-----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, Am9TpBGAKdwPCQPOql6wKeSV9vvAYXK79UA4FVAf7INWkSn0OVhlplLeBE5J6vo5 ut0iAYTUTWAQd593oL68IQ== 0000832813-98-000004.txt : 19980430 0000832813-98-000004.hdr.sgml : 19980430 ACCESSION NUMBER: 0000832813-98-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 19980429 EFFECTIVENESS DATE: 19980429 SROS: NONE 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: S-8 SEC ACT: SEC FILE NUMBER: 333-51265 FILM NUMBER: 98603401 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 SECURITIES AND EXCHANGE COMMISSION FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EXCAL ENTERPRISES, INC. (Exact Name of registrant as specified in its charter) Delaware 59-2855398 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification No.) 100 N. Tampa Street, Suite 3575, Tampa, Florida 33602 (Address of principal executive offices) (zip code) NONQUALIFIED STOCK OPTIONS ISSUABLE PURSUANT TO VARIOUS AGREEMENTS BETWEEN EXCAL ENTERPRISES, INC. AND W. CAREY WEBB, W. ARIS NEWTON AND JOHN L. CASKEY (Full title of the Plan) W. Carey Webb President and Chief Executive Officer Excal Enterprises, Inc. 100 N. Tampa Street, Suite 3575 Tampa, Florida 33602 (Name and address of agent for service) (813) 224-0228 (Telephone number, including area code, of agent for service) Copy to: Linda Y. Kelso Julia B. Davis Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 (904) 359-2000 Calculation of Registration Fee - --------------------------------------------------------------------- Title of each Proposed Proposed class of maximum maximum securities Amount offering aggregate Amount of to be to be price offering registration registered registered per share price fee - ---------------- ---------- --------- ------------- ------------ Common Stock 547,500 $5.75(2) $3,148,125(2) $928.70 $0.001 par value shares(1) (1) Plus an indeterminate number of shares which may be issued as a result of anti-dilution provisions contained in the Plans. (2) Pursuant to Rule 457(h) under the Securities Act of 1933, as amended, the amounts shown are based on (i) 250,000 shares subject to outstanding options having an exercise price of $1.13 per share; (ii) 95,000 shares subject to outstanding options having an exercise price of $1.00 per share (iii) 20,000 shares subject to outstanding options having an exercise price of $4.6875 per share; and (iv) 182,500 shares reserved for future grants of reload options under outstanding option agreements, the registration fee for which has been calculated using $5.75 per share, the average of the closing bid and asked prices of the registrant's common stock in the over the counter market as reported by the National Quotation Bureau, Inc. on March 26, 1998. PART I INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS The document(s) containing the information specified in Part I are not required to be filed with the Securities and Exchange Commission as part of this Form S-8 Registration Statement. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by the registrant with the Securities and Exchange Commission are hereby incorporated herein by reference: (a) Annual Report on Form 10-KSB for the fiscal year ended June 30, 1997. (b) All other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since June 30, 1997. (c) The description of the registrant's Common Stock, par value $0.001 per share set forth under the caption "Description of Registrant's Securities to be Registered" in the Company's Registration Statement on Form 8-A (No. 0-17069) filed under the Securities Exchange Act of 1934; and All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock being offered hereby have been sold or which deregisters all shares of Common Stock then remaining unsold shall be deemed incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. None. Item 6. Indemnification of Directors and Officers. The Delaware General Corporation Law (the "Delaware Act") and the registrant's Amended and Restated Certificate of Incorporation permit the registrant to indemnify a present or former director or officer of the corporation (and certain other persons serving at the request of the corporation in related capacities) for liabilities, including legal expenses, arising by reason of the service in such capacity if such person shall have acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and in any criminal proceeding if such person had no reasonable cause to believe his conduct was unlawful. However, in the case of actions brought by or in the right of the corporation, no indemnification may be made with respect to any matter as to which such director or officer shall have been adjudged liable, except in certain limited circumstances. The registrant has entered into indemnification agreements with certain of its current or former executive officers and directors providing for indemnification under certain circumstances. The registrant has a standard policy of directors' and officers liability insurance covering directors and officers of the corporation with respect to liabilities incurred as a result of their service in such capacities. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. 4A. Employment Agreement between the registrant and W. Carey Webb dated August 15, 1994 (Filed as Exhibit 10(u) to the registrant's Form 10-KSB for the fiscal year ended June 30, 1994 and incorporated herein by reference) 4B. First Amendment to Employment Agreement between the registrant and Carey Webb dated April 3, 1996 (Filed as Exhibit 10.6 to the registrant's Form 10-KSB for the year ended June 30, 1996 and incorporated herein by reference) 4C. Nonqualified Stock Option Agreement between the registrant and Carey Webb dated February 18, 1998 4D. Nonqualified Stock Option Agreement between the registrant and Aris Newton dated February 18, 1998 4E. Nonqualified Stock Option Agreement between the registrant and John L. Caskey dated February 18, 1998 4F. Nonqualified Stock Option Agreement between the registrant and Aris Newton dated February 18, 1998 4G. Nonqualified Stock Option Agreement between the registrant and John L. Caskey dated February 18, 1998 5. Opinion of Foley & Lardner as to the legality of the securities to be issued 23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit 5) 23B. Consent of Pender Newkirk & Company 24. Power of Attorney (included on signature page of this registration statement) Item 9. Undertakings The undersigned hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (the "Securities Act"), each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post- effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the Articles of Incorporation or Bylaws of the registrant or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by the director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tampa, State of Florida, on March 16, 1998. EXCAL ENTERPRISES, INC. By /s/ W. Carey Webb W. Carey Webb, President and Chief Executive Officer SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the Signature Page to this registration statement constitutes and appoints W. Carey Webb and R. Park Newton, III, and each or any of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments to this registration statement and any and all registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits and other documents in connection therewith, with the Securities and Exchange Commission, and grants unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Date: March 16, 1998 /s/ W. Carey Webb W. Carey Webb, President and Chief Executive Officer Date: March 16, 1998 /s/ R. Park Newton, III R. Park Newton, III, Chairman of the Board and Director Date: March 16, 1998 /s/ Timothy R. Barnes Timothy R. Barnes, Vice President, Chief Financial Officer and Principal Accounting Officer Date: March 16, 1998 /s/ W. Aris Newton W. Aris Newton, Director Date: March 16, 1998 /s/ John L. Caskey John L. Caskey, Director EXHIBIT INDEX Item 8. Exhibits. 4A. Employment Agreement between the registrant and W. Carey Webb dated August 15, 1994 (Filed as Exhibit 10(u) to the registrant's Form 10-KSB for the fiscal year ended June 30, 1994 and incorporated herein by reference) 4B. First Amendment to Employment Agreement between the registrant and Carey Webb dated April 3, 1996 (Filed as Exhibit 10.6 to the registrant's Form 10-KSB for the year ended June 30, 1996 and incorporated herein by reference) 4C. Nonqualified Stock Option Agreement between the registrant and Carey Webb dated February 18, 1998 4D. Nonqualified Stock Option Agreement between the registrant and Aris Newton dated February 18, 1998 4E. Nonqualified Stock Option Agreement between the registrant and John L. Caskey dated February 18, 1998 4F. Nonqualified Stock Option Agreement between the registrant and Aris Newton dated February 18, 1998 4G. Nonqualified Stock Option Agreement between the registrant and John L. Caskey dated February 18, 1998 5. Opinion of Foley & Lardner as to the legality of the securities to be issued 23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit 5) 23B. Consent of Pender Newkirk & Company 24. Power of Attorney (included on signature page of this registration statement) EX-4 2 This Agreement constitutes part of a Prospectus covering securities that have been registered under the Securities Act of 1933. EXCAL ENTERPRISES, INC. NONQUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, made and entered into as of this 18th day of February, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation formerly known as Assix International, Inc. (the "Company"), and W. CAREY WEBB, an employee of the Company (the "Optionee"). W I T N E S S E T H : WHEREAS, on August 12, 1994, the Board of Directors of the Company (the "Board") approved the grant of stock options to purchase shares of the Company's common stock, $.001 par value (the "Common Stock"), to the Optionee pursuant to an employment agreement; WHEREAS, the stock option was granted under an Employment Agreement dated August 15, 1994, by and between the Company and the Optionee, as amended (the "Employment Agreement"), as approved by the Board; WHEREAS, it is the intention of the parties that this Agreement confirm the terms and conditions of the grant as previously approved by the Board; and WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option ("Nonqualified Stock Option"), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Grant. (a) Option. Subject to the terms and conditions of this Agreement, the Company confirms the grant to the Optionee of a Nonqualified Stock Option to purchase from the Company all, or any part, of the aggregate number of 250,000 shares of Common Stock (hereinafter referred to as the "Optioned Shares," and the option to purchase the Optioned Shares referred to as the "Option"). (b) Reload Option. In addition to the Option granted hereby (the "Underlying Option"), the Company will grant to the Optionee a reload option (the "Reload Option") if the Optionee acquires shares of Common Stock pursuant to the exercise of the Underlying Option and pays for such shares and/or the tax obligation incurred by reason of the exercise of the Underlying Option (the "withholding taxes") with shares of Common Stock already owned by, or otherwise issuable to, the Optionee (the "Tendered Shares"). The Reload Option grants to the Optionee the right to purchase shares of Common Stock equal in number to the number of Tendered Shares. The date on which the Tendered Shares are tendered to, or withheld by, the Company in full or partial payment of the purchase price and withholding taxes for the shares of Common Stock acquired pursuant to the exercise of the Underlying Option is the Reload Grant Date. The exercise price of the Reload Option is the fair market value of the Tendered Shares on the Reload Grant Date. The fair market value of the Tendered Shares shall be the closing bid price per share of the Common Stock on the Reload Grant Date. The Reload Option shall expire on August 1, 2004. Except as provided herein the Reload Option is subject to all of the other terms and provisions of this Agreement governing the Option. 2. Option Price. The price to be paid for the Optioned Shares shall be $1.13 per share. 3. Time of Exercise. The Option is fully exercisable as of the date of this Agreement and may be exercised by the Optionee in whole or in part at any time and from time to time, after the date hereof. 4. Manner of Exercise and Payment. The Option may be exercised only by written notice to the Company by the Optionee of the Optionee's intent to exercise the Option, delivered to the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by full payment for such shares: (a) in cash or its equivalent; (b) with the consent of the Board, by tendering shares of Common Stock valued at their fair market value at the time of exercise; or (c) with the consent of the Board, by any combination of (a) and (b). 5. Issuance of Stock Certificates. Upon satisfaction of the conditions of Section 4, the Company shall promptly deliver to the Optionee a certificate or certificates for the number of shares of Common Stock in respect of which Options have been exercised, legended to reflect the agreements and conditions applicable to such shares referred to in Section 11. 6. Nontransferability of Option. The Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. 7. Term. The Option shall expire on August 1, 2004, and shall not be exercisable thereafter. 8. Termination of Employment. (a) The Option shall terminate and shall not be exercisable upon the date of expiration specified in Section 7 hereof and shall not otherwise terminate as a result of a termination of Optionee's employment with the Company; and (b) In the event of a Termination Upon Change of Control (as defined in the Employment Agreement), the Optionee shall have the immediate right to compel the purchase by the Company of all Optioned Shares at a price per share equal to the greater of (i) the average of the bid and asked prices per share of Common Stock on the business day immediately preceding the Change of Control (as defined in the Employment Agreement); or (ii) $7.50 per share. 9. Tax Withholding. (a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 9, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option. (b) With the consent of the Board, the Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of Shares, in each case, having a fair market value at the time of exercise, as determined by the Board, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise. The shares so withheld or delivered shall be free of all adverse claims and shall be endorsed in blank by the Optionee or accompanied by stock powers duly endorsed in blank. 10. Capital Adjustments Affecting Stock. In the event of a capital adjustment resulting from a stock dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, reclassification, combination or exchange of shares, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. To the extent deemed equitable and appropriate by the Board, subject to any required action by stockholders, in any merger, consolidation, reorganization, liquidation or dissolution, the Option shall pertain to the securities and other property to which a holder of the number of shares of stock covered by the Option would have been entitled to receive in connection with any such event. 11. Restriction on Transfer of Common Stock. The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act") or any applicable state securities laws, (ii) in a transaction satisfying the requirements of Rule 144 promulgated under the Act, or (iii) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act or applicable state securities laws. The Optionee agrees that any certificate representing shares acquired upon exercise of the Option may bear the following legend: The shares of Common Stock represented by this certificate are restricted securities as that term is defined under Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act"). These shares may not be sold, transferred or disposed of unless they are registered under the Act, sold in a transaction satisfying the requirements of Rule 144 or unless the request to transfer is accompanied by an opinion of counsel acceptable to the issuer, that the transfer will not result in a violation of the Act or any applicable state securities laws. 12. Specific Restrictions Upon Optioned Shares. The Optionee hereby agrees with the Company that the Optionee shall acquire the Optioned Shares for investment purposes only and not with a view to resale or other distribution thereof to the public in violation of the Act, and shall not dispose of the Optioned Shares in any transaction which, in the opinion of counsel to the Company, would violate the Act, or the rules and regulations thereunder, or any applicable state securities or blue sky laws. 13. Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor. 14. Power of Company Not Affected. The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 15. Amendment or Modification. No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought. 16. Governing Law. This Agreement shall be governed by the internal laws of the State of Florida as to all matters, including, but not limited to, matters of validity, construction, effect, performance and remedies. 17. Entire Agreement. This Agreement entered into between the Optionee and the Company sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto; and any prior agreement of the parties hereto in respect of the subject matter contained herein, other than the Employment Agreement, is hereby terminated and canceled. 18. Delegation by Board. Except to the extent prohibited by applicable law or the applicable rules of a stock exchange or market, the Board may delegate all or any portion of its responsibilities and powers to any one or more of its members. Any such delegation may be revoked by the Board at any time. 19. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring all or substantially all of the Company's assets and business. In the event of the Optionee's death prior to exercise of the Option, the Option may be exercised by the estate of the Optionee to the extent such exercise is otherwise permitted by this Agreement. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written. EXCAL ENTERPRISES, INC. By: Timothy R. Barnes Title: Vice President/CFO OPTIONEE: /s/ W. Carey Webb W. CAREY WEBB EX-4 3 This Agreement constitutes part of a Prospectus covering securities that have been registered under the Securities Act of 1933. EXCAL ENTERPRISES, INC. NONQUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, made and entered into as of this 18th day of February, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation formerly known as Assix International, Inc. (the "Company"), and ARIS NEWTON, an employee and a director of the Company (the "Optionee"). W I T N E S S E T H : WHEREAS, on March 8, 1994, the Board of Directors of the Company (the "Board") approved the grant of stock options to purchase shares of the Company's common stock, $.001 par value (the "Common Stock"), to certain officers, directors and employees of the Company, including the Optionee, which options were canceled and then regranted by the Board on June 10, 1994; WHEREAS, it is the intention of the parties that this Agreement memorialize and confirm the terms and conditions of the grant as previously approved by the Board; and WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option ("Nonqualified Stock Option"), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Grant. (a) Option. Subject to the terms and conditions of this Agreement, the Company confirms the grant to the Optionee of a Nonqualified Stock Option to purchase from the Company all, or any part, of the aggregate number of 60,000 shares of Common Stock (hereinafter referred to as the "Optioned Shares," and the option to purchase the Optioned Shares referred to as the "Option"). (b) Reload Option. In addition to the Option granted hereby (the "Underlying Option"), the Company will grant to the Optionee a reload option (the "Reload Option") if the Optionee acquires shares of Common Stock pursuant to the exercise of the Underlying Option and pays for such shares and/or the tax obligation incurred by reason of the exercise of the Underlying Option (the "withholding taxes") with shares of Common Stock already owned by, or otherwise issuable to, the Optionee (the "Tendered Shares"). The Reload Option grants to the Optionee the right to purchase shares of Common Stock equal in number to the number of Tendered Shares. The date on which the Tendered Shares are tendered to, or withheld by, the Company in full or partial payment of the purchase price and withholding taxes for the shares of Common Stock acquired pursuant to the exercise of the Underlying Option is the Reload Grant Date. The exercise price of the Reload Option is the fair market value of the Tendered Shares on the Reload Grant Date. The fair market value of the Tendered Shares shall be the closing bid price per share of the Company's Common Stock on the Reload Grant Date. The Reload Option shall be fully exercisable as of the Reload Grant Date. The Reload Option shall expire on June 9, 2004. Except as provided herein, the Reload Option is subject to all of the other terms and provisions of this Agreement governing the Option. 2. Option Price. The price to be paid for the Optioned Shares shall be $1.00 per share. 3. Time of Exercise. The Option is fully exercisable and may be exercised by the Optionee in whole or in part at any time and from time to time, after the date hereof. 4. Manner of Exercise and Payment. The Option may be exercised only by written notice to the Company by the Optionee of the Optionee's intent to exercise the Option, delivered to the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by full payment for such shares: (a) in cash or its equivalent; (b) with the consent of the Board, by tendering shares of Common Stock valued at their fair market value at the time of exercise; or (c) with the consent of the Board, by any combination of (a) and (b). 5. Issuance of Stock Certificates. Upon satisfaction of the conditions of Section 4, the Company shall promptly deliver to the Optionee a certificate or certificates for the number of shares of Common Stock in respect of which Options have been exercised, legended to reflect the agreements and conditions applicable to such shares referred to in Section 11. 6. Nontransferability of Option. The Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. 7. Term. The Option shall expire on June 9, 2004, and shall not be exercisable thereafter. 8. Termination of Employment. The Option shall terminate and shall not be exercisable upon the date of expiration specified in Section 7 hereof and shall not otherwise terminate as a result of a termination of Optionee's employment with the Company. 9. Tax Withholding. (a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 9, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option. (b) With the consent of the Board, the Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of Shares, in each case, having a fair market value at the time of exercise, as determined by the Board, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise. The shares so withheld or delivered shall be free of all adverse claims and shall be endorsed in blank by the Optionee or accompanied by stock powers duly endorsed in blank. 10. Capital Adjustments Affecting Stock. In the event of a capital adjustment resulting from a stock dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, reclassification, combination or exchange of shares, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. To the extent deemed equitable and appropriate by the Board, subject to any required action by shareholders, in any merger, consolidation, reorganization, liquidation or dissolution, the Option shall pertain to the securities and other property to which a holder of the number of shares of stock covered by the Option would have been entitled to receive in connection with any such event. 11. Restriction on Transfer of Common Stock. The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act") or any applicable state securities laws, (ii) in a transaction satisfying the requirements of Rule 144 promulgated under the Act, or (iii) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act or applicable state securities laws. The Optionee agrees that any certificate representing shares acquired upon exercise of the Option may bear the following legend: The shares of Common Stock represented by this certificate are restricted securities as that term is defined under Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act"). These shares may not be sold, transferred or disposed of unless they are registered under the Act, sold in a transaction satisfying the requirements of Rule 144 or unless the request to transfer is accompanied by an opinion of counsel acceptable to the issuer, that the transfer will not result in a violation of the Act or any applicable state securities laws. 12. Specific Restrictions Upon Optioned Shares. The Optionee hereby agrees with the Company that the Optionee shall acquire the Optioned Shares for investment purposes only and not with a view to resale or other distribution thereof to the public in violation of the Act, and shall not dispose of the Optioned Shares in any transaction which, in the opinion of counsel to the Company, would violate the Act, or the rules and regulations thereunder, or any applicable state securities or blue sky laws. 13. Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor. 14. Power of Company Not Affected. The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 15. Amendment or Modification. No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought. 16. Governing Law. This Agreement shall be governed by the internal laws of the State of Florida as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. 17. Entire Agreement. This Agreement entered into between the Optionee and the Company sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled. 18. Delegation by Board. Except to the extent prohibited by applicable law or the applicable rules of a stock exchange or market, the Board may delegate all or any portion of its responsibilities and powers to any one or more of its members. Any such delegation may be revoked by the Board at any time. 19. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring all or substantially all of the Company's assets and business. In the event of the Optionee's death prior to exercise of the Option, the Option may be exercised by the estate of the Optionee to the extent such exercise is otherwise permitted by this Agreement. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written. EXCAL ENTERPRISES, INC. By: Timothy R. Barnes Title: Vice President/CFO OPTIONEE: /s/ Aris Newton ARIS NEWTON EX-4 4 This Agreement constitutes part of a Prospectus covering securities that have been registered under the Securities Act of 1933. EXCAL ENTERPRISES, INC. NONQUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, made and entered into as of this 18th day of February, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation formerly known as Assix International, Inc. (the "Company"), and JOHN L. CASKEY, a director of the Company (the "Optionee"). W I T N E S S E T H : WHEREAS, on March 8, 1994, the Board of Directors of the Company (the "Board") approved the grant of stock options to purchase shares of the Company's common stock, $.001 par value (the "Common Stock"), to certain officers, directors and employees of the Company, including the Optionee, which options were canceled and then regranted by the Board on June 10, 1994; WHEREAS, it is the intention of the parties that this Agreement memorialize and confirm the terms and conditions of the grant as previously approved by the Board; and WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option ("Nonqualified Stock Option"), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Grant. (a) Option. Subject to the terms and conditions of this Agreement, the Company confirms the grant to the Optionee of a Nonqualified Stock Option to purchase from the Company all, or any part, of the aggregate number of 35,000 shares of Common Stock (hereinafter referred to as the "Optioned Shares," and the option to purchase the Optioned Shares referred to as the "Option"). (b) Reload Option. In addition to the Option granted hereby (the "Underlying Option"), the Company will grant to the Optionee a reload option (the "Reload Option") if the Optionee acquires shares of Common Stock pursuant to the exercise of the Underlying Option and pays for such shares and/or the tax obligation incurred by reason of the exercise of the Underlying Option (the "withholding taxes") with shares of Common Stock already owned by, or otherwise issuable to, the Optionee (the "Tendered Shares"). The Reload Option grants to the Optionee the right to purchase shares of Common Stock equal in number to the number of Tendered Shares. The date on which the Tendered Shares are tendered to, or withheld by, the Company in full or partial payment of the purchase price and withholding taxes for the shares of Common Stock acquired pursuant to the exercise of the Underlying Option is the Reload Grant Date. The exercise price of the Reload Option is the fair market value of the Tendered Shares on the Reload Grant Date. The fair market value of the Tendered Shares shall be the closing bid price per share of the Company's Common Stock on the Reload Grant Date. The Reload Option shall be fully exercisable as of the Reload Grant Date. The Reload Option shall expire on June 9, 2004. Except as provided herein, the Reload Option is subject to all of the other terms and provisions of this Agreement governing the Option. 2. Option Price. The price to be paid for the Optioned Shares shall be $1.00 per share. 3. Time of Exercise. The Option is fully exercisable and may be exercised by the Optionee in whole or in part at any time and from time to time, after the date hereof. 4. Manner of Exercise and Payment. The Option may be exercised only by written notice to the Company by the Optionee of the Optionee's intent to exercise the Option, delivered to the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by full payment for such shares: (a) in cash or its equivalent; (b) with the consent of the Board, by tendering shares of Common Stock valued at their fair market value at the time of exercise; or (c) with the consent of the Board, by any combination of (a) and (b). 5. Issuance of Stock Certificates. Upon satisfaction of the conditions of Section 4, the Company shall promptly deliver to the Optionee a certificate or certificates for the number of shares of Common Stock in respect of which Options have been exercised, legended to reflect the agreements and conditions applicable to such shares referred to in Section 10. 6. Nontransferability of Option. The Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. 7. Term. The Option shall expire on June 9, 2004, and shall not be exercisable thereafter. 8. Tax Withholding. (a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 8, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option. (b) With the consent of the Board, the Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of Shares, in each case, having a fair market value at the time of exercise, as determined by the Board, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise. The shares so withheld or delivered shall be free of all adverse claims and shall be endorsed in blank by the Optionee or accompanied by stock powers duly endorsed in blank. 9. Capital Adjustments Affecting Stock. In the event of a capital adjustment resulting from a stock dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, reclassification, combination or exchange of shares, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. To the extent deemed equitable and appropriate by the Board, subject to any required action by shareholders, in any merger, consolidation, reorganization, liquidation or dissolution, the Option shall pertain to the securities and other property to which a holder of the number of shares of stock covered by the Option would have been entitled to receive in connection with any such event. 10. Restriction on Transfer of Common Stock. The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act") or any applicable state securities laws, (ii) in a transaction satisfying the requirements of Rule 144 promulgated under the Act, or (iii) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act or applicable state securities laws. The Optionee agrees that any certificate representing shares acquired upon exercise of the Option may bear the following legend: The shares of Common Stock represented by this certificate are restricted securities as that term is defined under Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act"). These shares may not be sold, transferred or disposed of unless they are registered under the Act, sold in a transaction satisfying the requirements of Rule 144 or unless the request to transfer is accompanied by an opinion of counsel acceptable to the issuer, that the transfer will not result in a violation of the Act or any applicable state securities laws. 11. Specific Restrictions Upon Optioned Shares. The Optionee hereby agrees with the Company that the Optionee shall acquire the Optioned Shares for investment purposes only and not with a view to resale or other distribution thereof to the public in violation of the Act, and shall not dispose of the Optioned Shares in any transaction which, in the opinion of counsel to the Company, would violate the Act, or the rules and regulations thereunder, or any applicable state securities or blue sky laws. 12. Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor. 13. Power of Company Not Affected. The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 14. Amendment or Modification. No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought. 15. Governing Law. This Agreement shall be governed by the internal laws of the State of Florida as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. 16. Entire Agreement. This Agreement entered into between the Optionee and the Company sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled. 17. Delegation by Board. Except to the extent prohibited by applicable law or the applicable rules of a stock exchange or market, the Board may delegate all or any portion of its responsibilities and powers to any one or more of its members. Any such delegation may be revoked by the Board at any time. 18. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring all or substantially all of the Company's assets and business. In the event of the Optionee's death prior to exercise of the Option, the Option may be exercised by the estate of the Optionee to the extent such exercise is otherwise permitted by this Agreement. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written. EXCAL ENTERPRISES, INC. By: Timothy R. Barnes Title: Vice President/CFO OPTIONEE: /s/ John L .Caskey JOHN L. CASKEY EX-4 5 This Agreement constitutes part of a Prospectus covering securities that have been registered under the Securities Act of 1933. EXCAL ENTERPRISES, INC. NONQUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, made and entered into as of this 18th day of February, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation formerly known as Assix International, Inc. (the "Company"), and Aris Newton, a director of the Company (the "Optionee"). W I T N E S S E T H : WHEREAS, on September 10, 1997, the Board of Directors of the Company (the "Board") approved the grant of stock options to purchase shares of the Company's common stock, $.001 par value (the "Common Stock"), to each of the directors of the Company, including the Optionee; WHEREAS, it is the intention of the parties that this Agreement memorialize and confirm the terms and conditions of the grant as previously approved by the Board; and WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option ("Nonqualified Stock Option"), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Grant. (a) Option. Subject to the terms and conditions of this Agreement, the Company confirms the grant to the Optionee of a Nonqualified Stock Option to purchase from the Company all, or any part, of the aggregate number of 10,000 shares of Common Stock (hereinafter referred to as the "Optioned Shares," and the option to purchase the Optioned Shares referred to as the "Option"). (b) Reload Option. In addition to the Option granted hereby (the "Underlying Option"), the Company will grant to the Optionee a reload option (the "Reload Option") if the Optionee acquires shares of Common Stock pursuant to the exercise of the Underlying Option and pays for such shares and/or the tax obligation incurred by reason of the exercise of the Underlying Option (the "withholding taxes") with shares of Common Stock already owned by, or otherwise issuable to, the Optionee (the "Tendered Shares"). The Reload Option grants to the Optionee the right to purchase shares of Common Stock equal in number to the number of Tendered Shares. The date on which the Tendered Shares are tendered to, or withheld by, the Company in full or partial payment of the purchase price and withholding taxes for the shares of Common Stock acquired pursuant to the exercise of the Underlying Option is the Reload Grant Date. The exercise price of the Reload Option is the fair market value of the Tendered Shares on the Reload Grant Date. The fair market value of the Tendered Shares shall be the closing bid price per share of the Company's Common Stock on the Reload Grant Date. The Reload Option shall be fully exercisable as of the Reload Grant Date. The Reload Option shall expire on September 9, 2007. Except as provided herein, the Reload Option is subject to all of the other terms and provisions of this Agreement governing the Option. 2. Option Price. The price to be paid for the Optioned Shares shall be $4.687 per share. 3. Time of Exercise. The Option is fully exercisable and may be exercised by the Optionee in whole or in part at any time and from time to time, after the date hereof. 4. Manner of Exercise and Payment. The Option may be exercised only by written notice to the Company by the Optionee of the Optionee's intent to exercise the Option, delivered to the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by full payment for such shares: (a) in cash or its equivalent; (b) with the consent of the Board, by tendering shares of Common Stock valued at their fair market value at the time of exercise; or (c) with the consent of the Board, by any combination of (a) and (b). 5. Issuance of Stock Certificates. Upon satisfaction of the conditions of Section 4, the Company shall promptly deliver to the Optionee a certificate or certificates for the number of shares of Common Stock in respect of which Options have been exercised, legended to reflect the agreements and conditions applicable to such shares referred to in Section 11. 6. Nontransferability of Option. The Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. 7. Term. The Option shall expire on September 9, 2007, and shall not be exercisable thereafter. 8. Termination of Employment. The Option shall terminate and shall not be exercisable upon the date of expiration specified in Section 7 hereof and shall not otherwise terminate as a result of a termination of Optionee's employment with the Company. 9. Tax Withholding. (a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 9, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option. (b) With the consent of the Board, the Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of Shares, in each case, having a fair market value at the time of exercise, as determined by the Board, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise. The shares so withheld or delivered shall be free of all adverse claims and shall be endorsed in blank by the Optionee or accompanied by stock powers duly endorsed in blank. 10. Capital Adjustments Affecting Stock. In the event of a capital adjustment resulting from a stock dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, reclassification, combination or exchange of shares, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. To the extent deemed equitable and appropriate by the Board, subject to any required action by shareholders, in any merger, consolidation, reorganization, liquidation or dissolution, the Option shall pertain to the securities and other property to which a holder of the number of shares of stock covered by the Option would have been entitled to receive in connection with any such event. 11. Restriction on Transfer of Common Stock. The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act") or any applicable state securities laws, (ii) in a transaction satisfying the requirements of Rule 144 promulgated under the Act, or (iii) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act or applicable state securities laws. The Optionee agrees that any certificate representing shares acquired upon exercise of the Option may bear the following legend: The shares of Common Stock represented by this certificate are restricted securities as that term is defined under Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act"). These shares may not be sold, transferred or disposed of unless they are registered under the Act, sold in a transaction satisfying the requirements of Rule 144 or unless the request to transfer is accompanied by an opinion of counsel acceptable to the issuer, that the transfer will not result in a violation of the Act or any applicable state securities laws. 12. Specific Restrictions Upon Optioned Shares. The Optionee hereby agrees with the Company that the Optionee shall acquire the Optioned Shares for investment purposes only and not with a view to resale or other distribution thereof to the public in violation of the Act, and shall not dispose of the Optioned Shares in any transaction which, in the opinion of counsel to the Company, would violate the Act, or the rules and regulations thereunder, or any applicable state securities or blue sky laws. 13. Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor. 14. Power of Company Not Affected. The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 15. Amendment or Modification. No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought. 16. Governing Law. This Agreement shall be governed by the internal laws of the State of Florida as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. 17. Entire Agreement. This Agreement entered into between the Optionee and the Company sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled. 18. Delegation by Board. Except to the extent prohibited by applicable law or the applicable rules of a stock exchange or market, the Board may delegate all or any portion of its responsibilities and powers to any one or more of its members. Any such delegation may be revoked by the Board at any time. 19. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring all or substantially all of the Company's assets and business. In the event of the Optionee's death prior to exercise of the Option, the Option may be exercised by the estate of the Optionee to the extent such exercise is otherwise permitted by this Agreement. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written. EXCAL ENTERPRISES, INC. By: Timothy R. Barnes Title: Vice President/CFO OPTIONEE: /s/ Aris Newton ARIS NEWTON EX-4 6 This Agreement constitutes part of a Prospectus covering securities that have been registered under the Securities Act of 1933. EXCAL ENTERPRISES, INC. NONQUALIFIED STOCK OPTION AGREEMENT THIS AGREEMENT, made and entered into as of this 18th day of February, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware corporation formerly known as Assix International, Inc. (the "Company"), and JOHN L. CASKEY, a director of the Company (the "Optionee"). W I T N E S S E T H : WHEREAS, on September 10, 1997, the Board of Directors of the Company (the "Board") approved the grant of stock options to purchase shares of the Company's common stock, $.001 par value (the "Common Stock"), to each of the directors of the Company, including the Optionee; WHEREAS, it is the intention of the parties that this Agreement memorialize and confirm the terms and conditions of the grant as previously approved by the Board; and WHEREAS, the option granted under this Agreement is not intended to constitute an incentive stock option ("Nonqualified Stock Option"), as defined in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Grant. (a) Option. Subject to the terms and conditions of this Agreement, the Company confirms the grant to the Optionee of a Nonqualified Stock Option to purchase from the Company all, or any part, of the aggregate number of 10,000 shares of Common Stock (hereinafter referred to as the "Optioned Shares," and the option to purchase the Optioned Shares referred to as the "Option"). (b) Reload Option. In addition to the Option granted hereby (the "Underlying Option"), the Company will grant to the Optionee a reload option (the "Reload Option") if the Optionee acquires shares of Common Stock pursuant to the exercise of the Underlying Option and pays for such shares and/or the tax obligation incurred by reason of the exercise of the Underlying Option (the "withholding taxes") with shares of Common Stock already owned by, or otherwise issuable to, the Optionee (the "Tendered Shares"). The Reload Option grants to the Optionee the right to purchase shares of Common Stock equal in number to the number of Tendered Shares. The date on which the Tendered Shares are tendered to, or withheld by, the Company in full or partial payment of the purchase price and withholding taxes for the shares of Common Stock acquired pursuant to the exercise of the Underlying Option is the Reload Grant Date. The exercise price of the Reload Option is the fair market value of the Tendered Shares on the Reload Grant Date. The fair market value of the Tendered Shares shall be the closing bid price per share of the Company's Common Stock on the Reload Grant Date. The Reload Option shall be fully exercisable as of the Reload Grant Date. The Reload Option shall expire on September 9, 2007. Except as provided herein, the Reload Option is subject to all of the other terms and provisions of this Agreement governing the Option. 2. Option Price. The price to be paid for the Optioned Shares shall be $4.687 per share. 3. Time of Exercise. The Option is fully exercisable and may be exercised by the Optionee in whole or in part at any time and from time to time, after the date hereof. 4. Manner of Exercise and Payment. The Option may be exercised only by written notice to the Company by the Optionee of the Optionee's intent to exercise the Option, delivered to the Company at its principal office, specifying the number of shares with respect to which the Option is being exercised, accompanied by full payment for such shares: (a) in cash or its equivalent; (b) with the consent of the Board, by tendering shares of Common Stock valued at their fair market value at the time of exercise; or (c) with the consent of the Board, by any combination of (a) and (b). 5. Issuance of Stock Certificates. Upon satisfaction of the conditions of Section 4, the Company shall promptly deliver to the Optionee a certificate or certificates for the number of shares of Common Stock in respect of which Options have been exercised, legended to reflect the agreements and conditions applicable to such shares referred to in Section 10. 6. Nontransferability of Option. The Option is not transferable by the Optionee otherwise than by will or the laws of descent and distribution. 7. Term. The Option shall expire on September 9, 2007, and shall not be exercisable thereafter. 8. Tax Withholding. (a) It shall be a condition of the obligation of the Company to issue or transfer shares of Common Stock upon exercise of the Option, that the Optionee shall pay to the Company upon its demand, or agree that the Company may withhold from compensation due the Optionee, such amount as may be requested by the Company for the purpose of satisfying its liability to withhold federal, state or local income or other taxes incurred by reason of the exercise of the Option. If the Optionee fails to comply with this Section 8, the Company may refuse to issue or transfer shares of Common Stock upon exercise of the Option. (b) With the consent of the Board, the Optionee may elect to have the Company withhold that number of Optioned Shares otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of Shares, in each case, having a fair market value at the time of exercise, as determined by the Board, equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and delivered to the Company on or prior to the date of exercise. The shares so withheld or delivered shall be free of all adverse claims and shall be endorsed in blank by the Optionee or accompanied by stock powers duly endorsed in blank. 9. Capital Adjustments Affecting Stock. In the event of a capital adjustment resulting from a stock dividend, stock split, spin-off, reorganization, recapitalization, merger, consolidation, reclassification, combination or exchange of shares, the Optioned Shares shall be adjusted in a manner consistent with such capital adjustment. The price of any shares under the Option shall be adjusted such that there will be no change in the aggregate purchase price payable upon exercise of the Option. To the extent deemed equitable and appropriate by the Board, subject to any required action by shareholders, in any merger, consolidation, reorganization, liquidation or dissolution, the Option shall pertain to the securities and other property to which a holder of the number of shares of stock covered by the Option would have been entitled to receive in connection with any such event. 10. Restriction on Transfer of Common Stock. The shares to be acquired upon exercise of the Option may not be sold or offered for sale except (i) pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Act") or any applicable state securities laws, (ii) in a transaction satisfying the requirements of Rule 144 promulgated under the Act, or (iii) in a transaction which, in the opinion of counsel for the Company, is exempt from the registration provisions of the Act or applicable state securities laws. The Optionee agrees that any certificate representing shares acquired upon exercise of the Option may bear the following legend: The shares of Common Stock represented by this certificate are restricted securities as that term is defined under Rule 144 promulgated under the Securities Act of 1933, as amended (the "Act"). These shares may not be sold, transferred or disposed of unless they are registered under the Act, sold in a transaction satisfying the requirements of Rule 144 or unless the request to transfer is accompanied by an opinion of counsel acceptable to the issuer, that the transfer will not result in a violation of the Act or any applicable state securities laws. 11. Specific Restrictions Upon Optioned Shares. The Optionee hereby agrees with the Company that the Optionee shall acquire the Optioned Shares for investment purposes only and not with a view to resale or other distribution thereof to the public in violation of the Act, and shall not dispose of the Optioned Shares in any transaction which, in the opinion of counsel to the Company, would violate the Act, or the rules and regulations thereunder, or any applicable state securities or blue sky laws. 12. Rights as Shareholder. The Optionee shall not be deemed for any purposes to be a shareholder of the Company with respect to any of the Optioned Shares except to the extent that the Option shall have been exercised, such shares shall have been fully paid, and a stock certificate issued therefor. 13. Power of Company Not Affected. The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stock ahead of or affecting the Common Stock or the rights thereof, or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. 14. Amendment or Modification. No term or provision of this Agreement may be amended, modified or supplemented orally, but only by an instrument in writing signed by the party against which or whom the enforcement of the amendment, modification or supplement is sought. 15. Governing Law. This Agreement shall be governed by the internal laws of the State of Florida as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. 16. Entire Agreement. This Agreement entered into between the Optionee and the Company sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and canceled. 17. Delegation by Board. Except to the extent prohibited by applicable law or the applicable rules of a stock exchange or market, the Board may delegate all or any portion of its responsibilities and powers to any one or more of its members. Any such delegation may be revoked by the Board at any time. 18. Heirs and Successors. This Agreement shall be binding upon, and inure to the benefit of, the Company and its successors and assigns, and upon any person acquiring all or substantially all of the Company's assets and business. In the event of the Optionee's death prior to exercise of the Option, the Option may be exercised by the estate of the Optionee to the extent such exercise is otherwise permitted by this Agreement. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer, and the Optionee has executed this Agreement as of the day and year first above written. EXCAL ENTERPRISES, INC. By: Timothy R. Barnes Title: Vice President/CFO OPTIONEE: /s/ John L. Caskey JOHN L. CASKEY EX-5 7 FOLEY & LARDNER POST OFFICE BOX 240 JACKSONVILLE, FLORIDA 32202-3510 200 LAURA STREET, JACKSONVILLE, FLORIDA 32202-3527 TELEPHONE (904) 359-2000 FACSIMILE (904) 359-8700 March 25, 1998 Excal Enterprises, Inc. 100 N. Tampa St., Suite 3575 Tampa, Florida 33602 Re: Registration Statement on Form S-8 Relating to Shares of Common Stock Issuable Pursuant to Various Agreements with W. Carey Webb, W. Aris Newton and John L. Caskey Ladies and Gentlemen: This opinion is being furnished in connection with the Registration Statement on Form S-8 (the "Registration Statement") of Excal Enterprises, Inc. (the "Company"), under the Securities Act of 1933, as amended, for the registration of up to 547,500 shares of common stock par value $0.001 (the "Shares") issuable pursuant to the following agreements (collectively, the "Agreements"): (i) an Employment Agreement dated August 15, 1994 between the Company and W. Carey Webb, the Company's President and Chief Executive Officer, as amended by First Amendment to Employment Agreement between the Company and Carey Webb dated April 3, 1996 and as supplemented by a Nonqualified Stock Option Agreement between the Company and Carey Webb dated February 18, 1998 (collectively, the "Webb Agreements"); (ii) a Nonqualified Stock Option Agreement dated February 18, 1998 between the Company and Aris Newton, a Vice President and director of the Company, and a Nonqualified Stock Option Agreement dated February 18, 1998 between the Company and Aris Newton (the "A. Newton Agreements"); and (iii) a Nonqualified Stock Option Agreement dated February 18, 1998 between the Company and John L. Caskey, a director of the Company, and a Nonqualified Stock Option Agreement dated February 18, 1998 (the "Caskey Agreements"). We have examined and are familiar with the following: A. Certificate of Incorporation of the Company, as amended, as filed in the Office of the Secretary of State of the State of Delaware; B. Bylaws of the Company; C. The proceedings of the Board of Directors of the Company in connection with the approval of the Agreements; and D. Such other documents, Company records and matters of law as we have deemed to be pertinent. Based on the foregoing, it is our opinion that: 1. The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Delaware. 2. The Shares have been duly authorized and when issued in accordance with the terms of the Agreements will be duly and validly issued, fully paid and nonassessable. We hereby consent to the inclusion of this opinion as Exhibit 5 in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder. FOLEY & LARDNER By: /s/ Linda Y. Kelso Linda Y. Kelso EX-23 8 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 8, 1997, which appears on page F-1 of the Annual Report on Form 10-KSB for the fiscal year ended June 30, 1997 of Excal Enterprises, Inc. Pender Newkirk & Company Certified Public Accountants Tampa, Florida March 25, 1998 -----END PRIVACY-ENHANCED MESSAGE-----