AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY
5, 1997
REGISTRATION NO. 333-_____
---------------------------------------------------
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 IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
------------------------------------
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, 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
------------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALES PURSUANT TO THE
PLAN: As soon as practicable after the effective date of this registration
statement.
------------------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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
- --------------------------------------- ------------------ --------------------- -------------------- ---------------------
<S> <C> <C> <C> <C>
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>
</TABLE>
Page 1 of 5 pages
<PAGE>
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
<PAGE>
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
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
<S> <C>
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
</TABLE>
Page 3 of 5 pages
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/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
</TABLE>
Page 5 of 5 pages
<PAGE>
<TABLE>
EXHIBITS
<CAPTION>
EXHIBIT NO. EXHIBIT
<S> <C>
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
</TABLE>
Exhibit 5
February 6, 1997
Smithway Motor Xpress Corp.
2031 Quail Avenue
Fort Dodge, Iowa 50501
Ladies and Gentlemen:
This opinion is rendered in connection with a Registration Statement on
Form S-8 (the "Registration Statement") to be filed by Smithway Motor Xpress
Corp. (the "Company") with the Securities and Exchange Commission under the
Securities Act of 1933. The Registration Statement relates to the registration
of 1,000,000 shares of the Company's Class A Common Stock, par value $.01 per
share (the "Shares"), and an indeterminate number of participation interests
which are to be offered under the Company's 401(k) Retirement Savings &
Investment Plan (the "Plan"). It is my opinion that:
1. The Company is a validly organized and existing corporation
under the laws of the State of Nevada.
2. All necessary corporate action has been duly taken to
authorize the establishment of the Plan, the sale of Shares under the
Plan, and the registration of the Shares (and participation interests)
covered by the Registration Statement under the Securities Act of 1933.
3. Any Shares issued to and paid for by the Plan will be
legally issued, fully paid and non-assessable shares of the Class A
Common Stock of the Company.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement.
Very truly yours,
/s/ Mark A. Scudder
Mark A. Scudder
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Smithway Motor Xpress Corp.
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Des Moines, Iowa
February 6, 1997
INDEPENDENT AUDITOR'S CONSENT
Smithway Motor Xpress, Inc.
401k Retirement Savings and Investment Plan
We consent to the use of our report incorporated herein by reference.
/s/ DENMAN & COMPANY, L.L.P.
DENMAN & COMPANY, L.L.P.
West Des Moines, Iowa
February 6, 1997
AMENDMENT NUMBER FOUR
TO THE
SMITHWAY MOTOR XPRESS, INC.
401(K) RETIREMENT SAVINGS AND INVESTMENT PLAN
Section 8.1 of Article VIII of the Smithway Motor Xpress, Inc. 401(k)
Retirement Savings & Investment Plan (the "Plan") provides that the Employer has
the right to amend the Plan. In accordance with those provisions, the Plan is
hereby amended as follows:
1. The following sentence is added to the end of Section 1.23:
A Former Participant shall include a person who was a Participant in
the Smithway Motor Xpress ESOP whose interest in that plan was
transferred to this Plan, but who did not otherwise become a
Participant in this Plan.
2. The following sentences are added to the end of Section 1.41:
A Participant's Account shall also be credited with a Participant's or
Former Participant's interest in the Smithway ESOP, if any, that is
transferred to the Plan upon the merger of that plan into the Plan. A
separate accounting shall be maintained with respect to that portion of
the Participant's Account attributable to the Employer's Non-Elective
Contributions and to the interest in the Smithway ESOP, if any, that is
transferred to the Plan. That part of the each Participant's Account
which represents the Participant's or Former Participant's interest in
the Smithway ESOP transferred to the Plan, including the investment
earnings or losses on that amount, shall be referred to in this Plan as
the Participant's ESOP Account.
3. The following sentence is added at the end of Section 1.51:
A Terminated Participant shall include any person who was a participant
in the Smithway Motor Xpress ESOP whose interest in that plan was
transferred to this Plan upon the merger of that plan into this Plan,
but who did not otherwise become a Participant in this Plan because he
terminated employment, other than by death Total and Permanent
Disability or retirement, prior to the date of the merger.
4. The following new Section 1.64 is added:
1.64 "Smithway Motor Xpress ESOP" means the Smithway Motor Xpress, Inc.
Employee Stock Ownership Plan and Trust, which was merged into this
Plan, effective January 1, 1997.
1
<PAGE>
5. The following new Section 1.65 is added:
1.65 "Company Stock" means Class A common stock of Smithway Motor
Xpress Corp.
6. The following new Section 1.66 is added:
1.66 "Investment Funds" mean the funds selected by the Administrator
for investment by Participants where the Participant is permitted to
individually direct his accounts in accordance with Section 4.12 of the
Plan.
7. The following new sentence is added at the end of Section 3.3:
Notwithstanding the foregoing, each Employee who was a Participant on
December 31, 1996, in the Smithway Motor Xpress ESOP, but who was not
otherwise a Participant in this Plan on that date, shall become a
Participant effective January 1, 1997.
8. The following new sentences are added at the end of Section 4.12(a):
No Participant shall be permitted to direct the investment of his
Participant's ESOP Account until March 1, 1997. After February 28,
1997, the Administrator may limit purchases and sales of Company Stock
in any manner he deems appropriate.
9. The following new Section 4.12(c) is added:
(c) The Administrator shall be responsible for selecting and
establishing the Investment Funds that allow each Participant a choice
of how to invest his Directed Investment Account. The Trustee shall be
responsible for monitoring the performance of the Investment Funds and
informing the Committee of the investment objectives and
characteristics of each. The Administrator shall be responsible for
communicating the descriptions of the Investment Funds and the
procedures for making and changing investment elections to
Participants.
The selection of investment choices shall be the sole
responsibility of each Participant, and no employee or representative
of an Employer or of the Trustee is authorized to make any
recommendation to any Participant about his investment choices.
10. The following new Section 4.12(d) is added:
(d) For purposes of this Section 4.12, the term "Participant"
shall include any Former Participant with a balance remaining in any
account under the Plan.
2
<PAGE>
11. The following new Section 4.13 is added:
4.13 COMPANY STOCK FUND
The Administrator shall establish the Company Stock
Fund as one of the Investment Funds under the Plan. The Company Stock
Fund shall be invested exclusively in Company Stock except for such
temporary small investments in cash or other liquid assets as the
Administrator may deem appropriate to facilitate benefit payments,
investment in Company Stock and changes to and from the Company Stock
Fund. Dividends, if any, paid upon shares of Company Stock in the
Company Stock Fund will automatically be reinvested in such Fund. There
are no guarantees with respect to principal or investment return.
Participants shall be entitled to exercise all voting rights with
respect to shares of Company Stock in which their Directed Investment
Account is invested. Participants may invest in the Company Stock Fund
in accordance with the procedures established and communicated to
Participants for the Plan's Investment Funds.
11. The following new Section 4.14 is added:
4.14 ALLOCATION AND VESTING FOR AMOUNTS TRANSFERRED FROM
SMITHWAY MOTOR XPRESS ESOP
The accounts of each participant in the Smithway
Motor Xpress ESOP shall be transferred to this Plan, effective January
1, 1997, and allocated to the Participant Account established for the
participant. In no event shall an individual's Vested percentage in the
amount transferred from the Smithway Motor Xpress ESOP be less than the
individual's vested percentage in his ESOP account as of December 31,
1996.
12. The last sentence in Section 6.10 is deleted and replaced with the
following:
Notwithstanding the above:
(a) pre-retirement distributions from a Participant's Elective
Account shall not be permitted prior to the Participant attaining age
59 1/2 except as otherwise permitted under the terms of the Plan; and
(b) for the Plan Year ending December 31, 1997, pre-retirement
distributions from a Participant's ESOP Account shall not be permitted.
13. The following new Section 6.12 is added:
6.12 SPECIAL RULES FOR COMPANY STOCK TRANSFERRED FROM
SMITHWAY MOTOR XPRESS ESOP
(a) IN GENERAL. The special rules set forth in this
Section 6.12 shall apply to the distribution of that portion of a
Participant's or Former
3
<PAGE>
Participant's interest in the Plan that was transferred from
the Smithway Motor Xpress ESOP, and that has remained invested
in Company Stock.
(b) INTEREST TO WHICH RULES APPLY. These rules shall
apply only to that portion of a Participant's or Former
Participant's interest in the Plan that (i) is invested in
Company Stock, (ii) was initially transferred from the
Smithway Motor Xpress ESOP upon the merger of that plan into
the Plan, and (iii) has remained invested at all times
following the date of merger in Company Stock. This portion of
a Participant's or Former Participant's interest in the Plan
shall be referred to in this Section 6.12 as the Participant's
ESOP Stock Interest.
(c) RIGHT TO DEMAND DISTRIBUTION IN COMPANY STOCK. A
Distribution of a Participant's ESOP Stock Interest may be
made in cash or Company Stock or both, provided, however, that
if a Participant or Beneficiary so demands, the Participant's
ESOP Stock Interest shall be distributed only in the form of
Company Stock. Prior to making a distribution of benefits, the
Administrator shall advise the Participant or his Beneficiary,
in writing, of the right to demand that benefits be
distributed solely in Company Stock. If a Participant or
Beneficiary demands that benefits be distributed solely in
Company Stock, distribution of a Participant's benefit shall
be made entirely in whole shares or other units of Company
Stock.
(d) PUT OPTION. If a Participant's ESOP Stock
Interest is distributed in the form of Company Stock and, at
the time of distribution, the Company Stock is not publicly
traded or is subject to a trading limitation, the Company
Stock distributed shall be subject to a put option. For
purposes of this paragraph, a "trading limitation" is a
restriction under any Federal or State securities law or any
regulation thereunder, or an agreement affecting the Company
Stock which would make the Company Stock not as freely
tradeable as stock not subject to such restriction.
(i) EXERCISE OF PUT OPTION. The put option
must be exercisable only by a Participant or Former
Participant, by the Participant's or Former
Participant's donees, or by a person (including an
estate or its distributee) to whom the Company Stock
passes by reason of a Participant's death. (Under
this Section, Participant or Former Participant
includes the Beneficiaries of the Participant or
Former Participant under the Plan.) The put option
must permit a Participant to put the Company Stock to
the Employer. Under no circumstances may the put
option bind the Plan. However, it shall grant the
Plan an option to assume the rights and obligations
of the Employer at the time that the put option is
exercised.
(ii) DURATION OF OPTION. The put option
shall commence as of the day following the date the
Company Stock is distributed
4
<PAGE>
to the Former Participant and end 60 days thereafter.
If not exercised within such 60-day period, an
additional 60-day option shall commence on the first
day of the fifth month of the Plan Year next
following the date the stock was distributed to the
Former Participant (or such other 60-day period as
provided by Regulation). However, in the case of
Company Stock that is publicly traded without
restrictions when distributed, but ceases to be so
traded after distribution within either of the 60-day
periods described herein, the Employer must notify
each holder of such Company Stock in writing on or
before the tenth day after the date the Company Stock
ceases to be so traded that for the remainder of the
applicable 60-day period the Company Stock is subject
to the put option. The number of days between the
tenth day and the date on which notice is actually
given, if later than the tenth day, shall be added to
the duration of the put option. The notice shall
inform distributees of the term of the put options
that they are to hold. The terms must satisfy the
requirements of this paragraph. The period during
which the put option is exercisable does not include
any time when a distributee is unable to exercise it
because the party bound by the put option is
prohibited from honoring it by applicable Federal or
State law.
(iii) MANNER OF EXERCISING OPTION. The put
option is exercised by the holder notifying the
Employer in writing that the put option is being
exercised. The notice shall state the name and
address of the holder and the number of shares to be
sold. The price at which a put option must be
exercisable is the value of the Company Stock
determined in accordance with Regulation
54.4975-11(d)(5).
(iv) TOTAL DISTRIBUTIONS. Payment under the
put option involving a "Total Distribution" shall be
paid in substantially equal monthly, quarterly,
semiannual or annual installments over a period
certain beginning not later than thirty (30) days
after the exercise of the put option and not
extending beyond five (5) years. For purposes of this
Subsection (iv), "Total Distribution" means a
distribution to a Participant or his Beneficiary
within one taxable year of the entire Vested
Participant's Account.
(v) OTHER PAYMENT TERMS. The provisions for
payment under a put option shall be reasonable. In
the case of any deferred payment, adequate security
shall be given and a reasonable interest rate shall
be paid on the unpaid amounts. Payment under a put
option must not be restricted by the provisions of
loan or another arrangement, including the terms of
the Employer's articles of incorporation, unless so
required by applicable state law.
5
<PAGE>
(e) RIGHT OF FIRST REFUSAL. If a Participant's ESOP
Stock Interest is distributed in the form of Company Stock
and, at the time of distribution, the Company Stock is not
publicly traded, the Company Stock distributed shall be
subject to a right of first refusal as set forth in this
Section 6.12(e).
(i) NOTICE AND EXERCISE OF RIGHT. If any
person to whom shares of Company Stock are
distributed under this Section 6.12 desires to sell
some or all of the shares (the "Offered Shares") to a
third party (the "Third Party"), the Selling
Participant shall give written notice of such desire
to the Employer and the Administrator. The notice
shall contain the number of shares offered for sale,
the proposed terms of the sale and the names and
addresses of both the Selling Participant and Third
Party. Both the Trust Fund and the Employer shall
each have the right of first refusal for a period of
fourteen (14) days from the date the Selling
Participant gives such written notice to the Employer
and the Administrator to acquire the Offered Shares.
As between the Trust Fund and the Employer, the Trust
Fund shall have priority to acquire the shares
pursuant to the right of first refusal. The selling
price and terms shall be the same as offered by the
Third Party.
In no event, however, may the selling price
and other terms under the right be less favorable to
the Selling Participant than the greater of the value
of the security determined under Regulation
54.4975-11(d)(5), or the purchase price and other
terms offered by a buyer (other than the Employer or
the Trust Fund), making a good faith offer to
purchase the security.
(ii) FAILURE TO EXERCISE RIGHT. If the Trust
Fund and the Employer do not exercise their rights of
first refusal within the required fourteen (14) day
period provided above, the Selling Participant shall
have the right, at any time following the expiration
of such fourteen (14) day period, to dispose of the
Offered Shares to the Third Party; provided, however,
that (1) no disposition shall be made to the Third
Party on terms more favorable to the Third Party than
those set forth in the written notice delivered by
the Selling Participant above, and (2) if such
disposition shall not be made to a third party on the
terms offered to the Employer and the Trust Fund, the
offer shares shall again be subject to the right of
first refusal set forth above.
(iii) CLOSING OF PURCHASE. The closing
pursuant to the exercise of the right of first
refusal shall take place at such time and place
agreed upon between the Administrator and the Selling
Participant, but not later than ten (10) days after
the Employer or the Trust Fund shall have notified
the Selling Participant of the
6
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exercise of the right of first refusal. At such
closing, the Selling Participant shall deliver
certificates representing the Offered Shares duly
endorsed in blank for transfer, or with stock powers
attached duly executed in blank with all required
transfer tax stamps attached or provided for, and the
Employer or the Trust Fund shall deliver the purchase
price, or an appropriate portion thereof to the
Selling Participant.
(f) NONTERMINABLE PROTECTIONS AND RIGHTS. None of the
Company Stock subject to a Participant's ESOP Stock Interest
may be subject to a put, call, or other option, or buy-sell or
similar arrangement when held by and when distributed from the
Trust Fund, except as provided in Sections 6.12(d) and
6.12(e). The protections and rights granted in these Sections
6.12(d) and 6.12(f) are nonterminable, and such protections
and rights shall continue to exist under the terms of this
Plan. No amendment to the Plan shall cause a termination of
these protections and rights.
(g) DISTRIBUTION OF ESOP STOCK INTEREST. Unless the
Participant, Former Participant, or Beneficiary elects in
writing a longer distribution period, distributions
attributable to a Participant's ESOP Stock Interest shall be
in substantially equal monthly, quarterly, semiannual, or
annual installments over a period not longer than five (5)
years. In the case of a Participant's ESOP Stock Interest in
excess of $500,000, the five (5) year period shall be extended
one (1) additional year (but not more than five (5) additional
years) for each $100,000 or fraction thereof by which such
balance exceeds $500,000. The dollar limits shall be adjusted
at the same time and in the same manner as provided in Code
Section 415(d).
14. The following new Section 7.2(c) is added:
(c) The Trustee may acquire and hold Company Stock.
15. Section 7.3(r) is amended by adding the following sentence at the end
of that section:
For purposes of this Section 7.3(r), the term "Participant"
shall include any Former Participant with a balance remaining in any
account under the Plan.
16. The following new Section 7.4(f) is added:
(f) For the Plan Year ending December 31, 1997:
(i) the value of a Participant's ESOP Account shall be
excluded in determining the maximum amount a Participant may
borrow from the Plan; and
(ii) no loans shall be permitted from a Participant's ESOP
Account.
7
<PAGE>
Numbered item 11, above, is effective March 1, 1997; the other changes
made by this Amendment are effective January 1, 1997.
IN WITNESS WHEREOF, on this 30th day of December, 1996, Smithway Motor
Xpress, Inc. hereby adopts this Amendment.
SMITHWAY MOTOR XPRESS, INC.
By: /s/ WILLIAM G. SMITH
Title: President
ATTEST:
/s/ G. LARRY OWENS 8
