As filed with the Securities and Exchange Commission on June 7, 1996
Registration No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_________________________
Calton, Inc.
(Exact Name of Registrant as Specified in its Charter)
New Jersey 22-2433361
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
500 Craig Road
Manalapan, New Jersey 07726-8790
(Address, including Zip Code, of Issuer's Principal Executive Offices)
__________________________
CALTON, INC. 1996 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
__________________________
ANTHONY J. CALDARONE
Chairman, President and Chief Executive Officer
Calton, Inc.
500 Craig Road
Manalapan, New Jersey 07726-8790
(908)780-1800
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
__________________________
Copies to:
PHILIP D. FORLENZA, ESQ.
Giordano, Halleran & Ciesla
A Professional Corporation
P.O. Box 190
125 Half Mile Road
Middletown, New Jersey 07748
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed maximum
Securities maximum aggregate Amount of
to be Amount to be offering price offering registration
registered (1) registered (2) per share (3) price (3) fee (3)
================ ============== ============== ========= ============
Common Stock,
$.01 par value 2,000,000 $0.44 $880,000.00 $304.00
Options to
purchase
Common Stock 2,000,000 --- --- ---
(1) Under the Calton, Inc. 1996 Equity Incentive Plan.
(2) This Registration Statement also covers such additional indeterminate
number of shares as may become issuable pursuant to anti-dilution
provisions of the Calton, Inc. 1996 Equity Incentive Plan to adjust for
the occurrence of certain corporate transactions or events including,
without limitation, a stock split, stock dividend, merger,
consolidation, reorganization or recapitalization.
(3) Estimated in accordance with Rule 457(h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the
registration fee and based upon the average of the high and low sale
prices of the Calton, Inc. Common Stock as reported on the consolidated
reporting system for the American Stock Exchange on June 5, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
This Registration Statement relates to the registration of two million
(2,000,000) shares of common stock, $.01 par value ("Common Stock"), of Calton,
Inc. ("Calton" or the "Company") to be sold pursuant to the exercise of stock
options granted to eligible employees and directors of the Company and its
subsidiaries under the Calton, Inc. 1996 Equity Incentive Plan (the "1996
Plan") and to be issued to non-employee directors of the Company under the 1996
Plan in lieu of cash director fees.
The documents containing the information about the 1996 Plan specified in Part
I of Form S-8 will be sent or given to participating employees and directors of
the Company as specified by Rule 428(b)(1) of Regulation C under the Securities
Act of 1933, as amended (the "Securities Act"), and such documents taken
together with the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8 shall constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The Company shall provide a written statement to participants in the 1996 Plan
and non-employee directors who elect to receive director fees in the form of
Common Stock advising them of the availability, without charge upon written or
oral request, of the documents incorporated by reference in Item 3 of Part II
of this Registration Statement, such documents which are incorporated by
reference into the Section 10(a) Prospectus, as well as of the documents
required to be delivered to them pursuant to Rule 428(b) of Regulation C under
the Securities Act. The address, title of the individual or department, and
telephone number to which the request is to be directed shall be provided to
participants in the 1996 Plan and non-employee directors who elect to receive
director fees in the form of Common Stock.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference in this
Registration Statement as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
November 30, 1995.
(b) From the date of filing of such documents, all other reports filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since November 30, 1995.
(c) The description of the Company's Common Stock contained in Amendment No.
1 to Post-Effective Amendment No. 3 to the Company's Registration Statement on
Form S-1 as filed with the Commission on May 20, 1996, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which indicates that all of the securities
offered hereunder have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and made a part hereof from the date of the filing of
such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The following summary describes the relevant terms and conditions with respect
to the indemnification of a corporate agent of the Company (the "Corporate
Agent"), including, without limitation, any person who is or was a director,
officer, employee or agent of the Company, pursuant to Article VI of the
Company's By-Laws (the "By-Laws") and Section 14A:3-5 of the New Jersey
Business Corporation Act (the "Corporation Act").
The Company shall indemnify a Corporate Agent against the Corporate Agent's
expenses and liabilities in connection with any proceeding involving the
Corporate Agent by reason of being or having been a Corporate Agent of the
Company, other than a proceeding by or in the right of the Company, if (a) such
Corporate Agent acts in good faith and in a manner that the Corporate Agent
reasonably believes to be in or not opposed to the best interests of the
Company, and (b) with respect to any criminal proceeding, such Corporate Agent
had no reasonable cause to believe that such conduct was unlawful.
In a proceeding by or in the right of the Company, a Corporate Agent shall be
indemnified by the Company for any expenses incurred if the Corporate Agent
acted in good faith and in a manner that the Corporate Agent reasonably
believed to be in or not opposed to the best interest of the Company. However,
if the Corporate Agent is adjudged to be liable to the Company, there shall be
no indemnification of the Corporate Agent's expenses unless and only to the
extent that the New Jersey Superior Court, or the court in which such
proceeding is brought, shall determine upon application that such Corporate
Agent is fairly and reasonably entitled to indemnity for such expenses.
Unless ordered by a court, the Company will indemnify a Corporate Agent against
expenses and liabilities only as authorized in a specific case upon a
determination by (a) a majority vote of a quorum of the Board of Directors of
the Company or a committee thereof, consisting of directors who were not
parties to or otherwise involved in the proceedings, or (b) by independent
legal counsel, or (c) by the shareholders of the Company, that indemnification
is proper in the circumstances because the Corporate Agent met the applicable
standard of conduct set forth above.
No indemnification shall be made by the Company to or on behalf of a Corporate
Agent if a judgment or other final adjudication adverse to the Corporate Agent
establishes that the Corporate Agent's acts or omissions (a) were in breach of
the Corporate Agent's duty of loyalty to the Company or its shareholders, (b)
were not in good faith or involved a knowing violation of law, or (c) resulted
in receipt by the Corporate Agent of an improper personal benefit.
The Company shall indemnify a Corporate Agent against expenses if the Corporate
agent is successful on the merits or otherwise in any proceeding involving the
Corporate Agent by reason of being or having been a Corporate Agent of the
Company.
The Company may pay the expenses incurred by a Corporate Agent in connection
with a proceeding in advance of the final disposition of the proceeding as
authorized by the Company's Board of Directors upon receipt of an undertaking
by or on behalf of the Corporate Agent to repay such amount if it is ultimately
determined that the Corporate Agent is not entitled to such indemnification.
The Company may purchase and maintain insurance on behalf of any Corporate
Agent against any such expenses and liabilities.
If upon application for indemnification by a Corporate Agent the Company
refuses to provide indemnification or advance payment of expenses to the
Corporate Agent as required or permitted under the By-Laws, the Corporate Agent
may apply to a court for an award of such indemnification and the payment in
advance of such expenses by the Company.
The indemnification and advancement of expenses provided pursuant to Article VI
of the Company's By-Laws shall not exclude any other rights to which a
Corporate Agent may be entitled under the Company's Restated Certificate of
Incorporation (the "Certificate of Incorporation"), other articles of the
By-Laws, agreement, vote of shareholders, or other proper corporate action in
effect at the time of the accrual of the alleged cause of action asserted in
the proceeding.
With respect to provisions included in the Company's Certificate of
Incorporation limiting the liability of officers and directors of the Company,
Article VIII of the Company's Certificate of Incorporation provides that to the
fullest extent permitted by the laws of the State of New Jersey, as they exist
or may hereafter be amended, the directors and officers of the Company shall
not be personally liable to the Company or its shareholders for damages as a
result of a breach of any duty owed to the Company or its shareholders, except
that the provisions of this Article VIII shall not relieve a director or
officer from liability for any breach of duty based upon an act or omission (a)
in breach of such person's duty of loyalty to the Company or its shareholders,
(b) not in good faith or involving a knowing violation of law, or (c) resulting
in receipt by such person of an improper personal benefit. This Article VIII
shall apply with respect to acts or omissions occurring prior to or after the
date of its adoption.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
======= ===========
5. Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23.01 Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed
with Exhibit 5).
24. Power of Attorney (filed with signature pages).
99. Calton, Inc. 1996 Equity Incentive Plan. (Incorporated
by reference to Appendix A to the Proxy Statement for
the Calton, Inc. 1996 Annual Meeting of Shareholders).
Item 9. Undertakings.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in such prospectus any facts or events arising after the effective date of the
Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement; and (iii) 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; provided, however, that (i) and (ii)
herein do not apply if the information required to be included in a
post-effective amendment by such provisions is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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 Company
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 Township of Manalapan, State of New Jersey, on the 6th day
of June, 1996.
CALTON, INC.
(Registrant)
By: /s/ Anthony J. Caldarone
Anthony J. Caldarone
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Anthony J. Caldarone, Robert A. Fourniadis and
Bradley A. Little and each of them, his true and lawful attorneys-in-fact and
agents for him and in his name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting 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 they might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents 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.
Signature Title Date
========= ===== ====
/s/ Anthony J. Caldarone Anthony J. Caldarone June 6, 1996
- --------------------------- President, Chief Executive
Officer and Director (Principal
Executive Officer)
/s/ Bradley A. Little Bradley A. Little June 6, 1996
- --------------------------- Senior Vice President-Finance,
Treasurer & Chief Financial
Officer, (Principal Financial
and Accounting Officer)
/s/ J. Ernest Brophy J. Ernest Brophy June 6, 1996
- --------------------------- Director
/s/ Mark N. Fessel Mark N. Fessel June 6, 1996
- --------------------------- Director
/s/ Frank Cavell Smith, Jr. Frank Cavell Smith, Jr. June 6, 1996
- --------------------------- Director
EXHIBIT INDEX
Exhibit
Number Description
======= ===========
5. Opinion and Consent of Giordano,
Halleran & Ciesla, P.C.
23.01 Consent of Coopers & Lybrand L.L.P.
23.02 Consent of Giordano, Halleran &
Ciesla, P.C. (filed with Exhibit 5).
24. Power of Attorney (filed with signature pages).
y 99. Calton, Inc. 1996 Equity Incentive Plan.
____________________
y Incorporated by reference to Appendix A to the Proxy Statement for the
Calton, Inc. 1996 Annual Meeting of Shareholders.
CALTON, INC.
FORM S-8
EXHIBIT 5
OPINION AND CONSENT OF
GIORDANO, HALLERAN & CIESLA
DATED JUNE 7, 1996
June 7, 1996
Calton, Inc.
500 Craig Road
Manalapan, New Jersey 07726-8790
Re: Registration Statement on Form S-8
relating to the Calton, Inc. 1996 Equity Incentive Plan
Gentlemen:
We refer to the Registration Statement on Form S-8 under the Securities
Act of 1933, as amended (the "Registration Statement"), filed on this date by
Calton, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"), to which this opinion letter is attached as an exhibit, for the
registration of 2,000,000 shares of the Company's common stock, $.01 par value
per share ("Common Stock"), which have been reserved for issuance under the
Calton, Inc. 1996 Equity Incentive Plan (the "Equity Incentive Plan") and
which may be issued by the Company upon the exercise of options granted under
the Equity Incentive Plan or issued to non-employee directors of the Company
in lieu of cash director fees.
We have examined the original or a photostatic or certified copy of such
documents, records and other information as we deemed relevant and necessary as
the basis for the opinion set forth below. In such examination, we have assumed
the authenticity of each document submitted to us as an original, the conformity
to the original document of each document submitted to us as a certified or
photostatic copy, and the authenticity of the original of each such latter
document. In addition, we have assumed, in rendering the opinion set forth
below, that any stock certificate evidencing any shares of the Company's Common
Stock registered by this Registration Statement, when issued pursuant to the
exercise of an option granted under the Equity Incentive Plan or when issued to
non-employee directors of the Company in lieu of cash director fees, will have
been duly executed on behalf of the Company and will have been countersigned by
the Company's transfer agent and registered by the Company's registrar prior to
its issuance.
On the basis of our examination mentioned above, subject to the assumptions
stated and relying on statements of fact contained in the documents that we
have examined, we are of the opinion that the shares of Common Stock registered
pursuant to the Registration Statement have been duly and validly authorized and
reserved for issuance and that upon the issuance of such shares in accordance
with the provisions of the Equity Incentive Plan, the shares of Common Stock
will be validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required by Section 7 of the Securities
Act of 1933, as amended, or the General Rules and Regulations of the Commission.
Very truly yours,
/s/GIORDANO, HALLERAN & CIESLA
A Professional Corporation
GIORDANO, HALLERAN & CIESLA
A Professional Corporation
CALTON, INC.
FORM S-8
EXHIBIT 23.01
CONSENT OF COOPERS & LYBRAND L.L.P.
DATED JUNE 5, 1996
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated January 12, 1996 on our audit of the financial
statements of Calton, Inc.
/s/ Coopers & Lybrand L.L.P.
Princeton, New Jersey
June 5, 1996
