CALTON, INC.
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be at 43 W. Front Street, Suite
15, Red Bank, County of Monmouth, State of New Jersey. The registered agent of
the Corporation at such office is Mary H. Magee.
Section 2. The Corporation may also have offices at such other places,
both within and without the State of New Jersey, as the Board of Directors may
from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. All meetings of the shareholders for the election of
directors and for any other purpose may be held at such time and place, within
or without the State of New Jersey, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of shareholders shall be held on a regular
business day of the month of March or April at the offices of the Corporation or
at such other date, time and place of which shall be established by the Board of
Directors, at which they shall elect by a plurality vote a Board of Directors
and transact such other business as may properly be brought before the meeting.
Section 3. Notice of the annual meeting shall be given by mailing, no
more than sixty (60) days nor less than ten (10) days prior thereto, a written
notice stating the time and place thereof, directed to each shareholder of
record entitled to vote at the meeting at his address as the same appears upon
the records of the Corporation.
Section 4. The officer or agent having charge of the stock transfer
books for shares of the Corporation shall make and certify a complete list of
the shareholders entitled to vote at a shareholders' meeting or any adjournment
thereof. Such list shall be arranged alphabetically within each class, series,
or group of shareholders maintained by the Corporation, showing the address of,
and the number of shares held by, each shareholder. Such list shall be produced
at the time and place of the meeting; be subject to the inspection of any
shareholder during the whole time of the meeting; and be prima facie evidence as
to who are the shareholders entitled to examine such list or to vote at any such
meetings.
Section 5. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by the Chairman of the Board or the president, and
shall be called by the president or secretary at the request in writing of
a majority of the Board of Directors, or at the request in writing of
shareholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written or telegraphic notice of a special meeting of
shareholders, stating the time, place and object thereof, shall be given to each
shareholder entitled to vote thereat, not more than sixty (60) nor less than ten
(10) days before the date fixed for the meeting.
Section 7. Business transacted at any special meeting of shareholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the shareholders for the
transaction of business, except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the shareholders, the shareholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjourned meeting is for more than thirty (30) days,
or, if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present, in person or
represented by proxy, shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the Certificate of Incorporation a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 10. Each shareholder shall, at every meeting of the
shareholders, be entitled to that number of votes in person or by proxy as
provided in the certificate of incorporation for each share of capital stock
having voting power held by such shareholder.
Every shareholder entitled to vote at a meeting of shareholders or to
express consent without a meeting may authorize another person or persons to act
for him by proxy. Every proxy shall be executed in writing by the shareholder or
his agent, except that a proxy may be given by a shareholder or his agent by
telegram or cable or by any means of electronic communication which results in a
writing. No proxy shall be valid for more than 11 months, unless a longer time
is expressly provided therein. Unless it is irrevocable as provided below in
this Article II, Section 10, a proxy shall be revocable at will. The grant of a
later proxy revokes any earlier proxy unless the earlier proxy is irrevocable. A
proxy shall not be revoked by the death or incapacity of a shareholder but such
proxy shall continue in force until revoked by the personal representative or
guardian of the shareholder. The presence at any meeting of any shareholder who
has given a proxy does not revoke the proxy unless the shareholder files written
notice of the revocation with the secretary of the meeting prior to the voting
of the proxy or votes the shares subsequent to the proxy by written ballot.
A proxy which states that it is irrevocable is irrevocable if coupled with
an interest either in the stock itself or in the Corporation and, in particular
and without limitation, if it is held by
2
any of the following or a nominee of any of the following: (a) a pledgee; (b) a
person who has purchased or agreed to purchase the shares; (c) a creditor of the
Corporation who has extended credit or has agreed to continue to extend credit
to the Corporation if the proxy is given in consideration of the extension or
continuation; (d) a person who has agreed to perform services as an employee of
the Corporation if the proxy is given in consideration of the agreement; or (e)
a person designated pursuant to the terms of an agreement as to voting between
two or more shareholders. An irrevocable proxy becomes revocable when the
interest which supports the proxy has terminated. Unless noted conspicuously on
the share certificate, an otherwise irrevocable proxy may be revoked by a person
who becomes the holder of the shares without actual knowledge of the
restriction.
A person named in a proxy as the attorney or agent of a shareholder may, if
the proxy so provides, substitute another person to act in his place, including
any other person named as an attorney or agent in the same proxy. The
substitution shall not be effective until an instrument effecting it is filed
with the secretary of the Corporation.
Section 11. Whenever the vote of shareholder at a meeting thereof is
required or permitted to be taken in connection with any corporate action by any
provision of the statutes or of the Certificate of Incorporation, the meeting
and the vote of shareholders may be dispensed with if all the shareholders who
would have been entitled to vote upon the action if such meeting were held shall
consent in writing to such corporate action being taken, and in the case of any
action to be taken pursuant to Chapter 10 of Title 14A of the Revised Statutes
of the State of New Jersey, the Corporation provides to all other shareholders
the advanced notification required by N.J.S.A. 14A:5-6(2)(b).
Subject to the provisions of N.J.S.A. 14A:5-6(2), whenever the vote of
shareholders at a meeting thereof is required or permitted to be taken in
connection with any corporate action by any provision of the statutes or of the
Certificate of Incorporation, other than the election of directors, the meeting
and vote of shareholders may be dispensed with and the action may be taken
without a meeting upon the written consent of shareholders who would have been
entitled to cast the minimum number of votes which would be necessary to
authorize such action at a meeting at which all shareholders entitled to vote
thereon were present and voting.
Section 12. At each meeting of shareholders, the Chairman of the
Company's Board of Directors or in his or her absence the President of the
Company or in his or her absence any Vice President of the Company or in his or
her absence a chairman chosen by the vote of a majority in interest of the
shareholders present in person or represented by proxy and entitled to vote
thereat, shall act as chairman. The Secretary or in his or her absence an
Assistant Secretary or in the absence of the Secretary and all Assistant
Secretaries a person whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep a record of the proceedings thereof. The Board
of Directors of the Corporation shall be entitled to make such rules or
regulations for the conduct of meetings of shareholders as it shall deem
necessary, appropriate or convenient. Subject to such rules and regulations, the
chairman shall have the authority to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are
necessary, appropriate or convenient for the proper conduct of the meeting,
including, without limitation, establishing an agenda or order of business for
the meeting, rules and procedures for maintaining order at the meeting and the
safety of those present, limitations on participation in such meeting to
shareholders of record of the Corporation and their duly authorized and
constituted proxies, and such other persons as the chairman shall
3
permit, restrictions on entry at the meeting after the time fixed for the
commencement thereof, limitations on the time allotted to questions or comments
by participants and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot. The chairman shall have
absolute authority over matters of procedure and there shall be no appeal from
the ruling of the chairman. The chairman may rule that a resolution, nomination
or motion not be submitted to the shareholders for a vote unless seconded by a
shareholder or a proxy for a shareholder. The chairman may require that any
person who is neither a bona fide shareholder nor a proxy for a bona fide
shareholder leave the meeting, and upon the refusal of a shareholder to comply
with a procedural ruling of the chairman which the chairman deems necessary for
the proper conduct of the meeting, may require that such shareholder leave the
meeting. The chairman may, on his own motion, summarily adjourn any meeting for
any period he deems necessary if he rules that orderly procedures cannot be
maintained at the meeting. Unless, and to the extent, determined by the Board of
Directors or the chairman of the meeting, meetings of shareholders shall not be
required to be held in accordance with rules of parliamentary procedure.
Section 13. To be properly brought before an annual meeting of
shareholders, business must be either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the meeting by or at the direction of the
Board or (c) otherwise properly brought before the meeting by a shareholder. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a shareholder, the shareholder must have
given timely notice thereof in writing, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not later than
90 days prior to the meeting anniversary date of the immediately preceding
annual meeting. A shareholder's notice to the Secretary shall set forth as to
each matter the shareholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought before the annual
meeting, (ii) the name and record address of the shareholder proposing such
business, (iii) the class and number of shares of the Corporation which are
beneficially owned by the shareholder and (iv) any material interest of the
shareholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 13 of Article II and any other applicable requirements,
PROVIDED, HOWEVER, that nothing in this Section 13 of Article II shall be deemed
to preclude discussion by any shareholder of any business properly brought
before the annual meeting.
The chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 13 of Article II and
any other applicable requirements and if he should so determine, which
determination shall be conclusive, he shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
Board shall be the number, not less than three nor more than fifteen, fixed from
time to time by a majority vote
4
of the whole Board of Directors; provided, no decrease in the number of
directors shall shorten the term of any incumbent director. Each director shall
serve for the term of the class for which elected or until such time as a
successor shall have been duly elected and shall have qualified. Directors need
not be shareholders.
Section 2. Nominations for the election of directors may be made by the
Board of Directors or a committee appointed by the Board of Directors or by any
shareholder entitled to vote in the election of directors generally. However,
any shareholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors generally may nominate
one or more persons for election as directors at a meeting only if written
notice of such shareholder's intent to make such nomination or nominations has
been given either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation not later than (i) with respect to
an election to be held at an annual meeting of shareholders, 90 days prior to
the anniversary date of the immediately preceding annual meeting; and (ii) with
respect to an election to be held at a special meeting of shareholders for the
election of directors, the close of business on the tenth day following the date
on which notice of such meeting is first given to shareholders. Each such notice
shall set forth: (a) the name and address of the shareholder who intends to make
the nomination and of the person or persons to be nominated; (b) a
representation that the shareholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder; (d) such other information regarding each nominee proposed by
such shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (e)
the signed consent of each nominee to serve as a director of the Corporation if
so elected. The Corporation may require any proposed nominee or shareholder
proposing a nominee to furnish such other information as may reasonably be
required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation or to properly complete any
proxy or information statements used for the solicitation of proxies in
connection with the meeting at which directors are to be elected. The presiding
officer of the meeting may refuse to acknowledge the nomination of any person
not made in compliance with the foregoing procedure.
Section 3. Whenever any vacancy shall occur in the Board of Directors
by death, resignation or otherwise, it shall be filled by a majority vote of the
directors then in office, though less than a quorum, but any such director so
elected shall hold office only until the next succeeding annual meeting of
shareholders. At such annual meeting, such director or a successor to such
director shall be elected and qualified in the class to which such director is
assigned to hold office for the term or remainder of the term of such class. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute.
Section 4. The business of the Corporation shall be managed by its
Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the shareholders.
Section 5. The removal of one or more directors for cause or without
cause shall be governed by N.J.S.A. 14A:6-6 or any successor provisions thereto.
5
MEETINGS OF THE BOARD OF DIRECTORS
Section 6. The Board of Directors of the Corporation may hold meetings,
both regular or special, either within or without the State of New Jersey.
Section 7. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
shareholders at the annual meeting, and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
shareholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and
place so fixed by the shareholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors, or upon the conclusion of the
shareholders' meeting at which time they were elected, without further notice.
At such meeting the Board of Directors shall elect from their own number a
chairman of the Board and president for the ensuing year and until their
successors are elected and qualify in their stead, elect other officers of the
Corporation, and shall transact such other business as may come before the
meeting.
Section 8. Regular meetings of the Board of Directors may be held
without notice at such time and to such place as shall from time to time be
determined by the Board.
Section 9. Special meetings of the Board may be called by the chairman
of the Board or president or secretary on three (3) days notice to each
director, either personally or by mail, including electronic mail, or by
telegram. Special meetings shall be called by the president or secretary in like
manner and on like notice on the written request of any two directors.
Section 10. At all meetings of the Board, a majority of the directors in
office shall constitute a quorum for the transaction of business, and the act of
a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 11. Unless otherwise restricted by the Certificate of
Incorporation or by these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting if a written consent thereto is signed by all members of
the Board or of such committee, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
COMPENSATION OF DIRECTORS
Section 12. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors, and directors who are not
full-time employees of the Corporation may be paid a fixed sum for attendance at
each meeting of the Board of Directors or a stated salary as a director. No such
payment shall preclude any director from serving the
6
Corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
COMMITTEES OF DIRECTORS
Section 13. The Board of Directors may, by resolution passed by a
majority of the whole Board of Directors may, by resolution passed by a majority
of the whole Board, designate one or more committees, each committee to consist
of two or more of the directors of the Corporation. The Board may designate one
or more directors as alternate members of any committee who may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the resolution, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; PROVIDED, HOWEVER, that in the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Such committee or committees shall have
such name or names as may be determined from time to time by resolution adopted
by the Board of Directors.
Section 14. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
ARTICLE IV
NOTICES
Section 1. Notices to shareholders shall be in writing and delivered
personally or mailed to the shareholders at their addresses appearing on the
books of the Corporation. Notice by mail shall be deemed to be given if given by
telegram. Notices to directors shall be in writing and delivered personally or
mailed, including electronic mail, at their addresses appearing on the books of
the Corporation. Notice by mail shall be deemed to be given if by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a Chairman of the Board, a president, one or more
vice-presidents, a secretary, a treasurer and such assistant secretaries and
assistant treasurers as the Board of Directors shall from time to time
determine. The Board of Directors may also designate one or more vice-presidents
to be executive vice-presidents and/or senior vice-presidents. Two or more
offices may be held by the same person except that where the offices of
president and secretary are held by the same person, such person shall not hold
any other office.
7
Section 2. The Board of Directors may appoint each other officers and
agents as it shall deem necessary, who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board.
Section 3. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors, except that the Board of Directors may
delegate such duty to an officer or officers of the Corporation.
Section 4. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors, without the necessity of specifying any
cause therefor and without any prior notice of such action to the officer so
removed.
THE CHAIRMAN OF THE BOARD
Section 5. The Chairman of the Board shall preside at all meetings of
the shareholders and the Board of Directors and shall be the chief executive
officer of the Corporation. The Chairman of the Board shall be responsible for
the general management of the affairs of the Corporation and shall perform all
duties incidental to such person's office which may be required by law and all
such other duties as are properly required of him by the Board of Directors. He
shall make reports to the Board of Directors and the stockholders, and shall see
that all orders and resolutions of the Board of Directors and of any committee
thereof are carried into effect.
THE PRESIDENT
Section 6. The President shall be the chief operating officer of the
Corporation, and shall act in a general executive capacity and shall assist the
Chairman of the Board in the administration and operation of the Corporation's
business and general supervision of its policies and affairs. The President, if
he or she is also a Director, shall, in the absence of or because of the
inability to act of the Chairman of the Board, perform all duties of the
Chairman of the Board and preside at all meetings of stockholders and of the
Board of Directors.
Section 7. The President shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to the officers of the Corporation or to some other officer
or agent of the Corporation.
THE VICE-PRESIDENT
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents, shall, in the absence or disability of the president and the
Chairman of the Board and the executive vice-president and/or senior
vice-president, if any, perform the duties and exercise the powers of the
president and shall perform such other duties and have such other powers as the
Board of Directors or the president may from time to time prescribe. The Board
of Directors may determine the order in which the vice-presidents shall so act
in place of the president, and may designate a vice-president to perform all of
the duties of the president in the case of the
8
absence or disability of the president. The exercise of any power or the
performance of any duty of the president by the vice-president so designated
shall be conclusive evidence of the disability of the president and the Chairman
of the Board and the executive vice-president and/or senior vice-president.
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The Secretary or an assistant secretary shall attend all
meetings of the Board of Directors and all meetings of the shareholders and
record all the proceedings of the meetings of the Corporation and of the Board
of Directors in a book to be kept for that purpose. He shall give, or cause to
be given, notice of all meetings of the shareholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or president, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation and be, or an
assistant secretary, shall have authority to affix the same to any instrument
requiring it and, when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one, the
assistant secretaries, in the order determined by the Board of Directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary, and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURER
Section 11. The treasurer shall have the custody of the corporate funds
and securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation, and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
Section 12. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
Corporation.
Section 13. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in the case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belong to the Corporation.
Section 14. The assistant treasurer, or if there shall be more than one,
the assistant treasurers, in the order determined by the Board of Directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer as the Board of Directors may from time to
time prescribe.
9
ARTICLE VI
INDEMNIFICATION
Section 1. The Corporation shall indemnify a corporate agent against
his expenses and liabilities actually and reasonably incurred in connection with
the defense of any proceeding involving the corporate agent by reason of his
being or having been such a corporate agent, other than a proceeding by or in
the right of the Corporation, if (a) such corporate agent acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and (b) with respect to any criminal proceeding,
such corporate agent had no reasonable cause to believe his conduct was
unlawful. The termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption that such corporate agent did not meet the
applicable standards of conduct set forth in paragraphs (a) and (b) herein.
Section 2. The Corporation shall indemnify a corporate agent against
his liabilities and expenses, actually or reasonably incurred by him in
connection with the defense, in any proceeding, by or in the right of the
Corporation to procure a judgment in its favor which involves the corporate
agent by reason of his being or having been such corporate agent, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged liable to the Corporation
unless and only to the extent that the New Jersey Superior Court or the court in
which such proceeding was brought shall determine upon application that despite
the adjudication of liability, but in view of all circumstances of the case,
such corporate agent is fairly and reasonably entitled to indemnity for such
expenses or liabilities as the New Jersey Superior Court or such other court
shall deem proper.
Section 3. The Corporation shall indemnify a corporate agent against
expenses (including attorneys fees) to the extent that such corporate agent has
been successful on the merits or otherwise in any proceeding referred to in
Sections 1 and 2 of this Article or in defense of any claim, issue or matter
therein.
Section 4. Any indemnification under Section 1 of this Article and,
unless ordered by a court, under Section 2 of this Article, may be made by the
Corporation only as authorized in a specific case upon a determination that
indemnification is proper in the circumstances because the corporate agent met
the applicable standard of conduct set forth in Sections 1 or 2 of this Article.
Such determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding or (b) if such a quorum is not obtainable, or, event
if obtainable and such quorum of the Board of Directors by a majority vote of
the disinterested directors so directs, by independent legal counsel in a
written opinion, such counsel to be designated by the Board of Directors or (c)
by the shareholders.
Section 5. Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the Corporation in advance of the final disposition of
the proceeding, as authorized by the Board of Directors, upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this Article.
10
Section 6. The indemnification and advancement of expenses provided by
or granted pursuant to the other sections of this Article shall not exclude any
other rights to which a corporate agent may be entitled under the certificate of
incorporation, a bylaw, agreement, vote of shareholders, or otherwise; provided
that no indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent establishes
that his acts or omissions (a) were in breach of his duty of loyalty to the
Corporation 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.
Section 7. The Corporation shall have the power to purchase and
maintain insurance on behalf of any corporate agent against any expenses
incurred in any proceeding and any liabilities asserted against him by reason of
his being or having been a corporate agent, whether or not the Corporation would
have the power to indemnify him against such expenses and liabilities under the
provisions of this section. The Corporation may purchase such insurance from, or
such insurance may be reinsured in whole or in part by, an insurer owned by or
otherwise affiliated with the Corporation, whether or not such insurer does
business with other insureds.
ARTICLE VII
CERTIFICATE OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled
to have a certificate signed by, or in the name of, the Corporation by the
Chairman of the Board or president or executive vice-president, a senior
vice-president or a vice-president and by the treasurer or an assistant
treasurer or the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
Section 2. Where a certificate is countersigned (a) by a transfer agent
other than the Corporation or its employee or (b) by a registrar other than the
Corporation or its employee, any other signature on the certificate, including
the signatures of the officers of the Corporation, may be facsimiles. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
LOST CERTIFICATES
Section 3. Any person claiming a certificate or certificates of stock
of the Corporation to be lost, stolen or destroyed shall provide notice of that
fact to the secretary or an assistant secretary of the Corporation. Any two (2)
officers of the Corporation, other than an assistant secretary or an assistant
treasurer, may direct a new certificate or certificates to be issued in place of
and of the same tenor and for the same number of shares as the certificate or
certificates theretofore issued by the Corporation and alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or certificates of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
such officers may, in their discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to give the
Corporation a bond or indemnity in form and amount and with one or more sureties
satisfactory to such officers as indemnity against any claim that may be
11
made against the Corporation with respect to the certificate or certificates
alleged to have been lost, stolen or destroyed. The Board of Directors may at
any time authorize the issuance of a new certificate or certificates to replace
a certificate or certificates alleged to be lost, stolen or destroyed upon such
other lawful terms and conditions as the Board of Directors shall prescribe.
TRANSFER OF STOCK
Section 4. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence or succession, assignment or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 5. In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) days nor less than ten (10) days before
the date of such meeting, and not more than sixty (60) days prior to any other
action. A determination of shareholders of record entitled to notice of or to
vote at a meeting of shareholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board of Directors may fix a new record date for the
adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments, a person registered on its books as the owner of shares and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of New
Jersey.
ARTICLE VIII
LOANS AND GUARANTEES
Section 1. The Corporation may make loans to, may guarantee the
indebtedness of, and may otherwise provide financial assistance to any director,
officer or employee of the Corporation, provided that the Board determines, in
its judgment, that the action may reasonably be expected to benefit the
Corporation. Loans, guarantees, and other financial assistance made pursuant to
this Section shall contain all terms and conditions that the Board of Directors
deems appropriate at the time the loans, guarantees, or assistance are made.
12
ARTICLE IX
GENERAL PROVISIONS
Section 1. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends, such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meeting contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting,
and at any special meeting of the shareholders when called for by vote of the
shareholders, a full and clear statement of the business and condition of the
Corporation.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
Section 5. The officers of the Corporation and such other persons as
may be designated by the Board of Directors, shall severally have full power and
authority to receive and give receipt for all monies due and payable to this
Corporation from any source whatever, and to endorse for deposit warrants and
checks in its name, and on its behalf, and to give full discharge for the same.
FISCAL YEAR
Section 6. The fiscal year of the Corporation shall begin on the first
day of December of each year.
SEAL
Section 7. The corporate seal shall have inscribed thereon the
following: "CALTON, INC., 1981, Corporate Seal, New Jersey". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
13
ARTICLE X
DEFINITIONS
All terms used in these By-laws shall have the meaning defined in the New
Jersey Business Corporation Act, which are incorporated herein by reference,
unless otherwise defined in these By-laws.
ARTICLE XI
AMENDMENTS
Section 1. These By-Laws may be altered, amended or repealed, or new
by-laws may be adopted by the Board of Directors, at any regular meeting of the
Board of Directors or at any special meeting of the Board of Directors. These
By-Laws may also be altered, amended or repealed, or new by-laws may be adopted,
by the shareholders, at any regular meeting or at any special meeting if notice
of such alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting.
AS AMENDED THROUGH SEPTEMBER 1, 2002
14