-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IBdeGdt6pkDkHRdGhfKVS/0ono8LY+QQ+tSIaIZiXZBHAh6VsO37UC2ejR12OBQv +SXfaVvhcfEOkGSQHDYPPg== 0000832813-99-000002.txt : 19990223 0000832813-99-000002.hdr.sgml : 19990223 ACCESSION NUMBER: 0000832813-99-000002 CONFORMED SUBMISSION TYPE: 10QSB PUBLIC DOCUMENT COUNT: 17 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990222 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EXCAL ENTERPRISES INC CENTRAL INDEX KEY: 0000832813 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 592855398 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10QSB SEC ACT: SEC FILE NUMBER: 000-17069 FILM NUMBER: 99547113 BUSINESS ADDRESS: STREET 1: 100 N TAMPA ST STREET 2: STE 3575 CITY: TAMPA STATE: FL ZIP: 33602 BUSINESS PHONE: 8132240228 MAIL ADDRESS: STREET 1: 100 NORTH TAMPA ST SUITE 3575 STREET 2: 100 NORTH TAMPA ST SUITE 3575 CITY: TAMPA STATE: FL ZIP: 33602 FORMER COMPANY: FORMER CONFORMED NAME: ASSIX INTERNATIONAL INC DATE OF NAME CHANGE: 19920703 10QSB 1 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 EX-3 2 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 EX-4 3 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: EX-10 4 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 EX-10 5 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 EX-10 6 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 EX-10 7 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 EX-10 8 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 EX-10 9 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 EX-10 10 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 EX-10 11 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 EX-10 12 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 EX-10 13 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 EX-10 14 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 EX-10 15 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 EX-10 16 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 EX-27 17
5 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. 6-MOS JUN-30-1999 DEC-31-1998 10,452,919 0 1,127,979 103,687 545,741 12,567,179 10,891,543 1,623,471 23,533,147 2,390,089 13,459,896 0 0 4,738 6,429,383 23,533,147 2,520,201 2,520,201 105,672 1,672,063 245,257 0 616,203 (118,994) (38,000) (80,994) 0 0 0 (80,994) .00 .00
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