THIS IS A CONFIRMING ELECTRONIC FILING OF THE PAPER
FILING THAT WAS FILED ON BEHALF OF JOYCE P. CALDARONE ON
NOVEMBER 24, 1995
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
CALTON, INC.
(Name of Issuer)
COMMON STOCK
(Title of Class of Securities)
131380206
(CUSIP Number)
Joyce P. Caldarone, 162 Anchor Drive, Vero Beach, FL 32963
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
November 21, 1995
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement of Schedule 13G to
report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4),
check the following box .
Check the following box if a fee is being paid with the statement
X. (A fee is not required only if the reporting person: (1) has a
previous statement on file reporting beneficial ownership of more
than five percent of the class of securities described in Item 1;
and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class.)
(See Rule 13d-7).
Note: Six copies of this statement, including all exhibits,
should be filed with the Commission. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on his form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in
a prior cover page.
The information required on the remainder of this cover page
shall not be deemed to be "filed" for the purpose of Section 18
of the Securities Exchange Act of 1934 ("Act") or otherwise
subject to the liabilities of that section of the Act but shall
be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 131380206
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Joyce P. Caldarone
SS# ###-##-####
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* Mrs.
Caldarone expressly disclaims the existence of a group between
herself and her husband, Anthony J. Caldarone. Mrs. Caldarone also
disclaims any beneficial interest in the 2,871,972 shares held by
her husband.
(a)
(b) X
3 SEC USE ONLY
4 SOURCE OF FUNDS*
P.F.
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e)
N/A
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S. Citizenship
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7 SOLE VOTING POWER
1,395,209
8 SHARED VOTING POWER
None
9 SOLE DISPOSITIVE POWER
1,395,209
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,395,209
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
X Does not include 2,871,572 shares held by Anthony J. Caldarone,
the husband of Mrs. Caldarone, as to which shares she disclaims
any beneficial interest.
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.29%
14 TYPE OF REPORTING PERSON*
IN
SCHEDULE 13D
CUSIP # 131380206
Item 1. Security and Issuer
This Schedule 13D relates to the Common Stock, par value $.01 per share
("Common Stock"), of Calton, Inc., a New Jersey corporation (the "Company").
The principal executive offices of the Company are located at 500 Craig
Road, Manalapan, New Jersey 07726.
Item 2. Identity and Background
(a) Joyce P. Caldarone.
(b) Residence: 162 Anchor Drive, Vero Beach, Florida 32963.
(c) Investor.
(d) None.
(e) None.
(f) U.S. Citizen
Item 3. Source and Amount of Funds or Other Consideration
Personal funds have been used in acquiring the shares of Common Stock of the
Company.
Item 4. Purposes of Transactions
On or about November 21, 1995, Mrs. Joyce P. Caldarone (the "Reporting
Person" or "Mrs. Caldarone") became a party to a Stock Purchase Agreement (the
"Stock Purchase Agreement") between Apollo Homes Partners, L.P. ("Apollo") and
her husband, Mr. Anthony J. Caldarone ("Mr. Caldarone"), and acquired 1,329,427
shares of Common Stock ("the Purchased Shares") for an aggregate purchase price
of $664,713.75. Mrs. Caldarone is a "Permitted Transferee" for purposes of the
Stock Purchase Agreement. Mrs. Caldarone purchased the shares for investment
purposes and with a view towards facilitating Mr. Caldarone's participation in
the management of the Company.
On November 21, 1995, the Board of Directors of the Company (the "Board")
held a special meeting (the "Special Meeting"). Mr Douglas T. Noakes and Mr.
William Mack resigned as directors of the Company prior to the Special Meeting.
At the Special Meeting, Mr. Caldarone and Mr. J. Ernest Brophy were elected to
the Board and Mr. Caldarone was elected Chairman of the Board, President and
Chief Executive Officer of the Company. Mr. Peter Copses and Mr. Harry T.
Leonhardt resigned as directors subsequent to the Special Meeting. Mr. Copses
and Mr. Mack are Associates of Apollo.
The Reporting Person as of the closing date of the Stock Purchase Agreement
(the "Closing Date") beneficially owns 1,395,209 shares of Common Stock.
Under the terms of the Stock Purchase Agreement, Apollo (and certain
transferees, if any) has agreed not to transfer any of the 2,658,000 shares of
Common Stock which it continues to own after the closing of the Stock Purchase
Agreement (the "Retained Shares") prior to the first anniversary of the Closing
Date, unless such transfer is to certain "Permitted Transferees" (as defined in
the Stock Purchase Agreement) or pursuant to a tender offer or an exchange offer
for shares of Common Stock or in certain other circumstances as specified in the
Stock Purchase Agreement.
The Stock Purchase Agreement also provides that, on or after the first
anniversary of the Closing Date, Apollo will only transfer Retained Shares
(except to "Permitted Transferees," or pursuant to a tender offer or an exchange
offer for shares of Common Stock, and certain other transfers as specified in
the Stock Purchase Agreement) after first offering Mr. Caldarone the right to
purchase the Retained Shares that Apollo desires to sell pursuant to a "duty of
first offer" provision.
Pursuant to the Stock Purchase Agreement, Mr. Caldarone and his Permitted
Transferees granted Apollo and its Permitted Transferees certain "tag-along
rights" to sell shares of Common Stock in the event of, and along with, certain
transfers made by Mr. Caldarone and his Permitted Transferees. Mr. Caldarone
also agreed to cause any of his Affiliates or Associates (as such terms are
defined in the Stock Purchase Agreement) who acquire securities of the Company
to execute a Joinder Agreement to the Stock Purchase Agreement and become bound
by the obligations of Mr. Caldarone thereunder. Mrs. Caldarone executed a
Joinder Agreement on the Closing Date (Exhibit 2).
The Stock Purchase Agreement also provides, with certain exceptions, that
if Mr. Caldarone, his Permitted Transferees, Affiliates or Associates transfer
all of their respective securities of the Company, Apollo and its Permitted
Transferees will be required to transfer any Retained Shares then owned by it on
the same terms and conditions provided that the only consideration is cash
consideration in an amount per share not less than (x) $.50 during the first
year following the Closing Date, (y) $.75 during the second year following the
Closing Date and (z) $1.00 during the third year following the Closing Date.
Pursuant to the Stock Purchase Agreement, Apollo (and its Permitted
Transferees, if any) granted to Mr. Caldarone an irrevocable proxy coupled with
an interest to vote all of the Retained Shares then owned by it solely for the
election of directors of the Company; provided, however, that to the extent Mr.
Caldarone, his Permitted Transferees, Affiliates or Associates sell or otherwise
transfers any shares of Common Stock, or Apollo (and its Permitted Transferees,
if any) sells any Retained Shares pursuant to a tender offer or an exchange
offer for shares of Common Stock, the number of Retained Shares subject to
this proxy will be decreased by the number of shares of Common Stock so sold
or transferred.
The Stock Purchase Agreement further provides, that if Mr. Caldarone, his
Permitted Transferees, Affiliates or Associates acquire, directly or indirectly,
any securities from the Company other than pursuant to a dividend or
distribution to all holders of Common Stock, or pursuant to the exercise of
stock options for no more than 500,000 shares of Common Stock (subject to
appropriate adjustment, for stock splits, reclassifications, recapitalizations
and similar events), Mr.Caldarone (and his Permitted Transferees, if any)
shall offer and shall cause their respective Affiliates and Associates to offer
to Apollo (and its Permitted transferees, if any) the opportunity to purchase a
pro rata portion of the securities on the same terms and conditions.
Pursuant to the Stock Purchase Agreement, Apollo assigned its rights (to the
extent assignable) under that certain Registration Rights Agreement dated as of
May 28, 1993, among the Company and other parties named therein, with respect to
the Purchased Shares and any Retained Shares purchased by Mr. Caldarone.
The Stock Purchase Agreement shall terminate upon the third anniversary of
the Closing Date; provided, however, upon the occurrence of a Change of Control,
a Bankruptcy Event (as such terms are defined in the Stock Purchase Agreement)
or a sale or other disposition by Mr. Caldarone, his permitted Transferees,
Affiliates and Associates of an aggregate of 1,000,000 shares of Common Stock
(subject to appropriate adjustment for stock splits, stock dividends,
recapitalizations and similar events), the transfer restrictions of Apollo set
forth in Article IV, the right to require Apollo to sell Retained Shares upon
certain circumstances set forth in Article V(b) and the proxy set forth in
Article VI of the Stock Purchase Agreement will terminate.
The foregoing summaries of certain provisions of the Stock Purchase
Agreement are qualified in their entirety by the complete text of the Exhibit 1
hereto which is incorporated by this reference.
Except as described in this Item 4, Mrs. Caldarone has not formulated any
plans or proposals which relate to or would result in: (a)the acquisition by any
person of additional securities of the Company, or the disposition of securities
of the Company; (b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company or any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries; (d) any change in the present Board of Directors or management
of the Company, including any plans or proposals to change the number of or term
of directors or to fill any existing vacancies on the board; (e) any material
change in the present capitalization or dividend policy of the Company; (f) any
other material change in the Company's business or corporate structure; (g)
changes in the Company's charter, by-laws or instruments corresponding thereto
or other actions which may impede the acquisition of control of the Company by
any person; (h) causing a class of securities of the Company to be delisted from
a national securities exchange or cease to be authorized to be quoted in an
interdealer quotation system of a registered national securities association;
(i) causing a class of equity securities of the Company to become eligible for
termination of registration pursuant to Section 12(g)(4) of the Act, as amended
or (j) any action similar to those enumerated above.
Item 5. Interest in Securities of the Company
(a) The aggregate number of shares of Common Stock beneficially owned by
Mrs. Caldarone as of the Closing Date is 1,395,209 shares, or approximately
5.29% of the class of securities identified in Item 1 based on 26,371,000
shares of Common Stock outstanding as of September 30, 1995, as reported in
the Company's Quarterly Report on Form 10-Q dated October 13, 1995.
(b) The number of shares of Common Stock as to which there is sole power
to vote or to direct the vote, shared power to vote or to direct the vote, sole
power to dispose or direct the disposition, or shared power to dispose or direct
the disposition for the Reporting Person is set forth in the cover page and such
information is incorporated herein by reference.
(c) The following transactions occurred during the past 60 days:
Date Number of
Purchased Shares Price Transaction
11/21/95 1,329,427 $ .50/share Stock Purchase
Agreement
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to the Securities of the Issuer.
Except as set forth in this Schedule 13D to the best knowledge of Mrs.
Caldarone, no contracts, arrangements, understandings or relationships (legal or
otherwise) exist among the persons named in Item 2 or between such persons and
any other person with respect to any securities of the Company, including but
not limited to transfer or voting of any such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
divisions of profits or loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as exhibits
Exhibit 1 Stock Purchase Agreement dated as of
November 21, 1995 between Mr. Anthony
J. Caldarone and Apollo Homes Partners, L.P.
Exhibit 2 Joinder Agreement, dated November 21, 1995, between
Joyce P. Caldarone and Apollo Homes Partners, L.P.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: November 22, 1995
By: /s/ Joyce P. Caldarone
Joyce P. Caldarone
EXHIBIT #1
EXHIBIT 5
STOCK PURCHASE AGREEMENT
between
MR. ANTHONY J. CALDARONE
and
APOLLO HOMES PARTNERS, L.P.,
a Delaware limited partnership
dated as of November 21, 1995
TABLE OF CONTENTS
Page
I. Actions to be Completed at or Prior to the Closing. . . 1
II. Representations and Warranties of Apollo. . . . . . . . 2
III. Representations and Warranties of Caldarone . . . . . . 3
IV. Restrictions on Transfer of Retained Shares . . . . . . 4
V. Tag-Along Rights; Bring-Along Rights. . . . . . . . . . 5
VI. Proxy . . . . . . . . . . . . . . . . . . . . . . . . . 7
VII. Acquisition of Additional Securities from the
Company . . . . . . . . . . . . . . . . . . . . . . . . 7
VIII. Definitions . . . . . . . . . . . . . . . . . . . . . . 8
IX. Miscellaneous . . . . . . . . . . . . . . . . . . . . . 12
Exhibit A
STOCK PURCHASE AGREEMENT (this "Agreement"), dated as
of November 21, 1995, between Anthony J. Caldarone ("Caldarone"),
and Apollo Homes Partners, L.P., a Delaware limited partnership
("Apollo").
WHEREAS, Apollo owns 5,316,855 shares (the "Apollo
Shares") of common stock, $.01 par value per share ("Common
Stock"), of Calton, Inc., a New Jersey corporation (the
"Company");
WHEREAS, Apollo desires to sell 2,658,855 Apollo Shares
(the "Purchased Shares") and retain 2,658,000 Apollo Shares (the
"Retained Shares"); and
WHEREAS, Caldarone owns 1,542,144 shares of Common
Stock, and Joyce P. Caldarone owns 65,782 shares of Common Stock,
and Caldarone desires to purchase the Purchased Shares;
NOW THEREFORE, in consideration of the foregoing and of
the promises, covenants and conditions contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which the parties hereby acknowledge, the parties
hereto agree as follows:
I. Actions to be Completed at or Prior to the Closing
The closing of the transactions contemplated hereunder
(the "Closing") shall occur as promptly as practicable following
the consummation of any condition to Closing hereunder but in no
event later than November 30, 1995 unless otherwise agreed to by
the parties hereto. The date that the closing actually occurs is
referred to as the "Closing Date." At or prior to the Closing
Apollo shall deliver or cause to be delivered to Caldarone the
Purchased Shares by means of (i) inter-participant transfers at
The Depository Trust Company ("DTC") to the account of Smith
Barney Inc., participant #0418 against payment of $1,329,427.50
to Apollo's custodian that is a participant in DTC in the Same
Day Funds Settlement System operated by DTC or (ii) delivery of a
certificate or certificates evidencing the Purchased Shares,
registered in the name of Apollo or its nominee, accompanied by
written instruments of transfer, duly executed against wire
transfer of immediately available funds in the amount of
$1,329,427.50 to: The Chase Manhattan Bank, N.A., ABA #: 021-
000021, A/C: 900-9-002206, BBK: Chase Manhattan Bank, N.A., A/C:
899-22113, BNF: Apollo Homes Partners, L.P., Attention: Cookie
Rampulla.
II. Representations and Warranties of Apollo
Apollo hereby represents and warrants to Caldarone as
follows:
(a) Apollo is a limited partnership duly organized,
validly existing and in good standing under the laws of the State
of Delaware.
(b) Apollo has all necessary partnership power and
authority to enter into and perform this Agreement and to
consummate the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed
and delivered by Apollo and constitutes a legal, valid and
binding obligation of Apollo, enforceable against it in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to or affecting generally
the enforcement of creditors' rights and remedies and by general
principles of equity.
(d) The execution and delivery of this Agreement and
the performance of the obligations imposed hereunder will not
result in a violation of the partnership agreement or other
organic document of Apollo or any order, decree or judgment of
any court or governmental agency having jurisdiction over Apollo
or its properties, will not conflict with, constitute a default
under, or result in the breach of, any contract, agreement or
other instrument to which Apollo is a party or is otherwise bound
and no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required
for the execution, delivery and performance of this Agreement by
Apollo, except for such filings as may be required under the
Securities Exchange Act of 1934, as amended.
(e) There is no litigation or proceeding pending or,
to the best knowledge of Apollo, threatened, against Apollo which
would have an effect on the validity or performance of this
Agreement.
(f) Apollo owns the Apollo Shares free and clear of
all liens, claims and other encumbrances (except as may be
imposed under the Securities Act of 1933, as amended, or the
"Blue Sky" laws of any state).
(g) All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by
Apollo directly with Caldarone without the intervention of any
Person on behalf of Apollo in such manner as to give rise to any
valid claim by any Person against Caldarone for a finder's fee,
brokerage commission or similar payment.
III. Representations and Warranties of Caldarone
Caldarone hereby represents and warrants to Apollo as
follows:
(a) Caldarone has full legal right and power and the
requisite capacity to enter into and perform this Agreement and
to consummate the transactions contemplated hereby.
(b) This Agreement has been duly executed and
delivered by Caldarone and constitutes a legal, valid and binding
obligation of Caldarone, enforceable against him in accordance
with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to or affecting generally the
enforcement of creditors' rights and remedies and by general
principles of equity.
(c) The execution and delivery of this Agreement and
the performance of the obligations imposed hereunder will not
result in a violation of any order, decree or judgment of any
court or governmental agency having jurisdiction over Caldarone
or any of his properties, will not conflict with, constitute a
default under, or result in the breach of, any contract,
agreement or other instrument to which Caldarone is a party or is
otherwise bound and no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this
Agreement by Caldarone, except for such filings as may be
required under the Securities Exchange Act of 1934, as amended.
(d) There is no litigation or proceeding pending or,
to the best knowledge of Caldarone threatened, against Caldarone
which would have an effect on the validity or performance of this
Agreement.
(e) Caldarone is purchasing the Purchased Shares (and,
if applicable, the Retained Shares) for his own account, solely
for investment and without a view to the distribution thereof.
Caldarone is an "accredited investor" within the meaning of Rule
501 under the Securities Act of 1933, as amended. Caldarone is
knowledgeable, sophisticated and experienced in business and
financial matters, is capable of evaluating the merits and risks
of the acquisition of the Purchased Shares (and, if applicable,
the Retained Shares) and has previously invested in securities
similar to the Apollo Shares. Caldarone is able to bear the
economic risk of his investment in the Purchased Shares and is
able to afford the complete loss of such investment. Caldarone
understands that the Company has registered the Apollo Shares
pursuant to a "shelf registration" under the Securities Act of
1933, as amended, but that such registration statement is not
current and that even if made current, the right to sell pursuant
thereto may not be available to Caldarone with respect to any
Apollo Shares. Caldarone understands further that the Apollo
Shares are not being sold pursuant to such registration statement
or any other registration statement, and, except as described
above, have not been registered under the Securities Act of 1933,
as amended, or the "Blue Sky" laws of any state, and may not be
sold, transferred or otherwise disposed of except pursuant to an
effective and current registration under the Securities Act of
1933, as amended, and applicable "Blue Sky" laws or, if
available, an exemption therefrom.
(f) All negotiations relative to this Agreement and
the transactions contemplated hereby have been carried out by
Caldarone directly with Apollo without the intervention of any
Person on behalf of Caldarone in such manner as to give rise to
any valid claim by any Person against Apollo for a finder's fee,
brokerage commission or similar payment.
IV. Restrictions on Transfer of Retained Shares
(a) Prior to the first anniversary of the Closing
Date, each Apollo Stockholder agrees that it will not Transfer
any of the Retained Shares except to a Permitted Transferee who
shall have executed a Joinder Agreement and thereby become a
party to this Agreement, or pursuant to the terms of any tender
offer or an exchange offer for shares of Common Securities, or
pursuant to Article V of this Agreement.
(b) If any of the Apollo Stockholders (the "Seller")
desires to Transfer any Retained Shares (the "Offered Shares") on
or after the first anniversary of the Closing Date, except for
Transfers to a Permitted Transferee who shall have executed a
Joinder Agreement and thereby become a party to this Agreement,
or pursuant to the terms of any tender offer or exchange offer
for shares of Common Securities, or pursuant to Article V of this
Agreement, prior to any such Transfer it shall give written
notice of the proposed Transfer (the "Notice of Intention") to
Caldarone, specifying the number of Offered Shares which the
Seller wishes to Transfer, the proposed purchase price (the
"Offer Price") therefor and all other material terms and
conditions of the proposed Transfer.
(c) For a period of 15 days following his receipt of
the Notice of Intention, Caldarone shall have an irrevocable
right to purchase all of the Offered Shares at the Offer Price
and on the other terms specified in the Notice of Intention,
exercisable by delivery of a notice (the "Notice of Acceptance")
to the Seller, specifying Caldarone's intent to purchase all of
the Offered Shares at the Offer Price and on the other terms
specified in the Notice of Intention.
(d) The closing of any purchase by Caldarone pursuant
to this Article IV shall take place on such date, not later than
15 days after delivery to the Seller of the Notice of Acceptance,
as shall be specified in the Notice of Acceptance. At the
closing of such purchase, the Seller shall either deliver a
certificate or certificates evidencing the Offered Shares being
sold duly endorsed for transfer, or accompanied by written
instruments of transfer duly executed or deliver the Offered
Shares by means of inter-participant transfers at DTC, in each
case against delivery of the Offer Price therefor in immediately
available funds.
(e) If the Notice of Intention has been duly given,
and Caldarone does not timely deliver a Notice of Acceptance or
otherwise notifies the Seller that he has determined not to
exercise his option to purchase all of the Offered Shares at the
Offer Price and on the other terms specified in the Notice of
Intention, then the Seller shall have the right, for a period of
45 days from the earlier of (i) the expiration of the 15 days
following the delivery of the Notice of Intention or (ii) the
date on which the Seller receives notice from Caldarone that he
has determined not to exercise his option to purchase the Offered
Shares, to sell to any other Person (a "Third Party") the Offered
Shares at a price not less than the Offer Price and on the other
terms no more favorable to the Third Party than those set forth
in the Notice of Intention.
(f) No Third Party, tender offeror or exchange offeror
(unless a Caldarone Stockholder) shall have any rights under or
be bound by any provisions of this Agreement and the Offered
Shares in the hands of any such Person shall be free of all the
provisions of this Agreement, including, without limitation, the
provisions of Articles IV, V and VI of this Agreement.
V. Tag-Along Rights; Bring-Along Rights
(a) If any Caldarone Stockholder (the "Transferor")
proposes to Transfer any Common Securities ("Transferor Shares")
to any Person (the "Buyer"), other than to a Permitted Transferee
who shall have executed a Joinder Agreement and thereby became a
party to this Agreement then, as a condition to such Transfer,
the Transferor shall cause the Buyer to make a written offer (the
"Tag-Along Offer") to each of the Apollo Stockholders (the
"Offerees") to purchase from each Offeree, at the option of each
Offeree, up to that number of its shares of Common Securities
derived by multiplying the total number of Common Securities then
owned by the Offeree by a fraction, the numerator of which is the
total number of Transferor Shares and the denominator of which is
the total number of Common Securities (including the Transferor
Shares) then owned by the Transferor and all other Caldarone
Stockholders, on the same terms and conditions as are applicable
to the Transferor Shares, all of which terms shall be specified
in the Tag-Along Offer. Notwithstanding the foregoing, if any
Offeree does not accept its Tag-Along Offer in full, the other
Offerees shall have the right to sell pursuant to the Tag-Along
Offer up to the number of shares of Common Securities not being
sold by such Offeree in proportion to their percentage ownership
of Common Securities, until all such shares are sold. The
Transferor shall provide a written notice (the "Inclusion
Notice") of the Tag-Along Offer to each Offeree, which may accept
the Tag-Along Offer by sending a written notice of acceptance of
the Tag-Along Offer to the Transferor within 15 days of delivery
of the Inclusion Notice specifying the number of Common
Securities which it wishes to sell (including the number it
wishes to sell in the event any Offeree does not accept the Tag-
Along Offer in full).
The Buyer shall have 45 days, commencing on the
fifteenth day following delivery of the Inclusion Notice, in
which to purchase the shares of Common Securities with respect to
which the Tag-Along Offer was accepted and the Transferor Shares.
The material terms of such sale, including, without limitation,
price and form of consideration, shall be as set forth in the
Inclusion Notice. If at the end of such 45-day period the Buyer
has not completed the purchase of all the Transferor Shares and
all the Offeree's Common Securities proposed to be sold, the
provisions of this Article V(a) shall begin anew with respect to
all such Common Securities.
(b) If the Transferor Shares constitute all of the
Common Securities owned by all Caldarone Stockholders, the
proposed Transfer is to a Buyer who is not a Permitted Transferee
of Caldarone or an Affiliate or Associate of any Caldarone
Stockholder and is in the form of a bona fide sale in which the
only consideration to be paid to the Offerees and the Transferors
per share of Common Security is cash consideration in an amount
not less than (x) $.50 during the first year following the
Closing Date, (y) $.75 during the second year following the
Closing Date and (z) $1.00 during the third year following the
Closing Date and the Transferor requests in the Inclusion Notice
that all Offerees sell their Common Securities pursuant to the
Tag-Along Offer, then the Offerees shall be required to
participate in the Tag-Along Offer in full.
(c) Concurrently with the Transfer of the Transferor
Shares and shares of Common Securities of the Offerees to the
Buyer pursuant to the Tag-Along Offer, the Buyer shall pay and
the Transferor shall cause the Buyer to pay to each Offeree its
respective portion of the sales price of the shares of Common
Securities sold or otherwise disposed of pursuant thereto.
(d) Except for its obligations pursuant to the Tag
Along Offer, no Buyer shall have any rights under or be bound by
any provisions of this Agreement, and any Common Securities in
the hands of a Buyer shall be free of all the provisions of this
Agreement, including, without limitation, the provisions of
Articles IV, V and VI of this Agreement.
(e) Notwithstanding anything to the contrary set forth
herein, in connection with any Transfer of Common Securities by
an Offeree under this Article V, no Offeree shall be required to
make any representations or warranties except to the effect as
set forth in Article II of this Agreement to the extent then
accurate, and no Offeree shall be required to provide any
indemnification or guaranty or act as a surety or in a similar
capacity.
VI. Proxy
The Apollo Stockholders hereby grant to Caldarone an
irrevocable proxy coupled with an interest to vote all of the
Retained Shares at any time then owned by them solely for the
election of directors; provided, however, that if any Apollo
Stockholder tenders any Retained Shares pursuant to a tender or
exchange offer or any Caldarone Stockholder Transfers any Common
Securities other than to a Permitted Transferee who shall have
executed a Joinder Agreement and become a party to this
Agreement, the number of Retained Shares subject to this proxy
will be decreased by the number of Retained Shares so tendered or
exchanged or Common Securities so Transferred. The provisions of
this Article VI are personal to Caldarone and shall not be
enforceable by any other Person, including without limitation,
any successor or assign (by operation of law or otherwise,
including without limitation upon the death or disability of
Caldarone), Permitted Transferee, Affiliate or Associate of
Caldarone.
VII. Acquisition of Additional Securities from the
Company
(a) Prior to acquiring directly or indirectly, any
securities from the Company (a "Triggering Issuance"), other than
pursuant to a dividend or distribution to all holders of Common
Stock or up to 500,000 shares of Common Securities (subject to
adjustment for any stock splits, stock dividends,
recapitalizations and similar events) granted to Caldarone under
any stock option plan adopted and implemented in accordance with
Rule 16b-3 of the Securities Act of 1933, as amended, the
Caldarone Stockholders shall offer and shall cause their
respective Affiliates and Associates to offer (the "Offer"), to
each of the Apollo Stockholders an opportunity to purchase that
number of the securities so acquired by the Caldarone
Stockholders (the "Caldarone Securities") derived by multiplying
the total number of Caldarone Securities by a fraction, the
numerator of which is the total number of Common Securities then
owned by such Apollo Stockholder, and the denominator of which is
the total number of Common Securities then owned by all Caldarone
Stockholders (without giving affect to the issuance of the
Caldarone Securities).
(b) The Caldarone Stockholders shall give at least 30
days' prior written notice (the "Issuance Notice") to each Apollo
Stockholder of any proposed Triggering Issuance, which notice
shall disclose in detail all of the proposed terms and conditions
of such Triggering Issuance including the purchase price for the
Caldarone Securities and a proposed closing date for the purchase
by the Apollo Stockholders of their portion of the Caldarone
Securities. Each Apollo Stockholder will be entitled to purchase
its portion of the Caldarone Securities at the same price, on the
same terms, and at the same time as the Caldarone Securities are
issued to the Caldarone Stockholders pursuant to such Triggering
Issuance by delivery of written notice to Caldarone of such
election within 20 days after delivery of the Issuance Notice
(the "Election Notice"); provided, that if more than one type of
security (including any debt or hybrid security) is issued to the
Caldarone Stockholders pursuant to such Triggering Issuance, each
Apollo Stockholder shall, if it exercises its rights pursuant to
this Article VII, purchase such securities in the same ratio as
issued to the Caldarone Stockholders pursuant to such Triggering
Issuance. If any Apollo Stockholder has elected to purchase any
Caldarone Securities, the sale of such securities shall be
consummated on the proposed closing date set forth in the
Issuance Notice or as soon as practical thereafter.
Notwithstanding the foregoing, if any Apollo Stockholder elects
not to accept its rights in full pursuant to this Article VII,
the other Apollo Stockholders shall have the right to purchase
such Apollo Stockholders' portion of Caldarone Securities not
being purchased, in proportion to their percentage ownership of
Common Securities until all such Caldarone Securities are sold.
VIII. Definitions
(a) The following capitalized terms, when used in this
Agreement, have the respective meanings set forth below:
"Affiliate" means, with respect to any Person, any
other Person that directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common
control with such Person. For the purposes of this definition,
"control" (including, with its correlative meanings, the terms
"controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the
ownership of securities, by contract or otherwise.
"Apollo Stockholders" means Apollo and its respective
direct and indirect Permitted Transferees, so long as any such
Person shall hold Common Securities.
"Associate" means, with respect to any Person, (i) any
corporation or organization of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities; (ii) any trust
or other estate in which such Person has a substantial beneficial
interest or as to which such Person serves as trustee or in a
similar fiduciary capacity; and (iii) any relative or spouse of
such Person, or any relative of such spouse, who has the same
home as such Person or who is a director or officer of such
Person or any of its parents or subsidiaries.
"Bankruptcy Event" means an event whereby the Company
or a Subsidiary thereof shall commence a voluntary case under the
Federal bankruptcy laws or any other applicable Federal or state
bankruptcy, insolvency or similar law, or consent to the entry of
an order for relief in an involuntary case under such law or to
the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company
or a Subsidiary thereof or of any substantial part of its
property, or make an assignment for the benefit of its creditors,
or admit in writing its inability to pay its debts generally as
they become due, or if a decree or order for relief in respect of
the Company or a Subsidiary thereof shall be entered by a court
having jurisdiction in the premises in an involuntary case under
the Federal bankruptcy laws or any other applicable Federal or
state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator
(or other similar official) of the Company or a Subsidiary
thereof or of any substantial part of their respective
properties.
"Caldarone Stockholder" means Caldarone and his
Permitted Transferees, so long as any such Person shall hold
Common Securities.
"Change of Control" means the occurrence in one or more
transactions or events or series of transactions or events of any
of the following: (i) the acquisition by any Person of
securities representing at least a majority of the voting power
of all securities of the Company then outstanding, assuming the
conversion, exchange or exercise of all securities convertible,
exchangeable or exercisable for or into voting securities; (ii)
the sale or transfer of all or substantially all of the
consolidated assets of the Company (whether by sale, transfer,
merger or otherwise); (iii) any merger, consolidation,
recapitalization, reorganization or similar event to which the
Company or any Subsidiary of the Company is a party, except
pursuant to a transaction immediately after which the Apollo
Stockholders and Caldarone Stockholders (including their
Affiliates and Associates) continue to have ownership and full
economic interest in the Common Securities in the same proportion
in relation to the other holders of Common Securities as a group
as immediately before such transaction; or (iv) the dissolution
or liquidation of the Company or any Significant Subsidiary of
the Company.
"Common Securities" means the Common Stock, and any
securities issued with respect thereto as a result of any stock
dividend, stock split, reclassification, recapitalization,
reorganization, merger, consolidation or similar event or upon
the conversion, exchange or exercise thereof.
"Joinder Agreement" means a Joinder Agreement in the
Form of Exhibit A hereto.
"Permitted Transferee" means:
(i) as to any Caldarone Stockholder, the spouse
or any lineal descendant (including by adoption) of
such Caldarone Stockholder, or any revocable trust of
which any Caldarone Stockholder is the trustee and
which is established solely for the benefit of any of
the foregoing individuals and whose terms are not
inconsistent with the terms of this Agreement; and
(ii) as to any Apollo Stockholder, any general or
limited partner of Apollo; any Affiliate or Associate
of Apollo or of any general or limited partner of
Apollo; any director, officer, employee or
representative of Apollo, of any general or limited
partner of Apollo, or of any Affiliate or Associate of
Apollo or such general or limited partner; and any
trust, a majority in interest of the beneficiaries of
which, or corporation or partnership, a majority in
interest of the stockholders or limited partners of
which, or partnership, the managing general partner of
which, are (or is) one or more of the Persons
identified in this clause (ii), the spouse of any such
Person and/or such Person's lineal descendants
(including by adoption).
"Person" means an individual, partnership, corporation,
trust, unincorporated organization, joint venture, government (or
agency or political subdivision thereof) or any other entity of
any kind.
"Significant Subsidiary" means, a Subsidiary which
meets any of the following conditions: (i) the Company's and its
other Subsidiaries' investments in and advances to the Subsidiary
exceed 20 percent of the total assets of the Company and its
Subsidiaries consolidated as of the time of determination or the
end of the most recently completed fiscal year; or (ii) the
Company's and its other Subsidiaries' proportionate share of the
total assets (after intercompany eliminations) of the Subsidiary
exceeds 20 percent of the total assets of the Company and its
Subsidiaries consolidated as of the time of determination or the
end of the most recently completed fiscal year; or (iii) the
Company's and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items
and cumulative effect of a change in accounting principle of the
Subsidiary exceeds 20 percent of such income of the Company and
its Subsidiaries consolidated as of the time of determination or
the end of the most recently completed fiscal year.
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power
of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled, directly
or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if
a partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is
at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes hereof, a Person or Persons
shall be deemed to have a majority ownership interest in a
partnership, association or other business entity if such Person
or Persons shall be allocated a majority of partnership,
association or other business entity gains or losses or shall be
or control the managing director or general partner of such
partnership, association or other business entity.
"Transfer" means, directly or indirectly, any sale,
transfer, assignment, hypothecation, pledge or other disposition
of any Common Securities or any interests therein.
"Vote" means to vote at any regular or special meeting
of shareholders or to execute a written consent in lieu of such a
meeting.
(b) The following terms, when used in this Agreement,
shall have the meanings ascribed thereto in the Section indicated
below:
Term Article
Agreement Preamble
Apollo Preamble
Apollo Shares Preamble
Buyer V(a)
Caldarone Preamble
Caldarone Securities VII(a)
Closing I
Closing Date I
Common Stock Preamble
Company Preamble
DTC I
Election Notice VII(b)
Inclusion Notice V(a)
Issuance Notice VII(b)
Notice of Acceptance IV(c)
Notice of Intention IV(b)
Offer VII(a)
Offer Price IV(b)
Offerees V(a)
Offered Shares VI(b)
Purchased Shares Preamble
Retained Shares Preamble
Seller IV(b)
Tag-Along Offer V(a)
Third Party IV(e)
Transferor V(a)
Transferor Shares V(a)
Triggering Issuance VII(a)
IX. Miscellaneous
(a) Information. Each of Caldarone and Apollo
acknowledges that the other has or may have had access to
material non-public information regarding the Company. Such
material non-public information may include, but would not be
limited to, the respective financial conditions, results of
operations, businesses, properties, assets, liabilities,
management, appraisals, projections, plans and proposals as well
as information regarding creditors of the Company, as the case
may be, and claims or potential claims of their respective
creditors. Each of Caldarone and Apollo acknowledges that any
and all non-public information available to the other may be
materially adverse to its own interests and if it were in
possession of some or all of that information it might not enter
into the transaction contemplated by this Agreement. Each of
Caldarone and Apollo acknowledges and agrees that it is not
relying upon the other to disclose, and such other party shall
have no obligation to disclose, any of the information referred
to above. Each party has conducted its own investigation, to the
extent it deemed necessary or desirable for the purpose of
entering into the transaction contemplated hereby, regarding the
information described above. Each of Caldarone and Apollo agree
that to the fullest extent permitted by applicable law, each
party waives and releases any and all claims either party may
have against the other and their respective Associates and
Affiliates, and the respective officers, directors, employees,
agents, representatives and partners of each of the foregoing by
reason of any nondisclosure of the information described in this
Agreement.
(b) Further Actions; Additional Parties. Each of
Caldarone and Apollo agrees to take such actions (whether before
or after the Closing) as reasonably necessary to carry out the
intentions of the parties under this Agreement. Such actions
include, but are not limited to, executing and delivering further
documents, instruments or agreements. Caldarone agrees to cause
each direct or indirect Permitted Transferee, Affiliate and
Associate of Caldarone's that acquires Common Securities to
execute and deliver to Apollo a Joinder Agreement and thereby
become party to this Agreement as a Caldarone Stockholder.
(c) Entire Agreement; Amendments. This Agreement
constitutes the entire agreement among the parties with respect
to the subject matter hereof and may not be modified or amended
except in a writing executed by the party against whom
enforcement is sought.
(d) Governing Law. The corporate laws of the State of
New Jersey will govern all questions concerning the relative
rights of Caldarone and Apollo, each in their capacity as
stockholders of the Company hereunder. All other questions
concerning the construction, validity and interpretation of this
Agreement shall be governed and construed in accordance with the
domestic laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than
the State of New York.
(e) Headings. The headings used in this Agreement are
for convenience only, do not form a part of this Agreement and
shall not affect in any way the meaning or interpretation of this
Agreement.
(f) Counterparts. This Agreement may be executed in
one or more counterparts which when taken together shall
constitute one agreement.
(g) No Third Party Beneficiaries. This Agreement is
intended for the benefit of the parties hereto and is not for the
benefit of, nor may any provisions hereof be enforced by, any
other Person or entity.
(h) Termination. This Agreement (other than this
Article IX) shall terminate upon the third anniversary of the
Closing Date; provided, however, that in the event, prior to the
third anniversary of the Closing Date, of a Change of Control,
Bankruptcy Event or Transfer by the Caldarone Stockholders
(including their Affiliates and Associates) to any Person (other
than to their Permitted Transferees) of an aggregate of 1,000,000
shares of Common Securities (subject to appropriate adjustment
for any stock splits, stock dividends, recapitalizations and
similar events), the provisions of Articles IV, V(b) and VI will
terminate upon the occurrence of such Change of Control,
Bankruptcy Event or Transfer.
(i) Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to
have been duly given only if delivered personally or mailed (by
registered or certified mail, return receipt requested) or by
reputable overnight courier, fee prepaid to the parties at the
following addresses:
If to Caldarone or any Mr. Anthony J. Caldarone
Caldarone Stockholder: The Anchorage
162 Anchor Drive
Vero Beach, FL 32963
with a copy to: Kenneth Falk
Deutch & Falk
843 Rahway
Woodbridge, NJ 07095
If to Apollo or any Peter P. Copses
Apollo Stockholder: Michael D. Weiner
Apollo Advisors, L.P.
1999 Avenue of the Stars
Suite 1900
Los Angeles, CA 90062
with a copy to: Ira White
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10179
Any party from time to time may change its address or other
information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
(j) Successors and Assigns, Etc. This Agreement shall
be binding on the parties hereto and their respective Permitted
Transferees to whom Common Securities are Transferred. Except as
set forth above, this Agreement is not assignable by operation of
law or otherwise (including without limitation upon the death or
disability of Caldarone). In the event of a Transfer of Common
Securities by any Apollo Stockholder to any Caldarone
Stockholder, only the provisions of this Agreement which are
expressly applicable to Caldarone Stockholders shall be
applicable to such Caldarone Stockholder and to such Common
Securities in the hands of such Caldarone Stockholder. In the
event of a Transfer of Common Securities by any Caldarone
Stockholder to any Apollo Stockholder, only the provisions of
this Agreement which are expressly applicable to Apollo
Stockholders shall be applicable to such Apollo Stockholder and
to such Common Securities in the hands of such Apollo
Stockholder.
(k) Registration Rights. Apollo hereby assigns to
Caldarone, Apollo's rights, if any, with respect to the Purchased
Shares (and, to the extent purchased by Caldarone, the Retained
Shares) only, under that certain Registration Rights Agreement
dated May 28, 1993 among the Company and each of the Persons
named on Schedule A thereto. Caldarone understands that Apollo
is not making any express or implied representation or warranty
with respect to the Registration Rights Agreement or such
assigment, including, without limitation, as to whether Caldarone
will be able to exercise any rights under such Registration
Rights Agreement or enforce any provisions thereof.
(l) Condition. Caldarone has informed Apollo that
Caldarone is considering requesting the Company to appoint him
and J. Ernest Brophy to the Board of Directors of the Company.
The only condition to the Closing hereunder shall be that
Caldarone and J. Ernest Brophy be so appointed. Caldarone
understands that whether or not he and J. Ernest Brophy are
appointed to the Board of Directors shall be determined by the
Board of Directors and not by Apollo. Apollo makes no
representation or warranty as to whether Caldarone and J. Ernest
Brophy will be appointed to the Board of Directors of the Company
and is not under any obligation to make any effort on behalf of
Caldarone and J. Ernest Brophy in regard thereto.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed
and delivered this Agreement as of the date first written above.
APOLLO HOMES PARTNERS, L.P.
By: AIF II, L.P., its general partner
By: APOLLO ADVISORS, L.P.,
its Managing General Partner
By: APOLLO CAPITAL MANAGEMENT, INC.
its General Partner
By:/s/Peter Copses
Name: Peter Copses
Title: Vice President
/s/ Anthony J. Caldarone
Name: Anthony J. Caldarone
Exhibit 6
Form of Joinder Agreement
[Anthony J. Caldarone]
[Apollo Homes Partners, L.P.]
[Address]
Attention:
Gentlemen:
In consideration of the acquisition by the undersigned
of ______ shares of Common Stock, $.01 par value per share,
[Describe any other security being transferred] of Calton, Inc.,
a New Jersey corporation (the "Company"), the undersigned
[represents that it is a Permitted Transferee of [Insert name of
transferor] and] agrees that, as of the date written below, [he]
[she] [it] shall become a party to, and a [Caldarone Stockholder]
[Apollo Stockholder] as defined in, that certain Stock Purchase
Agreement dated as of November __, 1995, as such agreement may be
or have been amended from time to time (the "Agreement"), between
Anthony J. Caldarone and Apollo Homes Partners, L.P., a Delaware
limited partnership, and shall be fully bound by, and subject to,
all of the covenants, terms and conditions of the Agreement as
though an original party thereto and shall be deemed a [Caldarone
Stockholder] [Apollo Stockholder] for all purposes thereof.
Executed as of the day of , .
TRANSFEREE:
Address:
ACKNOWLEDGED AND ACCEPTED:
[ANTHONY J. CALDARONE]
[APOLLO HOMES PARTNERS, L.P.]
[By: ]
Name:
Title:
EXHIBIT #2 TO JOYCE P. CALDARONE'S 13D
Form of Joinder Agreement
Apollo Homes Partners, L.P.
c/p Apollo Advisors, L.P.
1999 Avenue of the Stars, Suite 1900
Los Angeles, CA 90067
Attention: Michael D. Weiner, Esq.
Gentlemen:
The undersigned, Joyce P. Caldarone, as holder of 65,782
shares of Common Stock, $.01 par value per share, of Calton,
Inc., a New Jersey corporation (the "Company"), represents that
it is a Permitted Transferee of Anthony J. Caldarone and agrees
agrees that, as of the date therewith, she shall become a party
to, and a Caldarone Stockholderas defined in, that certain Stock
Purchase Agreement dated as of November 21, 1995, as such
agreement may be amended from time to time (the "Agreement"),
between Anthony J. Caldarone and Apollo Homes Partners, L.P., a
Delaware limited partnership, and shall be fully bound by, and
subject to, all of the covenants, terms and conditions of the
Agreement as though an original party thereto and shall be deemed
a Caldarone Stockholder for all purposes thereof.
Executed and delivered as of the 21st day of November,
1995.
TRANSFERREE: /s/ Joyce P. Caldarone
Address: The Anchorage
162 Anchor Drive
Vero Beach, FL 32963
ACKNOWLEDGED AND ACCEPTED:
APOLLO HOMES PARTNERS, L.P.
By: AIF II, L.P.,
its general partner
By: APOLLO ADVISORS, L.P.
its Managing General Partner
By: APOLLO CAPITAL MANAGEMENT, INC.
its General Partner
By: /s/ Peter Copses
Name: Peter Copses
Title: Vice President
