This Stock Option Agreement was originally issued to George Crook
as of May 22, 1991, as to 117,650 shares of common stock, and has
been partially assigned and transferred on the books of the
Company to Timothy R. Barnes as of April 7, 2000.
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT is dated as of the 22nd day of
May, 1991, by and between EXCAL ENTERPRISES, INC., a Delaware
corporation (the "Company"), and Timothy R. Barnes (the
"Optionee").
1. Definitions.
1.1 "Affiliate" means any entity controlling, controlled by or
under common control with the Company.
1.2 "Board" means the Board of Directors of the Company.
1.3 "Common Stock" means the shares of common stock, par value
$0.01 per share, of the Company.
1.4 "Exercise Price" means $2.00 per Option Share.
1.5 "Option Shares" has the meaning ascribed to it in Section 2.
1.6 "Options" has the meaning ascribed to it in Section 2.
2. Grant: Number of Shares. The Company hereby grants to the
Optionee options (the "Options") to purchase an aggregate of
33,825 shares (the "Option Shares") of Common Stock at the
Exercise Price, on the terms and subject to the conditions set
forth herein. The Options are not intended to be "incentive
stock options" as defined in Section 422 of the Internal Revenue
Code of 1986, as amended. The Optionee shall not have any of the
rights of a shareholder of the Company with respect to any Option
Shares unless and until the Optionee has paid the Exercise Price
with respect thereto and the conditions set forth in Section 4
have been satisfied.
3. Termination. The Options will terminate upon the earliest
of (i) the full exercise of the Options or (ii) ten (10) years
from the date of this Stock Option Agreement.
4. Exercise of Options.
4.1 Exercisability. The Options shall be fully vested as of the
date hereof.
4.2 Notice. The Optionee may exercise vested Options by
delivering written notice of such exercise to the Company,
accompanied by payment of the Exercise Price as described in
Section 4.3. Such written notice shall be deemed sufficient for
this purpose only if delivered to the Company at its principal
office and only if such written notice states the number of
Options being exercised. The date of exercise of the Options
with respect to the Option Shares specified in the notice shall
be the date on which the Company receives the notice and payment.
4.3 Payment and Other Conditions. The notice described in
Section 4.2 shall be accompanied by payment of the entire
Exercise Price of the Option Shares being purchased. Payment may
be made paid in cash, by the surrender of a whole number of
Shares (free of all adverse claims and duly endorsed in blank by
Optionee or accompanied by stock powers duly endorsed in blank)
having a fair market value on the date of exercise equal to the
Exercise Price, or by the surrender of the unexercised, vested
portion of the Option as to which the Spread (as hereinafter
defined) is equal to the exercise price, or any combination of
the foregoing. "Spread" means the fair market value on the date
of exercise of the underlying Shares less the Exercise Price.
For purposes of this section, the Board in its sole discretion
shall determine fair market value. In addition to payment of the
option price, if applicable, the Optionee shall also pay, or make
arrangement satisfactory to the Board for the payment of, any
federal, state, local or foreign taxes of any kind required by
law to be withheld with respect to any amount that is includible
in the Optionee's income as a result of exercising the Option.
With the consent of the Board, payment of the applicable
withholding taxes, if any, may be made by tendering previously
acquired shares of Common Stock with a fair market value, as
determined by the Board in its sole discretion, equal to the
minimum amount of the withholding tax required to be withheld.
4.4 Issuance of Stock Certificates. Upon satisfaction of the
conditions of Sections 4.2 and 4.3, 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 5 for so long as
applicable securities laws require such legend.
5. Specific Restrictions Upon Option Shares. The Optionee
hereby agrees with the Company that the Optionee shall acquire
the Option Shares for investment purposes only and not with a
view to resale or other distribution thereof to the public in
violation of the Securities Act of 1933, as amended (the
"Securities Act"), and shall not dispose of any Option Shares in
any transaction which, in the opinion of counsel to the Company,
would violate the Securities Act, or the rules and regulations
thereunder, or any applicable state securities or "blue sky"
laws.
6. Adjustment in Shares Subject to the Option.
(a) In the event of a merger or consolidation of the Company in
which the Company is not the surviving corporation and in which
the consideration received by holders of Common Stock consists of
securities of the surviving corporation or any affiliate, or in
the event of a statutory share exchange (each a "Transaction"),
(i) the Option shall automatically become exercisable for that
number of securities (rounded to the near whole share) that the
Optionee would have received in the Transaction had the Optionee
exercised the Options immediately prior to the Transaction and
participated in the Transaction as a holder of Common Stock, and
(ii) the Exercise Price per new security shall be adjusted
proportionately. For example, if as a result of the Transaction
two shares of common stock of the surviving corporation are
issued with respect to each share of Common Stock outstanding
immediately prior to the Transaction, (i) each Option Share
issuable upon exercise of the Options shall consist after the
Transaction of two shares of common stock of the surviving
corporation, and (ii) the exercise price per share after the
Transaction shall be reduced to one half of the exercise price in
effect immediately prior to the Transaction.
(b) If the Company shall combine or subdivide its outstanding
shares of Common Stock into a greater or lesser number of shares
solely by means of a forward or reverse stock split or
reorganization having the same effect or increase the number of
its outstanding shares of Common Stock into a greater number of
shares by means of a stock dividend, any such event being called
a "Common Stock Reorganization," then (i) the Exercise Price
shall be adjusted, effective immediately after the effective date
of such Common Stock Reorganization, to a price determined by
multiplying the Exercise Price in effect immediately prior to
such effective date by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on such
effective date before giving effect to such Common Stock
Reorganization and the denominator of which shall be the number
of shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization, and (ii) the number of shares of
Common Stock subject to purchase upon exercise of the Options
shall be adjusted, effective at such time, to a number determined
by multiplying the number of shares of Common Stock subject to
purchase immediately before such Common Stock Reorganization by a
fraction, the numerator of which shall be the number of shares of
Common Stock outstanding after giving effect to such Common Stock
Reorganization and the denominator of which shall be the number
of shares of Common Stock outstanding immediately before such
Common Stock Reorganization.
(c) In the event that any dividend or other distribution
(whether in the form of cash, stock of the Company, other
securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, sale
of substantially all the Company's assets, split-up, spin-off,
combination, repurchase, or exchange of securities of the
Company, or other similar corporate transaction or event, affects
the Option Shares issuable on exercise of the Option such that an
adjustment not otherwise provided for herein is required in order
to prevent dilution or enlargement of the benefit or potential
benefit intended to be made available under this Agreement, then
the Board shall, in such manner as it in good faith may deem
equitable, adjust the number and type of Option Shares issuable
pursuant to this Stock Option Agreement and/or the terms,
conditions or restrictions of this Stock Option Agreement.
7. Registration of Shares; Limitations on Exercisability.
Anything in this Stock Option Agreement to the contrary
notwithstanding, the obligation of the Company to sell or deliver
shares of Common Stock with respect to the Options shall be
subject to all applicable laws, rules and regulations, including
all applicable federal and state securities laws, securities
exchange rules, or listing requirements and the obtaining of all
approvals by governmental agencies as may be deemed necessary by
the Board, and the Company shall use its reasonable efforts to
take all necessary actions to comply with such requirements.
8. Notices. Any notice required or permitted under this Stock
Option Agreement shall be given at the address for each party
indicated on the signature page thereof.
9. Transferability; Successors and Assigns. Optionee may
assign and transfer this Option Agreement and Optionee's rights
hereunder by written notice of assignment to the Company. This
Agreement shall be binding on Optionee's heirs, legatees,
personal representatives and permitted assignees and on the
Company's successors and assigns (including a purchaser of all or
substantially all of the assets of the Company).
10. Miscellaneous. No provisions of this Stock Option Agreement
may be modified, waived or discharged unless such modification,
waiver or discharge is agreed to in writing signed by both the
Optionee and such officer of the Company as may be specifically
designated by the Board. No waiver by either party hereto at any
time of (i) any breach by the other party hereto of, or
(ii) compliance with, any condition or provision of this Stock
Option Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar conditions or provisions
at the same time or at any prior or subsequent time. The
validity, interpretation, construction and performance of this
Stock Option Agreement shall be governed by the laws of the state
of Florida without regard to its conflicts of law principles.
11. Severability. The invalidity or unenforceability of any
provision or provisions of this Stock Option Agreement shall not
affect the validity or enforceability of any other provision of
this Stock Option Agreement, which shall remain in full force and
effect.
12. Counterparts. This Stock Option Agreement may be executed
in one or more counterparts, each of which shall be deemed to be
an original but all of which together will constitute one and the
same instrument.
13. Entire Agreement. This Stock Option Agreement 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
party hereto or 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.
IN WITNESS WHEREOF, the parties have executed this Stock
Option Agreement on the day and year first above written.
EXCAL ENTERPRISES, INC.
By:
________________________________
_
Name:
___________________________
Title:
___________________________
________________________________
____
Timothy R. Barnes
