As filed with the Securities and Exchange Commission on December 1, 2006
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.
(Exact name of registrant as specified in its charter)
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New Jersey 22-2433361
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2050 40TH AVENUE, SUITE ONE
VERO BEACH, FLORIDA 32960
(772) 794-1414
(Address, including zip code,
of Registrant's Principal Executive Offices)
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CALTON, INC. 2006 EQUITY INCENTIVE PLAN
CALTON, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plans)
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ANTHONY J. CALDARONE
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
CALTON, INC.
2050 40TH AVENUE, SUITE ONE
VERO BEACH, FLORIDA 32960
(772) 794-1414
(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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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price Aggregate Offering Registration
Registered Registered (3) Per Share Price Fee
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Common Stock, $.05 par value,
including related rights to purchase
Class A Preferred Stock Series One (1) 1,000,000 $.38(4) $380,000 $40.66
Common Stock, $.05 par value,
including related rights to purchase
Class A Preferred Stock Series One (2) 225,000 $.38(4) $ 85,500 $ 9.15
Total Registration Fee $49.81
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(1) Under the Calton, Inc. 2006 Equity Incentive Plan (the "Equity Incentive
Plan").
(2) Under the Calton, Inc. Employee Stock Purchase Plan (the "Employee Stock
Purchase Plan").
(3) This Registration Statement also covers such additional indeterminate
number of shares as may become issuable pursuant to anti-dilution
provisions of the Equity Incentive Plan and the Employee Stock Purchase
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.
(4) 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 National Association of Securities Dealers OTC
Bulletin Board on November 28, 2006.
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EXPLANATORY NOTE
On February 28, 2001, the Registrant filed with the Securities and Exchange
Commission (the "Commission") a Registration Statement on Form S-8 (Registration
No. 333-56318) relating to shares of Common Stock to be issued pursuant to its
Employee Stock Purchase Plan (the "2001 Registration Statement"). On August 26,
2003, the Registrant filed with the Commission a Registration Statement on Form
S-8 (Registration No. 333-108208) relating to additional shares of Common Stock
to be issued pursuant to its 2000 Equity Incentive Plan and its Employee Stock
Purchase Plan (the "2003 Registration Statement"). Each of the 2001 Registration
Statement and the 2003 Registration Statement is currently effective. The
Registrant is filing this Registration Statement on Form S-8 with the Commission
to register an additional 225,000 shares under its Employee Stock Purchase Plan
and 1,000,000 shares under its 2006 Equity Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
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*Information required in Part I of Form S-8 to be contained in a prospectus
meeting the requirements of Section 10(a) of the Securities Act of 1933 is
omitted from this Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
This Registration Statement registers shares reserved for issuance under the
Company's 2006 Equity Incentive Plan and additional shares to be issued pursuant
to the Company's Employee Stock Purchase Plan. Accordingly, the contents of the
2001 Registration Statement and the 2003 Registration Statement are incorporated
by reference into this Registration Statement pursuant to General Instruction E
of Form S-8. In addition, the following documents filed with the Commission are
hereby incorporated by reference into this Registration Statement as of their
respective dates:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
November 30, 2005 filed with the Commission on February 28, 2006, as
amended by Form 10-KSB/A filed with the Commission on June 6, 2006.
(b) The Company's Report on Form 8-K filed with the Commission on March 2,
2006.
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(c) The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended February 28, 2006 filed with the Commission on April 14, 2006.
(d) The Company's Report on Form 8-K filed with the Commission on April
14, 2006.
(e) The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended May 31, 2006 filed with the Commission on July 14, 2006.
(f) The Company's Report on Form 8-K filed with the Commission on July 14,
2006.
(g) The Company's Report on Form 8-K filed with the Commission on July 28,
2006.
(h) The Company's Report on Form 8-K filed with the Commission on August
1, 2006.
(i) The Company's Quarterly Report on Form 10-QSB for the quarterly period
ended August 31, 2006 filed with the Commission on October 16, 2006.
(j) The Company's Report on Form 8-K filed with the Commission on October
16, 2006.
(k) 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. In no event, however, will any of the information, including
exhibits, that the Company discloses under Item 2.02 and Item 7.01 of any Report
on Form 8-K that has been or may, from time to time, be furnished, to the
Commission be incorporated by reference into or otherwise become a part of the
Registration Statement. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein (or in any other
subsequently filed document that also is or is deemed incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so modified
or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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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.
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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.
4.04 Calton, Inc. 2006 Equity Incentive Plan (incorporated by
reference to Exhibit 10.45 to the Quarterly Report on Form
10-QSB for the quarterly period ended May 31, 2006 filed by the
Company with the Commission on July 14, 2006).
5. Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23.01 Consent of Aidman, Piser & Company, P.A.
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23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed with Exhibit
5)
24. Power of Attorney (filed with signature pages)
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
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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.
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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 Vero Beach, Florida, on the 30th day of November, 2006.
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 Laura A. Camisa 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.
Signature Title Date
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/s/ Anthony J. Caldarone Chairman of the Board, President November 30, 2006
- ---------------------------- and Chief Executive Officer
Anthony J. Caldarone (Principal Executive Officer)
/s/ Laura A. Camisa Senior Vice President, Treasurer and November 30, 2006
- ---------------------------- Chief Financial Officer (Principal
Laura A. Camisa Financial and Accounting Officer)
/s/ John G. Yates Director November 30, 2006
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John G. Yates
/s/ Frank Cavell Smith, Jr. Director November 30, 2006
- ----------------------------
Frank Cavell Smith, Jr.
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/s/ Mark N. Fessel Director November 30, 2006
- ----------------------------
Mark N. Fessel
/s/ Kenneth D. Hill Director November 30, 2006
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Kenneth D. Hill
/s/ J. Ernest Brophy Director November 30, 2006
- ----------------------------
J. Ernest Brophy
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EXHIBIT INDEX
4.04 Calton, Inc. 2006 Equity Incentive Plan (incorporated by reference to
Exhibit 10.45 to the Quarterly Report on Form 10-QSB for the quarterly
period ended May 31, 2006 filed by the Company with the Commission on
July 14, 2006)
5. Opinion and Consent of Giordano, Halleran & Ciesla, P.C.
23.01 Consent of Aidman, Piser & Company, P.A.
23.02 Consent of Giordano, Halleran & Ciesla, P.C. (filed with Exhibit 5)
24. Power of Attorney (filed with signature pages)
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