As filed with the Securities and Exchange Commission on June 22, 2005
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 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 its charter)
NEVADA 42-1433844
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2031 QUAIL AVENUE 50501
FORT DODGE, IOWA (Zip Code)
(Address of principal executive offices)
SMITHWAY MOTOR XPRESS CORP. 2005 OMNIBUS STOCK PLAN
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT, DATED JULY 27, 2000, BETWEEN SMITHWAY
MOTOR XPRESS CORP. AND TERRY G. CHRISTENBERRY
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT, DATED JULY 27, 2000, BETWEEN SMITHWAY
MOTOR XPRESS CORP. AND HERBERT D. IHLE
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT, DATED JULY 27, 2000, BETWEEN SMITHWAY
MOTOR XPRESS CORP. AND ROBERT E. RICH
(Full title of the plan)
DOUGLAS C. SANDVIG
Senior Vice President, Chief Financial Officer and Treasurer
Smithway Motor Xpress Corp.
2031 Quail Avenue
Fort Dodge, Iowa 50501
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (515) 576-7418
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Copies to:
BRUCE M. ENGLER
W. MORGAN BURNS
Faegre & Benson LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
(612) 766-7000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Each Class of Securities to To Be Price Per Offering Registration
Be registered Registered (1) Share (2) Price (2) Fee
- ------------------------------------------------------- -------------- --------- ---------- ------------
COMMON STOCK, $.01 PAR VALUE, ISSUABLE PURSUANT TO:
SMITHWAY MOTOR XPRESS CORP. 2005 OMNIBUS STOCK PLAN
Issuable Upon Exercise of Outstanding Options 12,000 $ 5.50 (3) $ 66,000 $ 8.00
Reserved for Future Grants 488,000 $ 5.51 (4) $2,688,880 $ 317.00
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT, DATED JULY 27,
2000, BETWEEN THE REGISTRANT AND TERRY G. CHRISTENBERRY 4,000 $ 2.60 $ 10,400 $ 2.00
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT, DATED JULY 27,
2000, BETWEEN THE REGISTRANT AND HERBERT D. IHLE 4,000 $ 2.60 $ 10,400 $ 2.00
------- ------ ---------- ------------
OUTSIDE DIRECTOR STOCK OPTION AGREEMENT, DATED JULY 27,
2000, BETWEEN THE REGISTRANT AND ROBERT E. RICH 4,000 $ 2.60 $ 10,400 $ 2.00
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(1) This Registration Statement will also cover any additional shares of
Common Stock that become issuable under the Smithway Motor Xpress Corp.
2005 Omnibus Stock Plan or the Outside Director Stock Option Agreements,
dated July 27, 2000, between the Registrant and each of Terry G.
Christenberry, Herbert D. Ihle and Robert E. Rich by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration that results in
an increase in the number of the outstanding shares of the Registrant's
Common Stock.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
based on the weighted average per share exercise price of outstanding
options granted under the plan.
(4) Computed in accordance with Rule 457(h) and 457(c) of the Securities Act
of 1933. This computation is based on the average of the high and low
prices as reported on the Nasdaq National Market on June 15, 2005.
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SMITHWAY MOTOR XPRESS CORP.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant filed with the Commission
pursuant to the Securities Exchange Act of 1934 are, as of their respective
dates, incorporated herein by reference and made a part hereof:
(1) The Annual Report on Form 10-K of the Registrant for the
fiscal year ended December 31, 2004 (which incorporates by reference
certain portions of the Registrant's definitive proxy statement for
its 2005 annual meeting of stockholders) filed pursuant to Section
15(d) of the Securities Exchange Act of 1934;
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934 since the filing of the
annual report referred to in (1) above; and
(3) The description of the Registrant's Class A Common Stock
that is contained in the Registration Statement on Form 8-A filed
June 7, 1996 (File No. 000-20793) under the Securities Exchange Act
of 1934 (which incorporates by reference the information under the
heading "Description of Capital Stock" in the Registrant's
prospectus dated June 27, 1996 included in the Registrant's
Registration Statement on Form S-1 (Registration No. 33-90356)) and
all amendments and reports filed for the purpose of updating this
description.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
subsequent to the date of this Registration Statement and prior to the filing of
a post-effective amendment that indicates that all of the shares of Common Stock
offered have been sold or that deregisters all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of these documents.
Any statement contained 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 herein or incorporated herein by reference or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes the statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission, this indemnification is against
public policy as expressed in the Securities Act of 1933, and is therefore
unenforceable.
The Registrant also maintains a director and officer insurance policy to
cover the Registrant, its directors and its officers against certain
liabilities.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection 1 of Section 78.7502 of the Nevada General Corporation Law (the
"Nevada Law") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person is not liable
pursuant to Section 78.138 of the Nevada Law or if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Section 78.128 of the Nevada Law provides that, with certain
exceptions, a director or officer is not individually liable to the corporation
or its stockholders for any damages as a result of any act or failure to act in
the person's capacity as a director or officer unless it is proven that (i) the
person's act or failure to act constituted a breach of the person's fiduciary
duties as a director or officer, and (ii) the person's breach of those duties
involved intentional misconduct, fraud or a knowing violation of the law.
Subsection 2 of Section 78.7502 of the Nevada Law empowers a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above against expenses,
including amounts paid in settlement and attorneys' fees actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged by a court of competent jurisdiction to be
liable to the corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which such action or suit was
brought determines that, despite the adjudication of liability, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
Section 78.7502 of the Nevada Law further provides that to the extent a
director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (1) and (2), or in the
defense of any claim, issue or matter therein, the person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection therewith. Section 78.751 of the Nevada Law provides
that the indemnification provided for by Section 78.7502 shall not be deemed
exclusive or exclude any other rights to which the indemnified party may be
entitled and that the scope of indemnification shall continue as to directors,
officers, employees or agents who have ceased to hold such positions, and to
their heirs, executors and administrators. Section 78.752 of the Nevada Law
empowers the corporation to purchase and maintain insurance on behalf of a
director, officer, employee or agent of the corporation against any liability
asserted against the person or incurred by the person in any such capacity or
arising out of the person's status as such whether or not the corporation would
have the power to indemnify the person against such liabilities under Section
78.7502.
Article VII of the Registrant's Articles of Incorporation and Article X of
the Registrant's bylaws provides for indemnification of its officers and
directors to the fullest extent permitted under Nevada Law. The bylaws provide
that the expenses of officers and directors incurred in defending any action,
suit or proceeding, whether civil or criminal, must be paid by the corporation
as they are incurred and in advance of the final disposition of the action, suit
or proceeding, upon delivery, if required by Nevada law, of an undertaking by or
on behalf of the director or officer to repay all amounts so advanced if it is
ultimately determined by a court of competent jurisdiction that the officer or
director is not entitled to be indemnified by the corporation.
Article VI of the Registrant'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 Registrant and
its stockholders as a director or officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
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3.1 Articles of Incorporation (1)
3.2 Amended and Restated Bylaws (as in effect on March 5,
2004) (2)
5 Opinion of Faegre & Benson LLP, counsel for the
Registrant
10.1 Smithway Motor Xpress Corp. 2005 Omnibus Stock Plan (3)
10.2 Form of Incentive Stock Option Agreement under Smithway
Motor Xpress Corp. 2005 Omnibus Stock Plan
10.3 Form of Non-Statutory Stock Option Agreement (Employee)
under Smithway Motor Xpress Corp. 2005 Omnibus Stock
Plan
10.4 Form of Non-Statutory Stock Option Agreement (Director)
under Smithway Motor Xpress Corp. 2005 Omnibus Stock
Plan
10.5 Form of Outside Director Stock Option Agreement, dated
July 27, 2000, between Smithway Motor Xpress Corp. and
each of Terry G. Christenberry, Herbert D. Ihle and
Robert E. Rich (4)
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5 to
this Registration Statement)
23.2 Consent of KPMG LLP, independent registered public
accounting firm
24 Powers of Attorney
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(1) Incorporated by reference to the same numbered exhibit to the Registrant's
Registration Statement on Form S-1 (Registration No. 33-90356), effective
June 27, 1996.
(2) Incorporated by reference to the same numbered exhibit to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 2003
(File No. 000-20793), filed with the Commission on March 30, 2004.
(3) Incorporated by reference to Annex A to the Registrant's definitive proxy
statement for its 2005 annual meeting of shareholders (File No.
000-20793), filed with the Commission on April 15, 2005.
(4) Incorporated by reference to Exhibit 10.18 to the Registrant's Quarterly
Report on Form 10-Q for the fiscal quarter ended September 30, 2000 (File
No. 000-20793), filed with the Commission on November 6, 2000.
ITEM 9. UNDERTAKINGS.
A. The 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 of 1933;
(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.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Securities and
Exchange Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement; and
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(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 paragraphs (A)(1)(i) and (A)(1)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Securities and Exchange Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 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, 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 Fort Dodge, State of Iowa on the 22nd day of June,
2005.
SMITHWAY MOTOR XPRESS CORP.
By /s/ Douglas C. Sandvig
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Douglas C. Sandvig
Senior Vice President,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on June 22, 2005 by the following
persons in the capacities indicated:
NAME TITLE
---- -----
Chairman of the Board,
/s/ G. Larry Owens Chief Executive Officer, President and
- ------------------------------ Director (Principal Executive Officer)
G. Larry Owens
Senior Vice President,
/s/ Douglas C. Sandvig Chief Financial Officer and Treasurer
- ------------------------------ (Principal Financial and Accounting Officer)
Douglas C. Sandvig
/s/ * Director
- ------------------------------
Terry G. Christenberry
/s/ * Director
- ------------------------------
Labh S. Hira
/s/ * Director
- ------------------------------
Herbert D. Ihle
/s/ * Director
- ------------------------------
Marlys L. Smith
* G. Larry Owens, by signing his name hereto, does hereby sign this document
on behalf of each of the above-named directors of the Registrant pursuant
to powers of attorney duly executed by these persons.
/s/ G. Larry Owens
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Attorney-in-Fact
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION DESCRIPTION
- ----------- ----------- -----------
3.1 Articles of Incorporation Incorporated by reference
3.2 Amended and Restated Bylaws (as in effect on March 5, 2004) Incorporated by reference
5 Opinion of Faegre & Benson LLP, counsel for the Registrant Filed herewith
10.1 Smithway Motor Xpress Corp. 2005 Omnibus Stock Plan Incorporated by reference
10.2 Form of Incentive Stock Option Agreement under Smithway Filed herewith
Motor Xpress Corp. 2005 Omnibus Stock Plan
10.3 Form of Non-Statutory Stock Option Agreement (Employee) Filed herewith
under Smithway Motor Xpress Corp. 2005 Omnibus Stock Plan
10.4 Form of Non-Statutory Stock Option Agreement (Director) Filed herewith
under Smithway Motor Xpress Corp. 2005 Omnibus Stock Plan
10.5 Form of Outside Director Stock Option Agreement, dated July Incorporated by reference
27, 2000, between Smithway Motor Xpress Corp. and each of
Terry G. Christenberry, Herbert D. Ihle and Robert E. Rich
23.1 Consent of Faegre & Benson LLP (included in Exhibit 5 to Included in Exhibit 5 to this
this Registration Statement) Registration Statement
23.2 Consent of KPMG LLP, independent registered public Filed herewith
accounting firm
24 Powers of Attorney Filed herewith