40
As filed with the Securities and Exchange Commission on March 22, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ROSEVILLE COMTECH
(Exact name of registrant as specified in its charter)
California 4813 Applied For
(State or other (Primary Standard Industri (I.R.S. Employer
jurisdiction of al Classification Identification No.)
incorporation or Code Number)
organization)
211 Lincoln Street
Roseville, California 95678
(916) 786-6161
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Brian H. Strom
President and Chief Executive Officer
Roseville Telephone Company
211 Lincoln Street
Roseville, California 95678
(916) 786-1407
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Jed E. Solomon, Esq.
Cooper, White & Cooper
201 California Street
San Francisco, California 94111
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective time of the Reorganization described in this
Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. ___
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Each Maximum Maximum Amount of
Class of Amount Offering Aggregate Registration
Securities to be Price Offering Fee
to be Registered Per Unit Price
Registered
--------- ---------- -------- ----- ---
Common Stock, 14,484,953 $24.00 $347,638,872 $119,875
Without Par shares
Value
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
shall determine.
ROSEVILLE COMTECH
FORM S-4
CROSS REFERENCE SHEET
PART I
INFORMATION REQUIRED IN PROSPECTUS
S-4 Item Location in Prospectus
Item 1. Forepart of the Outside Front Cover Page
Registration Statement and of Proxy
Outside Front Cover Page of Statement/Prospectus
Prospectus ...............
Item 2. Inside Front and Outside Inside Front Cover Page
Back Cover of Prospectus... of Proxy
. Statement/Prospectus
Item 3. Risk Factors, Ratio of Outside Front Cover Page
Earnings to Fixed Charges of Proxy
and Other Information...... Statement/Prospectus;
. General Information for
Shareholders; Proposal to
Approve the Agreement and
Plan of Reorganization
Item 4. Terms of the Transaction... Proposal to Approve the
. Agreement and Plan of
Reorganization
Item 5. Pro Forma Financial
Information Not Applicable
Item 6. Material Contacts with the
Company Being Acquired..... Not Applicable
Item 7. Additional Information
Required for Reoffering by
Persons and Parties Deemed
to be Underwriters......... Not Applicable
Item 8. Interests of Named Experts
and Counsel................ Not Applicable
Item 9. Disclosure of Commission
Position on Indemnification
for Securities Act Not Applicable
Liabilities................
Item Information with Respect to
10. S-3 Registrants............ Not Applicable
Item Incorporation of Certain
11. Information by Reference... Not Applicable
Item Information with Respect to
12. S-2 or S-3 Registrants..... Not Applicable
Item Incorporation of Certain
13. Information by Reference... Not Applicable
Item Information with Respect to Business of Roseville and
14. Registrants Other than S-2 Holding Company
or S-3 Registrants.........
Item Information with Respect to Incorporation of Certain
15. S-3 Companies.............. Documents by Reference
Item Information with Respect to
16. S-2 or S-3 Companies....... Not Applicable
Item Information with Respect to
17. Companies Other than S-2 or
S-3 Companies.............. Not Applicable
Item Information if Proxies, General Information for
18. Consents or Authorizations Shareholders; Proposal to
are to be Solicited........ Approve the Agreement and
Plan of Reorganization;
Election of Directors;
Compensation of
Directors; Executive
Compensation; Report of
Compensation Committee
Concerning Compensation;
Performance Graph;
General Matters and
Shareholder Proposals.
Item Information if Proxies,
19. Consents or Authorizations
are not to be Solicited in
an Exchange
Offer...................... Not Applicable
ROSEVILLE TELEPHONE COMPANY
Dear Shareholders:
You are cordially invited to attend the Annual Meeting of Shareholders of
Roseville Telephone Company to be held at the Company's Industrial Avenue
Facility, 8150 Industrial Avenue, Building A, Roseville, California, on Friday,
June 16, 1995 at 8:00 o'clock P.M.
At the meeting, shareholders will be asked to approve the creation of a
holding company and to elect the five directors. As we do at each annual
meeting of our shareholders, officers will present reports on the various
activities of Roseville Telephone Company and its financial performance.
Information concerning these matters is set forth in the attached Notice of
Annual Meeting of Shareholders and Proxy Statement/Prospectus. As a result of
the proposal to create a holding company, the materials you are receiving in
connection with the 1995 Annual Meeting are lengthier than those normally
distributed to Roseville's shareholders. We urge you to read all of the
materials carefully.
The Board of Directors recommends that you vote your shares in favor of the
election of directors and the proposal to approve the Agreement and Plan of
Reorganization to implement the holding company structure.
Please return the enclosed proxy card as promptly as possible whether or
not you plan to attend the meeting. You will assure that your shares will be
voted at the meeting.
Thank you for your continued support.
Sincerely yours,
Robert L. Doyle
Chairman of the Board
ROSEVILLE TELEPHONE COMPANY
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To the Shareholders:
The Annual Meeting of Shareholders of Roseville Telephone Company
(hereinafter called "Roseville") will be held at Roseville's Industrial Avenue
Facility, 8150 Industrial Avenue, Building A, Roseville, California, on Friday,
June 16, 1995 at 8:00 o'clock P.M., for the following purposes:
1. To elect a Board of five (5) Directors;
2. To consider and act upon a proposal to approve the creation of a
holding company by approving the Agreement and Plan of Reorganization described
herein; and
3. To transact such other business as may properly come before the
meeting.
Only shareholders of record on the books of Roseville as of 5:00 o'clock
P.M., May 5, 1995 will be entitled to vote at the meeting or any adjournment
thereof.
By Order of the Board of Directors
Thomas E. Doyle
Secretary
SHAREHOLDERS WHO CANNOT ATTEND IN PERSON ARE REQUESTED TO FILL IN, DATE,
SIGN AND RETURN THE ENCLOSED PROXY AS PROMPTLY AS POSSIBLE.
Roseville, California, April 28, 1995.
ROSEVILLE COMTECH
ROSEVILLE TELEPHONE COMPANY
211 Lincoln Street
Roseville, California 95678
(916) 786-6161
PROXY STATEMENT/PROSPECTUS
For Annual Meeting Of Shareholders
To Be Held On June 16, 1995
and the issuance of up to 14,484,953 shares
of Common Stock, without par value
This Proxy Statement/Prospectus contains both a Proxy Statement for the
Annual Meeting of Shareholders of Roseville Telephone Company, a California
corporation ("Roseville"), to be held on June 16, 1995 (the "Annual Meeting")
and a Prospectus of Roseville ComTech, a newly-formed California corporation
("Holding Company"), relating to the issuance of up to 14,484,953 shares of
Holding Company common stock without par value (the "Holding Company Common
Stock"), in connection with the adoption of a holding company structure for
Roseville.
No person has been authorized to give any information or to make any
representation not contained in this Proxy Statement/Prospectus and, if given or
made, such information or representation must not be relied upon as having been
authorized by Holding Company or Roseville. This Proxy Statement/Prospectus
does not constitute an offer to sell or a solicitation of an offer to buy any
securities, nor does it constitute the solicitation of a proxy, in any
jurisdiction, to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. Neither the delivery of this Proxy
Statement/Prospectus nor any distribution of securities made hereunder shall,
under any circumstances, create any implication that the information herein is
correct as of any time subsequent to the date hereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED ON THE ACCURACY OR ADEQUACY OF THIS PROXY
STATEMENT/PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Proxy Statement/Prospectus is April 28, 1995.
AVAILABLE INFORMATION
Roseville is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy and information statements and
other information filed by Roseville with the Commission can be inspected and
copied at the public reference facilities of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, DC 20549, and at the Commission's New York
Regional Office, Jacob K. Javits Federal Building, 26 Federal Plaza, New York,
New York, 10278 and Chicago Regional Office, Everett McKinley Dirksen Building,
219 South Dearborn Street, Chicago, Illinois 60604. Copies of such material can
also be obtained at prescribed rates from the Public Reference Section of the
Commission at its Washington address.
Following completion of the Reorganization described in this Proxy
Statement/Prospectus, both Roseville and Holding Company will file such reports
and other information under the Exchange Act, and Holding Company will send its
shareholders annual reports containing financial information that has been
examined and reported upon, with an opinion expressed by, independent auditors.
A registration statement on Form S-4 under the Securities Act of 1933, as
amended (the "Securities Act"), has been filed with the Commission with respect
to the Holding Company Common Stock offered by this Proxy Statement/Prospectus.
This Proxy Statement/Prospectus does not contain all information set forth in
such registration statement, certain portions of which have been omitted
pursuant to rules and regulations promulgated by the Commission. The omitted
information may be obtained from the Commission as indicated above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Roseville has filed with the Commission, pursuant to Section 13 of the
Exchange Act, an Annual Report on Form 10-K for the year ended December 31,
1994. Such Annual Report on Form 10-K is hereby incorporated by reference in
and made a part of this Proxy Statement/Prospectus.
All documents hereafter filed by Roseville with the Commission, pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the date of the
consummation of the Reorganization referred to herein shall hereby be deemed to
be incorporated by reference in and to be a part of this Proxy
Statement/Prospectus from the date of filing of such documents.
THIS PROXY STATEMENT/PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH
ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS) ARE AVAILABLE WITHOUT CHARGE UPON WRITTEN OR ORAL
REQUEST DIRECTED TO: LAUREL DISMUKES, CONTROLLER, ROSEVILLE TELEPHONE COMPANY,
211 LINCOLN STREET, ROSEVILLE, CALIFORNIA 95678, TELEPHONE NUMBER (916) 786-
1162. IN ORDER TO INSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD
BE MADE BY JUNE 12, 1995.
TABLE OF CONTENTS
Page
SUMMARY
ANNUAL MEETING OF SHAREHOLDERS
VOTING SECURITIES
ELECTION OF DIRECTORS
Compensation of Directors
EXECUTIVE COMPENSATION
Summary Compensation Table
Retirement Supplement Plan
Pension Plan and SERP
Compensation Committee Interlocks and Insider Participation
Report of the Compensation Committee Concerning Compensation
EXECUTIVE OFFICERS
Compliance with Section 16(a) of the Securities
Exchange Act of 1934
Performance Graph
PROPOSAL TO APPROVE THE AGREEMENT AND PLAN OF REORGANIZATION
General
Business of Roseville and Holding Company
Reasons for the Reorganization
Description of Reorganization
Automatic Conversion of Common Stock
Debt of Roseville
Directors and Officers of Holding Company
Employee Benefit Plans
Amendment or Termination of the Reorganization Agreement
Income Tax Consequences
Articles of Incorporation, Bylaws and Rights of Shareholders
Conditions to the Reorganization
Regulatory Approvals
Exchange of Share Certificates Not Required
Description of Capital Stock of Holding Company
Exchange Act Filings
Financial Statements
Legal Opinion
No Appraisal Rights
INDEPENDENT AUDITORS
COST OF SOLICITATION
OTHER MATTERS AND SHAREHOLDER PROPOSALS
EXHIBIT A - Agreement and Plan of Reorganization
EXHIBIT B - Articles of Incorporation of Roseville
Communication Company
SUMMARY
THE FOLLOWING IS A BRIEF SUMMARY OF CERTAIN INFORMATION CONTAINED IN THIS
PROXY STATEMENT/PROSPECTUS. THIS SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE REMAINDER OF THIS PROXY
STATEMENT/PROSPECTUS.
Annual Meeting of Shareholders
This Proxy Statement/Prospectus is furnished in connection with the Annual
Meeting of Shareholders on June 16, 1995 of Roseville Telephone Company
("Roseville"). At the Annual Meeting, Roseville's shareholders will consider
and vote on a proposal to adopt an Agreement and Plan of Reorganization dated
________ ___, 1995 (the "Reorganization Agreement") among Roseville, Roseville
ComTech ("Holding Company") and a wholly-owned subsidiary of Holding Company.
Voting Securities
Roseville has only one class of voting security, its Common Stock, entitled
to one vote per share and to cumulative voting in the election of Directors.
Shares cannot be voted at the meeting unless the owner is present or represented
by proxy. Approval of the Reorganization Agreement will require the affirmative
vote of a majority of the shares of Roseville present or represented and
entitled to vote at the meeting.
Agreement and Plan of Reorganization
Pursuant to the Reorganization Agreement, the corporate structure of
Roseville and its one existing subsidiary will be reorganized by creating a new
holding company to be the publicly-held parent of Roseville (the
"Reorganization"). Following the Reorganization, Holding Company, together with
its subsidiaries, will conduct all the operations currently conducted by
Roseville and its subsidiary, and Holding Company and its subsidiaries will have
the same consolidated net worth as do Roseville and its subsidiary. Each share
of Roseville Common Stock will automatically be converted into one share of
Holding Company Common Stock. Consequently, the shareholders of Roseville
become shareholders of Holding Company and will have the same ownership
interests in Holding Company as they now have in Roseville. This conversion
will not require the exchange of stock certificates.
Business of Roseville and Holding Company
Roseville is engaged in the business of furnishing communication services,
mainly local and toll telephone service and network access services in Placer
and Sacramento Counties, California. Roseville operates no significant line of
business other than communication services it now provides. Roseville's
principal executive offices are located at 211 Lincoln Street, Roseville,
California 95678, telephone number (916) 786-6161. The address of Holding
Company's principal executive offices and its telephone number are the same as
Roseville's. The current business of Roseville and its subsidiary will be
operated by Holding Company and its subsidiaries, including Roseville, after the
Reorganization.
Reasons for the Reorganization
The formation of a Holding Company structure for Roseville will provide a
corporate structure with clear separation between the telephone company and
other communication businesses, will provide a framework that can better
accommodate future growth from internal operations, acquisitions or joint
ventures, and will broaden the alternatives available for future financing and
will generally provide greater administrative and operational flexibility. The
holding company structure which is utilized by many other publicly and privately
held local exchange carriers, will better allow for such separation and will
provide improved financial information to management. With respect to future
investments or acquisitions, a holding company structure will provide Roseville
with the flexibility to operate any future investment or acquisition either as a
part of the telephone company or as a separate entity.
Income Tax Consequences
Roseville has not requested a ruling from the Internal Revenue Service with
respect to the Federal income tax consequences of the Reorganization under the
Internal Revenue Code of 1986, as amended. Roseville believes that the
Reorganization will be a tax-free transaction. Because of the many consequences
which must be taken into account in determining the possible income tax
consequences of the Reorganization, shareholders are urged to consult their own
tax advisors.
No Appraisal Rights
Holders of Roseville Common Stock will not, under California law, be
entitled to any appraisal rights as a result of the Reorganization.
ANNUAL MEETING OF SHAREHOLDERS
This Proxy Statement/Prospectus is furnished in connection with the
solicitation by the Board of Directors of Roseville to be used at the Annual
Meeting of Shareholders on June 16, 1995, or any adjournment thereof, for the
purposes set forth in the foregoing notice. Any shareholder may revoke his or
her proxy at any time prior to its use by written communication to the Secretary
of Roseville or by attendance at the Annual Meeting and voting in person.
The approximate date of mailing to shareholders of Notice of Annual Meeting
and this Proxy Statement/Prospectus is April 28, 1995.
VOTING SECURITIES
Roseville has only one class of voting security, its Common Stock, entitled
to one vote per share and, as explained below, to cumulative voting in the
election of Directors. Only shareholders of record at 5:00 o'clock P.M. on May
5, 1995, will be entitled to vote at the Annual Meeting. As of the close of
business on February 28, 1995, there were 14,484,953 shares of Roseville's
Common Stock outstanding. On February 28, 1995, no person was known by
Roseville to be the beneficial owner of more than five percent of its issued and
outstanding Common Stock, except as follows:
Amount and Nature Percent
Name and Address of Beneficial Owner of Beneficial Ownership Class
Roseville Telephone Company Retirement
Supplement Plan....................... 1,341,907(1) 9.3%
P.O. Box 969
Roseville, California 95678
(1) Shared voting and investment power.
Shares cannot be voted at the meeting unless the owner is present or
represented by proxy. Because abstentions with respect to any matter are
treated as shares present or represented and entitled to vote for the purposes
of determining whether that matter has been approved by the shareholders,
abstentions have the same effect as negative votes. Broker non-votes and shares
as to which proxy authority has been withheld with respect to any matter are not
deemed to be present or represented for purposes of determining whether
shareholder approval of that matter has been obtained.
In voting for Directors, each shareholder is entitled to vote his shares
for as many persons as there may be Directors to be elected, to accumulate his
votes and give one nominee votes equal to the number of Directors multiplied by
the number of shares of stock owned by him or to distribute his votes upon the
same principle among as many nominees as he thinks fit. The five candidates for
election as Directors at the Annual Meeting of Shareholders who receive the
highest number of affirmative votes will be elected.
Approval of the Agreement and Plan of Reorganization and any other matters
submitted for shareholder approval at the Annual Meeting will require the
affirmative vote of a majority of the shares of Roseville present or represented
and entitled to vote at the meeting.
ELECTION OF DIRECTORS
The following persons are nominees for Director to serve until the next
Annual Meeting of Shareholders and until their successors shall have been
elected and shall qualify. The nominees constitute the present Board of
Directors, all of whom were elected at the last Annual Meeting of Shareholders
of Roseville. During 1994, the Board of Directors held twelve regular meetings,
of which no Director attended less than 75 percent. Roseville's Board of
Directors has no standing audit or nominating Committee. In January 1994 the
Board of Directors established a Compensation Committee, composed of independent
Directors, whose functions include the review of and recommendations with
respect to officer compensation, the review of officer performance and
consideration of benefit issues generally. The Compensation Committee members
are Ralph E. Hoeper, who serves as Chairman, and John R. Roberts III.
Shares represented by the proxy will be voted and the proxies will vote for
the election of all the nominees to the Board of Directors, except to the extent
that authority to vote for particular nominees has been withheld. If any person
is unable or unwilling to serve as a nominee for the office of Director at the
date of the Annual Meeting, or any adjournment thereof, the proxies will vote
for such substitute nominee as shall be designated by the proxies. The
management has no reason to believe that any of the nominees will be unable to
serve if elected a Director. The present Directors and Officers (consisting of
seven individuals) beneficially owned, as of February 28, 1995, an aggregate
665,836 shares, or 4.6% of Roseville's Common Stock. In respect to the nominees
and all the Directors and Officers as a group, the following information is
furnished as of February 28, 1995.
Shares of
Principal Occupation and Roseville
Business Experience for P Benefi-c Percent
ast Five Years Director ially of Class
Name Age Since Owned (1)
---- --- ------------------- ----- ---------- -----
Robert L. 76 Chairman of the Board 1954 303,225 2.1%
Doyle(2)(3) of Directors of
Roseville; President
and Chief Executive
Officer of Roseville
from 1954 to 1993.
Brian H. Strom(4) 52 President and Chief 1993 5,985 *
Executive Officer of
Roseville (since
December 1993); Vice
President and Chief
Financial Officer of
Roseville from 1989 to
1993.
Thomas E. Doyle(2) 66 Vice President (since 1951 282,766 2.0%
1972) and Secretary-
Treasurer (since 1965)
of Roseville; Chairman
of the Board, Placer
Savings Bank, Auburn,
California.
Ralph E. Hoeper(5) 70 President, Foresthill 1987 32,309 *
Telephone Company,
Foresthill,
California.
John R. Roberts 43 Executive Director 1993 10,152 *
III(5) (since 1990),
California Rice
Industry Association;
Executive Director
(from 1989 to 1990),
Sacramento
Metropolitan Chamber
of Commerce; Director,
Meta Information
Services, Inc.,
Sacramento,
California.
All Directors and 665,836 4.6%
Officers as a
group (7 persons)
* Less than 1.0%
(1) Each beneficial owner has shared voting and investment power
unless otherwise noted.
(2) Robert L. Doyle and Thomas E. Doyle are brothers.
(3) Included in Robert L. Doyle's share ownership figure are 139,201
shares in respect of which he has sole voting and investment power.
(4) Included in Brian H. Strom's share ownership figure are 5,096
shares in respect of which he has sole voting and investment power.
(5) Ralph E. Hoeper and John R. Roberts III serve on the compensation
committee.
Compensation of Directors
All Directors were compensated by a fee of $1,000 per month during the
first three months of 1994. Beginning in April 1994, Directors other than
Robert L. Doyle and Brian H. Strom (who no longer receive compensation as
Directors) were compensated by a fee of $1,000 per month and $500 for each Board
meeting they attend.
EXECUTIVE COMPENSATION
The following table sets forth the executive compensation paid during the
years ended December 31, 1994, 1993 and 1992 to all officers of Roseville who
earned more than $100,000 in combined salary and bonus in 1994:
Summary Compensation Table
Annual Compensation
Name and Other Annual All Other
Principal Salary Bonus Compensation Compensation
Position(1) Year (2) $ $ (3) $ (4) $
---------- ---- ------ ---- ------------ ------------
Robert L. Doyle 1994 361,496 -- 9,685 21,097
Chairman of the 1993 359,775 -- 9,685 10,000
Board of Directors 1992 349,236 -- 6,235 10,000
Brian H. Strom 1994 271,207 -- 1,235 8,493
President and Chief 1993 201,385 -- 1,080 10,000
Executive Officer 1992 195,463 -- 795 10,000
A. A. Johnson 1994 238,428 -- 9,685 8,493
Executive Vice 1993 201,865 -- 8,480 10,000
President and Chief 1992 195,843 -- 6,235 10,000
Operating Officer
Michael D. Campbell 1994 163,255 -- 560 --
Vice President and
Chief Financial
Officer
__________
(1) On December 22, 1993, Brian H. Strom, former Vice President and Chief
Financial Officer of Roseville was elected President and Chief Executive
Officer and A. A. Johnson, former Vice President, Operations of Roseville
was elected Executive Vice President and Chief Operating Officer. Robert
L. Doyle continues to serve as Chairman of the Board of Directors, a
position he held in addition to his service to December 1993 as President
and Chief Executive Officer. Michael D. Campbell was elected Vice
President and Chief Financial Officer effective March 14, 1994.
(2) Reflects for Robert L. Doyle and Brian H. Strom, in addition to salary,
director's fees in the amount of $3,000 for the year ended December 31,
1994, and for Robert L. Doyle in the amount of $12,000 for the years ended
December 31, 1993 and 1992 and, in respect of Michael D. Campbell, salary
from the commencement of his employment on March 14, 1994.
(3) Other annual compensation consists of gross-up payments to officers and
other employees for tax liability incurred in connection with imputed
premiums in respect of life insurance coverage in excess of $50,000.
(4) Reflects employer contributions to Roseville's Retirement Supplement Plan
and, for Robert L. Doyle in 1994, a payment to Mr. Doyle pursuant to the
SERP in the amount of $11,864. See "Retirement Supplement Plan" and
"Pension Plan and SERP" for further information.
Retirement Supplement Plan
Roseville has a Retirement Supplement Plan in which all employees of
Roseville are eligible to participate after one year of service. Under the
Retirement Supplement Plan, eligible employees of Roseville are allowed to
contribute to the plan not more than 6% of their annual compensation as an
"employee savings contribution." Eligible employees may also contribute to the
plan not more than 10% of their annual compensation as an "employee retirement
contribution." Generally, in accordance with Section 401(k) of the Internal
Revenue Code, an employee who makes an employee retirement contribution reduces
by the amount of such contribution the amount of his or her taxable income that
is otherwise currently reportable for Federal tax purposes. Roseville will make
employer contributions to the plan equal to 50% of the employee's aggregate
savings and retirement contributions. Subject to plan limitations on total
contributions and Roseville matching contributions, an employee may elect to
make either a savings contribution or a retirement contribution, or both.
Employees may voluntarily withdraw their employee savings contributions upon
appropriate notice to Roseville, but must reach the age of 59 1/2, or
alternatively, demonstrate a financial hardship to withdraw their employee
retirement contributions. Employees are always fully vested in employer
retirement contributions, and become vested in employer savings contributions at
the rate of 20% per each year of service or fully vested upon death, disability
or the reaching of age 65. Distribution from the plan occurs generally upon
termination of employment.
Pension Plan and SERP
Roseville has a qualified defined benefit pension plan in which all
employees are eligible to participate substantially concurrently with the
commencement of employment ("Pension Plan"), as well as a supplemental non-
qualified and unfunded supplemental executive retirement plan ("SERP"). The
SERP provides benefits that would otherwise be denied participants by reason of
certain Internal Revenue Code limitations on qualified plan benefits, based on
remuneration that is covered under the plans and years of service with
Roseville. Benefits under the plans are a function of a participant's years of
service with Roseville and the employee's average annual compensation during the
period of the five consecutive years in the last ten years of credited service
in which annual compensation was the largest. The monthly retirement benefit
payable under the plans will be adjusted on the basis of actuarial equivalents
for a joint and survivor benefit and for optional forms of benefit, such as the
early retirement benefit. Benefits become fully vested at age 65 or on the
completion of 5 years of service, whichever first occurs, and are not subject to
any deduction for Social Security or other offset amounts.
While Roseville may terminate the plans at any time, such termination will
not deprive any participant or beneficiary of any vested accrued benefits under
the plan to the extent such benefits are then funded.
Since the Pension Plan is a defined benefit plan, funding is determined
with respect to participants as a group and costs cannot be readily allocated to
any individual participant. The ratio of 1994 plan contributions to estimated
total covered compensation was 14.5%. Estimated total covered compensation has
been determined by increasing the total base annual rate of compensation of plan
participants at January 1, 1994 by 6.0%. Robert L. Doyle, Brian H. Strom and A.
A. Johnson are entitled to benefits under the Pension Plan and the SERP and, at
December 31, 1994, were credited with 41, 6 and 17 years of service,
respectively, under the plans. Michael D. Campbell had less than one year of
service under the Plan at December 31, 1994. The compensation covered by the
Pension Plan and the SERP for each participant is substantially similar to the
sum of the salary and other annual compensation reported above for each
executive officer. The table below illustrates approximate annual benefits
payable under the plans for the ranges of pay and periods of service indicated,
assuming retirement at age 65 in 1995.
Estimated Annual Pension for Representative Years of Service
Highest
Consecutive
Five-Year
Average
Compensation 15 20 25 30 35 40
- ------------ -- -- -- -- -- --
$100,000 $26,250 $35,000 $43,750 $52,500 $61,250 $70,000
125,000 32,813 43,750 54,688 65,625 76,563 87,500
150,000 39,375 52,500 65,625 78,750 91,875 105,000
175,000 45,938 61,250 76,563 91,875 107,188 122,500
200,000 52,500 70,000 87,500 105,000 122,500 140,000
225,000 59,063 78,750 98,438 118,125 137,813 157,500
250,000 65,625 87,500 109,375 131,250 153,125 175,000
300,000 78,750 105,000 131,250 157,500 183,750 210,000
400,000 105,000 140,000 175,000 210,000 245,000 280,000
Compensation Committee Interlocks and Insider Participation
In early 1994, the Board of Directors established a Compensation Committee
of independent Directors comprised of Ralph E. Hoeper, who serves as Chairman,
and John R. Roberts III.
Report of the Compensation Committee Concerning Compensation
The Compensation Committee in 1994 assumed the responsibility of
recommending and reviewing a compensation program for Roseville's officers.
Previously such responsibility was held by the entire Board of Directors.
Consistent with past practices followed by Roseville, and deemed by the
Compensation Committee to be a proper articulation of the factors to be utilized
in connection with officer compensation, the Compensation Committee considered:
(i) operational goals and financial performance and the achievement
of stockholder value, together with each officer's individual effectiveness
in reaching those goals and achieving desirable financial performance and
stockholder value;
(ii) the years of service, skill levels and duties of Roseville's
officers giving effect to the limited number of officers and the resulting
determination of increased responsibilities for Roseville's officers in
relation to other companies;
(iii) the compensation earned by officers of other telephone and
telecommunications companies; and
(iv) officer compensation at general industry companies of similar
size to Roseville within the Sacramento, California metropolitan area and
in other areas of the United States with comparable cost-of-living and
compensation levels.
The Compensation Committee also realizes the significance of the
distinctions between the compensation policy at Roseville and at other
companies, both within and outside the telecommunications industry. Most
importantly, substantially all of the officers' compensation is derived from
base salary. Roseville has traditionally not paid bonuses to its officers, nor
did it do so in 1994. Compensation incentives utilized at other companies, such
as stock-based or other long-term incentive plans have never been adopted by
Roseville. As a result, substantially all of the officers' compensation at
Roseville is determined by base salary with reference to prior years performance
by the Company and the officer and competitive conditions.
In addition, the Compensation Committee received the assistance of an
independent consulting firm specializing in compensation matters which prepared
a report in early 1994 with respect to Roseville's compensation policies and
related matters. The engagement of the independent consulting firm was
implemented in furtherance of the Compensation Committee's desire to assure the
maintenance of a policy which attracts and retains the most qualified officers
who can contribute to the long-term performance and growth of Roseville. For
Roseville's executive officers 1994 compensation was below median figures for
telecommunication and general industry companies with comparable revenues
studied and discussed in the 1994 report delivered to the Compensation
Committee.
The 1994 compensation awarded to Robert L. Doyle, Chairman of the Board,
was comprised almost entirely of his salary. Notwithstanding that Roseville
again recorded record revenues and net income in 1993, and continued its
technological improvements, Mr. Doyle received only a minimal increase over his
1993 compensation, in recognition of the commencement of the transition of
certain of his duties to Brian H. Strom. Only a minimal number of the
comparable companies which were studied by the independent consulting firm for
the 1994 report employed individuals who served solely in the capacity of
chairman. As a result, the Compensation Committee does not believe that a
comparison of Mr. Doyle's compensation with that of the chairmen of such
companies is meaningful.
In connection with the 1994 report utilized to assist in the determination
of officer compensation, three of the companies whose compensation policies were
considered are among the seventeen companies constituting the Dow Jones
Telephone Systems Index. Substantially all of the companies whose policies were
considered for compensation comparisons achieved annual revenues in the vicinity
of $100 million, a figure comparable to Roseville's revenues. A number of
companies in the Dow Jones Telephone Systems Index are substantially larger than
Roseville and it was determined that comparison of compensation of Roseville's
officers with the officers of the other companies would not be meaningful.
Compensation Committee,
Ralph E. Hoeper, Chairman
John R. Roberts III
EXECUTIVE OFFICERS
The following table provides information regarding certain executive
officers of Roseville as of February 28, 1995:
Shares of
Principal Occupation and Roseville Percent
Business Experience for Beneficially of
Name Age Past Five Years Owned (1) Class
---- --- ---------- ----- -----
Robert L. Doyle(2) 76 Chairman of the Board of 303,225 2.1%
Directors; President and
Chief Executive Officer
(1954 to 1993)
Brian H. Strom(3) 52 President and Chief 5,985 *
Executive Officer (since
December 1993); Vice
President and Chief
Financial Officer (1989
to 1993)
A. A. Johnson 73 Executive Vice President 31,119 *
and Chief Operating
Officer (since December
1993); Vice President,
Operations (1989 to 1993)
Michael D. Campbell 46 Vice President and Chief 280 *
Financial Officer (since
March 1994); Partner,
Ernst & Young LLP (1983
to 1994).
* Less than 1.0%
(1) Each beneficial owner has shared voting and investment power
unless otherwise noted.
(2) Included in Robert L. Doyle's share ownership figure are 139,201
shares in respect of which he has sole voting and investment power.
(3) Included in Brian H. Strom's share ownership figure are 5,096
shares in respect of which he has sole voting and investment power.
Compliance with Section 16(a) of the Securities Exchange Act of 1934
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires
Roseville's directors and executive officers, and persons who own more than ten
percent of the Common Stock of Roseville to file with the Securities and
Exchange Commission (the "Commission") initial reports of ownership and reports
of changes in ownership of Common Stock of Roseville. Officers, directors and
greater than ten-percent shareholders are required by the Commission's
regulations to furnish Roseville with copies of all forms they file pursuant to
Section 16(a).
To Roseville's knowledge, during the two fiscal years ended December 31,
1994, all Section 16(a) filing requirements applicable to its officers,
directors and greater than ten-percent beneficial owners were complied with,
except, that one initial report of ownership was filed late by Michael D.
Campbell.
Performance Graph
The following graph shows a five year comparison of cumulative total
shareholder return of Roseville's Common Stock (assuming dividend reinvestment)
with the Dow Jones Telephone Systems Index (a published index which includes 17
telecommunications companies) and Standard & Poor's ("S&P") 500 Stock Index.
The comparison of total return on investment (change in year end stock price
plus reinvested dividends) for each of the periods assumes that $100 was
invested on December 31, 1989 in each of Roseville Telephone Company, the Dow
Jones Telephone Systems Index and S&P 500 Stock Index. The stock performance
shown on the graph below is not necessarily indicative of future price
performance.
COMPARISON OF 5-YEAR CUMULATIVE TOTAL RETURN
Among Roseville Telephone Company,
DJ Telephone Systems and S&P 500
[Graph to Be Inserted]
1989 1990 1991 1992 1993 1994
---- ---- ---- ---- ---- ----
Roseville Telephone Company $100 $145 $173 $195 $219 $236
DJ Telephone Systems Index $100 $ 89 $ 99 $110 $131 $124
S&P 500 Stock Index $100 $ 97 $126 $136 $150 $152
PROPOSAL TO APPROVE THE AGREEMENT AND PLAN OF REORGANIZATION
General
The Board of Directors believes that it is in the best interests of
Roseville and its shareholders to reorganize the corporate structure of
Roseville and its one existing subsidiary by creating a new holding company to
be the publicly-held parent of Roseville (the "Reorganization"). To implement
this Reorganization, the Board of Directors has approved and adopted the
Agreement and Plan of Reorganization (the "Reorganization Agreement"), a copy of
which is attached hereto as Exhibit A and incorporated herein by reference,
among Roseville, Roseville ComTech ("Holding Company") and a wholly-owned
subsidiary of Holding Company ("Reorganization Sub").
Following the Reorganization, Holding Company will be the publicly-held
parent corporation and, together with its subsidiaries, will conduct all the
operations currently conducted by Roseville and its subsidiary, and Holding
Company and its subsidiaries will have the same consolidated net worth as do
Roseville and its subsidiary. Under the Reorganization Agreement, each share of
Roseville Common Stock will automatically be converted into one share of Holding
Company Common Stock. Consequently, the shareholders of Roseville become
shareholders of Holding Company and will have the same ownership interests in
Holding Company as they now have in Roseville. This conversion will not result
in the recognition of gain or loss for Federal income tax purposes to the
holders of Roseville Common Stock and will not require the exchange of stock
certificates.
Holding Company does not plan to be an operating company and its assets
will consist principally of the capital stock of its subsidiaries. It will
derive its income principally from dividends from and fees for services rendered
to its subsidiaries and from any interest on any loans to subsidiaries.
Approval and consummation of the Reorganization require the affirmative
vote of the holders of a majority of the outstanding shares of Roseville Common
Stock. Approval of the Reorganization also will constitute approval of the
authorized capital stock of Holding Company and the approval of the assumption
by Holding Company of Roseville's Retirement Supplement Plan and certain other
employee benefit plans of Roseville. See "Employee Benefit Plans" below.
If the Reorganization is approved, it is anticipated that it will become
effective at 12:01 A.M. Pacific Standard Time on January 1, 1996 or such other
date as may be approved by Roseville's Board of Directors unless terminated by
Roseville as described below under "Amendment or Termination of the
Reorganization Agreement".
Business of Roseville and Holding Company
Roseville is engaged in the business of furnishing communication services,
mainly local and toll telephone service and network access services, in a
territory covering approximately 83 square miles in Placer and Sacramento
Counties, California. Roseville, with a 23.5% equity interest, is also one of
four limited partners of Sacramento Valley Limited Partnership, a California
limited partnership formed for the construction and operation of a cellular
mobile radio telephone system which now operates in Sacramento and other
Standard Metropolitan Statistical Areas. Roseville operates no significant line
of business other than communication services it now provides. Roseville's
principal executive offices are located at 211 Lincoln Street, Roseville,
California 95678, telephone number (916) 786-6161. The address of Holding
Company's principal executive offices and its telephone number are the same as
Roseville's. The current business of Roseville and its subsidiary will be
operated by Holding Company and its subsidiaries, including Roseville, after the
Reorganization.
Reasons for the Reorganization
The Board of Directors has unanimously approved, and recommended that
shareholders of Roseville approve, the Reorganization. In determining to
approve the Reorganization, the Board concluded that the formation of a holding
company structure for Roseville will provide a corporate structure with clear
separation between the telephone company and other communication businesses,
will provide a framework that can better accommodate future growth from internal
operations, acquisitions or joint ventures, and will broaden the alternatives
available for future financing and will generally provide greater administrative
and operational flexibility. During its consideration of the Reorganization,
the Board recognized that Roseville has pursued a number of opportunities that,
while communications-related, are not solely telephone operations. Such
opportunities have included the limited partnership investment to operate the
cellular telephone system. Roseville is also investigating possible
participation in the personal communications services industry, video
enterprises, the provision of long distance services and other communications
opportunities. The Board of Directors believes that such opportunities should
be managed and their results assessed separate from the results of Roseville's
current local exchange carrier operations. The holding company structure which
is utilized by many other publicly and privately held local exchange carriers,
will better allow for such separation and will provide improved financial
information to management. With respect to future investments or acquisitions,
a holding company structure will provide Roseville with the flexibility to
operate any future investment or acquisition either as a part of the telephone
company or as a separate entity. Roseville has no present intention to engage
in any activity other than communications related activities.
The Board of Directors also believes that a holding company structure will
broaden the alternatives for future financing. As proposed, Holding Company
will not be a public utility as defined under the California Public Utilities
Code and, as a consequence, it should not be subject to the regulatory
restrictions on the issuance of its securities to which Roseville is currently
subject under the rules of the California Public Utilities Commission ("CPUC").
Under current CPUC practice, a local exchange carrier, such as Roseville, must
file an application with the CPUC prior to its issuance of securities. An
interested party may raise objection to the issuance, in which event the CPUC
may postpone or disallow the issuance. Even absent any objection, the filing of
the application with and approval by the CPUC normally requires a number of
months or an even longer period. After the Reorganization, the CPUC will not
have jurisdiction to regulate securities issuance by Holding Company after the
Reorganization unless Holding Company submits itself to the CPUC's jurisdiction
by participating in a transaction that is subject to the CPUC's jurisdiction.
As a result, Holding Company will be able to issue its securities after the
Reorganization without facing premature disclosure, the uncertainty presented by
the notice filing requirements or unnecessary delays unless Holding Company
submits itself to the CPUC's jurisdiction by participating in a transaction that
is subject to CPUC jurisdiction. Certain securities issuances that are solely
in support of Roseville, such as debt placements for equipment acquisitions, or
other transactions pursuant to which the assets attributable to Roseville's
local exchange operations are encumbered, may continue to be made by Roseville
and will be regulated by the CPUC after the Reorganization is completed.
Description of Reorganization
The Boards of Directors of Roseville, Holding Company and Reorganization
Sub have approved the Reorganization Agreement. The following summary of the
principal provisions of the Reorganization Agreement is qualified in its
entirety by the Reorganization Agreement, a copy of which is attached as Exhibit
A and incorporated herein by reference.
The formation of the Holding Company structure contemplated by the
Reorganization will be accomplished through a merger pursuant to which
Reorganization Sub, a newly-formed, wholly-owned subsidiary of Holding Company,
will be merged with and into Roseville. The Reorganization, pursuant to the
terms and conditions of the Reorganization Agreement, is scheduled to become
effective at 12:01 A.M., Pacific Standard Time, on January 1, 1996 (the
"Effective Time"), at which time the separate existence of Reorganization Sub
will cease and Roseville, as the surviving corporation in the Reorganization,
will become a wholly-owned subsidiary of Holding Company. Following the
Reorganization, Roseville will continue to operate under the name "Roseville
Telephone Company" and Holding Company will be known as "Roseville ComTech".
Under the Reorganization Agreement, by virtue of the Reorganization, (i)
each share of Roseville Common Stock which is issued or outstanding or held in
the treasury of Roseville immediately prior to the Effective Time will be
automatically converted into one share of Holding Company Common Stock, (ii)
each share of Holding Company Common Stock issued and outstanding immediately
prior to the Effective Time will be automatically cancelled and retired; and
(iii) each share of Reorganization Sub Common Stock issued and outstanding
immediately prior to the Effective Time will be automatically converted into one
share of Roseville Common Stock. As a result of the transactions described
above, Holding Company will in effect replace Roseville as the publicly-held
corporation, and each shareholder of Roseville immediately before the Effective
Time will own, immediately after the Effective Time the same number of shares of
Common Stock of Holding Company as such shareholder owned of Roseville Common
Stock immediately before the Effective Time.
Automatic Conversion of Common Stock
When the Reorganization is effected, each share of Roseville Common Stock,
without par value, will automatically be converted into one share of Holding
Company Common Stock, without par value.
Debt of Roseville
Upon consummation of the Reorganization, Holding Company may assume joint
and several responsibility with Roseville for payment of obligations in respect
of Roseville's approximate $40 million of outstanding debt. Prior to the
consummation of the Reorganization, Roseville expects to obtain consent from
Bank of America National Trust and Savings Association in order to effect the
Reorganization.
Directors and Officers of Holding Company
Upon the effectiveness of the Reorganization, the persons who are Directors
of Roseville will become the Directors of Holding Company. Consequently, it is
anticipated that those persons who are elected Directors of Roseville at the
Annual Meeting of Shareholders and for whose election proxies are being
solicited by this Proxy Statement/Prospectus will be Directors of Holding
Company. See "Election of Directors".
Following the Annual Meeting of Shareholders, the Directors of Roseville
will elect officers of Roseville to serve until their successors are elected and
qualified. The officers so elected will become officers of Holding Company,
Roseville or both upon effectiveness of the Reorganization. Such additional
officers of Holding Company and Roseville as the Board of Directors considers
advisable will be elected or appointed from time to time.
Employee Benefit Plans
Participants in Roseville's Retirement Supplement Plan, following the
effectiveness of the Reorganization, shall be entitled to the same number of
shares of Holding Company's Common Stock equal to the number of shares of
Roseville Common Stock such holder would be entitled to prior to the
effectiveness of the Reorganization, upon the same terms and conditions as under
such Retirement Supplement Plan in effect immediately prior to the
Reorganization.
The Retirement Supplement Plan, the Pension Plan of Roseville and any other
employee benefit plans of Roseville will continue in effect following the
effectiveness of the Reorganization. All or some of such plans may be assumed
by Holding Company in the future to the extent its Board of Directors deems
necessary or desirable.
Amendment or Termination of the Reorganization Agreement
The Board of Directors of Roseville may, to the extent permitted by
California corporation law, amend, modify and supplement the Reorganization
Agreement at any time prior to the effective time, whether before or after
shareholder approval. The Board of Directors of Roseville may also terminate
their Reorganization Agreement, notwithstanding shareholder approval, at any
time prior to the effective time for any reason including, without limitation,
non-fulfillment of any condition referred to under "Conditions to the
Reorganization" below.
Income Tax Consequences
The following is a general discussion of certain Federal income tax
consequences of the Reorganization. Although it is not anticipated that state
or local income tax consequences will vary substantially from the Federal income
tax consequences described below, shareholders are urged to consult their own
tax advisors with respect thereto.
In the opinion of Cooper, White & Cooper, counsel to Roseville and Holding
Company:
1. No gain or loss will be recognized by Holding Company, Roseville or
Roseville's shareholders whose Roseville Common Stock will be converted
into Holding Company Common Stock by reason of the Reorganization;
2. The tax basis of Holding Company Common Stock received by
Roseville's shareholders in the transaction will be the same as the tax
basis of the Roseville Common Stock converted into such Holding Company
Capital Stock; and
3. Shareholders who hold their Roseville Common Stock as a capital
asset will include in their holding period for the Holding Company Common
Stock which they receive in the transaction their holding period for the
Roseville Common Stock converted into such Holding Company Common Stock.
Articles of Incorporation, Bylaws and Rights of Shareholders
The Articles of Incorporation and Bylaws of Holding Company are
substantially identical to the Amended and Restated Articles of Incorporation
and Bylaws of Roseville. Holders of Holding Company Common Stock immediately
after the Reorganization will have essentially the same rights as holders of
Roseville Common Stock immediately before the Reorganization.
Conditions to the Reorganization
Consummation of the transactions contemplated by the Reorganization
Agreement is conditioned, among other things, on (i) receipt of the requisite
approval by the holders of Roseville Common Stock, (ii) receipt of all consents,
approvals and authorizations that Roseville deems necessary and appropriate to
obtain from governmental and regulatory authorities in connection with the
consummation of the transactions contemplated by the Reorganization, and
(iii) the absence of any action by any court, governmental or regulatory
authority having jurisdiction over Holding Company, Roseville or Reorganization
Sub, the Reorganization or the transactions contemplated by the Reorganization,
that prohibit or restrict the consummation of any of the transactions
contemplated by the Reorganization.
Regulatory Approvals
Roseville expects to receive from the CPUC by the Effective Time an
approval to the Reorganization with respect to the creation of the Holding
Company structure as contemplated by the Reorganization. If Roseville does not
receive the approval from the CPUC by the Effective Time, Roseville will
postpone the Reorganization until the CPUC requirements are satisfied.
Exchange of Share Certificates Not Required
The Common Stock of Roseville will automatically be converted into Common
Stock of Holding Company at the Effective Time, without the necessity of the
holders thereof surrendering their certificates for exchange. Certificates for
Roseville Common Stock will be deemed to represent certificates in an equal
number of shares of Holding Company Common Stock. Certificates for Roseville
Common Stock presented for transfer following the effectiveness of the
Reorganization will be replaced with certificates for Holding Company Common
Stock. Holders of certificates of Roseville Common Stock who wish to exchange
such certificates for certificates of Holding Company Common Stock may do so by
submitting their Roseville Common Stock certificates to Holding Company with a
request for exchange.
Description of Capital Stock of Holding Company
The authorized Capital Stock of Holding Company will at the time the
Reorganization becomes effective be 20,000,000 shares of Common Stock, without
par value. The rights and preferences of the outstanding stock of Holding
Company will be substantially the same as the rights and preferences of
outstanding stock of Roseville prior to the Effective Time. The following
statements summarize certain relevant provisions of Holding Company's Articles
of Incorporation. This summary should be read in the context of and as
qualified by the full Articles of Incorporation of Holding Company which are
attached to this Proxy Statement/Prospectus as Exhibit B, and the laws of the
State of California. All of the shares of Holding Company Common Stock issued
in connection with the Reorganization will be validly issued, fully paid and non
assessable and the holders thereof will not be subject to any personal liability
as stockholders. The Holding Company Common Stock will have cumulative voting
rights for the election of directors which means that in voting for Directors,
each shareholder is entitled to vote his shares for as many persons as there may
be directors to be elected, to accumulate his votes and give one nominee votes
equal to the number of directors multiplied by the number of shares of stock
owned by him, or distribute his votes upon the same principle among as many
nominees as he thinks fit.
Dividends will be paid on the Holding Company Common Stock when and as
declared by the Board of Directors, out of funds legally available therefor.
The Holding Company Common Stock will have no preemptive rights.
Holding Company shall act as its own Transfer Agent for the Holding Company
Common Stock.
Exchange Act Filings
Following the effectiveness of the Reorganization, it is expected that
Holding Company will be a reporting company under the Securities Exchange Act of
1934, as amended, but it is expected that Roseville will not remain a reporting
company.
Financial Statements
Prior to the Reorganization, Holding Company has no operations and has
assets consisting solely of cash required for the minimum capitalization of
Holding Company. Accordingly, no financial statements of Holding Company are
presented in this Proxy Statement/Prospectus. In addition, no pro forma
consolidated financial statements of Holding Company are included herein. Such
statements would reflect no differences from the consolidated financial
statements of Roseville and its subsidiary incorporated by reference herein.
Legal Opinion
The validity of the share of Holding Company Common Stock to which this
Proxy Statement/Prospectus relates will be passed upon for Roseville and Holding
Company by Cooper, White & Cooper, San Francisco, California, counsel for each
of Roseville and Holding Company. Members of the firm of Cooper, White & Cooper
own beneficiary of record an aggregate 978 shares of Roseville Common Stock.
No Appraisal Rights
Holders of Roseville Common Stock will not, under California law, be
entitled to any appraisal rights as a result of the Reorganization.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR APPROVAL OF THE
REORGANIZATION, AS DESCRIBED ABOVE, AND YOUR PROXY WILL BE SO VOTED UNLESS YOU
SPECIFY OTHERWISE.
INDEPENDENT AUDITORS
Ernst & Young LLP, Roseville's auditors since 1960, has been selected by
Roseville as its independent auditors for the current year. A representative of
Ernst & Young LLP is expected to be present at the meeting to be available to
respond to appropriate questions and will have the opportunity to make a
statement if such representative desires to do so.
COST OF SOLICITATION
The total cost of preparing, assembling and mailing the proxy statement,
the form of proxy, any additional material intended to be furnished to
shareholders concurrently with the proxy statement, and any additional material
relating to the same meeting or subject matter furnished to shareholders
subsequent to the furnishing of the proxy statement, will be borne by Roseville.
Roseville will, upon request, reimburse brokers and other nominees for costs
incurred by them in mailing the proxy statement, the form of proxy and any
additional material intended to be furnished to shareholders concurrently with
the proxy statement to beneficial owners. In addition, officers and regular
employees may solicit proxies by telephone or in person.
OTHER MATTERS AND SHAREHOLDER PROPOSALS
As of this date, there are no other matters the management intends to
present or has reason to believe others will present to the meeting. If other
matters now unknown to the management come before the meeting, those who shall
act as proxies will vote in accordance with their best judgement.
Proposals of shareholders intended to be presented at the 1996 Annual
Meeting must be received by Roseville not later than January 9, 1996 to be
considered for inclusion in Roseville's proxy statement.
Roseville, California, April 28, 1995.
By Order of the Board of Directors
Robert L. Doyle
Chairman of the Board
EXHIBIT A
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement") is entered
into as of this ____ day of _________________, 1995, between Roseville Telephone
Company, a California corporation ("Surviving Corporation"), RTC Reorganization
Sub, a California corporation ("Disappearing Corporation") (such two
corporations together being herein sometimes called the "Constituent
Corporations"), and Roseville ComTech, a California corporation ("Holding
Company").
RECITALS:
A. Surviving Corporation is a California corporation organized on June
20, 1914 and has authorized capitalization consisting of 20,000,000 shares of
Common Stock, without par value, of which 14,484,953 shares were issued and
outstanding at February 28, 1995.
B. Disappearing Corporation is a California corporation organized on
March ___, 1995 and has authorized capitalization consisting of 1,000 shares of
Common Stock, without par value, 100 shares of which are now issued and
outstanding and held by Holding Company.
C. Holding Company is a California corporation organized on March ___,
1995 and has an authorized capitalization consisting of 20,000,000 shares of
Common Stock, without par value, 100 of which shares are now issued and
outstanding and held by Surviving Corporation;
D. The boards of directors of each of the Constituent Corporations and
the shareholders of Disappearing Corporation have approved the merger and other
transactions set forth herein.
NOW, THEREFORE, Disappearing Corporation, Surviving Corporation and Holding
Company do hereby adopt and make themselves parties to the plan of
reorganization encompassed by this Agreement and do hereby agree that
Disappearing Corporation shall merge with and into Surviving Corporation upon
the following terms and conditions:
AGREEMENT:
1. Disappearing Corporation shall be merged into Surviving Corporation
and Surviving Corporation shall survive the merger.
2. Pursuant to Section 110(c) of the California General Corporation Law,
this Agreement and the merger contemplated hereby shall become effective at the
close of business on 12:01 A.M. Pacific Standard Time, January 1, 1996;
provided, that if this Agreement has not been filed on or before such date this
Agreement and the merger and other transactions contemplated hereby shall become
effective when a copy of this Agreement, together with officers' certificates
attached, is filed in accordance with Section 1103 of the California General
Corporation Law. The date and time upon which the merger becomes effective in
accordance with the foregoing sentence is referred to herein as the "Effective
Date."
3. Upon the Effective Date:
(a) Each share of Surviving Corporation Common Stock issued and
outstanding immediately prior to the merger shall be converted into and become
one share of Holding Company Common Stock. Each share of Surviving Corporation
Common Stock held in the treasury of Surviving Corporation shall be cancelled
and no shares of Holding Company Common Stock shall be issued for such treasury
stock.
(b) Each share of Disappearing Corporation Common Stock issued and
outstanding immediately prior to the merger shall be converted into and become
one share of Surviving Corporation Common Stock authorized as provided in
Section 4 of this Agreement. Immediately thereafter, the Surviving Corporation
shall deliver to Holding Company an appropriate certificate or certificates for
such Surviving Corporation Common Stock upon surrender by Holding Company of the
certificate or certificates representing the Disappearing Corporation Common
Stock held by Holding Company.
(c) Each share of Holding Company Common Stock held by Surviving
Corporation shall be cancelled.
4. The articles of incorporation of Surviving Corporation, as amended and
in effect on the Effective Date, shall continue to be the articles of
incorporation of Surviving Corporation, except that Article Third of the
Certificate of Incorporation of Surviving Corporation shall be amended as of the
Effective Date to read as follows:
THIRD: This corporation is authorized to issue only
one class of shares of stock. The total number of shares
which this corporation is authorized to issue is One
Thousand (1,000).
The bylaws of Surviving Corporation, as amended and in effect on the Effective
Date, shall continue to be the bylaws of Surviving Corporation without change or
amendment until further amended in accordance with the provisions thereof and
applicable law.
5. On and after the Effective Date, the directors and officers of
Surviving Corporation shall remain directors and officers, respectively, of
Surviving Corporation until expiration of their current respective terms as such
or their respective prior resignation, removal or death.
6. On and after the Effective Date, all of the outstanding certificates
which prior to that time represented shares of Surviving Corporation Common
Stock shall be deemed for all purposes to evidence ownership of and to represent
the shares of Holding Company Common Stock into which the shares of Surviving
Corporation Common Stock represented by such certificates have been changed as
herein provided. The registered owner on the books of Surviving Corporation of
any such outstanding stock certificate shall, until such certificate shall have
been surrendered for transfer or exchange or otherwise accounted for to Holding
Company or its transfer agents, have and be entitled to exercise any voting and
other rights with respect to and to receive any dividend and other distributions
upon the shares of Surviving Corporation evidenced by such outstanding
certificates as above provided.
7. Upon the Effective Date, the separate existence of Disappearing
Corporation ceases and Surviving Corporation shall succeed, without other
transfer, to all the rights and property of Disappearing Corporation and shall
be subject to all the debts and liabilities thereof in the same manner as if
Surviving Corporation had itself incurred them. All rights of creditors and all
liens upon the property of each corporation shall be preserved unimpaired,
provided that such liens upon property of Disappearing Corporation shall be
limited to the property affected thereby immediately prior to the time the
merger is effective. On the Effective Date, Surviving Corporation shall succeed
to Disappearing Corporation in the manner of and as more fully set forth in
Section 1107 of the California General Corporation Law.
8. From time to time as and when required by Surviving Corporation or by
its successors or assigns, there shall be executed and delivered on behalf of
Disappearing Corporation such deeds and other instruments, and there shall be
taken or caused to be taken such further and other actions as shall be
appropriate or necessary in order to vest or perfect in or to confirm of record
or otherwise in Surviving Corporation the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Disappearing Corporation, and otherwise to carry out the
purposes of this Agreement, and the officers and directors of Surviving
Corporation are fully authorized in the name and on behalf of Disappearing
Corporation or otherwise to take any and all such actions and to execute and
deliver any and all such deeds and other instruments.
9. This Agreement is intended as a plan of reorganization within the
meaning of Section 368 of the Internal Revenue Code.
10. The obligations of each of the Constituent Corporations and Holding
Company to consummate the merger and the other transactions contemplated by this
Agreement are subject to the fulfillment of each of the following conditions at
or prior to the Effective Date:
(a) any consents, approvals or authorizations that Surviving
Corporation deems necessary or appropriate to be obtained from any governmental
or regulatory authority in connection with the execution and delivery of this
Agreement or the consummation of the merger or any of the other transactions
contemplated hereby shall have been obtained;
(b) no court, governmental or regulatory authority having
jurisdiction over either of the Constituent Corporations or Holding Company,
this Agreement, the merger or any of the other transactions contemplated hereby,
shall have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order, whether temporary,
preliminary or permanent, which is in effect and which prohibits or restricts
the consummation of the merger of any of the other transactions contemplated
hereby; and
(c) the holders of shares representing a majority of the votes cast
by the holders of Surviving Corporation Common Stock voting as a single class,
in person or by proxy, at a meeting of such shareholders called for the purpose
of considering this Agreement and the merger and other transactions contemplated
hereby shall have approved this Agreement and the merger and other transactions
contemplated hereby.
Surviving Corporation shall have the right to waive any of the conditions set
forth in this Section 10 except clause (c) which cannot be waived by any person.
11. At any time before the Effective Date, the merger contemplated by this
Agreement may be abandoned by either Constituent Corporation or both,
notwithstanding approval of the merger by the shareholders of the Constituent
Corporations, without prejudice to any rights to damages that any party to this
Agreement may have. The terms and conditions of this Agreement and the merger
and other transactions contemplated hereby may be amended by the board of
directors of Surviving Corporation without any further action or consent by the
shareholders of Surviving Corporation at any time prior to the Effective Date;
provided, however, that no such amendment after the approval of this Agreement
and the merger and other transactions contemplated hereby by the shareholders of
Surviving Corporation in accordance with the California General Corporation Law
shall (a) alter or change the amount or kind of consideration to be received in
exchange for all or any of the Surviving Corporation Common Stock, (b) alter or
change any terms of the articles of incorporation of Surviving Corporation, or
(c) alter or change any of the terms and conditions of this Agreement and the
merger and other transactions contemplated hereby if, in any such case, such
alteration or change would adversely affect the holders of Surviving Corporation
Common Stock.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ROSEVILLE TELEPHONE COMPANY
By:
Name:
Title:
RTC REORGANIZATION SUB
By:
Name:
Title:
ROSEVILLE COMTECH
By:
Name:
Title:
EXHIBIT B
ARTICLES OF INCORPORATION
OF
ROSEVILLE COMTECH
FIRST The name of this corporation is ROSEVILLE COMTECH.
SECOND The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
THIRD The name and address in the State of California of this
corporation's initial agent for service of process is:
Brian H. Strom
211 Lincoln Street
Roseville, California 95678
FOURTH This corporation is authorized to issue only one class of shares
of stock. The total number of shares which this corporation is authorized to
issue is Twenty Million (20,000,000).
FIFTH The liability of the directors of this corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law. Any repeal or modification of the provisions of this Article FIFTH shall
not adversely affect any right or protection of a director of this corporation
existing at the time of such repeal or modification.
SIXTH This corporation is authorized to provide indemnification of
agents (as defined in Section 317 of the Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors, or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the Corporations Code, subject only to the applicable limits set
forth in Section 204 of the Corporations Code with respect to actions for breach
of duty to the corporation and its shareholders. Any repeal or modification of
the provisions of this Article SIXTH shall not adversely affect any right or
protection of an agent of the corporation existing at the time of such repeal or
modification.
DATED: March 21, 1995
/s/MARK J. SEIDEMANN
Mark J. Seidemann
I hereby declare that I am the person who executed the foregoing
Articles of Incorporation, which execution is my act and deed.
/s/MARK J. SEIDEMANN
Mark J. Seidemann
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 317 of the California General Corporation Law sets forth conditions
and limitations governing the indemnification of officers, directors and other
persons. Roseville's and Holding Company's Articles of Incorporation and Bylaws
each contain indemnification provisions pursuant to authority contained in the
above-mentioned California statute. In accordance with such documents, each
company has broad powers to indemnify directors, officers and other persons
against liabilities they may incur in such capacities, within the limitations
permitted by law.
Item 21. Exhibits.
The following documents (unless otherwise indicated) are filed herewith and
made a part of the Registration Settlement.
Exhibit Method
Number Description of Filing
2.01 Agreement and Plan of Filed as
Reorganization Exhibit A to
Proxy
Statement/
Prospectus
3.01(a) Articles of Incorporation Filed as
Exhibit B to
Proxy
Statement/
Prospectus
3.01(b) Bylaws Filed
Herewith
4.01 Articles of Incorporation Included as
Exhibit
3.01(a)
5.01 Form of opinion of Cooper, White Filed
& Cooper regarding legality of Herewith
common stock (original to be
filed by amendment)
5.02 Form of opinion of Cooper, White Filed
& Cooper regarding tax matters Herewith
(original to be filed by
amendment)
10.01 Credit Agreement with Bank of Incorporated
America National Trust and by reference
Savings Association dated March
27, 1992, with respect to
$25,000,000 term loan. Filed as
Exhibit 10(a) to Roseville's Form
10-Q for the quarter ended March
31, 1992.
10.02 Credit Agreement with Bank of Incorporated
America National Trust and by reference
Savings Association dated January
4, 1994, with respect to
$15,000,000 term loan. Filed as
Exhibit 10(c) to Roseville's Form
10-K for the year ended December
31, 1993.
23.01 Consent of Cooper, White & Cooper Included as
a part of
Exhibit 5.01
23.02 Consent of Ernst & Young LLP To be filed
by amendment
Item 22. Undertakings.
(1) The undersigned registrant hereby undertakes (a) to file, during any
period in which offers or sales are being made, a post-effective amendment to
this registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information in the
registration statement; (iii) to include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; (b) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (c) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(2) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Roseville, County of Placer and State of California,
on March 22, 1995
ROSEVILLE COMTECH
By: /s/ ROBERT L. DOYLE
Robert L. Doyle
Chairman of the Board
By: /s/ BRIAN H. STROM
Brian H. Strom
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933 this registration
statement has been signed by the following persons in the capacity and on the
date indicated.
Name Title Date
/s/ ROBERT L. DOYLE Chairman of the Board March 22, 1995
Robert L. Doyle
/s/ BRIAN H. STROM President, Chief Executive March 22, 1995
Brian H. Strom Officer and Director
(principal executive
officer)
/s/ THOMAS E. DOYLE Director March 22, 1995
Thomas E. Doyle
/s/ MICHAEL D. CAMPBELL Vice President and Chief March 22, 1995
Michael D. Campbell Financial Officer
(principal financial
officer and principal
accounting officer)
/s/ JOHN R. ROBERTS III Director March 22, 1995
John R. Roberts III
/s/ RALPH E. HOEPER Director March 22, 1995
Ralph E. Hoeper
Exhibit 3.01(b)
BYLAWS
OF
ROSEVILLE COMTECH
TABLE OF CONTENTS
ARTICLE 1. Offices
1.01 Principal Office
1.02 Other Offices
ARTICLE 2. Meetings of Shareholders
2.01 Place
2.02 Annual Meeting
2.03 Special Meetings
2.04 Notice of Meetings
2.05 Manner of Giving Notice; Affidavit of Notice
2.06 Quorum
2.07 Adjourned Meetings and Notice Thereof
2.08 Consent of Absentees
2.09 Voting
2.10Shareholder Action by Written Consent Without a Meeting
2.11 Record Date for Shareholders
2.12 Proxies
ARTICLE 3. Directors
3.01 Powers
3.02 Number and Qualification of Directors
3.03 Election and Term of Office
3.04 Vacancies
3.05 Place of Meetings and Meetings by Telephone
3.06 Annual Meeting
3.07 Other Regular Meetings
3.08 Special Meetings -- Call and Notice
3.09 Waiver of Notice
3.10 Quorum
3.11 Action Without Meeting
3.12 Adjournment -- Notice
3.13 Fees and Compensation
3.15 Committees of Directors
3.16 Meetings And Action of Committees
ARTICLE 4. Officers
4.01 Number and Titles
4.02 Election
4.03 Removal, Resignation and Disqualification
4.04 Vacancies
4.05 President
4.06 Vice President
4.07 Secretary
4.08 Chief Financial Officer
4.09 Salaries
ARTICLE 5. Corporate Records and Reports
5.01Maintenance and Inspection of the Record of Shareholders
5.02 Maintenance and Inspection of Bylaws
5.03Maintenance and Inspection of Other Corporate Records
5.04 Inspection by Directors
5.05 Annual Report to Shareholders
5.06 Financial Statements
5.07 Annual Statement of General Information
ARTICLE 6. General Corporate Matters
6.01 Checks, Drafts and Evidences of Indebtedness
6.02Corporate Contracts and Instruments; How Executed
6.03 Certificates for Shares
6.04 Lost Certificates
6.05 Representation of Shares of Other Corporations
ARTICLE 7. Construction and Definitions
7.01 Construction and Definitions
ARTICLE 8. Amendments
8.01 Power of Shareholders
8.02 Power of Directors
BYLAWS
OF
ROSEVILLE COMTECH
ARTICLE 1.
Offices
1.01 Principal Office. The principal executive
office of the corporation shall be located in the City of
Roseville, County of Placer, State of California. The board of
directors shall have the power and authority to change the
principal office from one location to another in said County.
1.02 Other Offices. Branch or subordinate offices
may be established at any time by the board of directors at any
place or places where the corporation is qualified to do
business.
ARTICLE 2.
Meetings of Shareholders
2.01 Place. Meetings of shareholders, whether annual
or special, shall be held either at the principal executive
office or at any other place within or without the State of
California which may be designated either by the board of
directors in writing or by the written consent of all
shareholders entitled to vote thereat, which consent may be given
either before or after the meeting and filed with the secretary
of the corporation.
2.02 Annual Meeting. The annual meeting of
shareholders shall be held on the third Friday of June of each
year at a time designated by the board of directors. The date so
designated shall be within five months after the end of the
fiscal year of the corporation and within 15 months after the
last annual meeting. At each annual meeting directors shall be
elected and any other proper business may be transacted.
2.03 Special Meetings.
(a) Special meetings of the shareholders,
for any purpose or purposes whatsoever, may be called at any time
by the board of directors, the president, or by one or more
shareholders holding shares in the aggregate entitled to cast not
less than ten percent (10%) of the votes at that meeting.
(b) If a special meeting is called by any
person other than the board of directors, the request shall be in
writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic
or other facsimile transmission to the president, any vice
president, or the secretary of the corporation. The officer
receiving the request shall cause notice to be promptly given to
the shareholders entitled to vote, in accordance with the
provisions of Sections 2.04 and 2.05 hereof, that a meeting will
be held at the time requested by the person or persons calling
the meeting, not less than thirty (35) nor more than sixty (60)
days after the receipt of the request. If the notice is not
given within twenty (20) days after receipt of the request, the
person or persons requesting the meeting may give the notice.
Nothing contained in this Section 2.03 shall be construed as
limiting, fixing, or affecting the time when a meeting of
shareholders called by action of the board of directors may be
held.
2.04 Notice of Meetings.
(a) All notices of meetings of shareholders
shall be sent or otherwise given in accordance with Section 2.05
hereof not less than ten (10) nor more than sixty (60) days
before the date of the meeting. Such notice shall state the
place, date and hour of the meeting and (1) in the case of a
special meeting, the general nature of the business to be
transacted, and no other business may be transacted, or (2) in
the case of the annual meeting, those matters which the board of
directors, at the time of giving the notice, intends to present
for action by the shareholders. The notice of any meeting at
which directors are to be elected shall include the name of any
nominee or nominees whom, at the time of the notice, the board of
directors intends to present for election.
(b) If action is proposed to be taken at any
meeting for approval of (1) a contract or transaction in which a
director has a direct or indirect financial interest pursuant to
Section 310 of the Corporations Code of California, (2) an
amendment of the articles of incorporation pursuant to Section
902 of that Code, (3) a reorganization of the corporation
pursuant to Section 1201 of that Code, (4) a voluntary
dissolution of the corporation pursuant to Section 1900 of that
Code or (5) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares
pursuant to Section 2007 of that Code, the notice shall also
state the general nature of that proposal.
2.05 Manner of Giving Notice; Affidavit of Notice.
(a) Notice of any meeting of shareholders
shall be given either personally or by first-class mail or
telegraphic or other written communication, charges prepaid,
addressed to each shareholder entitled to vote thereat at the
address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for
the purpose of notice. If no such address appears on the
corporation's books or is so given, notice shall be deemed to
have been given if it is sent to that shareholder by first-class
mail or telegraphic or other written communication to the
corporation's principal executive office or is published at least
once in a newspaper of general circulation in the county where
that office is located. Notice shall be deemed to have been
given at the time when delivered personally or deposited in the
mail or sent by telegram or other means of written communication.
(b) If any notice addressed to a shareholder
at the address of that shareholder appearing on the books of the
corporation is returned to the corporation by the United States
Postal Service marked to indicate that the United States Postal
Service is unable to deliver the notice to the shareholder at
that address, all future notices or reports shall be deemed to
have been duly given to that shareholder without further mailing
if they shall be available to the shareholder on written demand
of the shareholder at the principal executive office of the
corporation for a period of one year from the date of the giving
of the notice to all other shareholders.
(c) An affidavit of the mailing or other
means of giving any notice of any shareholders' meeting may be
executed by the secretary, assistant secretary or any transfer
agent of the corporation giving the notice, and filed and
maintained in the minute book of the corporation.
2.06 Quorum. The presence in person or by proxy of
the holders of a majority of the shares entitled to vote at any
meeting of shareholders shall constitute a quorum for the
transaction of business at such meeting. The shareholders
present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave
less than a quorum, if any action taken (other than adjournment)
is approved by at least a majority of the shares required to
constitute a quorum.
2.07 Adjourned Meetings and Notice Thereof.
(a) Any shareholders' meeting, annual or
special, whether or not a quorum is present, may be adjourned
from time to time by the vote of the majority of the shares
represented at that meeting, either in person or by proxy, but in
the absence of a quorum no other business may be transacted
except as provided in Section 2.06.
(b) When a shareholders' meeting is
adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. At the
adjourned meeting the corporation may transact any business which
might have been transacted at the original meeting. If the
adjournment is for more than forty-five (45) 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, in
accordance with Sections 2.04 and 2.05 hereof.
2.08 Consent of Absentees.
(a) The transactions of any meeting of
shareholders, either annual or special, however called and
noticed, and wherever held, are as valid as though had at a
meeting duly held after regular call and notice, if a quorum is
present either in person or by proxy, and if, either before or
after the meeting, each of the persons entitled to vote, not
present in person or by proxy, signs a written waiver of notice
or a consent to the holding of the meeting or an approval of the
minutes thereof. Such waiver, consent or approval need not
specify either the business to be transacted or the purpose of
any annual or special meeting of shareholders, except that if
action is taken or proposed to be taken for approval of any of
those matters specified in Section 2.04(b) hereof, such waiver,
consent or approval shall state the general nature of the
proposal. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of
the meeting.
(b) Attendance by a person at a meeting
shall also constitute a waiver of notice of that meeting, except
when the person objects, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully
called or convened, and except that attendance at a meeting is
not a waiver of any right to object to the consideration of
matters required by law to be included in the notice of the
meeting but not so included, if that objection is expressly made
at the meeting.
2.09 Voting.
(a) The shareholders entitled to vote at any
meeting of shareholders shall be determined in accordance with
the provisions of Section 2.11 hereof, subject to the provisions
of Sections 702 to 704, inclusive, of the Corporations Code of
California (relating to voting shares held by a fiduciary and
others, in the name of a corporation or in joint ownership).
Except as provided in subsection (b) of this Section 2.09, each
outstanding share shall be entitled to one vote on each matter
submitted to a vote of the shareholders. The shareholders' vote
may be by voice vote or by ballot; provided, however, that any
election of directors must be by ballot if demanded by any
shareholder at the meeting and before the voting has begun. On
any matter other than elections to office, any shareholder may
vote part of his or her shares in favor of the proposal and
refrain from voting the remaining shares or vote them against the
proposal, but, if the shareholder fails to specify the number of
shares which the shareholder is voting affirmatively, it will be
conclusively presumed that the shareholder's approving vote is
with respect to all shares that the shareholder is entitled to
vote. If a quorum is present, the affirmative vote of a majority
of the shares represented and voting at a duly held meeting
(which shares voting affirmatively also shall constitute at least
a majority of the required quorum) shall be the act of the
shareholders (other than in respect of the election of
directors), unless the vote of a greater number or voting by
classes is required by California General Corporation Law or by
the articles of incorporation.
(b) No shareholder shall be entitled to
cumulate votes (i.e., cast for any one candidate a number of
votes greater than the number of votes which such shareholder
normally is entitled to cast) unless such candidate or
candidates' names have been placed in nomination prior to
commencement of the voting and a shareholder has given notice at
the meeting prior to commencement of the voting of the
shareholder's intention to cumulate his or her votes. If any
shareholder has given such a notice, then every shareholder
entitled to vote may cumulate his or her votes for candidates in
nomination and give one candidate a number of votes equal to the
number of directors to be elected multiplied by the number of
votes to which that shareholder's shares are entitled or
distribute the shareholder's votes on the same principle among
any or all of the candidates. The candidates receiving the
highest number of affirmative votes, up to the number of
directors to be elected, shall be elected.
2.10 Shareholder Action by Written Consent Without a
Meeting.
(a) Any action which may be taken at any
annual or special meeting of shareholders may be taken without a
meeting and without prior notice, if a consent in writing,
setting forth the action so taken, is signed by the holders of
outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take that action at
a meeting at which all shares entitled to vote on that action
were present and voted. In the case of an election of directors,
such a consent shall be effective only if signed by the holders
of all outstanding shares entitled to vote for the election of
directors; provided, however, that a director may be elected at
any time to fill a vacancy on the board of directors that has not
been filled by the directors, if such vacancy was created other
than by removal, by the written consent of the holders of a
majority of the outstanding shares entitled to vote for the
election of directors. All such consents shall be filed with the
secretary of the corporation and shall be maintained in the
corporate records. Any shareholder giving a written consent or
the shareholder's proxy holders or a transferee of the shares or
a personal representative of the shareholder or their respective
proxy holders may revoke the consent by a writing received by the
secretary of the corporation before written consents of the
number of shares required to authorize the proposed action have
been filed with the secretary, but may not do so thereafter.
(b) If the consents of all shareholders
entitled to vote have not been solicited in writing and if the
unanimous written consent of all such shareholders has not been
received, the secretary shall give prompt notice of the corporate
action approved by the shareholders without a meeting to those
shareholders entitled to vote who have not consented in writing.
This notice shall be given in the manner specified in Section
2.05 hereof. In the case of approval of (1) contracts or
transactions in which a director has a direct or indirect
financial interest pursuant to Section 310 of the Corporations
Code of California, (2) indemnification of agents of the
corporation pursuant to Section 317 of that Code, (3) a
reorganization of the corporation pursuant to Section 1201 of
that Code or (4) a distribution in dissolution other than in
accordance with the rights of outstanding preferred shares
pursuant to Section 2007 of that Code, the notice shall be given
at least (10) ten days before the consummation of any action
authorized by that approval.
2.11 Record Date for Shareholders.
(a) For purposes of determining the
shareholders entitled to notice of any meeting or to vote 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 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 days before the date of any
such meeting nor more than sixty (60) days before any other
action.
(b) If the board of directors does not fix a
record date, the record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the business day next
preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next
preceding the day on which the meeting is held.
(c) If the board of directors does not fix a
record date, the record date for determining shareholders
entitled to give consent to corporate action in writing without a
meeting, when no prior action by the board has been taken, shall
be the day on which the first written consent is given.
(d) The record date for determining
shareholders for any other purpose shall be at the close of
business on the day on which the board adopts the resolution
relating thereto or the sixtieth (60th) day before the date of
such other action, whichever is later.
(e) Only shareholders of record at the close
of business on the record date shall be entitled to notice and to
vote or to receive the dividend distribution or allotment of
rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the
corporation after the record date, except as otherwise provided
in the California General Corporation Law.
2.12 Proxies.
(a) Every person entitled to vote shares
shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and
filed with the secretary of the corporation. A proxy shall be
deemed signed if the shareholder's name is placed on the proxy
(whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the
shareholder's attorney in fact.
(b) A validly executed proxy which does not
state that it is irrevocable shall continue in full force and
effect unless (1) revoked by the person executing it, before the
vote pursuant to that proxy, by (i) a writing delivered to the
corporation stating that the proxy is revoked, (ii) by a
subsequent proxy executed by the person executing the prior proxy
and presented to the meeting or (iii) as to any meeting, by
attendance at such meeting and voting in person by the person
executing the proxy, or (2) written notice of the death or
incapacity of the maker of that proxy is received by the
corporation before the vote pursuant to that proxy is counted;
provided, however, that no proxy shall be valid after the
expiration of eleven (11) months from the date of the proxy,
unless otherwise provided in the proxy.
(c) The revocability of a proxy that states
on its face that it is irrevocable shall be governed by the
provisions of Sections 705(e) and 705(f) of the Corporations Code
of California.
ARTICLE 3.
Directors
3.01 Powers. Subject to limitations of the articles
of incorporation, these bylaws and the California General
Corporation Law as to action to be authorized or approved by
shareholders, and subject to the duties of directors as
prescribed by these bylaws, the business and affairs of the
corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
3.02 Number and Qualification of Directors. The
authorized number of directors of the corporation shall be five
(5). The authorized number of directors may be changed only by
an amendment of this Section 3.02 duly adopted by the vote or
written consent of the holders of a majority of the outstanding
shares entitled to vote; provided, however, that an amendment
reducing the number to less than five (5) cannot be adopted if
the votes cast against its adoption at a meeting, or the shares
not consenting in the case of action by written consent, are
equal to more than 16-2/3 percent of the outstanding shares
entitled to vote.
3.03 Election and Term of Office. At each annual
meeting of the shareholders, directors shall be elected to hold
office until the next annual meeting. Each director, including a
director elected to fill a vacancy, shall hold office until the
expiration of the term for which elected and until a successor
has been elected and qualified.
3.04 Vacancies.
(a) A vacancy on the board of directors
shall be deemed to exist when any authorized position of director
is not filled by a duly elected director, whether caused by
death, resignation, removal, change in the authorized number of
directors or otherwise.
(b) The board of directors may remove for
cause any director who has been declared of unsound mind by an
order of court or convicted of a felony.
(c) Any or all of the directors may be
removed without cause if such removal is approved by the
affirmative vote of a majority of the outstanding shares entitled
to vote, subject to the provisions of Section 303 of the
Corporations Code of California.
(d) Vacancies on the board of directors may
be filled by a majority of the directors then in office, or, if
the number of directors then in office is less than a quorum, by
(1) the unanimous written consent of directors then in office,
(2) the affirmative vote of a majority of directors then in
office at a meeting complying with Section 307 of the Corporation
Code of California, or (3) a sole remaining director, except that
a vacancy created by the removal of a director may be filled only
by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote.
(e) Each director elected to fill a vacancy
shall hold office until the next annual meeting of the
shareholders and until a successor has been elected and
qualified.
(f) The shareholders may elect a director at
any time to fill any vacancy not filled by the board of
directors. Any such election by written consent shall require
the consent of the holders of a majority of the outstanding
shares entitled to vote.
(g) Any director may resign effective on
giving written notice to the president, the secretary or the
board of directors. The notice may specify that the resignation
is effective at a later time, in which case a successor may be
elected to take office when the resignation becomes effective.
(h) Reduction of the authorized number of
directors shall not have the effect of removing any director
prior to the expiration of the director's term of office.
3.05 Place of Meetings and Meetings by Telephone.
(a) Regular meetings of the board of
directors may be held at any place within or without the State of
California that has been designated from time to time by
resolution of the board of directors. In the absence of such a
designation, regular meetings shall be held at the principal
executive office of the corporation.
(b) Special meetings of the board of
directors shall be held at any place within or without the State
of California that has been designated in the notice of the
meeting or, if not stated in the notice or if there is no notice,
at the principal executive office of the corporation.
(c) Any meeting, regular or special, may be
held by conference telephone or similar communication equipment,
so long as all directors participating in the meeting can hear
one another. All such directors shall be deemed to be present in
person at the meeting.
3.06 Annual Meeting. Immediately following each
annual meeting of shareholders, the board of directors shall hold
a regular meeting for the purpose of organization, election of
officers, and the transaction of other business. Notice of such
meeting shall not be required.
3.07 Other Regular Meetings. Other regular meetings
of the board of directors may be held without notice at such time
as shall from time to time be fixed by the board of directors.
3.08 Special Meetings -- Call and Notice.
(a) Special meetings of the board for any
purpose or purposes may be called at any time by the president,
any vice president, the secretary or any two (2) directors.
(b) Notice of the time and place of special
meetings shall be (1) delivered personally or by telephone or
telegraph at least forty-eight (48) hours in advance of the
meeting or (2) sent by first-class mail, postage prepaid, at
least four days in advance of the meeting. The notice or waiver
of notice need not specify the purpose of the meeting.
3.09 Waiver of Notice. The transactions of any
meeting of the board of directors, however called and noticed or
wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum is present, and
if, either before or after the meeting, each of the directors not
present signs a written waiver of the notice, a consent to
holding such meeting or an approval of the minutes thereof. All
such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Notice of a meeting shall also be deemed given to any director
who attends the meeting without protesting, prior thereto or at
its commencement, the lack of notice to that director.
3.10 Quorum. A majority of the authorized number of
directors shall constitute a quorum for the transaction of
business, except to adjourn as provided in Section 3.12 hereof.
Every act or decision by a majority of the directors present at a
meeting duly held at which a quorum is present shall be regarded
as the act of the board of directors, unless a greater number is
required by law or by the articles of incorporation. Business
may continue to be transacted at a meeting at which a quorum is
initially present notwithstanding the withdrawal of directors,
provided that any action taken is approved by at least a majority
of the required quorum for such meeting.
3.11 Action Without Meeting. Any action required or
permitted to be taken by the board of directors may be taken
without a meeting if all members of the board of directors
individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes
of the proceedings of the board of directors. Action by written
consent shall have the same force and effect as the unanimous
vote of the board of directors.
3.12 Adjournment -- Notice. A majority of the
directors present, whether or not a quorum is present, may
adjourn any directors' meeting to another time and place. If the
meeting is adjourned for more than twenty-four (24) hours, notice
of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to all directors not present
at the time of the adjournment.
3.13 Fees and Compensation. Directors shall not
receive any stated salary for their services as directors, but,
by resolution of the board of directors, a fixed fee, with or
without expenses of attendance, may be allowed for attendance at
each meeting. Nothing herein contained shall be construed to
preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and
receiving compensation therefor.
3.14 Indemnification.
(a) For the purpose of this Section 3.14,
"agent" means any person who is or was a director, officer,
employee, or other agent of this corporation, or is or was
serving at the request of this corporation as a director,
officer, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other
enterprise, or was a director, officer, employee, or agent of a
foreign or domestic corporation which was a predecessor
corporation of this corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any
threatened, pending or completed action or proceeding, whether
civil, criminal, administrative, or investigative; and "expenses"
includes, without limitation, attorneys' fees and any expenses of
establishing a right to indemnification under Section (d) or
Section (e)(iii) of this Section 3.14.
(b) This corporation shall indemnify any
person who was or is a party, or is threatened to be made a
party, to any proceeding (other than an action by or in the right
of this corporation to procure a judgment in its favor) by reason
of the fact that such person is or was an agent of this
corporation, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with
such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best
interests of this corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of
such person 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 the person did not act in good faith and in a
manner which the person reasonably believed to be in the best
interests of this corporation or that the person had reasonable
cause to believe that the person's conduct was unlawful.
(c) This corporation shall indemnify any
person who was or is a party, or is threatened to be made a
party, to any threatened, pending or completed action by or in
the right of this corporation to procure a judgment in its favor
by reason of the fact that such person is or was an agent of this
corporation, against expenses actually and reasonably incurred by
such person in connection with the defense or settlement of such
action if such person acted in good faith, in a manner such
person believed to be in the best interests of this corporation.
No indemnification shall be made under this Section 3.14(c) for
any of the following:
(i) In respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to this corporation and its shareholders, unless and only
to the extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for the expenses which the court shall
determine; or
(ii) Of amounts paid in settling or
otherwise disposing of a pending action without court approval;
or
(iii) Of expenses incurred in defending
a pending action which is settled or otherwise disposed of
without court approval.
(d) To the extent that an agent of this
corporation has been successful on the merits in defense of any
proceeding referred to in Section (b) or (c) of this Section 3.14
or in defense of any claim, issue, or matter therein, the agent
shall be indemnified against expenses actually and reasonably
incurred by the agent in connection therewith.
(e) Except as provided in Section (d) of
this Section 3.14, any indemnification under this Section shall
be made by this corporation only if authorized in the specific
case upon a determination that indemnification of the agent is
proper in the circumstances because the agent has met the
applicable standard of conduct set forth in Sections (b) and (c)
of this Section 3.14, by any of the following:
(i) A majority vote of a quorum
consisting of directors who are not parties to such proceeding;
or
(ii) If such a quorum of directors is
not obtainable, by independent legal counsel in a written
opinion; or
(iii) Approval of the shareholders,
with the shares owned by the person to be indemnified not being
entitled to vote thereon. For the purposes of this subsection,
"approval of the shareholders" means approved or ratified by the
affirmative vote of a majority of the shares of this corporation
represented and voting at a duly held meeting at which a quorum
is present (which shares voting affirmatively shall also
constitute at least a majority of the required quorum) or by the
written consent signed by the holders of a majority of the
outstanding shares entitled to vote, which written consent shall
be procedurally procured in the manner provided by law; or
(iv) The court in which the proceeding
is or was pending upon application made by this corporation or
the agent of the attorney or other person rendering services in
connection with the defense, whether or not such application by
the agent, attorney, or other person is opposed by this
corporation.
(f) Expenses incurred in defending any
proceeding shall be advanced by this corporation before the final
disposition of the proceedings on receipt of an undertaking by or
on behalf of the agent to repay the amount of the advance unless
it shall be determined ultimately that the agent is entitled to
be indemnified as authorized in this Section 3.14.
(g) The indemnification provided by this
Section 3.14 shall not be exclusive of any other rights to which
those seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders, or vote of disinterested
directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office,
to the extent such additional rights to indemnification are
authorized in the Articles of Incorporation of this corporation.
Nothing contained in this Section 3.14 shall affect any right to
indemnification to which persons other than directors and
officers of this corporation or any subsidiary hereof may be
entitled by contract or otherwise.
(h) No indemnification or advance shall be
made under this Section 3.14, except as provided in Section (d)
or Section (e)(iii), in any circumstance where it appears:
(i) That it would be inconsistent with
a provision of the articles, bylaws, a resolution of the
shareholders, or an agreement in effect at the time of the
accrual of the alleged cause of action asserted in the proceeding
in which the expenses were incurred or other amounts were paid,
which prohibits or otherwise limits indemnification; or
(ii) That it would be inconsistent with
any condition expressly imposed by a court in approving a
settlement.
(i) Upon and in the event of a determination
by the board of directors of this corporation to purchase such
insurance, this corporation shall purchase and maintain insurance
on behalf of any agent of the corporation against any liability
asserted against or incurred by the agent in such capacity or
arising out of the agent's status as such whether or not this
corporation would have the power to indemnify the agent against
that liability under the provisions of this Section 3.14.
(j) This Section 3.14 does not apply to any
proceeding against any trustee, investment manager, or other
fiduciary of an employee benefit plan in that person's capacity
as such, even though that person may also be an agent of the
corporation as defined in Section (a) of this Section 3.14.
Nothing contained in this Section 3.14 shall limit any right to
indemnification to which such a trustee, investment manager, or
other fiduciary may be entitled by contract or otherwise, which
shall be enforceable to the extent permitted by applicable law
other than this Section 3.14.
(k) The rights to indemnity provided for in
this Section 3.14 shall continue as to a person who has ceased to
be a director, office, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of the
person.
(l) If a claim under this Section 3.14 is
not paid in full by the corporation within sixty days after a
written claim has been received by the corporation, except in the
case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against this corporation to recover
the unpaid amount of the claim. If successful in whole or in part
in any suit or in a suit brought by this corporation to recover
an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall also be entitled to be paid the
expense of prosecuting or defending such suit. The indemnitee's
failure to meet any applicable standard of conduct set forth in
the General Corporation Law of the State of California shall
(i) be a defense in any suit brought by the indemnitee to enforce
a right to indemnification hereunder (but not in a suit brought
by the indemnitee to enforce a right to an advancement of
expenses) and (ii) entitle this corporation to recover expenses
advanced pursuant to an undertaking that this corporation shall
be entitled to recover such expenses upon a final adjudication
that the indemnitee failed to meet applicable standards of
conduct. Neither the failure of this corporation (including the
Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee
is proper in the circumstances because the indemnitee has met any
applicable standard of conduct set forth in the General
Corporation Law of the State of California, nor an actual
determination by this corporation (including the Board of
Directors, independent legal counsel, or its shareholders) that
the indemnitee has not met any such applicable standard of
conduct, shall create a presumption that the indemnitee has not
met the applicable standard of conduct or, in the case of such a
suit brought by the indemnitee, be a defense to such suit. In
any suit brought by the indemnitee to enforce a right hereunder,
or by this corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving
that the indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Section 3.14 or otherwise
shall be on the corporation.
(m) The Board of Directors may, without
shareholder approval, authorize the corporation to enter into
agreements, including any amendments or modifications thereto,
with any of its directors, officers or other persons described in
paragraph (a) providing for indemnification of such persons to
the maximum extent permitted under applicable law and the
corporation's Articles of Incorporation and Bylaws.
3.15 Committees of Directors. The board of directors
may, by resolution adopted by a majority of the authorized number
of directors, designate one or more committees, each consisting
of two (2) or more directors, to serve at the pleasure of the
board. The board may designate one or more directors as
alternate members of any committee, who may replace any absent
member at any meeting of the committee. The appointment of
members or alternate members of a committee requires the vote of
a majority of the authorized number of directors. Any such
committee, to the extent provided in the resolution of the board,
shall have all the authority of the board, except with respect
to:
(a) the approval of any action which, under
the General Corporation Law of California, also requires
shareholders' approval or approval of the outstanding shares;
(b) the filling of vacancies on the board of
directors or in any committee;
(c) the fixing of compensation of the
directors for serving on the board or on any committee;
(d) the amendment or repeal of bylaws or the
adoption of new bylaws;
(e) the amendment or repeal of any
resolution of the board of directors which by its express terms
is not so amendable or repealable;
(f) a distribution to the shareholders of
the corporation, except at a rate or in a periodic amount or
within a price range determined by the board of directors; or
(g) the appointment of any other committees
of the board of directors or the members thereof.
3.16 Meetings And Action of Committees. Meetings and
action of committees shall be governed by, and held and taken in
accordance with, the provisions of Article III of these bylaws,
Sections 3.05 (place of meetings), 3.06 and 3.07 (regular
meetings), 3.08 (special meetings and notice), 3.09 (waiver of
notice), 3.10 (quorum), 3.11 (action without meeting), and 3.12
(adjournment and notice), with such changes in the context of
those bylaws as are necessary to substitute the committee and its
members for the board of directors and its members, except that
the time of regular meetings of committees may be determined by
resolution of the board of directors as well as by resolution of
the committee; special meetings of committees may also be called
by resolution of the board of directors; and notice of special
meetings of committees shall also be given to all alternate
members, who shall have the right to attend all meetings of the
committee. The board of directors may adopt rules for the
government of any committee not inconsistent with the provisions
of these bylaws.
ARTICLE 4.
Officers
4.01 Number and Titles. The officers of the
corporation shall be a president, a vice president, a secretary
and a chief financial officer. The corporation may also have, at
the discretion of the board of directors, a chairman of the
board, one or more additional vice presidents, one or more
assistant secretaries, one or more assistant treasurers and such
other officers as may be appointed by the board of directors,
each of whom shall hold office for such period, have such
authority and perform such duties as the board of directors may
from time to time determine. Officers other than the chairman of
the board need not be directors. Any number of offices may be
held by the same person.
4.02 Election. The officers of the corporation shall
be chosen by and serve at the pleasure of the board of directors,
subject to the rights, if any, of an officer under any contract
of employment. Each officer of the corporation shall hold office
until such person resigns or is removed or until a successor is
elected and has qualified or until such person becomes
disqualified to serve.
4.03 Removal, Resignation and Disqualification.
(a) Subject to the rights, if any, of an
officer under a contract of employment, any officer may be
removed, either with or without cause, by the board of directors
or, except in the case of an officer chosen by the board of
directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
(b) Any officer may resign at any time by
giving written notice to the board of directors, president, or
secretary of the corporation. Any such resignation shall take
effect at the date of the receipt of such notice or at any later
time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make
it effective. Any such resignation shall be without prejudice to
the rights, if any, of the corporation under any contract to
which the officer is a party.
4.04 Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause
shall be filled in the manner prescribed in these bylaws for
regular appointments to such office.
4.05 President. The president shall be the chief
executive officer of the corporation and shall, subject to the
control of the board of directors, have general supervision,
direction and control of the business and officers of the
corporation. In the absence or disability of the chairman of the
board, the president shall preside at all meetings of the
shareholders and at all meetings of the board of directors. The
president shall have the general powers and duties of management
usually vested in the office of president of a corporation and
shall have such other powers and duties as may be prescribed by
the board of directors or these bylaws.
4.06 Vice President. In the absence or disability of
the president, the vice presidents in order of their rank as
fixed by the board of directors, or if not ranked, the vice
president designated by the board of directors, shall perform all
the duties of the president, and when so acting shall have all
the powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers and
perform such other duties as from time to time may be prescribed
for them respectively by the board of directors or these bylaws.
4.07 Secretary.
(a) The secretary shall keep, or cause to be
kept at the principal executive office or such other place as the
board of directors may order, a book of minutes of all meetings
and actions of directors and shareholders, with the time and
place of holding, whether regular or special, and, if special,
how authorized, the notice thereof given, the names of those
present at directors' meetings, the number of shares present or
represented at shareholders' meetings and the proceedings
thereof.
(b) The secretary shall keep or cause to be
kept at the principal executive office a record of shareholders
or a duplicate record of shareholders, showing the names of the
shareholders and their addresses, the number and classes of
shares held by each, the number and date of certificates issued
for the same and the number and date of cancellation of every
certificate surrendered for cancellation.
(c) The secretary shall give, or cause to be
given, notice of all the meetings of the shareholders and of the
board of directors required by these bylaws to be given and shall
have such other powers and perform such other duties as may be
prescribed by the board of directors or these bylaws.
4.08 Chief Financial Officer.
(a) The chief financial officer (who may
also use the title of treasurer) shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and
records of account of the properties and business transactions of
the corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained
earnings and shares. The books of account shall at all times be
open to inspection by any director.
(b) The chief financial officer shall
deposit all moneys and other valuables in the name and to the
credit of the corporation with such depositaries as may be
designated by the board of directors. Such person shall disburse
the funds of the corporation as may be ordered by the board of
directors, shall render to the president and directors, whenever
they request it, an account of all of his or her transactions as
chief financial officer and of the financial condition of the
corporation, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors or
these bylaws.
4.09 Salaries. The salaries of the officers shall be
fixed from time to time by the board of directors, and no officer
shall be prevented from receiving such salary by reason of the
fact that such person is also a director of the corporation.
ARTICLE 5.
Corporate Records and Reports
5.01 Maintenance and Inspection of the Record of
Shareholders.
(a) The corporation shall keep at its
principal executive office a record of its shareholders, giving
the names and addresses of all shareholders and the number and
class of shares held by each shareholder.
(b) A shareholder or shareholders of the
corporation holding at least five percent (5%) in the aggregate
of the outstanding voting shares of the corporation may inspect
and copy the records of shareholders' names and addresses and
shareholdings during usual business hours on five (5) days' prior
written demand upon the corporation.
(c) The record of shareholders shall also be
open to inspection on the written demand of any shareholder or
holder of a voting trust certificate, at any time during usual
business hours, for a purpose reasonably related to the holder's
interests as a shareholder or as the holder of a voting trust
certificate.
(d) Any inspection and copying under this
Section 5.01 may be made in person or by an agent or attorney of
the shareholder or holder of a voting trust certificate making
the demand.
5.02 Maintenance and Inspection of Bylaws. The
corporation shall keep at its principal executive office, or, if
its principal executive office is not in the State of California,
at its principal business office in this state, the original or a
copy of the bylaws as amended to date, which shall be open to
inspection by the shareholders at all reasonable times during
office hours. If the principal executive office of the
corporation is outside the State of California and the
corporation has no principal business office in this state, the
secretary shall, upon the written request of any shareholder,
furnish to that shareholder a copy of the bylaws as amended to
date.
5.03 Maintenance and Inspection of Other Corporate
Records.
(a) The accounting books and records and
minutes of proceedings of the shareholders and the board of
directors shall be kept at such place or places designated by the
board of directors, or, in the absence of such designation, at
the principal executive office of the corporation. The minutes
shall be kept in written form and the accounting books and
records shall be kept either in written form or in any other form
capable of being converted into written form.
(b) The minutes and accounting books and
records shall be open to inspection upon the written demand of
any shareholder or holder of a voting trust certificate, at any
reasonable time during usual business hours, for a purpose
reasonably related to the holder's interest as a shareholder or
as the holder of a voting trust certificate. The inspection may
be made in person or by an agent or attorney and shall include
the right to copy and make extracts. These rights of inspection
shall extend to the records of each subsidiary corporation of the
corporation.
5.04 Inspection by Directors. Every director shall
have the absolute right at any reasonable time to inspect and
copy all books, records and documents of every kind and the
physical properties of the corporation and each of its subsidiary
corporations. This inspection by a director may be made in
person or by an agent or attorney and the right of inspection
includes the right to copy and make extracts of documents.
5.05 Annual Report to Shareholders. The annual
report to shareholders referred to in Section 1501 of the
Corporations Code of California is expressly dispensed with, but
nothing herein shall be interpreted as prohibiting the board of
directors from issuing annual or other periodic reports to the
shareholders of the corporation as they consider appropriate.
5.06 Financial Statements.
(a) A copy of any annual, semi-annual or
quarterly income statements and any accompanying balance sheets
that have been prepared by the corporation shall be kept on file
in the principal executive office of the corporation for twelve
(12) months and each such statement shall be exhibited at all
reasonable times to any shareholder demanding an examination of
any such statement or a copy shall be mailed to any such
shareholder.
(b) If no annual report for the last fiscal
year has been sent to shareholders, the corporation shall, upon
the written request of any shareholder made more than one hundred
twenty (120) days after the close of such fiscal year, deliver or
mail the annual report to the person making the request within
thirty (30) days thereafter. A shareholder or shareholders
holding at least five percent (5%) of the outstanding shares of
any class of stock of the corporation may make a written request
to the corporation for an income statement of the corporation for
the three-month, six-month or nine-month period of the then
current fiscal year ended more than thirty (30) days before the
date of the request, a balance sheet of the corporation as of the
end of that period and an annual report for the last fiscal year
if none has been sent to shareholders. The chief financial
officer shall deliver personally or mail the statement or
statements requested to the person making the request within
thirty (30) days after the receipt of the request.
(c) The quarterly income statements and
balance sheets referred to in this section shall be accompanied
by the report, if any, of any independent accountants engaged by
the corporation or the certificate of an authorized officer of
the corporation that the financial statements were prepared
without audit from the books and records of the corporation.
5.07 Annual Statement of General Information. The
corporation shall file with the Secretary of State of the State
of California, on the prescribed form, a statement setting forth
the authorized number of directors, the names and complete
business or residence addresses of all incumbent directors, the
names and complete business or residence addresses of the chief
executive officer, secretary and chief financial officer, the
street address of its principal executive office or principal
business office in this state and the general type of business
constituting the principal business activity of the corporation,
together with a designation of the agent of the corporation for
the purpose of service of process, all in compliance with Section
1502 of the Corporations Code of California.
ARTICLE 6.
General Corporate Matters
6.01 Checks, Drafts and Evidences of Indebtedness.
All checks, drafts, or other orders for payment of money, notes
or other evidence of indebtedness issued in the name of or
payable to the corporation shall be signed or endorsed by such
person or persons and in such manner as, from time to time, shall
be determined by resolution of the board of directors.
6.02 Corporate Contracts and Instruments; How
Executed. The board of directors, except as otherwise provided
in these bylaws, may authorize any officer or officers, agent or
agents, to enter into any contract or execute any instrument in
the name of and on behalf of the corporation, and this authority
may be general or confined to specific instances; and, unless so
authorized or ratified by the board of directors or within the
agency power of an officer, no officer, agent or employee shall
have any power or authority to bind the corporation by any
contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount.
6.03 Certificates for Shares.
(a) A certificate or certificates for shares
of the capital stock of the corporation shall be issued to each
shareholder when such shares are fully paid, and the board of
directors may authorize the issuance of certificates or shares as
partly paid provided that these certificates shall state the
amount of the consideration to be paid for them and the amount
paid.
(b) All certificates shall be signed in the
name of the corporation by the president or vice president and by
the chief financial officer or an assistant treasurer or the
secretary or any assistant secretary, certifying the number of
shares and the class or series of shares owned by the
shareholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed on a
certificate shall cease to be that officer, transfer agent or
registrar before that certificate is issued, it may be issued by
the corporation with the same effect as if that person were an
officer, transfer agent or registrar at the date of issue.
6.04 Lost Certificates. Except as provided in this
section, no new certificate for shares shall be issued to replace
an old certificate unless the latter is surrendered to the
corporation and cancelled at the same time. The board of
directors may, in case any share certificate or certificate for
any other security is alleged to have been lost, stolen or
destroyed, authorize the issuance of a replacement certificate on
such terms and conditions as the board may require, including
provision for indemnification of the corporation secured by a
bond or other adequate security sufficient to protect the
corporation against any claim that may be made against it,
including any expense or liability on account of the alleged
loss, theft or destruction of the certificate or the issuance of
the replacement certificate.
6.05 Representation of Shares of Other Corporations.
The president, any vice president or any other person authorized
by resolution of the board of directors or by any of the
foregoing designated officers is authorized to vote on behalf of
the corporation any and all shares of any other corporation or
corporations, foreign or domestic, standing in the name of the
corporation. The authority granted to these officers to vote or
represent on behalf of the corporation any and all shares held by
the corporation in any other corporation or corporations may be
exercised by any of these officers in person or by any person
authorized to do so by a proxy duly executed by these officers.
ARTICLE 7.
Construction and Definitions
7.01 Construction and Definitions. Unless the
context requires otherwise, the general provisions, rules of
construction and definitions in the California General
Corporation Law shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular
number includes the plural, the plural number includes the
singular and the term "person" includes both a corporation and a
natural person.
ARTICLE 8.
Amendments
8.01 Power of Shareholders. New bylaws may be
adopted or these bylaws may be amended or repealed by the vote or
written consent of holders of a majority of the outstanding
shares entitled to vote.
8.02 Power of Directors. Subject to the right of
shareholders as provided in Section 8.01 to adopt, amend, or
repeal bylaws, bylaws other than a bylaw or amendment thereof
changing the authorized number of directors may be adopted,
amended or repealed by the board of directors.
EXHIBIT 5.01
___________ ___ , 1995
Roseville ComTech
211 Lincoln Street
Roseville, California
Gentlemen:
We have acted as your counsel in connection with the
organization of Roseville ComTech, a California corporation
("Holding Company"), and the preparation of a Registration
Statement on Form S-4, Reg. No. 33-______, as amended by
Amendment No. 1 thereto, filed with the Securities and Exchange
Commission on or about March ___, 1995 (the "Registration
Statement"), relating to the registration under the Securities
Act of 1933, as amended, of 14,484,953 shares of the Holding
Company's Common Stock, without par value.
In so acting, we have participated in the preparation
of the Registration Statement, the Certificate of Incorporation
of Holding Company as filed with the Secretary of State of the
State of California, the Bylaws and the minute book of Holding
Company, the form of stock certificate and originals or copies
(certified or otherwise identified to our satisfaction) of such
records, documents, certificates and other instruments and have
made such other investigations as in our judgment are necessary
or appropriate to enable us to render the opinion hereinafter
expressed.
Based upon the foregoing it is our opinion that all of
the shares of Holding Company Common Stock, when sold and issued
in accordance with the final prospectus will be legally and
validly issued and outstanding, fully paid and nonassessable.
We are aware that the Registration Statement indicates
we have passed on legal matters in connection with the merger of
Roseville Telephone Company into a wholly-owned subsidiary of
Holding Company and the issuance of Holding Company's Common
Stock thereunder, and we hereby consent to all references to us
therein.
Very truly yours,
DRAFT
EXHIBIT 5.02
____________ ___, 1995
Roseville Telephone Company
211 Lincoln Street
Roseville, California
Roseville ComTech
211 Lincoln Street
Roseville, California
Gentlemen:
We have acted as your counsel in connection with the
organization of Roseville ComTech, a California corporation
("Holding Company"), the exchange of each share of Roseville
Telephone Company ("Roseville") Common Stock for a share of
Holding Company Common Stock pursuant to a merger of Roseville
into a wholly-owned subsidiary of Holding Company (the "Merger"),
and the preparation of a Registration Statement on Form S-4, Reg.
No. 33-______, as amended by Amendment No. 1 thereto, filed with
the Securities and Exchange Commission on or about March ___,
1995 (the "Registration Statement"), relating to the registration
under the Securities Act of 1933, as amended, of 14,484,953
shares of Holding Company common stock without par value.
We have reviewed such data, questions of law and fact,
records, documents, certificates and other instruments and have
made such other investigations as in our judgment are necessary
or appropriate to enable us to render the opinion hereinafter
expressed. Based upon the foregoing we hereby confirm our
opinion expressed under the caption "Income Tax Consequences" in
the Prospectus constituting a part of the Registration Statement
that:
1. No gain or loss will be recognized by Holding
Company, Roseville or Roseville's shareholders whose
Roseville common stock will be converted into Holding
Company Common Stock by reason of the Merger;
2. The tax basis of Holding Company Common Stock
received by Roseville's shareholders in the transaction will
be the same as the tax basis of the Roseville Common Stock
converted into such Holding Company Common Stock; and
3. Shareholders who hold their Roseville Common Stock
as a capital asset will include in their holding period for
the Holding Company Common Stock which they receive in the
transaction their holding period for the Roseville Common
Stock converted into such Holding Company Common Stock.
Very truly yours,
DRAFT
