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As filed with the Securities and Exchange Commission on August 28, 1995.
Registration No. 33-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933
XETA CORPORATION
(Exact name of registrant as specified in its charter)
OKLAHOMA 73-1130045
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4500 South Garnett, Suite 1000
Tulsa, Oklahoma 74146
(Address of Principal Executive Offices) (Zip Code)
(1) XETA Corporation Employee Stock Option Plan
(2) Stock Option Agreement between XETA Corporation and Ron B. Barber
(3) Stock Option Agreement between XETA Corporation and James E. Beebe
(4) Stock Option Agreement between XETA Corporation and Donald Duke
(5) Stock Option Agreement between XETA Corporation and Robert Hisrich
(6) Stock Option Agreement between XETA Corporation and Jack R. Ingram
(7) Stock Option Agreement between XETA Corporation and Donald E. Reigel
(8) Stock Option Agreement between XETA Corporation and Darlene Schriner
(9) Stock Option Agreement between XETA Corporation and Ronald L. Siegenthaler
(Full title of each plan)
JACK R. INGRAM
President
XETA Corporation
4500 South Garnett, Suite 1000
Tulsa, Oklahoma 74146
(Name and address of agent for service)
(918) 664-8200
(Telephone number, including area code, of agent for service)
____________________________
Copies to:
Barber & Bartz
Attn: Nancy C. Jones, Esq.
110 West Seventh Street, Suite 200
Tulsa, Oklahoma 74119
CALCULATION OF REGISTRATION FEE
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<CAPTION>
=================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock 813,000 $1.375 $1,118,153.00 $385.57
($.10 par value) shares
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</TABLE>
(1) Pursuant to Rule 457(h), the maximum aggregate offering price is estimated,
solely for the purpose of determining the registration fee, on the basis of the
price at which the options may be exercised for those shares for which the
exercise price is known, and on the basis of the average of the high and low
prices of the Registrant's common stock in the NASDAQ consolidated reporting
system on August 23, 1995, which was $5.09375 for those shares for which the
exercise price is unknown.
THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING IN ACCORDANCE
WITH RULE 462 UNDER THE SECURITIES ACT OF 1933.
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Sequentially numbered original consisting of 10 pages.
Exhibit Index appears at page 6.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under
the Securities Act of 1933 and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by XETA
Corporation, an Oklahoma corporation (the "Company"), with the Securities and
Exchange Commission (the "Commission"), are incorporated by reference into this
Registration Statement:
(1) Annual Report of the Company on Form 10-KSB for the
fiscal year ended October 31, 1994, filed with the Commission on
January 30, 1995.
(2) Quarterly Report of the Company on Form 10-QSB for
the quarter ended January 31, 1995, filed with the Commission on March
17, 1995.
(3) Quarterly Report for the Company on Form 10-QSB for
the quarter ended April 30, 1995 filed with the Commission on June 9,
1995.
(4) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A, filed with the
Commission on September 21, 1987.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
hereto which indicates that all securities offered have been sold or which
deregisters all such securities then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the issuance of the shares of Common Stock
offered hereby has been passed upon for the Company by the firm of Barber &
Bartz, a Professional Corporation, which serves as general counsel to the
Company. Ron B. Barber, senior shareholder of the firm, is a director of the
Company and beneficially owns approximately two percent of the
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Company's Common Stock, including options to purchase 30,000 shares which are
presently exercisable and included in the shares being registered hereby.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Oklahoma General Corporation Act (the "OGCA") and the
Company's Bylaws each contain provisions for indemnification of officers and
directors of the Company against liability incurred by them under certain
circumstances in their capacities as officers and directors of the Company.
The OGCA and the Company's Bylaws provide for indemnification
of its officers and directors against expenses (including attorneys' fees,
judgments, fines and amounts paid in settlement) actually and reasonably
incurred in connection with the defense of any threatened, pending or completed
legal proceeding in which the officer or director is a party or threatened to
be made a party by reason of the fact that he is or was a director or officer
of the Company, if he acted in good faith and in a manner that he reasonably
believed to be in, or not opposed to, the best interests of the Company, and,
with respect to any criminal action or proceeding, if he had no reasonable
cause to believe that his conduct was unlawful. If the legal proceeding,
however, is by or in the right of the Company, the director or officer may not
be indemnified in respect of any claim, issue or matter as to which he is
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Company unless a court determines otherwise. The foregoing right
to indemnity is not exclusive of any other right to indemnity which a director
or officer may be entitled under any other agreement or by vote of the
Company's shareholders, directors, or otherwise.
The XETA Corporation Employee Stock Option Plan also provides
for indemnification of the members of the committee charged with administering
the Plan. In addition, the Company maintains insurance to protect its officers
and directors from certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with this Registration
Statement in accordance with Item 601 of Regulation S-B:
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<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Articles of Incorporation, filed as Exhibits 3.1 and 3.2 to the Company's Registration
Statement filed with the Commission on Form S-1, Registration No. 33-7841, and incorporated
herein by this reference.
4.2 Bylaws of the Company, filed as Exhibit 3(ii) to the Company's Annual Report on Form 10-KSB for
the fiscal year ended October 31, 1994, filed with the Commission on January 30, 1995, and
incorporated herein by this reference.
5 Opinion of Barber & Bartz, a Professional Corporation.
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<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
15 Letter on unaudited interim financial information -- Not applicable.
23.1 Consent of Barber & Bartz -- (See Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney -- See Page 4 hereto.
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes to file, during
any period in which offers or sales are being made, a post-effective amendment
to this Registration Statement to include any additional material information
on the plan of distribution or any material change to such information.
The undersigned registrant hereby further undertakes (i) that,
for the purpose of determining liability under the Securities Act of 1933, as
amended (the "Securities Act"), it will treat each post-effective amendment as
a new registration statement of the securities offered, and the offering of the
securities at that time to be the initial bona fide offering thereof; and (ii)
to file a post-effective amendment to remove from registration any of the
securities being registered that remain unsold at the termination of the
offering.
The undersigned registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling persons 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 Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Tulsa, State of
Oklahoma, on August 24, 1995.
XETA CORPORATION
By: /s/Jack R. Ingram
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Jack R. Ingram
President and Chief Executive Officer
By: /s/Robert B. Wagner
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Robert B. Wagner
Vice President of Finance, Chief Financial
Officer, Treasurer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jack R. Ingram and Ronald L.
Siegenthaler, and each of them, his true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission granting unto
said attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the date indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/Jack R. Ingram President, Chief
------------------------------------ Executive Officer and
Jack R. Ingram Director August 24, 1995
/s/Robert B. Wagner Vice President of Finance,
------------------------------------ Chief Financial Officer,
Robert B. Wagner Treasurer and Director August 24, 1995
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/Donald T. Duke Director August 23, 1995
------------------------------------
Donald T. Duke
/s/Ron B. Barber Director August 22, 1995
------------------------------------
Ron B. Barber
/s/Ronald L. Siegenthaler Director August 24, 1995
------------------------------------
Ronald L. Siegenthaler
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Articles of Incorporation, filed as Exhibits 3.1 and 3.2 to the Company's Registration
Statement filed with the Commission on Form S-1, Registration No. 33-7841, and incorporated
herein by this reference.
4.2 Bylaws of the Company, filed as Exhibit 3(ii) to the Company's Annual Report on Form 10-KSB for
the fiscal year ended October 31, 1994, filed with the Commission on January 30, 1995, and
incorporated herein by this reference.
5 Opinion of Barber & Bartz, a Professional Corporation.
15 Letter on unaudited interim financial information -- Not applicable.
23.1 Consent of Barber & Bartz -- (See Exhibit 5 hereto).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney -- See Page 4 hereto.
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EXHIBIT "5"
August 25, 1995
XETA Corporation
4500 South Garnett Road
Suite 1000
Tulsa, Oklahoma 74146
RE: XETA CORPORATION FORM S-8 REGISTRATION STATEMENT OUR
FILE NO. 191-02
Gentlemen:
We have acted as counsel for XETA Corporation, an Oklahoma corporation
(the "Company"), in connection with the (i) proposed issuance of shares of
common stock, par value $0.10 per share (the "Common Stock"), of the Company
upon the exercise of stock options pursuant to the XETA Corporation Employee
Stock Option Plan, and pursuant to the following individual Stock Purchase
Options granted in connection with compensation agreements between the
recipients of such individual options and the Company (the Employee Plan and
such individual options being collectively referred to herein as the "Plans"):
1. Stock Option Agreement between XETA Corporation and Ron B. Barber
2. Stock Option Agreement between XETA Corporation and James E. Beebe
3. Stock Option Agreement between XETA Corporation and Donald Duke
4. Stock Option Agreement between XETA Corporation and Robert
Hisrich
5. Stock Option Agreement between XETA Corporation and Jack R.
Ingram
6. Stock Option Agreement between XETA Corporation and Donald E.
Reigel
7. Stock Option Agreement between XETA Corporation and Darlene
Schriner
8. Stock Option Agreement between XETA Corporation and Ronald L.
Siegenthaler;
and (ii) the registration of such issuance pursuant to a registration statement
on Form S-8 filed with the Securities and Exchange Commission relating to an
aggregate of 813,000 shares of Common Stock issuable pursuant to the Plans.
We are rendering this opinion as of the time the registration
statement becomes effective in accordance with Section 8(a) of the Securities
Act of 1933, as amended.
In rendering this opinion, we have examined, among other things, the
Certificate of Incorporation and Bylaws of the Company, as amended, the records
of corporate proceedings of the Company which have occurred prior to the date
hereof with respect to such issuance, the registration statement and such other
documents and representations as we deemed necessary in order to render the
opinions expressed herein.
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XETA Corporation
August 25, 1995
Page 2
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Oklahoma; and
2. The shares of Common Stock which are issuable pursuant to the
terms of the Plans have been validly authorized for issuance and, upon issuance
and delivery thereof and the payment therefor in accordance with the provisions
of the Plans, the Common Stock so issued will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement.
Very truly yours,
BARBER & BARTZ
By /s/Nancy Jones
NHJ/ls
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
and to all references to our Firm included in or made a part of this
registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
August 22, 1995
