Powers 4
Section 3.2 Number, Election and Terms 4
Section 3.3 Newly Created Directorships and Vacancies 4
Section 3.4 Removal 5
Section 3.5 Compensation 5
Section 3.6 Committees of the Board of Directors 5
Section 3.7 Director Conflicts of Interest 6
Section 3.8 Honorary and Advisory Directors 6
Section 3.9 Chairman of the Board 6
ARTICLE IV -- NOMINATIONS OF DIRECTOR CANDIDATES 7
Section 4.1 Eligibility to Make Nominations 7
Section 4.2 Procedure for Nominations by the Board of Directors
7
Section 4.3 Procedure for Nominations by Stockholders 7
Section 4.4 Substitution of Nominees 7
Section 4.5 Determination of Compliance with Procedures 7
ARTICLE V -- MEETINGS OF THE BOARD OF DIRECTORS 8
Section 5.1 Regular Meetings 8
Section 5.2 Special Meetings. 8
Section 5.3 Place of Meetings. 8
Section 5.4 Notice of Meetings 8
Section 5.5 Quorum. 8
Section 5.6 Vote Required for Action 8
Section 5.7 Participation by Conference Telephone 8
Section 5.8 Action by Directors Without a Meeting 9
Section 5.9 Presumption of Assent 9
Section 5.10 Adjournments 9
ARTICLE VI -- NOTICE AND WAIVER 9
Section 6.1 Procedure 9
Section 6.2 Waiver 9
ARTICLE VII -- OFFICERS 9
Section 7.1 Number 9
Section 7.2 Election and Term 10
Section 7.3 Compensation 10
Section 7.4 Removal 10
Section 7.5 Omitted 10
Section 7.6 President 10
Section 7.7 Vice Presidents 10
Section 7.8 Secretary 10
Section 7.9 Treasurer 10
Section 7.10 Assistant Secretary and Assistant Treasurer 11
Section 7.11 Bonds 11
ARTICLE VIII -- DIVIDENDS 11
Section 8.1 Time and Conditions of Declaration 11
Section 8.2 Reserves 11
Section 8.3 Share Dividends -- Treasury Shares 11
Section 8.4 Share Dividends -- Unissued Shares 11
Section 8.5 Share Splits 11
ARTICLE IX -- SHARES 11
Section 9.1 Authorization and Issuance of Shares 11
Section 9.2 Share Certificates 12
Section 9.3 Rights of Corporation with Respect to Registered
Owners 12
Section 9.4 Transfers of Shares 12
Section 9.5 Duty of Corporation to Register Transfer 12
Section 9.6 Lost, Stolen or Destroyed Certificates 13
Section 9.7 Fixing of Record Date 13
Section 9.8 Record Date if None Fixed 13
ARTICLE X -- MISCELLANEOUS 13
Section 10.1 Inspection of Books and Records 13
Section 10.2 Fiscal Year 13
Section 10.3 Seal 14
Section 10.4 Annual Statements 14
Section 10.5 Voting Shares of Stock in Other Companies 14
ARTICLE XI -- AMENDMENTS 14
Section 11.1 Power to Amend Bylaws 14
EXCAL ENTERPRISES, INC.
AMENDED AND RESTATED BYLAWS
Article I. OFFICES AND AGENT
Section 1.01 Registered Office and Agent. The corporation shall maintain
a registered office and shall have a registered agent whose business office
is identical with such registered office.
Section 1.02 Other Offices. In addition to its registered office, the
corporation may have offices at such other place or places, within or
without the State of Delaware, as the Board of Directors, may from time to
time appoint or as the business of the corporation may require or make
desirable.
Article II. -- STOCKHOLDERS' MEETINGS
Section 2.01 Place of Meetings. Meetings of the stockholders may be
held at any place within or without the State of Delaware as set forth in
the notice thereof or in the event of a meeting held pursuant to waiver of
notice, as set forth in the waiver, or if no place is so specified, at the
registered office of the corporation.
Section 2.02 Annual Meetings.
(a) The annual meeting of stockholders shall be held within 150 days
following the close of the corporation's fiscal year, on such date and at
such time as the Board of Directors shall select, for the purpose of
electing directors and transacting any and all business that may properly
come before the meeting.
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or
(iii) otherwise properly brought before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of
the corporation, not less than 60 days prior to the meeting. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual
meeting, (ii) the name and address, as they appear on the corporation's
books, of the stockholder proposing such business, (iii) the class and
number of shares of the corporation which are beneficially owned by the
stockholder, and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this Bylaw Section 2.2(b). The Chairman of an
annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this Bylaw Section 2.2(b) and if he
should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Section 2.03 Substitute Annual Meeting. If the annual meeting of
stockholders is not held on the day designated in Section 2.2(a), any
business, including the election of directors, which might properly have
been acted upon at that meeting may be acted upon at any subsequent
stockholders' meeting held pursuant to these Bylaws or held pursuant to a
court order requiring a substitute annual meeting.
Section 2.04 Calling of Special Stockholders Meetings. Subject 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, special meetings
of stockholders of the corporation may be called only by the Chairman of
the Board, by the Board of Directors pursuant to a resolution approved by a
majority of the entire Board of Directors or by written requests signed,
dated and delivered to the Secretary of the corporation by the holders of
record of at least 35% of all the votes entitled to be cast on the issues
proposed to be considered at the meeting and describing the purposes for
which it is to be held.
Section 2.05 Notice of Meetings. Unless waived as contemplated in
Section 6.2 or by attendance at the meeting, either in person or by proxy,
for any purpose other than to object to the transaction of business, a
written or printed notice of each stockholders' meeting stating the place,
day and hour of the meeting shall be delivered not less than ten (10) days
nor more than sixty (60) days before the date thereof, either personally or
by first class mail, by or at the direction of the Chairman of the Board of
Directors, the President, the Secretary, or the officer or persons calling
the meeting, to each stockholder of record entitled to vote at such
meeting. If the notice is mailed at least thirty (30) days before the date
of the meeting, it may be done by a class of United States mail other than
first class. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation with
postage thereon prepaid. In the case of an annual or substitute annual
meeting, the notice of the meeting need not state the purpose or purposes
of the meeting unless the purpose or purposes constitute a matter which the
General Corporation Law of the State of Delaware requires to be stated in
the notice of the meeting. In the case of a special meeting, the notice of
meeting shall state the purpose or purposes for which the meeting is
called.
Section 2.06 Quorum. At all meetings of the stockholders the presence,
in person or by proxy, of the holders of more than one-half of the shares
outstanding and entitled to vote shall constitute a quorum. If a quorum is
present, a majority of the shares outstanding and entitled to vote which
are represented at any meeting shall determine any matter coming before the
meeting unless a different vote is required by statute, by the articles of
incorporation or by these bylaws. The stockholders at a meeting at which a
quorum is once present may continue to transact business at the meeting or
at any adjournment thereof, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.07 Voting of Shares. Each outstanding share having voting
rights shall be entitled to one vote on each matter submitted to a vote at
a meeting of stockholders. Voting on all matters shall be by voice vote or
by show of hands unless any qualified voter, prior to the voting on any
matter, demands vote by ballot, in which case each ballot shall state the
name of the stockholder voting and the number of shares voted by him, and
if such ballot be cast by proxy, it shall also state the name of such
proxy.
Section 2.08 Proxies. A stockholder entitled to vote pursuant to
Section 2.7 may vote in person or by proxy executed in writing by the
stockholder or by his attorney in fact. A proxy shall not be valid after
eleven (11) months from the date of its execution, unless a longer period
is expressly stated therein. If the validity of any proxy is questioned it
must be submitted to the secretary of the stockholders' meeting for
examination or to a proxy officer or committee appointed by the person
presiding at the meeting. The secretary of the meeting or, if appointed,
the proxy officer or committee, shall determine the validity or invalidity
of any proxy submitted and reference by the secretary in the minutes of the
meeting to the regularity of a proxy shall be received as prima facie
evidence of the facts stated for the purpose of establishing the presence
of a quorum at such meeting and for all other purposes.
Section 2.09 Presiding Officer. The Chairman of the Board of
Directors, or in his absence, the President shall serve as the chairman of
every stockholders' meeting unless some other person is elected to serve as
chairman by a majority vote of the shares represented at the meeting. The
chairman shall appoint such persons as he deems required to assist with the
meeting.
Section 2.10 Adjournments. When a quorum is once present to organize a
meeting, any meeting of the stockholders may be adjourned by the holders of
a majority of the voting shares represented at the meeting to reconvene at
a specific time and place notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. It shall not be necessary to
give any notice of the reconvened meeting or of the business to be
transacted if the time and place of the reconvened meeting are announced at
the meeting which was adjourned. At any such reconvened meeting, any
business may be transacted which could have been transacted at the meeting
which was adjourned.
If, however, after the adjournment the board fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given
in compliance with Section 2.5 to each stockholder of record on the new
record date entitled to vote at such meeting.
Section 2.11 Action of Stockholders Without a Meeting. Except as
limited by the General Corporation Law of the State of Delaware, any action
required by the General Corporation Law of the State of Delaware to be
taken at a meeting of stockholders or any action which may be taken at a
meeting of the stockholders may be taken without a meeting if written
consent, setting forth the action so taken, shall be signed by not less
than fifty-one percent (51%) of all stockholders entitled to vote with
respect to the subject matter thereof. Upon filing with the officer of the
corporation having custody of its books and records, such consent shall
have the same force and effect as a unanimous vote of the stockholders at a
special meeting called for the purpose of considering the action
authorized.
Article III. -- THE BOARD OF DIRECTORS
Section 3.01 General Powers. The business and affairs of the
corporation shall be managed by the Board of Directors. In addition to the
Powers and authority expressly conferred upon it by these bylaws, the Board
of Directors may exercise all such powers of the corporation and do all
such lawful acts and things as are not by law, by any legal agreement among
stockholders, by the articles of incorporation or by these bylaws directed
or required to be exercised or done by the stockholders.
Section 3.02 Number, Election and Terms. Except as otherwise fixed by
or pursuant to the provisions of Article IV of the 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 the Directors of the corporation shall be not less than three
nor more than 10, as determined from time to time by the Board of
Directors. Directors need not be stockholders. The Directors, other than
those who may be elected by the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation, shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, as determined by the Board of Directors of the corporation, one
class to be originally classified for a term expiring at the annual meeting
of stockholders to be held in 1996, and another class to be originally
classified for a term expiring at the annual meeting of stockholders to be
held in 1997 and another class to be originally classified for a term
expiring at the annual meeting of stockholders to be held in 1998, with
each director to hold office until his or her successor is duly elected and
qualified. At each annual meeting of the stockholders of the corporation,
the successors of the class of Directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting
of stockholders held in the third year following the year of their
election.
Section 3.03 Newly Created Directorships and Vacancies. Except as
otherwise provided for or fixed by or pursuant to the provisions of Article
IV of the 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 Directors under
specified circumstances, newly created directorships resulting from any
increase in the number of Directors and any vacancies on the Board of
Directors resulting from death, resignation, disqualification, removal or
other cause shall be filled only by the affirmative vote of a majority of
the remaining Directors then in office, even though less than a quorum of
the Board of Directors. Any Director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of
the class of Directors in which the new directorship was created or the
vacancy occurred and until such Director's successor shall have been duly
elected and qualified. No decrease in the number of Directors constituting
the Board of Directors shall shorten the term of any incumbent Director.
Section 3.04 Removal. Subject to the rights of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect Directors under specified circumstances, any Director
may be removed from office, with our without cause, only by the affirmative
vote of the holders of 75% of the voting power of all shares of the
corporation entitled to vote generally in the election of Directors, voting
together as a single class.
Section 3.05 Compensation. Directors may receive such compensation for
their services as directors as may from time to time be fixed by vote of
the Board of Directors. A director may also serve the corporation in a
capacity other than that of director and receive compensation, as
determined by the Board of Directors, for services rendered in such other
capacity.
Section 3.06 Committees of the Board of Directors. The Board of
Directors by resolution adopted by a majority of the full Board of
Directors may designate from among its members an executive committee and
one or more other committees, each consisting of one or more directors.
The Board of Directors, by resolution adopted upon the creation of a
committee in accordance with this Section or thereafter, may designate one
or more directors as alternate members of any such committee, who may act
in the place and stead of any absent member or members at any meeting of
such committee. Each committee shall have the authority set forth in the
resolution establishing such committee, except as prohibited by law, and
except that no committee shall have the authority to:
(a) approve or recommend to stockholders actions or proposals required
by law to be approved by the stockholders of the corporation;
(b) designate candidates for the office of director;
(c) fill vacancies on the Board of Directors or any committee thereof;
(d) amend these Bylaws;
(e) authorize or approve the reacquisition of shares of the
corporation unless pursuant to a general formula or method specified by the
Board of Directors; or
(f) authorize or approve the issuance or sale of, or any contract to
issue or sell, shares, except that the Board of Directors, having acted
regarding general authorization for the issuance or sale of shares, or any
contract therefor, may, pursuant to a general formula or method specified
by the Board of Directors, by resolution or by adoption of a stock option
or other plan, authorize a committee to fix the terms of any contract for
the sale of the shares, and to fix the terms upon which such shares may be
issued or sold, including, without limitation, the price, with full power
in such committee to adopt any final resolution setting forth all the terms
thereof.
Section 3.07 Director Conflicts of Interest.
(a) No contract or other transaction between this corporation and one
or more of its directors or any other corporation, firm, association, or
entity in which one or more of the directors are directors or officers, or
are financially interested, shall be either void or voidable because of
such relationship or interest or because such director or directors are
present at the meeting of the Board of Directors or a committee thereof
which authorizes, approves, or ratifies such contract or transaction or
because his or their votes are counted for such purpose if:
(i) the fact of such relationship or interest is disclosed or known to
the Board of Directors or the Committee thereof which authorizes, approves,
or ratifies the contract or transaction by a vote or consent sufficient for
the purpose without counting the votes or consents of such interested
director or directors; or
(ii) the fact of such relationship or interest is disclosed or known to
the stockholders entitled to vote, and they authorize, approve, or ratify
such contract or transaction by vote or written consent; or
(iii) the contract or transaction is fair and reasonable as to the
corporation at the time it is authorized by the Board of Directors or a
committee thereof, or by the stockholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or
transaction.
Section 3.08 Honorary and Advisory Directors. The Board of Directors
of the corporation may also appoint any individual as Honorary Director,
Director Emeritus or member of any advisory board established by the Board
of Directors. Any individual becoming an Honorary Director, Director
Emeritus or member of an advisory board as provided by this Section 3.8 may
be compensated as provided in Section 3.5, but such individual may not vote
at any meeting of the Board of Directors or participate in any manner in
any meeting of the Board of Directors other than giving general policy
advice and shall not have any responsibility or be subject to any liability
imposed upon a director or otherwise be deemed a director.
Section 3.09 Chairman of the Board. The Board of Directors shall elect
a Chairman of the Board from among its members who shall serve at the will
of the Board of Directors and until his successor has been elected and
qualified or until his earlier death, resignation, removal, retirement, or
disqualification. The Chairman of the Board of Directors shall call
meetings of the stockholders, the Board of Directors and the Executive
Committee to order and shall act as chairman of such meetings. The
Chairman of the Board of Directors shall perform such other duties as the
directors may direct from time to time.
Article IV. -- NOMINATIONS OF DIRECTOR CANDIDATES
Section 4.01 Eligibility to Make Nominations. Nominations of
candidates for election as directors of the corporation at any meeting of
stockholders called for election of directors, in whole or in part (an
"Election Meeting"), may be made by the Board of Directors or by any
stockholder entitled to vote at such Election Meeting.
Section 4.02 Procedure for Nominations by the Board of Directors.
Nominations made by the Board of Directors shall be made at a meeting of
the Board of Directors, or by written consent of directors in lieu of a
meeting, not less than sixty days prior to the date of the Election
Meeting. At the request of the Secretary of the corporation, each proposed
nominee shall provide the corporation with such information concerning
himself as is required under the rules of the Securities and Exchange
Commission ("SEC"), to be included in the corporation's proxy statement
soliciting proxies for his election as a director.
Section 4.03 Procedure for Nominations by Stockholders. Not less than
60 days prior to the date of the Election Meeting any stockholder who
intends to make a nomination at the Election Meeting shall deliver a notice
to the Secretary of the corporation setting forth (i) the name, age,
business address and residence address of each nominee proposed in such
notice, (ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of capital stock of the corporation which are
beneficially owned by each such nominee and (iv) such other information
concerning each such nominee as would be required, under the rules of the
SEC, in a proxy statement soliciting proxies for the election of such
nominees. Such notice shall include a signed consent to serve as a
director of the corporation, if elected, of each such nominee.
Section 4.04 Substitution of Nominees. In the event that a person is
validly designated as a nominee in accordance with Section 4.2 or Section
4.3 hereof and shall thereafter become unable or unwilling to stand for
election to the Board of Directors, the Board of Directors or the
stockholder who proposed such nominee, as the case may be, may designate a
substitute nominee.
Section 4.05 Determination of Compliance with Procedures. If the
Chairman of the Election Meeting determines that a nomination was not made
in accordance with the foregoing procedures, such nomination shall be void.
Article V. -- MEETINGS OF THE BOARD OF DIRECTORS
Section 5.01 Regular Meetings. Regular meetings of the Board of
Directors shall be held immediately after the annual meeting of
stockholders or any meeting held in lieu thereof. In addition, the Board
of Directors may schedule other meetings to occur at regular intervals
throughout the year.
Section 5.02 Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board
of Directors, or in his absence, by the President, or by any two directors
in office at that time.
Section 5.03 Place of Meetings. Directors may hold their meetings at
any place within or without the state of Delaware as the Board of Directors
may from time to time establish for regular meetings or as set forth in the
notice of special meetings or, in the event of a meeting held pursuant to
waiver of notice, as set forth in the waiver.
Section 5.04 Notice of Meetings. No notice shall required for any
regularly scheduled meeting of the directors the corporation. Unless
waived as contemplated in Section 6.2 the Chairman of the Board of
Directors or the Secretary of the corporation or any director thereof shall
give notice to each director of each special meeting stating the time,
place and purposes of the meeting. Such notice shall be given by mailing
notice of the meeting at least three (3) days before the date the meeting,
or by telegram or cablegram at least two (2) days before the date of the
meeting, or by telephone or personal delivery at least two (2) hours before
the date of the meeting. Notice shall be deemed to have been given by
telegram or cablegram at the time notice is filed with the transmitting
agency. Attendance by a director at a meeting shall constitute waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of business because the
meeting is not lawfully called.
Section 5.05 Quorum. At meetings of the Board of Directors, more than
one-half of the directors then in office shall be necessary to constitute a
quorum for the transaction business.
Section 5.06 Vote Required for Action. Except as otherwise provided in
these bylaws or by law, the act of majority of the directors present at a
meeting at which a quorum is present at the time shall be the act of the
Board of Directors.
Section 5.07 Participation by Conference Telephone. Members of the
Board of Directors, or members of any committee designated by the Board of
Directors, may participate in meeting of the Board of Directors or of such
committee by means of conference telephone or similar communications
equipment through which a persons participating in the meeting can hear
each other Participation in a meeting pursuant to this Section 5.7 shall
constitute presence in person at such meeting.
Section 5.08 Action by Directors Without a Meeting. Any action
required or permitted to be taken at any meeting of the Board of Directors
or any action which may be taken at a meeting of a committee of directors
may be taken without a meeting if a written consent thereto shall be signed
by all the directors, or all the members of the committee, as the case may
be, and if such written consent is filed with the minutes of the
proceedings of the Board of Directors or the committee. Such consent shall
have the same force and effect as a unanimous vote of the Board of
Directors or the committee.
Section 5.09 Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors, or at a meeting of a
committee thereof of which he is a member, at which action on any corporate
matters is taken, shall be presumed to have assented to the action taken
unless he votes against such action, or abstains from voting in respect
thereto, because of an asserted conflict of interest.
Section 5.10 Adjournments. A meeting of the Board of Directors,
whether or not a quorum is present, may be adjourned by a majority of the
directors present to reconvene at a specific time and place. It shall not
be necessary to give notice of the reconvened meeting or of the business to
be transacted, other than by announcement at the meeting which was
adjourned. At any such reconvened meeting at which a quorum is present,
any business may be transacted which could have been transacted at the
meeting which was adjourned.
Article VI. -- NOTICE AND WAIVER
Section 6.01 Procedure. Whenever these bylaws require notice to be
given to any stockholder or director, the notice shall be given as
prescribed in Sections 2.5 or 5.4 for any stockholder or director
respectively. Whenever notice is given to a stockholder or director by
mail, the notice shall be sent first class mail (except as otherwise
provided in Section 2.5) by depositing the same in a post office or letter
box in a postage prepaid sealed envelope addressed to the stockholder or
director at his address as it appears on the books of the corporation, and
such notice shall be deemed to have been given at the time the same is
deposited in the United States mail.
Section 6.02 Waiver. Except as limited by the General Corporation Law
of the State of Delaware, whenever any notice is required to be given to
any stockholder or director by law, by the articles of incorporation or by
these bylaws, a waiver thereof in writing signed by the director or
stockholder entitled to such notice or by the proxy of such stockholder,
whether before or after the meeting to which the waiver pertains, shall be
deemed equivalent thereto.
Article VII. -- OFFICERS
Section 7.01 Number. The executive officers of the corporation shall
consist of a President, one or more Vice Presidents as determined or
designated by the Board of Directors, a Secretary and a Treasurer. The
Board of Directors shall from time to time create and establish the duties
of such other officers and elect or provide for the appointment of such
other officers or assistant officers as it deems necessary for the
efficient management of the corporation, but the corporation shall not be
required to have at any time any officers other than a President, Secretary
and Treasurer. Any two or more off ices may be held by the same person.
Section 7.02 Election and Term. All officers shall be elected by the
Board of Directors and shall serve at the will of the Board of Directors
and until their successors have been elected and have qualified or until
their earlier death, resignation, removal, retirement or disqualification.
Section 7.03 Compensation. The compensation of all executive officers
of the corporation shall be fixed by the Board of Directors.
Section 7.04 Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation will be served thereby.
Section 7.05 Omitted.
Section 7.06 President. The President shall have general supervision
of the business of the corporation. He shall see that all orders and
resolutions of the Board of Directors are carried into effect. The
President shall perform such other duties as may from time to time be
delegated to him by the Board of Directors.
Section 7.07 Vice Presidents. A Vice President shall, in the absence or
disability of the President, or at the direction of the President, perform
the duties and exercise the powers of the President. If the corporation
has more than one Vice President, the one designated by the Board of
Directors shall act in lieu of the President. Vice Presidents shall
perform whatever duties and have whatever powers the Board of Directors may
from time to time assign.
Section 7.08 Secretary. The Secretary shall keep accurate records of
the acts and proceedings of all meetings of stockholders, directors, and
committees of directors. He shall have authority to give all notices
required by law or these bylaws. He shall be responsible for the custody
of the corporate books, records, contracts, and other documents. The
Secretary may affix the corporate seal to any lawfully executed documents
requiring it and shall sign such instruments as may require his signature.
The Secretary shall perform whatever additional duties and have whatever
additional powers the Board of Directors may from time to time assign him.
Section 7.09 Treasurer. The Treasurer shall be responsible for the
custody of all funds and securities belonging to the corporation and for
the receipt, deposit, or disbursement of such funds and securities under
the direction of the Board of Directors. The Treasurer shall cause full
and true accounts of all receipts and disbursements to be maintained and
shall make such reports of the same to the Board of Directors and President
upon request. The Treasurer shall perform all duties as may be assigned to
him from time to time by the Board of Directors.
Section 7.10 Assistant Secretary and Assistant Treasurer. The Assistant
Secretary and Assistant Treasurer shall, in the absence or disability of
the Secretary or the Treasurer, respectively, perform the duties and
exercise the powers of those offices, and they shall, in general, perform
such other duties as shall be assigned to them by the Board of Directors.
Specifically, the Assistant Secretary may affix the corporate seal to all
necessary documents and attest the signature of any officer of the
corporation.
Section 7.11 Bonds. The Board of Directors may by resolution require
any or all of the officers, agents, or employees of the corporation to give
bonds to the corporation, with sufficient surety or sureties, conditioned
on the faithful performance of the duties of their respective offices or
positions, and to comply with such other conditions as may from time to
time be required by the Board of Directors.
Article VIII. -- DIVIDENDS
Section 8.01 Time and Conditions of Declaration. Dividends upon the
outstanding shares of the corporation may be declared by the Board of
Directors at any regular or special meeting and paid in cash or property
only out of the unreserved and unrestricted earned surplus of the
corporation.
Section 8.02 Reserves. Before the payment of any dividend or the
making of any distribution of profit, there shall be set aside out of the
earned surplus of the corporation such sums as the Board of Directors from
time to time in its absolute discretion deems proper as a reserve fund to
meet contingencies, to pay and discharge indebtedness, or to fulfill other
purposes which the Board of Directors shall deem to be in the best interest
of the corporation.
Section 8.03 Share Dividends -- Treasury Shares. Dividends may be
declared by the Board of Directors and paid in any treasury shares of the
corporation.
Section 8.04 Share Dividends -- Unissued Shares. Dividends may be
declared by the Board of Directors and paid in the authorized but unissued
shares of the corporation out of an unreserved and unrestricted surplus of
the corporation; provided that such shares shall be issued at not less than
the par value thereof, and there shall be transferred to stated capital at
the time such dividend is paid an amount of surplus at least equal to the
aggregate par value of the shares to be issued as a dividend.
Section 8.05 Share Splits. A split or division of the issued shares of
any class into a greater number of shares of the same class without
increasing the stated capital of the corporation shall not be construed to
be a share dividend within the meaning of this Article.
Article IX. -- SHARES
Section 9.01 Authorization and Issuance of Shares. The par value and
the maximum number of shares of any class of the corporation which may be
issued and outstanding shall be se forth from time to time in the articles
of incorporation of the corporation. The Board of Directors may increase
or decrease the number of issued and outstanding shares of the corporation
within the maximum authorized by the articles of incorporation and the
minimum requirements of the articles of incorporation or Delaware law.
Section 9.02 Share Certificates. The interest of each stockholder in
the corporation shall be evidenced by certificate or certificates
representing shares of the corporation which shall be in such form as the
Board of Directors may from time to time adopt in accordance with Delaware
law. Share certificates shall be consecutively numbered, shall be
registered form, and shall indicate the date of issue and a such
information shall be entered on the corporation's books. Each certificate
shall be signed by the President or a Vice President and the Secretary or
an Assistant Secretary and shall be sealed with the seal of the corporation
or a facsimile thereof; provided, however, that where such certificate is
sign by a transfer agent, or registered by a registrar, the signatures of
such officers may be facsimiles. In case any officer officers who shall
have signed or whose facsimile signature shall have been placed upon a
share certificate shall have ceased for any reason to be such officer or
officers of the corporate before such certificate is issued, such
certificate may be issued by the corporation with the same effect as if the
person or persons who signed such certificate or whose facsimile signatures
shall have been used thereon had not ceased to be such officer or officers.
Section 9.03 Rights of Corporation with Respect to Registered Owners.
Prior to due presentation for transfer of registration of its shares, the
corporation may treat the registered owner of the shares as the person
exclusively entitled to vote such shares, to receive any dividend or other
distribution with respect to such shares, and for all other purposes; and
the corporation shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
Section 9.04 Transfers of Shares. Transfers of shares shall be made
upon the transfer books of the corporation, kept at the office of the
transfer agent designated to transfer the shares, only upon direction of
the person named in the certificate, or by an attorney lawfully constituted
in writing; and before a new certificate is issued, the old certificate
shall be surrendered for cancellation or, in the case of a certificate
alleged to have been lost, stolen, or destroyed, the provisions of Section
9.6 of these bylaws shall have been complied with.
Section 9.05 Duty of Corporation to Register Transfer. Notwithstanding
any of the provisions of Section 9.4 of these bylaws, the corporation is
under a duty to register the transfer of its shares only if:
(a) the share certificate is endorsed by the appropriate person or
persons; and
(b) reasonable assurance is given that the endorsements are genuine
and effective; and
(c) the corporation has no duty to inquire into adverse claims or has
discharged any such duty; and
(d) any applicable law relating to the collection of taxes has been
complied with; and
(e) the transfer is in fact rightful or is to a bona fide purchaser.
Section 9.06 Lost, Stolen or Destroyed Certificates. Any person
claiming a share certificate to be lost, stolen or destroyed shall make an
affidavit or affirmation of the fact in such manner as the Board of
Directors may require and shall, if the Board of Directors so requires,
give the corporation a bond of indemnity in form and amount, and with one
or more sureties satisfactory to the Board of Directors, as the Board of
Directors may require, whereupon an appropriate new certificate may be
issued in lieu of the one alleged to have been lost, stolen or destroyed.
Section 9.07 Fixing of Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of
any dividend, or in order to make a determination of stockholders for any
other proper purpose, the Board of Directors may fix in advance a date as
the record date, such date to be not more than sixty (60) days (and, in the
case of a stockholders' meeting, not less than ten (10) days) prior to the
date on which the particular action, requiring such determination of
stockholders, is to be taken.
Section 9.08 Record Date if None Fixed. If no record date is fixed, as
provided in Section 9.7 of these bylaws, then the record date for any
determination of stockholders which may be proper or required by law shall
be the date on which notice is mailed, in the case of a stockholders'
meeting; the date on which the Board of Directors adopts a resolution
declaring a dividend, in the case of a payment of a dividend; and the date
on which any other action, the consummation of which requires a
determination of stockholders, is to be taken.
Article X. -- MISCELLANEOUS
Section 10.01 Inspection of Books and Records. The Board of Directors
shall have power to determine which accounts, books and records of the
corporation shall be opened to the inspection of stockholders, except such
as may by law be specifically open to inspection, and shall have power to
fix reasonable rules and regulations not in conflict with the applicable
law for the inspection of accounts, books and records which by law or by
determination of the Board of Directors shall be open to inspection.
Section 10.02 Fiscal Year. The Board of Directors is authorized to fix
the fiscal year of the corporation and to change the same from time to time
as it deems appropriate.
Section 10.03 Seal. The corporate seal shall be in such form as the
Board of Directors may from time to time determine.
Section 10.04 Annual Statements. Not later than four (4) months after
the close of each fiscal year, and in any case prior to the next annual
meeting of stockholders, the corporation shall prepare (a) a balance sheet
showing in reasonable detail the financial condition of the corporation as
of the close of its fiscal year, and (b) a profit and loss statement
showing the results of its operations during its fiscal year. Upon receipt
of written request, the corporation promptly shall mail to any stockholder
of record a copy of the most recent such balance sheet and profit and loss
statement.
Section 10.05 Voting Shares of Stock in Other Companies. The Board of
Directors or the executive committee, if one has been established, may
authorize any officer or officers, agent or agents, to attend any annual or
special stockholders meeting of any company in which the corporation owns
voting stock, and to vote such shares in person or by proxy on the
corporation's behalf, or to execute on behalf of the corporation any
written action by the stockholders of such other company.
Article XI. -- AMENDMENTS
Section 11.01 Power to Amend Bylaws. Subject to the provisions of the
Certificate of Incorporation, these Bylaws may be altered, amended or
repealed by a majority vote of the shares entitled to vote at a meeting of
the shareholders; provided however, that the affirmative vote of at least
75% of the shares entitled to vote at such meeting shall be required to
alter, amend or repeal sections 2.2(b), 2.4, 3.2, 3.3, 3.4, 4.3, 4.4, 4.5,
or 4.6 of these Bylaws. Subject to the laws of the State of Delaware, the
Certificate of Incorporation and these Bylaws, the Board of Directors may
amend these Bylaws or enact such other Bylaws as in their judgment may be
advisable for the regulation of the conduct of the affairs of the
corporation by a majority vote of those directors then holding office.
1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT BETWEEN EXCAL ENTERPRISES,
INC. AND REGISTRAR AND TRANSFER COMPANY DATED AS OF APRIL 18, 1994
Pursuant to Section 27 of the Rights Agreement (the "Agreement")
dated as of April 18, 1994 between Excal Enterprises, Inc., a
Delaware corporation, formerly known as Assix International, Inc.
(the "Company") and Registrar and Transfer Company, as Rights
Agent, the Agreement is hereby amended as follows:
1. The first sentence of Section 1(a) of the Agreement is
hereby amended in its entirety to read as follows:
"Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together
with all Affiliates (as hereinafter defined)
and Associates (as hereinafter defined) of
such Person, shall be the Beneficial Owner
(as hereinafter defined) of 15% or more of
the outstanding Common Stock, provided that
an Acquiring Person shall not include an
Exempt Person (as hereinafter defined), and
further provided that any Person who,
together with all Affiliates and Associates
of such Person, is the Beneficial Owner of
15% or more of the outstanding Common Stock
on the date of this Agreement, shall not be
an Acquiring Person unless and until such
person, together with all Affiliates and
Associates of such Person, shall become the
Beneficial Owner of any additional shares of
Common Stock other than pursuant to a
dividend or distribution paid or made pro
rata to all holders of Common Stock or
pursuant to the award of any equity-based
compensation for services rendered as an
employee or director of the Company,
including the grant or exercise of stock
options or warrants.
2. All other provisions of the Agreement shall remain in full
force and effect.
3. This amendment shall be deemed a contract made under the
laws of the State of Delaware and shall be governed by and
construed in accordance with the laws of such state. This
amendment may be executed in one or more counterparts.
EXCAL ENTERPRISES, INC. REGISTRAR AND TRANSFER COMPANY
By: By:
SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
BY AND BETWEEN EXCAL ENTERPRISES, INC. AND
W. CAREY WEBB
This Second Amendment to Employment Agreement is made and
entered into as of the 22nd day of December, 1998 by and between
Excal Enterprises, Inc. (the "Company") and W. Carey Webb
("Employee").
WHEREAS, the Company, formerly known as Assix International,
Inc., and Employee are parties to that certain Employment
Agreement dated as of August 15, 1994, as amended by that certain
First Amendment to Employment Agreement by and between Excal
Enterprises, Inc. and Carey Webb dated as of April 3, 1996 (the
"Employment Agreement");
WHEREAS, the Company and the Employee now desire to further
amend the Employment Agreement to extend the term of the
Employment Agreement for an additional five year term;
NOW, THEREFORE, the parties hereto agree as follows:
1. Extension of Term. Section 2.1 of the Agreement shall be
amended so that the term "Scheduled Termination Date" means
August 15, 2004 and shall read as follows:
2.1 Term. The term of Employee's employment
hereunder (the "Term") shall commence as of the date
hereof (the "Commencement Date") and shall continue
through the tenth anniversary of the Commencement Date
(the "Scheduled Termination Date") unless earlier
terminated pursuant to the provisions of this
Agreement.
2. Validity of Remainder of Employment Agreement. All other
provisions of the Employment Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Second Amendment as of the date first above written.
EXCAL ENTERPRISES, INC. EMPLOYEE
By
Title: W. CAREY WEBB
THIRD AMENDMENT TO EMPLOYMENT AGREEMENT
BY AND BETWEEN EXCAL ENTERPRISES, INC. AND
R. PARK NEWTON, III
This Third Amendment to Employment Agreement is made and
entered into as of the 22nd day of December, 1998 by and between
Excal Enterprises, Inc. (the "Company") and R. Park Newton, III
("Employee").
WHEREAS, the Company, formerly known as Assix International,
Inc., and Employee are parties to that certain Employment
Agreement dated as of March 1, 1994, as amended by that certain
Amendment to Employment Agreement by and between R. Park Newton
and Assix International, Inc. dated as of August 15, 1994 and
that certain Second Amendment to Employment Agreement by and
between Excal Enterprises, Inc. and R. Park Newton III dated as
of April 3, 1996 (the "Employment Agreement");
WHEREAS, the Company and the Employee now desire to further
amend the Employment Agreement to extend the term of the
Employment Agreement for an additional five year term;
NOW, THEREFORE, the parties hereto agree as follows:
1. Extension of Term. Section 2.1 of the Agreement shall be
amended so that the term "Scheduled Termination Date" means March
1, 2004 and shall read as follows:
2.1 Term. The term of Employee's employment
hereunder (the "Term") shall commence as of the date
hereof (the "Commencement Date") and shall continue
through the tenth anniversary of the Commencement Date
(the "Scheduled Termination Date") unless earlier
terminated pursuant to the provisions of this
Agreement.
2. Validity of Remainder of Employment Agreement. All other
provisions of the Employment Agreement shall remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Third Amendment as of the date first above written.
EXCAL ENTERPRISES, INC. EMPLOYEE
By
Title: R. PARK NEWTON
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 28th day of
September, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware
corporation formerly known as Assix International, Inc. (the "Company"),
and TIMOTHY R. BARNES, an employee of the Company (the "Optionee").
W I T N E S S E T H :
WHEREAS, on September 28, 1998, the Board of Directors of the
Company (the "Board") approved the grant to the Optionee of certain stock
options to purchase shares of Common Stock; and,
WHEREAS, the option granted under this Agreement is not intended
to constitute an incentive stock option, as defined in Section 422 of the
Internal Revenue Code of 1986, as amended ("Nonqualified Stock Option");
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. 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 21,712 shares of Common Stock (hereinafter referred to
as the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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, subject to
the limitations set forth in Section 8 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 6, 2005, 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 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, 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:
Title:President/CEO
OPTIONEE:
TIMOTHY R. BARNES
1
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, is made and entered into as of this 28th day of
September, 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, the Board of Directors of the Company (the "Board")
granted a stock option on June 10, 1994 to purchase 35,000 shares of the
Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the tax
obligation with shares issuable to the Optionee from the exercise of the
option; 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. 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 12,290 shares of Common Stock (hereinafter referred to
as the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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
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:
Title: Vice President/CFO
OPTIONEE:
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 28th day of
September, 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, the Board of Directors of the Company (the "Board")
granted a stock option on September 10, 1997 to purchase 10,000 shares of
the Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the tax
obligation with shares issuable to the Optionee from the exercise of the
option; 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. 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 158 shares of Common Stock (hereinafter referred to as
the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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
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:
Title: Vice President/CFO
OPTIONEE:
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 28th day of
September, 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, the Board of Directors of the Company (the "Board")
granted a stock option on September 10, 1997 to purchase 10,000 shares of
the Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the tax
obligation with shares issuable to the Optionee from the exercise of the
option; 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. 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 158 shares of Common Stock (hereinafter referred to as
the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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 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:
Title: Vice President/CFO
OPTIONEE:
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 28th day of
September, 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, the Board of Directors of the Company (the "Board")
granted a stock option on June 10, 1994 to purchase 60,000 shares of the
Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the tax
obligation with shares issuable to the Optionee from the exercise of the
option; 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. 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 19,578 shares of Common Stock (hereinafter referred to
as the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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 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:
Title: Vice President/CFO
OPTIONEE:
ARIS NEWTON
EXCAL ENTERPRISES, INC.
WARRANT AGREEMENT
THIS AGREEMENT, made and entered into as of this 1st day of May,
1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation
formerly known as Assix International, Inc. (the "Company"), and Francine
and R. Park Newton, III, an employee and a director of the Company (the
"Holder").
W I T N E S S E T H :
WHEREAS, on December 1, 1989, the Board of Directors of the
Company (the "Board") approved the grant of a warrant to purchase shares of
the Company's common stock, $.001 par value (the "Common Stock"), to the
Holder;
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 warrant granted under this Agreement is not intended
to constitute an incentive 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) Warrant. Subject to the terms and conditions of this
Agreement, the Company confirms the grant to the Holder of a warrant to
purchase from the Company all, or any part, of the aggregate number of
100,000 shares of Common Stock (hereinafter referred to as the "Warrant
Shares," and the warrant to purchase the Warrant Shares referred to as the
"Warrant").
(b) Reload Option. In addition to the Warrant granted
hereby (the "Underlying Warrant"), the Company will grant to the Holder a
reload option (the "Reload Option") if the Holder acquires shares of Common
Stock pursuant to the exercise of the Underlying Warrant and pays for such
shares and/or the tax obligation incurred by reason of the exercise of the
Underlying Warrant (the "withholding taxes") with shares of Common Stock
already owned by, or otherwise issuable to, the Holder (the "Tendered
Shares"). The Reload Option grants to the Holder 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 Warrant 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 November 30, 1999. Except
as provided herein, the Reload Option is subject to all of the other terms
and provisions of this Agreement governing the Warrant.
2. Warrant Price. The price to be paid for the Warrant Shares
shall be $7.425 per share.
3. Time of Exercise. The Warrant is fully exercisable and may
be exercised by the Holder in whole or in part at any time and from time to
time, after the date hereof.
4. Manner of Exercise and Payment. The Warrant may be
exercised only by written notice to the Company by the Holder of the
Holder's intent to exercise the Warrant, delivered to the Company at its
principal office, specifying the number of shares with respect to which the
Warrant 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 Holder a
certificate or certificates for the number of shares of Common Stock in
respect of which the Warrant has been exercised, legended to reflect the
agreements and conditions applicable to such shares referred to in Section
11.
6. Nontransferability of Warrant. The Warrant is not
transferable by the Holder otherwise than by will or the laws of descent
and distribution.
7. Term. The Warrant shall expire on September 9, 2007, and
shall not be exercisable thereafter.
8. Termination of Employment.
(a) The Warrant 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 Holder's
employment with the Company; and
(b) In the event of a Termination upon Change of Control
(as defined in the Employment Agreement dated March 1, 1994 between Holder
and the Company, as amended (the "Employment Agreement")), the Holder shall
have the right to compel the purchase by the Company of the Warrant Shares
at a price per Warrant Share equal to the greater of (i) the average of the
bid and asked prices per share of Common Stock on the day immediately
preceding the Change of Control (as defined in the Employment Agreement),
and (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
Warrant, that the Holder shall pay to the Company upon its demand, or agree
that the Company may withhold from compensation due the Holder, 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 Warrant. If the Holder fails to
comply with this Section 9, the Company may refuse to issue or transfer
shares of Common Stock upon exercise of the Warrant.
(b) With the consent of the Board, the Holder may elect to
have the Company withhold that number of Warrant Shares otherwise issuable
to the Holder upon exercise of the Warrant 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 Holder 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 Warrant Shares shall be adjusted in
a manner consistent with such capital adjustment. The price of any shares
under the Warrant shall be adjusted such that there will be no change in
the aggregate purchase price payable upon exercise of the Warrant. 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 Warrant shall pertain to
the securities and other property to which a holder of the number of shares
of stock covered by the Warrant 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 Warrant 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 Holder
agrees that any certificate representing shares acquired upon exercise of
the Warrant 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 Warrant Shares. The Holder
hereby agrees with the Company that the Holder shall acquire the Warrant
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 Warrant 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 Holder shall not be deemed for
any purposes to be a shareholder of the Company with respect to any of the
Warrant Shares except to the extent that the Warrant 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 Warrant
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
Holder 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 Holder's death prior to exercise
of the Warrant, the Warrant may be exercised by the estate of the Holder 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 Holder has executed this
Agreement as of the day and year first above written.
EXCAL ENTERPRISES, INC.
By:
Title:
HOLDER:
R. PARK NEWTON, III
FRANCINE NEWTON
C:\WP51\DOCS\EXCAL\OPTION3.A10| 2/22/99||JBD:jbd
1
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 1st day of May,
1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation
formerly known as Assix International, Inc. (the "Company"), and R. PARK
NEWTON, an employee and a director of the Company, and Francine Newton, his
wife (collectively, the "Optionee").
W I T N E S E T H :
WHEREAS, on April 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 the
Optionee pursuant to an Employment Agreement dated March 1, 1994, by and
between the Company and R. Park Newton, as amended (the "Employment
Agreement"), which option grant was formally ratified and approved by the
Board on June 10, 1994;
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 200,000 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 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.
(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 R. Park Newton'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 right
to compel the purchase by the Company of the Optioned Shares at a price per
Optioned Share equal to the greater of (i) the average of the bid and asked
prices per share of Common Stock on the day immediately preceding the
Change of Control (as defined in the Employment Agreement), and (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 R. Park Newton,
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, 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:
Title:
OPTIONEE:
R. PARK NEWTON
FRANCINE NEWTON
C:\wp51\docs\excal\option4.Ag2| 2/22/99||jbd
1
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 28th day of
September, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware
corporation formerly known as Assix International, Inc. (the "Company"),
and R. PARK NEWTON, an employee and a director of the Company, and Francine
Newton, his wife, as tenants in their entireties (collectively, the
"Optionee").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company (the "Board")
granted a stock option on June 10, 1994 to purchase 200,000 shares of the
Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the exercise
price with shares previously acquired and held for at least six months and
paid the tax obligation with shares issuable to the Optionee from the
exercise of the option; 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. 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 106,285 shares of Common Stock (hereinafter referred to
as the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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 June 9, 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 Optioned 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:
Title: Vice President/CFO
OPTIONEE:
R. PARK NEWTON
FRANCINE NEWTON
1
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 26th day of
January, 1999, by and between EXCAL ENTERPRISES, INC., a Delaware
corporation formerly known as Assix International, Inc. (the "Company"),
and R. PARK NEWTON, an employee and a director of the Company, and Francine
Newton, his wife (collectively, the "Optionee").
W I T N E S E T H :
WHEREAS, the Board of Directors of the Company (the "Board")
retained Alexander & Alexander to make recommendations regarding the form
and size of bonuses to be paid to certain officers, directors, and
consultants of the Company in connection with their efforts in achieving
settlements with Sears Roebuck & Co. and the Company's institutional
lenders; and,
WHEREAS, on October 18, 1994, the Special Compensation Committee
of the Board approved the recommendations of Alexander & Alexander, which
included an award of non-qualified stock options to the Optionee to
purchase 300,000 shares of the Company's common stock, $.001 par value (the
"Common Stock") at an exercise price of $1.00 per share and that such
options should be exerciseable for a ten-year period from the date of
grant; 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 Non-
qualified Stock Option to purchase from the Company all, or any part, of
the aggregate number of 300,000 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 be fully exercisable as of the Reload Grant Date.
The Reload Option shall expire on January 26, 2009. 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, with a legend 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 January 26, 2009, 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 R. Park Newton'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 right
to compel the purchase by the Company of the Optioned Shares at a price per
Optioned Share equal to the greater of (i) the average of the bid and asked
prices per share of Common Stock on the day immediately preceding the
Change of Control (as defined in the Employment Agreement), and (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 R. Park Newton,
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, 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:
Title:
OPTIONEE:
R. PARK NEWTON
FRANCINE NEWTON
1
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 26th day of
January, 1999, by and between EXCAL ENTERPRISES, INC., a Delaware
corporation formerly known as Assix International, Inc. (the "Company"),
and R. PARK NEWTON, III, an employee and a director of the Company, and
FRANCINE H. NEWTON, his wife, as tenants in their entireties (collectively,
the "Optionee").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company (the "Board")
granted a stock option on January 26, 1999 to purchase 300,000 shares of
the Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the exercise
price with shares previously acquired and held for at least six months and
paid the tax obligation with shares issuable to the Optionee from the
exercise of the option; and,
WHEREAS, the option granted under this Agreement is not intended
to constitute an incentive stock option ("Non-qualified 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. Subject to the terms and conditions of this
Agreement, the Company confirms the grant to the Optionee of a Non-
qualified Stock Option to purchase from the Company all, or any part, of
the aggregate number of 183,355 shares of Common Stock (hereinafter
referred to as the "Optioned Shares," and the option to purchase the
Optioned Shares referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $2.9375 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, with a legend to reflect the
agreements and conditions applicable to such shares referred to in Section
11.
6. Non-transferability 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 January 26, 2009, 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 Optioned 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:
Title: Vice President/CFO
OPTIONEE:
R. PARK NEWTON, III
FRANCINE NEWTON
1
NO 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 28th day of
September, 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, the Board of Directors of the Company (the "Board")
granted a stock option on August 15, 1994 to purchase 250,000 shares of the
Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the tax
obligation with shares issuable to the Optionee from the exercise of the
option; 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. 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 78,837 shares of Common Stock (hereinafter referred to
as the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 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 15, 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 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, 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:
Title: Vice President/CFO
OPTIONEE:
W. CAREY WEBB
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS CONTAINED IN THE COMPANY'S QUARTERLY
REPORT ON FORM 10-QSB FOR THE QUARTER ENDED DECEMBER 31, 1998 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH CONSOLIDATED FINANCIAL
STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-END> DEC-31-1998
<CASH> 10,452,919
<SECURITIES> 0
<RECEIVABLES> 1,127,979
<ALLOWANCES> 103,687
<INVENTORY> 545,741
<CURRENT-ASSETS> 12,567,179
<PP&E> 10,891,543
<DEPRECIATION> 1,623,471
<TOTAL-ASSETS> 23,533,147
<CURRENT-LIABILITIES> 2,390,089
<BONDS> 13,459,896
0
0
<COMMON> 4,738
<OTHER-SE> 6,429,383
<TOTAL-LIABILITY-AND-EQUITY> 23,533,147
<SALES> 2,520,201
<TOTAL-REVENUES> 2,520,201
<CGS> 105,672
<TOTAL-COSTS> 1,672,063
<OTHER-EXPENSES> 245,257
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 616,203
<INCOME-PRETAX> (118,994)
<INCOME-TAX> (38,000)
<INCOME-CONTINUING> (80,994)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (80,994)
<EPS-PRIMARY> .00
<EPS-DILUTED> .00
</TABLE>
