As filed with the Securities and Exchange Commission on July 28, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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CALTON, INC.
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(Exact name of registrant as specified in its charter)
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New Jersey 22-2433361
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
125 Half Mile Road, Suite 206
Red Bank, New Jersey 07701
(732) 212-1280
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(Address, including zip code,
of Registrant's Principal Executive Offices)
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CALTON, INC. 2000 EQUITY INCENTIVE PLAN
NON-PLAN EMPLOYEE STOCK OPTIONS
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(Full Title of Plans)
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Anthony J. Caldarone
Chairman, President and Chief Executive Officer
Calton, Inc.
125 Half Mile Road, Suite 206
Red Bank, New Jersey 07701
(732) 212-1280
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Philip D. Forlenza, Esq.
Giordano, Halleran & Ciesla
A Professional Corporation
125 Half Mile Road
Middletown, New Jersey 07748
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered(4) Share Price Registration Fee
------------------------------ -------------------- -------------------- ---------------------- ------------------
<S> <C> <C> <C> <C> <C>
Common Stock,
$.05 par value(1) 360,000 $8.15 $2,934,000 $775.00
Options to purchase
Common Stock(1) 360,000 --- --- ---
Common Stock,
$.05 par value(2) 779,600 $4.50 (5) 3,508,200 (5) 927.00
Options to purchase
Common Stock(2) 779,600 --- --- ---
Common Stock,
$.05 par value(3) 20,400 $4.50 91,800 25.00
Options to purchase
Common Stock(3) 20,400 --- --- ---
Total Registration Fee $1,727.00
---------
</TABLE>
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(1) Under Stock Option Agreements with employees of wholly owned subsidiary
(the "Stock Option Agreements").
(2) Under the Calton, Inc. 2000 Equity Incentive Plan (the "Equity Incentive
Plan").
(3) Under options granted under the Equity Incentive Plan.
(4) This Registration Statement also covers such additional indeterminate
number of shares as may become issuable pursuant to anti-dilution
provisions of the Stock Option Agreements and the 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.
(5) Estimated solely for the purpose of calculation of the registration fee in
accordance with Rule 457(h) under the Securities Act and based upon the
average of the high and low sale prices for a share of Calton, Inc. Common
Stock as reported on the American Stock Exchange on July 24, 2000.
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PART I.
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
Items 1 and 2. Plan Information.
This Registration Statement concerns the registration of: (i) three hundred
sixty thousand (360,000) shares of Common Stock of Calton, Inc. (the "Company")
to be sold pursuant to the exercise of options granted to certain employees of a
wholly owned subsidiary of the Company under their respective Stock Option
Agreements, each dated July 19, 2000, with the Company (the "Stock Option
Agreements"),; and (ii) eight hundred thousand (800,000) shares of Common Stock
of the Company issuable to participating employees of the Company under the
Calton, Inc. 2000 Equity Incentive Plan (the "Equity Incentive Plan").
The documents containing the information about the the Stock Option
Agreements and the Equity Incentive Plan required by Part I of Form S-8 have
been or will be sent or given to the participants 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.
Certain information included in this Section 10(a) Prospectus and other
Company filings under the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), contains or may contain forward looking
information that is subject to certain risks, trends and uncertainties that
could cause actual results to differ materially from expected results.
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") are 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, 1999.
(b) From the date of filing of such documents, all other reports filed by
the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since
November 30, 1999.
(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.
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(d) 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 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.
Any statement contained in this Registration Statement or in a document
incorporated by reference herein, shall be deemed to be modified or superseded
for the purposes of this Registration Statement to the extent that a statement
contained herein, or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Expert 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 acted in good faith and in a manner that the Corporate Agent
reasonably believed 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 and liabilities 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 interests 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 and
liabilities 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 and liabilities.
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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 the 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 or pursuant to the Company's Restated
Certificate of Incorporation (the "Certificate of Incorporation"), other
articles of the By-Laws, an agreement, vote of shareholders, the Corporation
Act, or otherwise.
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 a
director or officer shall not be relieved 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
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improper personal benefit. Article VIII of the Company's Certificate of
Incorporation applies 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
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5. Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23.01 Consent of PricewaterhouseCoopers LLP
23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed with
Exhibit 5)
24. Power of Attorney (filed with signature pages)
4.01 Stock Option Agreement between the Company and Kenneth D.
Hill. Agreements containing identical terms and provisions
between the Registrant and each of Matthew Smith and
Robert Hill have not been filed herewith (Incorporated by
reference to Exhibit 10.11 of the Company's Annual Report
on Form 10-K for the fiscal year ended November 30, 1999).
4.02 Calton, Inc. 2000 Equity Incentive Plan (Incorporated by
reference to Exhibit 10.10 to the Company's Annual Report
on Form 10-K for the fiscal year ended November 30, 1999).
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
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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 this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(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 issues.
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<PAGE>
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 Borough of Red Bank, State of New Jersey, on the 27th day of
July, 2000.
CALTON, INC.
(Registrant)
By: /s/ Anthony J. Caldarone
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Anthony J. Caldarone
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Anthony J. Caldarone and David J. Coppola 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 thereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Anthony J. Caldarone Chairman of the Board, President July 27, 2000
------------------------------------------ and Chief Executive Officer
Anthony J. Caldarone (Principal Executive Officer)
/s/ David J. Coppola Vice President and Treasurer July 27, 2000
------------------------------------------ (Principal Financial and
David J. Coppola Accounting Officer)
/s/ Frank Cavell Smith,Jr. Director July 27, 2000
------------------------------------------
Frank Cavell Smith, Jr.
/s/ Mark N. Fessel Director July 27, 2000
------------------------------------------
Mark N. Fessel.
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<PAGE>
/s/ Kenneth D. Hill Director July 27, 2000
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Kenneth D. Hill.
/s/ J. Ernest Brophy Director July 27, 2000
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J. Ernest Brophy
/s/ Robert E. Naughton Director July 27, 2000
------------------------------------------
Robert E. Naughton
/s/ Gerald W. Stanley Director July 27, 2000
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Gerald W. Stanley
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit Number Description
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5. Opinion and Consent of Giordano, Halleran & Ciesla,
P.C.
23.01 Consent of PricewaterhouseCoopers LLP
23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed
with Exhibit 5)
24. Power of Attorney (filed with signature pages)
4.01 Stock Option Agreement between the Company and
Kenneth D. Hill. Agreements containing identical
terms and provisions between the Registrant and each
of Matthew Smith and Robert Hill have not been filed
herewith (Incorporated by reference to Exhibit 10.11
of the Company's Annual Report on Form 10-K for the
fiscal year ended November 30, 1999).
4.02 Calton, Inc. 2000 Equity Incentive Plan (Incorporated
by reference to Exhibit 10.10 to the Company's Annual
Report on Form 10-K for the fiscal year ended
November 30, 1999).
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