As filed with the Securities and Exchange Commission on August 15, 1996
Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under
The Securities Act of 1933
SMITHWAY MOTOR XPRESS CORP.
(Exact name of registrant as specified in charter)
NEVADA 42-1433844
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Rural Route #5
Fort Dodge, Iowa 50501
(515) 576-7418
(Address, including zip code, and telephone number,
including area code, of principal executive offices)
Smithway Motor Xpress Corp. Outside Director Stock Option 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:
Mark A. Scudder, Esq.
Scudder Law Firm, P.C.
411 South 13th Street, Suite 200
Lincoln, Nebraska 68508
(402) 435-3223
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALES PURSUANT TO THE PLAN:
As soon as practicable after the effective date of this registration
statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount
Amount Offering Aggregate of
Title of Securities to be Price per Offering Registration
to be Registered Registered Share (1) Price (1) Fee
Class A Common Stock,
$.01 par value . . . . 25,000 $ 7.875 $ 196,875 $100 (2)
(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 high and
low prices of Smithway Motor Xpress Corp. Class A Common Stock on August
14, 1995, as reported on the Nasdaq National Market.
(2) Minimum filing fee pursuant to Section 6(b) of the Securities Act.
2
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 all non-employee directors 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. ("Smithway" or 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 Amendment No. 4
to the 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");
b. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1996; and,
c. 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" 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.
3
Article VII of the Company's Articles 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 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 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 Form S-1)
5.1 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*
4
Exhibit No. Exhibit
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 Smithway Motor Xpress Corp. Outside Director Stock Plan
(incorporated by reference to Exhibit 10.2 to Form S-1)
* Filed herewith
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.
5
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.
6
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 August
15, 1996.
SMITHWAY MOTOR XPRESS CORP.
By: /s/ G. Larry Owens
G. Larry Owens,
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints William G.
Smith, G. Larry Owens, and Michael E. Oleson, 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 August 15, 1996
William G. Smith Chief Executive Officer
/s/ G. Larry Owens Executive Vice President and August 15, 1996
G. Larry Owens Chief Financial Officer; Director
/s/ Michael E. Oleson Treasurer and Chief Accounting August 15, 1996
Michael E. Oleson Officer
/s/ Herbert D. Ihle Director August 15, 1996
Herbert D. Ihle
/s/ Robert E. Rich Director August 15, 1996
Robert E. Rich
/s/ Terry G. Christenberry Director August 15, 1996
Terry G. Christenberry
7
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 Form S-1)
5.1 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 Smithway Motor Xpress Corp. Outside Director Stock Option Plan
(incorporated by reference to Exhibit 10.2 to Form S-1)
* Filed herewith