As
filed with the Securities and Exchange Commission on July 16,
2007
Registration
No.
333-131146
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Post-Effective
Amendment No. 2
to
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
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Delaware
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65-0707824
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida
Telephone:
(954) 308-4200
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Richard
E. Gathright
Chief
Executive Officer and President
SMF
Energy Corporation
200
West Cypress Creek Road, Suite 400
Fort
Lauderdale, Florida
Telephone:
(954) 308-4200
(Name,
address, including zip code, and telephone number, including area code, of
agent
for service)
With
copies to:
S.
Lee Terry, Jr.
Davis
Graham & Stubbs LLP
1550
Seventeenth Street, Suite 500
Denver,
Colorado 80202
Telephone:
(303) 892-9400
APPROXIMATE
DATE OF COMMENCEMENT
OF
PROPOSED SALE TO THE PUBLIC: from time to time after the effective date of
this
Registration Statement.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box: o
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering: o
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box: o
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
If
delivery of the prospectus is expected to be made pursuant to Rule 434, check
the following box. o
The
registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the registrant shall file
a
further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said
section 8(a), may determine.
EXPLANATORY
NOTE
This
Post-Effective Amendment No. 2 relates to Registration Statement No. 333-131146
on Form S-3, filed with the Securities and Exchange Commission (the “SEC”) on
January 19, 2006 (the “Original Registration Statement”). This Post-Effective
Amendment No. 2 is being filed pursuant to Rule 414 under the Securities Act
of
1933, as amended (the “Securities Act”), to notify the SEC that SMF Energy
Corporation, a Delaware corporation (“SMF”), is the successor to Streicher
Mobile Fueling, Inc., a Florida corporation (“Streicher’), and to amend the
Original Registration Statement accordingly.
SMF
is
the successor to Streicher as a result of the reincorporation merger of
Streicher with and into SMF, a wholly-owned subsidiary of Streicher, consummated
pursuant to an Agreement of Merger and Plan of Merger and Reorganization (the
“Merger Agreement”). The Merger Agreement was approved by the shareholders of
Streicher at the annual meeting of shareholders held on December 8, 2006 and
at
the reconvened meeting held on December 22, 2006. The merger was effective
on
February 14, 2007. Immediately prior to the merger, SMF had no assets or
liabilities other than nominal assets and liabilities.
Pursuant
to Rule 414(d) under the Securities Act, SMF, as successor to Streicher, hereby
adopts the Original Registration Statement as its own registration statement
for
all purposes of the Securities Act and the Securities Exchange Act of 1934,
as
amended.
As
used
in this Post-Effective Amendment No. 2, the terms “Registrant,” “Company,” “we,”
“our,” “ours” and “us” refer to Streicher Mobile Fueling, Inc. and its successor
by merger, SMF Energy Corporation, as the context may require.
Subject
to completion, dated July 16,
2007
The
information in this prospectus is not complete and may be changed. The Selling
Stockholders may not sell these securities pursuant to this prospectus until
the
registration statement filed with the Securities and Exchange Commission
becomes
effective. This prospectus is not an offer to sell these securities and neither
SMF Energy Corporation nor the Selling Stockholders are soliciting offers
to buy
these securities in any state where the offer or sale is not
permitted
PROSPECTUS
SMF
ENERGY CORPORATION
75,840 SHARES
COMMON STOCK
75,840 WARRANTS
TO PURCHASE COMMON STOCK
This
prospectus relates to 75,840 warrants to purchase shares of common stock
(the “Warrants”) and 75,840 shares of common stock, $.01 par value,
issuable upon exercise of the Warrants that may be sold from time to time by
the
selling stockholders named in this prospectus (the “Selling Stockholders”). The
Warrants were issued in a private placement in September 2005 and entitle the
holder to purchase one share of common stock at an exercise price of $2.28
per share.
The
offering is not being underwritten. The offering price of our common stock
that
may be sold be Selling Stockholders may be the market price for our common
stock
prevailing at the time of sale on the NASDAQ Capital Market, a price related
to
the prevailing market price, a negotiated price or such other prices as the
Selling Stockholders determine from time to time. The Warrants do not have
an
established trading market and will not be listed on any securities exchange.
The offering price of the Warrants that may be sold by the Selling Stockholders
may be the market price, if a market develops, a negotiated price or such other
prices as the Selling Stockholders determine from time to time.
We
will
not receive any proceeds from the sale of the shares or the Warrants by any
of
the Selling Stockholders. We may, however, receive cash consideration in
connection with the exercise of the Warrants for cash.
Our
common stock is quoted on the NASDAQ Capital Market under the symbol “FUEL.” On
June 4, 2007, the closing price of our common stock was $1.79 per
share.
For
a discussion of certain risks that should be considered by prospective
investors, see “Risk Factors” beginning on page 4 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or determined if this prospectus
is
truthful or complete. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus is July __, 2007.
TABLE
OF CONTENTS
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Page
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2
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PROSPECTUS
SUMMARY
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3
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RISK
FACTORS
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5
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USE
OF PROCEEDS
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8
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DESCRIPTION
OF WARRANTS TO PURCHASE COMMON STOCK
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8
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SELLING
STOCKHOLDERS
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9
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PLAN
OF DISTRIBUTION
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10
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LEGAL
MATTERS
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12
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EXPERTS
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12
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WHERE
YOU CAN FIND MORE INFORMATION
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13
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INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
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13
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FORWARD-LOOKING
STATEMENTS
This
prospectus, including the information incorporated by reference, contains
forward-looking statements as defined in the Private Securities Litigation
Reform Act of 1995. The use of any statements containing the words “intends,”
“believes,” “estimates,” “seeks,” “project,” “expects,” “anticipates,” “plans,”
“approximately,” “should,” “may,” “will” or similar expressions are intended to
identify such statement. Forward-looking statements inherently involve risks
and
uncertainties that could cause actual results to differ materially from the
forward-looking statements. In evaluating these statements, you should
specifically consider various factors, including the risks outlined under the
caption “Risk Factors” in this prospectus. You should pay particular attention
to the cautionary statements involving our history of losses, our capital
requirements, our expansion and acquisition strategies, competition and
government regulation. These factors and the others set forth under “Risk
Factors” may cause our actual results to differ materially and adversely from
any forward-looking statement.
PROSPECTUS
SUMMARY
Because
this is a summary, it may not contain all information that may be important
to
you. You should read this entire prospectus, including the information
incorporated by reference, before you decide whether to buy our common stock.
You should pay special attention to the risks of investing in our common stock
as discussed under “Risk Factors.”
SMF
Energy Corporation
We
provide commercial mobile and bulk fueling; the packaging, distribution and
sale
of lubricants and chemicals; integrated out-sourced fuel management;
transportation logistics; and emergency response services. Our fleet of custom
specialized tank
wagons, tractor-trailer transports, box trucks and customized flatbed vehicles
delivers diesel fuel and gasoline to customers’ locations on a regularly
scheduled or as needed basis, refueling vehicles and equipment, re-supplying
fixed-site and temporary bulk storage tanks, and emergency power generation
systems; and distributes a wide variety of specialized petroleum products,
lubricants and chemicals to refineries, manufacturers and other industrial
customers. At
March
31, 2007, we were conducting operations from 28 locations serving metropolitan
markets in Alabama, California, Florida, Georgia, Louisiana, Mississippi, North
Carolina, South Carolina, Tennessee and Texas.
In
February 2005, we acquired substantially all of the assets and business
operations of Shank C&E Investments, L.L.C. (“Shank Services”), a Houston,
Texas based provider of commercial fuel, petroleum lubricants distribution
and
sales and transportation logistics services. Shank Services, which conducts
its
operations through our subsidiary, SMF Services, Inc., generates revenues from
the sale of commercial fuel, petroleum lubricants and transportation logistics
operations in the Houston, Dallas/Fort Worth, Austin and San Antonio markets
in
Texas.
On
October 1, 2005, we acquired all of the capital stock of H & W Petroleum
Company, Inc. (“H & W”), a Houston, Texas based marketer and
distributor of lubricants, commercial fuels and petroleum products. Immediately
prior to the consummation of that acquisition, H & W acquired the operating
assets of Harkrider Distributing Company, Incorporated (“Harkrider”), a Houston
based marketer and distributor of dry cleaning solvents, chemicals and petroleum
products, which was related to H & W through some common shareholder
ownership. In addition to providing service to the greater Houston metropolitan
area, the combined H & W and Harkrider operations also serve the Dallas/Fort
Worth, Freeport, Longview, Lufkin, San Antonio and Waco markets in
Texas.
On
February 14, 2007, we changed our name from Streicher Mobile Fueling, Inc.
to
SMF Energy Corporation and reincorporated in Delaware. Our principal executive
office is located at 200 West Cypress Creek Road, Suite 400, Ft. Lauderdale,
Florida 33309, and our phone number is (954) 308-4200. Our website is
http://www.mobilefueling.com.
The
information on our website does not constitute part of this
prospectus.
The
Offering
We
are
registering 75,840 four-year warrants to purchase common stock and
75,840 shares of common stock issuable upon the exercise of the Warrants,
to be offered for sale by certain of our stockholders.
The
Selling Stockholders purchased the Warrants in a private placement completed
on
September 1, 2005. We relied on Section 4(2) of the Securities Act of
1933, as amended, and Regulation D
promulgated thereunder in connection with the private placement.
In
addition to the shares of common stock registered hereby, we have previously
registered for resale other shares of our common stock, some of which remain
unsold. In particular, there are 1,349,757 shares of common stock registered
for
resale pursuant to a Form S-3 registration statement declared effective
June 8, 2001; 2,067,222 shares of common stock registered for resale
pursuant to a Form S-3 registration statement declared effective April 8,
2004; 38,292 shares pursuant to a Form S-3 registration statement declared
effective July 18, 2005; and 2,673,755 shares pursuant to a Form S-3
registration statement, originally filed on June 7, 2007.
Use
of Proceeds
We
will
not receive any of the proceeds from the sale of the shares or the Warrants
by
the Selling Stockholders. We may, however, receive cash consideration in
connection with the exercise of the Warrants for cash.
RISK
FACTORS
An
investment in the Shares involves a high degree of risk. You should consider
carefully the following discussion of risks, in addition to the other
information included or incorporated by reference in this prospectus, before
purchasing any of the securities. In addition to historical information, the
information in this prospectus contains “forward -looking” statements about our
future business and performance. See “Forward-Looking Statements.” Our actual
operating results and financial performance may be very different from what
we
expect as of the date of this prospectus. The risks below address the material
factors that may affect our future operating results and financial
performance.
No
Assurances of Future Profitability; Losses from Operations; Need for
Capital.
The
Company incurred net losses for the fiscal years ended June 30, 2006, 2005
and
2004 and for the quarters ended September 30, 2006, December 31, 2006 and March
31, 2007. In order to generate profits in the future, we need to reduce cash
and
non-cash interest expense, increase volumes of products and services sold at
profitable margins, control costs and generate sufficient cash flow to support
working capital and debt service requirements. There is no assurance that our
management will be able to accomplish our business plan or continue to raise
capital at terms that are acceptable to us in order to support working capital
requirements or debt service shortfalls during any business downturns. At June
30, 2006, our working capital was $1.3 million compared to $5.9 million on
June
30, 2005. The $4.6 million decrease primarily related to the costs of developing
and maintaining our improved corporate infrastructure; continuing costs of
integrating our recent acquisitions; capital expenditures related to the
implementation of our new Enterprise Resource Planning (“ERP”) system; corporate
office leasehold improvements and other capital purchases; and principal
payments on the Company’s August 2003 Senior Subordinated Notes; offset by
proceeds from warrant exercises and an increase in net margin per gallon
compared to the prior year. In light of the recent losses, which had further
decreased our working capital, on February 15, 2007, we conducted a private
placement of our equity securities in order to provide funds for debt repayment
and to boost our working capital. Notwithstanding the completion of the $3.27
million private placement, the Company may need to raise additional capital
to
fund new acquisitions, the expansion or diversification of existing operations
or additional debt repayment. While we believe that the Company will be able
to
obtain needed capital, there can be no assurance that it will do so or that
such
capital can be obtained on terms acceptable to the Company.
Trading
Market for Our Common Stock. Our
common stock trades on the Nasdaq Capital Market under the symbol FUEL. During
the past few years, the stock sometimes traded in large daily volumes and other
times at much lower volumes, in many cases at wide price variances. This
volatility, which could make it difficult for stockholders to sell shares at
a
predictable price or at specific times, is generally due to factors beyond
our
control. Quarterly and annual operating results, changes in general conditions
in the economy, the financial markets or other developments affecting us could
cause the market price of our common stock to fluctuate.
Growth
Dependent Upon Future Expansion; Risks Associated With Expansion into New
Markets. While
we
intend to continue to expand through acquisitions, our growth will also depend
upon the ability to achieve greater penetration in existing markets and to
successfully enter new markets in both additional major and secondary
metropolitan areas. Such organic expansion will largely be dependent on our
ability to demonstrate the benefits of our services and products to potential
new customers; successfully establish and operate new locations; hire, train
and
retain qualified management, operating, marketing and sales personnel; finance
acquisitions, capital expenditures and working capital requirements; secure
reliable sources of product supply on a timely basis and on commercially
acceptable credit terms; and successfully manage growth by effectively
supervising operations, controlling costs and maintaining appropriate quality
controls. There can be no assurance that we will be able to successfully expand
our operations into new markets.
Acquisition
Availability; Integrating Acquisitions. The
Company’s future growth strategy involves the acquisition of complementary
businesses, such as wholesale fuel or petroleum lubricants marketers and
distributors; wholesale fuel and other commercial mobile fueling companies;
and
transportation logistics services businesses. It is not certain that we will
be
able to identify or make suitable acquisitions on acceptable terms or that
any
future acquisitions will be effectively and profitably integrated into our
operations. Acquisitions involve numerous risks that could adversely affect
our
operating results, including timely and cost effective integration of the
operations and personnel of the acquired business; potential write downs of
acquired assets; retention of key personnel of the acquired business; potential
disruption of existing business; maintenance of uniform standards, controls,
procedures and policies; additional capital needs; the effect of changes in
management on existing business relationships; and profitability and cash flows
generally.
Effect
of Material Weakness in Internal Controls.
In
fiscal 2006, our management identified significant deficiencies related to
policies and procedures to ensure accurate and reliable interim and annual
consolidated financial statements that, considered together, constituted a
material weakness in our internal controls. Specifically, we lacked (i)
sufficient number of personnel with required technical accounting and SEC
financial reporting experience; (ii) adequate segregation of duties among our
accounting personnel; (iii) sufficient review controls over account
reconciliations, account analyses and operating procedures, primarily in
connection with acquired businesses; and (iv) policies and procedures requiring
a timely and detailed review of information underlying amounts included in
our financial statements and disclosures. While we have engaged in substantial
efforts to address the material weakness in our internal controls over financial
reporting and to improve the integrity of our reporting processes, including
the
development and implementation of our ongoing ERP infrastructure capability
that
we initiated in fiscal 2006, there is no assurance that our efforts will be
successful. Those remediation efforts are explained in detail in our Form 10-K
for the year ended June 30, 2006 and our Form 10-Q for the quarter ended March
31, 2007, which are incorporated by reference herein. Even though our management
has made the correction of the identified material weakness one of its very
highest priorities for fiscal 2007, it is possible that, considering our size,
our limited capital resources and our need to continue to expand our business
by
acquisitions and diversification, we will not be able to promptly rectify all
of
the significant deficiencies that led to our conclusion of a material weakness
in our internal controls. We
have
incurred and will continue to incur substantial expenses relating to the
remediation of this material weakness. These expenses may materially affect
our
financial condition, results of operations and cash flows. Moreover, even after
the full implementation of our planned remedial measures, as described in Item
9A - “Controls and Procedures” of our 2006 Form 10-K are fully implemented, our
internal controls may not prevent all potential errors or fraud because any
control system, no matter how well designed, cannot provide absolute assurance
that the objectives of the control system will be achieved.
Dependence
on Key Personnel.
The
future success of the Company will be largely dependent on the continued
services and efforts of Richard E. Gathright, our Chief Executive Officer and
President, and on those of other key executive personnel. The loss of the
services of Mr. Gathright or other executive personnel could have a material
adverse effect on our business and prospects. Our success and plans for future
growth will also depend on our ability to attract and retain additional
qualified management, operating, marketing, sales and financial personnel.
There
can be no assurance that we will be able to hire or retain such personnel on
terms satisfactory to us. We have entered into written employment agreements
with Mr. Gathright and certain other key executive personnel. While Mr.
Gathright’s employment agreement provides for automatic one-year extensions
unless either party gives notice of intent not to renew prior to such extension,
there is no assurance that Mr. Gathright’s services or those of our other
executive personnel will continue to be available to the Company.
Fuel
Pricing and Supply Availability; Effect on
Profitability.
Diesel
fuel and gasoline are commodities which are refined and distributed by numerous
sources. The Company purchases the fuel delivered to our customers from multiple
suppliers at daily market prices and in some cases qualifies for certain
discounts. We monitor fuel prices and trends in each of our service markets
on a
daily basis and seek to purchase our supply at the lowest prices and under
the
most favorable terms. Commodity price risk is generally mitigated since we
purchase and deliver our fuel supply daily and generally utilize cost-plus
pricing when billing our customers. If we cannot continue to utilize cost-plus
pricing when billing our customers, margins would likely decrease and losses
could increase. We have not engaged in derivatives or futures trading to hedge
fuel price movements. In addition, diesel fuel and gasoline may be subject
to
supply interruption due to a number of factors, including natural disasters,
refinery and/or pipeline outages, labor disruptions and supplier credit
limitations. The reduction of available supplies or our access to those supplies
could impact our ability to provide commercial mobile and bulk fueling, and
emergency response services and impact profitability.
Risks
Associated with Customer Concentration; Absence of Written Agreements.
Although
the Company provides services to many customers, a significant portion of our
revenues are generated from a few of our larger customers. While we have formal,
length of service written contracts with some of these larger customers, such
agreements are not customary and we do not have them with the majority of our
customers. As a result, most of our customers can terminate our services at
any
time and for any reason, and we can similarly discontinue service to any
customer. The Company may discontinue service to a customer if changes in the
service conditions or other factors cause us not to meet our minimum level
of
margins and rates, and the pricing or delivery arrangements cannot be
re-negotiated. As a result of this customer concentration and absence of written
agreements, our business, results of operations and financial condition could
be
materially adversely affected if one or more of our large customers were lost
or
if we were to experience a high rate of service terminations.
Management
of Growth; Accounting and Information Technology Systems Implementation.
Our
future growth strategy requires effective operational, financial and other
internal systems, and the ability to attract, train, motivate, manage and retain
our employees. If we are unable to manage growth effectively, results of
operations will be adversely affected. In particular, our results of operations
will be influenced by the redesign and implementation of our accounting and
information technology systems. While in the short run, the costs of that
redesign and implementation have increased our expenses and adversely affected
our results of operations, we expect that, once implemented, it will help reduce
operating costs and improve our ability to effectively manage our business
and
integrate acquisitions. There can be no assurance, however, that such redesign
and implementation will be completed as planned, or that it will have the
intended results.
Competition.
The
Company competes with other service providers, including several large regional
providers and numerous small, local independent operators, who provide some
or
all of the same services that we offer to our customers. In the mobile fueling
area, we also compete with retail fuel marketing, since fleet operators have
the
option of fueling their own equipment at retail stations and at other
third-party service locations such as card lock facilities. Our ability to
compete is affected by numerous factors, including price, the complexity and
technical nature of the services required, delivery dependability, credit terms,
the costs incurred for non-mobile fueling alternatives, service locations as
well as the type of reporting and invoicing services provided. There can be
no
assurance that we will be able to continue to compete successfully as a result
of these or other factors.
Operating
Risks May Not Be Covered by Insurance.
Our
operations are subject to the operating hazards and risks normally incidental
to
handling, storing and transporting diesel fuel and gasoline, which are
classified as hazardous materials. We maintain insurance policies in amounts
and
with coverages and deductibles that we believe are reasonable and prudent.
There
can be no assurance, however, that our insurance will be adequate to protect
us
from liabilities and expenses that may arise from claims for personal and
property damage arising in the ordinary course of business; that we will be
able
to maintain acceptable levels of insurance; or that insurance will be available
at economical prices.
Governmental
Regulation. Numerous
federal, state and local laws, regulations and ordinances, including those
relating to protection of the environment and worker safety, affect the
Company’s operations. There can be no assurance that we will be able to comply
with existing and future regulatory requirements in the future without incurring
substantial costs or otherwise adversely affecting our operations.
Changes
in Environmental Requirements.
The
Company expects to generate future business by converting certain fleet
operators, currently utilizing underground fuel storage tanks for their fueling
needs, to commercial mobile fueling. The owners of underground storage tanks
have been required to remove or retrofit those tanks to comply with technical
regulatory requirements pertaining to their construction and operation. If
other
more economical means of compliance are developed or adopted by owners of
underground storage tanks, the opportunity to market our services to these
owners may be adversely affected.
Terrorism
and warfare in the Middle East may adversely affect the economy and the price
and availability of petroleum products.
Terrorist attacks, such as the attacks that occurred in New York, Pennsylvania
and Washington, D.C., on September 11, 2001, as well as the continuing political
unrest and warfare in the Middle East, may adversely impact the price and
availability of fuel, our results of operations, our ability to raise capital
and our future growth. The impact of terrorism on the oil industry in general,
and on the Company in particular, is not known at this time. An act of terror
could result in disruptions of crude oil or natural gas supplies and markets,
the sources of our products, and our infrastructure facilities or our suppliers
could be direct or indirect targets. Terrorist activity may also hinder our
ability to transport fuel if the means of supply transportation, such as rail
or
pipelines, become damaged as a result of an attack. A lower level of economic
activity following a terrorist attack could result in a decline in energy
consumption, which could adversely affect our revenues or restrict our future
growth. Instability in the financial markets as a result of terrorism could
also
impair our ability to raise capital. Terrorist activity or further instability
in the Middle East could also lead to increased volatility in fuel prices,
which
could adversely affect our business generally.
USE
OF PROCEEDS
We
will
not receive any of the proceeds from the sale of the shares by the Selling
Stockholders. All proceeds from the sale of the offered shares will be for
the
accounts of the Selling Stockholders. We may, however, receive cash
consideration in connection with the exercise of the Warrants.
DESCRIPTION
OF WARRANTS TO PURCHASE COMMON STOCK
This
section is a summary and may not describe every aspect of the Warrants that
may
be important to you. We urge you to read the Form of Stock Purchase Warrant
as
previously filed with the SEC as it defines the rights of a holder of these
securities. See “Where You Can Find More Information” for information on how to
obtain copies of documents referenced in this prospectus.
The
Warrants entitle the holder to purchase one share of common stock at an exercise
price of $2.28 per share. The Warrants are exercisable for a period of four
years and will expire on August 31, 2009. As
of
April 9, 2007, there were 75,840 Warrants outstanding to purchase a total of
75,840 shares of common stock.
The
Warrants include provisions for the appropriate adjustment in the Warrant price
and number and kind of securities purchasable upon the exercise of the Warrants
upon the occurrence of certain events, including subdivision or combination
of
shares, reclassification of our common stock, merger, and the payment of stock
dividends. The shares of common stock, when issued upon exercise of a Warrant,
will be fully paid and non-assessable and free from all taxes, liens and
charges. No fractional shares will be issued in connection with any exercise
of
the Warrants. The holder of a Warrant will not possess any rights as our
stockholder before the Warrant has been exercised and the shares purchasable
upon the exercise have become deliverable.
A
Warrant
may be exercised by surrender of the Warrant on or before the expiry date at
our
principal office in Fort Lauderdale, Florida, accompanied by (i) a completed
and
executed Notice of Exercise form, attached as Exhibit A to the Warrant, and
(ii)
payment of the exercise price for the number of shares of common stock to be
acquired.
We
have
the right to redeem the Warrants at any time after August 31, 2007, at $.01
per
share if the common stock trades at two hundred percent (200%) of the Warrant
price for any twenty (20) consecutive trading days beginning anytime on or
after
such date.
The
foregoing discussion is qualified in its entirety by reference to the detailed
provisions of the Stock Purchase Warrant.
SELLING
STOCKHOLDERS
We
are
registering for resale Warrants to purchase our common stock and the shares
of
our common stock that may be issued upon exercise of the Warrants held by the
Selling Stockholders.
The
following table sets forth certain information regarding the beneficial
ownership, as of April 9, 2007, by each of the Selling Stockholders. As of
the date of this prospectus, we do not anticipate adding additional Selling
Stockholders at a later time. We are not aware of any unidentified Selling
Stockholders. The information in the table below is based upon information
provided to us by the Selling Stockholders.
Beneficial
ownership is determined in accordance with Rule 13d-3(d) promulgated by the
SEC under the Securities Exchange Act of 1934, as amended, which we refer to
as
the Exchange Act. Unless otherwise noted, each person or group identified
possesses sole voting and investment power with respect to the offered shares.
The percentage of ownership data is based on 13,037,421 shares of our
common stock issued and outstanding as of April 9, 2007.
To
the
best of our knowledge, none of the Selling Stockholders has any position, office
or other material relationship with us or any of our predecessors or affiliates
within the past three years except as described below:
| · |
Leon
Frenkel is the managing member of Triage Capital LF Group, LLC (“Triage
Capital”), which acts as the general partner to a general partner of both
Triage Capital Management, L.P. and Triage Capital Management B, L.P.
Triage Capital acts as the manager of a limited liability company
that
acts as general partner to Triage Advisors, L.P., an investment manager
of
Triage Offshore Fund, Ltd. Mr. Frenkel also acts as the general
partner to Periscope Partners L.P. He disclaims beneficial ownership
of
the Company’s securities held by those entities except to the extent of
his pecuniary interest therein.
|
The
Selling Stockholders are participating in this offering under registration
rights presently granted to them. We have agreed to file and maintain the
effectiveness of the registration statement of which this prospectus forms
a
part and to pay all fees and expenses incident to the registration of this
offering, including all registration and filing fees, all fees and expenses
of
complying with state blue sky or securities laws, all costs of preparation
of
the registration statement and fees and disbursements of our counsel and
independent public accountants.
| |
|
|
|
|
|
|
|
Ownership
After the Offering(1)
|
|
|
Name
and Address of
Beneficial
Owner
|
|
Currently
Held Shares
|
|
Percentage
|
|
Number
of Shares Registered
|
|
Shares
|
|
Percentage
|
|
|
TRIAGE
CAPITAL MANAGEMENT, L.P.
c/o
Leon Frenkel, Sr. Manager
401
City Avenue, Suite 526
Bala
Cynwyd, PA 19004
|
|
|
343,985(1
|
)
|
|
2.6
|
|
|
63,840
|
|
|
280,145
|
|
|
2.1
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MARK
D, WITTMAN
20
Beacon Hill Lane
Phoenixville,
PA 19460
|
|
|
51,600(2
|
)
|
|
*
|
|
|
6,000
|
|
|
45,600
|
|
|
*
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ALA
PASTERNACK
1323
Valley Road
Villanova,
PA 19085
|
|
|
6,000(3
|
)
|
|
*
|
|
|
6,000
|
|
|
0
|
|
|
0
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
401,585
|
|
|
|
|
|
75,840
|
|
|
325,745
|
|
|
|
|
| * |
Less
than 1% of the shares outstanding.
|
| (1) |
Consists
of 343,985 shares issuable upon the exercise of warrants, including
63,840
shares offered in this offering, of which 38,640 shares were assigned
from
Triage Capital Management B, L.P. The Selling Stockholder has identified
Leonid Frenkel as the Managing Member of Triage Capital LF Group
LLC which
acts as the general partner to a general partner of Triage Capital
Management, L.P., as a natural person with sole voting and dispositive
power over the shares.
|
| (2) |
Consists
of 21,600 shares issuable upon the exercise of warrants, including
6,000
shares offered in this offering.
|
| (3) |
Consists
of 6,000 shares issuable upon the exercise of warrants, including
6,000
shares offered in this offering.
|
PLAN
OF DISTRIBUTION
General
The
shares of our common stock and Warrants to purchase common stock covered by
this
prospectus are being registered to permit public secondary trading of these
securities by the holder thereof from time to time after the date of the
prospectus. All of the shares of common stock and Warrants to purchase common
stock covered by this prospectus are being sold by the Selling Stockholders
or
its pledgees, donees, assignees, transferees or their successors-in-interest
that receive the shares as a gift, partnership distribution or other non-sale
related transfer.
The
Selling Stockholders and their pledgees, donees, assignees, or other
successors-in-interest who acquire their shares after the date of this
prospectus may sell the common stock and Warrants to purchase common stock
directly to purchasers or through broker-dealers or agents.
The
common stock may be sold in one or more transactions at fixed prices, at
prevailing market prices at the time of sale, at varying prices determined
at
the time of sale, or at negotiated prices. Sales may be effected in one or
more
of the following transactions:
| |
·
|
on
the NASDAQ Capital Market,
|
| |
·
|
in
the over-the-counter market,
|
| |
·
|
in
privately negotiated transactions,
|
| |
·
|
for
settlement of short sales, or through long sales, options or transactions
involving cross or block trades,
|
| |
·
|
by
pledges to secure debts and other obligations,
or
|
| |
·
|
in
a combination of any of these
transactions.
|
In
addition, any shares that qualify for sale pursuant to Rule 144 under the
Securities Act may be sold under Rule 144 rather than pursuant to this
prospectus.
Applicable
Law. Each
Selling Stockholder will be subject to applicable provisions of the Exchange
Act
and the associated rules and regulations under the Exchange Act, including
Regulation M, which provisions may limit the timing of purchases and sales
of
shares of our common stock by the Selling Stockholders.
Pledge
or Transfer of Shares. The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of common stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act of 1933 amending the list of Selling
Stockholders to include the pledgee, transferee or other successors in interest
as Selling Stockholders under this prospectus. The Selling Stockholders also
may
transfer the shares of common stock in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
Selling
Arrangements with Broker-Dealers. Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the Selling Stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
Selling Stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved.
Upon
the
Company being notified in writing by a Selling Stockholder that any material
agreement has been entered into with a broker-dealer for the sale of common
stock through a block trade, special offering, exchange distribution or
secondary distribution or a purchase by a broker or dealer, a supplement to
this
prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such Selling Stockholder and
of
the participating broker-dealer(s), (ii) the number of shares involved, (iii)
the price at which such shares of common stock were sold, (iv) the commissions
paid or discounts or concessions allowed to such broker-dealers, where
applicable, (v) that such broker-dealer(s) did not conduct any investigation
to
verify the information set out or incorporated by reference in this prospectus,
and (vi) other facts material to the transaction.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares may be deemed to be “underwriters” within the meaning of the
Securities Act in connection with such sales. In such event, any commissions
received by such broker-dealers or agents and any profit on the resale of the
shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. Discounts, concessions, commissions and
similar selling expenses, if any, attributable to the sale of shares will be
borne by the selling stockholder. Each Selling Stockholder has represented
and
warranted to the Company that it acquired the securities subject to this
registration statement in the ordinary course of such Selling Stockholder’s
business and, at the time of its purchase of such securities such Selling
Stockholder had no agreements or understandings, directly or indirectly, with
any person to distribute any such securities.
The
Company has advised each Selling Stockholder that the stockholder may not use
shares registered on this registration statement to cover short sales of common
stock made prior to the date that the SEC declares this registration statement
effective.
If
the
Selling Stockholders use this prospectus for any sale of the common stock,
they
will be subject to the prospectus delivery requirements of the Securities Act.
The Selling Stockholders will be responsible to comply with the applicable
provisions of the Securities Act and Exchange Act, and the rules and regulations
thereunder promulgated, including, without limitation, Regulation M, as
applicable to such Selling Stockholders in connection with resales of their
respective shares under this registration statement.
Supplements.
To the
extent required, we will set forth in a supplement to this prospectus filed
with
the SEC the number of shares to be sold, the purchase price and public offering
price, the name or names of any agent, dealer or underwriter, and any applicable
commissions or discounts with respect to a particular offering. In particular,
upon being notified by a Selling Stockholder that a donee or pledgee intends
to
sell more than 500 shares, we will file a supplement to this
prospectus.
State
Securities Law.
Under
the securities laws of some states, the Selling Stockholders may only sell
the
shares in those states through registered or licensed brokers or dealers. In
addition, in some states the Selling Stockholders may not sell the shares unless
they have been registered or qualified for sale in that state or an exemption
from registration or qualification is available and is satisfied.
Expenses;
Indemnification.
We will
receive up to $172,915 upon
exercise of the Warrants by the Selling Stockholders. We will not receive any
of
the proceeds from shares sold by the Selling Stockholders. We will bear the
expenses related to the registration of this offering but will not pay the
Selling Stockholders’ underwriting fees, commissions or discounts, if any. We
have agreed to indemnify the Selling Stockholders against some civil
liabilities, including some that may arise under the Securities
Act.
LEGAL
MATTERS
The
validity of the securities offered by this prospectus will be passed upon by
Davis Graham & Stubbs LLP, Denver, Colorado.
EXPERTS
Our
audited consolidated financial statements as of June 30, 2006 and June 30,
2005,
included in our Annual Report of Form 10-K for the year ended June 30, 2006,
incorporated by reference herein, have been audited by Grant Thornton LLP,
an
independent registered public accounting firm as set forth in their report
thereon. Such financial statements are incorporated by reference in reliance
upon such report given the authority of such firm as experts in accounting
and
auditing in giving said report.
Our
audited consolidated financial statements for the year-ended June 30, 2004,
have
been incorporated by reference herein in reliance upon the report of KPMG LLP
(“KPMG”), independent registered public accounting firm, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
We
have
agreed to indemnify and hold KPMG harmless against and from any and all legal
costs and expenses incurred by KPMG in successful defense of any legal action
or
proceeding that arises as a result of KPMG’s consent to the incorporation by
reference of its audit report on the Company’s past financial statements
incorporated by reference in this registration statement.
WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual, quarterly and special reports, proxy statements and other information
with the SEC. You may read and copy any of these documents at the SEC’s public
reference room at 100 F Street N.E., Room 1580, Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
room. Our SEC filings are also available to the public at the SEC’s website at
http://www.sec.gov.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
SEC
allows us to “incorporate by reference” the information we file with the SEC,
which means that we can disclose important information to you by referring
you
to those documents. The information incorporated by reference is considered
part
of this prospectus, and information that we file later with the SEC will
automatically update and supersede, as applicable, the information in this
prospectus.
The
following documents, which were previously filed with the SEC pursuant to the
Exchange Act, are hereby incorporated by reference:
| · |
our
Annual Report on Form 10-K for the year ended June 30,
2006;
|
| · |
our
Quarterly Reports on Form 10-Q for the quarters ended September 30,
2006, December 31, 2006 and March 31,
2007;
|
| · |
our
Definitive Proxy Statement on Schedule 14A, filed on December 8,
2006;
|
| · |
our
Current Reports on Form 8-K filed with the SEC on
July 7, 2006 (other than information in the Current Report that is
furnished, but not filed); October 2, 2006; October 3, 2006;
October 16, 2006 (other than information in the Current Report that
is
furnished, but not filed); October 18, 2006; December 4, 2006; December
22, 2006; January 19, 2007; February 14, 2007; February 21, 2007;
February 22, 2007 and April 3, 2007;
and
|
| · |
the
description of our common stock contained in Amendment No. 2 to our
Registration Statement on Form 8-A/A (SEC File No. 000-21825) filed
with
the SEC on June 5, 2007.
|
All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference
into this prospectus and shall be a part hereof from the date of filing of
such
documents.
Any
statement contained in a document incorporated or deemed to be incorporated
by
reference in this prospectus shall be deemed modified, superseded or replaced
for purposes of this prospectus to the extent that a statement contained in
this
prospectus, or in any subsequently filed document that also is deemed to be
incorporated by reference in this prospectus, modifies, supersedes or replaces
such statement. Any statement so modified, superseded or replaced shall not
be
deemed, except as so modified, superseded or replaced, to constitute a part
of
this prospectus. Subject to the foregoing, all information appearing in this
prospectus is qualified in its entirety by the information appearing in the
documents incorporated by reference.
Statements
contained in this prospectus as to the contents of any contract or other
document are not necessarily complete, and in each instance we refer you to
the
copy of the contract or document filed as an exhibit to the registration
statement or the documents incorporated by reference in this prospectus, each
such statement being qualified in all respects by such reference.
You
may
receive a copy of any of these filings, at no cost, by writing or calling SMF
Energy Corporation, 200 West Cypress Creek Road, Suite 400, Fort Lauderdale,
Florida, 33309, telephone (954) 308-4200, and directed to the attention of
Richard E. Gathright, Chief Executive Officer and President.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any supplement to this prospectus. We have authorized no
one
to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of this prospectus.
SMF
ENERGY CORPORATION
COMMON
STOCK
WARRANTS
TO PURCHASE COMMON STOCK
PROSPECTUS
________________,
2007
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
The
following table sets forth the costs and expenses (subject to future
contingencies) incurred or expected to be incurred by the Registrant in
connection with the offering. The Registrant has agreed to pay all the costs
and
expenses of this offering.
|
Securities
and Exchange Commission Registration Fee
|
|
$
|
212
|
|
|
Accounting
Fees and Expenses
|
|
|
15,000
|
|
|
Legal
Fees and Expenses
|
|
|
25,000
|
|
|
Miscellaneous
|
|
|
3,788
|
|
|
Total
|
|
$
|
44,000
|
|
(1)
The
amounts set forth above are in each case estimated.
SMF
Energy Corporation is incorporated in the State of Delaware. Section 145(a)
of
the General Corporation Law of the State of Delaware (the “DGCL”) provides that
a Delaware corporation may 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 he 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 enterprise, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best
interests of the corporation, and, with respect to any criminal action or
proceeding, he had no cause to believe his conduct was unlawful.
Section
145(b) of the DGCL provides that a Delaware corporation may 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 actually and reasonably
incurred by him in connection with the defense or settlement of such action
or
suit if he 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 to be liable to the corporation unless and only to the extent
that
the court in which such action or suit was brought shall determine that despite
the adjudication of liability, such person is fairly and reasonably entitled
to
be indemnified for such expenses which the court shall deem proper.
Section
145 of the DGCL 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 (a) and (b) or in the defense of any claim, issue,
or
matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of
any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director,
officer, employee or agent of the corporation against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such whether or not the corporation would have the power to indemnify him
against such liabilities under such Section 145.
Section
102(b)(7) of the DGCL provides that a corporation in its original certificate
of
incorporation or an amendment thereto validly approved by stockholders may
eliminate or limit personal liability of members of its board of directors
or
governing body for breach of a director’s fiduciary duty. However, no such
provision may eliminate or limit the liability of a director for breaching
his
duty of loyalty, failing to act in good faith, engaging in intentional
misconduct or knowingly violating a law, paying a dividend or approving a stock
repurchase which was illegal, or obtaining an improper personal benefit. A
provision of this type has no effect on the availability of equitable remedies,
such as injunction or rescission, for breach of fiduciary duty. SMF Energy
Corporation’s Certificate of Incorporation contains such a
provision.
The
Certificate of Incorporation of SMF Energy Corporation generally allows
indemnification of officers and directors to the fullest extent allowed by
law.
SMF Energy Corporation currently intends to indemnify its officers and directors
to the fullest extent permitted by its Certificate of Incorporation and Delaware
Law.
We
maintain insurance policies under which our directors and officers are insured,
within the limits and subject to the limitations of the policies, against
expenses in connection with the defense of actions, suits or proceedings, and
certain liabilities that might be imposed as a result of such actions, suits
or
proceedings, to which they are parties by reason of being or having been a
director or officer SMF Energy Corporation.
|
Exhibit
No.
|
|
Description
of Exhibit
|
|
2.1
|
|
Agreement
of Merger and Plan of Merger and Reorganization between Streicher
Mobile
Fueling, Inc. and SMF Energy Corporation, dated February 13, 2007
(incorporated by reference to Exhibit 2.1 to the Registrant’s Current
Report on Form 8-K filed on February 14, 2007)
|
| |
|
|
|
3(i)
|
|
Incorporating
Documents of SMF Energy Corporation, including: Certificate of
Incorporation dated October 6, 2006 (incorporated by reference to
Appendix
B to the Registrant’s Definitive Proxy Statement on Schedule 14A, filed on
October 30, 2006); Certificate of Amendment dated February 12, 2007
(incorporated by reference to Exhibit 3(i) to the Registrant’s Current
Report on Form 8-K filed on February 14, 2007)
|
| |
|
|
|
3(ii)
|
|
Bylaws
of SMF Energy Corporation (incorporated by reference to Appendix
D to the
Registrant’s Definitive Proxy Statement on Schedule 14A, filed on October
30, 2006)
|
| |
|
|
|
4.1
|
|
Specimen
Common Stock Certificate (incorporated by reference to Exhibit 4.1
to the
Registrant’s Amendment No. 2 to Registration Statement on Form 8-A/A (SEC
File No. 000-21825) filed on June 5, 2007)
|
| |
|
|
|
4.2
|
|
Form
of Warrants dated September 1, 2005 (incorporated by reference to
Exhibit
10.4 to the Registrant’s Current Report on Form 8-K filed on September 8,
2005)
|
| |
|
|
|
5.1
|
|
Opinion
of Davis Graham & Stubbs LLP*
|
| |
|
|
|
23.1
|
|
Consent
of Davis Graham & Stubbs LLP (included in its opinion filed as Exhibit
5.1)
|
| |
|
|
|
23.2
|
|
Consent
of Grant Thornton LLP
|
| |
|
|
|
23.3
|
|
Consent
of KPMG LLP
|
| |
|
|
|
24.1
|
|
Power
of Attorney*
|
|
|
|
* Previously
filed
ITEM
17.
UNDERTAKINGS
(a) We
hereby
undertake:
(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 (Securities Act);
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change
to
such information in this registration statement;
Provided,
however,
that
paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the Registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference into this registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is a part
of this 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 that remain unsold at the termination of the
offering.
(4) That,
for
the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule
430B
or other than prospectuses filed in reliance on Rule 430A, shall be deemed
to be
part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into
the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first
use,
supersede or modify any statement that was made in the registration statement
or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act of 1933, each filing of the Company’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 this registration statement shall be deemed to
be a
new registration statement relating to the securities offered thereby, and
the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 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) That,
for
the purpose of determining liability of the registrant under the Securities
Act
to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other
communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
SIGNATURES
Pursuant
to the requirements of the Securities Act, the Registrant certifies that it
has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Post-Effective Amendment No. 2 to
Registration Statement No. 333-131146 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fort Lauderdale, State
of
Florida, on July 16, 2007.
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SMF
ENERGY
CORPORATION |
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By: |
/s/ Richard
E. Gathright |
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Name:
Richard E. Gathright
Title:
Chief Executive Officer and President
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Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment
No. 2 to Registration Statement No. 333-131146 has been signed by the
following persons in the capacities and on the date indicated.
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Signature
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Title
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Date
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*
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Chief
Executive Officer and President, and
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July 16,
2007
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Richard
E. Gathright
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Chairman of
the Board
(Principal Executive Officer) |
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*
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Chief
Financial Officer and Senior Vice President
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July 16,
2007
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Michael
S. Shore
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(Principal
Financial
and Accounting Officer) |
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*
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Director
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July 16,
2007
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Wendell
R. Beard
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*
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Director
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July 16,
2007
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Larry
S. Mulkey
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*
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Director
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July 16,
2007
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C.
Rodney O’Connor
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*
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Director
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July
16, 2007
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Robert
S. Picow
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*
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Director
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July 16,
2007
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Steven
R. Goldberg
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*
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Director
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July 16,
2007
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Nat
Moore
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*By:
/s/
Richard E. Gathright
Richard
E. Gathright
Attorney-in-Fact
EXHIBIT
INDEX
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Exhibit
No.
|
|
Description
of Exhibit
|
|
23.2
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Consent
of Grant Thornton LLP
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23.3
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Consent
of KPMG LLP
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