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As filed with the Securities and Exchange Commission on July 28, 1999.
Registration No. 33-62173
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1 to
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.)
1814 West Tacoma
Broken Arrow, Oklahoma 74012
(Address of Principal Executive Offices (Zip Code)
(1) XETA Corporation Employee Stock Option Plan
(2) Stock Option Agreement between XETA Corporation and Donald Duke
(3) Stock Option Agreement between XETA Corporation and Robert Hisrich
(4) Stock Option Agreement between XETA Corporation and Jack R. Ingram
(5) Stock Option Agreement between XETA Corporation and Donald E. Reigel
(6) Stock Option Agreement between XETA Corporation and Darlene Schriner
(7) Stock Option Agreement between XETA Corporation and Ronald L. Siegenthaler
(Full Title of each plan)
JACK R. INGRAM
President
XETA Corporation
1814 West Tacoma
Broken Arrow, Oklahoma 74012
(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 Hanania Jones, Esq.
110 West Seventh Street, Suite 200
Tulsa, Oklahoma 74119
Sequentially numbered original consisting of 14 pages
Exhibit Index appears at page 7.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to Registration Statement is filed
in accordance with the provisions of Rule 416(b) of the Securities Act of 1933,
as amended (the "Act"), for the purpose of reflecting the change in number of
shares registered on Form S-8 Commission File No. 33-62173 (the "Registration
Statement"), as a result of a two-for-one stock split declared by the
registrant on July 15, 1999 for shareholders of record on July 30, 1999. The
Registration Statement covered an aggregate of 813,000 shares of common stock,
par value $.10 per share, consisting of 203,000 shares to be issued under the
XETA Corporation Employee Stock Option Plan dated April 18, 1988 (the "1988
Plan"), the terms of which provide for a change in amount of securities being
offered or issued to prevent dilution resulting from stock splits, stock
dividends and similar transactions; and 610,000 shares to be issued under eight
separate individual compensation plans. Because the Registration Statement
includes multiple plans, one of which (the 1988 Plan) is covered by Rule 416(a)
and the remainder of which are subject to Rule 416(b), for simplification and
continuity this Post-Effective Amendment No. 1 is being filed pursuant to Rule
416(b) with regard to all of the plans.
With respect to two of the eight individual compensation plans,
specifically the Stock Option Agreement between the Company and Ron B. Barber
and the Stock Option Agreement between the Company and James E. Beebe, a total
of 50,000 shares, constituting all shares offered under such two plans, have
been sold. Consequently, with respect to these two plans only, this
Post-Effective Amendment No. 1 serves as a termination of such plans.
On the July 30, 1999 record date, the two-for-one stock split will
result in a corresponding adjustment to the number of unexercised shares
subject to options under the 1988 Plan and the six remaining individual
compensation plans (the "Individual Plans"). Concurrently with the stock split,
the registrant will amend its certificate of incorporation to change the par
value of its Common Stock from $.10 per share to $.05 per share. As of the date
of this filing, 84,269 shares registered under the 1988 Plan and 400,000 shares
registered under the Individual Plans had not yet been issued. Consequently,
after making adjustment for the shares of Common Stock covered by the
Registration Statement which were distributed prior to the filing of this
Post-Effective Amendment No. 1, and after giving effect to the stock split with
regard to the remaining undistributed shares covered by the Registration
Statement, the number of shares of Common Stock covered by the Registration
Statement is 968,538, par value $.05 per share.
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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, 1998, filed with the Commission on January 28, 1999.
(2) Quarterly Report of the Company on Form 10-Q for the quarter
ended January 31, 1999, filed with the Commission on March 16, 1999.
(3) Quarterly Report for the Company on Form 10-Q for the quarter
ended April 30, 1999 filed with the Commission on June 11, 1999.
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.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document which is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
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 outside general counsel to the
Company. Ron B. Barber, senior shareholder of the firm, is a director of the
Company and beneficially owns 26,368 shares of the Company's Common Stock.
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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-K:
Exhibit No. Description
4.1 Articles of Incorporation, as amended and restated,
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 Amendment No. 1 to Amended and Restated Certificate of
Incorporation of the Company.
4.3 Bylaws of the Company, as amended, filed as Exhibit
3(ii) to the Company's Annual Report on Form 10-K for
the fiscal year ended
4
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October 31, 1994, filed with the Commission on January
30, 1995 and incorporated herein by this reference.
4.4 Third Amendment to Amended and Restated Bylaws of the
Company dated July 15, 1999.
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 (filed by the Company with the
Commission on August 28, 1995 with the Registration
Statement to which this Post-Effective Amendment
relates).
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
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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.
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 Broken Arrow, State of
Oklahoma, on July 28, 1999.
XETA CORPORATION
By: /s/ Jack R. Ingram
---------------------------------------
Jack R. Ingram
President and Chief Executive Officer
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Jack R. Ingram President, Chief
- ------------------------------------------- Executive Officer and
Jack R. Ingram Director July 28, 1999
Vice President of Finance,
/s/ Robert B. Wagner Chief Financial Officer,
- ------------------------------------------- Treasurer and Director July 28, 1999
Robert B. Wagner
/s/ Ron B. Barber Director
- -------------------------------------------
Ron B. Barber July 23, 1999
/s/ Ronald L. Siegenthaler Director
- -------------------------------------------
Ronald L. Siegenthaler July 27, 1999
</TABLE>
6
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Exhibit 4.2
AMENDMENT NO. 1 TO
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
XETA CORPORATION
TO THE SECRETARY OF STATE OF OKLAHOMA:
We, the undersigned authorized officers of XETA Corporation, a
corporation organized under the laws of the State of Oklahoma upon filing its
original Certificate of Incorporation on June 4, 1981, which was subsequently
amended, and was restated on April 8, 1987, do hereby amend the Amended and
Restated Certificate of Incorporation pursuant to an amendment duly adopted on
March 25, 1999 by vote of the shareholders in accordance with the provisions of
Section 1077.B.1 of the Oklahoma General Corporation Act and by subsequent
action of the Board of Directors on July 15, 1999, as follows:
AS AMENDED:
ARTICLE VI
The total authorized number of shares which the Corporation
shall have authority to issue shall consist of 10,500,000 shares,
10,000,000 shares of which shall be classified as Common Shares of the
par value of $.05 per share, and 500,000 shares of which shall be
classified as Preferred Shares, $.10 par value per share.
Simultaneously with the effective date of this amendment (the
"Effective Date"), each one share of Common Stock issued and
outstanding on the Effective Date shall automatically and without any
action on the part of the holder thereof be reclassified as and changed
into two shares of the Company's Common Stock, par value $.05 per
share.
EFFECTIVE DATE:
This Amendment shall not become effective until July 30, 1999.
In all other respects, the Amended and Restated Certificate of
Incorporation, as filed on April 8, 1987, shall remain unchanged.
Signed this 21st day of July, 1999.
/s/ Jack R. Ingram
---------------------------
Jack R. Ingram, President
/s/ Robert B. Wagner
- -------------------------------
Robert B. Wagner, Secretary
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STATE OF OKLAHOMA )
) Section
COUNTY OF TULSA )
Before me, the undersigned, Notary Public, in and for said County and
State, on this 21 day of July, 1999, personally appeared Jack R. Ingram,
President of XETA Corporation, to me known to be the identical person who
executed the above and foregoing instrument and acknowledged to me that he
executed the same as his free and voluntary act and deed of the above named
Corporation, for the uses and purposes therein set forth.
Given under my hand and seal of office the day and year last above
written.
/s/ Carolyn R. Farrar
-------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
July 5, 2003
- ----------------------
(SEAL)
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EXHIBIT 4.4
THIRD AMENDMENT TO AMENDED AND RESTATED BYLAWS
OF
XETA CORPORATION
The undersigned Secretary of XETA Corporation hereby certifies that
Section 4.5 of Article 4 to the Amended and Restated Bylaws of XETA Corporation
was, pursuant to a Memorandum of Action of the Board of Directors dated July 15,
1999, amended to read as follows:
"4.5(a) Chief Executive Officer. The office of Chief Executive
Officer (if such office is created by the Board of Directors), shall
be the chief executive officer of the Corporation and shall be subject
to the control of the Board of Directors. The Chief Executive Officer
shall have general supervision and control of the business and affairs
of the Corporation; shall have direct supervision over the office of
President; and shall exercise and perform such other specific powers
and duties as may be assigned to him from time to time by the Board of
Directors. The Chief Executive Officer shall, if present, preside at
all meetings of the Board of Directors and shareholders, and shall
have authority to execute instruments and to enter into contracts on
behalf of the Corporation, except in cases where the signing and
execution thereof are expressly delegated by the Board of Directors or
the Corporation's Bylaws to some other officer or agent of the
Corporation.
4.5(b) President. The office of President shall be the chief
operating officer of the Corporation and shall be subject to the
control of the Chief Executive Officer (if there be one) and the Board
of Directors. Subject to the supervisory powers given by the Board of
Directors to the Chief Executive Officer, the President shall be
responsible for the general administration and management of the
business and day-to-day operations of the Corporation and shall,
together with the Chief Executive Officer, see that all orders and
resolutions of the Board of Directors are carried into effect. The
President shall in general perform all duties normally incident to the
office of the President and shall exercise and perform such other
specific powers and duties as may be assigned to him from time to time
by the Board of Directors or by the Chief Executive Officer. If there
be no office of Chief Executive Officer, the President shall be the
chief executive officer of the Corporation. He shall, in the absence
of the Chief Executive Officer (or if there shall be no such officer),
preside at all
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meetings of the shareholders and of the Board of Directors. He may
sign, with the Secretary or any other proper officer of the
Corporation, certificates of shares of the Corporation, any deeds,
mortgages, bonds, contracts or other instruments which the Board has
authorized to be executed, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of
Directors or by these bylaws to some other officer or agent of the
Corporation, or shall be required by law to be otherwise signed or
executed."
In all other respects, the Bylaws of XETA Corporation, as amended, remain
unchanged and in full force and effect.
/s/ ROBERT B. WAGNER
-------------------------------
Robert B. Wagner, Secretary
[SEAL]
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EXHIBIT 5
[BARBER & BARTZ LETTERHEAD]
July 28, 1999
XETA Corporation
1814 West Tacoma
Broken Arrow, Oklahoma 74012
Gentlemen:
We refer to Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8, No. 33-62173 (the "Registration Statement") of XETA
Corporation, an Oklahoma corporation (the "Company"), to be filed with the
Securities and Exchange Commission on or about July 29, 1999 pursuant to Rule
416 promulgated under the Securities Act of 1933, as amended (the "Securities
Act"). This Post Effective Amendment No. 1 is being filed for the purpose of
reflecting a change in the amount of securities to be issued under the XETA
Corporation Employee Stock Option Plan and under the individual stock option
agreements identified in the Registration Statement (the Employee Stock Option
Plan and the individual stock option agreements being collectively referred to
herein as the "Plans"), as a result of a two-for-one stock split of the Common
Stock of the Company declared by the Board of Directors on July 15, 1999 for
shareholders of record on July 30, 1999 (the "Stock Split").
We have examined the Company's Restated Certificate of Incorporation,
as amended, the Bylaws as currently in effect, minutes of applicable meetings
and applicable memoranda of action of the Board of Directors and the
shareholders of the Company, and such other corporate records, certificates of
public officials and documents as we have deemed necessary in order to render
the opinions expressed herein.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Oklahoma.
2. The shares of Common Stock which are issuable on and after the
record date of the Stock Split pursuant to the terms of the Plans have been
validly authorized for issuance and,
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XETA Corporation
July 28, 1999
Page 2
upon issuance and delivery thereof and the payment therefore 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
/s/ Nancy Jones
Nancy Hanania Jones
NHJ:dlh
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 1 to Registration Statement File
No. 33-62173 of our report dated December 4, 1998 included in Xeta
Corporation's Form 10-KSB for the year ended October 31, 1998 and to all
references to our Firm included in this Post-Effective Amendment No. 1 to
Registration Statement File No. 33-62173.
/s/ ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
July 22, 1999
