-----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, APtVwDeOhvnERbAL5STYgFzWMtU3dGkZc/NIfps60K3g0mVOCeFkCMRtTzzcDJ9p C4qzQ65tuvDO9Nu+vvt0GA== 0000832813-99-000005.txt : 19990701 0000832813-99-000005.hdr.sgml : 19990701 ACCESSION NUMBER: 0000832813-99-000005 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990630 EFFECTIVENESS DATE: 19990630 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: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-81887 FILM NUMBER: 99655906 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 S-8 1 As filed with the Securities and Exchange Commission on June 28, 1999 Registration No. 33-______ SECURITIES AND EXCHANGE COMMISSION FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EXCAL ENTERPRISES, INC. (Exact Name of registrant as specified in its charter) Delaware 59-2855398 - ---------------------------- ------------------ (State or other jurisdiction (I.R.S. Employer of incorporation) Identification No.) 100 N. Tampa Street, Suite 3575, Tampa, Florida 33602 ------------------------------------------------------ (Address of principal executive offices) (zip code) Nonqualified Stock Options Issuable Under Various Agreements between Excal Enterprises, Inc. and R. Park Newton, III and Timothy R. Barnes (Full Title of Plan) W. Carey Webb President and Chief Executive Officer Excal Enterprises, Inc. 100 N. Tampa Street, Suite 3575 Tampa, Florida 33602 (813) 224-0228 Copy to: Linda Y. Kelso Julia B. Davis Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 (904) 359-2000 ----------------------------------------------------------------------------- (Name, address and telephone number, including area code, of agent for service) - ---------------------------------------------------------------------------- Calculation of Registration Fee - ---------------------------------------------------------------------------- Title of Each Class Amount to be Proposed Proposed Amount of of Securities to be Registered Maximum Maximum Registration Registered Offering Price Aggregate Fee Per Share Offering Price - ------------------- ------------ -------------- ---------- ------------ Common Stock 127,997(1) $4.87500 $ 623,986 $173.47 ($0.001 par value) Common Stock 183,355(1) $2.93750 $ 538,606 $149.73 ($0.001 par value) Common Stock 353,514(2) $3.09375(3) $1,093,684(3) $304.04 ($0.001 par value) (1) Plus an indeterminate number of shares which may be issued as a result of anti-dilution provisions contained in the Plans. This total represents (i) 127,997 shares subject to outstanding options having an exercise price of $4.875 and (ii) 183,355 shares issuable under outstanding options having an exercise price of $2.9375. (2) Shares registered for resale hereunder. (3) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended, the amounts shown have been estimated, and the registration fee has been calculated using $3.09375 per share, the average of the closing bid and asked prices of the registrant's common stock in the over the counter market as reported by the National Quotation Bureau, Inc. on June 23, 1999. ______________________ EXPLANATORY NOTE This Registration Statement includes a Prospectus, prepared in accordance with the requirements of Part I of Form S-3, which, pursuant to General Instruction C of Form S-8, may be delivered in connection with the offer and sale of "restricted securities" which are defined as securities issued under any employee benefit plan of the Registrant meeting the definition of "restricted securities" in Rule 405 under the Securities Act of 1933, as amended (the "Securities Act"). ______________________ PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The document(s) containing information specified in Part I of this Registration Statement on Form S-8 (the "Registration Statement") have been or will be sent or given to participants in the Plan as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act. Such document(s) are not being filed with the Commission but constitute (along with documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the Securities Act. REOFFER PROSPECTUS 353,514 shares of Common Stock ($.001 par value) EXCAL ENTERPRISES, INC. 100 N. Tampa Street, Suite 3575 Tampa, Florida 33602 (813) 224-0228 The selling stockholders - o May periodically sell any or all of their shares of Common Stock up to 353,514 shares; o Will determine the number, the price and the terms when sold; and o Will receive all proceeds from the sale. The Shares - o Have been acquired under option agreements and warrant agreements between Excal and the selling stockholders as compensation to Mr. Newton for services provided as an officer and director; and o Are "restricted securities" as defined in General Instruction C to Form S-8 Registration Statement under the Securities Act; o May be offered and sold from time to time in any manner permitted by law. The Sales - o May be made through brokers or to dealers, who are expected to receive customary commissions or discounts. Prices for the Common Stock are reported by the National Quotation Bureau, Inc. under the symbol "EXCL." See "Risks and Uncertainties" on page 4 for a discussion of information you should carefully consider before you invest. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SHARES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. June 28, 1999 TABLE OF CONTENTS Where You Can Find More Information 2 The Company 3 Risks and Uncertainties 4 Selling Stockholders 6 Plan of Distribution 7 Indemnification of Directors and Officers 10 ________________________ WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document we have on file at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0300 for further information about the public reference rooms. Our SEC filings are also available to the public at the SEC's web site at http://www.sec.gov. DOCUMENTS WE ARE INCORPORATING BY REFERENCE The SEC allows us to "incorporate by reference" the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information filed with the SEC will update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our offering is completed: (a) Our Annual Report on Form 10-KSB for the year ended June 30, 1998, filed September 28, 1998; (b) Our Quarterly Reports on Form 10-QSB for the quarters ended September 30, 1998 and December 31, 1998, filed on November 16, 1998 and February 22, 1999, respectively; (c) Our Current Report on Form 8-K filed March 22, 1999; (d) The description of our common stock which we have included in our registration statement on Form 8-A (No. 0-17069), including any amendments or reports we file to update such description. You may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Excal Enterprises, Inc. 100 N. Tampa Street, Suite 3575 Tampa, FL 33602 Attention: Timothy R. Barnes, Chief Financial Officer (813) 224-0228 You should rely only on the information incorporated by reference or provided in this prospectus or a prospectus supplement. We have authorized no one to provide you with different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or a prospectus supplement is accurate as of any date other than the date on the front of this document. THE COMPANY We are a Delaware corporation which was formed in July 1986. We changed our name from Assix International, Inc. to Excal Enterprises, Inc. in June 1995. We then operated two distinct businesses: (i) commercial real estate and (ii) automotive services. Our automotive services operations have been discontinued. Our commercial real estate operations are operated through Imeson Center, Inc., a wholly-owned subsidiary. Imeson Center owns, leases and manages a two-story building containing approximately 1,666,000 square feet of rental office and warehouse space in Jacksonville, Florida. We have explored and continue to explore opportunities for acquisitions in new business areas. We have significant cash available for acquisitions from the liquidation of our automotive division and a mortgage loan on our Imeson Center property. We have focused our search in the areas of light manufacturing and industrial distribution. In December 1998, we completed the first of these acquisitions when we acquired Roxbury Industries Corp. for $1.5 million. Roxbury manufactures and distributes logo/personalized knit scarves, knit headwear and bears with sweaters. FORWARD-LOOKING STATEMENTS This prospectus and the documents incorporated in this prospectus by reference contain forward-looking statements. We base these statements on our current expectations, estimates and projections. Either the beliefs of management, or assumptions made by management form the basis for those expectations, estimates and projections. The safe harbor created by Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 generally protect us and the selling stockholders from liability for these statements. You can often recognize these forward-looking statements by words such as "anticipates," "expects," "intends," "plans," "believes," "seeks," "estimates," variations of such words, and similar expressions. These forward-looking statements do not guarantee future performance and are subject to risks, uncertainties and assumptions that are difficult to predict. The Risks and Uncertainties Section immediately following this paragraph sets forth some of these risks and uncertainties. These risks and uncertainties could cause actual results to differ materially and adversely from those discussed in the forward-looking statements. We undertake no obligation to publicly update any of these forward-looking statements to reflect new information or future events. RISKS AND UNCERTAINTIES The following is a summary description of some of the many risks we face in our business. You should carefully review these risks in evaluating our business. You should also consider the other information set forth in this prospectus before you decide whether to invest. COMMERCIAL REAL ESTATE BUSINESS CONSISTS OF LEASE OF ONE BUILDING Our commercial real estate business consists of the lease of one two- story building, Imeson Center. Imeson Center contains 1,392,000 square feet of rentable warehouse space (696,000 square feet on the first floor and 696,000 feet of space on the second floor) and approximately 274,000 square feet of rentable office space. We are subject to the risk of a natural disaster occurring that would result in losses not covered by our customary commercial insurance policies or the discovery of significant environmental problems at Imeson Center that would affect our ability to lease the property. We believe that we and our tenants have complied with all applicable environmental laws and regulations. WE DEPEND UPON A LIMITED NUMBER OF MAJOR CUSTOMERS We have four tenants at Imeson Center. Rental income from three tenants accounted for substantially all of our revenue in fiscal 1997 and fiscal 1998. The largest lease (approximately 53% of rental revenues in fiscal 1998) expires December 31, 2000. Another lease (approximately 27% of rental revenues in fiscal 1998) expires June 15, 2003. The other lease (approximately 20% of rental revenues in fiscal 1998) expires June 15, 2002. The loss of any of these leases could have a significant impact on us. ACQUISITION STRATEGY IS COSTLY AND RISKY We have announced that our growth strategy includes acquiring other businesses. Our success with this strategy depends on our ability to identify and negotiate attractive investments in businesses that we believe will complement or enhance our business. We cannot assure you that we will be able to properly identify and evaluate opportunities, control costs and liabilities incurred with the acquisition of new businesses, effectively manage our growth or anticipate and evaluate the numerous risks involved in acquiring and operating a new business. The acquisition of a costly or unproductive business could materially and adversely affect our business. SUCCESS OF RECENT ACQUISITION OF NEW BUSINESS IS UNCERTAIN In December 1998 we acquired Roxbury Industries Corp., a manufacturer and distributor of knit scarves, knit headwear and bears with sweaters. Management has no prior experience in the manufacture and distribution of similar products. There can be no assurance that this acquisition will be a profitable business venture for us. ABSENCE OF CASH DIVIDENDS We have not paid any cash dividends on our common stock to date, and we do not anticipate paying any cash dividends in the foreseeable future. ANTITAKEOVER PROVISIONS COULD DISCOURAGE OR PREVENT A CHANGE OF CONTROL Management could use several charter or statutory provisions and agreements as anti-takeover devices to discourage, delay or prevent a change in control. The use of these provisions could adversely affect the market price of our common stock. o Blank check preferred stock. Our Amended and Restated Certificate of Incorporation authorizes the issuance of up to 7,500,000 shares of preferred stock with designations, rights and preferences as may be determined from time to time by our Board of Directors (100,000 of such shares have been designated as "Series A Junior Participating Preferred Stock"). The Board, therefore, has the power without approval of the stockholders to issue preferred stock with dividend, liquidation, conversion, voting or other rights which could adversely affect the voting power or other rights of holders of common stock. Management has no present plans, agreements or commitments to issue any shares of preferred stock. o Rights Plan. Under a Rights Agreement with Registrar and Transfer Company, as Rights Agent, each share of our common stock has an accompanying right to purchase, upon certain acquisitions of beneficial ownership of 15 percent or more of the common stock, 1/100th share of preferred stock that permits each holder to have attributes (i.e., participation in dividends and liquidation and voting rights) substantially equivalent to one whole share of Common Stock. We can redeem the rights at $.01 per right, subject to certain conditions, at any time. The rights expire on April 18, 2004. o Other Charter provisions. Our Certificate of Incorporation also includes the following provisions: o a board of directors divided into 3 equal (or as nearly equal as possible) classes with each director serving a three year term o newly created directorships and vacancies are filled by remaining directors, even if less than a quorum o directors may be removed only by the affirmative vote of at least 75% of the voting power of stockholders entitled to vote in election of directors o special meetings of stockholders may be called only by the Chairman of the Board of Directors, a majority of the Board or the written request of at least 35% of the votes entitled to be cast at the meeting o stockholders may bring business before a meeting of stockholders only by complying with a number of procedural requirements o stockholders may only nominate directors by complying with a number of procedural requirements o amendment of any of the foregoing provisions requires the affirmative vote of at least 75% of the voting power of stockholders entitled to vote in the election of directors. CONCENTRATION OF OWNERSHIP IN MANAGEMENT COULD DISCOURAGE OR PREVENT A CHANGE OF CONTROL Our executive officers and directors own approximately 36% of our outstanding common stock. This concentration of ownership in the hands of management may further discourage, delay or prevent a change of control which could adversely affect the market price of our stock. OUT STOCK IS THINLY TRADED Historically, we experience very little trading in our stock. The absence of a significant trading volume could adversely affect an investor's ability to readily sell our shares and could adversely affect the price obtained in such a sale. SELLING STOCKHOLDERS This Prospectus relates to the offer and sale of Common Stock acquired by the selling stockholders named below through the exercise of options and warrants granted to the selling stockholders in connection with services provided by Mr. Newton as an officer and director. Mr. Newton currently serves as our Chairman of the Board of Directors. The following table shows, as of June 24, 1999: o the name of each selling stockholder; o how many shares the selling stockholder beneficially owns; o how many shares the selling stockholder can resell under this prospectus; and o assuming a selling stockholder sells all shares listed next to the stockholder's name, how many shares the selling stockholder will beneficially own after completion of the offering. Selling Stockholder Shares Shares Shares Percentage Beneficially Which Beneficially of Shares Owned May be Owned if Beneficially Prior Sold in All Shares Owned if to this this in this All Shares Offering(1) Offering(2) Offering this are Sold Offering are Sold - ------------------- ------------ ------------ ------------- ----------- R. Park Newton and 1,493,812 353,514 1,140,098 27% Francine Newton(3) (1) We have calculated the number and percentage of shares each selling stockholder "beneficially owns" in accordance with Rule 13d-3 under the Exchange Act. Beneficial ownership as defined in Rule 13d-3 does not necessarily indicate beneficial ownership for any other purpose. Under Rule 13d-3, a person beneficially owns all shares as to which they have either sole or shared voting power or sole or shared investment power, as well as all shares which they have the right to acquire within 60 days of the calculation date by exercising any stock option or other right. (2) Represents the maximum number of shares that the stockholders may sell in this offering. The selling stockholders may sell less than such maximum number of shares, or none of such shares. (3) Includes (a) 650,472 shares owned jointly by R. Park Newton and Francine Newton, (b) 200 shares owned directly by Mr. Newton, as to which Mrs. Newton disclaims any beneficial ownership, (c) 1,000 shares owned directly by Mrs. Newton, as to which Mr. Newton disclaims any beneficial ownership, (d) 452,500 shares held in a limited partnership for the benefit of certain members of Mr. Newton's family, over which Mr. Newton and Mrs. Newton have shared voting and investment power, and (e) 389,640 shares subject to warrants and options held jointly by Mr. and Mrs. Newton. PLAN OF DISTRIBUTION We are registering all 353,514 shares of our common stock on behalf of the selling stockholders, including any persons to whom the selling stockholders may transfer those shares by way of gift, donation or pledge after the date of this prospectus. Such persons will also be treated as selling stockholders for purposes of this prospectus. All of the shares were originally issued by us under certain options and a warrant granted to Mr. and Mrs. Newton in connection with Mr. Newton's service as an officer and director. We will receive no proceeds from this offering. The selling stockholders may sell the shares from time to time. The selling stockholders will act independently of us in making decisions with respect to the timing, manner and size of each sale. The sales may be made in the over-the-counter market or otherwise, at prices and at terms then prevailing or at prices related to the then current market price, or in negotiated transactions. The selling stockholders may effect such transactions by selling the shares to or through broker-dealers. The shares may be sold by one or more of, or a combination of, the following transactions: o a block trade in which the broker-dealer engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; o purchases by a broker-dealer as principal and resale by such broker- dealer for its account pursuant to this prospectus; o ordinary brokerage transactions and transactions in which the broker- dealer solicits purchasers; o through put or call option transactions relating to the shares; and o in privately negotiated transactions. To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution. In effecting sales, broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in the resales. The selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions in connection with distributions of the shares or otherwise. In such transactions, the broker- dealers or other financial institutions may engage in short sales of the shares in the course of hedging the positions they assume with the selling stockholders. The selling stockholders may also sell shares short and redeliver the shares to close out such short positions. The selling stockholders may enter into option or other transactions with broker-dealers which require the delivery to the broker-dealer of the shares. The broker- dealer may then resell or otherwise transfer such shares pursuant to this prospectus. The selling stockholders also may loan or pledge the shares to a broker-dealer. The broker-dealer may sell the shares so loaned, or upon a default, the broker-dealer may sell the pledged shares pursuant to this prospectus. Broker-dealers or agents may receive compensation in the form of commissions, discounts or concessions from selling stockholders. Broker- dealers or agents may also receive compensation from the purchasers of the shares for whom they act as agents or to whom they sell as principals, or both. Compensation as to a particular broker-dealer might be in excess of customary commissions and will be in amounts to be negotiated in connection with the sale. Broker-dealers or agents and any other participating broker- dealers or the selling stockholders may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933, as amended (the "1933 Act") in connection with sales of the shares. Accordingly, any such commission, discount or concession received by them and any profit on the resale of the shares purchased by them may be deemed to be underwriting discounts or commissions under the 1933 Act. Because selling stockholders may be deemed to be "underwriters" within the meaning of Section 2(11) of the 1933 Act, the selling stockholders will be subject to the prospectus delivery requirements of the 1933 Act. In addition, any securities covered by this prospectus which qualify for sale pursuant to Rule 144 promulgated under the 1933 Act may be sold under Rule 144 rather than pursuant to this prospectus. The selling stockholders have advised us that they have not entered in any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of their securities. No underwriter or coordinating broker is acting in connection with the proposed sale of shares by selling stockholders. The shares will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain states the shares may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and complied with. Under applicable rules and regulations under the Securities Exchange Act of 1934, as amended (the "1934 Act"), any person engaged in the distribution of the shares may not simultaneously engage in market making activities with respect to our common stock for a period of two business days prior to the commencement of such distribution. In addition, each selling stockholder will be subject to applicable provisions of the 1934 Act and the associated rules and regulations under the 1934 Act, including Regulation M, which provisions may limit the timing of purchases and sales of shares of our common stock by the selling stockholders. We will make copies of this prospectus available to the selling stockholders and have informed them of the need for delivery of copies of this prospectus to purchasers at or prior to the time of any sale of the shares. We will file a supplement to this prospectus, if required, pursuant to Rule 424(b) under the 1933 Act upon being notified by a selling stockholder that any material arrangement has been entered into with a broker-dealer for the sale of shares through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer. Such supplement will disclose: o the name of each such selling stockholder and of the participating broker-dealer(s); o the number of shares involved; o the price at which such shares were sold; o the commissions paid or discounts or concessions allowed to such broker- dealer(s), where applicable; o that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus; and o other facts material to the transaction. In addition, if we are notified by a selling stockholder that a donee or pledgee intends to sell more than 500 shares, we will file a supplement to this prospectus naming that donee or pledgee. We will bear all costs, expenses and fees in connection with the registration of the shares. The selling stockholders will bear all commissions and discounts, if any, attributable to the sales of the shares. The selling stockholders may agree to indemnify any broker-dealer or agent that participates in transactions involving sales of the shares against certain liabilities, including liabilities arising under the 1933 Act. INDEMNIFICATION The Delaware General Corporation Law and our Amended and Restated Certificate of Incorporation permit us to indemnify a present or former director or officer of the corporation (and certain other persons serving at the request of the corporation in related capacities) for liabilities, including legal expenses, arising by reason of the service in such capacity if: o such person shall have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation; and o in any criminal proceeding if such person had no reasonable cause to believe his conduct was unlawful. However, in the case of actions brought by or in the right of the corporation, no indemnification may be made with respect to any matter as to which such director or officer shall have been adjudged liable, except in certain limited circumstances. We have entered into indemnification agreements with certain of our current or former executive officers and directors providing for indemnification under certain circumstances. We have a standard policy of directors' and officers' liability insurance covering our directors and officers with respect to liabilities incurred as a result. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to our Certificate of Incorporation or bylaws or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. If a claim for indemnification against such liabilities (other than the payment by us of expenses incurred or paid by the director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction on the question whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE Excal Enterprises, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): (a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended June 30, 1998, filed with the SEC on March 31, 1998; (b) The Registrant's Quarterly Reports on Form 10-QSB for the fiscal quarters ended September 30, 1998 and December 31, 1998 filed with the SEC on November 16, 1998 and February 22, 1999, respectively; (c) The Registrant's Current Report on Form 8-K filed with the SEC on March 22, 1999; and (d) The description of the Registrant's Common Stock, par value $.001 per share, contained in the Company's Registration Statement on Form 8-A filed with the SEC (No. 0-17069), including any amendments or reports filed to update such description. All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock being offered hereby have been sold or which deregisters all shares of Common Stock then remaining unsold shall be deemed incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not Applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not Applicable. ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS. The Company is incorporated under the laws of the State of Delaware. The General Corporation Law of the State of Delaware (the "Delaware Statute") provides for indemnification of directors, officers, and employees in certain situations. The Delaware Statute, by its terms, and the Company's Amended and Restated Certificate of Incorporation (the "Certificate") expressly permit indemnification where such a person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the corporation's best interests, and, in a criminal action, if such person had no reasonable cause to believe that his or her conduct was unlawful. In the case of a claim by a third party (i.e., a party other than the corporation), the Delaware Statute and the Certificate expressly permit indemnification for expenses, judgments, settlement payments, and other costs. In the case of a claim by or in the right of the corporation (including stockholder derivative suits), the Delaware Statute and the Certificate expressly provide for indemnification for expenses only, and not for amounts paid in judgment or settlement of such actions. Moreover, a corporation cannot, under the Delaware Statute and the Certificate provide for indemnification against expenses in the case of an action by or in the right of the corporation if the person seeking indemnification is adjudged liable to the corporation, unless the indemnification is ordered by a court. The Delaware Statute and the Certificate also permit advancement of expenses to directors and officers upon receipt of an undertaking by such director or officer to repay all amounts advanced if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. The Company also maintains a standard policy of directors' and officers' liability insurance covering directors and officers of the Company against certain liabilities incurred by them in the discharge of their function as such officers and directors. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED The issuance of the shares being offered by the resale prospectus were deemed to be exempt from registration under the Securities Act in reliance on Section 4(2) of the Securities Act or Regulation D promulgated thereunder, or Rule 701 promulgated under Section 3(b) of the Securities Act, as transactions by an issuer not involving a public offering or transactions pursuant to compensatory benefit plans and contracts relating to compensation as provided under such Rule 701. The recipients of securities in each such transaction represented their intention to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the share certificates and instruments issued in such transactions. All recipients had adequate access, through their relationship with the Company, to information about the Company. ITEM 8. EXHIBITS 4A. Nonqualified Stock Option Agreement dated as of September 28, 1998 between the Registrant and R. Park and Francine H. Newton (filed as Exhibit 10.14 to the Registrant's Form 10-QSB for the fiscal quarter ended December 31, 1998 and incorporated herein by reference). 4B. Nonqualified Stock Option Agreement dated as of January 26, 1999 between the Registrant and R. Park and Francine H. Newton (filed as Exhibit 10.16 to the Registrant's Form 10-QSB for the fiscal quarter ended December 31, 1998 and incorporated herein by reference). 4C. Nonqualified Stock Option Agreement dated as of September 28, 1998 between the Registrant and Timothy R. Barnes (filed as Exhibit 10.3 to the Registrant's Form 10-QSB for the fiscal quarter ended December 31, 1998 and incorporated herein by reference) 5. Opinion of Foley & Lardner as to the legality of the securities to be issued. 23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit 5). 23B. Consent of Pender Newkirk & Company. 24. Power of Attorney (included on signature page of this registration statement). ITEM 9. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (i) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (1) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (2) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement. (3) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement; Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (ii) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (iii) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions set forth or described in Item 6 of this Registration Statement, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding, or claims to the extent covered by contracts of insurance) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tampa, State of Florida, on June 24, 1999. EXCAL ENTERPRISES, INC. By/S/ W. CAREY WEBB W. Carey Webb President and Chief Executive Officer SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the Signature Page to this registration statement constitutes and appoints W. Carey Webb and R. Park Newton, III, and each or any of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments to this registration statement and any and all registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits and other documents in connection therewith, with the Securities and Exchange Commission, and grants unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Date: June 24, 1999 /S/ W. CAREY WEBB W. Carey Webb President and Chief Executive Officer Date: June 24, 1999 /S/ R. PARK NEWTON, III R. Park Newton, III, Chairman of the Board and Director Date: June 24, 1999 /S/ TIMOTHY R. BARNES Timothy R. Barnes Vice President, Chief Financial Officer and Principal Accounting Officer Date: June 24, 1999 /S/ W. ARIS NEWTON W. Aris Newton, Director Date: June 24, 1999 /S/ JOHN L. CASKEY John L. Caskey, Director INDEX TO EXHIBITS Exhibit Number Description of Document 4A Nonqualified Stock Option Agreement dated as of September 28, 1998 between the Registrant and R. Park and Francine H. Newton (filed as Exhibit 10.14 to the Registrant's Form 10-QSB for the fiscal quarter ended December 31, 1998 and incorporated herein by reference). 4B Nonqualified Stock Option Agreement dated as of January 26, 1999 between the Registrant and R. Park and Francine H. Newton (filed as Exhibit 10.16 to the Registrant's Form 10-QSB for the fiscal quarter ended December 31, 1998 and incorporated herein by reference). 4C Nonqualified Stock Option Agreement dated as of September 28, 1998 between the Registrant and Timothy R. Barnes (filed as Exhibit 10.3 to the Registrant's Form 10-QSB for the fiscal quarter ended December 31, 1998 and incorporated herein by reference) 5 Opinion of Foley & Lardner 23A Consent of Foley & Lardner (included in Exhibit 5) 23B Consent of Pender, Newkirk & Co. 24 Power of Attorney (included with signature pages to the registration statement EX-5 2 FOLEY & LARDNER POST OFFICE BOX 240 JACKSONVILLE, FLORIDA 32202-3510 200 LAURA STREET, JACKSONVILLE, FLORIDA 32202-3527 TELEPHONE (904) 359-2000 FACSIMILE (904) 359-8700 June 28, 1999 Excal Enterprises, Inc. 100 N. Tampa St., Suite 3575 Tampa, Florida 33602 Re: Registration Statement on Form S-8 Relating to Shares of Common Stock Issuable Pursuant to Various Agreements with R. Park Newton, III and Timothy R. Barnes Ladies and Gentlemen: This opinion is being furnished in connection with the Registration Statement on Form S-3 (the "Registration Statement") of Excal Enterprises, Inc. (the "Company"), under the Securities Act of 1933, as amended, for the registration of an aggregate of 664,866 shares of common stock par value $0.001 (the "Shares"). Of the Shares, 311,352 Shares (the "Option Shares") are issuable pursuant to the following agreements (collectively, the "Option Agreements"): (i) a Nonqualified Stock Option Agreement dated September 28, 1998 between the Company and R. Park Newton, III, an employee and director of the Company, and Francine Newton, his wife; (ii) a Nonqualified Stock Option Agreement dated January 26, 1999 between the Company and R. Park Newton and Francine Newton, his wife; and (iii) a Nonqualified Stock Option Agreement dated as of September 28, 1998 between the Company and Timothy R. Barnes, an employee of the Company. Of the Shares, 353,514 Shares (the "Resale Shares") were issued under the following agreements and are being registered for resale pursuant to a Prospectus included in the Registration Statement (the "Resale Agreements" and collectively with the Option Agreements, the "Agreements"): (i) Nonqualified Stock Option Agreement dated May 1, 1998 between the Company and R. Park Newton, III and Francine Newton, his wife; and (ii) Nonqualified Stock Option Agreement dated January 26, 1999 between the Company and R. Park Newton, III and Francine Newton, his wife. We have examined and are familiar with the following: A. Certificate of Incorporation of the Company, as amended, as filed in the Office of the Secretary of State of the State of Delaware; B. Bylaws of the Company; C. The proceedings of the Board of Directors of the Company in connection with the approval of the Agreements; and D. Such other documents, Company records and matters of law as we have deemed to be pertinent. Based on the foregoing, it is our opinion that: 1. The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware. 2. The Option Shares have been duly authorized and when issued in accordance with the terms of the Agreements will be duly and validly issued, fully paid and nonassessable. 3. The Resale Shares held by the selling stockholders for resale are validly issued, fully paid and nonassessable. We hereby consent to the inclusion of this opinion as Exhibit 5 in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder. FOLEY & LARDNER By: /S/ LINDA Y. KELSO Linda Y. Kelso EX-23 3 EXHIBIT 23B PENDER NEWKIRK AND COMPANY - CERTIFIED PUBLIC ACCOUNTANTS LETTERHEAD CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference of our report dated August 7, 1998, which appears on Page F-1 of the Annual Report on Form 10- KSB for the fiscal year ended June 30, 1998 of Excal Enterprises, Inc. in Form S-8, Nonqualified Stock Options Issuable Under Various Agreements Between Excal Enterprises, Inc. and R. Park Newton, III and Timothy R. Barnes. /S/ Pender Newkirk & Company Certified Public Accountants Tampa, Florida June 22, 1999 -----END PRIVACY-ENHANCED MESSAGE-----