NO This Agreement constitutes part of a Prospectus covering securities that
have been registered under the Securities Act of 1933.
EXCAL ENTERPRISES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this 28th day of
September, 1998, by and between EXCAL ENTERPRISES, INC., a Delaware
corporation formerly known as Assix International, Inc. (the "Company"),
and W. XXXXX XXXX, an employee of the Company (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Board of Directors of the Company (the "Board")
granted a stock option on August 15, 1994 to purchase 250,000 shares of the
Company's common stock, $.001 par value (the "Common Stock"), which
contained a provision to grant a Reload Option if the Optionee paid the
exercise price or tax obligation resulting from the exercise of the option
with shares already owned or otherwise issuable to the Optionee; and,
WHEREAS, the Optionee exercised such option and paid the tax
obligation with shares issuable to the Optionee from the exercise of the
option; and,
WHEREAS, the option granted under this Agreement is not intended
to constitute an incentive stock option ("Nonqualified Stock Option"), as
defined in Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code");
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Grant. Subject to the terms and conditions of this
Agreement, the Company confirms the grant to the Optionee of a Nonqualified
Stock Option to purchase from the Company all, or any part, of the
aggregate number of 78,837 shares of Common Stock (hereinafter referred to
as the "Optioned Shares," and the option to purchase the Optioned Shares
referred to as the "Option").
2. Option Price. The price to be paid for the Optioned Shares
shall be $4.875 per share.
3. Time of Exercise. The Option is fully exercisable as of the
date of this Agreement and may be exercised by the Optionee in whole or in
part at any time and from time to time, after the date hereof.
4. Manner of Exercise and Payment. The Option may be exercised
only by written notice to the Company by the Optionee of the Optionee's
intent to exercise the Option, delivered to the Company at its principal
office, specifying the number of shares with respect to which the Option is
being exercised, accompanied by full payment for such shares: (a) in cash
or its equivalent; (b) with the consent of the Board, by tendering shares
of Common Stock valued at their fair market value at the time of exercise;
or (c) with the consent of the Board, by any combination of (a) and (b).
5. Issuance of Stock Certificates. Upon satisfaction of the
conditions of Section 4, the Company shall promptly deliver to the Optionee
a certificate or certificates for the number of shares of Common Stock in
respect of which Options have been exercised, legended to reflect the
agreements and conditions applicable to such shares referred to in Section
11.
6. Nontransferability of Option. The Option is not
transferable by the Optionee otherwise than by will or the laws of descent
and distribution.
7. Term. The Option shall expire on August 15, 2004, and shall
not be exercisable thereafter.
8. Termination of Employment.
(a) The Option shall terminate and shall not be exercisable
upon the date of expiration specified in Section 7 hereof and shall not
otherwise terminate as a result of a termination of Optionee's employment
with the Company; and
(b) In the event of a Termination Upon Change of Control
(as defined in the Employment Agreement), the Optionee shall have the
immediate right to compel the purchase by the Company of all Optioned
Shares at a price per share equal to the greater of (i) the average of the
bid and asked prices per share of Common Stock on the business day
immediately preceding the Change of Control (as defined in the Employment
Agreement); or (ii) $7.50 per share.
9. Tax Withholding.
(a) It shall be a condition of the obligation of the
Company to issue or transfer shares of Common Stock upon exercise of the
Option, that the Optionee shall pay to the Company upon its demand, or
agree that the Company may withhold from compensation due the Optionee,
such amount as may be requested by the Company for the purpose of
satisfying its liability to withhold federal, state or local income or
other taxes incurred by reason of the exercise of the Option. If the
Optionee fails to comply with this Section 9, the Company may refuse to
issue or transfer shares of Common Stock upon exercise of the Option.
(b) With the consent of the Board, the Optionee may elect
to have the Company withhold that number of Optioned Shares otherwise
issuable to the Optionee upon exercise of the Option or to deliver to the
Company a number of Shares, in each case, having a fair market value at the
time of exercise, as determined by the Board, equal to the minimum amount
required to be withheld as a result of such exercise. The election must be
made in writing and delivered to the Company on or prior to the date of
exercise. The shares so withheld or delivered shall be free of all adverse
claims and shall be endorsed in blank by the Optionee or accompanied by
stock powers duly endorsed in blank.
10. Capital Adjustments Affecting Stock. In the event of a
capital adjustment resulting from a stock dividend, stock split, spin-off,
reorganization, recapitalization, merger, consolidation, reclassification,
combination or exchange of shares, the Optioned Shares shall be adjusted in
a manner consistent with such capital adjustment. The price of any shares
under the Option shall be adjusted such that there will be no change in the
aggregate purchase price payable upon exercise of the Option. To the
extent deemed equitable and appropriate by the Board, subject to any
required action by shareholders, in any merger, consolidation,
reorganization, liquidation or dissolution, the Option shall pertain to the
securities and other property to which a holder of the number of shares of
stock covered by the Option would have been entitled to receive in
connection with any such event.
11. Restriction on Transfer of Common Stock. The shares to be
acquired upon exercise of the Option may not be sold or offered for sale
except (i) pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Act") or any applicable state
securities laws, (ii) in a transaction satisfying the requirements of Rule
144 promulgated under the Act, or (iii) in a transaction which, in the
opinion of counsel for the Company, is exempt from the registration
provisions of the Act or applicable state securities laws. The Optionee
agrees that any certificate representing shares acquired upon exercise of
the Option may bear the following legend:
The shares of Common Stock represented by this
certificate are restricted securities as that term is
defined under Rule 144 promulgated under the Securities Act
of 1933, as amended (the "Act"). These shares may not be
sold, transferred or disposed of unless they are registered
under the Act, sold in a transaction satisfying the
requirements of Rule 144 or unless the request to transfer
is accompanied by an opinion of counsel acceptable to the
issuer, that the transfer will not result in a violation of
the Act or any applicable state securities laws.
12. Specific Restrictions Upon Optioned Shares. The Optionee
hereby agrees with the Company that the Optionee shall acquire the Optioned
Shares for investment purposes only and not with a view to resale or other
distribution thereof to the public in violation of the Act, and shall not
dispose of the Optioned Shares in any transaction which, in the opinion of
counsel to the Company, would violate the Act, or the rules and regulations
thereunder, or any applicable state securities or blue sky laws.
13. Rights as Shareholder. The Optionee shall not be deemed for
any purposes to be a shareholder of the Company with respect to any of the
Optioned Shares except to the extent that the Option shall have been
exercised, such shares shall have been fully paid, and a stock certificate
issued therefor.
14. Power of Company Not Affected. The existence of the Option
shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of the
Company, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Stock or the rights thereof, or
dissolution or liquidation of the Company, or any sale or transfer of all
or any part of its assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
15. Amendment or Modification. No term or provision of this
Agreement may be amended, modified or supplemented orally, but only by an
instrument in writing signed by the party against which or whom the
enforcement of the amendment, modification or supplement is sought.
16. Governing Law. This Agreement shall be governed by the
internal laws of the State of Florida as to all matters, including but not
limited to, matters of validity, construction, effect, performance and
remedies.
17. Entire Agreement. This Agreement entered into between the
Optionee and the Company sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto; and any prior agreement of
the parties hereto in respect of the subject matter contained herein, other
than the Employment Agreement, is hereby terminated and canceled.
18. Delegation by Board. Except to the extent prohibited by
applicable law or the applicable rules of a stock exchange or market, the
Board may delegate all or any portion of its responsibilities and powers to
any one or more of its members. Any such delegation may be revoked by the
Board at any time.
19. Heirs and Successors. This Agreement shall be binding upon,
and inure to the benefit of, the Company and its successors and assigns,
and upon any person acquiring all or substantially all of the Company's
assets and business. In the event of the Optionee's death prior to
exercise of the Option, the Option may be exercised by the estate of the
Optionee to the extent such exercise is otherwise permitted by this
Agreement.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer, and the Optionee has executed this
Agreement as of the day and year first above written.
EXCAL ENTERPRISES, INC.
By:
Title: Vice President/CFO
OPTIONEE:
W. XXXXX XXXX
