Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
CALTON ACQUISITION CORP.
ARTICLE I
CORPORATION NAME
The name of the corporation is Calton Acquisition Corp. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation's initial registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801, and the Corporation's registered agent at such address
is The Corporation Trust Company.
ARTICLE III
PURPOSE OF CORPORATION
The purpose for which the Corporation is organized is to engage in any
activity within the purposes for which corporations may be organized under the
Delaware General Corporation Law (the "DGCL").
ARTICLE IV
CAPITAL STOCK
Section 4.1. Total Number of Shares of Stock. The total number of shares of
all classes of stock which the Corporation has authority to issue is one hundred
ten million (110,000,000) consisting of one hundred million (100,000,000) shares
of Common Stock, $.01 par value (the "Common Stock"), and ten million
(10,000,000) shares of Preferred Stock, $.01 par value (the "Preferred Stock").
Section 4.2 Common Stock.
(a) The holders of shares of Common Stock shall be entitled to one vote for
each share so held with respect to all matters voted on by the stockholders of
the Corporation.
(b) Subject to any prior or superior right of the Preferred Stock, upon any
voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, after payment shall have been made to the holders of the
Preferred Stock of the full amount to which they are entitled, the holders of
Common Stock shall be entitled to receive that portion of the remaining funds to
be distributed. Such funds shall be paid to the holders of Common Stock on the
basis of the number of shares of Common Stock held by each of them.
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(c) Dividends may be paid on the Common Stock as and when declared by the
Board of Directors.
Section 4.3 Preferred Stock.
(a) The Preferred Stock may from time to time be divided into and issued in
series. The different series of Preferred Stock shall be established and
designated, and the variations in the relative rights and preferences as between
the different series shall be fixed and determined, by the Board of Directors as
hereinafter provided. In all other respects all shares of Preferred Stock shall
be identical.
(b) The Board of Directors is hereby expressly authorized, subject to the
provisions hereof, to establish series of Preferred Stock and to fix and
determine by vote providing for the issuance of such series:
(i) the distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased
(except where otherwise provided by the Board of Directors in creating such
series) or decreased (but not below the number of shares then outstanding)
from time to time by the Board of Directors;
(ii) the dividend rate or rates and preferences, if any, to which the
shares of such series shall be entitled, the times at and conditions upon
which dividends shall be paid, any limitations, restrictions or conditions
on the payment of dividends, and whether dividends shall be cumulative and,
if cumulative, the terms upon and dates from which such dividends shall be
cumulative, which dates may differ for shares of any one series issued at
different times;
(iii) whether or not the shares of such series shall be redeemable,
and, if redeemable, the redemption prices which the shares of such series
shall be entitled to receive and the terms and manner of redemption;
(iv) the preferences, if any, and the amounts which the shares of such
series shall be entitled to receive and all other special or relative
rights of the shares of such series, upon any voluntary or involuntary
liquidation, dissolution or winding up of, or upon any distribution of the
assets of, the Corporation;
(v) the obligation, if any, of the Corporation to maintain a purchase,
retirement or sinking fund for shares of such series and the provisions
with respect thereto;
(vi) the terms, if any, upon which the shares of such series shall be
convertible into, or exchangeable for, shares of any other class or classes
or of any other series of the same or any other class or classes of stock
of the Corporation, including the price or prices or the rate of conversion
or exchange and the terms of adjustments, if any;
(vii) the terms and conditions of the voting rights, if any, of the
holders of the shares of such series, including the conditions under which
the shares of such series shall vote as a separate class; and
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(viii) such other designations, preferences, powers, qualifications
and special or relative rights or privileges of such series to the full
extent now or hereafter permitted by the laws of the State of Delaware.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1 Initial Board of Directors.
The first Board of Directors of this Corporation shall consist of one (1)
director and the name and address of such person who is to serve as such
director is:
Name Address
---- -------
Anthony J. Caldarone 125 Half Mile Road
Suite 206
Red Bank, New Jersey 07701
Section 5.2 Voting Requirements. The vote of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
ARTICLE VI
LIMITATION ON LIABILITY OF DIRECTORS
No director of this Corporation shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of a
fiduciary duty as a director, except for liability (i) for any breach of a
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL as the same exists
or hereafter may be amended, or (iv) for any transaction from which the director
derived an improper benefit. If the DGCL hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then liability
of a director of the Corporation, in addition to limitation on personal
liability provided herein, shall be limited to the fullest extent permitted by
the amended DGCL. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall not
adversely affect any limitation on the personal liability of directors of the
Corporation existing at the time of such repeal or modification.
ARTICLE VII
BUSINESS COMBINATION WITH INTERESTED STOCKHOLDERS
The Corporation hereby elects not to be governed by Section 203 of the DGCL
as from time to time in effect or any successor provision thereto.
ARTICLE VIII
AMENDMENTS TO BY-LAWS
The Board of Directors shall have the power to adopt, amend or repeal the
By-laws.
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ARTICLE IX
COMPROMISE
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of the DGCL
or on the application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of the
Delaware DGCL, order a meeting of the creditors or class of creditors, and/or
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement, the
said compromise or arrangement and the said reorganization shall, if sanctioned
by the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE X
INDEMNIFICATION
The Corporation shall to the fullest extent permitted by section 145 of the
Delaware General Corporation Law, as the same may be amended or supplemented, or
by any successor thereto, indemnify and reimburse any and all persons whom it
shall have the power to indemnify under said section from and against any and
all of the expenses, liabilities or other matters referred to in, or covered by
said section. Notwithstanding the foregoing, the indemnification provided for in
this Article X shall not be deemed exclusive of any other rights to which those
entitled to receive indemnification or reimbursement hereunder may be entitled
under any By-law of the Corporation, agreement, vote of stockholders or
disinterested directors or otherwise.
ARTICLE XI
RESERVATION OF RIGHTS
The Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now
other hereafter provided by statute, and all rights conferred upon stockholders
herein or granted subject to this reservation.
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ARTICLE XII
INCORPORATOR
The name and address of the incorporator is:
Name Address
---- -------
Philip D. Forlenza Giordano, Halleran & Ciesla, P.C.
125 Half Mile Road
Middletown, New Jersey 07748
I, The Undersigned, for the purpose of forming a corporation under the laws
of the State of Delaware, do make, file and record this Certificate, and do
certify that the facts herein stated are true, and I have accordingly hereunto
set my hand as of April 18, 2000.
WITNESS:
------------------------- ------------------
Nancy S. Mark Philip D. Forlenza
Filed By:
Philip D. Forlenza, Esq.
Giordano, Halleran & Ciesla, P.C.
125 Half Mile Road
Middletown, New Jersey 07748
