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As filed with the Securities and Exchange Commission on August 25, 2000.
Registration No. 33-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
XETA TECHNOLOGIES, INC.
(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 Technologies 2000 Stock Option Plan
(2) Stock Option Agreement between XETA Technologies, Inc. and Jon A.
Wiese
(3) Stock Option Agreement between XETA Technologies, Inc. and Larry N.
Patterson
(4) Stock Option Grant by XETA Technologies, Inc. to Charles E. Martin
(Full Title of the plan)
JACK R. INGRAM
Chief Executive Officer
XETA Technologies, Inc.
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 C. Jones, Esq.
525 South Main, Suite 800
Tulsa, Oklahoma 74103-4511
CALCULATION OF REGISTRATION FEE
<TABLE>
<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
<S> <C> <C> <C> <C>
Common Stock 1,424,000 $11.59 $13,991,250.00 $3,693.69
($0.001 par)
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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, 2000, which was $13.125 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 8 pages.
Exhibit Index appears at page 12.
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PART I
INFORMATION REQUIRED IN 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 Technologies,
Inc., 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-K for the fiscal year
ended October 31, 1999, filed with the Commission on January 28, 2000.
(2) Quarterly Report of the Company on Form 10-Q for the quarter ended
January 31, 2000, filed with the Commission on March 16, 2000.
(3) Quarterly Report for the Company on Form 10-Q for the quarter
ended April 30, 2000, filed with the Commission on June 14, 2000.
(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 Securities and Exchange Act of 1934 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.
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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 1.25% of the Company's outstanding Common Stock.
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 Technologies 2000 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.
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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 -
(a) Amended and Restated Certificate of Incorporation of the
Registrant - Incorporated by reference to Exhibits 3.1 and
3.2 to the Registrant's Registration Statement on Form
S-1, filed on June 17, 1987 (File No. 33-7841).
(b) Amendment No. 1 to Amended and Restated Certificate of
Incorporation - Incorporated by reference to Exhibit 4.2
to the Registrant's Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8, filed on July 28, 1999
(File No. 33-62173).
(c) Amendment No. 2 to Amended and Restated Certificate of
Incorporation - Incorporated by reference to Exhibit
3(i)(c) to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended April 30, 2000, filed on June 14,
2000 (File No. 0-16231).
4.2 Bylaws -
(a) Amended and Restated Bylaws of the Registrant, First
Amendment and Second Amendment to Amended and Restated
Bylaws - Incorporated by reference to Exhibit 3(ii) to the
Registrant's Annual Report on Form 10-KSB for the fiscal
year ended October 31, 1994, filed on January 30, 1995
(File No. 0-16231).
(b) Third Amendment to Amended and Restated Bylaws -
Incorporated by reference to Exhibit 4.4 to the
Registrant's Post-Effective Amendment No. 1 to
Registration Statement on Form S-8, filed on July 28, 1999
(File No. 33-62173).
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 6 hereto.
4
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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 any 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 which 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 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 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 Broken Arrow, State of Oklahoma, on August 24,
2000.
XETA TECHNOLOGIES, INC.
By: /s/ Jack R. Ingram
--------------------------------------------
Jack R. Ingram
Chief Executive Officer and
Chairman of the Board
By: /s/ Robert B. Wagner
--------------------------------------------
Robert B. Wagner
Chief Financial Officer,
Vice President of Finance
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 Jon A. Wiese, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
Chief
/s/ Jack R. Ingram Executive Officer and
--------------------------------------------- Director August 24, 2000
Jack R. Ingram
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Jon A. Wiese President and Director
---------------------------------------------
Jon A. Wiese August 23, 2000
Chief Financial Officer,
/s/ Robert B. Wagner Vice President of Finance,
--------------------------------------------- Secretary and Director August 23, 2000
Robert B. Wagner
/s/ Ron B. Barber Director
---------------------------------------------
Ron B. Barber August 24, 2000
/s/ Ronald L. Siegenthaler Director
---------------------------------------------
Ronald L. Siegenthaler August 24, 2000
/s/ Donald T. Duke Director
---------------------------------------------
Donald T. Duke August 23, 2000
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Articles of Incorporation -
(a) Amended and Restated Certificate of Incorporation of the
Registrant - Incorporated by reference to Exhibits 3.1 and
3.2 to the Registrant's Registration Statement on Form
S-1, filed on June 17, 1987 (File No. 33-7841).
(b) Amendment No. 1 to Amended and Restated Certificate of
Incorporation - Incorporated by reference to Exhibit 4.2
to the Registrant's Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8, filed on July 28, 1999
(File No. 33-62173).
(c) Amendment No. 2 to Amended and Restated Certificate of
Incorporation - Incorporated by reference to Exhibit
3(i)(c) to the Registrant's Quarterly Report on Form 10-Q
for the quarter ended April 30, 2000, filed on June 14,
2000 (File No. 0-16231).
4.2 Bylaws -
(a) Amended and Restated Bylaws of the Registrant, First
Amendment and Second Amendment to Amended and Restated
Bylaws - Incorporated by reference to Exhibit 3(ii) to the
Registrant's Annual Report on Form 10-KSB for the fiscal
year ended October 31, 1994, filed on January 30, 1995
(File No. 0-16231).
(b) Third Amendment to Amended and Restated Bylaws -
Incorporated by reference to Exhibit 4.4 to the
Registrant's Post-Effective Amendment No. 1 to
Registration Statement on Form S-8, filed on July 28, 1999
(File No. 33-62173).
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 6 hereto.
</TABLE>
