AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY
5, 1997
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SMITHWAY MOTOR XPRESS CORP.
(Exact name of registrant as specified in charter)
NEVADA 42-1433844
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
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RURAL ROUTE #5
FORT DODGE, IOWA 50501
(515)576-7418
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
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SMITHWAY MOTOR XPRESS, INC. 401(K) RETIREMENT SAVINGS AND
INVESTMENT PLAN
(Full title of plan)
------------------------------------
WILLIAM G. SMITH
CHAIRMAN, PRESIDENT, AND CHIEF EXECUTIVE OFFICER
SMITHWAY MOTOR XPRESS CORP.
RURAL ROUTE #5
FORT DODGE, IOWA 50501
(515)576-7418
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------------
Copies to:
HEIDI HORNUNG SCHERR, ESQ.
SCUDDER LAW FIRM, P.C.
411 SOUTH 13TH STREET, SUITE 200
LINCOLN, NEBRASKA 68508
(402) 435-3223
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALES PURSUANT TO THE
PLAN: As soon as practicable after the effective date of this registration
statement.
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CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED MAXIMU AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
REGISTERED PRICE PER SHARE (1) PRICE (1) FEE
- --------------------------------------- ------------------ --------------------- -------------------- ---------------------
Participation Interests................ Indeterminate -- -- --
- --------------------------------------- ------------------ --------------------- -------------------- ---------------------
Class A Common Stock, $.01 par value... 1,000,000 $9.0625 $9,062,500 $2,747
===================================== ================== ===================== ======================= ==================
<FN>
(1) Estimated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended (the "Securities Act") solely for purposes of calculating the
registration fee. The price is based upon the average of the bid and
asked price of Smithway Motor Xpress Corp. Class A Common Stock on
February 4, 1997, as reported on the Nasdaq National Market.
</FN>
Page 1 of 5 pages
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to employees in accordance with Form S-8 and Rule 428
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Smithway Motor Xpress Corp. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
a. The Company's latest prospectus filed pursuant to Rule
424(b) under the Securities Act, which was part of the Company's
Registration Statement on Form S-1 (No. 33-90356, effective June 27,
1996), containing audited financial statements for the Company's latest
fiscal year (the "Registration Statement"); and
b. The description of the Company's Class A Common Stock
contained under the caption "Description of Registrant's Securities to
be Registered" in the Company's registration statement on Form 8-A
filed June 7, 1996, which incorporates by reference the information
under the heading "Description of Capital Stock" and "Shares Eligible
for Future Sale" in the Company's prospectus dated June 27, 1996,
included in the Registration Statement, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this registration statement 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
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Nevada General Corporation Law provides for the indemnification of
officers and directors (and others) under certain circumstances against expenses
incurred in successfully defending against a claim and authorizes Nevada
corporations to indemnify their officers and directors under certain
circumstances against expenses and liabilities incurred in legal proceedings
involving such persons because of their being or having been an officer or
director.
Article VII of the Company's Articles of Incorporation and Article X of
the Company's Bylaws provide that the Company's directors and officers shall be
indemnified against liabilities they may incur while serving in such capacities
to the fullest extent allowed by the Nevada General Corporation Law. Under these
indemnification provisions, the Company is required to indemnify its directors
and officers
Page 2 of 5 pages
against any reasonable expenses (including attorneys' fees) incurred by them in
the defense of any action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, to which they were made a party, or in defense
of any claim, issue, or matter therein, by reason of the fact that they are or
were a director or officer of the Company or while a director or officer of the
Company are or were serving at the Company's request as a director, officer,
partner, trustee, employee, or agent of another corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise unless it is
ultimately determined by a court of competent jurisdiction that they failed to
act in a manner they believed in good faith to be in, or not opposed to, the
best interests of the Company, and with respect to any criminal proceeding, had
reasonable cause to believe their conduct was lawful. The Company will advance
expenses incurred by directors or officers in defending any such action, suit,
or proceeding upon receipt of written confirmation from such officers or
directors that they have met certain standards of conduct and an undertaking by
or on behalf of such officers or directors to repay such advances if it is
ultimately determined that they are not entitled to indemnification by the
Company. The Company may, through indemnification agreements, insurance, or
otherwise, provide additional indemnification.
Article VI of the Company's Articles of Incorporation eliminates, to
the fullest extent permitted by law, the liability of directors and officers for
monetary or other damages for breach of fiduciary duties to the Company and its
stockholders as a director or officer.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to officers, directors, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. EXHIBIT
4.1 Articles of Incorporation of Smithway Motor Xpress Corp. (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-1, File
No. 33-90356 (the "Form S-1"))
4.2 Bylaws of Smithway Motor Xpress Corp. (incorporated by reference to Exhibit 3.2
to the Form S-1)
5* Opinion of Scudder Law Firm, P.C. as to the validity of the shares of Class A
Common Stock, par value $0.01 per share
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Denman & Company, L.L.P.
23.3 Consent of Scudder Law Firm, P.C. (contained in Exhibit 5.1 hereto)
24 Power of Attorney (contained in the signature pages to this Registration Statement)
99.1 Smithway Motor Xpress, Inc. 401(k) Retirement Savings & Investment Plan,
adopted August 14, 1992, as amended and Adoption Agreement (incorporated by
reference to Exhibit 10.4 to the Form S-1)
99.2* Amendment Number Four to the Smithway Motor Xpress, Inc. 401(k) Retirement
Savings & Investment Plan, adopted December 31, 1996
* FILED HEREWITH
Page 3 of 5 pages
ITEM 9. UNDERTAKINGS
a. RULE 415 OFFERING. The undersigned registrant hereby undertakes:
1. 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;
(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 set forth 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;
PROVIDED, HOWEVER, that paragraph (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2. That, for the purpose of determining any liability under the Securities
Act, 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.
3. 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.
b. FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE. The
undersigned registrant hereby 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 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.
c. REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8. Insofar as indemnification for liabilities arises 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.
Page 4 of 5 pages
SIGNATURES
The REGISTRANT. 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-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunder
duly authorized, in the City of Fort Dodge, State of Iowa on February 5, 1997.
SMITHWAY MOTOR XPRESS CORP.
By: /s/ WILLIAM G. SMITH
William G. Smith, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints William G.
Smith, Michael E. Oleson, G. Larry Owens and each of them, as attorneys-in-fact
with full power of substitution, to execute in their respective names,
individually and in each capacity stated below, any and all amendments
(including post-effective amendments) to this Registration Statement as the
attorney-in-fact and to file any such amendment to the Registration Statement,
exhibits thereto and documents required in connection therewith with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
their substitutes, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in connection therewith, as fully
as he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and their substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ WILLIAM G. SMITH Chairman of the Board, President February 5, 1997
- -------------------- Chief Executive Officer
William G. Smith
/s/ G. LARRY OWENS Executive Vice President and February 5, 1997
- ------------------ Chief Financial Officer; Director
G. Larry Owens
/s/ MICHAEL E. OLESON Treasurer and Chief Accounting February 5, 1997
- --------------------- Officer
Michael E. Oleson
/s/ HERBERT D. IHLE Director February 5, 1997
- -------------------
Herbert D. Ihle
/s/ ROBERT E. RICH Director February 5, 1997
- ------------------
Robert E. Rich
/s/ TERRY G. CHRISTENBERRY Director February 5, 1997
- --------------------------
Terry G. Christenberry
Page 5 of 5 pages
EXHIBITS
EXHIBIT NO. EXHIBIT
4.1 Articles of Incorporation of Smithway Motor Xpress Corp. (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-1, File
No. 33-90356 (the "Form S-1"))
4.2 Bylaws of Smithway Motor Xpress Corp. (incorporated by reference to Exhibit 3.2
to the Form S-1)
5* Opinion of Scudder Law Firm, P.C. as to the validity of the shares of Class A
Common Stock, par value $0.01 per share
23.1* Consent of KPMG Peat Marwick LLP
23.2* Consent of Denman & Company, L.L.P.
23.3 Consent of Scudder Law Firm, P.C. (contained in Exhibit 5.1 hereto)
24 Power of Attorney (contained in the signature pages to this Registration Statement)
99.1 Smithway Motor Express, Inc. 401(k) Retirement Savings & Investment Plan,
adopted August 14, 1992, as amended and Adoption Agreement (incorporated by
reference to Exhibit 10.4 to the Form S-1)
99.2* Amendment Number Four to the Smithway Motor Xpress, Inc. 401(k) Retirement
Savings & Investment Plan, adopted December 31, 1996
* FILED HEREWITH