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As filed with the Securities and Exchange Commission on June 28, 2000.
Registration No. 33-62173
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 2 to
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 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
Chief Executive Officer
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)
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Copies to:
Barber & Bartz
Attn: Nancy Hanania Jones, Esq.
525 South Main Street, Suite 800
Tulsa, Oklahoma 74103-4511
Sequentially numbered original consisting of 8 pages
Exhibit Index appears at page 7.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 2 to Registration Statement is filed
in accordance with the provisions of Rule 416 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 on August 28, 1995,
as amended by Post-Effective Amendment No. 1 filed on July 28, 1999
(collectively the "Registration Statement"), as a result of a two-for-one stock
split declared by the registrant on April 7, 2000 for shareholders of record on
June 30, 2000. Because the Registration Statement includes multiple stock option
plans, one of which - the XETA Corporation Employee Stock Option Plan dated
April 18, 1988 (the "1988 Plan") - is covered by Rule 416(a), and the remainder
of which - consisting of six separate individual compensation plans (the
"Individual Plans") - were originally covered by Rule 416(b), this
Post-Effective Amendment No. 2 is being filed pursuant to Rule 416(b) with
regard to all of the plans, for continuity and simplicity. As of the filing of
Post-Effective Amendment No. 1 on July 28, 1999, the number of shares of Common
Stock covered by the Registration Statement was 968,538, par value $.05 per
share.
On the June 30, 2000 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 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 $0.002 per share(1) to $0.001 per
share. As of the date of this filing, 138,672 shares registered under the 1988
Plan and 767,700 shares registered under the Individual Plans have 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. 2, 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 1,812,744, par value $0.001 per share.
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., formerly known as XETA Corporation, an Oklahoma corporation (the
"Company"), with the Securities and Exchange Commission (the "Commission"), are
incorporated by reference into this Registration Statement:
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(1) On June 27, 2000, the Registrant changed the par value of its Common Stock
from $0.05 per share to $0.002 per share, pursuant to an Amendment to its
Certificate of Incorporation (see Exhibit 4.4).
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(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.
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 52,736 shares of the Company's 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
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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 exhibits filed with this Registration Statement in accordance with
Item 601 of Regulation S-K are listed in the Exhibit Index following the
signatures to this Registration Statement.
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
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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.
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 June 27 ,
2000.
XETA TECHNOLOGIES, INC.
By: /s/ Jack R. Ingram
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Jack R. Ingram
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.
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Signature Title Date
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/s/ Jack R. Ingram Chief
------------------------------------ Executive Officer and
Jack R. Ingram Director June 27 2000
/s/ Jon A. Wiese President and Director
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Jon A. Wiese June 27 2000
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<TABLE>
<S> <C> <C>
/s/ Robert B. Wagner Vice President of Finance,
---------------------------------- Chief Financial Officer,
Robert B. Wagner Treasurer and Director June 27 2000
/s/ Ron B. Barber Director
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Ron B. Barber June 27 2000
/s/ Ronald L. Siegenthaler Director
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Ronald L. Siegenthaler June 27 2000
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INDEX TO EXHIBITS
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Exhibit No. Description
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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, filed as Exhibit 4.2 to the
Company's Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8, Reg. No. 33-62173, filed with the
Commission on July 28, 1999 and incorporated therein by this
reference.
4.3 Amendment No. 2 to Amended and Restated Certificate of
Incorporation of the Company, filed as Exhibit 3(i)(c) to the
Company's Quarterly Report on Form 10-Q for the quarter ended
April 30, 2000, filed with the Commission on June 14, 2000 and
incorporated herein by this reference.
4.4* Amendment No. 3 to Amended and Restated Certificate
of Incorporation to the Company.
4.5 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 October 31,
1994, filed with the Commission on January 30, 1995 and
incorporated herein by this reference.
4.6 Third Amendment to Amended and Restated Bylaws of the Company
dated July 15, 1999, filed as Exhibit 4.4 to the Company's
Post-Effective Amendment No. 1 to the Registered Statement on
Form S-8, Reg. No. 33-62173, filed with the Commission on July 28, 1999
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.
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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).
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*Filed herewith.
